Romano v Romano & Anor [2004] NSWCA 37 (27 February 2004)

Last Updated: 1 March 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Romano v. Romano & Anor. [2004] NSWCA 37

FILE NUMBER(S):

40581/03

HEARING DATE(S): 18 December 2003

JUDGMENT DATE: 27/02/2004

PARTIES:

Edward Romano - appellant

Donna Romano and Louise Romano - respondents

JUDGMENT OF: Sheller JA Hodgson JA Ipp JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED104953/02

LOWER COURT JUDICIAL OFFICER: Bryson J

COUNSEL:

Mr. B.W. Rayment QC with Mr. J.R. Wilson SC for appellant

Mr. I.G. Harrison SC with Mr. L. Ellison for respondents

SOLICITORS:

Michie Shehadie & Co., Sydney for appellant

John Fisicaro & Co., Burwood for respondents

CATCHWORDS:

SUCCESSION

WILLS, PROBATE & ADMINISTRATION - Admission of document to probate - Whether sufficient that document be capable of testamentary effect - Proof of testamentary intention - Extrinsic evidence

SUCCESSION

WILLS, PROBATE & ADMINISTRATION - Testamentary capacity - Onus of proof - Whether primary judge in error in holding testamentary capacity not proved

LEGISLATION CITED:

Wills Probate & Administration Act 1898 (NSW) s.29

DECISION:

1. Appeal dismissed with costs. 2. Order that the appellant not be indemnified from the estate either for his own costs of the appeal or for the costs of the appeal of the respondents.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40581/03

ED 104953/02

SHELLER JA

HODGSON JA

IPP JA

Friday 27 February 2004

ROMANO V. ROMANO & ANOR.

Judgment

1 SHELLER JA: I agree with Hodgson JA.

2 HODGSON JA: On 30 May 2003, Bryson J granted to the appellant Edward Romano probate in solemn form of the will dated 6 December 1988 and the codicil dated 28 August 1990 of the late Giacomo Romano, who died on 2 June 2001 aged 87 years. Bryson J refused probate of a document bearing date 5 April 1998, which had been propounded by the appellant as an amendment to the will and codicil. His Honour ordered that the costs of both parties be paid out of the deceased's estate. The appellant appeals to this Court from that decision, specifically in so far as it relates to the document of 5 April 1998.

3 The deceased was a widower, his wife having died in 1987. He had two children: the appellant, and another son John who died in 1995. John had left surviving him a widow Jeanette Romano, and two children Donna and Louise. The two children were defendants below and respondents to the appeal. John's will, in the events that happened, gave his whole estate to his widow. Under the deceased's will and codicil, his estate was to be divided in ways which I will specify later, between the appellant and John. As noted by the primary judge, s.29 of the Wills Probate & Administration Act 1898 had the effect that the provision for John under the deceased's will and codicil would take effect as if John had died immediately after the deceased, with the result that this provision would pass under John's will to Jeanette. Although Jeanette was not a party to the proceedings, no point has been taken concerning parties, and no doubt her interests were supported by her children, who were parties and are the respondents to this appeal.

4 The assets of the deceased at the date of death, as disclosed in the probate application, were two units at Avalon valued at $630,000.00, land in Italy valued at $10,000.00, funds with the Protective Commissioner of $970,000.00, funds loaned to a family trust of $137,405.46, funds in a solicitor's trust account of $25,000.00, shares valued at $2,000.00 and a motor vehicle valued at $1,500.00. However, in addition to these assets, the deceased had made loans to the appellant of just under $5 million: these were not disclosed in the probate application, because the appellant had instructed the solicitor acting on the application, Michael John Shehadie, that these debts "had been forgiven by the deceased in the document dated 5 April 1998".

5 The deceased's will of 6 December 1988 had been prepared by Mr. Shehadie, and witnessed by him and another person. It made specific gifts to each son, and gave the residue of the estate to them equally. The codicil of 28 August 1990, also prepared by Mr. Shehadie and witnessed by him and another person, provided for a gift to be made to one or other of the sons, of such amount as the amounts set aside under the family trust to one son should exceed the amounts set aside to the other son.

6 The document of 5 April 1998 was written out in handwriting by the appellant, and was in the following terms:

341 Blaxland Rd

Ryde

I have made my son Edward manager of my estate as long as we both live.

If I become mentally/ physically incapacitated, Ed

is to care for me in consultation with DR HANNAM or his delegates.

Ed is to act as he sees fit to protect, consolidate and expand my estate, so that it will be as fully sheltered as possible from taxation both here & abroad, when my estate passes to Ed & his heirs.

I exempt Ed & his family for the return of all

loan monies & interest, Ed accrues form Trust & Sales Real Estate loan etc from my estate.

If Ed dies before me, I want Ed's wife Gwyneth & children to take over from Ed, my health & estate care needs.

April 5 1998

GIACOMO. G. ROMANO

G. Romano

V. Chose

R. Chose

(The deceased sometimes referred to the appellant as "Ed" or "Eddie")

7 This document was witnessed by two friends of the deceased.

OUTLINE OF EVENTS

8 The family trust to which I have referred was set up by the deceased on 31 October 1981. It was a discretionary trust, and the deceased was the trustee.

9 As mentioned earlier, the deceased's wife died in 1987. The deceased's will was executed on 6 December 1988, and the codicil on 28 August 1990.

10 There was evidence from Jeanette Romano that, in 1994, the following occurred ("Jimmy" being the deceased):

In early 1994 there was a serious incident. Jimmy called John and I saying words to the effect:

"Some of my money has been stolen."

John went to see him and they both came back to our house. There was a conversation to this general effect:

Jimmy "I had some money in a cardboard box under the house and it is missing. It was a lot of money, about $300."

John "Let's call the police."

Jimmy "No. I do not want the police involved."

The next day John and I went down to see Jimmy and there was a conversation something like this:

Jimmy "There was $3,000 in that tin and it is gone. The only people in the house at the time was me and John, Sue (the housekeeper) and her son. Who could have taken it?"

John "Dad. I do not think that you had any money there any more. I think that you are remembering when we were young and you kept money in a tin[e]. Maybe you are confused and got it wrong."

Over the following months Jimmy every now and then would raise the subject of the missing money again and say words to the effect":

"Someone stole my $13,000. It was in a paper bag."

Jimmy never actually actually accused John of stealing the money but often inferred it when discussing the incident with words to the effect:

"There was only me, John and Sue in the house and I know that Sue did not steal the money so who could it be?"

...

On Father's Day 1995 we were celebrating at a restaurant. Jimmy again raise (sic) the issue of the 'stolen money'. He said something like:

"Someone took my $25,000 from the tin."

This evidence was not challenged and was accepted by the primary judge.

11 On 11 September 1995, John died.

12 In August 1997, there was a family meeting to discuss the sale of a property at Ingleside owned by the deceased, the appellant and Jeanette. It appears that some agreement was reached about the sale of the property, but there was later a dispute, and in December 1997, Jeanette commenced s.66G proceedings to compel the sale of this property. Those proceedings were resolved, and the property was auctioned on 28 March 1998.

13 Meanwhile, on 27 October 1997, the deceased had a stroke. Jeanette's evidence was that the deceased seemed confused after that, and also that he was drinking a lot of alcohol. This evidence was accepted by the primary judge.

14 On 14 November 1997, the deceased signed a contract to sell a property at Ermington for $1.35 million. On 17 November 1997, he gave an enduring power of attorney to the appellant. This document was witnessed by Mr. Shehadie.

15 Also in November 1997, it appears there were conversations between the deceased and Jeanette, and between the deceased and his granddaughter Louise.

16 Jeanette gave the following evidence:

17. Jim rang me one day about November 1997 and we had a conversation to the effect:-

"Ed wants me to change my Will to leave everything to him and he will make sure that everyone is taken care of Ed said that this will be the easiest way."

Me "Well what do you want to do?"

Jimmy I just want to leave things the way they are."

Me "Well whatever you decide to do, call your solicitor Shehadie. He will come to you if you want."

I am aware that at about this time he had a similar conversation with my daughter Louise. After this conversation, Jimmy never raised this subject with me again.

17 Louise gave the following evidence:

In about November 1997 I had a conversation with Michael Shehadie to the following effect:-

Shehadie "Neither you or your mother or your sister are in your grandfathers Will. Maybe you need to talk to him about it."

The following weekend I went to see Grandpa and after some other conversation we had a conversation to the following effect:-

Me "I am sorry to do this because I am embarrassed but can I talk about your Will."

Grandpa "I've been talking to your mom about it this week."

Me "I've been told by Michael Shehadie that we and (sic) not in the Will and that mom Donna and I will get nothing. Is that what you want."

Grandpa "No, that is not what I want. I've been talking to Ed about it and Ed wants me to change my will. I've also been speaking to Michel Shehadie and told him that I don't want it changed."

Me "Michael Shehadie told me that if you leave it the way it is that Ed will get everything. Why don't you phone Michael Shehadie on Monday."

Grandpa "I will."

I telephoned Michel Shehadie on or about the following Tuesday but he said to me something like "I have not spoken to your grandfather."

18 There was no challenge concerning these conversations.

19 On 27 March 1998, the sale of the Ermington sale was completed. A cheque for over $1.2 million was received. There is evidence of conversations at and around this time between the deceased and his accountant Mr. Thomas, and also between the deceased and a legal secretary concerning what was to be done with the money, suggesting that the deceased had a reasonable grasp of the transaction. The appellant and the deceased on this day executed an agreement under which the deceased lent $1.4 million to the appellant, at a stated interest of 7% per annum. No interest was ever paid and, according to the appellant, it was never intended that interest be paid. Mr. Shehadie attended the home of the deceased when this loan document was executed; and his evidence was that he explained the document to the deceased, and that the deceased read it and appeared to understand it.

20 I interpolate here that the appellant had lived mainly in the United States since about 1960, although he visited Australia from time to time, and he was in Australia in March and early April 1998.

21 On 31 March 1998, there was a discussion between the appellant and the deceased's general practitioner which, according to the general practitioner's notes, concerned the deceased's "severe short-term memory loss with paranoia/aggression".

22 On 5 April 1998, the document the subject of these proceedings was prepared. According to the appellant, it was written out by him in circumstances where he took down words dictated by the deceased. He dated the document 5 April 1998, but left it unsigned with the deceased. He in fact left for the United States the following day, 6 April 1998. During the conversation concerning this document, according to the appellant, the deceased indicated he did not wish to speak to his accountant; and he also said "As long as I am ok we won't need it. I will keep hold of it and we'll keep it to ourselves until it is needed". The document was not shown to or discussed with Mr. Shehadie or any other person. It was later found by the appellant among papers of the deceased in about early 1990.

23 The friends of the deceased who witnessed the document gave evidence that the deceased telephoned them and asked them to come over; and when they came, he asked them to witness his signature on the document. According to one of them, the deceased said among other things "Eddie has gone back to America. I want to leave everything to him. I don't want to leave anything to Jeanette". According to the other, the deceased among other things said "I'm just going to leave everything to Eddie". This witness also said that, on previous occasions, the deceased had said that John "stole money from under my house".

24 The sale of the Ingleside property was completed in June 1998. Each of the three owners received about $600,000.00 from this sale. Another loan document between the deceased and the appellant was signed at around this time, recording a loan of $1.2 million, at a stated interest rate of 6%.

25 It appears that in August 1998, the deceased assaulted a female tenant of one of his properties, and in the course of this put his hand on her breasts.

26 The deceased was examined by a consultant physician Dr. Tam on 28 September 1998; and Dr. Tam later reported that, on that date, the deceased did not demonstrate competence in decision-making. A CT scan of the brain taken on 30 September 1998, according to Dr. Tam, "demonstrated significant cerebral atrophy with ischaemic changes and enlargement of ventricular system, consistently with his predominantly vascular dementia". On 26 October 1998, Dr. Tam gave a certificate to the effect that the deceased had no testamentary capacity.

27 In April 1999, the deceased commenced living in a nursing home.

28 On 26 July 1999, a further loan agreement was executed between the deceased and the appellant, this time for just over $4 million, at an interest rate of 5%. This was signed on behalf of the deceased by the appellant as his attorney.

29 It appears also that income of the family trust was paid to the appellant by the trustee, this presumably being by means of the appellant paying himself, as he was the attorney for the deceased.

30 In about September 1999, there were proceedings in the Guardianship Tribunal concerning the guardianship of the deceased and/or management of his estate. Medical evidence was presented concerning the deceased's mental capacity. Evidence from his general practitioner included the statement that during the past three years the deceased "had become progressively demented and more dependent".

31 The deceased died on 2 June 2001.

PROCEEDINGS BEFORE THE PRIMARY JUDGE

32 There were two issues contested before the primary judge: first, was the subject document a will; and second, if so, did the deceased have testamentary capacity when he executed it? The primary judge decided both questions adversely to the appellant.

33 On the first question, the primary judge stated the test to be applied in the following terms:

For the present purposes a will must be [sic] and must be intended to dispose of property or of rights of the testator in a disposition which is to take effect when the testator dies, but until then is not to take effect, but is to be revokable.

34 The primary judge carefully considered the terms of the document and concluded that it did not express any testamentary intention or make any testamentary disposition. He considered extrinsic evidence concerning the deceased's intention, notably from the appellant and the two witnesses. He said he did not have confidence in the appellant's evidence. As regards the witnesses, he regarded the deceased's statements to them as indicating an intention to leave the management of his affairs to the appellant. The primary judge also relied on the circumstance that the deceased chose not to involve his solicitor in the preparation of the document, and to keep the document as a matter between himself and the appellant.

35 In relation to the second question, he considered evidence from estate agents and a bank officer to the effect that the deceased appeared to understand business matters in about February and March 1998; and evidence of conversations at around that time with a legal secretary and the deceased's accountant. He considered evidence from Mr. Shehadie concerning his dealings with the deceased in 1998, including evidence that he had no reason to believe that the deceased did not understand the transactions under consideration. He also considered evidence from other acquaintances, including a solicitor who saw no reason as at 18 August 1998 to believe that the deceased did not understand the business and documents then being transacted. The primary judge also reviewed the medical evidence, including the matters to which I have briefly referred.

36 His conclusions on testamentary capacity were expressed as follows:

75 The evidence shows that Mr Giacomo Romano had had, for some years, even in the lifetime of his son John Romano, feelings of hostility towards John Romano and his family, and that he expressed beliefs, in various terms, about supposed misbehaviour including stealing large (but various) sums of money from himself, which are very unlikely to have had a reasonable basis. He also expressed himself in ways which showed that he did not have a rational view of Mrs Jeanette Romano's position as a co-owner of the Ingleside property and of her wish to realise the value of her share, which was very much a matter for her own decision and not one in which she could reasonably be expected to accept control or delay from her co-owner. He suffered a stroke before he wrote the third document. There are in the evidence expressions of concern about his ability and judgment, even roughly contemporaneous with the third document, and becoming more intense later in the year, with an episode of inappropriate behaviour towards his tenant which seems to show a marked deterioration in judgment and appraisal of other people; or in any event, of her. His money transactions with Edward Romano, which began before the date of the third document, show him progressively resigning, eventually completely, his management of property and his control of his affairs to Mr Edward Romano. There are a number of instances in evidence in which persons dealt with him in matters of business in which he appeared to show an appropriate grasp of his interests and of his dealings, and did not give signs of a want of competence. For the most part this evidence shows Giacomo Romano dealing in business which was routine or which repeated business of kinds which he had conducted earlier and with which he was probably familiar, and performing acts which were in his own interests, and for the most part he was supported by professional or other business persons' assistance; things which, while significant in their own ways, did not require the kind of advertence and consideration necessary for formulating a testamentary disposition.

76 If the third document is treated (contrary to my finding) as testamentary, it shows in its own terms a great deterioration of the quality of consideration which he had earlier given to making a will, as it does not mention or deal with earlier wills, revoke them or say whether they are to stand, it does not deal with or consider Mrs Jeanette Romano or her daughters, who were Giacomo Romano's grand-children and naturally would come under consideration, and (on the plaintiff's reading) it disposes of his property by implication and not by well-considered or clear statements. Making a will in this way and in these terms is of itself an indication of failure of powers of mind.

77 The onus of proof of testamentary capacity always remains upon the plaintiff, and in seeking to show that this onus has been discharged the plaintiff is not assisted by any circumstances of apparent regularity of the preparation or of the execution of document as a will. If the third document did in fact contain any testamentary disposition I would not have been prepared to grant probate of it because it has not, to my finding, been established on the balance of probabilities that Mr Giacomo Romano was of sound mind, memory and understanding when he signed the document.

GROUNDS OF APPEAL

37 The appellant relies on the following grounds of appeal:

1. His Honour erred in finding that the handwritten document signed by Giacomo Giuseppe Romano on 5 April 1998 was not the Will or a codicil to the Will of Giacomo Giuseppe Romano.

2. In concluding that the document dated 5 April 1998 was not the Will of Giacomo Giuseppe Romano. His Honour erred in that he failed to give any or any proper weight to witnesses whose evidence was not challenged.

3. His Honour erred in finding that Giacomo Giuseppe Romano lacked testamentary capacity in April 1998.

4. In concluding that Giacomo Giuseppe Romano lacked testamentary capacity in April 1998 His Honour erred in that:

(a) he failed to give any or any proper weight to the evidence of witnesses whose evidence was not challenged.

(b) he failed to give any or any proper weight to the circumstance that the Deceased managed his own affairs.

(c) he failed to give any or any proper weight to the fact that the Deceased entered into legally binding contracts at or about the time he executed the document dated 5 April 1998.

TESTAMENTARY INTENTION

38 Mr. Rayment QC for the appellant submitted that the primary judge did not adequately address the distinction between, on the hand, ascertaining the intention of the deceased, for the purposes of determining whether a document should be admitted to probate, and on the other hand, construing the document to determine what if any testamentary disposition it actually effected. On the first matter, he submitted, if the deceased had the subjective intention that the document be a will, that is, operate on his death to affect his property or rights, it was sufficient to justify admission of the document to probate that it be capable of having such an operation. Whether or not the document actually does have that operation is a matter of construction; and a document admitted to probate because it is capable of having such operation may subsequently be construed as in fact not having any such operation. The first question, relating to the requirement for admission to probate, concerns the deceased's subjective intention, and evidence extrinsic to the document is generally admissible: the second question, the question of construction, concerns intention as manifested by the document, with very limited scope for extrinsic evidence. Mr. Rayment referred us to In Re Resch's Will Trusts [1969] 1 AC 514, at 547; and In Re Hawksley's Settlement [1934] Ch. 384 at 395-6.

39 Mr. Rayment submitted that the document in this case was capable of having testamentary operation. The words "when my estate passes to Ed and his heirs" were capable of manifesting an intention that the document have the effect that the deceased's estate should pass to Ed and his heirs upon the death of the deceased. Further, the words "I exempt Ed and his family for the return of all loan moneys and interest" could, particularly in association with the former words, be construed as manifesting an intention that this foregiveness occur upon the death of the deceased.

40 Mr. Rayment submitted that the extrinsic evidence that the document was intended to be a will was strong. He referred to the circumstance that it was signed and executed in the manner appropriate for a will. He referred to the appellant's evidence of the conversations leading up to the preparation of the document, and particularly to the evidence given by the witnesses.

41 Mr. Rayment submitted that the primary judge was wrong in the way he stated the test, suggesting that the document must in fact have the effect of dealing with the deceased's property and/or rights on his death, rather than merely being capable of having that effect. He submitted that the primary judge was in error in holding that the evidence of the witnesses could be understood as indicating merely that the deceased wished to leave the management of his property in the hands of the appellant. In any event, he submitted that this Court was in as good a position as the primary judge to reach a conclusion on intention; and that the correct conclusion that should be reached by this Court was that the deceased did intend this document to be his will.

42 In my opinion, Mr. Rayment was correct in the distinction which he drew between the approach to be taken in deciding whether to admit a document to probate, and that to be taken when the actual effect of the document has to be determined (although I would say that in appropriate cases both questions can be addressed in one hearing). In my opinion, the cases to which he referred do show that, in order for a document to be admitted to probate, it is sufficient that the document be capable of having a testamentary effect, so long as the intention of the deceased that the document be his will is established. In this case, it seems to me that the document was (just) capable of being construed as having testamentary effect. If the document had commenced by stating that it was the last will of the deceased, or had otherwise plainly on its face indicated an intention that it operate on his death, but otherwise was in the same terms as this document, I think that would have been sufficient to justify admission of this document to probate. Indeed, if the evidence of the witnesses had been to the effect that the deceased said to them at the time the document was executed that he intended this document to be his will, and/or he intended this document to set out what was to happen to his property on his death, that may also have been sufficient to justify admission of the document to probate. That may have been a sufficiently clear indication of a subjective intention that the document operate as a will, and as I have said, I think the document is (just) capable of being construed so as to have testamentary effect.

43 However, that being said, in my opinion the terms of the document are such as strongly to suggest that it is a document operating during the lifetime of the deceased, and not, in any of its parts, having any effect on the deceased's property or rights on his death. The words "when my estate passes" are apt to identify a time at which the deceased wished to have his assets sheltered from taxation, and do not suggest any intention, by those words, to actually cause the estate to pass to the appellant. If those words are interpreted in that way, there is then no basis for interpreting the words relating to exemption from return of loans moneys as operating on death. In my opinion also, the extrinsic evidence of testamentary intention is not strong. The primary judge did not have confidence in the appellant's evidence; and although Mr. Rayment submitted that this view was reached on slender grounds, in my opinion his submissions fall far short of showing any basis for departing from this view of the primary judge. The evidence of one of the witnesses to the document is certainly capable of having the interpretation which the primary judge gave to it, namely that the deceased's statements merely indicated an intention to leave the management of his affairs to the appellant. The evidence of the other witness, which associated the words "I want to leave everything to him" with the words "I don't want to leave anything to Jeanette" is not, in my opinion, capable of the interpretation given by the primary judge; but those words of the deceased did not necessarily refer to what he intended to achieve by the document, and they are explicable on another basis.

44 The evidence given by Louise of her conversation with the deceased in about November 1997 suggests that the deceased believed that the death of John meant that his existing will and codicil had the effect that his estate would pass to the appellant. There is certainly nothing in the evidence to suggest that the deceased was aware of the effect of s.29 of the Wills Probate & Administration Act. If, as seems probable, the deceased believed that the effect of his present testamentary arrangements was that his estate would pass to the appellant, then this would explain both the form of words used in the document ("when my estate passes"), and also the words spoken to the witness, to which I have just referred.

45 In those circumstances, I do not think the extrinsic evidence is sufficient to show testamentary intention, where the wording of the document itself points strongly against it. Accordingly, I would not disturb the primary judge's finding on the first point.

TESTAMENTARY CAPACITY

46 Mr. Rayment submitted that the requirement for testamentary capacity is not a demanding one. He referred us to the case of Banks v. Goodfellow (1870) LR 5 QB 549, in part to advert to the facts of that case, where a testator was held to have testamentary capacity despite having very severe mental problems. The case indicated that the circumstance of a weak intellect, or affectation by serious delusions, would not preclude testamentary capacity, so long as the delusions did not affect matters essential to the making of the will.

47 The classic statement of the formula for determining testamentary capacity appears at p.565 of the report in this case, as follows:

It is essential to the exercise of [testamentary] 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 delusions 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.

48 Mr. Rayment also referred to the following passage from Re Estate of Griffith NSWCA 7/6/95:

Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.

49 Mr. Rayment submitted that the primary judge did not give sufficient weight to evidence given by estate agents, solicitors, an accountant and others concerning the deceased's competent carrying on of business and conversations at around the time of the document. He submitted also that there was error in the primary judge relying, as evidence tending to negative testamentary capacity, on what he described as an irrational attitude to Jeanette in relation to her insistence on selling a property which he did not want to sell. He submitted that an attitude of that type fell squarely within the matters referred to in the above quoted passage from Griffith.

50 In my opinion, the deceased's reaction to Jeanette's forcing a sale of property, although it might be considered unwise or unreasonable, could not be considered irrational or as any significant evidence tending to negative testamentary capacity. However, as one very small factor in an overall picture, it is not irrelevant; and I do not consider the primary judge's choice of the word "irrational" as itself indicating error. I would add that, for my part, I would express more strongly than the primary judge the effect of the evidence concerning the deceased's attitude to John. In my opinion, it should be inferred that the deceased's conduct concerning the supposed stealing of money was such as to indicate severe irrationality in relation to the matter, and a likelihood that his irrational attitude to John could well have affected his comprehension and appreciation of the claims of John's family.

51 In my opinion, there was ample basis, adequately explained in the reasons, for the primary judge to come to the view that the evidentiary onus on those opposing probate had been discharged, so that the onus of proving testamentary capacity fell squarely on the appellant. One important aspect of testamentary capacity is that the deceased should be able to comprehend and appreciate the claims to which he ought to give consideration; and plainly, among those claims in this case were the claims of his grandchildren, being the children of his deceased son John. The circumstance that they have been excluded, with no suggestion that the deceased had any rational ground for doing so, is in my opinion a relevant factor in determining whether the appellant did discharge the onus of proof of testamentary capacity. There was evidence of the deceased's medical condition tending against testamentary capacity, including his stroke in November 1997 and confusion thereafter, the appellant's own assessment of the matter as conveyed to the general practitioner on 31 March 1998, the assault occurring in August 1998, and the strong assessment of Dr. Tam in September 1998 of lack of competence to make judgments and lack of testamentary capacity. Notably, this occurred quite shortly after transactions which led Mr. Lewis, a solicitor, to say that the deceased then gave the appearance of understanding what he was doing. That has some bearing on the weight to be given to the evidence to similar effect concerning the deceased's conduct in March and April 1998. In my opinion, when one puts together all these matters, it cannot be said that the primary judge was in error in not being satisfied on the balance of probabilities that the deceased had testamentary capacity at the time of the execution of this document.

CONCLUSION

52 For those reasons, in my opinion the appeal should be dismissed with costs. Since this appeal was brought by the appellant in his own interests against the primary judge's determination of his application for probate, in my opinion the Court should order that the appellant not be indemnified from the estate either for his own costs or for the costs of the respondents which he is ordered to pay.

53 I propose the following orders:

1. Appeal dismissed with costs.

2. Order that the appellant not be indemnified from the estate either for his own costs of the appeal or for the costs of the appeal of the respondents.

54 IPP JA: Save that I do not think that the handwritten document signed on 5 April 1998 was ever capable of having testamentary operation, I agree with Hodgson JA.

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LAST UPDATED: 27/02/2004