Boulton v Sanders
[2003] VSC 405
•16 October 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 4142 of 2003
| ELAINE SUSAN BOULTON | Plaintiff |
| v | |
| ROGER KEITH SANDERS | First Defendant |
| PETER JAMES SANDERS | Second Defendant |
| BARBARA JOY CHAPMAN (formerly Sanders) | Third Defendant |
| JANET RUTH AUSTIN (formerly Sanders) | Fourth Defendant |
| JUDITH REBECCA LING (formerly Sanders) | Fifth Defendant |
| MARGARET RUTH SANDERS (now O’Donnell) | Sixth Defendant |
| PATRICIA SANDERS (now Griechen) | Seventh Defendant |
| GARY SANDERS | Eighth Defendant |
| ROBYN SANDERS (now Cornell) | Ninth Defendant |
| LINDA SANDERS (now Ross) | Tenth Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2003 | |
DATE OF JUDGMENT: | 16 October 2003 | |
CASE MAY BE CITED AS: | Boulton v Sanders | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 405 | |
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Wills – Application for court – Ordered will – Person not having testamentary capacity – Residuary beneficiary in most recent will – How deceased – Whether sufficient evidence of testamentary intent – Sections 21,22,26,27, 28 Wills Act 1997 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R C Wells | Stedman Cameron |
| For the First & Fifth Defendants | Mrs K Rees | Pearce Webster Dugdales |
| For the Sixth to Tenth Defendants | Ms C Sparke | T J Mulvany & Co |
HER HONOUR:
Introduction
This is an application brought by originating motion on 16 January 2003. By the amended originating motion filed on 4 March 2003 the plaintiff seeks first, an order of the Court granting leave pursuant to section 21 of the Wills Act 1997 (“the Act”) to make an application to the Court for an order that a will, a copy of which was before the Court (“the proposed will”), be made on behalf of Amy Alice Elaine Sanders (“Miss Sanders”) and second, an order that the proposed will be made by the Court on Miss Sanders’s behalf.
The relevant provisions of the Act appear in Division 2 of Part 3, under the heading “Court authorised wills for persons who do not have testamentary capacity”. The relevant provisions are sections 21, 22, 26, 27 and 28, which read as follows:
21.Wills for persons who do not have testamentary capacity authorised by the Court
(1)The Court may make an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity.
(2)Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application.
(3)The Court may make an order under this section on behalf of a person who is a minor and who does not have testamentary capacity, but must not make an order under this section on behalf of a person who is deceased at the time the order is made.
22.Hearing an application for an order
In considering an application for an order under section 21¾
(a)the Court may have regard to any information given to the Court in support of an application for leave under section 28; and
(b)the Court may inform itself of any other matter in any manner it sees fit; and
(c)the Court is not bound by the rules of evidence.
26.Matters of which Court must be satisfied before application for leave to make an application may be granted
Before granting leave to apply for an order under section 21, the Court must be satisfied that—
(a)the person on whose behalf the will is to be made or revoked does not have testamentary capacity; and
(b)the proposed will or revocation accurately reflects the likely intentions of the person, if he or she had testamentary capacity; and
(c)it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will or the revocation of the will for the person.
27.Hearing an application for leave
(1)In considering an application for leave to make an order under section 21—
(a)in addition to any matter which the Court may take into account under section 28, the Court may inform itself in any manner it sees fit; and
(b)the Court is not bound by the rules of evidence.
(2)If the Court is satisfied, on the evidence tendered under sub-section (1) of the matters set out in section 26(a) to (c), the Court may determine that the application for leave to apply for an order under section 21 proceed as an application for such an order.
28.Information which the Court may require in support of an application for leave
In proceedings for the hearing of an application for leave to apply for an order under section 21, the applicant must, if so required by the Court, give—
(a)a written statement of the general nature of the application and the reasons for making it;
(b)a reasonable estimate, formed from any evidence available to the applicant, of the size and character of the estate of the person on whose behalf the will is to be made;
(c)a draft of the proposed will for which the applicant is seeking the Court’s approval;
(d)any evidence available to the applicant of the wishes of the person;
(e)any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity;
(f)any evidence available to the applicant of the terms of any will previously made by the person;
(g)any evidence available to the applicant of the likelihood of an application being made under Part IV of the Administration and Probate Act 1958 in respect of property of the person;
(h)any evidence available to the applicant of the circumstances of any person for whom provision might reasonably be expected to be made under the will;
(i)any evidence available to the applicant of any persons who might be entitled to claim on intestacy;
(j)any evidence available to the applicant of any gift for a charitable or other purpose that the person might reasonably be expected to give or make by will;
(k)any other evidence available to the applicant and which is relevant to the application.
Also relevant is Order 17 of Chapter 2 of the Supreme Court (General Civil Procedure) Rules 1996, which provides that the originating motion be supported by an affidavit setting out the acts, facts, matters and circumstances relied upon to satisfy the Court of the matters required by section 26, and also requires that the applicant give the various statements, estimates, draft and evidence set out in section 28, or, if any of the evidence set out in paragraphs (d) to (j) of that section is not relevant, state why it is not relevant. Thus, in terms of the opening words of section 28, by the operation of Order 17 it is “required by the Court” that that material be given to it.
Affidavits were filed on behalf of the plaintiff by the plaintiff herself, Miss Sanders’s general practitioner, a retired secretary and the solicitor for the plaintiff. Affidavits sworn by the first, fifth, sixth, ninth and tenth defendants were also before the Court. No deponent was cross-examined and no oral evidence was given. The third defendant died after the initiation of this proceeding, and while the second and fourth defendants were served with relevant documentation, they have taken no part in the proceeding.
The facts
Miss Sanders was born in 1914 and is 89 years old. She was one of six children. She resides in Ascot Manor Special Accommodation. She has never married and has no children. Three of her siblings died in infancy, and her two brothers, Alan and Keith, died in 1967 and 1986 respectively. The first to fourth defendants are the children of Alan and the fifth to tenth defendants are the children of Keith.
Miss Sanders was a teacher. She retired from teaching in 1974 at the age of 60 and worked for about ten years as a part-time librarian at Coltmans, a firm of solicitors. She lived for most of her life in her family home at 21 Florence Avenue Kew. From 1960 to 1982 her friend Patricia Kennedy (“Miss Kennedy”), a partner in Coltmans, lived there with her. In about 1970 her friend Ruth Coulsell (“Miss Coulsell”) retired from work as a school inspector and lived at 21 Florence Avenue until Miss Sanders sold the house in 1996 and the two moved together into a unit in Cotham Road, Kew. Miss Sanders relied heavily on Miss Coulsell.
Miss Sanders’s last will (“the 1997 will”) was made on 15 October 1997, Miss Kennedy being one of the witnesses. In that will she left to Miss Coulsell $10,000, the unit in Cotham Road and its contents, and, after payment of other legacies totalling some $135,000, the residue of her estate. However, Miss Coulsell died on 14 July 2000. The 1997 will does not provide for any gift over of residue in the event of Miss Coulsell’s predeceasing Miss Sanders, and thus there is now an intestacy in respect of residue. It is this situation which had led to the bringing of the present application.
Three earlier wills of Miss Sanders have been located, made on 23 October 1989, 1 July 1994 and 3 February 1996 respectively. Miss Coulsell was named in each of these wills as the sole residuary beneficiary, but in each there was a gift over, the residue to be divided among some eight or ten individuals and charities should Miss Coulsell predecease the testatrix. The list of individual residuary beneficiaries varies from will to will, and includes some of her nieces and nephews, three great nieces and a great-nephew, and two friends. The list of charities also varies from will to will.
It appears from the transfer to Miss Sanders of the Florence Avenue property that she had acquired the property in 1947 as satisfaction of her share in her late mother’s intestate estate, together with the payment by her of £ 618 to the estate. The property was valued in the inventory at £ 1900 at the time. That is the only evidence that any of her assets derived from her family.
On 27 October 2000 the Victorian Civil and Administrative Tribunal (“VCAT”), being satisfied of Miss Sanders’s disability and inability to make reasonable judgments in respect of her estate, made orders pursuant to the Guardianship and Administration Act 1986 appointing the Public Advocate as her limited guardian and the plaintiff as administrator of her estate. Miss Sanders was installed as a resident in Ascot Manor on 11 February 2001. On 27 March 2003 VCAT appointed State Trustees as administrator in place of the plaintiff. State Trustees have declined to take part in this proceeding. The accounts filed by the plaintiff as administrator on 27 July 2002 show that Miss Sanders’s assets then comprised investments totalling $969,571.91. The unit in Cotham Road has been sold.
The plaintiff is the daughter of a close friend of Miss Sanders, and has had contact with Miss Sanders all her life. After the death of Miss Coulsell, the plaintiff took care of Miss Sanders’s affairs, by paying her bills, taking her shopping, delivering meals, finding suitable aged care accommodation and installing her there, cleaning out and selling the unit in Cotham Road, and generally carrying out her responsibilities as administrator.
The application for leave
The first step for the Court is to decide whether leave to make the application should be granted. This requires consideration of the matters set out in section 26. As Gillard J pointed out in Monger v Taylor[1], the terms of Division 2 of Part 3 of the Act lead to the conclusion that the leave application is at least as important as the substantive application itself, and in most cases would be the more important application.
[1][2000] VSC 304 at [64]
Section 26(a)
As to paragraph (a) of section 26, it is not in issue that Miss Sanders no longer has testamentary capacity and, as her general practitioner deposes, any likelihood of her acquiring or regaining in the future the necessary mental capacity to understand or comprehend the nature and effect of signing a will is “extremely remote”.
Section 26(b)
It is submitted on behalf of the plaintiff and the first and fifth defendants that in terms of paragraph (b) of section 26, “the proposed will . . . accurately reflects the likely intentions of [Miss Sanders] if . . . she had testamentary capacity.” Guidance as to the manner in which that expression is to be considered comes from the decision of Gillard J in Monger v Taylor [2] , where his Honour concluded that much of what was said by Megarry V-C in In re D(J)[3] applied to an application for leave under the Act:
In particular that the proposed testator has full knowledge of the past, and that the application is concerned with the actual person for whom the will is to be made and not some hypothetical person. The court must take the proposed testator as he was prior to losing testamentary capacity. In other words, making all due allowances, the court must seek to determine the likely terms of the will which the actual proposed testator acting reasonably would have made if restored to full mental capacity, memory and foresight. Further, the court should proceed on the basis that the proposed testator is advised by competent solicitors in determining what the will should provide. In addition, that the proposed testator is envisaged as taking a broad brush to the claims on his bounty.
[2]at [68]
[3][1982] Ch 237 at 243
In Hill v Hill[4] Byrne J said:
It was put . . . that I should approach with caution the task of determining the supposed intention of Mrs Hill. It was said that the jurisdiction of the court under section 21 is novel, intrusive upon testamentary freedom and may adversely affect the expectancy of beneficiaries. I accept all of this. I must be satisfied that the pre-conditions for relief have been made out by the plaintiff on the balance of probabilities, but in so doing I am mindful of the serious consequences of the conclusions which I am asked to draw.
I would, with respect, adopt both those passages.
[4][2001] VSC 83 at [8]
As has been said, it is the intestacy as to residue which has led to the bringing of this application. There is no suggestion that any other aspect of the 1997 will is inappropriate. At this stage it is not necessary to examine the detailed provisions of the proposed will, save to say that after listing a number of specific legacies totalling $145,000, unchanged from the 1997 will, it includes a provision for division of the residue of the estate into eight equal shares. One share is to be paid to each of the first, fifth, fourth and second defendants, one to the plaintiff and three to charities.
The first question to be considered under this heading is whether, if she had had testamentary capacity, Miss Sanders would have wished, after the death of Miss Coulsell, to make a new will (or codicil) providing for the disposition of the residue of her estate, or whether she would have been content with the result of the 1997 will, that is, for the residue to pass as on an intestacy to her nieces and nephews equally, pursuant to section 52 of the Administration and Probate Act 1958 (“the A & P Act”).
While every case under this legislation must inevitably turn on its own facts, the consideration of earlier cases can be of assistance. In Monger v Taylor[5] Gillard J proceeded on the basis of the testatrix as being advised by competent and careful solicitors as to the likelihood of an application being made under Part IV of the A & P Act for the proper maintenance and support of a person not included in her will, for whom the testatrix had responsibility to make provision. Such an application would, of course, lead to expense and delay in the administration of the estate. His Honour found that the testatrix would have been given and would have adopted such advice, and accordingly approved a will in which the beneficiaries were persons who would have been in a position to make such an application.
[5][2000] VSC 304 at[100]
In Hill v Hill[6] Byrne J found himself to be satisfied on the evidence that the testatrix had in fact changed her mind since the making of her will and before the loss of testamentary capacity and had intended to benefit her daughter at the expense of a charity with which she had had a long association. Accordingly, he approved a proposed will which carried out that intention.
[6][2001] VSC 83 at [10]
Mandie J in State Trustees Ltd v Hayden[7] said in the context of section 26(b):
. . . there is no direct subjective evidence as to whether [the testatrix] would have altered her will, and if so how, in the light of events since her last known will. In this situation, the court is entitled to assume that she is likely to have acted or reacted as a normal, decent person is likely to have acted or reacted in all the circumstances.
[7](2002) 4 VR 229 at [41]
Byrne J in Re Fletcher; ex parte Papaleo[8] concluded:
. . . what must be put on behalf of the administrator is that, following the financial misadventures of John Fletcher, his mother would have insisted upon repayment of the money borrowed or that his share in the estate be diminished in order to restore the equality which she sought to achieve in her 1970 testament. Of this there is no evidence. It may be that this would be her reaction to the events which have occurred since that date. It may be that she would treat him as the prodigal son. It may be that there are other considerations, perhaps arising out of benefits conferred upon the daughter or otherwise, which may bear upon her intentions. . . . Experience shows that people of sound mind do not alter their will even after subsequent events occur which change the effect of the existing testament. It is a serious step to make or to modify a will. It is not for me to impose upon Mrs Fletcher an intention which I think she might or ought to have. The section requires that I make a finding as to her supposed likely intentions. The application requires me to make a finding that her likely intentions are those set out in the proposed statutory will. This I am unable to do.
[8][2001] VSC 109 at [22]
The only evidence relied on by the plaintiff and the first to fifth defendants as to Miss Sanders’s likely intentions is the inclusion of a gift over of residue in each of the three wills made respectively in 1989, 1994 and 1996 [9] . Mr Wells, for the plaintiff, submitted that from the terms of those three wills an inference could be drawn that Miss Sanders wished to exercise her testamentary freedom and did not wish her assets to pass on the lottery of intestacy. He drew attention to the fact that each of the four wills (including the 1997 will) contained an accruer clause, to ensure that if any gift of a share of residue failed, that lapsed share would accrue to the beneficiaries of the other shares. As there were always charities included among the residuary beneficiaries, the effect of that clause was that there would never be an intestacy. He described a pattern which he submitted appeared from the contents of the three earlier wills from which, in his submission, inferences could be drawn as to the persons and charities whom Miss Sanders would wish to include as residuary beneficiaries of her estate.
[9]see [7] above
Miss Sanders had little or no contact with most of her nephews and nieces. Roger Sanders, the first defendant, who saw more of her than the others, except for Judith (known as Rebecca) Ling, the fifth defendant, nevertheless deposes that he was surprised at the request in late 1995 or early 1996 that he act as “trustee” of her will, “given the nature of our relationship”. That would suggest that he did not see himself as particularly close to her. Rebecca Ling saw a certain amount of her, but since 1979 only when Mrs Ling visited Melbourne from her home which is now in Queensland. Save that Roger Sanders was involved with the VCAT hearing, and since then has visited Miss Sanders regularly both before and after her admission to Ascot Manor, there is no evidence of any recent change in her relationship with any of her nephews and nieces of a kind which she might have intended to reflect in her will.
There is no evidence to lead to the conclusion that a competent and careful solicitor would advise Miss Sanders that there was any ”person for whom the deceased had a responsibility to make provision” who would therefore be in a position to make a claim on her estate under Part IV of the A & P Act if not included in her will Mrs Rees, for the first and fifth defendants, suggested that the advice would have been that the plaintiff was in a position to make such a claim, and accordingly it was appropriate that she be included as a residuary beneficiary,
However, Ms Sparke, for the sixth to tenth defendants, drew my attention to the passage from the decision of Harper J in Schmidt v Watkins [10] , which I would with respect adopt, where his Honour said, in the context of Part IV:
. . . it is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result the recipients had a responsibility to make adequate provision in their wills for the proper maintenance and support of their benefactors.
To state this conclusion is to draw attention to the object of the legislation. It is not to ensure that generosity is adequately rewarded or reciprocated. That, generally speaking at least, is a private matter. It is something for the individual conscience, not for the necessarily blunt instrument of the law. Rather, the object of the legislation is to ensure so far as the law can do it that those who have a duty not so much to reward but rather to provide maintenance and support do so by appropriate testamentary disposition. And the question: “Should I reward my benefactor?” is very different from the question: “Do I have a duty to X to make provision for his or her proper maintenance and support?”
[10][2002] VSC 273 at [23] and [24]
It this context it is necessary to examine the question of whether the failure to include a gift over of residue in the 1997 will was deliberate or accidental. It should be noted that the accruer clause referred to in [21] above had no application to a will where there was only one residuary beneficiary. Thus either the inclusion of the accruer clause in the 1997 will was a mistake, or the omission of a gift over of residue was a mistake. I am inclined to the view that before signing a will a testator or testatrix is likely to have paid more careful attention to the accuracy of the details of the beneficiaries, than to general provisions such as the accruer clause. Therefore, if there was a mistake, it seems to me to be more likely that the mistake was the inclusion of the accruer clause.
A document exists, in Miss Sanders’s handwriting, which is described in the affidavit of the plaintiff as a “draft” of the 1997 will. It is a copy of the greater part of the 1997 will, providing for execution in 1997, but does not include any provision at all for disposition of the residue of the estate. There is no evidence as to the circumstances in which that document was created, and I do not consider that any conclusion at all can be drawn from its existence.
It is important to note that the 1997 will was witnessed by Miss Kennedy, and it is apparent from the affidavit material that she was by then a solicitor of considerable experience. The plaintiff deposes that in 1960 Miss Kennedy was the senior partner of Coltmans, and the solicitor for the plaintiff deposes as to advice received by her from the Law Institute of Victoria that Miss Kennedy continued as a partner in Coltmans until 1986, retired as a consultant in 1994 and held a practising certificate until 2001. Miss Kennedy’s former secretary Ms Jones gives her reasons for deposing that she believes that she typed the 1997 will under instructions from Miss Kennedy. The will itself appears to have been drafted by someone with legal experience.
It can be inferred from the material in the preceding paragraph that the 1997 will was prepared by Miss Kennedy. If that were the case, Miss Kennedy and Miss Sanders would have discussed its terms, and Miss Kennedy would have given advice. One would expect that Miss Kennedy would have advised Miss Sanders to include in the will a gift over of her residuary estate in the event of Miss Coulsell’s predeceasing her. However, even if such advice were given, it is well known that clients do not always take the advice of their solicitors. There is no evidence from which I could infer that the absence of a gift over of residue was accidental.
There is no evidence of any expression by Miss Sanders of an intention to change her will after the death of Miss Coulsell in July 2000. Ms Sparke submitted that if Miss Sanders had wished to change her will there was a period when she could have done so, before the onset of the disability as to which VCAT was satisfied in October of that year. However, the period was brief, and I note the evidence of the plaintiff that “after the death of Ruth, it was obvious that Amy’s health was deteriorating”.
Any inferences which could be drawn from the terms of the four wills before the Court can only be inferences as to the intention of Miss Sanders when those wills were made. Each of those wills indicates that Miss Coulsell was the person whom she most wished to benefit. It is entirely possible that, when making the 1997 will, she had formed the view that if Miss Coulsell was not to be there to take the residue of her estate, she preferred to leave the distribution of the residue to the law rather than continuing to select among relatives, friends and charities. Mrs Rees pointed out that there is no evidence that Miss Sanders knew of the effect of an intestacy; nor is there any evidence that she did not. Some of her estate, at least, can be regarded as having come to her from her family [11] , and she may well have decided that it was appropriate that the residue of her estate be divided equally among her ten nieces and nephews.
[11]see [8] above
There is nothing inherently unreasonable about that disposition which would lead to the conclusion that Miss Sanders could not possibly have intended it. Mandie J in State Trustees Ltd v Hayden [12] , in the absence of any direct subjective evidence as to the intentions of the testatrix whose will he was asked to make, considered that the court was entitled to assume that she was likely to have acted as a normal, decent person is likely to have acted. The distribution of Miss Sanders’s residuary estate equally among her nephews and nieces, as provided for indirectly in the 1997 will, is the action of a normal decent person, and may well have been considered by her to be so.
[12][18] above
I note the passages cited above from Hill v Hill [13] and Re Fletcher [14] . It is, as is said there, a serious matter to make or modify a will, and it is not to be lightly undertaken. On the evidence before me, I cannot be satisfied on the balance of probabilities that the proposed will, including as it does the provision for the distribution of residue described in [6] above, “accurately reflects the likely intentions of [Miss Sanders if she] had testamentary capacity” so as to satisfy the requirement of section 26(b) of the Act. Accordingly, I am unable to grant leave to apply for the order sought by the plaintiff, and it is not necessary that I consider section 26(c).
[13][20] above
[14][14] above
Conclusion
For the reasons given, the application for leave to apply for an order under section 21 of the Wills Act 1997 will be dismissed. Counsel may wish to make submissions as to costs.
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