Succession - Wills, probate and administration - The making of a will - Testamentary capacity - Soundness of mind, memory and understanding - Forms of unsoundness of mind - Dementia and paranoid delusions.

Judgment Number: [2012] TASSC 44

TASMANIAN PERPETUAL TRUSTEES LIMITED v ROBYN JOAN ROURKE

1 The plaintiff is named as the executor and trustee of a will of Betty Cobden Atherton, dated 28 March 1995. Mrs Atherton died on 16 June 2007. The plaintiff has applied to propound this will. The defendant, Robyn Rourke, who is one of Mrs Atherton's two children, opposes this course on grounds that include a claim that Mrs Atherton was not of sound mind, memory and understanding when she gave instructions for and executed the will. These are my reasons for finding that this claim is substantiated.

2 A testator must have the necessary mental capacity to make a valid will. That is, a testator must be of sound mind, memory and understanding.

3 In essence, the defendant contends that Mrs Atherton was not of sound mind, as she was suffering from dementia, a symptom of which was a paranoid delusion that the defendant stole Mrs Atherton's motor vehicle and, more particularly, that the defendant had kept the proceeds of selling it; which the defendant did not do.

4 By her will of 28 March 1995, Mrs Atherton left the whole of her estate to the St Luke's Anglican Association to be used for the purposes of "the Manor" at Kings Meadows, Launceston. Mrs Atherton was residing in a unit at the Manor when she made the will. By the will, Mrs Atherton, in effect, disinherited the defendant and grandchildren who would have benefited under previous wills of Mrs Atherton.

5 Mrs Atherton was born on 16 July 1922. She married Frederic Atherton. They had two children, a son Kenneth Atherton ("Kenneth"), and a daughter, the defendant. Frederic Atherton died on 18 May 1988 when he was 72. He left the bulk of his estate to Kenneth.

6 The evidence includes the following wills or draft wills of Mrs Atherton:

• Will dated 10 December 1980
• Draft will dated 11 March 1988
• Draft will dated 18 April 1988
• Will dated 23 January 1992
• Will dated 9 August 1993
• Will dated 25 October 1993
• Will dated 1 December 1993

7 By Mrs Atherton's will dated 10 December 1980, which predated her husband's death, she made provision for both her son and her daughter. In subsequent wills she made no provision for her son. This is explained by a provision in some of these wills in which she explains that she has made no provision for him, as he was adequately provided for out of his father's estate. In all of the wills and draft wills listed in par[6], Mrs Atherton made some provision for the defendant. The will that precedes the will in contention is dated 1 December 1993. By it Mrs Atherton left two-thirds of her estate to the defendant, and one-third of her estate to be divided between five of Mrs Atherton's grandchildren.

8 The law applicable to the issue for determination was recently summarised in the following terms by Wood J in Howroyd v Howroyd [2011] TASSC 73, pars[55] - [60]:

"55 If testamentary capacity is not established, the will is void. The burden of proving testamentary capacity lies on the person propounding the will: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 570. The court must be affirmatively satisfied that the testator was of sound mind, memory and understanding when he executed the will (Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295). If testamentary capacity is not established, the court must decide against the validity of the will: Bull v Fulton (supra) per Williams J at 343.

56 In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ set out at 565 what is essential in terms of a testator's understanding. This statement of the requirements of the law is regarded as the classic test of whether or not a person has testamentary capacity:

'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.'

57 It is worth highlighting (see Smith J In Re Brokenshire (deceased); The Equity Trustees Executors and Agency Co Ltd v Worts [1998] VSC 183; (1998) 8 VR 659) that the test requires that [the testator] comprehended:

• the nature of what he was doing and its effects;
• the extent and character of the property with which he was dealing, and
• the claims and a weighing of the claims to which he ought to give effect.

58 In dealing with unsoundness of mind arising from the 'decay of advancing age' Cockburn CJ in Banks v Goodfellow (supra) stated at 566 that 'though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.' In focussing on deficiency of memory it was noted that (at 568):

'The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?'

59 Feebleness, grave illness or extreme age are not sufficient of themselves to disentitle the testator of [the] right to dispose of his or her property by will: Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, Kirby P at 295, and Banks v Goodfellow (supra) at 560. It will only do so if age or illness so affected the mind of the testator in regard to testamentary disposition (In re White (Deceased); Brown v Free [1951] NZLR 393; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707).

60 In cases where the evidence raises a doubt about the testator's testamentary capacity, it is necessary that there be a vigilant examination of the whole of the evidence. The standard of proof is the balance of probabilities: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 453_._ The burden is on the proponent to satisfy the 'conscience of the court' that the testator had testamentary capacity (In re Estate of Griffith, per Gleeson CJ 289). The burden continues throughout the case and must be determined upon the whole of the evidence: Bailey v Bailey (supra) at 570."

9 A countervailing consideration with regard to the burden of proof applies in this case. This is because there is no question that the subject will was duly signed and witnessed, and that it is not patently irrational. As noted in In re White (Deceased), Brown v Free [1951] NZLR 393 at 409:

"If a will rational on the face of it is shown to have been executed and attested in the normal 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."

10 On the view I take of the facts in this case, little turns on the burden of proof. The evidence of Mrs Atherton's incapacity is very strong. As observed by Williams J in Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295 at 343:

"Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it."

11 For present purposes, the critical consideration is whether Mrs Atherton was able to comprehend and appreciate the claims to which she ought to have given effect. With regard to this consideration it is necessary that no disorder of the mind poisoned her affections or perverted her sense of right, and no insane delusion influenced her disposition of her property and brought about a disposal of it which, if her mind had been sound, she would not have made.

12 In 1991 and/or 1992, Mrs Atherton suffered several strokes or mini strokes.

13 Prior to 30 September 1993, Mrs Atherton moved to a unit at the Manor Gardens.

14 Mrs Atherton was a patient of Dr Paula Kennedy from 1988 to 1995. From at least 1991/1992 Mrs Atherton suffered from progressive deteriorating memory loss. In 1994 it became apparent that Mrs Atherton was no longer able to care for herself, and that it was necessary to move her into supported accommodation at the Manor. To that end, Dr Kennedy referred Mrs Atherton for assessment by Jann Le Fevre, a Community Health Nurse. In the course of that assessment Ms Le Fevre noted that Mrs Atherton was suffering from memory loss and confusion, and that due to her declining memory, Mrs Atherton found it extremely difficult to organise her daily life. In a report to Dr Kennedy dated 28 September 1994, Ms Le Fevre commented that she had "certainly noticed" a deterioration in Mrs Atherton's mental status since her last dealing with Mrs Atherton in 1993.

15 By 1994, there was good reason for concern about Mrs Atherton's mental state. Dana Lomer was Mrs Atherton's former daughter-in-law. In her affidavit she details some events that bear on Mrs Atherton's then mental capacity. During the winter of 1994 Ms Lomer took Mrs Atherton to Hobart on an overnight trip. They stayed in a shared room at the Casino. That night Ms Lomer visited some friends. When Ms Lomer returned to their room following that visit Mrs Atherton would not let her in. After Ms Lomer gained entry to the room, she found that all her things had gone. Mrs Atherton had called reception and had them clean out Ms Lomer's things, because Mrs Atherton believed they had been left in the room by someone else. When they awoke in the morning, Mrs Atherton did not know they were in Hobart. She left their room and collected the newspapers that had been left outside the door of each room in their passageway. They returned to Launceston via Richmond where they stopped for lunch. When at Richmond Mrs Atherton disappeared. Ms Lomer found Mrs Atherton seated on a bus and had to stop it in order to get her off.

16 On 1 November 1994, Mrs Atherton, accompanied by the defendant, saw Krystyna Bishop, a law clerk who was then advising Mrs Atherton. Initially Mrs Atherton indicated to Ms Bishop that she wanted to change her will of 1 December 1993. However, after some discussion, it was decided that the will reflected her intentions and desires, and no instructions were given to change it.

17 On 8 November 1994, Jann Le Fevre prepared a referral form for the Aged Care Assessment Team (ACAT) referable to Mrs Atherton. In that form she described Mrs Atherton as becoming increasingly forgetful and suffering from memory loss and anxiety, and said there had been instances of inappropriate behaviour and fabrication. In a letter to ACAT, under the cover of which Ms Le Fevre forwarded the referral form, she said that Mrs Atherton consented to an ACAT assessment, "but because of her increasing memory loss may have forgotten all about it when you contact her".

18 ACAT assessed Mrs Atherton during the latter part of November 1994. A note made in the course of that assessment on 15 November 1994 records that Mrs Atherton was oriented to place and person but not time. She thought it was 1974. She was extremely anxious and tearful and was very confused and forgetful. She was booked in for an assessment by Dr Andrew MacLaine-Cross, a consultant physician, on 20 December 1994.

19 By 1994, it was not uncommon for Mrs Atherton to drive to town or elsewhere and forget where she had parked her car. On 17 November 1994 Dr Kennedy told Mrs Atherton that it was necessary that she hand in her driver's licence, and provided her with a certificate to that effect. Accompanied by the defendant, Mrs Atherton surrendered her licence. The initial ACAT assessment of Mrs Atherton was carried out by Julie Gee. A note made by Julie Gee on 18 November 1994 records that it had been a very emotional day as Mrs Atherton had given up her car and licence, and the defendant had organised taxi vouchers for Mrs Atherton.

20 Jeannette May was the director of nursing at the Manor. Over the weekend following 17 November 1994, in discussions that involved Ms May, it was agreed between Mrs Atherton and the defendant that the defendant would take Mrs Atherton's car to Melbourne and either sell it or her own car, and provide the proceeds of sale to Mrs Atherton. Consistent with this arrangement, Mrs Atherton executed a notice as to the change of ownership of her vehicle for the defendant, and provided it to the defendant. Within a very short time of 17 November 1994, Mrs Atherton had either forgotten this arrangement, or changed her mind. She consulted Krystyna Bishop, and told her many confusing stories about the whereabouts of her car. After much investigation Ms Bishop discovered that Mrs Atherton's licence had been handed in, and that the defendant had taken the vehicle to Victoria. On 19 December 1994, on the instructions of Mrs Atherton, Ms Bishop wrote to the defendant requesting the return of the vehicle. In that letter Ms Bishop noted that Mrs Atherton did not recall giving the car to the defendant.

21 The defendant sold the vehicle in Victoria on 28 December 1994. She then found that the vehicle had been reported stolen, presumably by Mrs Atherton. By offering Tasmania Police medical information from Dr Kennedy, Dr MacLaine-Cross, and community health nurses Julie Gee and Jann Le Fevre, the defendant was able to arrange the withdrawal of that report and the sale proceeded. Copies of all documentation in relation to the sale, including a cheque for $18,000 made payable to Mrs Atherton, were provided to Ms Bishop on 3 January 1995. Ms Bishop handed the cheque to Mrs Atherton at her residence. Dana Lomer was present and undertook to deposit the cheque into Mrs Atherton's account, which she did. In her affidavit, Ms Lomer says that for at least six months thereafter Mrs Atherton frequently said that the defendant had stolen the proceeds of the sale of her car. On these occasions Ms Lomer showed Mrs Atherton her bank book to demonstrate that the money had been paid into her bank account. Mrs Atherton's confusion and delusion in relation to her car was ongoing. Dr Kennedy says it continued for as long as Mrs Atherton was her patient. A note made in the course of a reassessment of Mrs Atherton by ACAT on 17 July 1996 records that Mrs Atherton was constantly asking, "What am I doing, did you take my car?".

22 On 20 December 1994, Dr Kennedy provided Dr MacLaine-Cross with a referral in relation to Mrs Atherton. In it, Dr Kennedy said that she felt that Mrs Atherton had dementia which had markedly increased during the last year. She described Mrs Atherton's memory loss as severe and said that she had some paranoid ideation. Dr Kennedy commented that she had persuaded Mrs Atherton to give up her licence, but that what then followed had caused a furore.

23 Dr MacLaine-Cross saw Mrs Atherton 20 December 1994 and reported back to Dr Kennedy on that date. In his report he refers to Mrs Atherton having paranoid delusions about her son, and paranoia about her daughter stealing her car. On examination he noted obvious impairment of Mrs Atherton's mental function, and said she clearly had very poor insight into her problems. He concluded that there was no doubt that Mrs Atherton had dementia, and that the rate of her deterioration had accelerated in the last year or so.

24 I do not have the benefit of expert evidence on the general nature and consequences of dementia. As to the same, counsel referred me to Re Brokenshire (deceased); The Equity Trustees Executors and Agency Co Ltd v Worts (supra) par[125]. I take the following from this paragraph which I accept as being, in part common knowledge, and in part common sense:

"1 A person can have dementia and paranoid ideation and still have testamentary capacity. The presence of the former does not necessarily negate testamentary capacity.

1. There can be catastrophic and sudden deterioration in the condition of the dementia.
2. Paranoid ideation can be discreet. It tends to relate to specific and discreet areas. Thus the fact that [the]testatrix may have shown a degree of paranoid ideation in relation to neighbours did not mean that she had any such paranoid ideation in relation to family members.
3. Paranoid ideation is often a suspiciousness, a doubt, which is amenable to reason or to challenge. A delusional belief is a fixed illogical belief which is not challenged or questioned by the patient.
4. A patient may have delusional beliefs, may have hallucinations, may have a psychotic disorder but still be quite capable of identifying what they own and who might have a claim on their bounty. The presence of psychotic ideation and delusional beliefs do not preclude the person having reason in other areas."

25 By 30 January 1995, it was considered that Mrs Atherton should be moved from her unit at the Manor into hostel care at those premises. To that end, Ms Le Fevre prepared a referral form for ACAT. In that form she described Mrs Atherton as suffering from increasing short-term memory loss, dementia and impaired cognitive function. For present purposes it is significant that Ms Le Fevre records that, as to the support available to Mrs Atherton, her daughter, the defendant, is very supportive, but Mrs Atherton now has paranoid delusions regarding her daughter, and does not wish to have contact. The same was said of her son. With regard to possible delays in moving Mrs Atherton out of her unit into hostel care, Ms Le Fevre commented that with Mrs Atherton's rapidly increasing decline she may not be able to stay in the unit until July when a new program that would allow twice daily visits from a carer was to be introduced.

26 On 25 October 1993, Mrs Atherton had appointed the defendant and Maxwell Bertram to be her attorneys pursuant to an enduring power of attorney. Following the disposal of Mrs Atherton's car, and her formation of a delusion that the defendant had stolen the proceeds of its sale, Mrs Atherton set about revoking the power of attorney and appointing new attorneys other than the defendant. To that end, on 5 December 1994, Mrs Atherton and Mr Bertram attended on Krystyna Bishop and instructed her to prepare the appropriate documents. In a letter sent to Mrs Atherton on 29 March 1995, Ms Bishop records that during the consultation on 5 December 1994, some fairly derogatory comments were made in relation to the defendant, and Mr Bertram intimated that the defendant was not to be trusted with the management of Mrs Atherton's finances and welfare. Ms Bishop did not act on Mrs Atherton's instructions to prepare the necessary documents, although prompted to do so by Mr Bertram. Ms Bishop had concerns about Mrs Atherton's capacity to give instructions. To that end, she spoke to Dr Kennedy who provided her with a letter dated 27 March 1995, which included the following:

"Mrs Atherton is suffering from dementia, the rate of deterioration accelerating in the last year or so. This diagnosis was confirmed by Dr Andrew Maclaine-Cross in December 1994. She has been confabulating with paranoid delusions. Mrs Atherton has been harbouring these paranoid delusions about her family and Sister LeFevre who has been invaluable and efficient in her care and progress. ...

Due to an obvious impairment of Mrs Atherton's higher mental functions, particularly fine minute recall I do not feel that in November 1994 Mrs Atherton was sufficiently competent to issue instructions."

27 In her letter to Mrs Atherton of 29 March 1995, Ms Bishop advised Mrs Atherton of Dr Kennedy's opinion and her agreement with it. She told Mrs Atherton that she would not prepare the documents that had been requested referrable to Mrs Atherton's power of attorney until she was satisfied that Mrs Atherton was well enough to give instructions.

28 Contemporaneous with her efforts to revoke her power of attorney, Mrs Atherton had been taking steps to change her will. On 16 March 1995, she attended on Celia King, a trust officer employed by Tasmanian Trustees Limited. She instructed Mrs King to prepare a will revoking her existing will and giving the whole of her estate to the St Luke's Anglican Association to be used for the purposes of the Manor. An instruction form then completed by Ms King records that Mrs Atherton informed her that her children were Kenneth and the defendant. It records that Kenneth's address was unknown. He had in fact been living at the same address in Launceston for a number of years prior to that date. It does not record the defendant's address, although she has been living at the same address in Victoria for some 20 years. It incorrectly records the name of the defendant's place of work. It incorrectly records the dates of birth of Kenneth and the defendant.

29 Mrs King explained to Mrs Atherton that her children would be disappointed by her new will. Mrs Atherton said that her children had enough. After preparing a draft of the new will, Ms King left it with Mrs Atherton for a week before arranging for her to sign it. Mrs Atherton signed the will in the presence of Ms King and Ross Lynch, a friend of Mrs Atherton. Both witnesses are in absolutely no doubt that Mrs Atherton knew exactly what she was doing when she signed the will. I have no hesitation in accepting that this is so. However, I am also in no doubt that when she did so she lacked testamentary capacity, as she was influenced by a paranoid delusion that the defendant had stolen the proceeds of the sale of her car.

30 My finding that Mrs Atherton lacked testamentary capacity accords with the opinion of Dr Kennedy, "that on 28 March 1995 Mrs Atherton was suffering from a condition of the mind that would adversely affect her capacity to issue instructions or to adequately understand the nature and effect of any document intended to dispose of her estate and she was not of sound mind, memory and understanding".

31 Consistent with the following passage from the decision of Gleeson CJ in Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 291, my task in this case has been relatively straightforward. His Honour there said:

"Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid."

32 As Mrs Atherton lacked testamentary capacity when she made her will dated 28 March 1995, the Court will not pronounce for it. The plaintiff's action is dismissed.