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Testamentary capacity

Croft v Sanders [2019] NSWCA 303
Court of Appeal of New South Wales

The respondents were executors named in the deceased’s will (October will).  The appellants were ‘substitute executors’ named in an ‘earlier will’ of the deceased.  The appellants contended that the deceased lacked testamentary capacity when making the October will.  The primary judge rejected the appellants’ contention and granted probate of the October will to the respondents.  The appellants appealed.  The court considered the ‘lay evidence as to hallucinations or delusions’ and  ‘contemporaneous medical evidence’ and the will’s ‘form and content’.  They determined whether ‘underlying dementia’ deprived the deceased of testamentary capacity and whether the deceased’s ‘hallucinatory or delusional beliefs’ affected the deceased’s testamentary dispositions.  The appeal was dismissed.

The case headnote reads as follows;

“Mr Warwick Croft (“the deceased”) died on 4 January 2016 aged 85 leaving a will dated 11 October 2013 (“the 2013 will”). An appeal was brought by two of his six daughters (Leah and Esther Croft) against a decision of a judge of the Equity Division to grant probate of the 2013 will, of which the respondents, Anna and David Sanders, were named executors. By an earlier will, the deceased had left substantial assets to his all six of his daughters. By contrast, the 2013 will left only $40,000.00 to five of the six daughters, with Anna receiving the balance of the estate – worth approximately $3.0 million.

The appellants alleged that the deceased lacked testamentary capacity when he made the 2013 will. The asserted lack of capacity was said to arise, first, from alleged cognitive impairment (in the form of dementia) preventing him from weighing the respective claims of all his children to his estate, and secondly, from a pattern of delusions or hallucinations. Such delusions or hallucinations included that: his daughters were running a brothel or working in one; someone had kidnapped his wife, June; Leah was possessed by demons; he was hearing recordings of June’s voice in his house; he saw a black panther in his yard or street; and he saw Ruth, another of his daughters, running down a fence.

Some of the deceased’s daughters had divided into two factions around family law proceedings between the deceased and his wife. Two daughters supported the latter, while the respondents sided with the former. Three daughters sided with neither parent.

Medical evidence was tendered as to the deceased’s hallucinations, but that evidence did not establish whether the hallucinations or delusions were episodic or continuous. There was conflicting medical opinion as to whether the deceased was able to weigh claims on his testamentary bounty. The primary judge satisfied himself of the deceased’s testamentary capacity by relying on the form and apparent rationality of the 2013 will from the deceased’s perspective, coupled, among other things, with lay-evidence from the solicitors acting for the deceased in the family law proceedings and who prepared the will on the deceased’s instructions, and from the deceased’s neighbour.

The primary judge found that the deceased had the requisite capacity when he made the 2013 will. On appeal, it was asserted that the primary judge had erred in his assessment of whether the deceased held the requisite capacity to satisfy the criteria in Banks v Goodfellow (1870) LR 5 QB 549. The primary judge’s decision was impugned on the basis that he erred: (i) in focussing on the rationality of the 2013 will from the deceased’s perspective and had thereby diverted himself from the question of capacity, and (ii) in making certain factual findings relating to the evidence of a Mr Miller, the deceased’s solicitor, regarding the nature of the deceased’s instructions to him, and (iii) by giving inadequate weight to the evidence of the deceased’s hallucinations or delusions and underlying executive cognitive impairment (dementia).

The core factual finding challenged by the appellants in (ii) was that the deceased had instructed Mr Miller to leave the amount of $40,000.00 to five of his daughters in order to “fire-proof” the will against family provisions claims. The appellants submitted that this idea came at Mr Miller’s suggestion.”