testator has been subject to any insane delusion is established, a
will should be regarded with great distrust, and every
presumption should in the first instance be made against it.
Where insane delusion has once been shown to have existed, it
may be difficult to say whether the mental disorder may not
possibly have extended beyond the particular form or instance
in which it has manifested itself. It may be equally difficult to
say how far the delusion may not have influenced the testator in
the particular disposal of his property. And the presumption
against a will made under such circumstances becomes
additionally strong where the will is, to use the term of the
civilians, an inofficious one, that is to say, one in which natural
affection and the claims of near relationship have been
disregarded. But where in the result a jury are satisfied that the
delusion has not affected the general faculties of the mind, and
can have had no effect upon the will, we see no sufficient
reason why the testator should be held to have lost his right to
make a will, or why a will made under such circumstances
should not be upheld.”
204.
The relevance of this passage to the present case is obvious. It is common ground that
Bane suffered from delusions from at least the end of 1984 until his death. The 1988
and 1989 Wills should therefore “be regarded with great distrust”, and it may be
difficult for the Court to be satisfied that the delusions did not influence the
dispositions made in those Wills. Furthermore, the presumption against the 1988 and
1989 Wills is all the stronger, because they are “inofficious” in the sense explained by
Cockburn CJ. On any view, by leaving all his fortune to the CPA Bane disregarded
the claims of his sister and his only son and the natural affection one would normally
expect a person in his position to have for such close relations. It is also worth noting
that on page 571 Cockburn CJ went on to comment that neither of the delusions from
which the testator suffered had, or could have had, any influence upon him in
disposing of his property, because the dead man by whom he believed himself to be
molested had not been in any way connected with him. Again, the contrast with the
facts of the present case could hardly be more stark, because the three central figures
in Bane’s delusional belief system were his wife, his sister and his mother.
205.
It appeared at one stage that there might be some dispute whether elements (a) and (b)
in the Banks v Goodfellow test were satisfied in the present case, notwithstanding the
absence of any pleaded case to that effect. In particular, although Dr Reveley in her
first report had said that in her opinion Bane was likely to have had a good
understanding of the nature of the testamentary act and of the extent of the property of
which he was disposing, the areas of disagreement set out in the experts’ joint report
suggested that she had resiled from this view. Paragraph 14 of the joint report records
Dr Reveley’s opinion as being that Bane “would only have been capable of
understanding in the abstract the nature of the act of making a will and its effects”,
because any will made by him in 1988 or 1989 is likely to have been subject to
delusional disorder. In paragraph 15 she is recorded as considering that, given Bane’s
delusions involving conspiracy, “it is possible that [he] may have formed judgments
on the basis of what he considered to be rightfully his, rather than what was actually
his”.
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