Atthow & Anor v Mylett & Ors [2000] QSC 173

SUPREME COURT OF QUEENSLAND CITATION: Atthow & Anor v Mylett & Ors [2000] QSC 173 PARTIES: WILLIAM THOMAS ATTHOW and ROBERT BLAIR ATTHOW (Plaintiffs) v STEPHEN JOHN MYLETT, JAMES LAURENCE MYLETT, MARY MARGARET DUNN, FRANCIS JAMES MYLETT, MAUREEN ANN BALDWIN and MARGARET ANNE EDWARDS (Defendants) FILE NO/S: S 7357 of 1998 DIVISION: Trial Division PROCEEDING: Claim and counterclaim DELIVERED ON: 15 June 2000 DELIVERED AT: Brisbane HEARING DATE: 7, 8, 9, 10, 11 and 18 February 2000 JUDGE: Wilson J ORDER: (1) That the First Plaintiff’s name be removed from the proceeding; (2) That probate of the will of Thomas Joseph Mylett dated 8 January 1997 issue, subject to the formal requirements of the Registrar; (3) That the counterclaim be dismissed; (4) That the Defendants’ cost of and incidental to the proceeding be assessed on the indemnity basis and be paid out of the estate. CATCHWORDS: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – TIME AT WHICH SOUND MIND NECESSARY – Testator subject to fluctuating delusions and hallucinations during seven months prior to the making of his will and subsequently - whether testamentary capacity affected by delusions when the will was made – evidence relevant to proving soundness of mind at the relevant time -- 1 of 16 -- 2 Banks v Goodfellow (1869-70) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Symes v Green (1859) 1 Sw & Tr 401 Timbury v Coffee (1941) 66 CLR 277 Mental Health Act 1974 s 55 COUNSEL: K R Geraghty for the Plaintiffs N E Ulrick for the Defendants SOLICITORS: W T Atthow for the Plaintiffs Steindls for the Defendants [1] Thomas Joseph Mylett lived alone on his farm at Beaudesert until a few months before his death on 3 September 1997, at the age of 87. Towards the end of his life he suffered from such delusions and auditory hallucinations that his capacity to make a will has been called into question. [2] This proceeding is for probate in solemn form of his will made on 8 January 1997. It is brought in the names of the executors appointed in the will (the first of whom died after the issue of the writ). The defendants are cousins of the testator on his father’s side of the family. There is a counterclaim by those cousins for a grant of administration of the estate on the basis that they are the only persons entitled on an intestacy. The will [3] The will was drawn by the first plaintiff, a very experienced solicitor, and its execution was witnessed by him and the second plaintiff, who was also an experienced solicitor. The testator left the bulk of his estate, which was worth approximately $1.5 million, to the Princess Alexandra Hospital and the Beaudesert Hospital. More particularly, the estate consisted of landholdings worth approximately $1.3 million, shares worth approximately $9,500 and cash deposits of approximately $208,000. After making cash bequests totalling $140,000 to his cousin Francis Mylett, the 5 children of Francis, his cousin Maureen Baldwin, his neighbour James Walsh, St Mary's Parish Beaudesert, Beaudesert Day Care Centre, Beaudesert Blue Nurses Centre, Beaudesert Ambulance Centre and Wongaburra Garden Settlement, he left two-thirds of the value of his real estate and livestock to the Princess Alexandra Hospital for cancer research and study and one-third to the Beaudesert Hospital for general improvement purposes, and he left the residue equally between the Princess Alexandra Hospital and the Beaudesert Hospital. Background [4] Until about 1930 the testator lived with his parents and only sibling (his sister Marie) on a property at Linville near Nanango; then his father inherited "Josephville", a cattle property at Beaudesert, from an uncle and they moved there. His parents died in the early 1950’s, and he and Marie succeeded to the property in equal shares. They continued to live there until Marie's death in 1989 and the -- 2 of 16 -- 3 testator’s admission to the hostel at the Wongaburra Garden Settlement in November 1996. Neither of them ever married or had any children. [5] The testator was a man of integrity and humility. He was somewhat of a solitary figure, particularly after his sister’s death. The house in which he lived was old and apparently with few modern amenities; for example, electricity was not connected to it until after she died. "Josephville" adjoined "Killeen", the cattle property run by the testator’s cousin Francis Mylett and his family. According to Francis, the testator was not a good stockman, and down the years Francis and his sons assisted him with dipping, branding, vaccinating, retrieving escaped cattle and fencing, not charging anything for their labour until about 1993. Francis' daughters assisted the testator in various other ways. Maureen Baldwin, Francis' sister, lived in the town of Beaudesert, and the testator used to visit her and her family every month or so and stay for lunch, and she would ring him once a month. He had fairly regular contact with Stephen John Mylett ("John") up until 1967, when John and his wife moved away from the Beaudesert district; thereafter the contact was much reduced. Otherwise he seems to have had little to do with his cousins for most of his life. He was suspicious by nature, and always reluctant to disclose much of his personal affairs to any of his cousins. [6] On the other hand, he trusted disinterested professional advisers such as Dr Glover, the medical superintendent of the Beaudesert Hospital who treated him on and off from the early 1980’s, and Ms Vicki Everson, his accountant. Ms Everson was impressed by his understanding of his business affairs, at least in about 1994. The staff at the day care centre which he attended regularly from about 1994 until he died described him as a gentle, shy, reserved man with a sense of humour; he was generous and intelligent, with a good general knowledge and a keen interest in other countries (although he had never travelled) and a liking for board games and card games. [7] For many years the testator had a fairly close relationship with the Beaudesert Hospital. If he needed any medical attention, he would go to the hospital rather than a private medical practitioner; he presented quite frequently for minor complaints, and if he needed referral to a specialist, he would be admitted to the hospital a day or two before, even though he had not immediate need of hospitalisation, and stay in a hospital bed until he was transported to his appointment. He underwent vascular surgery on his left leg, and had various skin cancers removed from his face. The day care centre was adjacent to the hospital, and he was often seen outside waiting for the day’s activities to start. In this way he became well known to Dr Glover and to Dr Mulcahy, a general practitioner on the staff of the hospital, who subsequently went into private practice and attended him when he was in the Wongaburra Hostel. The last 15 months of his life [8] In 1996 the testator was admitted to the Beaudesert Hospital in a psychotic state three times - for three weeks from 7 June, for 6 days from 20 July and for 17 days from 5 November. At the conclusion of the last period he was discharged to the hostel section of the Wongaburra Garden Settlement, initially as a respite patient, where he lived until he died. -- 3 of 16 -- 4 [9] On 5 December 1996 a psychiatrist, Dr Robert Lea, certified him as a person who was mentally ill and incapable of managing his estate pursuant to the Mental Health Act 1974. As a result, the Public Trustee took over the management of his estate. [10] The disputed will was made on 8 January 1997. [11] There was a further psychotic episode in late January – February 1997, when he was again admitted to the Beaudesert Hospital. [12] Until his death he attended the day care centre regularly three times a week, and participated in outings and other activities. Throughout the entire period there was no abnormality of behaviour or thought expression noted by any of the staff of the centre. [13] The Public Trustee sold the contents of his house and his cattle and farm equipment, and advertised the farm for auction. However, as a result of further psychiatric assessment in August 1997, the Public Trustee ceased to manage the estate, and the auction did not proceed. [14] The testator died suddenly on 3 September 1997 as a result of a stroke. Proof of testamentary capacity [15] The classic definition of testamentary capacity is that formulated by Cockburn CJ in Banks v Goodfellow (1869-70) LR 5 QB 549 at 565: “It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.” The ultimate onus of persuading the Court that the will ought to be upheld rests on those who support the will, although there is an evidentiary onus on those who oppose it to raise matters going to lack of testamentary capacity. Where an insane delusion is established, it is for those who support the will to establish affirmatively that it did not influence the will. In Timbury v Coffee (1941) 66 CLR 277 at 283 Dixon J cited with approval this passage from the judgment of Cresswell J in Symes v Green (1859) 1 Sw & Tr 401 at 402; 164 ER 785 at 785-6: “If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the Court must be against its validity, unless the evidence on the whole -- 4 of 16 -- 5 is sufficient to establish affirmatively that the testator was of sound mind when he executed it.” See also Bull v Fulton (1942) 66 CLR 295 at 343 per Williams J and 299 per Latham CJ. Delusions and Hallucinations [16] At the times of his admission to the Beaudesert Hospital in the second half of 1996 the testator had a variety of delusions and auditory hallucinations. One fairly consistent theme was that his cousins were trying to harm him and or that they were stealing his cattle. On the evidence there was no suggestion that they were in fact doing so, and it was conceded by counsel for the plaintiffs that they were not doing so. He submitted that the circumstances in which two cattle died may have aroused suspicion in the mind of a naturally suspicious person such as the testator, and that he may not in fact have suffered any relevant delusion. I have concluded from the evidence that there were times when he suffered delusions to this effect. However, the issue for determination is whether he was influenced by any such delusion when he made the will. Another recurring theme was the presence of sailfish in the skies above his property, but there is no evidence that a delusion to this effect, even if present when he made the will, influenced him in any relevant respect. [17] At the time of his admission to hospital in June 1996 the testator was labouring under several persecutory delusions. He told hospital staff that he was hearing voices talking about murdering his sister and talking about his cousins trying to murder him. The next day he said that his sister and cousins had conspired against him, and that they were trying to murder him by using a modified douching tube to blow arsenic into his eyes. At times he was catatonic. [18] In July 1996 he said that someone was out to get him, that poison had been blown on to his right cheek by an unknown person, and that two of his bulls had been stolen. [19] In November 1996 he requested admission to the hospital, saying that he had had two bad nights sitting up with a shotgun. He described a friendly sailfish 528 feet in length which lived up Bennetts Gully Creek and which rubbed and licked its friends including horses. Recently a visiting sailfish from Brazil 5,000 feet in length had been fighting with the local sailfish in the skies above his property. He expressed concern also that his relatives (possibly the Dunns) had been stealing his cattle. The delusions persisted for several days. A few days after his admission he seemed to be having auditory hallucinations, saying that God was giving him orders. He was given the anti-psychotic medication Haloperidol which was subsequently changed to Risperidone. Dr Glover formed the view that he could not continue to live alone and manage the cattle property. He contacted Francis Mylett and Maureen Baldwin, and made a note of steps to be put in train. A social worker, Heather Heidke, interviewed him on 18 November 1996. He was adamant that he could care for himself and did not want to discuss the possibility of moving somewhere where he would be looked after. He did not wish to give anyone a power of attorney, because he did not know who would be the recipient; he did not want the recipient to be his cousin. He did not want his mail redirected to his cousin. He thought that his cattle did not need attention, as they had water and -- 5 of 16 -- 6 feed, although some of them could be “walking”, for which he blamed his cousin. When asked why he was in hospital, he replied that the police and his cousins were “in cahoots”; that the police wanted him in hospital so that they could go through his house looking for past tax returns; and that his cousins were “at the bottom of trying to get everything”. The next day he told Dr Glover that he would consider the Wongaburra Garden Settlement on a trial basis, and that he wished to purchase more land to expand his property and then sell the lot. His auditory hallucination about God had ceased, but the delusion about the Brazilian sailfish remained (without causing him any distress). His concerns that his relatives were killing and stealing his stock persisted. He did not want to hand over his affairs to the Public Trustee yet. On 21 November 1996 he was discharged to the hostel section of Wongaburra. Admission to Wongaburra [20] Initially the testator was placed in Wongaburra on a temporary “respite” basis; about a month later he accepted the invitation of Ms Heron, the director of nursing, to become a permanent resident. On the day she offered him permanent placement, they had a wide ranging and rational discussion, which covered the comparative merits of different breeds of cattle, why he had never married, his ancestry, payment of an entry fee - which told her not to worry about because he was worth a lot of money, and his intention to donate money to Wongaburra and to cancer research - because women "get cancer in funny places." Although Ms Heron could not remember the date of that conversation, she said it was before the Public Trustee became involved in the management of his estate, and before Mr John Clarke, a solicitor, visited him about making a will. Assessment by Dr Lea [21] On 5 December 1996 the testator was seen by Dr Peachey, a medical officer at the Beaudesert Hospital, who noted that he had no frank (ie outwardly manifest) hallucinations or delusions. [22] By arrangement, the testator attended at the hospital on 10 December 1996, when he was seen by Dr Robert Lea, a psychiatrist on the eve of his retirement from the Community Mental Health Centre in Beenleigh. The purpose of the examination was to assess his capability of managing his affairs within the meaning of s 55 of the Mental Health Act. [23] When Dr Lea arrived, the testator was in bed. Dr Lea got him up and they went into another room where they talked for about an hour. He was generally co- operative and ready to talk about some of his delusions, but not to talk about his relatives to the same extent. He told Dr Lea about the sailfish. He claimed to have been swindled by his relatives, a cousin in particular, and said that he was denying them access to his farm. [24] Dr Lea completed a written form expressing the opinion that the testator was mentally ill and incapable of managing his estate. He wrote: “Mr Mylett has a fixed delusional belief that an enormous sailfish 528 ft long inhabits his property and believes that his cousin is bent -- 6 of 16 -- 7 on swindling him & is taking his cattle. I have discussed the latter belief with the social worker Heather Heidke & with Dr T Mulcahy neither of whom knew of any evidence to support this belief.” Instructions to Mr Clarke [25] Mr John Clarke, a local solicitor who had acted for the testator since 1989, interviewed Francis Mylett and Maureen Baldwin on 21 November 1996 to ascertain the testator’s property and the potential beneficiaries of any will which he might make. On 16 December Mr Clarke received a telephone call from a staff member at Wongaburra; he arranged to see the testator at Wongaburra at 8 am the next day. [26] The next morning Mr Clarke spent 30 to 40 minutes with the testator, who gave him instructions to draw an enduring power of attorney in favour of Francis Mylett, Maureen Baldwin and Mr Clarke jointly, and a will. Mr Clarke had learnt from Dr Glover that the testator had had episodes of paranoid delusions, but as a lay observer he did not detect any deterioration in his mental capacity. He described the testator as lucid and firm in his instructions. Despite being advised that the estate should be left to the families of his uncles and aunts on his father’s side, the testator wanted it to be disposed of as follows: Francis Mylett $ 20,000-00 Maureen Baldwin $ 16,000-00 Mark Mylett (son of Francis) $ 16,000-00 St Mary's Catholic Church $ 16,000-00 Wongaburra Society $ 10,000-00 Day Care $ 5,000-00 Blue Nurses $ 2,000-00 Cancer Research $150,000-00 $235,000-00 The residue to be divided equally between the Beaudesert Hospital and the Princess Alexandra Hospital. He wanted the property sold. He wanted Mr Clarke, Francis Mylett and Maureen Baldwin to be his executors. Mr Clarke said that he explained to the testator that because of his “stressed condition”, the will would have to be witnessed by a medical practitioner. The testator said Dr Glover would do that. [27] As Mr Clarke was leaving Wongaburra, he was informed by one of the staff that the testator’s affairs were being managed by the Public Trustee. Accordingly, he took no steps to prepare a will. [28] In response to an inquiry from the Public Trustee’s office, on 24 December 1996 Dr Glover wrote - -- 7 of 16 -- 8 “I examined this man on the 19th of November 1996. I have been involved in his medical care for many years. He has developed some fixed delusions including some paranoid delusions involving his relatives. Therefore I consider him to be unable to write a will while these delusions persist.” Dr Glover had not examined him since 19 November 1996. The hospital records include notes of an attendance on Dr Mulcahy on 18 December 1996 for the removal of sun cancers, but no mention of his mental state. Instructions to Mr Atthow [29] On 6 January 1997 the testator attended the hospital again for some physical complaints, but there is no mention in the records of his mental state. On the same day he telephoned the office of the first plaintiff and made an appointment to see him at 10 am on 8 January 1997. He was not previously a client of the practice, but he especially asked for the first plaintiff. [30] The Wongaburra records do not contain any entry about the testator for 8 January 1997. The notes for 2 and 3 January 1997 make no mention of his mental state apart from recording that he dressed and groomed himself and was very independent. Those for 7 January 1997 relate to medical tests for physical problems. [31] The first plaintiff died before the trial, but a short diary note made by him on the day the will was made was put into evidence, as well as a letter he wrote to the Public Trustee on 17 February 1997. The second plaintiff, who witnessed its execution, gave oral evidence. Neither of them was aware of the Public Trustee’s involvement until after the will was made. The first plaintiff advised the Public Trustee:- “It appeared to both [the second plaintiff] and me that Mr Mylett was in full possession of his faculties and knew exactly what he was doing and what he wanted." [32] When the first plaintiff arrived at his office at 9 am on 8 January 1997, the testator was there waiting for him. They went straight into the first plaintiff’s office. The testator handed the first plaintiff instructions for his will. They discussed the amount of the bequests and the testator reduced two of them to ensure that there were sufficient cash funds. He wanted the first plaintiff to be his trustee; the first plaintiff suggested that there should be two, and the testator agreed to the second plaintiff as the second one. The second plaintiff was called into the office briefly and his consent was obtained. The testator wanted the will prepared immediately so that he could sign it. That was done and he read through it, asked a couple of questions about standard clauses and remarked on the girls’ legacies being separate rather than joint. The second plaintiff was called into witness the will, which was signed at about 10.15 am. The testator advised where his bank account, deeds and documents were held, and that Gillow & Teese were his accountants. -- 8 of 16 -- 9 [33] The second plaintiff then drove the testator from the office to the day care centre. The trip took about 5 minutes during which they chatted. The testator said that he was upset that he was not eligible for the pension because of his assets, even though he could not make a reasonable living out of the farm. When asked for his impression of the testator’s mental state, the second plaintiff replied, “He appeared to me to be a normal person.” [34] The testator then went on an outing to Paradise Point organised by the day care centre. Staff who went on the trip did not observe any abnormal behaviour on his part. [35] Coincidentally, on the very day he made the will the Public Trustee began clearing out the contents of his house. This took several days. Knowledge of the Public Trustee's role [36] The evidence does not expressly reveal when or in what circumstances, if at all, the testator learnt that the Public Trustee had taken over the management of his affairs, including clearing out the contents of his house and selling them, selling his cattle and preparing to sell his land. The prospect of the Public Trustee becoming involved had been raised with him while he was in hospital in November 1996, and Dr Lea explained to him why he was assessing him. [37] There is an entry in the Wongaburra notes of 4 February 1997 made by the director of nursing that Mr Forbes of the Public Trustee’s office was to visit the testator on 13 February 1997. The entry went on: “Please tell Tom on the morning of the intended visit ONLY, not before, as he goes away each time they (Public Trust) come to see him.” [38] On 17 February 1997 Dr Mulcahy wrote to Dr Bruce Gynther, a psychiatrist with the Logan-Beaudesert District Health Service, seeking a second opinion on the testator’s capacity to make an informed decision. He told Dr Gynther of the Public Trustee’s involvement, and went on: “This property is now up for auction & given its size & position & the history of it as an original selection by Tom’s grandfather has provoked some outrage among Tom’s distant relatives.” [39] According to the hospital records of 18 February 1997 someone from the Southport office of the Public Trustee was to visit the testator in a few days’time. [40] In the circumstances I infer that the testator learnt what was happening by late January 1997. Further psychotic episode [41] On 10 January 1997 the testator attended the hospital for physical complaints. There is no mention in the hospital records of his mental state. [42] He developed a flu-like viral infection and was admitted to hospital on 17 January 1997. He was discharged three days later, and attended the day care centre. However, some of the flu-like symptoms persisted. -- 9 of 16 -- 10 [43] On 26 January 1997 he remained in his room instead of going to breakfast. When asked why, he said that he had had an operation in America a day or two before. He continued to be confused over the next few days. He refused to take medication for his cold claiming it was poison, and asserted that the food at Wongaburra was being poisoned. He had a number of bizarre conversations with staff and other residents - for example, that he had pins in his hip and multiple needles placed in his body by the Chinese, that Dr Needham had placed needles in his head, that he was to have an operation upstairs late one night and that he had ordered tea for his next-door neighbour who had died five years previously. [44] At the time of his admission to Wongaburra, the testator was still being prescribed Risperidone. He was responsible for his own medication, and staff left the bottle of tablets with him to take as prescribed. When he started to exhibit this abnormal behaviour, they checked the number of tablets in the bottle, and realised that he had not been taking his medication. [45] The testator was readmitted to the Beaudesert Hospital on 11 February 1997, and the dosage of Risperidone was increased. He settled down, but on 18 February 1997 Dr Peachey noted that he expressed concerns about food poisoning at Wongaburra and that his delusions were the same. He was discharged to Wongaburra the next day. [46] On his return to Wongaburra the testator remained suspicious of staff and fellow residents. He continued to dispense his own Risperidone; there is a note made by the director of nursing on 20 February 1997 that staff should ask him to take it in their presence. Dr Mulcahy visited him on 7 March 1997 (a week after commencing private practice). He noted no demonstrable improvement on Risperidone and increased the dosage. Further visits to the plaintiffs’ office [47] On 18 March 1997 the testator called into the plaintiffs’ office without an appointment. He asked to see the first plaintiff, who was out of the office. When told this, he agreed to wait for the second plaintiff who was expected to be in in about five minutes. He told the receptionist that he “had an urgent problem with Wongaburra... they wanted him to pay them $100,000”. He also mentioned the police searching his house, and said that he had been in hospital for two weeks. When the second plaintiff returned to the office, he spoke with the testator for about 20 minutes. The testator said he wanted to sell his farm, buy a house in town and move into the house from Wongaburra. He objected to the Public Trustee’s quote for the costs of selling the farm, which he said was $150,000, as opposed to an agent’s quote of $3,000. He was dissatisfied with his certification by a psychiatrist and Dr Glover, and said that Dr Mulcahy disagreed with it. He said he wanted to leave Wongaburra, but they would not let him. He wanted to move back to his farm in the interim. He said his cousins had sold his bullocks and wanted him dead. He said he would contact Dr Mulcahy and discuss his certification with him. According to the second plaintiff, the testator was coherent and appeared to be fully aware of his circumstances, certainly as regards the Public Trustee and his certification, although he seemed to think that Wongaburra could hold him against his will. He knew who he was and where he was. -- 10 of 16 -- 11 [48] The second plaintiff saw the testator again on 6 and 7 May at the front counter of his office, when he advised him that there was nothing he could do while his affairs were being handled by the Public Trustee. Later, in August 1997 after the Public Trustee had withdrawn from management of the testator’s affairs, the second plaintiff took instructions from him in the presence of Mr Lex Dunn for the preparation of a power of attorney. According to the second plaintiff, nothing changed in the testator’s demeanour at any time he saw him; there was never anything untoward in his behaviour. On one occasion (probably 18 March 1997) the second plaintiff rang Dr Mulcahy before speaking to the testator, and as a result threw into the general conversation something along the lines:- “Mr Mylett, what can you tell me about the giant sailfish living in the lagoon?” The testator’s reply was:- “You don’t want to believe everything you hear, boy.” [49] Meanwhile, on 21 March 1997 Dr Mulcahy noted that his sleeping and eating had improved, and that his delusions were “ISQ” (in status quo, or unchanged). Assessment by Dr Gynther [50] On 14 July 1997 the testator signed a letter addressed to the Public Trustee advising that he did not wish the sale to proceed, and that he was arranging an enduring power of attorney so that the affairs of his remaining estate could be conducted in a manner that accorded more with his wishes. The letter was sent by facsimile from the office of the local newspaper (where Francis Mylett’s daughter-in-law worked) the next day. [51] On 18 July 1997 the testator was interviewed by Dr Gynther, the psychiatrist from whom Dr Mulcahy had sought a second opinion about his ability to manage his affairs. In Dr Gynther’s opinion the testator had a good understanding of his current affairs regarding his property and the impending sale by the Public Trustee. He did not trust the Public Trustee, but the mistrust was not based on any psychotic belief. He said he wanted to sell the property himself, most probably in the near future. According to Dr Gynther his motivation to sell the property was affected by persecutory delusions regarding his cousins. With little prompting, Dr Gynther elicited the delusion about the sailfish and delusions that his cousins had tried to kill him by shooting bullets through his keyholes, that they had tried to kill the sailfish, and that they had recently tried to poison his food at Wongaburra. He said they had done this to gain possession of his property. He described past but not present auditory hallucinations. In Dr Gynther’s assessment he had no insight into his delusions and his judgment regarding matters affected by the delusions was poor. [52] In his report written on 28 July 1997 Dr Gynther said:- “Testamentary Capacity: Mr Mylett has a good understanding of the extent of his estate and of the relatives that might benefit from his estate in the future. His -- 11 of 16 -- 12 judgement however, is specifically affected by his persecutory delusions regarding his cousins. In view of his belief that his cousins are trying to kill him, he does not wish his cousins to benefit from his will. He stated that he has made a will in which he left each cousin sixty thousand dollars ($60,000.00). This amount was selected so as to make it hard for any of the cousins to contest the will. … Capability to Manage His Estate: Mr Mylett currently wishes to have his affairs taken out of the hands of the Public Trustee. On examination he stated that he wished to sell the property himself, most probably in the near future. His motivation to sell the property was influenced by his persecutory delusions. He believed that if his property was sold it would be less likely to benefit his cousins after his death. In matters unrelated to his property, Mr Mylett had a reasonable grasp of his financial affairs. He knew approximately how much money he had invested and had reasonable plans for this money in the future. During the interview with Mr Mylett he expressed a wish to return to his property. He had expressed a similar wish to Dr Glover in the preceding weeks. In view of these facts it is my opinion that Mr Thomas Mylett is mentally ill and incapable of managing his estate. My particular concerns relate to his ability to manage his cattle property. His persecutory delusions regarding the intent of his cousins substantially impair his judgement regarding his management of this property. A direct outcome of his affairs being placed in the hands of the Public Trustee is that Mr Mylett now resides at the Wongaburra Nursing Home. This has resulted in a significant improvement in his mental state. It is likely that his mental state would deteriorate however, if he returned to his cattle property to reside.” Assessment by Dr Tucker [53] On 2 August 1997 the testator was examined by another psychiatrist, Dr Perce Tucker. According to Dr Tucker, when he saw the testator he was reasonably happy, healthy and settled. He asked him what he thought about his relatives and how he got on with them; he replied that he had not had much to do with some of them for some time and did not have any negative feelings towards them. The bizarre and persecutory delusions were not manifest. Dr Tucker reported:- “He is pleasant and co-operative with reasonable concentration and memory functioning. There is no thought disorder of frank delusions. He shows no evidence of psychosis or primary mood disorder and has quite good insight and intelligence. Mr Mylett is -- 12 of 16 -- 13 now quite settled in Wongaburra and happy to stay there. He knows his property (affairs) estate adequately and his relatives - and his relationship to them and his obligations to them. He doesn’t have a psychotic view of any of them. I think he’s now capable of managing his affairs and would be happier if the Public Trustee weren’t involved. He’s also capable of giving Power of Attorney and making a Will. From all accounts Mr Mylett may have been anxious and even paranoid when stressed by the recent major changes in his life - of leaving the property, divesting himself of equipment/possessions and settling into Wongaburra etc. But, this has largely settled now.” Dr Glover [54] On 12 August 1997 Dr Glover wrote to the Public Trustee. He said that he had had a couple of less formal contacts with the testator since his last assessment of him in November 1996, and that his opinion was unchanged. He went on:- “In recent years Mr Mylett has developed an illness characterised by auditory hallucinations, paranoid thoughts regarding the intentions of other people and bizarre fixed delusions. Throughout this illness he has maintained a reasonable understanding of the extent of his property and possessions but his ability to manage these things appropriately has been demonstrably lacking. I introduced anti-psychotic medication to his treatment plan in early November and this does seem to have been helpful in controlling some of his problems though has not eliminated them. It is possible that after some time on this medication he could improve to the extent that he becomes competent to manage his affairs though I believe this to be relatively unlikely to happen. I understand that a major problem exists in the writing of Mr Mylett’s Will. This is complicated by the fact that he has significant paranoid thoughts regarding the relatives who represent any family members who might benefit from such a Will. I have reasonable recall of many discussions I have had with Mr Mylett regarding his Will and also recall similar discussions I had with his sister (who managed the property with him until her death) in the 1980’s. I have no documentation to support my recall. My recall of the discussions that we have had is that there has been little variation in his intentions over the years, both before and after the psychotic illness became evident. In summary, I do not believe that Mr Mylett is capable of managing his own affairs in isolation but he is capable of rational discussion regarding his affairs and any Manager assisting him with his affairs should take account of this when making decisions.” -- 13 of 16 -- 14 Admissibility of Earlier Declarations of Testamentary Intention [55] No objection was taken to the admissibility of Dr Glover’s report insofar as it relates to past discussions with the deceased about his will. However, counsel for the defendants objected to oral evidence to similar effect. According to Dr Glover, from the early or mid 1980’s until after January 1997 the testator was quite consistent about his intentions. He wanted to leave the bulk of his estate to either eye or cancer research at the Princess Alexandra Hospital; he usually described leaving some money or land to Boystown and smaller amounts of money to a variety of organisations within the Beaudesert district, and he described leaving fairly equal amounts (between six and ten thousand dollars, maybe sometimes more) to each of his young cousins. [56] Counsel for the defendants submitted that subject to the question of proximity, which bore on relevance, this evidence was admissible on the question of the testator’s state of mind, but not on the question of intention. Counsel for the plaintiffs submitted it was admissible to prove both state of mind and intention. [57] The intention of a testator is to be ascertained from the proper construction of his or her will. In the present case there is no dispute as to the meaning of the will, and so it is not necessary to consider the circumstances in which extrinsic evidence may be admissible to assist in the interpretation process. It is the testator’s state of mind, in the sense of his testamentary capacity, which is in issue, and previous declarations of intention are conceded to be admissible on that question. [58] Counsel for the defendants adverted to the fact that when such statements were made in the 1980’s the testator had an existing will in favour of his sister as an indication of their irrelevance in the present case. There is nothing in this point, since she was sometimes a participant in the conversations with Dr Glover, which related to the ultimate disposition of the assets held by her and the testator. [59] The evidence in question is not of an isolated statement made many years before the disputed will, but of consistent statements made over many years. In my view it is relevant to my assessment of the testator’s testamentary capacity on 8 January 1997, and accordingly is admissible. Whether the will was influenced by a delusion [60] The testator did not have constantly frank delusions about his cousins. Medical opinions differed on whether the delusions were nevertheless constantly present, although sometimes in the background. [61] The psychiatrists did not agree on the nature of the testator’s psychotic disorder. Dr Lea diagnosed is as paraphrenia (a form of late onset schozophrenia), and said that it was probable that the delusions were present at the relevant time, and that they influenced the will. However, as Dr Lea conceded, the purpose of his examination was not to assess testamentary capacity; different issues would have been explored had he been asked to assess his capacity to make a will. [62] Paraphrenia is characterised by fixed delusional beliefs, involving delusions of persecution, particularly in males. Other aspects of the personality are usually well -- 14 of 16 -- 15 preserved; orientation and the general ability to discuss matters are well preserved, although perhaps influenced by delusions. It is rare for a delusion to clear up completely, although the person afflicted may preserve a fairly presentable demeanour and carry on a conversation so long as no one touches on the delusional beliefs. The intensity of the delusions may be lessened by medication. [63] Dr Lea conceded that the most common cause of paranoid delusions in elderly people is a confusional state, in circumstances where they are experiencing stress or cognitive decline and either physical ill health or deterioration. However, the testator was not confused when he saw him; and he said that if the testator had been suffering a fluctuating confusional state he would have expected organic factors such as structural change in the brain or chemical change in the body. [64] Blood tests taken at various times in the last 15 months of the testator’s life showed no relevant chemical changes in his body. He had a vascular problem in his left leg. Dr Mulcahy, the general practitioner who attended him in the Beaudesert Hospital and at Wongaburra, thought that he had probably had a series of minor strokes in the 12 months leading up to his death, which resulted from a major stroke. However, there was never any CAT scan or MRI of his brain which would have confirmed that diagnosis, and a post mortem was not performed. He conceded that it was also possible that he had suffered intensified delusions because of his health rather than because of minor strokes. [65] Dr Tucker described the testator’s condition as a fluctuating confusional state with varying paranoia associated with isolation, cognitive decline, stress and predisposing personality factors. He said the delusions may not have been present at all when the will was made, or if they were there in the background, they may not have had any relevant impact. He stressed that people do not always act on their delusions. [66] As Dr Tucker acknowledged, the testator was probably in a better mental state when he examined him than he had been for some time. His opinion was expressed in the light of a more lengthy history than that available to Dr Lea. He explored issues relevant to testamentary capacity and expressed the view, which I accept, that in August 1997 he was capable of making a will. [67] Dr Gynther said that the testator was not confused when he saw him, but the delusions about his cousins were present. He said that the psychotic disorder could have been due to either minor cognitive decline or late onset schizophrenia. If the testator was truly without delusions when seen by Dr Tucker two weeks later, then he clearly had a fluctuating mental state. Risperidone reduces the intrusiveness of delusions, and may even remove them. [68] I accept that the testator had a fluctuating mental state. When he was examined by Dr Tucker in August 1997 he had no frank delusions. That he was then capable of making a will indicates that at that time he had no underlying relevant delusion or none that impacted on his will-making capacity. I accept the evidence of Dr Tucker that in determining whether that was the case on 8 January 1997 much would depend on his general state of mental and physical health. -- 15 of 16 -- 16 [69] The will was made about a month after Dr Lea examined the testator. In the interim he had settled into Wongaburra and accepted an offer of permanent residence there. His physical health was comparatively good. There was no report of any mental aberration. He was responsible for dispensing his own medication and it is not suggested that he failed to take his Risperidone until late January 1997 (at least a fortnight after the will was made). He gave clear, firm instructions to Mr Clarke on 17 December 1996, in terms not very dissimilar from what he had said to Dr Glover over many years or from his subsequent instructions to the first plaintiff on 8 January 1997. He gave the first plaintiff the impression of being in full possession of his faculties and of knowing exactly what he was doing and what he wanted. Indeed, there was nothing untoward in his behaviour on 8 January 1997 at the solicitors’office, in the car on the way to the day care centre or during the outing to Paradise Point. There was no psychotic behaviour until a fortnight later when he had a viral infection, was not taking his Risperidone and had probably learnt that the Public Trustee had cleared out the contents of his house. [70] The will is rational in its terms. It is consistent with an understanding of the nature and extent of the assets of the estate. Given the very limited contact the testator had with his cousins, other than Francis Mylett and his children and Maureen Baldwin, and given that none of the defendants, all of whom are elderly, has been shown to be in special need, it cannot be said that he failed to take account of moral claims on his bounty. [71] On all of the evidence I am satisfied that when the testator made his will on 8 January 1997 he was not influenced by paranoid delusions, and in particular that he was not influenced by any delusion that his cousins, or any of them, were trying to harm him or to steal his cattle or otherwise take his property. Accordingly I uphold the will, and dismiss the counterclaim. Costs [72] The plaintiffs’ costs of and incidental to the proceeding are payable out of the estate, without the need for an order to that effect. The defendants acted reasonably in contesting the will, and their costs should be paid out of the estate also. Orders [73] I order:- 1. That the first plaintiff’s name be removed from the proceeding; 2. That probate of the will of Thomas Joseph Mylett dated 8 January 1997 issue, subject to the formal requirements of the Registrar; 3. That the counterclaim be dismissed; 4. That the defendants’ cost of and incidental to the proceeding be assessed on the indemnity basis and be paid out of the estate. -- 16 of 16 --