Children unhappy with their parents wills are arguing that the wills are invalid because their parents lacked mental competency when they made the will.
In Croft v Sanders  NSWCA 303 (12 December 2019) the NSW Court of Appeal (Bathurst CJ & Gleeson JA agreeing with White JA) an unhappy daughter challenged her father’s will. The Court applied the long standing test for determining testamentary capacity to a factual situation where an aged testator suffered from mild cognitive impairment, hallucinations or delusions, and declared the will to be valid.
This is an analysis:
The test of testamentary capacity
Chief Justice Cockburn laid down the test in Banks v Goodfellow (1870) LR 5 QB 549 at 565:
“It is essential to the exercise of [a power to make a will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bringing about a disposal of it which, if the mind had been sound, would not have been made”.
The NSW Court of Appeal was concerned with the third part of the test: “able to comprehend and appreciate the claims to which he ought to give effect”, namely whether Mr Croft –
- “Suffered from cognitive impairment in the form of dementia that meant that he was unable to weigh the respective claims of all his children on his estate” (a ‘disorder of the mind’); or
- “Suffered from hallucinations, and, it was said, delusions, … so as to bring about a disposal [of his property] which he would not have made had he been of sound mind” (an ‘insane delusion’).
Warwick Croft died on 4 January 2016 aged 85. He had six daughters with his wife June Croft.
June predeceased Warwick. She made a will of 28 May 2013 leaving an estate valued at $1.9 million. June gave her shares in a private company to her five daughters (but not Anna) and the residue of her estate to her six daughters in equal shares.
Warwick made a will of 26 May 2008, which provided that if June predeceased him, he gave his estate to his six daughters in equal shares.
Warwick made a new will of 11 October 2013 leaving an estate valued at $3.2 million. He gave $40,000 to each of his five daughters (not Anna), and gave Anna the residue of the estate. He declared his reasons for favouring Anna in the will:
“I have made the provision for my daughter Anna Sanders having regard to her commitment to maintain and continue to operate the business known as Cohoe Marine Products [the private company] and also her support for me over many years.”
Family relationships fracture and health issues emerge
Until the late 1990s, June lived in the family home at Beecroft, when she moved to a home unit she and Warwick jointly owned at Ryde. She moved because she suffered from a lung condition that was caused or exacerbated by hundreds of pigeons Warwick kept at the Beecroft property, which he raced.
In December 2012, June had a bad fall. When she was discharged from hospital, she went into the care of her daughter Leah and her husband at Caves Beach. Leah who “was long resentful of her father, intervened to shepherd her mother and take control of her own finances”.
Up until that time, Warwick and June had maintained what the primary judge described as “a stable domestic relationship” even though they were living apart. But that now changed. At Leah’s instigation, June engaged solicitors for dissolution of marriage and the division of matrimonial property and severed the joint tenancies on the Beecroft and Ryde properties. By doing so, she secured assets for June to leave in her will. June made a new will (see above).
At some time prior to 2013, Warwick developed a lung condition known as pigeon fancier’s disease. He was prescribed and took Prednisone (a corticosteroid).
Warwick’s daughter Anna had always remained close to him. She managed the family business, Cohoe Marine Products. Anna and her husband were appointed executors to Warwick’s new will of 11 October 2013. On his death they applied for probate of that will.
Leah and her sister Esther Croft contested the validity of the will of 11 October 2013 contending that Warwick lacked testamentary capacity because of cognitive impairment or hallucinations. The remaining three sisters did not take sides in the family feud.
Cognitive impairment: Mr Croft was administered a Mini Medical State Examination on about 20 March 2013. His score of 26 (out of 30 or 31) indicated no significant cognitive impairment. The test was repeated in April 2013. His score was 25. The Court noted that these results are subject to the limitations of the Examination as a tool for assessment of cognitive impairment.
Mr Croft’s general practitioner referred him to a psychiatrist in April 2013. After an examination, he “did not report any significant underlying cognitive impairment, other than hallucinations, or delusions”.
In November 2013, a consultant psychiatrist concluded that Mr Croft “has mild cognitive impairment and this needs assessment when he improves from the current psychotic episode”.
Forensic evidence was given by a consultant clinical neuropsychologist and a consultant geriatrician and physician, as to Mr Croft’s reasoning capacity to appraise and to decide about the distribution of his estate between his daughters.
The Court of Appeal upheld the primary judge’s finding that their evidence was inconclusive and of little assistance to the Court as neither had the benefit of clinical examination.
Hallucinations: The daughters gave evidence of Mr Croft’s hallucinations or delusions from 2010:
- He saw a black panther in the street and a big owl that sat in a tree that was as big as a small person.
- There were prostitutes who came down the street ringing bells in the middle of the night who were sometimes were dropped off by a big black car,
- The bank had given him more than $100,000 for being a good customer.
- Their mother was operating a brothel and banking $5,000 a month from the business.
- Hearing recordings of June’s voice in the house
- Leah was possessed by demons
The Court concluded these were hallucinations, not delusions.
There was evidence that the hallucinations decreased when the Prednisone dosage dropped.
The Court said that “There was no direct medical evidence as to whether those hallucinatory or delusional beliefs were probably episodic or continuous”.
The Court concluded that: “The medical evidence does not establish that Mr Croft’s underlying cognitive impairment was such as to deprive him of the ability to weigh claims on his testamentary bounty.”
Lay evidence was given by the solicitors who took instructions in and prepared affidavits in the family law matter to the effect that no cognitive impairment was evident and he was not under the influence of hallucinations or delusions.
Lay evidence was given by the solicitor who prepared the will that he had no doubt as to the capacity of Mr Croft to make a will, and that the will had been prepared after a proper discussion of testamentary intentions. The primary judge found that the giving the bulk of the estate to Anna was “rationally responsive to personal experience of ‘family’ in 2012/2013” yet not biased “to the extent of excluding the less favoured daughters”. He had given reasons in his will (see above).
Lay evidence was also given by the deceased’s neighbour as to his rationality.
The Court found that “The lay evidence established that he was able to weigh the claims on his testamentary bounty” and “discharged the [executors’] onus of establishing that the hallucinatory or delusional beliefs that Mr Croft expressed from time to time did not affect his testamentary dispositions.”
The Court came to these conclusions:
- “[The primary judge’s] conclusion that the lay evidence and the form and content of the will provided confirmation of his testamentary capacity was correct.”
- “The primary judge was correct in addressing the question of why the will was rational from Mr Croft’s perspective, as an element of his assessment of capacity.”
- “The lay evidence confirmed the contemporaneous medical evidence that Mr Croft’s underlying dementia did not deprive him of testamentary capacity. It also demonstrated more probably than not his hallucinatory or delusional beliefs about his daughters were episodic rather than continuous.”
- “On the balance of probabilities the deceased did not labour under the delusions and hallucinations when he gave instructions for his will.”
The Court therefore found that the will of 11 October 2013 was valid, and dismissed the appeal with costs.
Expect more will challenges based on dementia
According to the OECD Health Policy Studies (2018), 28.8% of the population aged 85 years or older has dementia. This correlates with the life expectancy (at age 65) of an Australian male which is 84.7 years, and 87.3 years for a female, according to Australian Government data (to 2017).
It follows that one quarter of 85 year old testators may not have sufficient testamentary capacity to make a new will.
Drugs may induce hallucinations
The hallucinations were consistent with the taking of Prednisone.
According to its Australian Product Information, Sone (Prednisone) can induce psychic derangements, including frank psychotic manifestations (i.e. delusions and hallucinations) and should be used with caution in elderly persons.
Mr Croft’s general practitioner, instead of referring him to a psychiatrist should have referred him to a gerontologist, who would have investigated his medication and most likely have reviewed the dosage or recommended another drug.
And the Court would have been assisted by expert evidence from a clinical pharmacologist, instead of relying on lay evidence in reaching its conclusion that the hallucinations were episodic.