Anthony & Comino v Sanderson [1994] QSC 86

IN THE SUPREME COURT OF QUEENSLAND No. 2038 of 1991 Brisbane Before the Honourable Mr Justice Moynihan [Anthony & An or v. Sanderson] BETWEEN SOPHIA PETER ANTHONY & JACQUELINE PETA COMING FLORENCE SANDERSON JUDGMENT- MOYNIHAN J Plaintiffs Defendant Delivered 13/04/1994 CATCHWORDS: Counsel: Solicitors: Hearing dates: PROBATE - Proof in Solemn Form - Testamentary Capacity - Soundness of Mind, Memory and Understanding Mr Myers for the Plaintiffs Mr Wyvill QC and Mr Ulrick for the Defendant de Groot & Co for the Plaintiffs Stephen Comino & Cominos for the Defendant 7, 8, 9, 10 & 11 February 1994 and 14, 15, 16 & 17 February 1994 -- 1 of 37 -- (. '· IN THE SUPREME COURT OF QUEENSLAND BETWEEN Delivered 13/04/1994 SOPHIA PETER ANTHONY & JACQUELINE PETA COMINO FLORENCE SANDERSON JUDGMENT - MOYNIHAN J No. 2038 of 1991 Plaintiffs Defendant This is an action for proof in solemn form of a will duly executed according to law by Sophie Venery (also known as Sophia Venery) on 12 September, 1990. The case turns on whether or not Sophie Venery had testamentary capacity at the time she gave instructions for and executed the will. The plaintiffs are the executors named by the will. Together with their sister Catherine Peter Economos, they are the principal beneficiaries under the will. The three beneficiaries are the only children of Peter and Helen Comino; Peter was one of two sons of Sophia Comino. Sophia Comino had a brother, George Emanuel Venery. George Emanuel Venery married Elene (Helen) Frelingos. She was commonly referred to as "Aunty Helen". George and Elene Venery had two -- 2 of 37 -- 2 children, the defendant Florence and the testator Sophie. Florence was the older, being born on 26 April, 1924 while Sophie was born on 26 June, 1925. lt follows that the beneficiaries and Florence and Sophie Venery are cousins. Florence Venery is her sister's sole surviving next of kin. She has sued in her married name (Sanderson) but now being divorced, prefers to be referred to as Florence Venery. There is no provision made for her by the will of 12 September, 1990. Sophie Venery died on 11 June, 1991 from complications consequent upon the leukaemia from which she had been suffering from since at least 1985/86. She had never married nor had children. A major asset in Sophie Venery's estate is a half share as tenant-in-common with her sister Florence of a tenanted commercial building in Albert Street in the central business district of the city of Brisbane. The sisters acquired this interest from their late father, George Venery. Florence and Sophie's interest in the Albert Street building was, as will emerge, a source of dissension and engendered great bitterness between them. They have a similar interest in what was formerly the family home at 10 Llewellyn Street, New Farm, although the transmission to them and the registration of their interest may not have been perfected. As at 7 February, 1994 the properties were valued at $1,660,000 and $377,000 respectively. There is a mortgage to secure a relatively small amount on the Albert Street property. The balance of Sophie Venery's estate is valued at the order of $200,000. As I have indicated, the sisters acquired their interest in the Albert Street building by way of disposition from the estate of their late father. He had -- 3 of 37 -- 3 conducted the business of produce merchant for many years. lt seems he had retired in about 1976 or 1977. George Emanuel Venery (Sophie and Florence's father) died on 7 October, 1983 and their mother, Aunty Helen, died on 6 February, 1985. The evidence discloses different observers had different perceptions of the character and behaviour of Sophie Venery. lt will be necessary to canvass these in some detail in due course. In the meantime it may be noted that there is no occasion to doubt that Sophie Venery presented to the plaintiffs and to their sister Catherine as a close relative with a warm and loving interest in them, their lives, and eventually their families. From time to time in the course of this relationship it seems likely that Sophie Venery occasionally exhibited histrionic traits which were an aspect of her character. Neither those displays nor any other manifestations, however, indicated to any of the three sisters anything of what might be described as the "darker" side of their cousin Sophie's character and behaviour, which is indicated by other evidence. To various solicitors who acted in her interest Sophie Venery presented, from time to time, as a very difficult and troublesome client. One of them, Mr Prentice, spoke of her as being erratic, of not knowing what she was going to do, not knowing whether she would accept or refuse to accept advice. Another solicitor, Mr Fennel!, had difficulty in dealing with her. He spoke of difficulty in getting instructions and in getting her to follow advice which was in her interest. He spoke of her "speaking at him" rather than listening. Sophie occasionally manifested to the various solicitors strong animosity towards her sister, particularly in relation to the affairs of the Albert Street property which were a major occasion -- 4 of 37 -- 4 of her consulting solicitors. Sophie Venery nevertheless manifested to the solicitors and others on various occasions a sharp enough appreciation of events and of business including the conduct of her own affairs. At some times she presented as better than others. Mr Fennell, for example, spoke of her as being "good" in late 1990, early 1991. Mr Halligan, an experienced solicitor who Sophie Venery had retained in respect of disputes with her sister concerning the Albert Street property, was responsible for the preparation and execution of the will. Sophie had at some earlier time worked for Mr Halligan's firm as a legal secretary. The instructions to prepare the will were conveyed to Mr Halligan in a letter from Sophie Venery dated 30 August, 1990. The letter nominated the beneficiaries, trustees and executors who I have previously identified. As I have said, Sop hie Venery had some experience as a legal secretary. When she came in to execute the will Mr Halligan confirmed with her that she contemplated that the beneficiaries share equally as tenants-in-common. The will, having been prepared on that basis, was duly executed. Mr Halligan attributed the absence of any reference to Florence in the will to dislike manifested in, and as a consequence of, the difficulties between the sisters particularly about the Albert Street property. As I say, Sophie had retained him in relation to these matters. In Mr Halligan's perception, the sisters "could not agree on anything". That is not an unfounded appreciation of the situation known to Mr Halligan, however I do accept that Mr Halligan had not experienced any manifestation which might have given rise to any doubt on his part as to Sophie's testamentary capacity. -- 5 of 37 -- 5 There is, however, a body of evidence indicating that at the very least Sophie Venery manifested very unusual and odd traits indicating a personality disorder. These traits, which seem to have been lifelong, bore on her perceptions of and relations with others including her sister Florence. This evidence comes from a number of sources and it will be necessary to consider it in some detail in due course. In the meantime it is sufficient to note there is among this body of evidence which, if accepted, is at least capable of sustaining a conclusion that Sophie displayed delusional and paranoid traits from time to time and that on occasion Florence was a focus of these manifestations. The defence delivered on Florence's behalf pleads absence of testamentary capacity by Sophie due to mental illness at the time of the execution of the will. This is particularised by saying that the deceased had suffered from schizophrenia since at least the age of 13, and that since at least that age she had periodically suffered from delusions and manifested irrational conduct. The irrational conduct ( was characterised by the pleading as "groundless distrust of and aggression and hostility towards numerous relatives and acquaintances including her sister Florence". lt was further pleaded that in 1990, prior to the execution of the will, Sop hie suffered from a delusion Florence was trying to take over the running of the estate of their late father to Sophie's detriment. lt was then pleaded that in consequence of the matters Sophie's judgment and her capacity to form a rational view of matters to be considered in the making of a will, and in making a reasonable and proper distribution of her property, was overwhelmed. The pleading and particulars led to what seems to me to be something of a false issue. This focussed on whether Sophie was correctly diagnosed in what I -- 6 of 37 -- 6 might term a "strictly clinical sense" as suffering from schizophrenia when she was 13, or whether traits which she displayed had another what I might term "clinical" origin. The true issue, it seems to me, is whether Sophie lacked testamentary capacity - for whatever reason. The requirements of testamentary capacity are identified by Cockburn CJ in Banks -v- Goodfellow {1869-70) 5 L.R.Q.B. 549 at 565 in these terms:- "It is essential in the exercise of such a power that a te·stator 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 later 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 dispensing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made." The present case focuses on the comprehension and appreciation of the claims to which Sophie ought to have given effect and considerations of a disorder of the mind poisoning affections etc rather than on the considerations referred to in the earlier part of the extract. Proof of due execution is prima facie evidence of testamentary capacity. Where however the evidence as a whole is sufficient to throw a doubt upon a testator's competency the court must decide against the validity of the will unless it is satisfied affirmatively that the testator was of sound mind, memory and understanding when the will was executed; Bull -v- Fulton { 1942) 66 C.L.R. 295 per Williams J at 343; see also Latham CJ at 299 and McTiernan J at 303. On the other hand it is to be borne in mind that as Sir J Hannon observed in Broughton -v- Knight { 1873) 3 P and D 64 at 66:- "The law does not say that a man is incapacitated from making a Will if he proposes to make a disposition of his property moved by capricious, -- 7 of 37 -- ( "'-· / 7 frivolous means or even bad motives. He may even disinherit either wholly or partially his children and leave his property to strangers to gratify his spite or to· charities to gratify his pride and we must give effect to his Will however much we may condemn the course which he has pursued." In the context of testamentary capacity a delusion is to be understood as "a fixed and incorrigible belief which the victim could not be reasoned out of", a belief "out of harmony with the individual's education and surroundings"; Worth -v- Clasohm (1953) 86 C.L.R. 439 and 449; Bull -v- Fulton (ante) 21 Halsburys Laws of England (2d Ed.) 273 (note). The state of the evidence in this case is such as to require that I be satisfied affirmatively that Sophie Venery had testamentary capacity when she gave instructions for and executed her will. I turn now to the evidence. It is to be remembered that although the evidence is conveniently considered in terms of discrete segments, it is its overall reflection of Sophie Venery's mental state which requires determination. A good deal of the evidence bearing on the issue of Sophie Venery's testamentary capacity came from the defendant, her sister Florence. Florence and Sophie grew up together living with their parents ultimately at Llewellyn Street, •' \... New Farm. After Florence left school she worked for her father, a produce · merchant. Much of the business was operated from home. Florence worked there until her 20s when she undertook a business course and obtained other employment. She continued to live at home, however, until she married in 1968. After her marriage broke up she continued to live independently of the family unit. Sophie remained in the family home until she died. She seems to have worked successfully for her father, as a legal secretary and for Florence, although there was a stormy termination of that relationship. -- 8 of 37 -- 8 Florence gave evidence that when Sophie was about 13 she and Sophie heard the family doctor, a Dr Middleton, advise their father to the effect that Sophie had schizophrenia and that a psychiatrist ought to be consulted. lt is this account which founds the pleading and particulars which I referred to earlier. Florence apparently intervened to reinforce Dr Middleton's advice, and on her account was chased by Sophie with a knife until her father and the doctor restrained Sophie. One wonders about the reliability of a purported recall of events so long ago, and if they did occur, why Florence thought it was her business to intervene in the way in which she says she did. In any event Dr Middleton was not /- called (presumably he is dead) and there was little evidence of the facts on which he founded his diagnosis, assuming him to have made it. I do not think Florence's evidence of this particular occasion is admissible to found a conclusion that Sophie suffered from schizophrenia from the age of 13. Florence gave evidence, however, of having experienced an array of bizarre behaviour by Sophie as they were growing up, while they lived together in the family home and after Florence had gone her own way. I will endeavour to summarise some of the more salient features of the evidence. lt will be necessary to go into some matters in more detail in due course. Florence spoke of Sophie, after she had attained the age of 17 or 18, persistently claiming that food prepared in the family home was poisoned, of Sophie throwing away food which had been prepared for her and members of the family, of her retreating to her room and cooking her own meals with utensils which she kept under her bed for the purpose. Florence spoke of Sophie claiming to hear voices and apparently carrying on conversations with non-existent people, of her raising her hands and looking up -- 9 of 37 -- 9 and expressing agreement with what had apparently been said. She also gave evidence of Sophie alleging that she and Sophie were being followed, or of seeing, for example, a motor vehicle coming. There were no people following and no motor vehicles. She described incidents of Sophie strenuously resisting Florence's leaving home to go to work, an incident of Sophie following Florence and her husband while they were window-shopping, hiding behind light poles and so on in i apparent attempts to conceal her presence. She gave evidence of Sop hie pointing I /- to her "boyfriends" at the picture theatre, and there being no one there. Florence also spoke of Sophie in effect living under the dining room table concealed by the cloth for prolonged periods, of Sop hie locking herself in the bedroom for prolonged periods, of her threatening to kill Florence on occasion, apparently usually when Sophie could not get her own way. Florence described Sophie as not wanting visitors to be let into the house and of her seeking to exclude them or to have them excluded. If the visitors were admitted, Sophie would lock herself in her bedroom, I and would call out abuse about them. Florence's evidence conveys the impression "- that these things were done in a particularly emphatic and dramatic way. I do not unconditionally accept Florence Venery's evidence. Some of the incidents of which she speaks at least are equally likely to be explicable in terms of, for example, attention-getting or manipulative behaviour as distinct from the manifestation of a more serious form of disorder. Florence gave me the impression that she was not anxious to underestimate any aspect of Sophie's behaviour bearing on the matters in issue here or to give her the benefit of any doubt. On my observation, Florence is quite capable of a selfishness in regard for her own interest as against that of others, and of shaping her own account accordingly. In many -- 10 of 37 -- /,..---~ t"'- --- ~ / 10 respects she was not particularly sympathetic or understanding of Sophie and from time to time apparently went out of her way, perhaps in the spirit of retaliation, to aggravate Sophie's reaction. Florence's attitude might have been in part as a consequence of being unable to understand or come to terms with her sister's aberrant traits and her perception of the underlying cause. Some examples will illustrate what I mean by the foregoing paragraph. • Florence was censorious of Sophie having understated her age, particularly on her driver's licence and took it up in circumstances where it might be fairly said it was none of her business. She seemed to be suggesting that some inference adverse to Sophie's mental state should be drawn on this account. I don't think there was anything unusual about Sophie understanding her age. • Florence gave me the distinct impression that she was intent on understating Sophie's work history from the point of view of casting aspersions on her earning capacity. It seems that Sop hie initially worked for their father who conducted business from the residence at Llewellyn Street before fairly late in life qualifying herself and obtaining work as a legal secretary. She held one position for five or six years in a secretarial capacity for a solicitor who gave evidence supporting her competence. She also worked from time to time for the firm of which Mr Halligan was a member. She also worked for Florence from time to time although it is true she gave it up in apparently dramatic circumstances. The point is that Sophie's work history was rather more extensive than the impression Florence gave. -- 11 of 37 -- 11 There.are other examples in the evidence individually perhaps trivial. The examples given, as I say, illustrate the cumulative impression the evidence left on me. There is, however, a deal of evidence to indicate that Sophie Venery must have been a very difficult person to know and that she occasionally {in the sense of from time to time, rather than rarely) conducted herself in ways manifesting various degrees of aberration. We do not, of course, have Sophie's account of events. The parents are dead so we do not have their account. I am inclined to conclude that Florence found her sister extremely trying and her conduct frustrating. This frustration no doubt led to reactions by Florence which reinforced perceptions leading Sophie to indulge in the conduct, so creating what might be termed "a vicious circle". The evidence leaves me with the impression that relations between the sisters were very complex and fluctuated greatly between being close and sisterly to bitter confrontation and frustration, admittedly largely due to Sophie's conduct. lt must be said, however, that underlying the relationship throughout their lives ) there seems to have been a resilient thread of sisterly feeling, if not affection. For the reasons I have endeavoured to canvass I think Florence Venery's evidence is to be approached with caution and care needs to be taken in drawing from it alone inferences adverse to Sophie. Those things having been said, as I have indicated there is a body of evidence - apart from Florence's - indicating Sophie had at the very least displayed odd, if not aberrant, personality traits apparently affecting her perception of others. That evidence supports aspects of Florence's evidence and various (but not all) the inferences for which Florence's evidence contends. I turn now to that evidence. -- 12 of 37 -- 12 By a letter of 25 November, 1985 Sophie Venery wrote to the President of the Law Society complaining about the conduct of Mr Anthony Prentice, then a partner in the firm of Stephens and Tozer. She alleged that he was unfit to act as a solicitor. Mr Prentice had for some years been the solicitor for Sophie and Florence's father, George Venery. By the time of George Venery's death Prentice had become something of a confidant and friend as well as professional adviser to George Venery. He became the solicitor for the estate of George Venery and he and his firm continued as what might be called the Venery family solicitors. In her letter to the Law Society Sophie Venery claimed that Prentice had [r prepared a will for her mother (Aunty Helen) based on instructions given by her sister Florence Venery. lt will be recalled that Aunty Helen died on 6 February, 1985. SophieVenery complained that her mother had never given instructions for a will, that her sister Flo had given her mother to understand that she, Sophie, approved the will Flo had instructed Prentice to prepare. This, Sophie wrote, was false. Sophie's letter continued that after her mother's death she complained to Flo that she should not have instructed Prentice to draw up the will as her parents had all along told Sophie that the house would come to her. Sophie complained that when so taxed, Florence replied that Sophie had-approved the will. Sophie alleged in the letter that this confirmed her suspicions that Florence had instructed Prentice to draw the will. I have no hesitation in accepting Prentice's account of the drawing and execution of Aunty Helen's will. This is to the effect that he called at the Venery home at Llewellyn Street on the day of George Venery's death (7 October, 1983) to have some documents executed by George Venery. When he got there it was -- 13 of 37 -- 13 obvious to him that George Venery was dying. As Prentice was leaving he raised with Sophie the question of whether her mother had a will and pointed out the desirability of one being made. Aunty Helen was not fluent in English. Sophie acted as interpreter in conveying Prentice's advice to Aunty Helen and in conveying Aunty Helen's instructions to draw a will and as to its contents. When the will was drawn Prentice attended at Llewellyn Street for the will's execution. Sophie conveyed to her mother Prentice's explanation of its contents and produced a witness to its attestation whose attendance she had apparently previously arranged. ~-\ The letter of complaint of 25 November went on to deal with the opening and operation of a joint account to collect the rent monies received from the tenants of the Albert Street property. lt would be tedious to recount her complaints which are set out in detail in the letter. lt is sufficient to say that the setting-up of the joint account was a consequence of difficulty substantially of Sophie's manufacture. Sophie's complaints against Florence and Mr Prentice's conduct in the letter over the joint account are essentially without foundation, or at the very least reflected a distorted view of the arrangements the complaint canvasses. The letter went on to complain that Prentice had totally ignored Sophie as a trustee and executor of her mother's estate. The letter stated that Florence had been assisted economically by both her parents and Sophie, and that Florence had "told a lot of lies about me and is being abetted by Mr Prentice in her deceitfulness." I accept that Sophie, in the context of these events, told Florence to the effect that Prentice had forged the signature on their mother's will or had -- 14 of 37 -- 14 made out the wrong will and that she (Sophie) was intended to be the sole beneficiary of the mother's will. The incident is of some significance. There is little occasion to doubt that Sophie, who as I have said worked for solicitors over the years, understood the seriousness of the implications of her allegations against Prentice. There appears no rational reason for her to seek to harm Prentice as she deliberately sought to do by the letter to the Law Society. The allegations were about the conduct of affairs largely within Sophie's knowledge. The complaints were essentially without foundation or were, as Sophie ought rationally have known, grave distortions of the facts. The allegations focus on Florence's conduct and Prentice's involvement in a way which in my view was delusional. During 1985 and 1986 there were difficulties and unpleasantness between Florence and Sophie concerning the state of accounts of the Albert Street property. There were other issues bearing on that property including difficulties concerned with rental arrangements, payment of rates and insurance. There was also an issue about George Venery's estate in respect of a claim to a property in Greece. The flurry of correspondence between the sisters and between solicitors retained by them show that relations were in what I will call a fairly unpleasant state during the period due to misunderstandings and differences. Sophie seems to bear much of the responsibility for this although Florence's impatience and frustration together with some lack of fact probably contributed. The letter to the Law Society was written in this climate. I turn now to another perspective of Sophie's behaviour. As I indicated earlier, Sophie Venery died from complications consequent of chronic lymphatic -- 15 of 37 -- 15 leukaemia. She was treated from time to time at St Andrews Hospital and at the Department of Medical Oncology at Princess Alexandra Hospital. The Princess Alexandra Hospital records are in evidence but the parties agreed that for the purpose of this decision, I need concern myself essentially with the documents extracted to constitute Exhibit 95. The exhibit also contains a summary of Sophie's admissions to the hospital. lt seems that Sophie persistently denied the disease and its symptoms, was erratic in her attendance for treatment, and refused recommended treatments. These considerations of themselves are not necessarily extraordinary. Cancer patients frequently manifest denial, rationally decide not to accept particular treatment options, and occasionally behave in irrational ways. Sophie Venery''s conduct, however, on occasions went further than this explanation justifies. In this context it is useful to bear in mind that while at the Princess Alexandra Hospital she was being dealt with and accessed largely by people who were used to dealing with cancer patients. Or David Grimes is a specialist oncologist who had a good deal to do with Sophie Venery in the period January 1990 to June 1991. lt will be recalled that the will was executed in September 1990 and that Sophie died in June 1991. Or Grimes did not give evidence at the trial, (he was overseas) but a statement by him was admitted into evidence. His evidence therefore suffers from the drawback that he was not tested in cross-examination. Or Grimes was also the maker of a number of the notes included in the hospital records. His evidence is consistent with a pattern which in any event emerges from the totality of the evidence. Essentially I accept his evidence. Or Grimes offered the following observations:- -- 16 of 37 -- 16 (a) Sophie Venery intermittently demonstrated delusional ideas e.g. that her neighbours were shooting ray guns under her door and were gassing her. (b) These delusions were not always apparent but they were exhibited by her often. (c) Sophie suffered with chronic lymphocytic leukemia. She routinely denied her disease and her symptoms. The disease caused many significant symptoms, and whilst it was not curable, it was eminently treatable. Sophie regularly refused treatment and often discharged herself from hospital against medical advice. (d) If Sophie had attended scheduled appointments, had presented in a timely fashion when troubled by recurring often severe symptoms and had allowed the medical staff to prescribe and administer appropriate treatment, she could have enjoyed more stable health and a significantly improved quality of life. Dr Grimes informed her of this on many occasions, however, she usually ignored the advice and often refused to accept therapy or failed to present herself for the recommended treatment. It is worth remarking that Sophie also refused to act on legal advice when rationally it was in her interest to do so. This emerges from the evidence of Messrs Prentice and Fennell, from correspondence in evidence and, to a degree, from the evidence of Mr Halligan. A note in the hospital records apparently for 18 March 1989 notes Sophie Venery was exhibiting bizarre behaviour, suddenly becoming aggressive, throwing a ward reference text book across the room and refusing to respond to questions, but responding later. On 25 April she is noted as behaving aggressively, walking -- 17 of 37 -- 17 out of the ward to Outpatients. When asked was anything wrong she said that there was a staff problem, that the nurses did not want her to sleep and accusing her questioner of thieving. A note in the records of 24 November, 1989 notes marked paranoid delusion in respect of being drugged and "gas under door" etc. I should mention that evidence was given by Lambros Frilingos and Florence Venery that Sophie from time to time made allegations about neighbours involving poisonous gas and bombs (apparently relating to gas). Some of these allegations may have been based on the operation of internal combustion engines on an adjoining property so as to constitute a nuisance. I am, however, satisfied that Sophie did talk in such terms from time to time and that the allegations were substantially, if not completely, unfounded and against reason. On 27 November, 1989 Dr Cobcroft, the Director of Haematology at the Princess Alexandra Hospital, reported to Dr Edgar Moo, one of a number of general practitioners to whom Sophie Venery resorted, that among other things Sophie Venery now "has a very florid paranoid psychosis with no insight whatever". He went on to report that she had refused social worker and psychiatric worker help and that "it may in future become necessary to regulate her under the Health Act as she becomes a danger to herself and others". In the event it was unnecessary to follow this course. An admission summary of 23 January, 1990 describes Sophie Venery has having been noted in the past as having "quite an unusual personality" and she specifically denied all other symptoms or any problem and insisted that really all she needed was a blood transfusion and to go home. A clinical note apparently -- 18 of 37 -- 18 referable to early June 1991, not long before she died, refers to Sophie claiming to have to wear black gloves in the shops because "people stare at her and touch her and throw darts at her ... this is what caused the problem". The problem was apparently referable to lesions on her arms and hands, a consequence of bacterial endocarditis, a complication of her leukemia rather than being caused by darts, or for that matter, injections. Or Cobcroft was involved in Sophie Venery's treatment over an extended period. I accept his evidence. He found Sophie an extremely difficult person who exhibited paranoid delusions which fluctuated from time to time. She did not exhibit to him any delusions reflecting on her sister Florence and in his view she was rational in respect of matters not touched on by her delusions. These related, among other things, to possessions being stolen, the activities of a neighbour, and food being poisoned. Or Paul Schneider is a qualified psychiatrist and Deputy Director of Psychiatry at Princess Alexandra Hospital. He saw Sophie Venery in January 1990 on account of concerns about her psychiatric state by those involved in her treatment for leukemia. The issues he addressed were first, Sophie's refusal of treatment, secondly, that she had been found to be paranoid from time to time, and thirdly, that she tended to refuse community services in after care. He endeavoured to address the three aspects. At the time he saw her he found no indications of an abnormal mental state. He was unable to elicit from her any of the beliefs which had given rise to the concern about her mental state which founded his involvement. He was, as I understand his evidence, somewhat sceptical of the denial. The evidence indicates that Sop hie probably, on occasions, -- 19 of 37 -- 19 concealed some of the more bizarre characteristics of her personality in some situations. I accept the manifestations of Sophie's personality reflected in the evidence of Doctors Grimes and Cobcroft and in the hospital records. I mentioned Lambros Frilingos in the context of Sophie making allegations about neighbours involving poison gas and bombs and allegations about food being poisoned while in the Princess Alexandra Hospital. Alexander Frilingos and his brother Lambros were Helen Venery's (Aunty Helen) brother's children. They had varying degrees of contact at various times with the Venery family as Sop hie and Flo were growing up and during their adulthood. Alexander Frilingos used to visit the Venery household on a fairly regular basis in the 1970s and 1980's. He would help prepare lunch. He gave evidence of incidents in which Sophie said food was poisoned and of her throwing food out and the utensils in the sink. She accused him of trying to poison her. He described her as "very wild, pale, eyes wide and really cranky", on at least one such incident. His evidence is consistent with Florence Venery's description of similar incidents as the sisters were growing up. Alexander Frilingos also described an incident of Sophie falsely accusing him of damaging the Venery car when he had not done so and in fact the car was not damaged. He also spoke of having been accused by Sop hie of stealing 80C from her and of taking crockery. He continued visiting Sop hie after her mother had died. He describes an incident of buying a chicken, cooking her and giving it to her for supper. The next morning when he arrived she accused him of having poisoned her. -- 20 of 37 -- 20 Alexander Frilingos spoke of Sophie accusing a neighbour, Doris Scott as trying to poison her garden, so that she was going to get a big fence. Sophie did build a high fence between the two properties. Doris Scott was the subject of various allegations by Sophie. They related to attempts at poisonous bombs, gas and theft and I have referred to some of them in dealing with the Princess Alexander Hospital. The evidence indicates that Doris Scott was a good and caring neighbour and that there was no foundation in the various allegations implicating Doris Scott that Sophie made to various people from time to time. These allegations were in essence delusional. Alexander Frilingos also spoke of Sophie complaining that the house at Llewellyn Street had been broken into. He could see no sign of this. On one occasion he arrived at the house to find police there and Sophie making allegations as to where the break-in had occurred, but again there was no indication of this. He also told of Sophie telling him a neighbour, not Doris Scott, was throwing stones to try to hit her and was throwing things over a tree in her yard to poison it. Exhibit 57 is a letter written by Sop hie to Alex Frilingos's sister, lrene, dated 3 September, 1990. In translation it reads, among other things:- 11 ... day before yesterday I telephoned Lambros. He had caught the 'flu and was in bed. Now he would be well. The other brother I don't see him, nor does he come, nor does he 'phone. But for certain he learns about me because he has a girlfriend, the criminal who lives next door. I don't know if you've learned anything - the crimes that monster Froso does. The cousins on the father's side know everything for some time now and certainly agree with her. I don't know anything. I learnt about it when I read it in the newspaper and I went immediately to my solicitor and am waiting. 11 -- 21 of 37 -- 21 "Lambros" is Lambros Frilingos and the reference to the "other brother" is a reference to Alexander Frilingos. The reference to his "girlfriend, the criminal who lives next door" is a reference to Doris Scott. There is no substance in any of what the letter says about them and it is difficult to conceive of any rational basis for it. The reference concerning Fro so is a reference to Florence. Alexander Frilingos also gave evidence of Sophie telling him during this period that Vie Patti, Palmos and Florence were trying to rob her. This is doubtlessly referable to events concerning the Albert Street property to which it will be necessary to refer later. Suffice it for the present to say the evidence does not provide any foundation for the opprobrium directed at Florence. Lambros Frilingos also gave evidence of his contacts with the Venery family and with Sophie, with whom he did not enjoy a particularly good relationship although he faithfully attempted to do the right thing by his difficult cousin. In 1985, she telephoned him and asked him to pick her up from St Andrews Hospital. When he did so he asked why she was leaving and whether she was all right, and she said "The bludgers, they tried to poison me". He gave evidence of further complaints by Sophie of others, including her mother and father and his brother Alexander trying to poison her. After he had collected her from the hospital on the occasion referred to and had taken her home, he tried to ring her on occasion and was unsuccessful. He gave evidence of Sophie frequently changing her phone numbers and having a silent phone number because she said that people were ringing up to check and see if she was inside so that if she was not, they could rob the house. On occasions when he passed outside the house or went in Sophie did not -- 22 of 37 -- ,_ .. 22 acknowledge his presence although she would have been aware of it. On another occasion Sophie told Lambros Frilingos in the course of a telephone call that "the bludgers ... tried to poison me. They tried to rob me". She also said "Your brother's coming in here and pinch the louvres" and "Doris next door threw a bomb and tried to poison me". On one occasion Lambros Frilingos saw Sophie Venery at the Cannon Hill shopping centre. She told him she was looking to put her dog somewhere because she had to go into hospital. When he asked what hospital she told him it was none of his business. He later found out she was in the Princess Alexandra Hospital and went to visit her. On this occasion she asked him to get her a knob of garlic and a packet of jelly beans. He asked her what she wanted them for and she said "Those bludgers in here, they tried to poison me so I want to keep them away so I can eat the garlic and I stink so that they don't come in." Just before he took Sophie to hospital "the last time" she said to Lambros, when he called on her:- "Your brother came in here and cook a chicken for me but I won't eat any. Don't you give it to the dog. Put it in the rubbish bin, the saucepan as well." She did this because she apparently thought that Alexander Frilingos had tried to poison her. Lesley Judith Brown was a neighbour of the Venerys from 1983 to 1992. Her house being broken into and Sophie's hearing of it may have triggered off what seems to have become Sophie's obsession with the Venery House being broken into. I mentioned some of these incidents earlier. Sophie made accusations to her of the Scott family having stolen her keys. She also spoke of people coming under -- 23 of 37 -- 23 the house and stealing her father's tools, taking screws out of something, and of stealing plants and made allegations concerning another neighbour. On occasion Sophie threw things over the Brown's fence including on one occasion a pot plant which was followed up by the accusation that the Browns had been planting things on her property. Mrs Brown described an incident of Sophie ordering her and her husband off her, Sophie's, property at the time when they were standing on the public footpath speaking to her and of a very upsetting incident of Sophie screaming out about lights - the laundry lights in the Brown residence. Mrs Brown was "quite stunned" by Sophie's conduct. This was in about January, 1991. During the conversation in which she accused the Scotts of stealing her keys and other complaints Sophie told Mrs Brown she had been to the city to see her lawyer. This was because her sister was trying to sell some city property that she owned behind her back. Mrs Brown said that:- "I had never seen Sophie as angry as she was in the latter half of 1990. Prior to that she always seemed quite pleasant and hadn't - I mean, we discussed security around the neighbourhood but she wasn't so strong and vehement in her accusations of people". Sophie Venery's references in the letter of 9 September, 1990 to Florence's "crimes", and to reading "it in the newspaper", her telling Alexander Frilingos and Mrs Brown, Vie Patti, Palmos and Florence trying to rob her and that Florence trying to sell some city property behind her back, are references to events bearing on the Albert Street property to which it will shortly be necessary to turn. Essentially I accept the evidence of the Frilingos brothers and of Mrs Brown. Their evidence, together with the evidence concerning Sop hie's behaviour in the Princess Alexandra Hospital which I canvassed earlier, provides support, -- 24 of 37 -- 24 notwithstanding the reservations I have expressed, for Florence's account of various aspects of Sophie's aberrant behaviour both as they were growing up and during adulthood. I should mention here that I do not think that Sop hie's persistent allegations that her food was being poisoned can be explained as objections to food she didn't like made in terms of suggesting, if taken literally, attempts to poison her. Rather, the allegations were delusional with paranoid implications. The same conclusions applies to the allegations about poisonous gas, her neighbours, and in respect of stealing. I mentioned earlier that Sophie and Flo Venery's joint ownership of the Albert Street building was a cause of tension and difficulty between them. I have adverted to some aspects of this but I will recapitulate and expand somewhat on this. The Albert Street building was one of four adjoining buildings under varying ownerships which had been architecturally treated so as essentially to look as one building. One of the buildings was owned by a man named Wallace Bishop or a company controlled by him. Prior to 1990 there had been difficulties concerning the condition and tenancy of the building. These related among other things to accounting for rents and outgoings. Sophie came, in effect, to require a separate payment by the tenant to her and to Flo of their respective shares of rental and for each to pay separately their contribution towards the outgoings. This led to disputes and misunderstandings, for example, certain discounts were lost because of late payments by Sophie. Florence was involved in a fairly constant hassle to keep things in order. -- 25 of 37 -- I I'..__ __ / 25 A more sensible course advised by a number of professional advisers but which Sophie consistently rejected would have been to appoint an independent agent to manage the building and to account for the net surplus, or to provide for a joint account. As I have mentioned, an arrangement involving the use of a joint account effectively broke down. There were difficulties because Sophie regarded the rent as too low. She effectively refused to accept advice requiring acknowledgment of the situation that there was a lease and options. These made inadequate provision for rent increases, contributions to outgoings and so on in the climate of the day. The lease, with its option provisions, had been entered into some years before but was apparently legally binding. On the other hand Sophie was reluctant to give instructions whereby on the advice of counsel, advantage might have been taken of some technical breaches to negotiate a better outcome. Sophie apparently attempted to collect from the tenants what were described as arrears of rent but which in fact reflected the difference between the rent payable and the rent which she considered ought to have been payable. Sophie created other difficulties with the tenants. The building was close to the Myer Centre development. Sophie had refused to sign an indemnity agreement with the developer to guard against damage. lt was conduct of this kind that led to Messrs Prentice and Fennell characterising Sophie as erratic and difficult as I have indicated earlier. Their characterisation was justified by Sophie's conduct as revealed by the evidence. At various stages Florence's degree of frustration with Sophie was such that she took advice about taking legal action against her to try -- 26 of 37 -- 26 to resolve their problems, but was never actually prepared to do so. She wanted to get on with her life. Against this background, by 1990 the Venery building was dilapidated and in need of attention. The lease was about to run out but the building was not particularly attractive to tenants because of its condition which in the event approached being dangerous to tenants and the public. The Courier-Mail for Saturday, 21 July, 1990 published an article under the headline "Injunction Sought Over Jeweller's Property Plan". The article spoke of Queen Street property owners seeking an injunction to stop Brisbane jeweller Mr ·"~ Wallace Bishop extending his premises at 117 Queen Street. The property owners were identified as Mr Victor Patti and Mr Dennis Palmos and "Ms Florence Venery, owner of 188 Albert Street." Messrs Patti and Palmos were representatives of a larger number of owners of what was referred to as their property. The property owners were reported to be objecting to the effect the proposed development would have on their access by an easement over land owned by Mr Bishop (or a company controlled by him). The article referred to the Brisbane City Council being in a "potentially embarrassing position" because Council officers had been using portion of "Ms Venery's property" as a staff and store room for a number of years. It is clear that Sophie Venery saw the article. Its reference to Florence as the owner without any reference to her, triggered off or fed a reaction that Florence was trying to take Sophie's interest in the property off her without her knowledge. The statements in the letter of 3 September 1990 to Alex Frilingos and Sophie's statements to Mrs Brown which I mentioned earlier reflect such a -- 27 of 37 -- 27 state of mind. The circumstances surrounding the events referred to in the Courier-Mail article were, briefly, as follows:- The Patti family owned a property on the Queen Street mall with a rear lane access from Albert Street by means of an easement over land owned by Wallace Bishop. The Venery property in Albert Street shared the same access. Wallace Bishop (or his company) also owned a building in Albert Street between the Venerys' building and the access lane. When he learned of development proposals by Wallace Bishop which might adversely affect access via the easement Mr Patti spoke with other affected property owners including Mr Danny Palmos and Florence Venery. The Palmos, Venery and Patti families were members of the Greek community. The Venerys and the Pattis were in fact cousins. Mr Patti knew Florence and Sophie. The families had, for example, been involved in community functions as they were growing up. Florence would always stop and speak but Sophie "was a different person"; she was not as friendly as Florence. Many years before the events of 1990, there was considerable dissension among the Greek community, particularly those coming from the island of Kythros, concerning a bequest by a man named George Sklavos. The matter was much litigated and at least one of its emanations went to the High Court. George Venery had for a time been President of the Kytherian Association and the members of the Patti family were involved in the matter which was the cause of the dissension and bitterness in the Brisbane Greek (Kytherian) community. Sophie Venery seems to have had bitter feelings towards Victor Patti on account of this; Following the publication of 21 July she told Florence that Victor Patti was trying to use the -- 28 of 37 -- 28 Venery family name to his advantage and that he had taken advantage of her, Florence. Early in 1990, Victor Patti began to assist Florence in dealing with some aspects of the difficulties concerning the Venery's Albert Street property. As I have said, the building was in extremely bad repair and on 12 April 1990 Florence signed an authority permitting entry and inspection for the purposes of preparing a report detailing necessary repairs. This resulted from a telephone call initiated by Patti in March of 1990. Having regard to the state of the building, a lease was negotiated with the existing tenant for one year at $10 000 per month. This was to be re-negotiated after the year had expired and repairs were completed. Patti assisted in this. On 1 6 May 1990 Florence notified Sop hie in writing of the terms of the new lease, and on 20 May Sophie confirmed by telephone that repairs were to be made to the building. On 14 April, 1990 Florence Venery had given Victor Patti an authority to act to protect her and her sister's interests in respect of the easement. Proceedings were instituted in the Supreme Court seeking to restrain the Wallace Bishop development at least in so far as it adversely affected the easement access. Florence and Sophie were among the plaintiffs in the action. The same solicitors were instructed to act for the Pattis and for the Venerys. They were the Pattis' solicitors but Florence Venery decided for obvious reasons of convenience that the same solicitors should act for both. Vie Patti gave evidence that the Venerys' joinder in the proceedings was "not to be in any way to their detriment" and their costs were to be met by the Patti interests. The matter was settled on terms -- 29 of 37 -- 29 favourable to the Venery, Palmos and Patti interests. Patti signed the terms of settlement on behalf of all those interests. There is no doubt that the outcome was advantageous to the Venery interests or that had the original proposal been implemented. I accept that throughout Florence and Patti acted in Florence and Sophie' s best interests in respect of the building. Florence however had not disclosed Patti' s involvement, or other aspects of the affair. This was because she believed it would cause difficulties with Sophie. She was probably right. Sophie first learned of the Patti involvement and the dispute with Bishop from the article. That Florence had ~~, not involved Sophie or even made disclosure to her is, given the troubled history of their relationship involving the building, understandable. Given that history and Sophie's personality, her adverse reaction to the article was almost inevitable. Six to eight weeks after the publication of the article of 21 July Vie Patti received a telephone call from Sop hie Venery. As a result, they met and had a ( detailed discussion about the matter. The outcome of this was that Sophie was apparently satisfied and instructed him to take Florence's direction. Difficulties continued however. On 30 July Florence Venery wrote to Sophie enclosing the details of repairing toilets and water connection at Stiletto (the name of the boutique conducted by the lessors of the Albert Street building). She advised Sophie that the building was in terrible shape and would need further attention; Florence said that she had taken advice in respect of those things, that she was updating the insurance which was hopelessly out of date. On 31 July, 1990 Walsh Halligan Douglas, acting on Sophie Venery's instructions, wrote to Florence with regard to -- 30 of 37 -- 30 earlier letters to Sophie. These related to the need to attend to the building. Walsh Halligan Douglas stated that repairs were carried out without authority and that no liability for them was accepted, that an extension of the lease had been negotiated without authority. Reference was made to the newspaper report of 21 July and it was stated that Sophie did not wish in any way to be joined in the action. Whether Patti had spoken to Florence at this time is not clear. On 10 September, 1990 McCullough & Robertson wrote to Walsh Halligan ''·· Douglas on Florence's instructions "in relation to her relationship with Miss S Venery, your client". The letter canvassed the need for increased insurance and rectification and enclosed reports directed to the issue of the fragility and unsafeness of the structure and sought a response as a matter of urgency. There were further letters from McCullough & Robertson on 11 September and 1 and 5 October, pressing for a response. On 30 September Walsh Halligan Douglas wrote to the insurance broker r. saying that Sop hie had not authorised an increase in the level of insurance and was not prepared to contribute to any increased premium in that respect. The brokers relinquished their involvement because of Sophie's attitude. There is no doubt that the situation warranted improved insurance arrangements. As Bishop proceeded with the work on his building there were difficulties about access, boundaries and the like. Structural problems of a "serious nature" had been identified in the Venery building. On 14 November, 1990 there was a conference of the affected proprietors including Florence and Sophie Venery and an architect. Among other things the defects and problems associated with the -- 31 of 37 -- • n 31 building were canvassed. Sophie apparently came to appreciate the extent of the problem caused by the defects. In the meantime, in 1990 a Mr Peter Tsikleas and his son conducted a newsagency in the foyer of the Mayfair Crest Hotel and a Mr Giovanni Oneto was the concierge at the Hotel. At a date which on the basis of their evidence I am satisfied was shortly before 20 September Sophie Venery came into the shop and confronted Mr Tsikleas. The Venery and Tsikleas family were known to each other as members of the Greek community. Sophie Venery was in a very disturbed state. She "flew into a tantrum" and started screaming about her sister spending all her money and joining with Vie Patti to ruin her and take her property away from her. Mr Tsikleas had in fact not had a great deal to do with Sophie in more recent times and knew nothing of her affairs. He tried to placate her and in the course of his endeavours she left the building. Mr Tsikleas was sufficiently concerned to try to contact Florence and eventually he wrote to her suggesting Sop hie needed care and support. In response to a request by Florence associated with difficulty in reading his writing he wrote a subsequent letter. I accept Mr Tsikleas's, his son's and Mr Oneto's accounts of these events. Sophie's behaviour and statements on this occasion were not rational. There are aspects of Sophie's behaviour which, if they stood in isolation, might be explained as reflecting justifiable misunderstanding in respect of the events surrounding the public affair of 21 July. There are other aspects of her behaviour which it is impossible to regard as a rational response. In a wider sense there are aspects of Sophie's behaviour which might be explained as a consequence of her leukemia, its complications and treatment, or of her being of / -- 32 of 37 -- 32 an isolated cast of personality with some histrionic manifestation, or as manifesting the sorts of differences which arise between siblings. In later years she was an old lady living alone. No doubt she presented in many situations as natural and normal. I find it, however, impossible to avoid a conclusion, based on the whole of the evidence, that there was a pattern of irrational or aberrant behaviour, the explanation for which lies in some disorder of the mind. The plaintiffs called Dr Francis Thomas Varghese to give evidence directed to this issue. The defendant called Dr William Arthur Barclay. Both were appropriately qualified to give the evidence they gave and each struck me as careful and responsible in the evidence he gave. Neither doctor had any dealings with Sophie Venery during her lifetime and both became involved in the context of this litigation. As I mentioned earlier, the pleading and particularisation of Sophie's absence of testamentary capacity, claiming it was on account of her having suffered from schizophrenia from at least the age of 13, gave rise to something of a false issue. Dr Varghese's original brief was directed to the issue as pleaded and particularised and was based on more limited material than was in evidence at the trial. I should mention that in so far that either doctor had regard to the St Andrews Hospital records, they were not in evidence. Nothing, however, turns on that. In his original report Dr Varghese was of the view, put shortly, and at the risk of not doing his view and its justification full justice, that anyone correctly diagnosed as suffering from schizophrenia at the age of 13 was unlikely to have functioned as long and as effectively as Sophie Venery did. Moreover, some manifestations of schizophrenia, as he defined it, were absent in Sop hie Venery's -- 33 of 37 -- . " 33 case. Dr Varghese prepared a second report considering additional material. In this he made a diagnosis of:- "Personality disorder of a mixed type. By this I mean that I consider the deceased to have had an extreme variation in personality, so as to constitute a disorder in that it has an impact on her interpersonal life and her social functioning to a significant degree. To be more specific, I consider that she had features of 'paranoid personality', 'schizotypal personality', 'borderline personality' and 'histrionic personality'. In other words she had a cluster of personality characteristics which are lifelong traits and that made her an odd and an eccentric person, as well as a highly emotional person, and furthermore, these have impacted significantly on her life and on the lives of others." He regarded the condition as being one of extreme variations in the nature of the person rather than a mental illness in the sense in which that was usually understood. He went on to say:- " ... lt is important to mention, however, that from time to time persons with the kind of personality disorder in the deceased have episodes of psychosis. This is particularly true of people with borderline personalities and with schizotypal personality and occasionally the paranoid personality. Those episodes of psychosis are usually short-lived and occur in response to severe stressful events. The important issue here is that unlike in schizophrenia the psychosis is short-lived and the psychotropic symptoms do not have the particular characteristics of schizophrenia." Dr Varghese did not consider that personality disorder of itself could interfere with testamentary capacity unless the will was made at the time of a transient psychosis. Some of Sophie's behaviour was in his view indicative of a schizophrenic disorder. Dr Barclay stood by a diagnosis of paranoid schizophrenia. This is a major mental disorder affecting perception, emotion and capacity for action. The differences between Dr Varghese and Dr Barclay are, I think, essentially matters of differences in diagnostic criteria and associated differences in diagnostic style. lt seems to me unnecessary to reach any conclusion as,to whether the one -- 34 of 37 -- 34 approach was more valid than the other, but if pressed I would be inclined to regard Or Barclay's evidence as providing a more complete explanation for Sop hie's behaviour, as ultimately emerged in the evidence. I should mention that Or Barclay was the last witness called. I accept that the evidence sustains Or Barclay's diagnosis of paranoid schizophrenia, given the diagnostic criteria he applied. The evidence indicates that what Or Varghese refers to as the negative symptoms - the profound social and occupational disability that a person with schizophrenia suffers from - may have been more marked than was indicated by the material available to him at the time he wrote his reports. More over, the positive symptoms (the acute manifestations) were probably more marked than material available to him indicated. On the whole of the evidence Sophie Venery had a serious personality disorder, reflecting a disorder of the mind, dating from childhood. There is no doubt that this occasioned paranoid manifestations which might on occasion (in the sense of from time to time} be directed towards her sister Florence. The manifestation of these episodes may have been short-lived and in response to stress, although I am inclined to think that somewhat understates the position. There is occasion to think that Sophie may have been skilled at concealing the manifestations of her condition in some situations and to some observers. In any event, the underlying condition which caused them remained after the particular manifestations ceased. On the other hand, if the aberrant aspects of her personality were not engaged, Sophie was quite rational. At the time that the instructions for the will were given and it was executed there is every occasion to think that the state of relationship between the sisters was extremely fragile on -- 35 of 37 -- 6 ( '] h 35 account of the events relating to the Albert Street property. Those events, in conjunction with the leukemia and it consequences, put Sophie under great stress. Sophie's attitude towards Florence was not always hostile, even during 1990. She spoke of coming to live with or near Florence on the Gold Coast and was, on occasion, on affectionate terms with her. On 9 December, 1990 Sophie Venery wrote to Mr Fennell, a member of the firm of Stephens & Tozer, who had succeeded to Mr Prentice's involvement in the affairs of the Venery's. She stated that Florence had been negotiating the lease of the Albert Street property without her knowledge or consent. In the same letter Sophie instructed Fennell to prepare a will with Florence ~j as executor and sole beneficiary. After a telephone discussion, by letter of 30 January, 1991 Sophie gave Fennell instructions that the will should provide that in the event of her sister pre-deceasing her, her estate was to be shared between Helen Cassimatis and Jacqueline Peta Comino, who were also to be executors and trustees. The will was never executed. Sophie did not respond to Fennell's letter notifying her it was ready. He put it down to her having changed her mind. Perhaps she had become too ill. This episode shows a state of mind reflecting a different comprehension and appreciation of Florence's claims and the effect to be given to them than does the will of 12 September 1990. On the whole of the evidence, I cannot be satisfied that Sophie Venery was of sound mind, memory and understanding when she gave instructions for and executed the will of 12 September 1990. Indeed the probabilities are to the contrary. -- 36 of 37 -- 36 The outcome being as I have indicated, counsel for the plaintiffs accepted that the defendant was entitled to judgement on the counterclaim. I therefore pronounce against the will of 12 September 1990. The testator Sophie Venery lacked testamentary capacity at the time she gave instructions for and executed that will. I pronounce that the defendant is the lawful sister of and only person entitled to the estate of Sophie Venery. Subject to the formal requirements of the Registry she is entitled to a grant of administration of the estate. -- 37 of 37 --