Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295

Donaldson v Harvey, unreported; SCt of WA; Library No 970304; 17 June 1997

Edna May Collins by her next friend Glenys Lesley Laraine Poletti v May [2000] WASC 29

Timbury v Coffee (1942) 66 CLR 227

1 SIMMONDS J: This matter came before me for hearing as an application to propound the will of Yuri Hall (the deceased) dated 28 October 1991. This will revoked all previous wills and testamentary writings and, subject to the normal deductions, devised and bequeathed the whole of the testatrix's real and personal property to her friend, Machiko Kita, the first defendant. Evidence tendered at the hearing established to my satisfaction that there was no other will or testament, except that executed on 28 November 1988. The 1988 will was a document, the original of which was tendered as an exhibit in the hearing and accepted by me as the 1988 will. This will, subject to the normal deductions, left the entirety of the testatrix's estate to her then husband, William Hall if he survived her, but, if he did not, equally to the second defendant, her nephew, Masabume Kaai (otherwise known as Masafumi Kawa) and her niece, Naoko Kobashi, the third defendant.

2 In the case of both wills, the Public Trustee was named executor. It is only necessary to add that the testatrix's husband died in January 1989, while the testatrix died on 26 July 1999.

3 Counsel for the Public Trustee tendered material establishing to my satisfaction service of notice of the originating process in this matter on the first, second and third defendants. The first defendant filed an appearance, which was later withdrawn, and indicated that she had no intention of entering an appearance at the hearing.

4 There was no appearance from the second and third defendants who are resident in Japan.

5 In all the circumstances, I have concluded that appropriate notice of proceedings was given to and received by all three defendants.

6 These proceedings became necessary because probate had initially been refused because the cause of death of the testatrix had included a reference to her suffering from Alzheimer's disease.

7 Counsel in his helpful submissions laid particular emphasis on three authorities. In the first of these, Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, Isaacs J, at 570 - 572, identifies 12 relevant propositions extracted from the authorities on the issue of testamentary capacity. Such capacity is defined by Cockburn CJ in Banks v Goodfellow (1870) LR 5QB 549, at 565, as comprised of four components. These are:

(a) an understanding of the nature of the testamentary act and its effects;

(b) an understanding of the extent of the property the subject for disposition;

(c) comprehension and appreciation of claims made upon the testator's bounty; and

(d) the absence of any disorder of mind that poisoned his affection, perverted the testator's sense of right or prevented the exercise of the testator's natural faculties.

8 In determining testamentary capacity, counsel submitted that it was important to note from the judgment of the dissenting Judges, Knox CJ and Starke J, in Bailey at 560 that "great age, while it necessarily excites the vigilance of the Court, does not in itself establish want of capacity".

9 In counsel's discussion of the 12 propositions identified in Isaacs J's judgment, particular reliance was placed on number 7, at 571, being "instances of material circumstances" for the purposes of establishing the "prima facie case" referred to a number 4, at 570. Here, particular reliance was placed on: (a) the simplicity of the 1991 will; (b) whether persons "naturally having a claim upon the testator" had been excluded; and (c) whether there were indications of any person "taking a substantial benefit" having had "motive and opportunity and exercising undue influence". I note, parenthetically, that there was no suggestion in Bailey of undue influence, and Isaacs J in this passage is referring to the matter in terms of its bearing on capacity.

10 Counsel duly noted from Isaacs J's list at number 10 (at 572), "the opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue" and, at number 11, "while, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions".

11 Counsel also drew to my attention to the majority judgment in Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, at 453:

"A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution."

12 I have quoted this passage in full, as it had a particular bearing on two matters in evidence in this case. The first to which counsel directed his principal attention, was the doubt that might have arisen from the cause of death of the testatrix. Here, counsel particularly relied on the affidavit evidence of Dr Bloor, Mrs Hall's general practitioner, who had seen her regularly over the relevant period that included the execution of the 1991 will, and had referred her for assessment for hostel admission in February 1992. On counsel's submission of greater importance for this case was Dr Bloor's referral to Dr Goldswain, a consultant physician in geriatric medicine at Royal Perth Hospital, in October 1992, for the possible presence of dementia. Counsel laid emphasis in this connection on the evidence in Dr Goldswain's affidavit, in the annexure at p 11 that:

"Dr Blood [sic Bloor] is an experienced General Practitioner who regularly refers patients to the Department of Geriatric Medicine and I feel that if Mrs Hall had symptoms compatible with dementia, he might well have referred her to us earlier than November 1993 [sic 1992] for an opinion."

13 I note in this connection that there appears to have been a little ambiguity on the evidence as to the date of referral, but it is not an ambiguity which I consider material.

14 Dr Goldswain's affidavit draws attention to possible mild dementia in November of 1992, but also concludes that this was not necessarily incompatible with "sufficient insight to have testamentary capacity" in October 1991. This latter reference appears to me to directly engage Isaacs J's admonition to which I have previously referred. However, I have taken it as a shorthand reference to factors in Dr Goldswain's affidavit concerning the reasonableness of her English, the correctness of her identification of her date of birth, her address, the political party of the day, the then Prime Minister, her orientation "in place", and other matters referred to in the penultimate paragraph on that page. The matters that I have not itemised from that paragraph were ones Dr Goldswain attributed to a Ms Meldrum, who was a Silver Chain nurse, with whom Mrs Hall had lived after her return from Japan in July 1991, through to Mrs Hall's entry into a unit in April 1992. There was no affidavit or other evidence from Ms Meldrum.

15 There is also the affidavit of the first defendant, Ms Kita, the sole beneficiary under the will the Public Trustee seeks to propound. That affidavit refers to Mrs Hall, upon her return from Japan, having "no trouble managing her finances" and seeming "well mentally". Ms Kita also refers to Mrs Hall being "very careful and cautious in all her affairs".

16 These indications are consistent with the references in Dr Goldswain's affidavit to what he was told by Ms Meldrum, as is the reference, in Ms Kita's, affidavit, that Mrs Hall, after her return to Australia, had "lamented that she felt she could no longer trust anyone".

17 There were other matters referred to in Dr Goldswain's affidavit, also attributed to Ms Meldrum. These went to poor hygiene, some incidents of hallucination, as well as short-term memory loss. None of these matters were referred to in Ms Kita's affidavit, however. In relation to these matters, and in particular that as to memory, I note from the dissenting judgment in Bailey (supra), a passage not relied upon by counsel, at 566 - 567:

"The question [as to testamentary capacity] 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?"

18 In those respects, I note from the affidavit of Ms Kita her indication that Mrs Hall was, after her return from Japan, able to refer to her brother's family, as well as to her finances to which I have made earlier mention.

19 Whilst I find that possible dementia creates a doubt as to testamentary capacity, this doubt, a "residual" one in terms of the Worth dictum (supra), is on a "vigilant examination of the whole of the evidence", one that is "not enough to defeat the plaintiff's claim for probate". There is, however, one further matter.

20 This further matter goes to an aspect of testamentary capacity from the Banks test previously referred to, namely, a disorder of mind that poisoned the affection of the testatrix, perverting her sense of right or preventing the exercise of her natural faculties, and the further matter of her ability to comprehend and appreciate the claims upon her bounty. In this connection, I note the judgment of Owen J in Collins by her next friend Poletti v May [2000] WASC 29, at [61], a judgment tendered to me at hearing. Owen J quoted with approval from a judgment of Holland J in Crago v McIntryre [1976] 1 NSWLR 729 at 740 - 741:

"For this reason it is not enough for the testator to know and understand how he is leaving his property when he executes his will. He must also possess sufficient capacity to appreciate what his property is and recognise the persons who have a moral claim upon him and, more importantly for present purposes, a capacity to exercise a balanced judgment as to such claims."

21 Here, there was mention in Dr Goldswain's affidavit, at p 5, of "long standing paranoia", "paraphonia or possibly a depression". Counsel was unable to explain to me the meaning of the term "paraphonia". However, I note the observations in Worth where there was some evidence in that case of a belief by the testatrix that her food was being poisoned. In Worth, at 451, there were references to matters that would distinguish that case from this one, including most prominently the fact that the testatrix in that case continued to eat the relevant food and made provision for at least some of the supposed poisoners in the relevant will. Here, of course, the nephew and the niece, beneficiaries in the first will, were left out of the second. At the same time, however, I note both the general indication of Isaacs J in Bailey (supra) of the need to weigh all the circumstances, as well as the indications in Worth, at 451, of the commonsense approach that should be taken to the "common tendency of old people to exaggerate small matters which displease them and constantly to revert to such matters in conversation". While admitting that matters here were at the more extreme end of this spectrum, I do not believe, in light of the facts, heavily emphasised by counsel that: (a) the testatrix had no family members in Australia; (b) that she was receiving consistent care from a fellow countrywoman whom she made the exclusive object of her bounty; and (c) the fact that her general practitioner makes no reference to these matters as ones of concern, that any doubt raised by the matters first referred to has reached the Worth standard.

22 It follows from all of this that I should return to the question of the prima facie case. I believe, on the factors enunciated in Isaacs J's judgment previously referred to, that such a case has been established. This conclusion is based on the simplicity of the will itself, its allocation in favour of a natural object of the bounty of a testatrix placed as this one was, the facts on which the affidavits of the subscribing witnesses appeared to rest, and the affidavit of Ms Kita, in the respects I have noted, including its consistency with the affidavits of the two medical practitioners.

23 It follows from all of this that there should be orders that:

(1) the Court pronounces the force and validity of the 1991 will of Yuri Hall;

(2) there be grant of probate to the plaintiff of the 1991 will; and

(3) costs of the application to be provided from the estate.