Shine v Neville [1997] QSC 168

O.S. number 569 of 1995 is an application by Miss Neville under s.41 of the Succession Act 1981 for an order that adequate provision be made for her proper maintenance and support out of the estate of the deceased. That matter was heard together with action 1070 of 1995.

The deceased was born on 25 March 1890. She married in about 1918. Her husband died on 6 April 1973. There were three children of the marriage - John Neville born in about 1918 and presently aged 76; Leslie Neville who died in 1958 leaving three children and Miss Neville born 28 May 1937, an adopted daughter.

The deceased died on 4 December 1994. Miss Neville swore that her mother was a person who displayed erratic and irrational behaviour over many years evidenced by-

"(i) character assassinations of relatives, friends and neighbours;

(iii) delusions (for example the next door neighbour . . . was digging her own grave in the front garden of 23 Matthews Street)."

Miss Neville went to boarding school in Toowoomba at the age of 14. In 1953 she commenced nursing training at Jandowae Hospital where she remained for two years. She visited her parents on weekends and on days off. She then worked at the Toowoomba General Hospital for 2½ years, living in the nurses' quarters whilst she completed her training. She saw her parents frequently during that period. In January 1959 she went to Adelaide for 15 months, returning to Toowoomba to live in 1962. She continued to visit her parents regularly. She then went to Western Australia for six months, returned to Brisbane in 1963 and obtained maternal and child welfare qualifications. She returned to Toowoomba in 1966 where she was employed in the general hospital. When the deceased and her husband moved to Toowoomba in 1967 Miss Neville and her friend Daphne Cumner helped Miss Neville's parents to move house. Miss Neville maintained frequent contact with her parents until Miss Neville went to Brisbane in October 1968. Between that time and 1984 Miss Neville and Miss Cumner would often visit the deceased for weekends and would provide general assistance to the deceased by way of cleaning, maintenance, mowing, rubbish removal and the like.

Miss Neville and her friend had arranged to come and stay with the deceased for a few days around Christmas 1984. The deceased telephoned Miss Neville in a somewhat agitated state and became abusive. Miss Neville then did not visit her mother again until August 1993. She did make periodic phone contact in the intervening period and sent birthday, Mothers day and Christmas cards. None of these were acknowledged.

On 15 August 1993 the deceased telephoned Miss Neville and sought her assistance. In response to the deceased's request, Miss Neville visited her mother on 21 August 1993. In the course of that visit her mother informed her that her cousin had recommended a solicitor to her. She said she wanted to arrange to see him, presumably with a view to having the solicitor prepare a will. Miss Neville spoke to her mother over the telephone on 29 August, 5 September, 12 September and 26 September 1993. In the course of those discussions the deceased mentioned that she intended to see Mr Heading of Wonderley and Hall, solicitors, in order to make a will. Miss Neville visited her mother in Toowoomba on 13 September when she assisted her with the payment of bills, shopping, a visit to the bank and some other domestic matters. There was further telephone contact between mother and daughter and Miss Neville visited her mother again on 9 October. She was accompanied by her friend Daphne who helped her clean out the house and yard. On 12 October Dr Fogerty, a general practitioner whom the deceased was seeing at the time, made a telephone call to Miss Neville. She informed Miss Neville that the deceased was suffering from severe cardiac failure and mild renal failure. However, Dr Fogerty said that the deceased was refusing to go hospital and was quite paranoid about her neighbours. Miss Neville went to Toowoomba that day and stayed with her mother until 7 November 1993. During that time she cared generally for her mother. The following entries appear in a diary kept by Miss Neville to record matters relating to her mother-

Mum rang solicitor re coming to house 2.30 p.m. Thurs 14.10.93

Malcolm came 3 p.m. for signing of the will and enduring power of attorney.

She was full of fight to-day . . . She has not changed clothes or had a wash since Monday.

Turned on me when I said I was going downtown ´Don't think you're going to put me away. I've got arsenic and strychnine and I'll take it!! . . . I'll not move from here - I'll put a match in it and you'll get nothing.'

Vicious again. Accused me of yelling out to her that the phone was ringing.

Daphne arrived 8.30 a.m. Told Daphne I had been treating her like a dog and I was sly. Told me to get my things and go. Packed up and took my books, glassware etc. I spoke to Phyllis and Les. Left a message for Dr Fogerty."

The diary entries of 25, 26, 27 and 28 October suggest that Miss Neville returned to Brisbane on 23 or 24 October and went back to stay with her mother on 29 October, keeping in contact and assisting with medical appointments by telephone in the meantime.

"31 October . . claimed Jackie took her car and left old bomb all smashed on one side.

2 November 1993 . . underclothes washed. She is smelly today."

(Miss Neville visited her mother again on 10 November, 17 November, 27 November, 29 November, 10 December and 25 December 1993. She continued her regular telephone contact.)

Accused Daphne of taking her white jumpers to wash. We are ´washing mad'.

Will put crime stoppers onto us too. Eventually hung up on Daphne.

Wanted to know when we were coming up. Apologised to Daphne for cutting her off. Jess claimed she dropped the phone.

Arrive 9.30 a.m. Greeting was not warm. . . Claimed Daphne never came as she abused Jess on phone. Raving about white jumper still missing. Unable to find stockings I bought - taken. Jackie is a private DT!!! Claiming we took three dozen eggs from freezer . . I told her I did not come to listen to her slander (it is like a broken record)."

Miss Neville had no contact with the deceased after 25 December 1993 until 13 January 1994 when she telephoned her and was accused by the deceased of taking photographs from her bedroom. The diary entry for 13 January records the following telephone conversation-

". . claiming all her photos have gone out of her bedroom and I had better return them.

Everything was thrown out or stolen . . Told me that I needed to be tested as I was mental. It's in my family anyway.

She hung up on me after I told her I did not have to listen to that abuse and was going to finish the call."

Her next contact was on 27 May 1994 when the deceased telephoned her "repeating allegations that various persons, including me and Daphne, had taken things from her home."

"From the end of October 1993 her behaviour became more and more difficult and erratic with constant accusations and distortions of reality, for example, ´Daphne and I had taken all her clothing, thrown out anything of value and no one was any good.' There was constant accusations against my brother John and his wife Mary regarding personal belongings and money which they had allegedly removed and all the damage which they had done to her home for example ´boiled electric jugs dry, burnt out the firebox and the wood stove, interfered with locks and stole her clothes'."

Miss Neville was informed on Thursday 3 November 1994 by Mr Ferdinand, a cousin of the deceased, that the deceased was in hospital.

Helen was with her when we arrived and Mum said ´What are you doing here' . . .

I noted that her memory has deteriorated short term especially."

The following relevant diary entries appear in relation to events in November-

Arrived Toowoomba 12.50 p.m. She was very concerned about $250,000 which Terry Shine had taken out of her handbag . . told me that I had better get down and fix things up because I was her next of kin and everything is left to me.

Mom told me five times that Frank Johnson had died. She told Ray that Shine has taken all her money and she has not seen him since and she can't find her pension book. Told Ray to ring Shine as she wanted to see him and they - hospital-want to see him here too . . Told Rhonda (Dr Rhonda Greensill, Hospital Registrar) about $58,000 cash in house and $1,400 cash in bag at hosp.

3.00 p.m. visited hosp. . . Memory very scatty. Denies what Shine has done. Wants me to change it. Give me $650 which was rolled up in wallet.

Found copy of second will and P.O.A. under her mattress. Did not know what it was and claimed she had not signed it."

The deceased was discharged from hospital on 19 November 1994. Miss Neville stayed with her and cared for her until her death on 4 December 1994.

No neighbour of the deceased was called to give evidence. Mr Leslie Ferdinand, an 80 year old cousin of the deceased, gave evidence. He said that from 1993 onwards he and his wife used to visit the deceased on a fairly regular basis to check on her and provide assistance. They commenced doing that because of what they perceived as her increasing inability to look after herself. He said that the deceased was difficult to get along with and inclined to be aggressive. He said-

He provided the following examples of such conduct-

· her false accusations of stealing against her neighbours;

· her false accusations of stealing photos, cups and saucers against Mrs Ferdinand.

´ Mr Ferdinand had some difficulty in pinpointing the timing of the false accusations against his wife. He said "it was towards the latter part of 1993 and the early part of 1994". Mr Ferdinand's recollection was that the deceased was "going backwards" from the early part of 1993.

Mr Raymond Leggitt, a 41 year old grand-nephew of the deceased gave evidence. His evidence offered little in the way of insight into the deceased's mental condition. Overall I did not find his evidence particularly helpful.

I have referred very extensively to diary entries of Miss Neville. I have approached those entries with some caution. Miss Neville says that she expected trouble with her brother in relation to her mother's affairs and was making a record for that purpose. Whatever the truth of the matter the entries can be expected to be selective and self-serving in nature. However, it is most unlikely that a purpose of Miss Neville in making the entries before the time when she found out about the 1994 will was to cast doubt on the deceased's testamentary capacity. I consider that the entries relating to the deceased's conduct are likely to be generally accurate. The diary entires were relied upon by counsel for the second defendant as providing some evidence of testamentary incapacity at the dates of the making of both wills.

The 1993 will appointed Miss Neville sole executrix and trustee and disposed of the whole of the deceased's estate to Miss Neville. In the event that Miss Neville predeceased the deceased, the sole beneficiary was Lifeline Darling Downs and Southwest Queensland.

The sole beneficiary under the 1994 will was the Endeavour Foundation. Mr Shine was the sole executor and trustee.

CIRCUMSTANCES SURROUNDING THE EXECUTION OF THE 1993 WILL

In a number of subsequent conversations in August and September the deceased mentioned to Miss Neville the matter of making a will. On 13 October 1993 the deceased telephoned Wonderley and Hall and arranged for an appointment with Mr Heading on 14 October. Mr Heading attended the deceased's residence from 14 October accompanied by an article clerk, Robyn Ratcliffe. He was introduced to the deceased by Miss Neville who then excused herself and went to another room. On two occasions the deceased called out to Miss Neville to come and provide information. After the second occasion Miss Neville stayed with her mother and Mr Heading at Mr Heading's request. There was discussion about the deceased's son John, his marriage, remarriage and what was said to be "a drinking problem." The deceased told Mr Heading that her son had not spoken to her for approximately three years and that he had shown little concern for her over the years. The deceased explained that her son Les had been killed in Brisbane in 1958. The deceased said that she wanted to leave the whole of her estate of her daughter. Mr Heading asked her for the details of her assets and the deceased provided them. She did not mention that the assets included a large amount of cash. Mr Heading did not ask the deceased about the existence of grandchildren and the deceased volunteered no information in that regard.

Mr Heading asked the deceased to obtain a medical certificate from her general practitioner as to her testamentary capacity. He explained that that was desirable because of her age. Mr Heading's impression of the deceased on 14 October was that she was "a spirited old lady who was direct and definite about what she wanted."

Mr Heading returned to the deceased's home on 15 October 1993 accompanied by Miss Radcliffe, an articled clerk. He gave her the deceased's will to read. She appeared to read it. He then read it through to her and explained each provision. He also read and explained an enduring power of attorney in favour of Miss Neville which he had brought with him. The will was then executed.

CIRCUMSTANCES SURROUNDING THE EXECUTION OF THE 1994 WILL

In late January 1994 the deceased called Mr John Anderson the Darling Downs branch manager of the Endeavour Foundation. She said she wished to leave her estate to the Endeavour Foundation and asked if Mr Anderson could visit her to discuss the matter. In the course of the conversation she said that she had approached a firm of solicitors about six months previously regarding-

"Making of a new will and that despite a number of calls to that firm they had not come back to her about her instructions for a new will."

Mr Anderson met the deceased at her home on 3 February 1994. They had a general discussion. In the course of the discussion the deceased said she wanted the Endeavour Foundation to retain her land and house for use in caring for Endeavour clients. She discussed her deceased son Leslie and her son John who again expressed disappointment concerning the solicitors who had failed to contact her about her will. She asked if Mr Anderson could recommend solicitors to draw up the will. There was no mention of Miss Neville in the course of the conversation. Mr Anderson contacted Mr Shine and informed him of the conversation.

Mr Shine spoke to the deceased over the telephone on 3 February 1994 and arranged to call on her on 7 February 1994. That appointment was cancelled by the deceased in a telephone to Mr Shine's office on 7 February 1994. A fresh appointment for later that day was made on 10 February 1994 in a telephone call from Mr Shine to Miss Neville. That day Mr Shine accompanied by his articled clerk, Miss Rachael Howard, attended at the deceased's residence. Mr Shine then took instructions for the will and for the preparation of an enduring power of attorney.

The deceased referred to her two sons. She said words to the effect that one of her sons John "drinks like a fish". She said she wanted her personal effects to go to her son John.

No reference was made to grandchildren except for stating that Leslie was married and had children but all of those children were overseas.

The deceased said she wished to leave her entire estate to the Endeavour Foundation.

That the deceased said that she would like the funeral directions which she gave to be included in the will.

They were that she be buried; that her funeral service be a requiem mass at St Thomas Moore's Parish; that the deceased had a plot beside her husband's in Drayton Cemetery; that she did not want a death notice put in the paper until after her funeral - she would like a private funeral.

She said that she wanted Shine Murdoch to act as her executors.

There seems to have been no mention of the desire expressed to Mr Anderson that the deceased's home and land be retained by the Endeavour Foundation. Nor did the deceased repeat her complaint to Mr Anderson about the lack of performance of other solicitors approached by her to make a will.

The meeting lasted for about half an hour. It does not seem that in the course of it Mr Shine asked the deceased about the existence of any other family members, whether there was a will presently in existence (although the deceased did say at one stage she wanted to ensure that all previous wills were cancelled) or made any inquiries about the nature of the assets in the deceased's estate. Mr Shine engaged in some general conversation with the deceased but it was not such as would tend to disclose whether or not the deceased had a grasp of matters such as the full extent of her property and the claim's persons might have on her bounty. The discussion may have disclosed something of the state of the deceased's long term memory (had those present known the truth of the facts stated) but it disclosed little or nothing of the state of the deceased's short term memory. Mr Shine said-

". . . for a 94 year old she was particularly alert, bright, assertive, with it, to use an expression."

Mr Shine returned the following day with the proposed will. He was accompanied by an employed solicitor, a Mr McMahon. Mr Shine read the contents of the will aloud to the deceased. The deceased told Mr Shine in the course of that exercise that the date of her son's death mentioned in the will was wrong and Mr Shine made an appropriate correction. The will contained no details or directions as to funeral arrangements or as to the disposition of her personal effects. The deceased did not mention the omissions to Mr Shine. Again, although there was mention of the deceased's sons but no mention of her daughter. There was further general conversation and neither Mr Shine or Mr McMahon noticed anything untoward in what the deceased had to say. Mr McMahon made some notes after returning from the deceased's residence which recorded Mr McMahon's impressions that the deceased had testamentary capacity. Once again, there was nothing included in the conversation by Mr Shine or Mr McMahon which would have served an effective role in testing the deceased's recollection and understanding of relevant considerations.

Dr Heather Fogerty was a general practitioner who saw the deceased regularly throughout 1993 and 1994. She gave a certificate dated 15 October 1993 expressing the opinion that the deceased had testamentary capacity. The certificate was written consequent on a request from the deceased at the conclusion of a normal medical consultation. Dr Fogerty relied on her general impressions and knowledge of the deceased in giving the certificate. She did not conduct an examination for the purpose. She expressed the opinion that-

"4. On 15 October 1993, Miss Neville seemed to know what she was doing. She wanted to make her will and seemed to be rational. She seemed to know where she was going. She was in one of her more lucid periods. On 15 October 1993 she was in my opinion as good as she got.

5. In my opinion, Miss Neville had been suffering from paranoia for several years. Her state enabled her to have lucid moments and then go back into a state where she would have capacity."

On 18 November 1994 Dr Fogarty expressed the opinion, in writing, that the deceased was-

"Suffering from advanced senile dementia with paranoid features. It is likely that Miss Neville would have only had limited capacity to understand the nature of the will and power of attorney as at February 1994. . .".

Dr Schindler is a general practitioner who saw the deceased on three occasions in 1991, on twelve occasions in 1993 and on five occasions in 1994. He saw her on 2 October 1993 and again on 18 January 1994. He swore that her mental condition had deteriorated in the intervening period. He said that when he saw her on 18 January 1994 "she expressed to me a lot of paranoid ideas." He expressed the opinion that the deceased had testamentary capacity when he saw her on 2 October 1993 but did not have testamentary capacity on or about 11 February 1994.

Dr Jill Reddan, a consulting psychiatrist, reviewed hospital notes, correspondence, general practitioners reports and other materials. On the basis of those materials she expressed the opinions that-

· the deceased was suffering from a disorder of the mind (paranoia) which influenced her will when she was disposing of her property by the 1994 will;

· the deceased's conviction that she was being thieved from was a recurrent theme of her paranoid thinking. The deceased's paranoia about other individuals was fairly long standing and fairly pervasive;

· as the deceased's mental state deteriorated paranoia previously displayed towards her daughter would have become more prominent. It was unlikely that the deceased "would have been completely cognitively intact in October 1993 when she almost certainly wasn't in January 1994";

· there seems to be no evidence that the deceased's paranoid thinking, which intermittently influenced her mind at relevant times was influencing her mind when disposing of her property by will on 15 October 1993. However, paranoid thinking, in general, does not tend to come and go;

· the deceased's failure to mention her daughter to Mr Shine when giving instructions for the 1994 will is evidence that paranoid thinking was influencing the behaviour of the deceased at that time.

Dr Jerrard Byrne, consulting psychiatrist reviewed a wide range of medical reports and records, diary entries and affidavits. He expressed the opinion that-

· Many of the physical and mental problems of the deceased were intermittent and that it was quite possible that the deceased may have been free of suspiciousness or ´paranoia' on 11 February 1994.

The evidence (in affidavit form) of the solicitors and article clerks who attended on the deceased at the time of taking instructions for and the signing of the two wills did not contain indications of obvious signs of either significant cognitive impairment or paranoid delusion.

· The deceased exhibited mild cognitive impairment in October 1994 and was probably suffering from Alzheimer's disease.

· If the intermittent suspiciousness about persons entertained by the deceased amounted to a persecutory delusional belief or a persecutory delusion like idea about Colleen Neville, the deceased would not have had the capacity to make appropriate judgments about the beneficiaries of her will.

· It is unclear that the deceased's cognitive impairment and any state of delusional beliefs were apparent on either 15 October 1993 or 11 February 1994 so as to deprive the deceased of the capacity to make appropriate judgment.

THE MENTAL AND PHYSICAL CONDITION OF THE DECEASED AT THE TIME OF MAKING THE TWO WILLS

The deceased was a difficult person who exhibited no signs of affection towards her children or any other person. Until near her death at the end of 1994 she, as a general rule, retained reasonable mobility. Her short term memory was fading noticeably throughout 1993 and 1994 and there were other manifestations of the fact that the aging process, as one would expect in a person of her age, was well advanced. Before 1994 she was generally capable of managing her own affairs and was able to arrange her own medical and legal appointments. She was aware of the nature of a will and, of her own accord, decided to make the 1993 and 1994 wills. She selected her own food and did her own cooking until very near her death. She was capable of carrying on sensible conversations in October 1993 and February 1994. The solicitors and their employees who saw her in connection of the making of the wills were alert to the need to ascertain her testamentary capacity. They took note of her conversation and behaviour and observed nothing untoward in it.

The deceased's mental and physical condition deteriorated materially and noticeably in the few months after 15 October 1993. That deterioration was observed by Miss Neville and Dr Schindler. Dr Fogerty formed the view, before the end of 1994, that the deceased was suffering from a severe loss of memory consistent with dementia. She then thought that such a condition had existed for some time. The deceased, at least from at date early in 1993, was prone to irrational beliefs of misconduct directed against herself on the part of other persons. These beliefs normally manifested themselves in a belief that another person was stealing from her. Dr Redden regarded the defendant as suffering from paranoia and I accept her evidence in this regard. Generally I preferred her evidence to that of Dr Byrne as to the nature and extent of the deceased's paranoid condition. In my view Dr Byre failed to give due consideration to the many instances of conduct on the part of the deceased which revealed extreme and irrational beliefs about the conduct of others.

A classic statement of the matters necessary to establish testamentary capacity is that of Coburn CJ in Banks v. Goodfellow (1870) LR 5 QB 549 at 565-

"It is essential to the exercise of such a 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 disposing; 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 it which, if the mind had been sound, would not have been made."

The following passage appears in the judgment of Dixon J (as he then was) in Timbury v. Coffee [1941] HCA 22; (1942) 66 CLR 277 at 203-

"´Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner' (per Hood J, in the will of Wilson) ´If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish if affirmatively that the testator was of sound mind when he executed it' (per Cresswell J, Symes v. Green) - cf. per Holroyd J, in the will of Key ´In the end the tribunal - the court or jury - must be able, affirmatively, on a review of the whole of the evidence to declare it self-satisfied of the testator's competence at the time of the execution of the will.

In Banks v. Goodfellow Coburn CJ said at p.561 in a passage of referred to by Latham CJ in Bull v. Fulton [1942] HCA 13; (1941) 66 CLR 295 at 299 that where an insane delusion ´has had, . . or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity."

"The onus in such a case is on those supporting the will to show that the delusion did not influence the will . . This does not mean that a propounder must absolutely demonstrate this negative proposition. He must establish it according to the standard of proof required in civil cases. It will be sufficient for him to satisfy the court that it is a reasonable inference from the facts that a delusion proved to exist did not affect the disposition in question."

The ultimate question for the court is not the appropriate medical classification or description or any illness or incapacity suffered by a testator but whether the testator suffered from a "delusion" or other incapacity which affected the making of the will, cf. Re Crooks Estate (14 December 1994, Young J, unreported) and Re Crichton (22 July 1994, Bryson J, unreported).

APPLICATION OF PRINCIPLES OF LAWS TO THE FACTS - THE 1994 WILL

In my view, if the deceased lacked testamentary capacity at the dates of the 1993 or 1994 wills, it was probably only as a result of the effect of her paranoia but there is a question as to the state of the deceased's memory at the time of the 1994 will. I have concluded that at the date of the 1994 will the deceased lacked testamentary capacity. It is of considerable significance that having, of her own volition, made a will in favour of Miss Neville in October 1993 the deceased, by early February 1994, made a will which disregarded Miss Neville. Moreover, the existence of her only daughter was not mentioned by the deceased to the solicitor who took instructions for the 1994 will or to Mr Anderson to whom the deceased spoke in early February. At no stage did the deceased mention that she had made a will only three or four months earlier. In fact, she may have been of the belief that some months earlier she had endeavoured to have solicitors come with a view to making a will and that this had not been accomplished. That is what she told Mr Anderson. Whether she remained of the same state of mind when giving instructions for her will is impossible to say. I appreciate that the omission of any reference to Miss Neville in the 1994 will could considerably be explained by the falling out between mother and daughter on Christmas Day 1993 but I doubt that this is an explanation for the deceased's making a will in favour of the Endeavour Foundation and omitting to provide for her daughter in the will or to mention her to her solicitors. There is no credible evidence to suggest that the deceased ever contributed to the Endeavour Foundation or had any particular interest in it. I consider it unlikely that the deceased simply forgot about her daughter when giving instructions to her in the will. The evidence does not suggest any great failure of long term memory at that time.

I take the view that it is probable that the deceased did not mention her daughter at or about the time of making the 1994 will because she then held irrational beliefs about her. In my view those beliefs were such that the deceased was rendered incapable of comprehending and appreciating the claims on her in relation to her estate to which she ought give effect and that they influenced the testamentary disposition. An alternative possibility, which I consider less likely, is that the deceased was undergoing a downturn in her health which caused very significant but temporary short, medium and long term memory loss.

APPLICATION OF PRINCIPLES OF LAW TO THE FACTS - THE 1993 WILL

I have concluded that the deceased had testamentary capacity at the time of making the 1993 will. Her physical and mental condition were better at that time than at the time of making the 1994 will. There is consensus in the medical evidence, which is supported by the observations of other witnesses, that the deceased's mental condition fluctuated. Her paranoid state of mind did not always manifest itself or operate. There is no suggestion that the criticisms she made of her son John to Mr Heading were unfounded. There is also no evidence to suggest that any person other than Miss Neville had any particular call on her mother's bounty. No submission was made to the effect that the deceased should have made provision for some other beneficiary or beneficiaries in her will. At the time of making the 1993 will the deceased's mind appears to have been directed to relevant considerations and she appears to have had proper regard to them. There is no evidence that any paranoid delusions were operating at relevant times.

It is not irrelevant, in my view, that the deceased appears to have had the making of the 1993 will under consideration for some time before making it, and that it was made without any prompting by Miss Neville or anyone else.

APPLICATION UNDER THE SUCCESSION ACT 1981

In view of the above conclusions it is unnecessary for me to express any views about this matter except insofar as it is necessary to deal with the costs of the application. If there is a successful appeal against judgment in the probate action the matter could come back before me for determination of the Succession Act application without need for any further evidence or submissions unless, of course, there is something in the judgment of the Court of Appeal which suggests the desirability of further submissions.

My tentative view is that the parties should all have their costs on a solicitor and own client basis. The deceased's mental condition and conduct created considerable uncertainty and all parties acted reasonably in pursuing their respective courses of action. I will hear submissions on costs and as to the wording of the formal orders in both actions.