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[2016] WASC 43
General information, not legal advice.
Supreme Court of WA
2016-02-23
Chaney J
Original judgment source is linked above.
1 CHANEY J: By writ of summons dated 2 April 2014, indorsed with a statement of claim, the first and second plaintiffs sought a declaration that a will of the late Shirley Dawne Crawford (Mrs Crawford) dated 12 May 2009 (2009 Will) was the deceased's last will, and proof of the 2009 Will in solemn form.
2 The plaintiffs are the sister and brother of Mrs Crawford and are the named executors, but not beneficiaries, in the 2009 Will. The 2009 Will left a specific bequest of a fixed sum to the first defendant, some bequests of specific items of minimal value to the second and third defendants (Matthew and Emma), who are minors and are Mrs Crawford's grandchildren, and then divided the residue between Matthew and Emma equally.
3 By defence and counterclaim dated 9 June 2014, the fourth defendant, Gary Crawford, who is Mrs Crawford's son, alleged that the 2009 Will was invalid by reason that Mrs Crawford did not have adequate capacity to make the 2009 Will, and instead he sought proof in solemn form of a will executed by Mrs Crawford on 5 December 2006 (2006 Will). The 2006 Will appointed Gary Crawford and the seventh defendant, Arnoldus Johannes Weijers, as executors and trustees. It made the same specific bequest to the first defendant as in the 2009 Will. It bequeathed certain specific items to the fifth defendant, Soesanne Susanto, who is the wife of Gary Crawford. The residue went to Mrs Crawford's husband, Walter Crawford, provided that he survived Mrs Crawford, but failing that 50% to Gary Crawford and 50% to Matthew and Emma upon them surviving Mrs Crawford and attaining 25 years of age. Walter Crawford predeceased his wife.
4 At a mediation conference on 31 October 2014, presided over by a registrar of the court, the parties reached a compromise of the claim and counterclaim and signed a document entitled 'Heads of Agreement', which recorded the terms of the compromise (Mediation Agreement).
5 Clause 1 of the Mediation Agreement provided that '[t]he 2006 Will will be put before a judge for probate on an uncontested basis'.
6 Clause 2 of the Mediation Agreement provided that the executors of the 2006 Will, being Gary Crawford and Arnoldus Weijers, would renounce their appointment in favour of an administrator to be agreed by the representatives of the beneficiaries of the 2006 Will. Clause 2 further provided that the administrator is to be an accountant or, in the absence of agreement, a legal practitioner appointed by the President of the Law Society.
7 Provision was then made for the establishment of a trust, for the benefit of Matthew and Emma, in respect to one half of the proceeds of the sale of a property in Burke Drive, Attadale (the Property). At the time of Mrs Crawford's death, the title of the Property was registered in the name of Mrs Crawford, Walter Crawford, Gary Crawford and Soesanne Susanto as joint tenants. By reason of the joint tenancy, the property did not form part of Mrs Crawford's estate.
8 Because the Mediation Agreement compromised the claims of Matthew and Emma, the court's approval was required under O 70 r 12 of the Rules of the Supreme Court 1971 (WA). On 14 August 2015, I made orders approving the Mediation Agreement pursuant to that rule: see Williams v Schwarzback [2015] WASC 296 (Approval Decision). Directions were then made for the hearing of the application for proof in solemn form of the 2006 Will. As already noted, the Mediation Agreement provided that that application would proceed on an uncontested basis.
9 On 24 November 2015, in accordance with the Mediation Agreement, Gary Crawford and Arnoldus Weijers renounced their entitlement to be appointed executors of the 2006 Will. The application thus became an application for the grant of administration of Mrs Crawford's estate with the 2006 Will annexed. The precise form of the order sought by the fourth and fifth defendants, and supported by the second and third defendants, is that:
(i) the court pronounces for the force and validity of the last will and testament of Mrs Crawford dated 5 December 2006 and pronounces against the force and validity of the alleged will and testament of Mrs Crawford dated 12 May 2009; and
(ii) administration of the estate of Mrs Crawford be granted with the 2006 Will annexed.
10 The first and sixth defendants took no part in the proceedings. Mr Solomon SC, counsel for the fourth and fifth defendants, also appeared on behalf of the seventh defendant, but given that the seventh defendant had renounced probate and had no further interest in the matter, Mr Solomon's submissions were expressed as being made on behalf of the fourth and fifth defendants.
11 When the matter came on for hearing on 20 January 2016, the arrangements in relation to the engagement of a person as administrator had not been finalised, although they were well advanced. The defendants submitted that, in the event that the court is prepared to admit the 2006 Will to proof in solemn form, the precise terms of the order for administration could be made in light of finalisation of those arrangements and the provision of the proposed administrator's consent.
12 As can be seen from the Approval Decision, despite having personally signed the Mediation Agreement, the plaintiffs opposed the approval of the compromise. Despite their agreement that the 2006 Will would be put before the court for probate on an uncontested basis, the plaintiffs appeared in person at the hearing of this application and spoke in opposition to the application. In essence, they contended that the 2006 Will was invalid by reason of the incapacity of Mrs Crawford at the time of its execution, but contended that she had regained capacity by May 2009 when she signed the 2009 Will. In support of that position, the plaintiffs submitted a bundle of documents to which they made detailed reference in the course of their submissions.
13 At the outset of the hearing, counsel appeared for the plaintiffs seeking an adjournment. He advised that he had been instructed late in the afternoon of the day immediately preceding the hearing. He sought an adjournment on the basis that he had not had sufficient opportunity to review all of the papers, to provide advice to the plaintiffs, or to consider what, if any, further evidence ought be adduced by them at the hearing. He advised that he had not had the opportunity to consider how the plaintiffs might be entitled to actively oppose the application in apparent breach of the Mediation Agreement. The application to adjourn was opposed. For reasons which I expressed orally at the hearing, I declined the application for an adjournment. Counsel then withdrew and the plaintiffs represented themselves.
14 Order 73 of the Rules of the Supreme Court deals with probate proceedings. Order 73 r 19 provides:
Where at any stage of the proceedings in a probate action the parties agree to a compromise, the action may, with leave of the court, be set down for trial.
15 The reason why a probate matter is to be set down for trial is because no grant of probate should be made merely on the consent of the parties: see Wheatley v Edgar [2003] WASC 118 [30] (Wheatley); Re Watts (1837) 1 Curt 594 (Sir Herbert Jenner).
16 In the context of a compromise, it is a matter within the discretion of the court, having regard to the particular circumstances of the case, to determine whether or not there should be a decree in solemn form or a grant in common form. The distinction was explained by E M Heenan J in Wheatley where his Honour said [17] [18]:
The alternative modes for proving a will and the different consequences resulting from the choice made were examined by Legoe J in In the Estate of Kirs (1990) 55 SASR 61. In that case, at page 68, his Honour explained that wills can be proved in two ways, in common form or in form of law, the latter method usually being described as proof in solemn form. As his Honour explained:
'Wills are proved in solemn form in a probate action where the main, and generally the sole question for the determination of the court is whether a will is or is not either in whole or in part, valid as a testamentary instrument. The will is propounded in the action to which persons, interested under another will, or intestacy, are made parties (or are cited to see the proceedings) and for the validity of which the court pronounces after hearing the evidence. On the other hand a will is proved in common form:
(i) where its validity is not contested and
(ii) where the court allows it to be admitted after a hearing or motion or summons.'
His Honour went on to explain that the difference in effect between probate granted in common form and probate which has been granted in solemn form is that the former is revocable and the latter, with two exceptions, is irrevocable. The exceptions stated are if a later will is discovered or if the judgment has been obtained by fraud. There are at least two other circumstances in which a grant in solemn form may be revoked, namely if it is found that the testator is still alive: Re Napier's Goods (1809) 1 Phillim 83; 161 ER 91; and if a person opposing the grant was prevented, for reasons beyond his or her control, from taking part in the proceedings Re Barraclough (deceased); Barraclough v Young [1967] P 1 see also Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153 per Kitto J at 158-159. The parties to a probate action and those privy thereto are bound by the result. See In Estate of Vauk (1986) 41 SASR 242 at 248.
17 Justice E M Heenan was 'inclined to the view' that a grant in common form should not be made where there remains doubt, for example, about the adequacy of the testator's capacity [28]. With respect, that is a view which I share. Where compromise has been reached in such a case, the appropriate course is for the matter to be listed for a short hearing of the application for proof in solemn form which may, as E M Heenan J suggested, consist at least of the party propounding the will adducing the evidence of due execution of the will by a person of sufficient age to make a valid will. It was undoubtedly an application of that nature which was contemplated by the experienced legal practitioners advising all parties at the time the Mediation Agreement was reached. It is appropriate in the circumstances of this case that, on proof of the last valid will of Mrs Crawford, there be a decree in solemn form.
18 Like E M Heenan J in Wheatley, I find helpful the explanation of the principles applicable in circumstances such as those in this case by Macrossan CJ in Vandeleur v Franich (1991) 1 Qd R 481, 484 485. The learned Chief Justice said:
Real J in Queensland Trustees Limited v Finney [1904] QWN 21 was of the view that in a solemn form action there cannot be a grant ordered in solemn form by consent unless the proof is offered which in law is necessary. In the circumstances of that case he ordered proof in common form. In the present trial if opposition had been withdrawn at an earlier time, for example at the beginning of the hearing or even at the time when the plaintiffs executors' case had been concluded one particular difficulty would have been absent.
It is common enough for a compromise to be arrived at in a probate suit even after the trial has commenced. Amongst the reported cases are Wytcherley v Andrews (1871) LR 2 PD 327, Tiger v Handley [1948] WN 432, In re King [1917] 2 Ch 420, Ritchie v Malcolm [1902] 2 IR 403 and Mecredy v Brown [1906] 2 IR 437. It does not appear that in any of those cases evidence adverse to the validity of the will had been led at the time the respective suits were compromised.
A further consideration arises where, as part of the compromise, the court is invited to pronounce for or against the will. Only parties or persons privy to the suit will be bound by the terms of the compromise and the decree as the cases last cited show. If a pronouncement for or against the will is sought, there will need to be appropriate evidence: see Queensland Trustees Ltd v Finney and Mortimer on Probate (2nd ed.) at 611. If a declaration in favour of validity is sought, it seems that, as a minimum, there must be evidence of due execution: see Williams, Mortimer and Sunnucks Executors, Administrators and Probate, (16th ed, 1982) at 401, 402. In view of the answer taken from the jury on the issue of due execution in the present case and because of the lack of contest as the cases of the parties were presented, no problem arises on this aspect in the present case, but there may be a requirement that evidence on other aspects be provided: see eg Williams Mortimer and Sunnucks (supra) at 401-402 where, dealing with evidence on trial in the Short Probate List in England, it is said: 'Where a will is being set up, evidence of one of the attesting witnesses should be adduced. Affidavit evidence will usually be sufficient. Where the circumstances raise strong doubt as to the testamentary capacity of the deceased it is advisable to call medical evidence, if available, to show capacity'.
Clear definitive statements as to what is required do not seem to be available and the answer may depend to an extent upon the circumstances, consistently always with the application of basic principles. Pronouncing for or against a purported will is a solemn act and it will not be possible simply to ignore a substantial body of evidence to which the court's attention may have been drawn, depending upon the stage at which the parties propose a compromise. If the court, after hearing evidence, has already arrived at a firm view on a vital issue, there will at least be difficulty in asking the court to act in a contrary fashion: see the opinion expressed In the Estate of Szylowicz (dec'd) (1978) 19 SASR 263, 271, In the Will of Podger, (dec'd) [1957] VicRp 35; [1957] V.R. 275, 278 and In the Will of Pearce (dec'd) [1945] NSWStRp 14; (1945) 46 S.R. (NSW) 71. However, mere conflict in the evidence will not necessarily preclude the court from acting on a compromise which may be proposed see the observations of Cairns J. In re Muirhead [1971] P. 263 at 265 explained.
In a case of conflict the court may find it easier to pronounce in favour of rather than against the testator's expressed wishes. In the former case there may not be as firm a requirement for a fullness in the evidence in support of the course proposed. Still I do not consider it can be said that there is any hard and fast rule.
19 Having regard to the context of the agreement of all parties that the application for proof of the 2006 Will would proceed on an uncontested basis, the fourth and fifth defendants, supported by the second and third defendants, relied on relatively limited evidence. That evidence consists of:
(i) An affidavit of Julianna Welu Theingi Sao sworn 5 November 2015. Ms Sao was an attesting witness to the 2006 Will who deposed to Mrs Crawford having executed the will on the date which it bears in her presence and the presence of the other subscribed witness, Gerald Silvester Doss, who was Ms Sao's husband but who died on 20 September 2012.
(ii) A report of Dr Richard Val Arenson dated 23 June 2014, which was an annexure to an affidavit of Philip Michael Higgins dated 19 May 2015. Dr Arenson is a consultant geriatrician and endocrinologist who examined numerous medical records relating to Mrs Crawford and formed an opinion that Mrs Crawford lacked capacity to make her will in 2009 by reason of her display of consistent and pervasive paranoid ideation towards her son, Gary Crawford, from 2008 until the time of her death. As Dr Arenson acknowledged, his conclusions were based on the documents which he had reviewed, and he had never assessed Mrs Crawford personally.
(iii) A report of Dr C Nick De Felice dated 12 August 2014, which was an annexure to the affidavit of Philip Michael Higgins of 19 May 2015, and a signed copy of that report which was an annexure to an affidavit of Beverley Ann Sorrell sworn 15 January 2016. Dr De Felice is a consultant psychiatrist who undertook a similar examination of extensive medical records and formed a conclusion from those records that it was more likely that Mrs Crawford did not have testamentary capacity in May 2009 by reason of paranoid beliefs in relation to Gary Crawford.
20 On the basis of that evidence, the fourth and fifth defendants contend that there is sufficient evidence to satisfy the court that an order for proof of the 2006 Will in solemn form should be made, and to establish that Mrs Crawford did not have capacity at the time of the 2009 Will.
21 As mentioned earlier, the plaintiffs submitted a bundle of documents for consideration. Those documents included:
22 Putting aside the question of whether the 2006 Will was the last valid will of Mrs Crawford, I am satisfied that the 2006 Will was validly executed, and that Mrs Crawford had capacity at the time of its execution. The will is valid on its face. Evidence has been adduced of its due execution by way of the affidavit of Ms Sao sworn 5 November 2015.
23 The will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person with capacity. If there is evidence to the contrary, it is for the person propounding the will to establish affirmatively on the balance of probabilities that the testator was of sound mind: West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144, 146 (Hale J).
24 The requirements for testamentary capacity are found in the often cited passage from the judgment of the court delivered by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, 565. Those requirements are that the testator must understand the nature of the will and its effects, the extent of the property of which he or she is disposing, must be able to comprehend and appreciate the claims to which he or she ought give effect, and finally 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 (565).
It is the last of those requirements in respect of which questions of validity of both the 2006 Will and the 2009 Will have been raised in these proceedings.
25 Where a delusion has had, or is calculated to have had, an influence on a testamentary disposition, it must be held to be fatal to its validity: Banks v Goodfellow (561); Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 299. Where a testator suffers from delusions, the onus is on those supporting the will to show that the delusion did not influence the will: Bull v Fulton (299) (Latham CJ). Chief Justice Latham noted that it is sufficient to satisfy the court that it is a reasonable inference from the facts that a delusion which existed did not affect the disposition in question. The requirement for satisfaction is the civil standard of proof, namely on the balance of probabilities.
26 Putting aside the plaintiffs' contractual obligation not to contest proof of the 2006 Will, I do not consider that any of the materials submitted by them, nor anything said by way of submission, is capable of supporting a conclusion that Mrs Crawford suffered any delusion which would deprive her of testamentary capacity in 2006.
27 The delusion to which Mr Williams referred in the course of oral submissions was said to be the poisoning of Mrs Crawford's mind in relation to her daughter, Denise Higgins. In the 2006 Will, cl 9 contains an explanation as to why no provision was made for Denise Higgins. Reference is made to actions which had caused Mrs Crawford 'much distress and unhappiness'. The affidavit of Philip Michael Higgins, which was read at the hearing of the matter, confirmed that relations between members of his wife's family had been marked by conflict and antagonism. It can be accepted that, at the time of execution of the 2006 Will, the relationship between Mrs Crawford and Denise Higgins had completely broken down. Mr Williams endeavoured to proffer from the bar table an account of events which led to that breakdown. Although none of that material was in evidence, nothing which Mr Williams suggested nor, more importantly, anything in the evidence before the court, suggests that Mrs Crawford's appreciation of the fact of, or the reasons for, that breakdown was in any sense delusional.
28 There is no reason to conclude, or more particularly, no evidence to suggest, that Mrs Crawford lacked testamentary capacity at the time of execution of the 2006 Will. The only issue for consideration is whether, being a valid will, it was the last valid will of Mrs Crawford. It is thus necessary to turn to the question of the validity of the 2009 Will.
29 As already mentioned, the contention of the fourth and fifth defendants, supported by the second and third defendants, is that the court should rely on the reports of Dr Arenson and Dr De Felice to find that Mrs Crawford suffered from delusions in relation to her son, Gary Crawford, which affected her capacity to make the 2009 Will in May 2009.
30 In the context of the Mediation Agreement, which provided that the 2006 Will was to proceed on an uncontested basis, the third and fourth defendants relied upon the proposition extracted from Re Levy Deceased [No 2] [1957] VicRp 96; [1957] VR 662 to the effect that they were entitled to put forward only such evidence as is favourable to the will which they were propounding, and were not bound to put forward evidence adverse to the will which they propounded. In Re Levy Deceased [No 2], Sholl J said:
That indicates that the common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition. That seems clearly enough to indicate that the executor was not, in the view of the Prerogative Court, or, after 1857, the Probate Court, bound to call before the Court of his own motion all available evidence, both favourable to and adverse to the will of which he had obtained a grant in common form. The duty of such a person, after all, must be a duty to propound the instrument which the testator has appointed him to propound, if he puts it forward at all. He cannot owe any duty to take legal proceedings to destroy the instrument from which alone he takes his title, and that was pointed out in case of In the Goods of Chamberlain (1867), LR 1 P&D 316, to which reference was made in Re Levy deceased [1953] VicLawRp 87; [1953] VLR 652 at 655. Such an executor has, of course, no duty to put forward an instrument if he is satisfied that it ought not to be put forward. But once he does put it forward, he is entitled, in my opinion, to put it forward with only such evidence, available to him, as is in its favour (665).
31 That passage was cited with approval by E M Heenan J in Wheatley at [20]. Justice Sholl's remarks were directed to the proper role of an executor. A distinction in this case is that the 2006 Will is being propounded by the fourth and fifth defendants. The fourth and seventh defendants were nominated in the 2006 Will as executors. Consistent with the Mediation Agreement, the fourth and seventh defendants have renounced their appointments as executors. That raises a question as to whether the observations of Sholl J in Re Levy Deceased [No 2] are applicable to the application being made in this case. Because, for reasons which I will explain below, I consider it necessary for the court to review all of the information which has been put before it in order to pronounce upon the validity of either the 2006 Will or the 2009 Will, it is not necessary for me to consider the extent to which the observations in Re Levy Deceased [No 2] are applicable in the present case.
32 In Wheatley, E M Heenan J noted that Sholl J went on to say in Re Levy Deceased [No 2]:
Nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought.
33 While it may be that, in an application for proof of a will in solemn form which is unopposed by anyone whose interests may be affected, the court is under no duty to go beyond the evidence presented to it by those seeking to propound the will, it is not the case that the court can simply ignore the existence of a later testamentary document. The proposition that an executor propounding a will is not bound to bring in evidence adverse to the will does not extend to a dispensation from an obligation to bring to the attention of the court any later will, notwithstanding that that later will might be invalid. Even in applications for proof of a will in common form there is an obligation found in r 13 of the Noncontentious Probate Rules 1967 (WA) to bring to the attention of the registry a document of a testamentary character purporting to be of the deceased if it is alleged to be invalid for any reason other than revocation. The same obligation is found in the requirement under O 73 r 11 of the Rules of the Supreme Court which applies in the court's contentious probate jurisdiction. That rule requires the filing of an affidavit of scripts by the plaintiff and any defendant who has entered an appearance. The parties complied with that requirement in these proceedings. The affidavits of scripts bring to the court's attention the existence of testamentary scripts other than the will of which proof is sought. As can be seen in the passage set out above from Vandeleur v Franich, in pronouncing for or against a purported will, it is not possible for the court to simply ignore evidence to which the court's attention may have been drawn.
34 In this case, the third and fourth defendants appropriately addressed the existence of the 2009 Will and adduced evidence directed to establishing its invalidity. As noted above, the plaintiffs also brought to the court's attention documents which they contend go to the question of validity of the 2009 Will. Notwithstanding that, pursuant to the Mediation Agreement, the application is to be dealt with on an uncontested basis, I am obliged to have regard to the materials which the plaintiffs have put forward (almost all of which had previously been annexed to various affidavits filed in the proceedings, albeit that those affidavits were not read at the hearing of the application).
35 Much of the material submitted by the plaintiffs is irrelevant to the question of capacity of Mrs Crawford in May 2009. In particular, the documents which I do not consider relevant to that inquiry are those referred to as numbers 1, 3, 9, 10, 11 and 12 as described in [21] above.
36 Having reviewed all of the material, it is clear, and I find, that in and after December 2008, Mrs Crawford entertained delusional beliefs concerning her son, Gary Crawford, which influenced her testamentary decision making. That she suffered such delusional beliefs emerges from a number of the documents submitted by the parties.
37 The first is the letter dated 5 November 2008 from Dr Alison Smith of the Fremantle Older Adult Mental Health Service, which records that Mrs Crawford complained that, just prior to Walter Crawford's death, she had soup which she felt was 'too peppery' and which caused her to subsequently develop diarrhoea, and that she believed that the soup had been 'interfered with probably by her son'. The letter records that Mrs Crawford complained that '[s]ince the death of her husband she has realised she is the only person between her son and his inheritance', and that '[s]he feels frightened of him and believes he wants to harm her'. There is reference to missing mothballs and an assertion that 'they gave me a dose of it'. The letter records that she had telephoned the Poisons Line to ask about the effect of ingestion of mothballs. It records that she believed that Gary Crawford was hiding her medication and that Gary Crawford reported that when she misplaces items she accuses him of stealing them. Dr Smith diagnosed Mrs Crawford as having psychotic symptoms, depression and mild cognitive decline.
38 The mental health outpatient notes from Fremantle Hospital concerning an initial presentation on 3 November 2008 make reference to 'paranoid ideas about son and daughterinlaw looking for early inheritance'.
39 The Fremantle Hospital and Health Service Discharge Summary records that, when Mrs Crawford was admitted to hospital on 10 December 2008 she 'had a belief held with less than delusional conviction that an episode of gastrointestinal illness may have been as a result of being poisoned by her son' and that she had presented to her general practitioner 'a couple of times about this, wanting testing'. The report continues by stating that '[a]ssociated with this, Mrs Crawford had begun consulting lawyers with respect to her son's EPA and whether or not this could be revoked'. Reference is also made to allegations that her son was stealing from her and to the 'incident with the soup'. The summary records that 'she had with her some jam and crackers congruent with her history of carrying her own food to diminish risk of being poisoned', and refers to her attribution of a gastrointestinal upset to poisoning by her son. It records that she 'demonstrated little insight into the abnormal nature of her belief about poisoning or her response to it'. As noted above, attached to the discharge summary was a letter from Dr Wood concerning Mrs Crawford's competence. I will return to consideration of that letter below.
40 The integrated progress notes from Fremantle Hospital following Mrs Crawford's admission on 10 December 2008 refer to Mrs Crawford being 'worried about being poisoned' and to 'paranoia re poisoning'. Reference is also made to the incident concerning the soup followed immediately by reference to matters concerning Gary Crawford's involvement in her finances. Behavioural manifestations stemming from that belief are recorded as being contacting lawyers, diverting mail from her own address to another location, and carrying Vegemite and jam so that it cannot be tampered with. The notes record a 'good discussion about complexity of family relations and recall of various dealings ie EPA/lawyers etc'. They then record that Mrs Crawford 'experiences beliefs about poison as likely fact therefore no insight into abnormal nature' and refers to 'judgment potentially compromised'.
41 A reference in the progress notes dated 11 December 2008 again makes reference to poisoning in the context of discussions about the transfer of the title to the Property into joint tenancy in 2006. Reference is also made to the forgery of signatures by Gary Crawford and to a firmly held belief 'that is not shakeable' as to poisoning by her son. Again that is linked to matters concerning her property, enduring power of attorney and will, including references to wishes to 'clarify will'. It is not clear who prepared the progress notes dated 11 December 2008, but they commenced with the words 'Wood psychiatry', which suggests they record a review by Dr Wood. The notes conclude with the words:
Opinion: has capacity, but I am unsure of her (indecipherable) off the ward and (indecipherable) son and daughter the veracity and extent of paranoid belief unclear.
42 Further references are made to paranoid beliefs in notes dated 18 and 19 December 2008. The entry of 19 December 2008 refers to a family meeting which appears to have been centred upon questions of changes to Mrs Crawford's will and enduring powers of attorney.
43 Finally, the letter dated 20 September 2010 from Dr Martin of the Department of Community and Geriatric Medicine at the South Metropolitan Area Health Service records that Mrs Crawford then had ongoing symptoms of paranoid delusion disorder which it was said may 'preclude improvement with cognitive behavioural therapy'.
44 The material referred to above, and certain other material, was thoroughly reviewed by Dr Arenson for the purposes of his report of 23 June 2014. Amongst the additional material reviewed by Dr Arenson were the medical records of Mrs Crawford's general practitioner, Dr Jeyaseelan. Dr Arenson concluded that that documentation displayed a persistent and pervasive paranoia which extended well beyond Mrs Crawford's admission in December up until the time of her death. He makes reference to an entry in Dr Jeyaseelan's notes of 11 May 2010 that 'her power of attorney has changed to Merril and Neil; feeling less threat from Gary now'. Constant other references to paranoid ideas are apparently to be found in Dr Jeyaseelan's notes throughout 2010 and 2011.
45 Dr Arenson considered both Dr Wood's letter written on 18 December 2008, and Dr Woodall's letter of 20 July 2009. Whilst Dr Arenson considered that the medical records which he had inspected supported the proposition that Mrs Crawford could satisfy the first three elements of capacity outlined in Banks v Goodfellow, namely an understanding of the nature of a will and its effect, the extent of the property she was disposing of, and an appreciation of the claims to which she should give effect, he was unable to reconcile the medical notes with the proposition that Mrs Crawford had testamentary capacity unaffected by paranoid ideas concerning her son.
46 Dr De Felice also recognised that the question of Mrs Crawford's capacity turned on the question of whether she suffered from delusional ideas which affected her decisions in relation to the terms of her will. He too considered the views of Dr Wood and Dr Woodall and gave detailed reasons as to why he did not agree with the conclusions which they had reached.
47 It is apparent from the progress notes that the delusional beliefs held by Mrs Crawford about her son were constantly linked with questions concerning the distribution of her estate. I accept therefore the opinions of both Dr Arenson and Dr De Felice that Mrs Crawford's decision to change her will in 2009 was substantially influenced by her paranoid beliefs. Those delusional beliefs lead to the conclusion that the fourth requirement for capacity, namely that no delusions should influence the disposition of property in the will, is not satisfied.
48 I accept that that conclusion involves a rejection of the opinions expressed by Dr Wood in his letter of 18 December 2008 and Dr Woodall in his letter of 20 July 2009. Dr Wood recites in his letter that '[h]er property and financial estate, those persons who could justifiably have a claim on the above were also discussed'. It continued:
During these two interviews, Mrs Crawford was able [to] retain and appreciate the relevance of the information regarding the above matters. She demonstrated the capacity to reason, rationally manipulate and understand the personal relevance of the information. Consequently I formed the opinion that Mrs Crawford had the capacity to deal with her legal and estate matters.
49 There is no suggestion that Dr Wood put his mind to the question of the influence of Mrs Crawford's undoubted paranoid beliefs on her testamentary decision making. It is apparent, from the terms of Dr Wood's letter, that he addressed the first three requirements of the test in Banks v Goodfellow. Like Drs Arenson and De Felice, I am unable to reconcile the hospital notes with the proposition that the terms of Mrs Crawford's 2009 Will were not influenced by those delusional beliefs.
50 It is for the same reason that I prefer the conclusion of Drs Arenson and De Felice over that of Dr Woodall. The circumstances of Dr Woodall's report are by no means clear. He refers to Mrs Crawford informing him 'of changes she wished to make to her will and to her enduring power of attorney'. Dr Woodall had assessed Mrs Crawford on 17 July 2009, two months after she had already changed her will. It is unclear whether further changes were proposed to be made, and if so in what terms. There is no suggestion that Dr Woodall considered the progress notes from Fremantle Hospital. He merely notes that Mrs Crawford informed him of her admission. Although Dr Woodall refers to an undertaking by him to obtain information as to her assessments at Fremantle Hospital 'both for my own assessment and to forward to her general practitioner Dr Jeyaseelan', the opinion expressed in the letter appears to have been made without reference to any further information, and there is no evidence that Dr Woodall did in fact consider that information or, if he did, what he made of it. Dr Woodall's final conclusion was:
During the interview Mrs Crawford was able to retain and understood the relevance of information she needs to make regarding her will and enduring power of attorney. There was no evidence of a psychiatric disorder that would affect her ability to reason and understand the relevance of this information. I am therefore of the opinion that Mrs Crawford has the capacity to deal with her finances and any relevant legal matters regarding her will and decisions about the enduring power of attorney.
51 There is no mention in Dr Woodall's letter of any delusional beliefs. It can be inferred that those beliefs were simply not mentioned in the course of Dr Woodall's consultation with Mrs Crawford. In those circumstances, I am not satisfied that Dr Woodall addressed the relevant inquiry.
52 Finally, the plaintiffs submitted a report from Dr Clarnette dated 14 October 2015. At the hearing, Mr Williams suggested that Dr Clarnette had treated Mrs Crawford. There is no evidence to support that contention, and there is no suggestion to that effect made in Dr Clarnette's lengthy report. Following completion of the hearing, Ms Williams, without leave of the court, sent to the court various documents including some copies of integrated progress notes apparently related to an admission to hospital in January 2013. The name 'Clarnett' appears in the header to those notes. It is not apparent whether those documents were provided to the other parties. In those circumstances, I propose to ignore them. In any event, they relate to dates nearly four years after the time in question.
53 Dr Clarnette's report was dated 14 October 2014, almost 11 months after Mrs Crawford died. The first 15 pages of Dr Clarnette's report deal with a general discussion on capacity. That section of the report might be described as a set of suggested guidelines for capacity assessments by medical practitioners. In dealing with the particular case at hand, Dr Clarnette lists the documents which he had sighted, which include the various medical notes and reports to which I have referred above, other than the reports of Dr Arenson and Dr De Felice. Although those two reports predated Dr Clarnette's report, it is not clear whether, by October 2014, they had been disclosed to the plaintiffs and thus to Dr Clarnette.
54 Dr Clarnette's report notes that no formal capacity assessment is documented in the notes available. He does not, however, undertake any detailed assessment of the medical notes other than to observe the absence of any formal capacity assessment. He then refers to Dr Wood and Dr Woodall's reports saying that '[a]lthough they do not constitute formal capacity assessments, these reports provide sufficient medical evidence to strongly suggest that her capacity to execute a will in 2009 was intact'. He then makes reference to the text of the two letters before concluding that '[b]ased on the documents and conclusions by the two consultant psychiatrists, I believe that on the balance of probabilities that Mrs Crawford had the capacity to provide instructions upon and to execute the 2009 Will'.
55 It is clear that Dr Clarnette's opinion does no more than adopt the views expressed in Dr Wood's and Dr Woodall's letters. His opinion makes no independent assessment and takes the matter no further.
56 I am satisfied that, as at May 2009, Mrs Crawford's delusional beliefs concerning her son infected her testamentary capacity and influenced her decisions as to the disposition of her property reflected in the 2009 Will. I am satisfied that the 2009 Will was not a valid will.
57 It follows that the court should pronounce for the force and validity of the last will and testament of Mrs Crawford dated 5 December 2006 and against the force and validity of the alleged will and testament of Mrs Crawford dated 12 May 2009.
58 I will hear from the parties as to the precise form of the orders necessary to dispose of the matter in light of these reasons.
(1986) 41 SASR 242
(1978) 19 SASR 263
(1990) 55 SASR 61
(1960) 105 CLR 153
(1991) 1 Qd R 481
(1942) 66 CLR 295