Will of Eileen Elsie Ryan: Williams & Howden v Ryan [1998] VSC 60

Will of Eileen Elsie Ryan: Williams & Howden v Ryan [1998] VSC 60 - VSC 1998 case summary — Zoe

[13]

From this time Mrs Eggins and Tara continued to live with the deceased at Thomastown with Mrs Williams visiting regularly. The deceased became dependent upon them and derived a good deal of satisfaction from the presence of her grand-daughter, Tara, who occasionally accompanied her to the local shop. Mrs Williams said that the deceased used to also visit her at her home where she lived with Mrs Howden, and the three women were accustomed to play cards and to place modest bets on the races. The deceased was able to do this and to enjoy the successes of her selected horses. Mrs Williams said, too, that although the deceased deteriorated physically she "remained mentally alert right through until approximately 1990 when I noticed the first signs of her forgetfulness". I do not accept this. It is inconsistent with the preponderance of the evidence of all witnesses as to the deteriorating mental condition of the deceased to that date. Either Mrs Williams was not observant or it is an exaggeration or just false. Mrs Williams was, however, close to the deceased. She told me and I accept that she used to assist her friend in the management of her affairs; she used to take her shopping and withdrew money from her account or perhaps cashed cheques from an account kept for her by the Herald & Weekly Times as was required for her expenses. She kept receipts for all payments and accounted each month to Mr Canals, the deceased's attorney under power. Mrs Eggins in her affidavit said that there were many occasions when the deceased was drunk during the period of 30 months from mid-1988 when she lived with her. On these occasions she was incapable of fending for herself. However, as time passed and she became closer to Mrs Williams, the deceased's drinking lessened and these periods of incapacity were less frequent. She said that when she was not under the influence of alcohol the deceased was perfectly capable of looking after herself. In my judgment this last statement is an exaggeration. It does not explain why the stove was colour coded, nor why the deceased was unable to sign her name or why she was afraid to cross the road. It is not consistent with the inability of a woman of the deceased's age to cook otherwise than the simplest of dishes.

[22]

The explanation for the $3,000 adjustment is more obscure. If it is true, the circumstances of its payment were not within the direct knowledge of the deceased or any of the plaintiffs' witnesses. In his affidavit Mr Ryan simply denies he received that sum from his father. Mr Pentilla said that the deceased told him that, after the death of his father, Mr Bruce Ryan went to the Herald & Weekly Times, his father's former employer, with his girlfriend who pretended to be his sister, Mrs Eggins. They, as the children of the deceased employee, persuaded the employer or the trustee of the superannuation fund to pay to them $3,000 claiming that it was for a holiday for their mother, the employee's widow. Mrs Williams confirmed this allegation, saying that the incident occurred soon after Mr Ryan senior's death. She said later that it occurred when money was withdrawn for the deceased's trip to Adelaide which would have been in about April 1988. Later again, in the course of the trial, a payment slip dated 21 July 1988 showing a payment in that sum to the deceased was produced by Mrs Williams from the papers of the deceased. This would fix the event at that time and not a few days after Mr Ryan's death as Mrs Williams first said to me and as the deceased had said to Mr Pentilla. In cross-examination it was put to Mrs Williams that it would have been necessary for the deceased also to accompany her son and his girlfriend to the employer and then to the bank to cash or pay in the cheque which they had received. Mrs Williams was, of course, unable to comment on this suggestion. All of the information about this incident was ultimately obtained by Mrs Williams from the employer when someone from the Herald & Weekly Times telephoned the deceased some time later in 1988 and the call was passed by the deceased to Mrs Williams. It was therefore hearsay and inadmissible to prove the fact. Moreover, it was never made clear what it was that provoked the telephone call to the deceased in the first place. The evidence as to the truth of this allegation was most unsatisfactory and would not support a finding adverse to Mr Ryan. My concern, however, is as to the inference to be drawn from the allegation as to the mental condition of the testatrix. I conclude that whatever be the truth of the allegation and whoever put it in the mind of the deceased, it was certainly there before she visited Mr Pentilla and there is evidence from him that she was apparently able to relate her understanding of it in a rational manner. The will was, on its face, a rational will.

[44]

He sought to reconcile Dr Hankin's observations with those of Mrs Williams and Mrs Eggins to the effect that the deceased was mentally alert in the months after May 1988 and those of Mr Pentilla, by surmising that the deceased was intoxicated when she attended his surgery in May. Dr Hankin denied this and I accept his evidence. Dr McArdle's explanations based on the poor education of the deceased are not borne out by the evidence. She apparently had some employment in the Repatriation Hospital in the late 1940s and early 1950s. I decline, however, to infer from the photographs produced in evidence, as counsel for the defendant urged, that she was employed there as a nurse. She worked in the 1950s and early 1960s as a machinist. So much appears from her tax returns for that period. It also appears from those documents that she was able to sign her name in a firm and competent hand which is a far cry from her manner of executing her will and the revocation of power of attorney 30 years later. The value of Dr McArdle's evidence lies in his opinion as to the nature of the condition of dementia. He said that it is possible that there could have been a significant improvement and stabilisation in her mental capacities if she were not drinking alcohol and if she were eating regularly and being well-looked after. Dr Hankin agreed with this but his observations of 31 October showed that no such improvement had taken place. Indeed on that occasion her condition was worse than it was in May. Furthermore, such evidence as was available shows that the mental decline continued on into 1989 and up to 1990 when she left her home in Thomastown. In particular, there was no evidence of any lapse into heavy drinking in the weeks before the October consultation which might explain a severe downturn after 28 September. Dr McArdle accepted the difficulty of reconciling Dr Hankin's observations on that occasion with any inference that her abstinence led to a significant improvement in her dementia. Indeed, he acknowledged that her inability to find the door of Dr Hankin's surgery on 31 October was indicative of serious dementia. He acknowledged, too, that the indications of dementia may be masked so that a person may fail to notice it.

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Judgment (48 paragraphs)

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