Timbury v Coffee [1941] HCA 22

Timbury v Coffee [1941] HCA 22 - HCA 1941 case summary — Zoe

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The onus of satisfying the jury that upon the whole of the evidence it was proved that the deceased had testamentary capacity when he executed the will of 22nd October 1938 for which the appellants claimed probate rested upon them. There was indeed substantial evidence to prove the affirmative of the issue (Landers v. Landers (1) ). Such evidence consisted of the deceased's instructions for the preparation of the will and that relating to his general ability in the conduct of his affairs. It follows that the validity of the jury's finding negativing testamentary capacity on the above-mentioned occasion turns upon the question whether there was sufficient evidence at least to counterbalance this admittedly strong proof of testamen- tary capacity. In my opinion there was sufficient evidence. It consists of the evidence relating to the deceased's drunkenness and his suspicions that his wife was unfaithful. The deceased's drinking habits did not destroy his capacity for business and it must also be admitted that there was some foundation of fact - opinions might differ as to its adequacy - to suspect that his wife's conduct was not as regular as it ought to have been. Mr. Real in clear and forcible argument made the most of these points. The evidence relating to the deceased's drinking habits, however, proved such a degree of indulgence and persistence that it was open to the jury to find that on 22nd October 1938 his mental and bodily health had become seriously impaired by drunkenness. Drinking bouts and delirium tremens had become a common feature of his life. And it was open to the jury to say that the deceased's suspicions about his wife's conduct so far exceeded any that could conceivably be attributed to her possible or assumed indiscretions as to amount to pure fantasy. He suspected her of promiscuous intercourse and on one occasion he had an hallucination that he saw one of her lovers running into a shed on their property. In this state of facts which it was open to the jury to find, it was clearly reasonable for the jury to conclude that the malady of drunkenness had more probably than not caused mental disorder and that the suspicion or conviction about the wife's conduct was indicative of that disorder and was an insane delusion. There could be no doubt that this insane delusion influenced the dispositions of the will of 22nd October 1938. But the jury found that the deceased had testamentary capacity on

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hand named Dewar while he was away, which was untrue. On 19th Corer January 1938 he wrote to his solicitors giving them instructions Williams J. for a new will which was to be kept secret from his wife and under which she was to get no more than she could legally claim. He saw Mr. Timbury, his then solicitor, on 3rd February 1938, and told him that he wanted to leave her as little as possible, because " he had been having a hell of a time with her and had grave doubts about her fidelity to him." He explained he wished to benefit his sister because she had spent her life on the property and had kept house for him from the time of his mother's death until her marriage (apparently a period of about three years). He said that she had done far more than his wife, but that he was still bitter against her husband. On this day the testator executed a will by which, in the event of his death without issue, he directed his trustees to apply so much as they should in their discretion think fit of the annual income of the trust fund for the maintenance, support and benefit of his wife during widowhood ,and accumulate the balance, and after her death, to stand possessed of his trust fund upon trust for his sister, provided she should survive her husband, and, if she did not do so, upon trust for a charitable purpose. White arrived on his third visit in May 1938, according to Mrs. Coffee at the testator's invitation, and during this month the testator ran away leaving a letter suggesting he had discovered that she had never cared for him. She followed him to Roma and found him at the home of a man named Shambrook. He said he would not come home, and asked her to drive him to Brisbane, which she did. He told her about the February will, said it was not fair to her and that he would alter it when he returned. They were away for about six weeks. When they got back to Hollyburn, about the middle of July, White was still there but left the following day. The testator got a bad cold and started to drink again. He was in hospital with alcoholism and gastric ulcers from 10th to 17th August. On 20th August the testator and Mrs. Coffee went to Mr. Pack, another Roma solicitor, and he made a will leaving her all his property. He had told his wife that he had wanted to alter his will and that he would not go to Messrs. Timbury & Taylor but would go to Mr. Pack. She pointed out that Pack did not do his work but he said Pack did some of it, namely, the Rabbit Board business. At the time he was sober but he was very weak. The evidence of Mr. Pack and Dr. Dodson shows that he knew what

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he was doing. In fact he subsequently said he knew he had made such a will, although he added that he had been taken there by his wife and some " cove," whom he evidently believed to be one of her many lovers, and that his wife thought that he did not know what he was doing, the suggestion being that his wife and her then " fancy man" had taken him to a strange solicitor to make a will in her favour hoping he would not realize what he was doing. He con- tinued to drink and was again in hospital from 6th to 14th September suffering from myocarditis and alcoholism. He returned to Holly- burn, and, when he was quite sober, accused his wife of going to the pictures with one Gleeson whilst he was in hospital. He said that aman named Farmer had told him this and that Farmer had also told him that he wanted him to steal cattle and hide them on Holly- burn. Farmer, who was called, denied that any such conversation had ever taken place. Coffee got influenza, which he tried to cure with a mixture of aspirin and rum. On 28th September 1938 the testator wrote to Messrs. Timbury & Taylor requesting them to prepare a fresh will similar, so far as his wife was concerned, to that of 3rd February 1938, but with some alterations in favour of his sister. On receipt of this letter Mr. Taylor, not knowing of the will of 20th August, prepared a codicil to the will of 3rd February. The testator saw Mr. Taylor on 22nd October. He was quite sober and appeared to be quite normal. He informed Mr. Taylor that his wife was not satisfied with the February will and that she had got Mr. Pack to pre- pare a fresh will which he had signed a few days after he had come out of hospital. It was plain that he remembered the contents of the February and August wills. As the codicil was not sufficient, in view of the August will, Mr. Taylor prepared a fresh will. The testator remained in the office while it was being engrossed. He then executed it and left the office. He did not mention his wife's infidelity to Mr. Taylor. Between the date of the will and his death the testator continued to live at Hollyburn with his wife. His health was failing, but, generally speaking, he was not drinking. He was in hospital from 20th to 24th August 1939 suffering from influenza. After leaving hospital they went to Brisbane. He was in ill health and drinking at times. She took him to several doctors. He continued to charge her with seeing White when she went to visit her daughter Gwen, who was then living in Brisbane, although he was not in the locality. He died soon afterwards from the plethora of diseases already mentioned. I have not yet referred to the evidence of Mr. Jeffery, the manager of the Commonwealth Bank at Roma, where the testator kept his account. It is clear that, like Mr. Timbury, he had the complete confidence of the testator. He gave

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October 1938 and 17th January 1939, and, therefore, immediately before and after the will of 22nd October. The testator told Mr. Jeffery that he did not want his wife to know anything about his business, that he knew she was after his money and, to.use his own words, said: " I am not such a big fool as they think I am," " she does not play the game with me, she is not faithful to me, she plays up with other men," " her family are a plague to me," "I do not trust her." He told Mr. Jeffery that while he was on the spree his wife and a cove had trotted him into Pack's office and made a will, " they think I do not know what was in that will, but I remember." '"' The worst of it is that she has not been faithful to me, and I can prove it." He said: " You know, one afternoon I started out to come into town, and I rode up the road, and just at dusk I doubled back through the leasehold, and as I came to the house I saw a cove leave and rush into the shed. I put the horse away, went over to the shed and barred the door. I then went to the verandah and pretended to go to sleep, after a while the missus sneaked over and opened the door. That was all the evidence that I wanted that she was playing up. I have got proof that she is unfaithful to me, and I do not think I am hard in leaving the property in such a way that it cannot be sold." Mr. Jeffery said he related this episode, which contains inherent evidence of its utter improbability, in a most emphatic way. Mrs. Coffee denies it ever took place. In cross- examination Mr. Jeffery said that the testator told him on 28th October that he was firmly convinced his wife was committing adultery with several men and that he repeated the charge on 17th January. In answer to a question: " You understood that this man had it fixed in his mind, that she was conducting herself in that way " (i.e. committing adultery) " at the time he was speaking to you?" Mr. Jeffery said, " Yes." The evidence shows that on the dates the testator gave the instructions for and executed the will of 22nd October he was convinced that his wife was a woman of loose character and had committed adultery with several men ; that she had married him for his money and was prying into his affairs to find out what he was worth; and that, having procured the will of 6th August in her favour, at a moment when she believed he was incapable of understanding what he was doing, she was waiting for his early demise to obtain possession of his fortune and squander his estate.

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natural outcome of an intensely jealous and suspicious mind whose underlying judgment was still sound. Jealous and suspicious men no doubt do object to their wives enjoying male society and are apt to attribute undue familiarity to ordinary acts of social courtesy. But it is surely a strong indication that the mind has become unhinged when even a jealous and suspicious husband commences to believe his wife has been committing promiscuous adultery, although he has never discovered her in any compromising position and has to invent imaginary happenings to justify his belief. The most that Mrs. Coffee appears to have done was to maintain quite openly and in a harmless manner a friendship with a disabled soldier whom she knew before her marriage. She was not a friend of Dewar and did not know Gleeson. Except for one short absence, when the testator said he had her shadowed by a detective whose report was entirely favourable, Mrs. Coffee appears to have lived continually with the testator. During White's second and third visits she was away with the testator on holidays for most of the time. White appears to have been a man who was badly off, and therefore spent a lot of time accepting any available hospitality. His role on the last two visits was to run or assist in running the station while the testator and his wife were away. If Mrs. Coffee was a money grabber, she would have been most unlikely to have compromised her position with such a man. It was suggested that she should have seen that he left Hollyburn and did not return. But she probably did not realize the hold the obsession had obtained on the testator's mind. In any event the testator would have soon discovered a substitute "fancy man." She told Mr. Jeffery in September 1938 that when the testator was sober he was quite fair to her, but when he was drunk he was most unfair. It would therefore appear that he made the charges to her mostly when inebriated and that she did not realize that a belief in their truth persisted when he was sober. It must be remembered that she was not aware of the will of 22nd October. She never showed any desire to obtain possession of his fortune. Indeed, they had been married for twelve months before he made a will in her favour. She appears to have been a dutiful wife, although she had often to live under loathsome and intolerable conditions. She took the view she must be loyal to her marriage vows and must care for him drunk or sober. She laboured con- tinually on the outdoor work of the station, and made the necessary financial and other arrangements to carry it on when he was incap- acitated by drink and suffering from deliriurh tremens. The bank manager's evidence shows how persistent and fixed the testator's

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