206.
In cross-examination, however, both these points evaporated. As to the first point, Dr
Reveley accepted that the first element of testamentary capacity needs to be
considered in the abstract, and that Bane’s delusions did not impact on this. In
relation to the second point, she confirmed that she was not aware of any specific
evidence to support the possibility to which she referred. The possibility is therefore a
purely speculative one, to which the Court can attach no weight.
207.
The crucial issue in the case therefore resolves itself into the question whether
elements (c) and (d) in the Banks v Goodfellow test were satisfied when Bane made
the 1988 and 1989 Wills. I shall begin by considering the position of Zoran, who was
of course the sole residuary beneficiary (subject to attaining the specified age, and
subject to Mirjana’s life interest) in the 1971 and 1974 Wills. He was also the sole
beneficiary of the 1984 Codicil, subject to attaining the age of 35. As Bane’s only son,
he was prima facie the natural and obvious person for Bane to leave his estate to once
his clean-break divorce from Mirjana had been finalised. Can it therefore be said that,
in deciding to disinherit him entirely in favour of the CPA, and the projected
establishment of a foundation in his father’s memory, Bane was nevertheless able
fully to comprehend and appreciate Zoran’s claims to benefit from his estate? And
can it be said that the delusions from which Bane admittedly suffered had no
influence on the dispositions of Bane’s property effected by the 1988 or 1989 Wills?
208.
In the light of all the evidence which I have heard, and the very full documentary
record, I am left in no doubt that these questions must be answered in the negative. It
is abundantly clear, in my judgment, that in 1988 and 1989 Bane was unable to form a
proper appreciation of Zoran’s claims upon his estate, and that his natural affection
for Zoran had been poisoned or distorted by his delusions to such an extent that he
was wholly unable to dispose of his property in the way which he would have done if
of sound mind.
209.
In considering these questions it is important to begin by looking at Bane’s life before
his illness struck him. All the evidence is that until 1984 Bane was a devoted family
man, who had a happy relationship with his wife, was very close to his mother and
sister, and displayed the normal affection of a father towards his son, Zoran. Jovanka
described the family in her evidence as being “very, very close”, and said that “Bane
was fantastic, you know, with mother, with all of us. This illness changed him
completely”. This evidence was not challenged, and was confirmed by the testimony
of other witnesses who had known Bane before his illness, notably Mr Rinaldi and Mr
Brown, the latter of whom painted a vivid picture of family life at Gleneagles in the
1970s. It is true that, as Zoran grew older, Bane became increasingly disappointed
with his lifestyle and his evident disinclination to follow his father into business.
Indeed, Mr Brown’s impression was that by the late 1970s Bane and Zoran were no
longer particularly close. However, there was no question of a rift between them, or
of Bane in any way disowning his son. He continued to support him financially until
1984, and took no steps to revoke his 1974 Will. Furthermore, several entries in
Bane’s diary testify to his underlying affection for his son, even after he was in the
grip of delusions.
210.
This picture of a happy and normal family life was subverted, and then completely
overturned, by the onset of Bane’s illness. His increasingly strange behaviour was
noticed by friends such as Mr Rinaldi, and the documentary record contains several
examples of friendships or family contacts which were abruptly terminated by Bane
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