Alford & Lyden
[2021] FamCA 38
•11 February 2021
FAMILY COURT OF AUSTRALIA
Alford & Lyden [2021] FamCA 38
File number(s): BRC1214 of 2019 Judgment of: BAUMANN J Date of judgment: 11 February 2021 Catchwords: FAMILY LAW – DECLARATION – Validity of marriage – Where the Applicants contend that the deceased husband did not understand the nature and effect of the marriage ceremony – Where the deceased did not have the capacity to give his real consent and he did not understand the nature and effect of the marriage ceremony – Declaration made that the marriage solemnised is void pursuant to s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) Legislation: Family Law Act 1975 (Cth) s 113
Marriage Act 1961 (Cth) s 23B(1)(d)(iii)
Cases cited: AK & NC (2004) FLC 93-178
Jones & Dunkel (1959) 101 CLR 298
Oliver (Deceased) & Oliver [2014] FamCA 57
Tuckerman [2005] FamCA 302
Number of paragraphs: 58 Date of hearing: 9 August 2019 and 11 November 2019 Place: Brisbane Counsel for the Applicants: Mr J Hackett Solicitor for the Applicants: Stephens & Tozer Solicitors Counsel for the Respondent: Mr G Waterman Solicitor for the Respondent: Butler McDermott Lawyers ORDERS
BRC1214 of 2019 BETWEEN: MS A ALFORD AS ATTORNEY FOR MS B ALFORD AND MR A LYDEN AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF MR B LYDEN (DECEASED)
Applicants
AND: MS LYDEN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
11 FEBRUARY 2021
THE COURT ORDERS:
1.That it is declared, pursuant to s 113 of the Family Law Act 1975 (Cth), that the marriage solemnised between Mr C Lyden and Ms Lyden on … April 2007 is void pursuant to s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).
2.That these proceedings be adjourned for Case Management Hearing at 9.30am on 18 March 2021 in the Family Court of Australia at Brisbane.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alford & Lyden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In April 2007, the Respondent Ms Lyden married Mr C Lyden (“the deceased”). At the time of the marriage Ms Lyden was aged 55 years; the deceased was aged 68 years. The deceased had no children at the time of his death in 2018.
The proceedings commenced and maintained by Ms A Alford (as Attorney for Ms B Alford) and Mr A Lyden (as personal representative for Mr B Lyden (deceased)) invoke the jurisdiction of the Court seeking a declaration pursuant to s 113 of the Family Law Act 1975 (Cth) (“the Act”) that the marriage of the deceased to Ms Lyden is void on the basis of s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).
The Applicants (all relations of the deceased) were represented by Mr Hackett of Counsel, whilst Ms Lyden was represented by Mr Waterman of Counsel. In circumstances where the deceased had made a final Will (in contemplation of marriage) on 23 February 2007 and left a substantial estate and significant superannuation benefits, the declaration sought by the Applicants, if made, has significant consequences.
Ms Lyden asserts that the deceased understood the nature and effect of the marriage ceremony, and that the Application should be dismissed.
THE LAW
Proceedings for a declaration as to the validity of a marriage are a “matrimonial cause” (see s 4 of the Act paragraph (b)(i)), and s 113 of the Act empowers the Court to make such declarations “as is justified” (see Oliver (Deceased) & Oliver [2014] FamCA 57 (“Oliver”); Tuckerman [2005] FamCA 302).
Section 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) provides:
23B Grounds on which marriages are void
(1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a) …
(b) …
(c) …
(d) the consent of either of the parties is not a real consent because:
(i)…
(ii)…
(iii) that party did not understand the nature and effect of the marriage ceremony…
The nature of the dispute requires a careful consideration of the events leading up to and culminating in the marriage ceremony. Before I consider all the evidence offered to the Court at the hearing, a brief chronology of undisputed facts will helpfully provide a context.
BRIEF CONTEXTUAL CHRONOLOGY
Statements of fact hereafter shall be regarded as findings of fact.
The deceased operated a healthcare business until 2002 and lived with his mother Ms D. His mother Ms D died in 1998, having lived in a nursing home for a period before her death.
From around 1985, Ms Lyden worked for Ms D as a domestic assistant each Thursday but then continued to work part-time in the Suburb F home for the deceased. The deceased had purchased the Suburb F home when Ms D became frail and went into a nursing home.
After the deceased retired in around 2002, and was at home more, Ms Lyden and the deceased had more conversations and began to have lunch out. The deceased invited Ms Lyden to go with him when he bought clothing. Ms Lyden says, and I accept, that the deceased was considerate towards her and would occasionally “buy me flowers or chocolates”.
At paragraphs 35 to 38 of her affidavit, Ms Lyden describes how the relationship developed and I accept her evidence that in late 2006, around Christmas, the deceased asked her to marry him and persisted with his proposal in early 2007. Ms Lyden says she accepted the proposal in January 2007 and then she moved into the Suburb F home, and would stay from Monday to Friday as she maintained a home at Suburb G (purchased to be closer to her family), on weekends.
Although Ms Lyden says around late 2005 – 2006 she noticed small changes in the deceased – for example forgetting where he had put his house keys or misplacing his toothbrush – Ms Lyden says these were minor incidents and she put them down to the normal aging process.
Ms Lyden said under cross-examination that the deceased had not before January 2007 discussed with her that he had previously consulted a Neurologist. She was informed that the deceased in January 2007 was consulting a solicitor about making a Will and said that the deceased’s brother Mr B Lyden spoke to the deceased “in my presence and said words to the effect that because [the deceased] has never made a Will it was time to do so.” I deal with the preparation of the Will as a discrete issue. A Will was prepared by solicitor Mr J and executed by the deceased on 23 February 2007, together with an Enduring Power of Attorney.
Ms Lyden conceded that in February 2007 she was present when the deceased consulted his longstanding General Practitioner Dr K, and was aware of the referral he made to Dr L at the M Medical Centre. Ms Lyden could not recall the full extent of the discussion on 26 February 2007, but as she was doing all the driving at this time (because of the deceased’s vision challenges), she did accompany him from this time to “all his medical appointments at his request”.
During one of the appointments with Dr L, the deceased was informed that the test results showed he had Bensen’s Syndrome, which the doctor described as “a form of dying of the brain”. When asked “how long do I have left”, Ms Lyden deposes to a reply from the doctor estimated “about 10 years”. Ms Lyden confirmed she researched the internet about Bensen’s Syndrome about a week after the diagnosis.
As a discrete issue, I analyse the medical evidence offered to this Court – including the cross-examination of Dr L conducted on 11 November 2019 when the hearing before me concluded.
After the marriage took place, Ms Lyden and the deceased continued to reside together.
Four days after the wedding, Ms Lyden, accompanied by the deceased’s brother Mr B Lyden and sister Ms B Alford, attended on solicitor Mr J – the solicitor who had prepared the deceased’s Will – to discuss the preparation of a fresh Enduring Power of Attorney and also some necessary changes to the deceased’s self-managed superannuation fund originally created in August 1993 (see “Q-27”). Mr J advised he would require a report from Dr L “as to Mr C Lyden’s current medical condition”. The deceased was not present for the discussion on 18 April 2007 but it was noted that “Mr C Lyden does not wish to see Dr L personally as this causes Mr C Lyden much distress”.
On 4 May 2007, a diary note by Mr J of a telephone conversation with Dr L recorded that “Mr C Lyden is not mentally competent to understand the nature of the EPOA”. This oral advice was confirmed by a letter from Dr L dated 10 May 2007 (see “Q-29”).
As a result, on 12 September 2007, Ms Lyden, Mr B Lyden and Ms B Alford made application to the Guardianship and Administration Tribunal for their appointment as the deceased’s guardian for financial matters, supported by a further medical report by Dr L (see “Q-31”). The application was successful and the order sought was made on 23 October 2007.
On 23 November 2007, the deceased and Ms Lyden were involved in a motor vehicle accident. Ms Lyden was required to be hospitalised for a period, and the deceased went to live in Victoria. The deceased was subsequently admitted to an aged care home in Victoria following an Aged Care Assessment Team Assessment on 31 December 2007 and being approved for high-level care (see “Q-35”).
On 10 December 2008 the Public Trustee was appointed as the deceased’s administrator for financial matters.
The deceased died in 2018 and the original application, seeking the declaration, was filed on 4 February 2019. This Application also sought interim injunctions, which was heard by the Court on 8 February 2019, when injunctions in these terms were made:
That the Respondent be restrained from dealing with the proceeds of the deceased’s superannuation received from T Super ABN … or any property purchased with the same, other than to pay ordinary living expenses and reasonable legal costs.
Where, in these Reasons, the Court has referred to an annexure to the affidavit of Mr Q, that affidavit was tendered and marked Exhibit 1 on 8 February 2019. Mr Q was, at the time of executing the said affidavit on 26 November 2013, an officer of the Public Trustee of Queensland. At that time the Public Trustee had filed an application in the Supreme Court of Queensland seeking the Court’s advice and direction as to whether the Public Trustee would be justified in revoking a Binding Death Benefit Nomination dated 4 March 2013. This Court has no information as to the result of that application, however as I soon explain, the capacity of the deceased is to be assessed at the date of marriage in April 2007.
I propose to deal with the evidence under these discrete issues before seeking to explain the Court’s conclusions on the critical legal issue earlier identified.
THE MARRIAGE CEREMONY
Ms Lyden was the only lay witness who was the subject of cross-examination. Mr Hackett for the Applicants made no submission calling into question the credit of Ms Lyden, consistent with his case that it was “all about the medical evidence”.
As a result, the witnesses relied upon by Ms Lyden were not required for cross-examination after various objections to parts of their evidence were allowed or conceded. The evidence of those witnesses can be summarised as follows:
(a)Ms Lyden’s daughter Ms R deposed to Ms Lyden telling her in late 2006 that the deceased had asked her to marry him. The deceased would join Ms Lyden thereafter for Friday family dinners at the Suburb G home. Her observation was that he “thoroughly enjoyed his visits to our home”; would often buy takeaway meals and after Ms Lyden had accepted the deceased’s proposal “Friday night dinners turned into wedding planning sessions”. This included the deceased making wine selections for the wedding. At paragraph 40 of her affidavit, Ms R expressed her observations of the ceremony in these words:
Throughout the wedding ceremony I observed that Mr C Lyden was very serious and quiet. I recall that during the ceremony I was standing no further than three metres away from Mr C Lyden and Ms Lyden during the ceremony. Mr C Lyden responded to his vows when asked by the celebrant. After the ceremony I observed Mr C Lyden to be very jovial. Mr C Lyden was moving around the whole group of people, some were inside my lounge area and also on my wrap around veranda. I recall that Mr C Lyden appeared happy chatting with each person. Mr C Lyden would also ensure that he had a photo with guests and his siblings. I recall I asked Mr C Lyden about why he was so serious at the ceremony and jovial after the wedding and I recall he said words to the effect that he has never been married before and it was all new to him so he wanted to take in each word.
In her subsequent affidavit, Ms R gave context to a video of the ceremony taken primarily by her and tendered as Exhibit 1 at the commencement of the hearing. The tape was played in Court and I make some comments about it below.
(b)Ms R’s husband Mr R was present for the Friday dinners and that on one occasion, discussing the deceased’s concerns about the family’s reaction given that he was significantly older than Ms Lyden. Mr R said he reassured the deceased that no one in the family was concerned about the age difference and that the family just wanted them to be happy;
(c)Mr S and his wife Ms S were the marriage celebrants engaged, and authorised, to perform the wedding ceremony. Their affidavits are almost identical and depose to the following facts:
(i)They met Ms Lyden and the deceased about 12 times socially before, in February 2007, they were invited to be the marriage celebrants;
(ii)They then met with the couple a month prior to the wedding to complete the Notice of Intention to Marry and then again two weeks before the wedding to finalise details and do a rehearsal;
(iii)Mr S, at paragraph 17, deposed that:
From my observations in meetings prior to the wedding with Mr C Lyden and Ms Lyden they appeared to be a loving couple who each understood the institution of Marriage and who wanted to become a married couple. A standard question Ms S and I ask is whether they are happy in marriage. I recall that Mr C Lyden and Ms Lyden said words to the effect that marriage was something they had discussed and that they were happy.
(iv)Both parties signed the usual declaration acknowledging no legal impediment to marriage before Mr and Ms S in March 2007. Mr S says that during the meetings prior to the ceremony, he would “gauge from our own observations whether or not the parties were ready for marriage or if there was anything that would prevent the marriage from going ahead”. He did not see anything of concern; and
(v)During the wedding ceremony Ms S asked the persons present (what were described as the “legal questions”) if anyone knew any reason that the couple should not be married, including any “legal impediment”. No one in attendance objected to the parties being married. The ceremony was completed and Ms Lyden and the deceased signed the Certificate of Marriage.
The evidence of Ms Lyden (at paragraphs 67 to 73) about the wedding preparation and ceremony being well prepared and a happy occasion are supported by the photographs tendered and the video tendered. At paragraphs 22 and 23 of the written submissions, it is contended that the “deceased tried to put the wedding ring on the celebrant’s finger initially” and “plainly suffered from vision difficulties”. I agree and my observations were he seemed quiet but I would not describe him as “largely emotionless”.
Ms Lyden conceded that many of the “friends” referred to at paragraph 73 of her affidavit were longer term friends of hers – some of whom (like Mr X) had not met the deceased before the ceremony.
However the deceased’s brother Mr B Lyden (and his wife) and sisters Ms Y (and her husband) and Ms Alford (and her daughter) were in attendance at the ceremony, and Ms Lyden says their attendance and earlier comments demonstrate they supported the marriage. In this respect, Counsel for Ms Lyden contends for a Jones & Dunkel (1959) 101 CLR 298 inference to be drawn – namely their evidence would not assist the Applicants’ case
However, as earlier noted, the Applicants’ case relies heavily on the medical evidence, not what happened at the ceremony.
EXECUTION OF THE WILL
The task of this Court is not to determine testamentary capacity of the testator as at 23 February 2007 – the date of execution of the Will and Enduring Power of Attorney. That may yet be a matter for the Supreme Court of Queensland, however for context it is appropriate to record that:
(a)The deceased’s brother Mr B Lyden made an appointment for the deceased to see a solicitor, Mr J, and Mr B Lyden accompanied him to the interview on 12 January 2007 about a new Will and Enduring Power of Attorney. The file note of that attendance (see “Q-7”) does not mention Ms Lyden or a pending marriage but did record that the solicitor “would need an up to date medical report from Dr K to satisfy myself about Mr C Lyden’s mental state.”;
(b)The draft Will could be prepared in draft after Mr B Lyden gave the solicitor answers to a series of questions and the signing of the Will would be after 29 January 2007 when Ms B Alford (Mr C Lyden’s sister) arrived in Brisbane from Victoria to spend some time with her brother;
(c)By 30 January 2007, in a meeting held that day with Mr J (see “Q-9”) and in the presence of his brother Mr B Lyden and sister Ms B Alford, the deceased “explained that he had resolved to marry Ms N” and that the marriage would take place within the next three weeks. The solicitor’s file note records that “his brother Mr B Lyden and his sister Ms B Alford explained that they were surprised to hear the news but they accepted that”;
(d)Mr J again indicated he needed to obtain a medical report, and after obtaining details of a Dr H on 31 January 2007, a letter attaching an authority by the deceased for a medical report was forwarded to the doctor;
(e)It is unclear why the deceased consulted Dr H, as Dr K was his usual General Practitioner and the evidence is that Dr K had examined the deceased with Ms Lyden present on 22 February 2007. Dr K’s letter of referral on 26 February 2007 (after the Will has been executed), indicated that he had not been consulted by the deceased for four years – the previous visit being in May 2003 about a minor skin matter;
(f)A telephone conversation, I infer from “Q-13”, must have taken place between the solicitor and Ms Alford on or about 15 February 2007 because on 16 February 2007, Ms Alford wrote to the solicitor in the following clear terms:
I confirm that my brother Mr C Lyden suffers from cerebral atrophy. This condition was diagnosed by CAT scan in July 2005. A subsequent CAT scan in February 2007 showed that his condition is stable and has not degenerated between the two scans.
Our brother Mr C Lyden, sister Ms Y and myself are all aware of the situation re his health and his plan to marry Ms N. We all believe him capable to making both this decision and his legal decisions at this time.
Personally, believe that to subject Mr C Lyden to further medical examination at this time to be unnecessary as he becomes very stressed in such conditions.
Mr C Lyden has proved capable of managing his own affairs and finding necessary help to this stage.
(g)Mr J prepared the Will and Enduring Power of Attorney by 23 February 2007 and the deceased executed both. The solicitor’s note (“Q-14”), confirmed by a further note by the solicitor’s secretary (and witness to the Will) Ms Z, identifies some confusion and prompting – although both notes record the deceased identified Ms Lyden as his partner “and they were getting married in the near future”;
(h)The Will, made in contemplation of marriage, provided significant bequests to Ms Lyden as well as to other relations (see “Q-16”). The Enduring Power of Attorney also executed on 23 February 2007 appointed Ms Lyden, Mr B Lyden and Ms B Alford as the Attorneys.
I am satisfied on the balance of probabilities that, as at 23 February 2007, the deceased knew he was going to marry Ms Lyden; that his closest family knew he was going to marry Ms Lyden and were prepared to support his decision – which included making some bequests in her favour in his Will.
The issue that is of fundamental controversy is did the deceased in April 2007 “understand the nature and effect of the marriage ceremony”?
I agree with the submission that the “nature of the marriage ceremony, itself, raises the presumption of regularity” (Oliver at [203]) and it falls upon the Applicants to rebut the presumption by establishing whether the deceased was in April 2007 mentally incapable of understanding the nature and effect of the marriage ceremony to Ms Lyden. In this respect I also agree with the view expressed by Chisholm J in AK & NC (2004) FLC 93-178 at [24], after reviewing some earlier authorities and academic publications of the time that “mere awareness of going through a marriage ceremony is not enough; a person must also understand the nature and effect of the ceremony involved”.
With these principles in mind, I now turn to discuss the medical evidence before the Court.
THE MEDICAL EVIDENCE
As already noted, whilst solicitor Mr J was engaging, at one time, with the deceased’s General Practitioner Dr K, at the same time Dr K had decided to refer the deceased to a specialist for expert assessment.
Dr L is a Consultant Neurologist and his curriculum vitae attached to his affidavit filed 4 February 2019 (relied upon by the Applicants in their case) reveals the level of his expertise. His qualifications were not challenged by the Respondent, who took the opportunity to cross-examine Dr L on 11 November 2019 (by telephone).
The evidence of Dr L is that:
(a)he had examined the deceased on 27 February 2007 and on 22 March 2007 but not since;
(b)on 7 July 2007 he completed a pro forma report in respect of the guardianship application. The report states, inter alia, that:
(i)the deceased’s current medical condition is that he was suffering from “Benson’s Disease (variant of Alzheimer’s D)” which had an onset “about 4 years ago”;
(ii)a MMSE test was administered and his score was 12/30;
(iii)the deceased was not capable of making decisions freely and voluntarily;
(iv)in the summary section at paragraph 7.1, Dr L stated that the deceased had the capacity to understand and make his own decisions about personal health care, lifestyle/accommodation choices and financial affairs that were “simple decisions” but not “complex decisions”. The explanation for the difference was described in the form in the following terms:
A simple decision would be one requiring the adult to consider choices about day to day life whereas a complex decision would require the adult to consider choices which may have long term consequences.
(c)After the death of Mr C Lyden, solicitors for the Applicants asked Dr L to clarify his report for the guardianship proceedings, and by a letter to those solicitors dated 14 September 2018, Dr L stated inter alia:
Mr C Lyden suffered from dementia. It was my impression that he did not have the capacity to make a decision on complex matters when last seen on 22 March 2007…
I would classify a decision by Mr C Lyden to marry in 2007 as a complex choice which may have long term consequences and which he did not have the full capacity to make then.
(d)This opinion was confirmed at paragraph 9 of the affidavit sworn 28 November 2018, when Dr L said:
9.It is my opinion that Mr C Lyden did not have the required capacity to understand the nature and effect of the marriage ceremony when I last saw him on 22 March 2007, and could not have subsequently on … April 2007 when he is stated to have married Ms Lyden.
(Emphasis added)
Before his cross-examination commenced again through the annexures to the affidavit of Mr Q, further evidence of other opinions (of a similar nature) expressed by Dr L and other doctors were available, including:
(a)On 28 February 2007, Dr L reported to the deceased’s General Practitioner Dr K (see “Q-19”) that the deceased “appears to have a progressive dementia with visual loss” but that the patient was required to undertake a number of investigation before a further review;
(b)After the deceased (accompanied by at least Ms Lyden and his brother Mr B Lyden and sister Ms B Alford) consulted the solicitor Mr J on 18 April 2007 about a new Enduring Power of Attorney, it seemed with the intention to make a new Enduring Power of Attorney to the same people as the one signed on 23 February 2007, Mr J obtained an authority from the deceased to secure a report from Dr L “as to Mr C Lyden’s current medical condition” without seeing Dr L again (see “Q-27”). Subsequently on 10 May 2007 Dr L provided a response to the solicitor in these terms:
I write in reply to your letter dated 27th of April 2007. I appreciate the need for Mr C Lyden to have an Enduring Power of Attorney and the situation proposed would seem to be in his best interest. However, in strict terms, his mental capacity is comprised because of his neurological disease and I am not able to state that he is fully competent to make this appointments”
(As per the original)
(c)After the deceased had moved to Victoria, he was assessed by Consultant Psychogeriatrician Dr AA from the DD Mental Health Service, who provided a report to a Dr BB on 20 June 2008 acknowledging the deceased “has a diagnosis of Posterior Cortical Atrophy but from what I understand of his presentation, this would be quite consistent with Alzheimer’s disease with significant posterior cortical involvement”. Importantly, but recalling this opinion was expressed 14 months after the marriage ceremony, Dr AA stated:
From Mr C Lyden’s point of view; he agrees that he can no longer function as he did before. He does this with remarkably intact language that characterises this disorder. This is rather disconcerting as the rest of his cognitive deficits are quite severe. It means that he can give people, who do not understand the underlying difficulties, a sense that he has some capacity to contain his behaviour which I feel he does not.
(Emphasis added)
Under cross-examination Dr L held to the opinions expressed in his affidavit and earlier letters and further said that:
(a)he had seen the video of the wedding, but nothing he saw causes him to change his opinions of the deceased;
(b)nothing had been flagged by the referring General Practitioner or the parties about the impending wedding and he would have been unlikely to have said anything about the marriage and cannot recall saying anything;
(c)he was asked to do a neurological assessment, and this involved determining what the patient was suffering and what could be done about it. Dr L’s overall evidence was the condition was progressive deterioration and there was no “cure”. As a consequence of his terms of referral he did not “flag” any concerns about the marriage;
(d)although the MMSE test should not be regarded as a “high level neuropsychological assessment” a score of 12/30 is “very bad” for a pretty simple test and a score below 15 would suggest of itself, a “substantial organic deficit in functioning”. No further information from family was required and for what he was trying to assess, he had enough information;
(e)although test results vary a little, at this level, the deceased’s sight difficulties did not affect his test results;
(f)in continually reinforcing his general opinion, Dr L explained that his view was that getting married is not a simple decision but a complex one. Whilst I regard this as a question of law, I agree with Dr L.
CONCLUSION
The Applicants bear the evidentiary onus of establishing that at the time of the marriage ceremony the deceased did not understand the nature and effect of the marriage ceremony. If the Applicants persuade the Court of that fact, then the deceased’s participation was not given with “real consent”.
I am satisfied that the deceased did not, in April 2007, have the capacity to give his real consent and that he did not understand the “nature and effect of the marriage ceremony” on the evidence summarised as follows:
(a)Whilst the deceased did offer to marry Ms Lyden and was involved in the preparation and planning of the event, his awareness of such an event does not establish he understood the effect of the marriage ceremony;
(b)I accept his instructions to make a Will “in contemplation of marriage” evinces an awareness of the marriage. It is not clear if he had made a Will previously however I am satisfied that his siblings, aware of the pending marriage, facilitated and initiated not only the instructions to Mr J and the engagement of the accountant Mr CC, but also the execution. The execution of the Will and Enduring Power of Attorney on 23 February 2007 occurred only after the letter from Ms B Alford was sent on 16 February 2007, earlier referred to. Without evidence being available from either Ms B Alford (who is unable to give evidence and her daughter Ms A Alford holds her Power of Attorney) or Mr B Lyden (who has also passed away), it would be mere speculation as to the haste reasons for the undertaken to sign the Will and Enduring Power of Attorney. I say “haste’ as it is clear the documents were executed by the deceased before the solicitor had received any medical advice. That was received some days after 23 February 2007;
(c)The actions of all the persons – Ms Lyden, Mr B Lyden and Ms Alford who I accept loved and cared about the deceased – leading up to the marriage and thereafter (including determining whether the deceased was capable of signing a new Enduring Power of Attorney), strongly suggest that they felt the deceased could make the decisions he did;
(d)The opinion of Dr AA (admittedly 14 months after the date of marriage and not tested at the hearing) about how the deceased’s behaviour could, in effect, disguise the severe level of his functioning allows me, in the circumstances, to more easily accept the statements of the deceased’s siblings and Ms Lyden about how he was discussing the marriage and participated in the actual ceremony;
(e)I however accept the submission of Mr Hackett for the Applicants, that those observations and statements by the lay witnesses and family, cannot “displace” the evidence from particularly Dr L;
Mr Hackett contended (at paragraph 20 his written submissions) that to some extent Ms Lyden had an obligation to:
(a)tell the wedding celebrants of the deceased’s medical condition;
(b)tell any of the guests at the wedding of the deceased’s medical condition; and
(c)seek advice from either the deceased’s treating General Practitioner or Dr L whether the deceased had the capacity to marry.
I do not accept this submission. Similarly, it could be said that both Mr B Lyden and Ms B Alford, loving siblings of the deceased, had a similar duty. They did not. I am not satisfied that prior to the wedding – seen in the context of known facts including a solicitor taking the view the deceased had the competency on 23 February 2007 to execute his last Will and the Enduring Power of Attorney – Ms Lyden, Mr B Lyden and Ms B Alford had formed the view the deceased was incapable of giving real consent to the act of marriage.
However, with the benefit of hindsight and based on all the convincing and generally uncontested medical expert evidence, the deceased did not have the capacity to understand the nature and effect of the marriage ceremony.
On the basis of the evidence and findings above, I am compelled to make a declaration under s 113 of the Act that the marriage solemnised on … April 2007 is void pursuant to s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth).
WHAT HAPPENS NEXT?
The Applicants seek continuance of injunctions made until superannuation proceeds and any property acquired with the same is conveyed to the Estate of the deceased because “the fact that the superannuation funds of the deceased were paid to the Respondent as his ‘lawful’ wife” is not in dispute.
Furthermore, orders are sought that Ms Lyden:
(a)forthwith pay the money she received from the T Super as the wife of Mr C Lyden (deceased) together with accretions to the Applicants as the legal personal representatives of the estate of Mr C Lyden; and
(b)forthwith transfer the property at V Street, W Town purchased with the T Super money to the Applicants as the legal personal representatives of the estate of Mr C Lyden (deceased).
When the hearing completed with submissions in November 2019, few submissions were made by either party as to the consequential orders.
Whilst the Court, on the evidence given by Ms Lyden, is aware of a number of events which occurred after the death of the deceased (see paragraphs 83 to 114), this Court will require further submissions about consequential orders, including:
(a)what is the status and likely further proceedings in the Supreme Court relating to the Will of the deceased. In this respect, on 8 February 2019 the Respondent tendered (and it was marked Exhibit 3) a copy of an Originating Application filed by Ms Lyden on or about 23 November 2018;
(b)the affidavit of Mr Q was prepared to support an application filed by the Public Trustee as Administrator of Mr C Lyden, for a direction and advice from the Supreme Court “as to whether he would be justified in the circumstances in revoking the Binding Death Benefit Nomination dated 4 March 2013”. The Court has no information as to the result of that application, but in any event notes that Ms Lyden concedes she received $2,331,385 in October 2018, in two instalments. Whilst the payment made to Ms Lyden was probably made to her as the “wife” of the deceased, it may be that any funds so paid to her are to be refunded to the Trustee. It may be that the Trustee of T Super should be given an opportunity to be heard on the application that the funds (and the house purchased with some of the funds received by Ms Lyden) be paid to the estate;
(c)the discretion exercised by the Superannuation Trustee may need to be re-exercised or, alternatively, it may be that the Trustee has no further interest or role in the matter;
(d)The last Will of the deceased, if still a valid document, was made “in contemplation” and “conditional upon” the marriage taking place. I merely speculate, because I have heard no submissions on this issue, that if the deceased’s Will is invalid then he may well have died intestate. Even if the parties were not lawfully married, it is unclear whether the nature of the relationship between the deceased and Ms Lyden enlivens any other claims by her. It is noted that, to some extent, Ms Lyden was the recipient of a monthly payment by the Public Trustee as the Administrator of the affairs of the deceased, and whether it is relevant (noting of course that payments ceased on the death of the deceased) that she was “dependant” on such income for over 10 years is not clear.
I accept, and express regret, for the delay in publishing these Reasons for Judgment.
However before I pronounce any further consequential orders, I will require further submissions on the orders sought by the Applicants. I am conscious that significant legal expenses have no doubt been incurred in this matter and whilst I am not wishing the represented parties to incur more costs unnecessarily, it seems to me that some discussions between the parties about consequential orders is desirable.
I will give the parties a month from today to discuss these matters (including the applications for costs that also remain alive) and list the matter for further directions at 9.30am on 18 March 2021. If the parties are able to reach some agreement then the Court can be so informed on the next occasion – and if not a timetable to finalise the case can be set.
In giving this extra time, I am conscious that Ms Lyden had sold her former home and purchased a new home. Making an order, in the circumstances of this case, for that new home to be transferred forthwith (as the Applicants seek) carries a likelihood that Ms Lyden could be required to vacate “forthwith”.
I will need submissions on the timing of any such order before I am able to make such an order.
The orders I make today appear at the commencement of these Reasons for Judgment.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 11 February 2021
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