Black v Scotson

Case [2019] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Black & Anor v Scotson [2019] QSC 272

PARTIES:

LESLEY ANNE BLACK AND THOMAS WILLIAM BLACK
as executors of the will of JAMES McINALLY
(plaintiffs)
v
MICHAELA ALICE SCOTSON

(defendant)

FILE NO:

13032 of 2018

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

6 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

25 and 26 July 2019; written submissions received 28 July 2019

JUDGE:

Ryan J

ORDERS:

1.    I will pronounce in solemn form for the force and validity of the will of James McInally dated 4 February 2018;

2.    I will hear the parties further on the question of the grant of probate, including a grant on conditions; and

3.    I will hear the parties further as to the final form of order and costs.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTORY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where the testator executed wills in 2007 and 2018 – where suspicious circumstances attended the execution of the 2018 will – where plaintiffs seek a declaration as to proof in solemn form of the 2018 will – where plaintiffs to prove testamentary capacity and intention – whether testator knew and approved of contents of 2018 will

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – TO WHOM PROBATE GRANTED – PASSING OVER OF EXECUTOR AND OTHER MATTERS – fitness and propriety of named executor – when named executor required to investigate transactions involving his wife

Evidence Act 1977 (Qld)

Powers of Attorney Act 1998 (Qld)

Succession Act 1981 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Bailey v Bailey (1924) 34 CLR 558

Baldwin and Neale v Greenland [2006] QCA 293

Baldwin v Greenland [2005] QSC 386

Banks v Goodfellow (1870) LR 5 QB 549

Barry v Butlin (1838) 12 ER 1089

Browne v Dunn (1893) 6 R 67

E Carr & Son Pty Ltd v Hood and Carr as Executors of the Estate of the late Edward Carr [2003] QSC 453

Frizzo & Anor v Frizzo & Ors [2011] QCA 308

Frizzo & Anor v Frizzo & Ors [2011] QSC 107

Hamill and Anor v Wright and Ors [2018] QSC 197

In the Lands and Goods of Richard Bond [1916] St R Qld 218

Londy & Pender as executors and trustees of the Will of Mary Hilary Kavanagh (deceased) v Kavanagh [2018] 1 Qd R 646

Pates v Craig [1995] NSWSC 87

Re Pleasance, unreported, Ambrose J, 14 December 1990

Read v Carmody, unreported, NSWCA, Powell JA, 23 July 1998

Ruskey-Fleming v Cook [2013] QSC 142

Veall v Veall [2015] VSCA 60

Vernon v Watson [2002] NSWSC 600

Worth v Clasohm (1952) 86 CLR 439

COUNSEL:

G R Dickson for the plaintiffs

J A Sheean for the defendant

SOLICITORS:

Michael Cooper Lawyer for the plaintiffs

Smith & Stanton for the defendant

Overview

  1. On 19 January 2018, James McInally was admitted to hospital after a fall.…

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Details
AGLC
Black v Scotson [2019] QSC 272
Case
[2019] QSC 272
Decision Date

CaseChat Overview and Summary

The case of Black v Scotson involved a dispute over the succession of the estate of James McInally, focusing on the validity of his will dated 4 February 2018. The plaintiffs, represented by Mr. Black, sought a declaration that the will should be proven in solemn form, arguing that Mr. McInally had testamentary capacity and intention when he executed the will. The defendant, Michaela Scotson, contested the will, raising concerns about her father's mental state and whether he understood the contents of the will at the time of its execution. The case required the court to determine whether Mr. McInally knew and approved the contents of his 2018 will, and whether Mr. Black, as the named executor, was fit and proper to administer the estate.

The court assessed the weight of Michaela Scotson’s evidence under section 102 of the Evidence Act, considering the circumstances of the statement’s accuracy and any potential incentives to conceal or misrepresent facts. While Michaela expressed concerns about her father’s understanding of the will, there was no evidence of any surprise about him leaving part of his estate to Mr. Black. The court observed that Michaela’s notes suggested she had concerns about her father’s clarity on 4 February 2018, which the court used in favour of the defendant, raising doubts about Mr. McInally’s testamentary capacity. The court also examined whether Mr. Black, as the named executor, was required to investigate transactions involving his wife.

The court concluded that it was not in the best interests of the estate to grant probate to Mr. Black without conditions. The court was concerned about the estate matters outstanding, such as the amount Mrs. Black owed to the estate and the ownership of the Nissan Tiida. The court emphasised the importance of minimising costs and avoiding further litigation. While the court found no evidence to suggest Mr. Black was unfit to be executor, it noted that if his reconciliation of his wife’s transactions was not accepted by the defendant, the court would need to decide the matter. The court decided to pronounce in solemn form for the force and validity of the will and invited further submissions on the grant of probate, including a conditional grant, and the final form of order and costs.

Orders

Orders of the court

1. I will pronounce in solemn form for the force and validity of the will of James McInally dated 4 February 2018;

2. I will hear the parties further on the question of the grant of probate, including a grant on conditions; and

3. I will hear the parties further as to the final form of order and costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In evaluating the weight to give to Ms Scotson’s evidence, section 102 of the Evidence Act applies. It states – 102 Weight to be attached to evidence In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including – (a) the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and(b) the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts. Neither counsel made any submissions about these matters. I note that the statement was made reasonably contemporaneously with the facts it related. Nothing suggested any incentive to conceal or misrepresent the facts as stated in her notes. Viewed as a whole, Ms Scotson’s notes suggests that she was concerned about not being included in discussions about the new will and concerned about her father’s understanding of it. However, she does not express any surprise that her father wished to leave part of his estate to Mr Black (cf the notes of her surprise at the suggestion that her father believed there was tension between his daughters) in her notes of the conversations with her father on 4 February 2018; with Mr Black on 4 February 2018; or with her sister on 5 February 2018. There is nothing in this folder between the handwritten note dated 5 February 2018 and the “File Note” dated 10 March 2018. It would have been open for me to infer from – ·the absence of any note about it after 5 February 2018; in combination with ·the evidence that Ms Scotson and her sister arranged for the early distribution of $90,000 in accordance with the 2018 will (that is, in thirds); and·the level of detail into which her notes descend, that any concerns Ms Scotson had about the deceased’s knowledge and approval of the contents of his will had dissipated by his death. However, as will appear below, I have used evidence of Ms Scotson’s uncertainty about the deceased’s clarity on 4 February 2018 in the defendant’s favour in proceeding on the basis that her evidence (in combination with other evidence) raised a concern about Mr McInally’s testamentary capacity.Michaela Scotson Michaela Scotson, the defendant, said her mother cared for her father “a great amount”. She was concerned for his health and his welfare. She did what she could to assist, which included helping him clean the house, washing his clothes and checking in to see how he was. Ms Scotson saw her father once a week – on either Saturday or Sunday. Michaela Scotson also gave evidence about Mr McInally’s car – a Nissan Tiida. She said that she borrowed that car, when her own was out of service, rather than hire a car. She used the car for two weeks and returned it in the same condition as it was in when she borrowed it. After Mr McInally died, she thought she would ask whether she could buy the Nissan from the estate. Her mother told her she would speak to Mr and Mrs Black about buying the car. Later, her mother told her it was a “no go” because “apparently, the car had been gifted to Bill”.

Decision

Reasons for decision

Counsel for the defendant did not prepare written closing submissions: the only submissions made on the issues were those made orally. In oral submissions, she referred only to the public trustee as a potential executor.Discussion and conclusion Having regard to the estate matters outstanding – that is, the amount Mrs Black is required to repay the estate (if any), the status of the car, and perhaps the early distribution of $90,000 – and the way in which the parties are relating to each other (including the defendant’s apparent suspicion of Mr Black), I am concerned that granting probate to Mr Black would ultimately not be in the best interests of the estate. In saying that, I make no finding about his fitness and propriety. However, even the plaintiffs’ counsel acknowledged that were Mr Black’s reconciliation of his wife’s transactions on the bank account not accepted by the defendant – the court would need to decide the matter. It is in the interests of the estate to keep costs to a minimum and to avoid further litigation. It may be that it is appropriate to grant probate to Mr Black – subject to a condition that an independent person calculate the amount which Mrs Black owes to the estate and the issue of the ownership of the Nissan Tiida.[16] I wish to hear further submissions from the parties as to the most appropriate orders for the administration of the estate. [16] See as an example of a similar approach, E Carr & Son Pty Ltd v Hood and Carr as Executors of the Estate of the late Edward Carr [2003] QSC 453.Final orders I will pronounce in solemn form for the force and validity of the will of James McInally dated 4 February 2018. I will hear the parties further on the question of the grant of probate, including a grant on conditions. I will hear the parties further as to the final form of order and costs.

Ratio Decidendi

Legal Principle Established

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