"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."
41 The applicable onus of proof has been explained in Bailey v Bailey (1924) HCA 21; (1924) 34 CLR 558 and Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698.
42 Where a doubt as to testamentary capacity is raised satisfying the evidentiary onus on the defendant, the onus passes to the propounder of the will to satisfy the Court that the will being propounded is valid; but this does not mean that a doubt is enough; the doubt must be such that the Court considers it sufficient, as a Court of conscience, to prevent it finding for the will propounded: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 and Re Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698.
43 A cautious approach to cases such as the present one is invited by authority. The reason for this was explained by Gleeson CJ in Re Estate of Griffith (Deceased); Easter v Griffith (1995) 217 ALR 284, at 290:
"This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that the woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that if the evidence of an unsound mind, the decision may be very difficult."
44 The issue that Associate Professor Peisah raises in this case, does not relate to Edith Fulton's appreciation of the significance of the act of making a will, does not relate to Edith Fulton's awareness of the general terms of her estate and does not relate to her identification of those who might have reasonably have been thought to have a claim on her testamentary bounty. Rather her opinion is that in December 2004 Edith Fulton had cognitive impairment which may have compromised her capacity with respect to her ability to identify, evaluate and discriminate between the respective strengths of the claims of persons on her testamentary bounty.
45 Associate Professor Peisah has examined Edith Fulton's full medical history as well as much of the evidence in the proceedings. The medical records of Port Kembla Hospital in the last two weeks of her presence there show psychologist's reports that include the following: "well orientated to person, date and place. Limited non verbal abstract reasoning present…Became tearful when discussing conflicts between daughters". On 3 November 2004, one month before she made the will a psychologist a Port Kembla Hospital observed the following of her:
"Immediate memory is low average, delayed recall severely impaired. Vasoconstriction is Low average/Borderline for her age and attention is low average. Generally functioning within low average range for her age but with average orientation and language. However is not able to identify appropriate strategies for remaining safe at home. Is probably capable at this time of making an informed decision if the information is of interest to her and relatively simple.
Is not able to remember or process large amounts of new information. May be easily led by persuasive arguments/statements. May have the early stages of dementia, possible AD but this was not fully assessed"
46 Associate Professor Peisah also observed from MRI brain scans taken within 12 months of the making of the will that in addition to the meningioma she had a considerable number of foci of chronic ischaemic change in periventricular and sub cortical white matter. Throughout 2004 she was requiring increasing doses of narcotic analgesics. She was incontinent by October 2004. The medical officers at Port Kembla Hospital concluded that she needed high level residential care. Furthermore, on 9 November 2004 she collapsed while sitting in a chair, was unresponsive for 45 minutes after which her speech was incomprehensible and she was agitated and confused for the next 24 hours. It was concluded that she had had a transient ischemic attack at this time.
47 Based on this material Associate Professor Peisah's conclusion was that Edith Fulton was suffering from a disorder of the mind, consequent upon cerebrovascular disease (CVD) a disease involving the small and possibly the large vessels of the brain. Associate Professor Peisah concluded in Edith Fulton's case that the CVD, which manifested as vascular cognitive impairment, is associated with loss of frontal or executive function (that is judgment, planning and reasoning), which in her opinion are crucial to the will making process, especially where that process involves complex or novel decisions which deviate from previously established patterns of disposition.
48 Associate Professor Peisah concludes that it is more probable than not in her opinion that Edith Fulton was unable to weigh, identify, evaluate and discriminate between the respective strengths of the claims of her beneficiaries. Her principal reasoning to this conclusion is set out in a single paragraph of her report which I accept as correct after considering all the evidence in this case:
"The task of evaluating and discriminating between respective strengths of claims was particularly complex for Mrs Fulton. She had to consider and take into account her past, very clearly stated wishes with regards to her estate, as well as past and recent relationships with her three daughters, including the extent to which she had provided for each of them. The greater the complexity and conflict within a testator's environment, and the greater the complexity of the Will itself, the higher the level of cognitive function or emotional stability necessary to be considered capable. Her mental state by December 2004 reflected both an inconsistency in her decisions and family alliances typical of patients with neurodegenerative disease (even early neurodegenerative disease) and an inability to remember or process large amounts of new information which precluded the kind of evaluation and discrimination required of her as a testator."
49 It is necessary to consider any relevant will making pattern and the terms of the challenged will. I do not take into account the 1989 will because evidence of its existence is too uncertain. If it did exist it would be rational for its time, dividing up as it was said to do, Edith Fulton's estate into three equal parts for her three daughters.
50 This case does raise suspicions as to Edith Fulton's testamentary capacity. Edith Fulton revoked the June 1999 will and executed an entirely different disposition during a period of mental enfeeblement: Bailey v Bailey (1924) 34 CLR 558 at 571. Furthermore the will is "inofficious" in the sense of making no provision for a near relation, Kathleen who ought to be the object of Edith Fulton's bounty: Banks v Goodfellow (1890) LR 5 QB 549, at 570 and Brown v M'Encroe (1890) 11 LR (NSW) Eq 134 at 138. In such circumstances fuller and clearer evidence of capacity is required.
51 Even if one were prepared to assume the correctness of much of what Julie and Suzanne say in their evidence about Kathleen and the treatment of their mother, the unfairness of the 2 December 2004 will is still striking. Perhaps the centrepiece of Edith Fulton's rationale for the 24 June 1999 will was not just a perception of gratitude that Kathleen and her husband had done much for her at that time, but rather, a practical realisation that it would create an impossible situation for Kathleen if she had to negotiate with her two sisters to buy back a 1/3rd interest in her and her husband's domestic residence in Horsley Park after their mother's death. The failure to give any obvious consideration to that factor in December 2004 and Edith Fulton's unexplained assumption at the same time that Kathleen had done well from her bounty already, shows clear internal evidence in my view of a failure to properly weigh the competing claims upon her. The complexity of the December 2004 testamentary task for Edith Fulton, especially given the emotional distress that the differences among her daughters clearly caused her, was intensely challenging. The objective evidence in the will itself, omitting any provision for Kathleen is a powerful factor pointing to lack of testamentary capacity in this case.
52 In my view the challenges to the impairment of her mental capacity implied from her CVD, together with the intense emotional difficulties of weighing the competing claims of her three daughters was a task which was too complex for her in December 2004 and beyond her testamentary capacity.
53 The competing lay evidence does not change this view. There is evidence from the time of making the December 2004 will and there is general evidence from Kathleen, Suzanne and Julie.
54 Mr Bignell, the solicitor who took instructions for the December 2004 will regarded Edith Fulton as coherent, rational and articulate. Sister Sharon Fritsch, a nurse who cared for Edith Fulton in Kempsey at the Amity Nursing Home regarded her as someone who was able to make her own choices and decisions and to be capable of logical and formed thoughts and conversations, although she saw that Edith Fulton required large quantities of medication for pain relief and headaches caused by her tumour. Dr Leo Smith, a general practitioner from Kempsey thought in late 2004 and early 2005 she was capable of understanding the will making process. These genuine opinions do not come to grips with the underlying complexity and emotional difficulty of the task that was presented to Edith Fulton in weighing the claims of her three daughters on her bounty, a task which in my view in December 2004 she was incapable of undertaking. This incapacity could be masked in less challenging situations with which these witnesses were more familiar. The evidence of Mr Bignell and Mr Bassington does not provide any detail about how Edith Fulton reasoned her way to excluding Kathleen from benefits of the 2 December 2004 will. All there is is the mysterious statement that the testator had adequately provided for Kathleen "during my lifetime".
55 The evidence of Kathleen, Julie and Suzanne about Edith Fulton's testamentary capacity in December 2004 is greatly in conflict. Without a hearing I find it difficult to draw very much from it. Kathleen saw her mother at the time as becoming quieter, withdrawn and less comprehending of people around her and easily distressed. Julie saw her physically incapacitated but able to communicate coherently and recognising the people around her. Suzanne had a similarly positive view of her mental capacity. It is difficult to decide much on this conflict of evidence. The practical exclusion of Kathleen from the last will, combined with Associate Professor Peisah's evidence in my view is sufficient for the Court to conclude the deceased lacked testamentary capacity.
56 Accordingly I will make the declarations as to the invalidity of the 2 December 2004 will and I will make orders revoking probate of the will dated 2 December 2004. I will also make consequential orders in relation to probate of the will of 24 June 1999.
57 But there is one remaining question as to the consequential orders settling a proposed Family Provision Act claim to be brought by Suzanne.
The Family Provision Act Orders
58 The neat arrangement made between Kathleen and Suzanne in relation to the proposed Family Provision Act claim by Suzanne are not an adequate discharge of Kathleen's prospective obligations as executrix of the June 1999 will, probate of which is yet to be granted to her. Clause 8 of the terms of settlement requires Suzanne to file and serve a cross claim claiming relief under s 7 of the Family Provision Act and makes an order by consent extending time for making the claim up until the time of the filing of the cross claim and dispensing with compliance with "all rules and practice notes necessary to enable orders to be made by consent".
59 I am not prepared to make this order in this form. It dispenses with appropriate consideration by Kathleen in her role as executrix of the estate of her obligations to consider the range of possible eligible persons who may have claims on the estate when she comes to consider these possible claims as executrix under the 24 June 1999 will. That is the future capacity in which she would have to consider these possible claims. Her role in doing so is somewhat different from her present role as a plaintiff seeking revocation of the 2 December 2004 will and in the alternative making a Family Provision Act claim herself against Suzanne as executrix of the 2 December 2004 will.
60 Mr Orlizski has referred the Court to the list of eligible persons provided with the statement of claim in the revocation proceedings in accordance with Schedule J to the Supreme Court Rules, Clause 9(1). Those persons are Kathleen, Suzanne, Julie and Kathleen's daughters Jacqueline and Caitlin. In my view this list needs to be re-examined by Kathleen in her new role as executrix of the June 1999 will. There is no evidence that she has done this, even prospectively. Her obligations to do so cannot be dispensed with by agreement. It is difficult to see how she can give an adequate account of her performance of this task until she becomes executrix of the 24 June will.
61 As Edith Fulton died before the commencement of the Succession Act (2006), the Family Provision Act (1982) applies to any Family Provision Act claimed by Suzanne: Succession Act, Schedule 1, Clause 11(2). The definition of eligible persons under Family Provision Act, s 6 includes persons who were either grandchildren of the deceased or member of the household of which the deceased was a member and who "was at any particular time wholly or partly dependent upon the deceased". Kathleen's children Jacqueline and Caitlin appear to fall into that category possibly as a result of Edith Fulton living at Horsley Park whilst they were there. The evidence does not sufficiently exclude the possibility that Edith Fulton may have shared a household at some point with the one or other of the grandchildren for it to be said on the currently available evidence that there is no possibility those other grandchildren could be eligible persons. Issues of who is an eligible person can involve issues of complexity as Palmer J's recent decision, Stephens v Perpetual Trustee Company Limited [2009] 107 8; (2009) 76 NSWLR 15, shows. Furthermore Mr Orlizski has not pointed the Court to any clear evidence as yet that Jacqueline and Caitlin have been given notice of these proceedings and do not wish to contest Family Provision Act proceedings. Whilst it is quite unlikely that they would do so in conflict with their mother the Court has so far been left in a complete vacuum about evidence in relation to eligible persons. It is up to Kathleen as the new executrix and Suzanne as the new plaintiff/cross-claimant to fill that vacuum if they wish so as to persuade the Court to make the orders they wish under the Family Provision Act in Suzanne's favour.
62 The obligations of a plaintiff and an executor under the Family Provision Act 1982 in relation to eligible persons are provided for in Schedule J to the Supreme Court Rules: