Bratt v Oliver
[2023] TASSC 43
•9 November 2023
[2023] TASSC 43
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Bratt v Oliver [2023] TASSC 43 |
| PARTIES: | BRATT, John |
| v | |
| OLIVER, Mark Andrew | |
| FILE NO: | 2555/2021 |
| DELIVERED ON: | 9 November 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 31 October 2023 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Succession – Probate and Letters of Administration – Grants of probate and letters of administration – To whom probate granted – Generally – Parties to proceeding reach compromise to propound earlier will – Principles applicable to Court's consideration – Compromise approved by Court.
Supreme Court Civil Procedure Act 1932, s 6(5)
Supreme Court Rules 2000, r 304(2)
Aust Dig Probate and Letters of Administration [1103]
Succession – The making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence.
Aust Dig Succession [1007]
REPRESENTATION:
Counsel:
Appellant: B McTaggart SC Respondent: M Flanagan
Solicitors:
Appellant: Simmons Wolfhagen Respondent: Alex Graham Legal
| Judgment Number: | [2023] TASSC 43 |
| Number of paragraphs: | 33 |
Serial No 43/2023 File No 2555/2021
JOHN BRATT v MARK ANDREW OLIVER
| REASONS FOR JUDGMENT | PEARCE J NOVEMBER 2023 |
1 Mark David Boatwright (the testator) died on 11 May 2021. He had made a will dated 8 September 2020 (the 2020 will) appointing the defendant as executor and trustee. The defendant applied to the Supreme Court of Tasmania for a grant of probate of the 2020 will in common form. The plaintiff objected the grant on the basis that, at the time the 2020 will was made, the testator did not have testamentary capacity. In accordance with the Probate Rules 2017, r 78(1), the plaintiff entered a caveat and, in accordance with rr 80 and 81, served the defendant with notice of the grounds of the objection. The plaintiff then commenced this action opposing proof of the 2020 will and seeking to prove, in solemn form, an earlier will made by the testator on 10 January 2018 (the 2018 will) in which he was appointed as executor and trustee.
A compromise
2 As far as the evidence reveals, the estate is a small one. It consists almost entirely of money, about $130,000, held in the bank. The defendant no longer wishes to propound the 2020 will. The parties have agreed to a compromise. They ask this Court to pronounce for the 2018 will notwithstanding the existence of the 2020 will. On 24 August 2023, Blow CJ ordered that the action be set down for unopposed hearing in accordance with the Supreme Court Rules 2000, r 741, the effect of which was that the trial of the action was on affidavit evidence. The terms of the orders sought pursuant to the compromise are these:
(a) a grant of probate in solemn form of the will dated 10 January 2018 to the plaintiff; (b) an order that the costs of the plaintiff be "paid from the estate on a solicitor/client basis in any event"; and (c) if a grant of probate in solemn form of the will dated 10 January 2018 is made to the plaintiff following an uncontested hearing then an order that the costs of the defendant of the action be paid from the estate on a solicitor/client basis (agreed or to be taxed if not agreed). 3 In the 2018 will the testator devised his entire estate to his sister, Debra Sue Bratt, or, if she predeceased him, to her two daughters Anna Bratt and Katherine Bratt.
4 In the 2020 will the testator devised his estate to the defendant on trust to, after payment of debts and testamentary expenses, give:
(a)
half of the balance of his Bendigo Bank term deposit account to Christine Taylor, to whom he referred as his "de facto partner";
(b) $10,000 to his friends Mark and Judith Oliver; (c) the balance of any cash accounts to his nephew David Bratt; (d) all of his chattels and personal belongings to his niece Kathryn (sic) Bratt; (e) the residue of his estate to the Bicheno Health and Resource Centre. 2 No 43/2023
5 Counsel for the defendant appeared at the hearing but played no part other than to indicate support for the making of the proposed orders. All other persons who benefit, or may potentially benefit, under each will have been served with a citation under r 730. David Bratt has not responded but each of the other potential beneficiaries have indicated their agreement to an order propounding the 2018 will instead of the 2020 will. For the following reasons I am satisfied that orders substantially in the terms of those sought should be made.
6 The jurisdiction of the Court to grant probate is confirmed by s 6(5) of the Supreme Court Civil Procedure Act 1932. When the Court makes the grant in solemn form, it is performing a public act to, as far as it fairly can do so, bring finality to any controversy about the testamentary intention of the deceased, and which appropriately serves the due administration of justice: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, applied by Brett J in Sultan v Melick & ors [2023] TASSC 4. In Sultan v Melick, at [8]-[14], Brett J summarised, by reference to authority, the relevant principles to be applied where the interested parties have reached a compromise. There is no need to repeat all of his Honour's remarks. It is sufficient to record that a court will not exercise its jurisdiction to make such a grant merely because the parties to the litigation concerning the will, have agreed to that outcome. The court must satisfy itself that the will to be propounded is the last will of the testator.
7 However, the fact of a compromise between parties to the litigation is a relevant circumstance, and the authorities acknowledge the practical significance a compromise which resolves issues which would otherwise be the subject of protracted, complex and expensive litigation. Without unduly undermining the need for this court to be satisfied that the 2018 will is the last valid will of the testator, there is a considerable interest in giving effect to a compromise entered into by the parties to the litigation, each of whom are represented by competent and experienced legal practitioners, and after every person who may be affected by the litigation was given an opportunity to participate. Otherwise, it is likely that this small estate would be substantially reduced or even extinguished by legal costs.
The circumstances
8 In support of the application I read affidavits from the plaintiff, from Debra Bratt, from a legal practitioner, Justin Otlowski, from a psychiatrist, Dr Martin Morrissey, and from one other person, Grant Jenkins. None of the evidence is challenged and satisfies me of the following facts.
9 At the time of his death the testator was aged 63. His mother, Elaine Boatwright, died in early 2018 and his father, David Boatwright, died later the same year. Debra Bratt is the testator's only sibling. She is four years older than the testator. She is married to the plaintiff and they have three adult children, Anna, Katherine and David. On 26 January 1980 he married Beth French. They moved together to Bicheno in the early 1980's but they were divorced in September 1988. The testator lived in Bicheno for the remainder of his life. He had only sporadic employment. He had no children. In about 2016 he formed a relationship with Christine Taylor. The testator referred to her as his "girlfriend", or in the will his "de facto partner" but the relationship was described by Mrs Bratt as "on again off again".
10 Throughout his life the testator was close to his family, including his sister Debra, the plaintiff and their children. From age 18 he consulted the plaintiff for advice. The plaintiff described the testator as lacking in communication skills, as having a tendency to not plan but instead to live with little thought for the future. For his whole adult life the testator was a regular user of cannabis and alcohol, an issue to which it will be necessary to return. Mrs Bratt and the plaintiff lived in Lewisham and their parents lived in Sorell, but there were frequent and regular family visits to and constant phone calls with the testator. After her mother's death in 2018 Mrs Bratt and the plaintiff purchased an on-site caravan at the Bicheno caravan park, and so between then and the testator's death they also saw him on most of their regular visits to the caravan. The testator was close to his nieces and, for a
3 No 43/2023
time, his nephew. They were his only nieces and nephew. David Bratt had a falling out with his immediate family in 2011. In 2021 he left Tasmania and severed contact. Mr and Mrs Bratt knew nothing of any contact between the testator and David Bratt. To the contrary, Mr Bratt indicated that the testator commonly expressed disapproval of David and of how disappointed in David he was. However the testator continued to have a close and loving relationship with Anna and Katherine, and in due course their own children, until his death.
11 Mr and Mrs Bratt gave the testator financial assistance from time to time and provided him with cars. When his van failed in the early 1990's they purchased and provided him with the use of a second hand Toyota Cressida for which they paid the registration and insurance. In the early 2000's that car was replaced by a 1998 ford Courier twin cab which the plaintiff had been using in his business. Again, it was registered in Mrs Bratt's name and the plaintiff paid the registration and insurance. In 2017 Mr and Mrs Bratt arranged for the testator to have use of the Toyota Camry which had been owned by his parents and which they no longer required.
Testamentary capacity
12 An important aspect of the compromise is the question of the testator's capacity to make the 2020 will. The classic test of whether or not a person has testamentary capacity is as stated by Cockburn CJ in Banks v Goodfellow (1870) LR 5; QB 549 at 565:
"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects, shall understand the extent of the property which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
13 That statement of principle has been applied in this Court by Wood J in Howroyd v Howroyd [2011] TASSC 73 at [55]-[60], by Evans J Tasmanian Perpetual Trustees Ltd v Rourke [2012] TASSC 44, and by Estcourt J in Hookway v Hookway [2016] TASSC 28. See also the decision of Brett J in McKay v Hearps [2021] TASSC 62 in which his Honour applied the re- statement of the test by Hood J in The Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197 at 199, reproduced and endorsed by Dixon J in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283:
"Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner."
14 The legal onus of proof with respect to testamentary capacity, if the issue is raised on the evidence, is on the party propounding the validity of the will. In Hookway, Estcourt J also reviewed the principles which apply to consideration of the possible invalidity of a will by reason of lack of testamentary capacity. None of his Honour's observations in that respect were challenged on appeal: Hookway v Hookway [2017] TASFC 4. The following propositions, without repeating the citations given by Estcourt J, can be extracted:
•
where the evidence raises a doubt about a testator's testamentary capacity, it is necessary that there be a "vigilant examination" of the whole of the evidence;
• the standard of proof is the balance of probabilities; 4 No 43/2023
• once there is evidence before the Court to incite its suspicion that the deceased did not have testamentary capacity, the onus is on the party asserting the validity of a will to remove the suspicion by proving affirmatively that the testator had testamentary capacity. 15 Estcourt J repeated the need for a cautious approach for the reasons explained by Gleeson CJ in Re Estate of Griffith (Deceased) (1995) 217 ALR 284, at 290:
"This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult."
The 2018 will
16 I am satisfied that no suspicion attends the testator's capacity to make the 2018 will. In 2017 the testator's parents moved to a nursing home. The prospect that the testator may inherit part of their estate became apparent. As a result, the plaintiff suggested to the testator that he should make a will of his own and an appointment was made for him to see Mr Otlowski. Mr Otlowski was and is a competent and experienced solicitor. By 2018 he had been preparing wills and powers of attorney for many years. For three years he was a member of the Guardianship and Administration Board. On 10 January 2018, at his office in Hobart, Mr Otlowski conferred with the testator and took instructions from the testator for preparation of his will. The 2018 will was prepared and executed on the same day. Mr Otlowski was one of the witnesses and one of his employees was the other. Mr Otlowski has no note or recollection of any matter which caused him to be concerned about the testator's capacity to make the 2018 will. Had he held any such concern he would have noted it and acted upon it. The testator told him about his family and financial circumstances and his wishes for the will. Mr Otlowski formed the belief that the testator knew and approved of the contents of the will he had just drawn. On the same day Mr Otlowski prepared an enduring power of attorney for the testator to sign. He also took instructions from the testator about his wishes for the enduring power of attorney. Again, it was prepared and executed the same day. By that document the testator appointed his nieces, by then named Anna Ferguson and Katherine Padman, as his joint and several attorneys.
17 The evidence of Mr Otlowski about the testator's testamentary capacity on 10 January 2018 is supported by the evidence of the plaintiff, Debra Bratt, and Dr Morrissey. I will return to the evidence of Dr Morrissey concerning both the 2018 will and the 2020 will.
18 But for the issue concerning the 2020 will, the 2018 will may be admitted to proof in solemn form. On its face it is properly executed and the testator knew of and approved its contents when it was made. It remains in existence and has been brought into court.
The 2020 will
19 However, there is unchallenged evidence which incites suspicion about the testator's capacity to make the 2020 will. Consequently the onus falls to any party who asserts the validity of a will to remove the suspicion by proving affirmatively that the testator had testamentary capacity. In this case, neither the defendant, nor any other interested person, has sought to prove that the testator had sufficient capacity to make the 2020 will.
5 No 43/2023
20 The testator had always been a consumer of alcohol, but the evidence suggests that, after 2019 his consumption of alcohol escalated. Prior to 2019 the testator had few assets of significance. In early 2019 he inherited almost $150,000 from his father's estate. Grant Jenkins worked at the local bottle shop. Mr Jenkins' evidence is that before 2019 the testator came in to buy alcohol occasionally, and seemed affable, friendly, had time to talk, was emotionally stable and in reasonable physical condition. The testator drove his car to and from the bottle shop. However, after receiving his inheritance, the testator began to buy alcohol more often and in greater volume. The type of alcohol he purchased became stronger and more expensive. Over time, during 2019 and early 2020, he came to be visiting the bottle shop four or five times each week and buying multiple bottles of a variety of spirits as well as other alcohol. He often arrived very drunk. According to Mr Jenkins the testator's demeanour changed. He became less effusive and sociable.
21 As will be explained, from mid-2020 the testator no longer had use of the Toyota Camry which the plaintiff had arranged for him. He subsequently began to use a mobility scooter. According to Mr Jenkins, for a while it seemed that the testator was "faring better" and he was "drinking less". However he soon resorted to driving his mobility scooter for daily purchases of spirits and other alcohol, and there was an obvious further decline in his physical condition.
22 Mr Jenkins' evidence about the testator's abuse of alcohol is confirmed by the evidence of the plaintiff and Mrs Bratt. On 7 June 2020 Mr and Mrs Bratt found the testator collapsed on the floor of his unit, semi-conscious, incoherent and only partly clothed, having consumed a large amount of alcohol. Mr Oliver, the defendant, was a friend of the testator. He arrived. The ambulance was called. Comments made by both Mr Oliver and the ambulance officers in the presence of the plaintiff suggested that the testator had been found in this state before. Ten empty bottles of spirits were found in the bin and full and partly full bottles of vodka and brandy were found inside. A large quantity of cannabis was found in the freezer.
23 The testator was taken to the acute care facility at the May Shaw Health Centre in Swansea where he remained as an in-patient for three weeks. His usual medical practitioner was Dr Camilla Byrne. Dr Byrne made notes of her attendances upon the testator while he was in hospital. Her notes on 9 June 2020 record that she advised the testator that "he was not fit to drive." Mr Bratt's evidence was that Dr Byrne suggested to him that he remove the testator's car because she was "concerned he will drive it." He and Mrs Bratt spoke to the testator about the car he had been using and, according to both Mr and Mrs Bratt, the testator agreed that it would be handed on to his great niece for her to use.
24 Between June and August 2020 Mr and Mrs Bratt had continuing contact with the testator to help him organise his personal affairs and living arrangements. It was suggested that he take a permanent position at the aged care residential facility at the May Shaw Health Centre but he declined to do so. The evidence includes notes of consultations which took place following the testator's release from hospital between a general practitioner, Dr Omenka, and the testator on 3 August 2020, 7 August 2020 and 8 September 2020. The 3 August note includes a record that the testator was "stressed from his brother in law and sister", and that "his brother in law signed his power of attorney as he told him he is unable to sign and he is talking to his attorney about it". The note records that Dr Omenka explained to the testator that his driver licence had "been taken off him" but that he "seem not to know" (sic). The note of 7 August 2020 records that Dr Omenka counselled the testator about the role of heavy alcohol consumption in "worsening liver fibrosis, increasing fall, worsening cognition and nerve damage", but the testator told Dr Omenka that "he has not drunk since last month and intend to keep it that way." (sic)
25 On 8 September 2020 the testator told Dr Omenka that he was "hoping to obtain a scooter to drive around town" and when advised that a comprehensive functional assessment would be required before that was authorised he advised that he was "drinking very sparingly."
6 No 43/2023
26 Dr Morrissey did not examine or treat the testator prior to his death. His opinion was based on a large amount of material supplied to him. I do not intend to refer to all of it but it included the statements of those witnesses to whom I have referred, as well as others. Dr Morrissey had access to medical records concerning the testator. The testator was taking opiate medication for a chronic cervical spine condition. Liver function tests from at least 24 May 2017 indicated that he had impaired liver function. A liver ultrasound conducted on 11 June 2019 demonstrated "severe fibrosis" consistent with alcohol related liver disease. On 9 June 2020, a day after he was admitted to hospital, the testator was cognitively assessed by a geriatrician, Dr Dunbabin. The assessment was undertaken using a Montreal Cognitive Assessment questionnaire. A score of 22/30 was returned. According to Dr Morrissey a score below 26/30 is regarded as "abnormal", which I take to mean as indicative of some level of cognitive impairment. The information given to Dr Morrissey included statements made by the legal practitioner who made the 2020 will and by the defendant, Mr Oliver. Neither of those statements were adduced in evidence at trial but they formed part of the information given to Dr Morrissey. There is material in both statements which may tend to support the proposition that the testator did have capacity when he made that will. However, the statement made by the legal practitioner also includes a passage which records the testator having told her that his "car had been taken away by his GP" and that there had been a "falling out" with his sister because of that.
27 Mr Oliver's statement included the following passage:
"Prior to his death Mr Boatwright had asked me about being Executor to his Estate. He advised me that he wanted me to be Executor as he had a falling out with his sister. He advised me that he had inherited a car that was his fathers and his sister Debra Bratt and her partner John Bratt had taken that car away from him.
Mr Boatwright told me that his sister and brother in law were very difficult as I understood the dispute and claims of them owning the car that Mr Boatwright didn't agree with." (sic)
28 Based on all of the material available to Dr Morrissey he formed the opinion that "it was highly likely that [the testator] had alcohol related brain damage…exacerbated by comorbid opiate and marijuana use and depression." Those conditions, combined with the evidence of some aspects of the testator's conduct, led Dr Morrissey to conclude that the testator did not have testamentary capacity when he made the 2020 will. He expressed no such concern about the 2018 will. I confess to approaching Dr Morrissey's ultimate opinion about the testator's capacity at the time of the 2020 will with some circumspection. He did not know, treat or examine the testator. In many respects, this Court is in just as good a position to assess the evidence of the testator's capacity on 8 September 2020 as Dr Morrissey was. In any event, whether the testator had testamentary capacity at a relevant time is a legal and not a medical question.
29 The evidence is not sufficient to positively satisfy me that the testator did not have testamentary capacity at the time the 2020 will was executed. However, the evidence is sufficient to incite my suspicion that the deceased did not have testamentary capacity. The evidence about what happened to the car the testator was using is something which might otherwise be regarded as an unimportant aspect of the evidence. However here it assumes some significance. The evidence strongly suggests that the testator formed a mistaken and distorted view that his sister and her husband were somehow responsible for the cessation of his driver licence and the taking of his car, and that their conduct was unreasonable and unjustified. The evidence tends to suggest that he had always been close to, and affectionate towards, them and their family. But, seemingly as a result of the issue about the car, he expressed antagonism towards them to more than one person. The evidence also strongly suggests that the antagonism which he experienced towards his sister for that reason was at least a significant factor in his decision to make a new will removing her as a beneficiary and removing her husband as executor. Other things were said by the testator about his sister and the
7 No 43/2023
plaintiff forcing him to change a power of attorney. On the only evidence before me those complaints
had no basis in fact.30 The disposition in the 2020 will to the testator's nephew David also raises suspicion about the testator's capacity. The evidence gives rise to the strong inference that there had been no contact between the testator and David Bratt since 2012 and that the testator disapproved of David's treatment of his family. The testator had remained close to both of his nieces and their children. However, in the 2020 will he left a substantial portion of his estate to David, in substitution for his nieces. Instead, Katherine was to inherit only his "chattels and personal belongings" and no bequest was made to Anna.
31 To me, the evidence just referred to, combined with other evidence about the level of the testator's alcohol intake and the damage it was doing to his health and the effect it had on his behaviour, supports the inference that whilst, at the time the 2020 will was made, the testator may have presented an appearance of reason and rationality to some, his mind was no longer free to act in a "natural, regular, and ordinary manner" or properly weigh the potential claims which may press on him concerning his estate. The evidence suggests that the aversion he developed to his sister and brother in law, which led him to alter his will, was unreasoned and unfounded.
32 As has already been explained, because of the suspicions I find to be raised by the evidence about the testator's capacity, the onus would be on any party asserting the validity of the 2020 will to remove the suspicion by proving affirmatively that the testator had testamentary capacity at the time it was made. In light of the compromise, no party seeks to prove the testator's capacity. In the absence of such proof I could only pronounce for the validity of the 2018 will. In all of the circumstances, I have concluded that it is the course I should adopt.
Result and orders
33 I will hear the parties before making final orders. In particular I will hear submissions about whether, in addition to pronouncing the validity of the 2018 will I should also pronounce against the validity of the 2020 will. Subject to that issue I suggest orders in the following terms:
(a) the Court pronounces for the force and validity of the last will and testament dated 10 January 2018 of Mark David Boatwright, the deceased in this action, a copy of which is referred to as annexure "JB1" in the affidavit of testamentary scripts of the plaintiff, John Bratt, affirmed 13 January 2022, the original of which was brought into court on 1 November 2023, and pronounces against the force and validity of the alleged last will and testament dated 8 September 2020 of Mark David Boatwright deceased which is referred to as annexure "B" in the affidavit of testamentary scripts of the defendant Mark David Oliver affirmed 18 January 2022. (b) I order that probate in solemn form of the will dated 10 January 2018 be granted to the plaintiff; (c) I direct that the will of the testator dated 10 January 2018, brought into court by the plaintiff on 1 November 2023, be uplifted from the Civil Registry and lodged in the Probate Registry; (d) I direct that the Registrar waive the requirement under the Probate Rules 2017, r 33, that the plaintiff publish notice of intention to apply for the grant; (e) I order that the plaintiff's costs of the action be taxed as between solicitor and client and paid from the estate of the testator; and (f) I order that the defendant's costs of the action are, if not agreed, to be taxed as between solicitor and client and paid from the estate of the testator.
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