Dementia and delusions of brothels and black panthers…enough to lack testamentary capacity?
The Court of Appeal recently handed down an important decision concerning testamentary capacity in a contested probate case: Croft v Sanders  NSWCA 303.
Warwick Croft died in 2016 aged 85 years old, leaving a will dated 2013 in which he left $40,000 to five of his six daughters, and the remaining daughter the balance of the estate (around $3M). Talk about favourites!
The Appellants were two of the daughters who had contested the probate, for lack of testamentary capacity, and lost at first instance before Lindsay J (Re Estates Croft, deceased  NSWSC 1303).
The appellants alleged that Warwick lacked testamentary capacity when he made the 2013 will by asserting that he suffered cognitive impairment (dementia) and was suffering from delusions and hallucinations (which included seeing a black panther in his garden and suspecting his daughters were running or working in a brothel).
Decision before Lindsay J
Lindsay J, the primary judge, concluded that the underlying dementia did not deprive Warwick of testamentary capacity as the contemporaneous medical evidence was that the dementia was a ‘mild underlying cognitive impairment’ and the hallucinations and delusions were, more probably than not, episodic rather than continuous.
Lindsay J cited and applied the observations of Hodgson JA in Zorbas v Sidiropoulos (No.2)  NSWCA 197 at  to the effect that “whilst medical evidence is highly relevant to a determination of testamentary capacity, the criteria in Banks and Goodfellow are not solely medical questions and sometimes the most compelling evidence is reliable evidence of a detailed conversation with the deceased at the time of the will that displays the deceased’s understanding of his assets and the effect of the will, and his ability to weigh claims on his testamentary bounty” .
The lay evidence of the solicitors who prepared the will, along with a neighbor of the deceased, deposed to regular, rational, measured dealings with the deceased. The form and content of will, specifically its measured and reasoned character, as well as responsiveness to personal experience of family at the time, was also taken into consideration  and  and .
The primary judge rejected the contention that the deceased lacked capacity and found that the 2013 will was valid as the deceased was able to weigh the claims on his testamentary bounty .
On Appeal Bathurst CJ, Gleeson JA and White JA dismissed the Appeal (with costs) finding:
- The conclusion drawn by the primary judge, that the lay evidence along with the form and content of the will provided confirmation of his testamentary capacity, was correct .
- The primary judge was right to consider the rationality of the will, but did not equate rationality of the will with capacity [126 – 127].
- The lay evidence of the solicitor was accepted, that it was the deceased’s idea to make the provision of $40,000, not the solicitor’s [99 – 101]. This was evidence specific to the issue of whether the deceased was able to comprehend and appreciate the claims of his daughters on his testamentary bounty.
- The primary judge gave proper consideration to the evidence concerning the deceased’s hallucinations or delusions and underlying dementia.
An interesting point to note was described at  of the judgment. Per White JA – some delusions or hallucinations would be irrelevant to Warwick’s testamentary decision-making, for example seeing black panthers and owls the size of small persons. Others would affect his testamentary capacity if held when giving instructions for his will, such as a belief that his daughters were prostitutes. Therefore, only if Warwick labored under hallucinatory or delusional beliefs concerning his daughters when he made his will would it be relevant  and .
Rebecca Tidswell,Special Counsel
 The clinical neuropsychologist and geriatrician who gave evidence agreed that there was likely to be variability in his cognitive ability at times . The GP records contained Mini Mental State Examinations in March and April 2013 with results indicating no significant cognitive impairment [64 and 76] and a psychiatrist who examined the deceased reported no overt cognitive defects. .