Clare, Re (deceased) [2009] QSC 403

SUPREME COURT OF QUEENSLAND CITATION: Re: Clare (deceased) [2009] QSC 403 PARTIES: LUAN DANAAN (propounding executor) v PETER GRAF and MICHAEL GRAF (applicants for letters of administration) FILE NO/S: BS 514 of 2009 DIVISION: Trial Division PROCEEDING: Hearing ORIGINATING COURT: Supreme Court Brisbane DELIVERED ON: 11 December 2009 DELIVERED AT: Brisbane HEARING DATE: 24, 25 November 2009 JUDGE: White J ORDER: Letters of administration on intestacy of the estate of Dana Shankari Clare deceased be granted to Peter Graf and Michael Graf. CATCHWORDS: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – IN GENERAL – where the deceased executed a will – where the deceased’s brothers have applied for letters of administration of the deceased’s estate on the basis that she did not have the requisite testamentary capacity – whether the deceased had testamentary capacity at the time of executing the will – whether letters of administration should be granted Banks v Goodfellow (1870) LR 5 QB 549 Brown v Sandhurst Trustees Ltd [2009] VSC 212 In the Will of Wilson (1897) 23 VCR 197 COUNSEL: P J Goodwin for the propounding executor R M Treston, with M Callaghan, for the applicants for letters of administration SOLICITORS: Murphy Schmidt for the propounding executor McInnes Wilson Lawyers for the applicants for letters of administration -- 1 of 19 -- 2 [1] The deceased died at Port Douglas in Far North Queensland between 13 and 17 July 2008 by her own hand. She left a document1 headed “This is the Last Will and Testament of me, Dana Clare…” dated 10 August 2006. In it she appointed her long time friend Luan Danaan as executrix and trustee of her estate and bequeathed certain property to Ms Danaan. [2] The deceased’s brothers, Peter Graf and Michael Graf have applied for letters of administration of the deceased’s estate on the basis that she did not have the requisite testamentary capacity on 10 August 2006. There is no other document for which probate may be sought and no other person has a superior claim to administer her estate. [3] Ms Danaan has propounded the document of 10 August 2006 in these proceedings as the last will and testament of the deceased. There are other writings created by the deceased in the days prior to her death which may have testamentary significance which also fall for consideration. The brothers’ application has been heard in the solemn form proceedings. [4] At the time of her death, the deceased was subject to an Involuntary Treatment Order (“ITO”) under the Mental Health Act 2000 (Qld) and had been since 3 March 2006. She had been diagnosed as suffering from a severe mental illness – schizophrenia. Dr Bruce Gynther, the deceased’s treating psychiatrist, considered that the diagnosis which best fitted her many symptoms was of schizoaffective disorder, depressive type. She exhibited symptoms of schizophrenia both in the presence and absence of symptoms of major depression. [5] The deceased had never married. She had no children and both her parents had predeceased her. She is survived by her two brothers, their children and her deceased sister’s children. That sister had committed suicide many years previously. The deceased was a beneficiary of her mother’s estate; her mother had died on 30 July 2007. The value of the deceased’s estate is in the vicinity of $500,000. [6] The principal issue for resolution is the testamentary capacity of the deceased at the time she executed the document of 10 August 2006. There are other subsidiary issues which have been identified by the parties in an issues statement.2 [7] The evidence about the deceased’s testamentary capacity is voluminous, being contained in some seven lever arch folders. This was due, in part, to the deceased being a prolific writer of emails and of prose which are relevant to her mental state and also to her extensive medical and allied records. [8] The evidence-in-chief of the witnesses was on affidavit and only Ms Danaan, Mr Andrew Johansson, the deceased’s nephew, who was an attesting witness to the 10 August 2006 writing, Dr Peter Graf, Dr Jill Reddan and Dr Bruce Gynther were required for cross-examination. Although Dr Graf is a registered psychiatrist practising in Victoria he did not, appropriately, venture any opinion evidence about his sister’s mental health. Dr Bruce Gynther was the deceased’s treating psychiatrist under the ITO and he prepared two reports.3 Dr Jill Reddan was 1 Exhibit 1. 2 Exhibit B for identification. 3 Exhibits 35 and 36. -- 2 of 19 -- 3 retained by Ms Danaan to examine the material relevant to the deceased’s mental state. She provided three reports.4 [9] The parties’ lawyers had co-operated by the time the matter came to a hearing in identifying the issues and limiting the evidentiary areas of dispute. [10] Although Dr Gynther and Dr Reddan agreed on a number of matters about the deceased’s mental health status, Dr Reddan advanced the opinion that the deceased did have the necessary testamentary capacity at 10 August 2006, in as much as Dr Reddan did not hold the opinion that the deceased’s attitude to her family had been “poisoned”5 by her insane delusions. Dr Reddan modified that opinion in the course of extensive cross-examination by Ms Treston, counsel for Peter Graf and Michael Graf, but did not resile from it. On the other hand, Dr Gynther was firmly of the opinion that the deceased, because of her psychotic delusions, was unable, rationally, to weigh up the various claims on her estate when making her will. [11] As these reasons will demonstrate, I have concluded that the evidence establishes that the deceased did not have the requisite testamentary capacity when she executed the document dated 10 August 2006 and no other of her subsequent writings may be characterised as expressing her undeluded intentions about the disposition of her estate. Background history of deceased [12] The deceased was born in Holland in 1955 and came, at an early age, to Australia with her family. There seems to have been a family history of mental instability.6 The deceased trained as a social worker and worked in that capacity for approximately 20 years. In 1985 she was admitted to the Royal Melbourne Hospital at the instigation of her brother, Peter Graf, suffering life threatening weight loss – she weighed about 39 kilograms. The deceased held strong views about what she would eat. She was diagnosed and treated as suffering from anorexia nervosa. [13] In 1987 the deceased changed her name from her birth name, Yvonne Claire Graf, to Dana Shankari Clare. The deceased’s writings and her communications with friends show her to have been deeply committed to her own spiritual journey which involved strongly held views about her body and the total rejection of poisoning it with chemical products. She was a strict vegan and, eventually, consumed no cooked food. The ingestion of drugs of any kind was repugnant to her principles. Her own words, perhaps, best summarise her history. “It is relevant to my case to know that I have been on a spiritual journey since the age of 24. Since that age I have continued my study of meditation, yoga, spiritual awareness, Consciousness, New Age teachings and metaphysics. I have also studied the teachings of Archangels, Ascended Beings and Cosmic Beings. 2. I studied spiritual subjects at post-graduate university level. I completed my Master of Arts thesis at the University of Melbourne in 1985 on the subject of “Self and Transformation – an Exploration of the work of J. Krishnamurti”. After getting my Masters degree, I commenced work on a PhD on the topic of “Meditation – the Art of Self- Inquiry”. Over the last two years, I have been writing an 4 Exhibits 22, 23 and 24. 5 Banks v Goodfellow (1870) LR 5 QB 549. 6 Exhibit 14: Affidavit of Dr Michael J Owens filed 18 March 2009 at “MJO-2”, pp 15 and 16. -- 3 of 19 -- 4 autobiographic and philosophical book which is largely about my spiritual journey over the last 27 years. As a result of my spiritual studies I live my life from a multi-dimensional, wholistic perspective. My multi-dimensional awareness includes the capacity to communicate with Angels and other aware, friendly beings on inner levels.”7 Relocation to Queensland [14] The deceased moved to Far North Queensland in 2001 and subsequently acquired a property of about 40 acres near Cooktown. [15] The extensive material establishes that she had a wide circle of friends, most of whom shared at least some of her approaches to living both physically and spiritually. By 2005 her writings and the medical records show that she was then becoming seriously mentally unwell and quite florid in her delusions. For example, a document dated 18 May 2005:8 “Reminders for Savvy, Effective and Ethical Behaviours in relation to D9 1. I am a physical Human Being living in a physical world. I and my group are under the “Princely and Queenly Negotiators” (PQNs) previously known as the “princely devils”. I have ‘merited’ this due to my ability to name the “dumb-smart mozzing programs” and see thru the core beliefs underlying the “Mozzing Dualilty Game”. There is no need to test me any further on this as I have already been thru numerous repetitions of the programs and named them accurately. There is no need to impress me either with how smart or skilled you are as once you are aware that you are naturally impressive by virtue of your true, natural being there is no longer any need to prove anything or to go out of your way to impress.” [16] A writing which has been dated 7 September 2005 is entitled “Agreement between D, Z & Z,10 her group and the PQNs we are under”:11 “The PQNS acknowledged D and her group’s point that it is not possible to science accurately when the actual facts of her life, body and health are being interfered with in numerous ways. D experienced multiple and repeated interferences on her body, her partheno, her life, her relationship with Z & Z and her group by the mind-programmers and mozzers associated with her from both the AP and ASR. This is why D, Z & Z and her group called for the end of all varieties of mozzing including the “dumb-dumb relentless mozzing”; the “dumb-smart mozzing” and the “smart-savvy mozzing”. D, Z, Z and her group think that to be truly savvy one needs to have awakened to a sufficient depth of awareness to walk 7 The deceased’s response to the Mental Health Review Tribunal’s “Statement of Reasons” dated 2 August 2006 being “CAB-17” exhibited to Exhibit 15: Affidavit of Catherine Ann Brewer filed 24 March 2009. 8 Exhibit 15: Affidavit of Catherine Ann Brewer filed 24 March 2009 at “CAB-2”. 9 “Dana”. 10 Zarine and Zadore, twin immaculate conceptions incarnating themselves through the deceased as physical beings; see Exhibit A for identification. 11 Exhibit 15: Affidavit of Catherine Ann Brewer filed 24 March 2009 at “CAB-5”. -- 4 of 19 -- 5 free of all Duality Games of which the “Mozzing Duality Game” is one expression. This how come D, Z & Z and her group merited the level of PQN negotiation. No other human being on this planet has ever got this far through the mozzing minefield before as far as I have been told. This means that I am now under my PQNs “savvy negotiation” which actually refers to sciencing what they are interested in studying in relation D, Z & Z.” [17] Another writing from about this time is headed “Circular from the Goddesses Who Oversee the AP & ASR12 and from D to Inter-dimensional Realms”:13 “This is to reinforce what the Goddess Mothers (GMs) alternatively known as Goddesses (Gs) have already circulated of my previous communications and anything else that they have added. This circular has been written by myself (D) and it has also already received the endorsement of the Gs. I do not want any beings from the AP, the ASR, the Infinite One (IO) or the Infinite (I) coming into my space to silently observe me, test me, give suggestions or advice, or to ask questions, or to articulate or to think out loud to themselves what I am awaring. I find all these behaviours very annoying and very stressful. Please note all the previously listed realms are already represented on my CAT team so do not attempt to pressurize your way onto this team. If you have any concerns to pass on to me please convey them to your representative who will then convey them to me so that I can have a balanced and accurate picture about your realms in relation to writing Book 2. There is no need to do this now or soon as I have not yet even completed my first book which can clue you up and aware you a lot more after it is printed.” In that writing the deceased emphasises that any interference with her body is an abuse. She is, it seems, addressing her remarks to some negative beings who are violating her privacy by engaging in annoying behaviours and describes her celestial support group. [18] The deceased consulted with Dr Michael Owens in Cooktown on 17 November 2005 with a variety of complaints including anxiety, depression and claustrophobia. At an appointment on 25 January 2006 Dr Owens’s notes record that he was given a copy of an email sent by the deceased to others describing the psychological and physical ill effects of inter-dimensional abuse. His notes query whether the deceased had a complex alternative philosophical view or was delusional, noting that the content was “somewhat paranoid”. [19] On 7 February 2006 Dr Peter Graf and his wife received an email from the deceased, following an earlier telephone call, stating that there was “something else the ‘evil angels’ or ‘torture thugs’” were telling her that they were doing.14 She wrote: 12 AP – Astral Plane; ASR – Ascended and Spiritual Realm; see Exhibit A for identification. 13 Exhibit 15: Affidavit of Catherine Ann Brewer filed 24 March 2009 at “CAB-4”. 14 Exhibit 31: Affidavit of Dr Peter Graf filed 6 August 2009 at “PG-5”. -- 5 of 19 -- 6 “These evil angels claim (and I have very good grounds to suspect that this is true), that they are doing everything possible to sabotage mum’s natural dying process with view to sabotaging the family inheritance. This sabotage is particularly targetted [sic] at me, so that I can’t pay off my mortgage. Of course this sabotage also adversely affect you, Michael and Andrew and Ingrids [sic] share of the inheritance. It also of course is creating more unnecessary suffering for mum. The way these evil angels report they are sabotaging mum’s natural dying process, is by giving her phoney ‘love embraces’ in her room whilst mindprogramming her to believe that she needs to remain alive in order to help her daughter or to clear more of these evil angels away. At the same time these evil angels have acknowledged to me that they been the major factor behind causing some of mum’s injuries, such as her pelvic fracture injury just prior to my visit to mum last February and also mum’s recent horrible burn injuries. The evil angels also claim they have made her dementia worse than it otherwise would have been, including ‘assisting’ with reducing her vocabulary down to one word.” [20] Shortly after, on 27 February 2006, the deceased emailed one Robert Sniadach, a regular correspondent associated with the Transformation Institute, that the Extremely Evil Angels (EEAs) had declared open warfare on the Australian Psychiatric Association and the American Psychiatric Association during “an inter- dimensional ‘teleconference’ or group conversation which the aware human [the deceased] mentioned…”15 She wrote of “certain psychiatrists” who had caused her to be placed in a psychiatric hospital for involuntary treatment for anorexia nervosa and referenced having a family member who was a psychiatrist. It seems from this that her brother, Peter, is being drawn into her “other world”. She wrote: “The EEAs stated that they have been using various mindprogramming techniques on him, local doctors, psychiatrists and mental health professionals around the region where the aware human in question lives, with a view to getting that individual scheduled for involuntary treatment.” She wrote that the Extremely Evil Angels were “extremely annoyed” and were taking revenge. These angels, she noted, had a vendetta against various groups in the community and placed vegans, as she was, in the first category of those she described as being the subject of “open warfare” by the evil angels. Also included in the list were psychiatrists who were critics of the psycho-pharmaceutical establishment or who refused the agenda of the Extremely Evil Angels. [21] Dr Owens’s notes record that he was contacted by a long time social worker friend of the deceased who described to him disturbing phone calls and emails from the deceased with psychotic content. Other friends contacted Dr Owens concerned for her welfare. A mental health worker and police went to her property where she appeared paranoidally delusional including holding beliefs about harm from food and drink because of the evil angels. Her weight was noted to be down to 41 kilograms. 15 Exhibit 31: Affidavit of Dr Peter Graf filed 6 August 2009 at “PG-6”. -- 6 of 19 -- 7 [22] The deceased expressed her concern to Dr Owens on 2 March 2006 at the illegal use of the Mental Health Act. She was admitted to the Cairns Base Hospital psychiatric ward. A diagnosis of schizophrenia paranoid type was made. She was treated under an ITO and received injections of B12 and commenced on Risperidone Consta. She was described as being floridly psychotic on admission but gradually improved. She then came under Dr Bruce Gynther’s care. The deceased applied for a review of her ITO to the Mental Health Review Tribunal whilst she was in hospital. The Tribunal confirmed the ITO on 10 March 2006. Dr Owens noted on 17 March that “her delusional system is a little reduced but unlikely to disappear”.16 [23] On 23 March 2006 the deceased was discharged from the Cairns Base Hospital under the ITO. She was to take Risperidone Consta orally but the notes record that it was expected that she was unlikely to be compliant and that injections may be necessary. Progress after discharge from hospital [24] Dr Peter Graf arranged for the deceased’s nephew (the son of their deceased sister), Andrew Johansson, to travel from Tasmania and to caretake the deceased’s property while she was in hospital and to remain to assist her. He lived in a shed on the property. The deceased emailed Robert Sniadach complaining about her betrayal by two friends who had sent on her emails about the cosmic battle “I got embroiled in between ‘evil angels’ and ‘true angels’”. She noted that one had sent her email on to “my psychiatrist brother without consulting me”. She did accept that this was done out of concern but that this “concern” had led to her involuntary incarceration. A week later, on 8 April, she wrote again complaining about “the whole experience of betrayal, incarceration, forced drugging and conflict with the mental illness system…” She wrote that she had never experienced such extremes and harassment from authorities in the mental health system. [25] Some weeks later, on 28 April, the deceased emailed her friend John Ebell. She wrote: “My brother who is a bio-psychiatrist and a believer in drug-therapy thought I was psychotic and reported me to the ‘mental illness’ team over here with the result that I was removed from my home by police, thrown in the back of a paddy wagon and taken to Cooktown hospital. There I was drugged against my will and taken down to Cairns Base Hospital on March 2nd where the shrink labelled me ‘schizophrenic’. I was placed on an involuntary treatment order (ITO) and drugged against my will with an anti-psychotic drug. I’ve learnt now that I cannot afford to open up to my brother at all about my spiritual experiences. He appeared open to understanding at first but then he reverted to his psychiatric conditioning. This was my worst nightmare scenario – being held hostage by the psycho-pharmaceutical establishment! The shrinks were not capable of understanding my spiritual journey at all as they reduce psycho-social mental health problems down to deranged bio-chemicals which their drugs supposedly correct.” 16 Exhibit 14: Affidavit of Dr Michael J Owens filed 18 March 2009 at “MJO-2”. -- 7 of 19 -- 8 She questioned the diagnosis of psychotic episode because, in her view, she was undergoing a spiritual crisis at the time. She concluded:17 “Please don’t mention anything to my brother about this as I need to keep my distance from him until I am off this ITO.” [26] On the same day she wrote to other friends explaining that she had been “rather shattered” by recent events when she was placed on an ITO:18 “This happened because my psychiatrist brother and one other person reported me to ‘mental health’. At one stage I opened up to my brother about my recent spiritual experiences as he appeared genuinely interested but in the end he reverted back to his psychiatric conditioning, decided I was experiencing delusions and reported me to ‘mental health’. I’ve learnt from the whole experience that I need to be a lot more discriminating about who I confide in. Originally I had not intended to tell my brother anything but someone in my email list fwded [sic] on some of my emails to him so that is how he got involved.” The deceased described her interaction with mainstream psychiatry as “soul- destroying” because it was in denial of the natural healing intelligence. [27] A document found amongst the deceased’s property noted as being written on 3 May 2006 “in conjunction with these EEAs, Z & Z and the CAT team” is described as a record of an awakening conversation which she had with the Extremely Evil Angels on that day. While the content of the conversation related to the motivation and activities of the Extremely Evil Angels in their sabotaging of goodness, the tone is calmer. [28] The deceased responded to an email from a friend, Jenny Gerrand, on 6 May 2006:19 “Peter had quite a bit to do with me landing up on this ITO but please don’t talk to him about it as I don’t want the whole issue stirred up again with him. I feel the need to keep a distance from him until I am off this ITO. I found the whole experience of being treated as an involuntary patient very humiliating, stressful and opressive. I felt misunderstood and invalidated by the psychiatrists from the outset. What was for me an intense spiritual journey they labelled ‘schizophrenic’.” She noted that her nephew Andrew was helping her around the property and that they got on very well as they shared similar psycho-social spiritual values. She added: “Its [sic] great for me to discover that there is one member of my family that I can relate to on a deeper level.” [29] In an email to another friend the deceased wrote:20 “I felt he betrayed my trust”. She felt that her brother had tricked her into having a “creative conversation” and 17 Exhibit 31: Affidavit of Peter Graf filed 6 August 2009 at “PG-14”. 18 Exhibit 31: Affidavit of Peter Graf filed 6 August 2009 at “PG-14”. 19 Exhibit 31: Affidavit of Peter Graf filed 6 August 2009 at “PG-14”. 20 Exhibit 31: Affidavit of Peter Graf filed 6 August 2009 at “PG-14”. -- 8 of 19 -- 9 realised that after his visit to her he had reported her to the mental health team behind her back. The deceased again described her “brutal” removal from her home by police and of being put in a metal cage in the back of a paddy wagon: “Being placed in the metal cage made me feel like a criminal. Being removed from my home like that felt like something out of Nazi Germany … So my relationship with my brother Peter has also been set back a lot as there has been another major erosion of trust. It will be a long time before I can trust to open up to him at a deeper level. In a sense what happened 17 years ago with my brother and the first incarceration repeated itself … The fact that my brother is a psychiatrist has of course made me more vulnerable to the system. I very much need to protect myself from this ever happening again.” She emphasised that at no time during her “spiritual crisis” did she feel that she was going mad or descending into mental confusion or deterioration. What she did feel was trauma from her encounter with fallen angels and extremely evil angels. [30] When Dr Owens saw the deceased on 12 May 2006 he found no obvious thought disorder or mood disturbance. The deceased was apparently compliant in her oral medication. In an email to another friend that day she described her brother’s involvement in her treatment as going behind her back and faxing three confidential emails to hospital staff so that they were now on her hospital file. She added that it was an example of how her trust and privacy had been broken. [31] Dr Roy West, a consultant psychiatrist with the Remote Area Mental Health Team, conducted a home visit to the deceased on 17 May 2006 and on 30 June prepared a report for the Registrar of the Mental Health Court. At the property she described to Dr West the circumstances of her being hospitalised and pressed upon him that she had at the time been experiencing a spiritual crisis. She described to Dr West being able to see and communicate with evil/fallen angels who were harassing her inter- dimensionally because of her awakened intuitive abilities in contrast to true angels by which she felt protected. She described to Dr West how the evil angels had disrupted her sleep, had caused her not to eat and had altered her bodily functions. She told him that she had met the challenges set by the evil angels and that they now left her alone although she remained in communication with the true angels. Her appetite had returned and she slept well and her bodily functions were no longer affected. [32] The deceased felt that she had achieved good rapport with Dr West and he had accepted her explanation of a spiritual crisis. However, Dr West wrote:21 “… Ms Clare describes experiences with bizarre, persecutory and grandiose delusions, auditory and visual hallucinations over at least a nine month period. The affects of these psychotic experiences had led her to reduce her oral intake such that she had a marked B12 deficiency and this in turn may have exacerbated her mental health symptoms. Her history also demonstrates a marked decline in her functioning given she has been more highly functioning in the past. She meets the DSMIV criteria for schizophrenia-paranoid type, but the nature of her current presentation was one of psychosis exacerbating pre-existing Anorexia Nervosa.” 21 Exhibit 37: Affidavit of Dr Roy West filed 18 August 2009 at “RW-1”. -- 9 of 19 -- 10 Dr West noted, that as a result of her psychosis, the deceased had impaired insight into her symptoms, diagnosis and the outcomes of being treated or of not being treated. She showed poor insight into the dangers associated with her nutritional status at the time of hospitalisation and therefore lacked the capacity to consent to be treated for her illness. Dr West concluded that since all avenues had been exhausted to ensure compliance, the least restrictive treatment path was to commence her on depot medication, Risperidone Consta 25 milligrams each two weeks. [33] A document dated 17 May 2006 in the deceased’s papers described a commitment to Z and Z (Zarine and Zadore) in which the deceased agreed to “leave the physical dimension with them when their human cells reached the age of 10”.22 Injections commence [34] Because the deceased was non-compliant with her oral anti-psychotic medication she was commenced on fortnightly injections of Risperidone Consta with the first injection given on 3 June 2006. She began a campaign believing her human rights had been violated. She wrote to many sympathetic persons that the Extremely Evil Angels were stepping up their campaign keeping her on the ITO through mind programming although, at about the same time, she informed the Mental Health Tribunal that she was no longer experiencing engagement with the Extremely Evil Angels. Nonetheless, her review was unsuccessful. She blamed this on the influence of the evil angels “working behind the scenes on key people”.23 Her next injection was on 26 June. [35] The deceased wrote again to her friend, Jenny Gerrand on 30 June 2006 that she felt her brother Peter did want her to enjoy her lifestyle on her property but that he found it difficult to give her the space and freedom that she needed to be “who and what I am rather than what he thinks” she should be or what is best for her. And again, on 4 July, she emailed Jenny Gerrand that she found it “difficult relating to my family due to their lack of a meta-physical framework even though they are spiritual in their own way”.24 [36] On 5 July the deceased had her next injection. She continued to complain about the forced treatment. [37] In an exchange of emails between the deceased and Peter Graf on 11 and 12 July 2006, they each set out their vastly different views of psychiatry and mental illness, particularly in respect of their own family members. [38] As the time for the next injection approached the deceased and her supporters stepped up their campaign to obtain an injunction restraining the procedure. The deceased gave permission to Ms Danaan to speak with Dr West and was in touch with a Dr Hickey, a barrister in New Zealand. Robert Sniadach emailed the deceased on 31 July 2006 when the time for the next injection time approached that she should leave Queensland or Australia with a view to going to Mexico. She responded on 2 August: “There is a lot more to this situation of the ITO/forced drugging than meets the eye. Keep this absolutely confidential as this sort of stuff gets me into trouble with psychiatry. The worst of the EAs [evil 22 Exhibit 15: Affidavit of Catherine Ann Brewer filed 24 March 2009 at “CAB-8N”. 23 Exhibit 31: Affidavit of Dr Peter Graf filed 6 August 2009 at “PG-14”. 24 Exhibit 31: Affidavit of Dr Peter Graf filed 6 August 2009 at “PG -14”. -- 10 of 19 -- 11 angels] are still on my case and they have been doing what they can to keep me on the ITO and drugs. They have all sorts of sophisticated mind-rape techniques, such that it is difficult for the average person to detect that they are being “worked on”. It’s all still part of their obstruction campaign of the blessings involved in the NW Victory. Still I have faith in the Infinite that this whole thing will play out to the greatest good. The most difficult time for me is the day of the injection and the day afterwards, that’s when I feel myself most thrown off center as the whole ritual of it is such anathema to me that it becomes an ordeal. I usually come back into balance again though.”25 [39] Despite the extensive campaign by many people on her behalf to stop the invasive treatment the deceased had her fourth injection on 7 August 2006. On 9 August Ms Danaan emailed her advising her that her informants had suggested that the deceased negotiate the dosage and/or frequency or move interstate. She wrote that the deceased needed to decide whether she should leave her property at Cooktown until the ITO expired. She offered her home as temporary accommodation suggesting that she would be best advised to let her property and use the income to rent somewhere cheap interstate. She added: “Peter doesn’t have my address and I am not listed in the phone book”.26 The next day the deceased executed the document which she described as her last will and testament. The document of 10 August 2006 [40] The document states: “This is the last Will and Testament of me, Dana Clare of lot 23 Endeavour Valley Rd, Cooktown in the State of Queensland 1. I revoked all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament. 2. I appoint Luan Danaan of Unit 2 31 Pitt st Carlton Vic 3051 to be Executrix and Trustee of this my Will 3. I give, devise and bequeath my share of my estate, namely the property located at lot 23 Endeavour Valley rd to my friend Luan Danaan. I give, devise and bequeath my car registered 499 FFT 973 KNQ to my friend Luan Danaan. I give, devise and bequeath the money in my “Queensland Super” account to my friend Luan Danaan. Dated this tenth day of August in the year two thousand and six. Signed by the Testatrix and for her/his last Will and Testament in the 25 Exhibit 31: Affidavit of Dr Peter Graf filed 6 August 2009 at “PG -14”. 26 Exhibit 15: Affidavit of Catherine Ann Brewer filed 24 March 2009 at “CAB-20”. -- 11 of 19 -- 12 presence of us both present at the same time who at her request and in her presence and in the presence of each other have hereunto subscribed our names as attesting witnesses” [41] The document carries the deceased’s signature. Under it are two signatures, one of the deceased’s nephew, Andrew Johansson, the other of an unidentified person. Andrew Johansson signed the document without knowing it was a will and did not witness the deceased executing it nor did he witness the other attesting witness sign. Several days later he saw the document with his signature lying around the house, but the second attesting witness’s signature was not then on it. A few days later he was asked by the deceased to sign a document which looked the same as the earlier document. After 10 August 2006 [42] The deceased was admitted to the Cooktown hospital on 22 September 2006. Andrew Johanssen was concerned about suicide as she was carrying a Stanley knife. The deceased told Dr Gynther that the voices had stopped. On 29 September she was again admitted to the Cooktown hospital with what Dr Gynther described at the time as a moderate major depressive episode following a “well controlled” psychotic illness. The deceased refused anti-depressant medication as it was inconsistent with her principles. She continued to insist, as recorded in Dr Gynther’s notes, that the past florid episodes were not anything other than a spiritual crisis. [43] When Dr Owens saw the deceased in November 2006 he described her condition as delusional. [44] Dr Gynther recorded on 12 January 2007 that the deceased was no longer experiencing telepathic communications. She attributed this to the incident running its course and that she was no longer being tested in her spiritual struggle. The deceased did admit to him that she may have had some problems with the boundaries between her inner and outer world in the past. She wanted to cease the Risperidone Consta injections but Dr Gynther rejected this proposal as she would likely not be compliant with oral medication. He noted that she was pleasant and co-operative and not distressed when he did not agree to cease injections. [45] In about mid-March 2007 the deceased was writing of and telling people about her plan to leave Queensland to carry out her suicide in Mexico. She was stopped at the Cairns airport on the start of this journey. This was clearly a crisis time for the deceased and for her friends and family. The Cairns Base Hospital notes record a conversation with Ms Danaan in which she recounted the deceased telling her that she had been so traumatised at the thought of being readmitted to the mental health unit that she would rather commit suicide than take anti-depressants on top of the injections. She wanted to liberate herself from her body.27 The notes record that she had no insight into her illness. [46] The deceased was admitted to the Cooktown hospital on 21 May 2007 when she had attempted again to fly to Mexico where she was intent on purchasing drugs as part of her euthanasia plans. Andrew Johansson noted that about this time the deceased had collected assorted apparatus which she could use to commit suicide. The 27 Exhibit 9: entry for 15 March 2007. -- 12 of 19 -- 13 deceased expressed to hospital staff that she was depressed that she was being treated for her spiritual experiences against her will. She was discharged on 7 June 2007. [47] The deceased’s mother died on 30 July 2007. The deceased was a beneficiary of her estate. [48] In August the deceased again asked Dr Gynther to cease her injections of Risperidone Consta. He agreed provided she took other oral medication. The deceased decided against extra medication. [49] On 23 October 2007 the deceased consulted with Dr Gynther in a very distressed state. He described her as follows: 28 “On examination presents thin, tense, wide eyed, frightened, affect restricted, mood depressed and frightened to death, persecutory delusions, thought broadcasting, auditory hallucinations, poor insight into symptoms and diagnosis, but agreeable to take medication.” She told Dr Gynther that the persecution had started again and she was being harassed by malevolent beings who were out to destroy her. She felt watched. Dr Gynther noted that on 5 November she had markedly improved in her mental state and he regarded her agreement to take medication and have B12 supplements as a very positive outcome. [50] In early December the deceased told mental health staff that she was going to visit family in Melbourne and would return at the end of January but she remained and was seen in Cooktown. In January 2008 the deceased’s conduct became more erratic as she engaged in shop lifting and in buying meat based foods. Her neighbours complained of her conduct. [51] On 26 June 2008 the deceased telephoned the mental health team to inform them that she was participating in a meditative retreat in Townsville for three months. She had, in fact, rented a flat in Port Douglas where she died. The deceased wrote a number of notes during this period not all of which need be discussed. She wrote a long “group” letter dated 30 June to her brothers, nephew, Andrew and niece, Ingrid, and to two friends apologising for leaving them in this fashion and explaining her utter misery. She set out the causes of her depression placing first: “Being drugged against my will on the ITO (that made me feel very violated as I have a drug free body).”29 Later she wrote: “I was very happy with my life prior to the involuntary treatment order. That was the turning point that ushered in the negative spiral of depression. Having forced injections was a real trauma for me…” The deceased concluded by mentioning that she had left her property to “Luan” and that she owed a named friend $20,000 and asked that he be repaid. [52] The deceased dated a letter to Ms Danaan 30 June and, amongst other expressions of thanks for her friendship, hoped she would enjoy the property and mentioned to her, also, that $20,000 was owed. 28 Exhibit 10, p 1880-1. 29 Exhibit 29: Affidavit of Peter Graf filed 14 January 2009 at “PG-3”. -- 13 of 19 -- 14 [53] In a second note to a friend, Francesca Spiteri dated July 7, 2008 the deceased wrote: “As part of my last will and testament I’d like to leave you $6,000 from my bank account [numbered]. If I succeed in killing myself contact my brother Peter Graf about this [telephone number] and contact Luan who has my will [telephone number]. I’d like to leave you this money to thank you for all your support over the last several months. I couldn’t have lived without it. Consider it as a type of payment.” On a separate page the deceased wrote:30 “Last Will and Testament I will, bequeath and devise the remaining monies in my bank account [number] to my good friend Francesca Spitiri. July 7th 2008” [54] In a document dated July 8, 2008 the deceased wrote of her despair to Francesca. She again mentioned the forced drug treatment and the ITO:31 “I felt so violated by that as I had a drug free healthy body.” [55] The deceased’s last note was dated July 13. She wrote that her last communications with family and friends were in letters on the table and asked for them to be sent. She left her brother, Peter’s, telephone number. Testamentary capacity [56] There is no dispute between the parties about the principles of law or about the conclusions that might be drawn from the evidence save only the differences of opinion represented by Dr Reddan and Dr Gynther as to whether the deceased’s mental illness was such that she was no longer able to understand and appreciate the claims to which she ought to give effect in her will when she wrote the document on 10 August 2008. [57] Although the scientific understanding of the nature of and cause for mental illness has advanced significantly since the nineteenth century the well known dictum of Cockburn CJ in Banks v Goodfellow32 continues to guide the analysis of the aspect of testamentary capacity at the heart of these proceedings. His Lordship, noting that English law gives complete control to a person over the disposal of that person’s property in contemplation of death, emphasised that the law in return insisted as indispensable that a testator when doing so be in possession “of the intellectual and moral faculties common to our nature”33 Cockburn CJ continued:34 “Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason 30 Exhibit 29: Affidavit of Peter Graf filed 14 January 2009 at “PG-2”. 31 Exhibit 29: Affidavit of Peter Graf filed 14 January 2009 at “PG-2”. 32 (1870) LR 5 QB 549. 33 (1870) LR 5 QB 549 at 566. 34 (1870) LR 5 QB 549 at 565–6. -- 14 of 19 -- 15 and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand. But what if the mind, though possessing sufficient power, undisturbed by frenzy or delusion, to take into account all the considerations necessary to the proper making of a will, should be subject to some delusion, but such delusion neither exercises nor is calculated to exercise any influence on the particular disposition, and a rational and proper will is the result; ought we, in such case, to deny to the testator the capacity to dispose of his property by will? …If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right?…If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.” [58] Justice Mandie, in a recent decision in the Supreme Court of Victoria,35 has reviewed numerous authorities since Banks v Goodfellow. It is, I think, unnecessary for the resolution of this proceeding to go further than Banks v Goodfellow. The question is did the delusions to which the deceased was prey prevent her mind from acting “in a natural, regular and ordinary manner”?36 Because the disposition of all the property of which she stood possessed at the time when she executed the document dated 10 August 2006 to her friend was not bizarre or irrational of itself, it has been necessary to examine more closely than might otherwise have been called for the evidence about her approach to her family personified in her brother, Dr Peter Graf and also to Andrew Johansson. Non-medical witnesss [59] There are a number of witnesses who were friends or supporters of the deceased who provided affidavits but who were not required for cross-examination. In truth their evidence is of little real assistance in this matter. To some the deceased expressed her unhappiness with her brother, Peter Graf and his part in her ITO as well as her general dislike of psychiatry. From all she enlisted support in her attempt to be taken off the ITO. She seemed to them rational in her objection to her forced treatment and, until towards the end of her life, able to manage competently enough the “simple” lifestyle she had chosen. 35 Brown v Sandhurst Trustees Ltd [2009] VSC 212. 36 In the Will of Wilson (1897) 23 VCR 197 per Hood J at 199. -- 15 of 19 -- 16 [60] The evidence of Andrew Johansson was of assistance. He lived with the deceased for approximately 18 months on her property and was, effectively, on suicide watch. She trusted him and confided in him about her experiences with, for example, the Extremely Evil Angels, with whom he observed her conversing. His evidence was to the effect that he “went along” with many of the deceased’s ideas in order to support her and, impliedly, for a quiet life. He became quite exhausted living so close to her, particularly as she collected apparatus for committing suicide. He eventually moved away from the property. [61] Dr Peter Graf kept in relatively close contact with his sister. He provided his nephew with money so that he could more adequately look after the deceased. The deceased thought that the money came from Andrew but since he did not work for remuneration she may have suspected its true source. Dr Graf was concerned for his sister’s welfare, and rightly so. But, apart from one email where he expressed himself rather forcefully in response to the deceased’s complaint that the Extremely Evil Angels were keeping their mother alive so that she, the deceased, was deprived of her inheritance, the tone of the email communication is reasonably respectful and an acceptance that they did not share points of view on matters of mental health is conveyed in a measured tone. [62] Amongst numerous friends it seems clear that Ms Danaan occupied a special place with the deceased. They had shared a long friendship over more than 30 years. They had views in common about many things including a deep respectfulness for the other’s points of view even when not shared. They did share a strong dislike of drug treatment for physical and mental ailments and commended the benefits of natural medicine and herbal healing. Ms Danaan did accept that the deceased was dangerously depleted when she was admitted to hospital in Melbourne in 1989 at the behest of her brother. [63] Against that background the email written by Ms Danaan to the deceased on 9 August can be considered. The deceased received it two days after the injection on 7 August the happening of which indicated a complete failure of the campaign which the deceased had waged involving the support of a large network of friends and friends of friends around the world to have the ITO or, at least, the injections, suspended. Ms Danaan advised the deceased that a contact, a former lawyer colleague with experience in the field of mental health, suggested that the deceased move interstate or negotiate the dosage and/or frequency of the medication. Ms Danaan offered to house her although mentioned the difficulties of her staying indefinitely because of the animals. She offered other practical advice about renting her property to provide her with an income. Ms Danaan particularly noted that the deceased would be, in effect, safe from Peter Graf if she came to her. [64] It was an email full of practical assistance as well as deeply sympathetic. Ms Treston submitted that this communication the day before the deceased wrote out her purported will served to illustrate to the deceased that there were those who supported her and her quest to have the ITO discontinued, namely Ms Danaan, and those who were against her, namely Dr Graf. It is a submission well made and found support in the evidence of Dr Gynther to which I will make further reference. The expert psychiatric evidence [65] Dr West provided a report but was not required for cross-examination. His evidence and conclusions have been discussed above. -- 16 of 19 -- 17 [66] Dr Reddan provided three reports of 14 June 2009, 30 August 2009 and 16 November 2009.37 Dr Reddan was provided with a large body of material which she mentioned in her report. She may not have had the advantage of all of the deceased’s writings but some with which she expressed no familiarity had been made available to her. She laboured under a significant disadvantage compared to Dr West and Dr Gynther because she had had no clinical encounter with the deceased. [67] In her first report Dr Reddan opined38 that the deceased’s own statements and writings did not reveal that: “…she was harbouring any specific delusion or thinking about any family members and there is no evidence that her family members, her friends or her acquaintances were incorporated into her psychotic thinking. Additionally, although it is likely that Ms Clare was unhappy about her brother’s role in her earlier treatment, there is no evidence that she ever prevented or forbid [sic] see any of the medical staff from contacting any of her family members nor that any unhappiness with any of their earlier behaviours was reflective of any morbid animosity or hostility. There is no evidence that Ms Clare was preoccupied with blaming any family members for her regulation under the Mental Health Act during early 2006.” In cross-examination Dr Reddan conceded that evidence in the deceased’s writings, some of which have been set out above, supported the conclusion that the deceased had, indeed, incorporated her family into her delusional thinking. [68] Furthermore, there can be little doubt that the deceased did blame Dr Graf and, reproachfully, those of her “misguided” friends who had sent on her emails to him, for the ITO. The emails and other writings referred to above are replete with such references and, in relatively strong terms. It may be, that Dr Reddan was led into her conclusion that the deceased was not preoccupied with blaming family members for her regulation under the Mental Health Act because she took the word “poison” as used by Sir Alexander Cockburn in Banks v Goodfellow to mean “having hostility or morbid animosity” towards her family. “Poison” can have that meaning but can also encompass something less strong as the examples offered in the Oxford Online English Dictionary demonstrate, e.g.: “Did you by indirect and forced courses Subdue and poison this young maid’s affection?”39 Dr Reddan may have not well understood that the deceased was a well educated and courteous woman described as very polite by the witnesses, whose discourse was never, so far as the written and oral evidence revealed, peppered with the more usual language of hostility with which animosity is conveyed. [69] Furthermore, helpful as the dictum in Banks v Goodfellow is, it should not be elevated to statutory authority. What Cockburn CJ identified as the relevant enquiry was whether a testator was able to comprehend and appreciate the claims to which the testator ought to give due consideration. To do so, the testator needed to be 37 Exhibits 22, 23 and 24 respectively. 38 Exhibit 22, p 8. 39 Shakespeare, Othello (I, iii, 112). -- 17 of 19 -- 18 possessed of a mind capable of weighing the claims of those members of her family and others to which she ought give effect. While maintaining that the deceased, as at 10 August 2006, was “not completely hostile or poisoned against all of her family members” Dr Reddan did concede that the deceased would “certainly … have … found it difficult to weigh up” those considerations.40 [70] Dr Bruce Gynther had treated the deceased from 2 March 2006 until her death although the deceased had largely separated from the mental health treating team by the last few months of her life. In his first report of 4 December 200841 Dr Gynther wrote: “… At the time that Ms Clare wrote this will [10 August 2006] she had no insight into her diagnose of schizophrenia, no insight into the nature of her past symptoms, and no sight [sic] into her need to take anti-psychotic medication.” [71] He expanded on this in his second report when further material was available to him.42 He wrote “In summary, at the time Ms Clare wrote her Will she had active symptoms of psychosis. She believed that Evil Angels were involved in keeping her on an ITO and on treatment with anti- psychotic medication. She believed that her brother was being influenced by Evil Angels, and felt that her brother had betrayed her trust when he had taken steps to arrange treatment for her. She had no insight into her symptoms, into her diagnosis, or into her need for treatment. She was convinced that she was having spiritual experiences, and was being unjustly treated with anti-psychotic medication. Her lack of insight deprived her of the capacity to understand that her brother had acted in her best interest. She had initiated a strenuous campaign to prevent involuntary treatment, recruiting support from around the world.” [72] Dr Gynther observed that even though the Risperidone Consta injections ceased from October 2007 and thereon was treated only with oral medication (which could not be enforced under a community ITO) the deceased persisted in focussing on the ITO and the injections. He described her approach to this treatment as “fixed and unchanging and dominated her life”. Because she would not engage with her treatment Dr Gynther found it impossible to improve the therapeutic alliance with her. [73] Dr Gynther was of the view that although the deceased did exhibit concern for her family and friends in her suicide notes, her capacity for true empathy was affected by her illness. He illustrated this by her attitude to Andrew Johansson who had come from Tasmania to assist in her care. She spoke repeatedly to him of suicide and left suicide apparatus around the property. This caused him great distress, bearing in mind that his own mother had suicided when he was a child. She would have been aware of his poor financial circumstances and there is no suggestion that there was any falling out between them. Her failure to make any provision for him 40 Transcript 1-72. 41 Exhibit 35. 42 Exhibit 36. -- 18 of 19 -- 19 would certainly support the conclusion that she had little insight into how testing the experience had been for him to stay with her. [74] As Ms Treston submitted, the deceased could have left her estate to any person she chose, bearing in mind that she was unmarried and without children or other dependents. But the issue is whether her mind was affected by her psychotic delusions such that she was unable to weigh the various claims of her family and friends and make a rational decision about the disposition of her estate. The answer must be that her mind was so encumbered. Other writings capable of testamentary intent [75] Two of the expressions of testamentary intent contained in the various suicide notes should be considered. The letter to Frances Spiteri dated 4 July 2008 includes: “As part of my last will and testament I’d like to leave you $6,000 from my bank account … if I succeed in killing myself.” That expression of intent is followed by the single document set out above: “Last Will and Testament I will, bequeath and devise the remaining monies in my bank account … to my friend Francesa Spiteri.” Ms Spiteri although aware of these proceedings was not represented. Mr Goodwin did not seek to argue that at the time when the deceased wrote those expressions of intent she was of sound mind sufficient to enable her to recall that she had purported to dispose of her estate to Ms Danaan or to weigh the proper claims upon her bounty. The evidence does not support any conclusion other than testamentary incapacity. Conclusion [76] The finding that the deceased did not have testamentary capacity to make the document of 10 August 2006 as her will has the consequence that letters of administration on intestacy should issue to Peter Graf and Michael Graf. [77] The parties wish to be heard on the issue of costs. -- 19 of 19 --