Barrand v Coxall

[1999] QSC 352

SUPREME COURT OF QUEENSLAND

CITATION:

Barrand v Coxall [1999] QSC 352

PARTIES:

JOYCE DOLORES BARRAND
(Plaintiff)
v
ROBERT JOHN COXALL
(Respondent)

FILE NO/S:

8222 of 1999

DIVISION:

Trial Division

DELIVERED ON:

30 November 1999

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 1999

JUDGE:

Mackenzie J

ORDERS:

1.   The application is dismissed.

2.   The applicant pay the respondent's costs of and incidental to the application to be assessed.

CATCHWORDS:

WILLS PROBATE AND LETTERS OF ADMINISTRATION – THE MAKING OF A WILL – Testamentary  Capacity 
LAND TITLES UNDER THE TORRENS SYSTEM – Caveats against dealings

Uniform Civil Procedure Rules 626

Succession Act 1981 s 17(1)
In the Estate of Park, deceased; Park v Park (1954) P 112
Banks v Goodfellow (1870) LR 5QB 549
Boughton v Knight (1873) LR 3P&D 64
Bailey v Bailey (1924) 34 CLR 558

COUNSEL:

Mr M Jarrett for the applicant
Mr T Quinn for the respondent

SOLICITORS:

Hely & Cameron Solicitors for the applicant
James Varitimos for the respondent

1. MACKENZIE J:  This is an application to set aside a caveat pursuant to Uniform Civil Procedure Rule 626.  Rule 626(1) permits a person intending to apply for a grant of probate to apply to the court for an order setting aside a caveat.  The court may set aside the caveat if the court considers that the evidence does not:

(a)        show that the caveator has an interest in the estate or a reasonable prospect of  establishing an interest; or

(b)        raise doubt as to whether the grant ought to be made.

1. The respondent caveator is the stepson of the testator in respect of whose will the caveat has been entered.  The testator married the respondent's mother when he was 60.  He and the respondent's mother made wills identical in effect, the testator's being made on 4 January 1985.  The survivor of the two was entitled for life to use of the balance, after payment of expenses, of the other's estate.  Upon the death of the survivor the balance was to pass to the respondent absolutely.

1. At about the time the testator's will was made in 1985 he and the respondent's mother had acquired a parcel of real property as joint tenants.  The transfer was produced to the Titles Office on 11 February 1985 and registered on 20 February 1985.  It is likely that the contract was entered into at about the time when the will was made, assuming the normal timeframe for purchase of residential property.  It is reasonable to assume that the fact that the real property would pass by survivorship to the other, and if it was the testator who survived, to him was within their contemplation at the time the 1985 will was made.  It may also have been within their contemplation that the property would ultimately pass to the respondent as a consequence of the wills which mirrored each other. 

1. There is an allegation that the expressed intention of the parties was that the balance of the estate should pass to the respondent upon death of both spouses.  There is also evidence that he had contributed to the purchase and improvement of real property of his mother's in Victoria which was sold and the proceeds used in the purchase of the real property in Queensland.

1. The applicant is the widow of the testator.  She and the testator married on 7 October 1997 when he was 83 years old.  He executed the will of which probate is sought on 31 October 1997. 

1. The argument against removal of the caveat was that a question of fact needed to be resolved in order to determine which is the last valid will of the deceased.  Fundamental to this argument are the propositions that the evidence raises a doubt whether the grant of probate of the 1997 will ought to be made and that there is a reasonable prospect of the respondent establishing an interest in the estate. 

1. If the marriage in October 1997 was valid the 1985 will was revoked by operation of s 17(1) of the Succession Act 1981. If the testator had testamentary capacity when the 1997 will was made its dispositions in favour of the applicant are operative and the respondent has no interest in the testator's estate.

1. The evidence relied on in support of retention of the caveat consists of an affidavit sworn on information and belief by the respondent's solicitor.  He was informed by the Blue Nursing Service, which first visited the deceased at home on 28 July 1998, that in August 1998 the deceased was disorientated at times and unaware of where he was.  In August 1998 he was admitted to hospital.  On his discharge in September 1998 he had increased confusion and weakness.  He was restless, not sleeping well, displaying signs of aggression and anger, seeing no reason and refusing to take his medicine.  The solicitor was informed by a doctor who took over the care of the deceased from the beginning of 1999 after he had been admitted to a nursing home that at that time the deceased was "quite demented" and "very demented and confused".  The solicitor was informed by a general physician (who is not shown to have personal knowledge of the deceased) that it was "barely possible to be quite demented in January 1999 but of sound mind 14 months earlier".

1. Mr Quinn also argued that the death certificate supported his case because in the secondary causes of death (the primary cause being cancer) a group of conditions "cardiac failure, cerebral vascular accident, dementia, chronic obstructive airways disease" with a duration of "years" was recorded.  This information was provided by the doctor who began caring for him at the beginning of 1999.  It was submitted that this was evidence that the deceased had suffered from dementia for years.  In the absence of more precision it is difficult to draw any conclusion from that entry concerning the duration of the deceased's dementia.

1. There is no evidence from any doctor or other person on either side of the record who can speak of the deceased's condition at the time of the marriage and of execution of the 1997 will and no explanation of why there is no such evidence except to the extent that the affidavit of the solicitor in support of the respondent's case indicated that some possible sources of information had declined to provide information without legal compulsion.  In the case of the Blue Nurses, the substance of the available information seems to have been given even if the notes have not.  Further, there is no evidence as to whether the questionnaire completed for the cremation would be expected to shed any light on the testator's mental state almost 20 months before his death.  The explanation for not being able to get better information loses much of its cogency since the Uniform Civil Procedure Rules took effect.  Since the distinction between chamber matters and court matters was abolished by the Uniform Civil Procedure Rules, the previous inhibition on subpoenaing documents in chamber matters has gone.  On the other hand, on behalf of the respondent, Mr Quinn drew attention to the absence of evidence from a solicitor who was one of the attesting witnesses to the will as to his belief in the testator's testamentary capacity.

1. The issues of capacity to marry and testamentary capacity would be central to any further proceedings.  While the things of which a person must have an appreciation are different in the cases of capacity to marry and testamentary capacity, the notion that a lesser degree of capacity is required to consent to marriage than to make a will was disavowed by the Court of Appeal in In the Estate of Park, deceased; Park v Park (1954) P 112.

1. Although Park illustrates that different conclusions may be reached as to the existence of the two capacities by differently constituted courts, the most likely outcome, where the marriage and execution of the will were close in point of time, is that both capacities did or did not exist.  In respect of testamentary capacity it is necessary that the testator shall understand the extent of the property of which he is disposing and is able to comprehend and appreciate the claims to which he ought to give effect.  Provided he has such capacity he is left free to choose to whom he will bestow his property (subject to the intervention of family provision considerations) (Banks v Goodfellow (1870) LR 5QB 549; Boughton v Knight (1873) LR 3P&D 64; Bailey v Bailey (1924) 34 CLR 558).

1. With respect to capacity to marry, the question is whether the person marrying was capable of understanding the nature of a contract of marriage or whether his or her mental condition was such that he or she was incapable of understanding it.  To ascertain the nature of the contract of marriage a person must be mentally capable of appreciating that it involved the responsibilities normally attaching to marriage.  Without that degree of mentality it cannot be said that the person understood the nature of the contract.  (Park, 127, Singleton LJ)  The allusion in the Court of Appeal in Park to the exhaustive analysis by Karminski J at first instance (1954 p 89) of events preceding the marriage and on the day of the marriage shows the critical nature of evidence of this kind in a case where the validity of a marriage is attacked.  A similar kind of evidence is important in the case of challenged testamentary capacity as well, especially where the person whose capacity is being investigated is elderly and in frail health. 

1. The test for ordering removal of the caveat depends on three matters referred to above.  The evidence does not show that the respondent has an interest in the estate.  The other two questions, whether the evidence does not show that he has a reasonable prospect of establishing an interest and whether the evidence does not raise a doubt as to whether the grant ought to be made may be considered together since in this case they raise similar issues.

1. The state of the evidence is unsatisfactory on both sides.  At the highest the evidence from the Blue Nursing Service suggests that on some occasions in August 1998 the testator was disorientated.  It does not suggest that he was in a continual state of disorientation.  This became worse after his admission to hospital in August 1998.  The evidence of the doctor who treated the testator from the beginning of 1999 onwards speaks only of his condition then.  The evidence from the physician must in my view be treated with considerable caution since there is nothing to suggest that he was speaking with reference to the particular case and there are good reasons to think that he was expressing a general opinion without any indication of knowledge of what the Blue Nurses had said.  On the other hand, the applicant has not seen fit to lead evidence which should have been easily available to establish positively what the testator's condition was at the dates when capacity must be decided.  The result is that there is no substantial evidence as to his condition at the time when his capacity to marry and to make a will must be determined, except the scintilla of evidence inherent in the evidence of the physician's opinion.

1. I am conscious that it is not necessary for a person in proceedings of this kind to expose in detail the evidence he would call to ultimately make out a case on the issue of incapacity, and that the applicant must prove a negative. On the unsatisfactory state of the evidence before me, I am not persuaded that I should order that the caveat be removed.  The threshold which a person seeking to remove a caveat must reach is high having regard to the statutory test.  The state of the evidence before me is such as to fail to persuade me, at the least, that there is not a doubt raised on the evidence before me as to whether the grant ought to be made.  Accordingly I order as follows:

1.          The application is dismissed.

2.          The applicant pay the respondent's costs of and incidental to the application to be assessed.