Carr v Wallis

[1999] VSC 363

SUPREME COURT OF VICTORIA
CAUSES JURISDICTION	Do not Send for Reporting
Not Restricted

No. Prob. 3 of 1999

BERYL ESMA CARR	Plaintiff
v
JOHN AUBREY WALLIS and MARC IVO INCERTI	Defendants

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 1999
DATE OF JUDGMENT:	20 September 1999
MEDIA NEUTRAL CITATION:	[1999] VSC 363

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr H.W. Fraser	Armstrong Rose

HER HONOUR:

1. I have before me a summons seeking revocation of a grant of probate in relation to the will of Margaret Lucy Kelly, deceased.  The summons is brought by the plaintiff, Beryl Esma Carr, and in essence, in her affidavit in support of the summons, Mrs Carr asserts that the deceased was an alcoholic for many years and, as a result of the impact upon the health of the deceased of her drinking, her testamentary capacity at the time she made the relevant will is in issue.  It is further said that, on the evidence, the deceased indicated an intention to make a further will shortly before she died, but such will was never actually prepared and executed.

1. The deceased died on 11 November 1995 aged 79 years.  The death certificate discloses that the cause of death was myocardial infarction, coronary arteriosclerosis of years and chronic obstructive airways disease of years.  The death certificate discloses that the certifying medical practitioner was Dr Campion.

1. The deceased died leaving a will dated 17 July 1990.  In her will the deceased appointed the persons at the time of her death who were members of the firm of Armstrong Singer and Ross to be her executors, the said firm being her solicitors.  At the time of the death of the deceased, the defendants John Aubrey Wallis and Marc Ivo Incerti were the two members of the firm and consequently they have come to be the executors of the estate.

1. Under her will the deceased left her estate to a number of charities at varying proportions.  Probate of the will was granted on 2 January 1996 and the inventory of assets filed by the executors disclosed that the deceased left real estate in Victoria worth $80,000 and personal estate in Victoria worth $156,221.24, leaving a total estate of assets worth $236,221.24. 

1. I have been provided with affidavits of service in accordance with the requirements behoving defendants and I am satisfied that all requirements for service have been met.

1. The plaintiff, Mrs Carr, is a cousin of the deceased.  She has set out in her affidavit, sworn on 15 July 1996, broadly the matters I have referred to as the basis upon which she seeks to challenge the testamentary capacity of the deceased.  In addition, Mrs Carr has filed an affidavit sworn on 16 July 1996 by one Winsome Glasborough, who deposes that she was a friend of the deceased and that during the period of friendship she knew the deceased to be an alcoholic who drank heavily.

1. There is no medical evidence placed before me by Mrs Carr in support of her assertion as to the alleged alcoholism of the deceased.  Mrs Carr has informed me that she has had discussions with one Dr Bennett, who was a treating doctor of the deceased.  However, Dr Bennett has not sworn any affidavit and there is no evidence before me on a medical basis to support the assertions made by Mrs Carr.

1. In so far as the defendants' case is concerned, they have, as they ought properly do, filed affidavits of execution from each of the witnesses of the will, and I am satisfied that all requirements have been met in that regard. 

1. An affidavit was sworn by Mr Gerard Paul Butcher on 10 August 1999.  Mr Butcher was the solicitor who took instructions from the deceased for the preparation of the will and who drew the will.  Mr Butcher was not a witness to the will.  In addition to his affidavit, Mr Butcher has exhibited thereto his notes of instruction at the relevant time, and the notes broadly accord with the bequests and devise made by the deceased in her will and in the proportions reflected by the will.  Mr Butcher gave viva voce evidence in which he adopted and confirmed the contents of his affidavit.  He also gave evidence that, at the time the will was drawn, he had been in practice for a period of some 15 years and, as part of his daily practice as a suburban practitioner, regularly engaged in the taking of instructions from clients for the purposes of preparation of wills.  Mr Butcher informed me that the taking of instructions for the preparation of a will was a "very routine part of his practice at that time".  Most significantly, Mr Butcher has given evidence that at the time he drew the will he was satisfied that the deceased had testamentary capacity.

1. In addition to the affidavit of Mr Butcher, an affidavit was filed by Dr Peter John Campion, sworn 18 August 1999.  Dr Campion, as already stated, was the medical practitioner who provided the medical certificate relating to the deceased and certifying the cause of death.  In his affidavit Dr Campion deposes that he has been a medical practitioner since 1966, that the deceased was known to him and was "one of my patients".  He deposes that he saw the deceased infrequently during the year 1990 for various health problems that the deceased suffered.  He attended the deceased at her home upon her death and certified her death as already stated.  Significantly, Dr Campion deposes as follows:

"During this period she was taking Panadol for pain relief.  To my knowledge she was not taking any other medication.  I saw no evidence that Mrs Kelly was using alcohol to excess.  I have no reason to think that either her Panadol intake or her pain from osteoarthritis would affect her testamentary capacity.  In 1995 I referred Mrs Kelly to Dr Martin Walter, a consultant physician.  As part of his investigation he had Mrs Kelly's liver function tests done, which were normal.  This would suggest she was not taking alcohol to excess at that time."

1. On the basis of the evidence set out in the affidavit of Dr Campion, I am satisfied that there is no evidence that the deceased, at the time of her death or beforehand, indicated that she suffered from alcoholism in any way, or in any way to challenge her testamentary capacity at the time she made that will, or, for that matter, at the time of her death.  I note that the evidence of Dr Campion was not challenged.

1. In addition to the affidavits already referred to, there was an affidavit sworn by the second defendant, Mr Incerti.  Mr Incerti deposed, among other matters, that as a result of his inquiries he believed that no particular relative or person had a particular or general claim on the bounty of the deceased.  Mr Incerti is a solicitor.  Mr Incerti gave evidence viva voce and confirmed and adopted the matters deposed to in his affidavit.

1. The task of the court is usefully set out in the observations of Dr R. Sundberg, as he then was, at p.213 of the 3rd Edition of his text "Probate Practice in Victoria".  I rely in particular upon the paragraph commencing "Testamentary capacity requires a sound disposing mind ... In testamentary matters soundness of memory is essential to a disposing mind, although this would seem to be a relative consideration."  Conveniently, the learned author has set out therein the relevant principles and tests to be applied by the court.  More recently the tests were stated by Coldrey, J. in the matter of Natoli, an unreported judgment dated 7 April 1997, in particular at pp.1-2.

1. On the basis of those principles, and applying the principles to the evidence before me, I am satisfied that there is no evidence to rebut the testamentary capacity of the deceased at the relevant time.  Furthermore, I am satisfied, on the basis that there were no obvious persons having claim on her bounty save for persons such as the plaintiff, who had a childhood association with the deceased in their capacity as cousins, it follows that the will was made by the deceased on a rational basis, and it follows further that the deceased had testamentary capacity at the relevant time.

1. Accordingly the summons will be dismissed.

1. I will make orders in accordance with the minutes subject to the amendments mentioned.  I will initial the minute and place the minute on the court file.

1. Mrs Carr, it follows that you have failed in your application and I will make orders declaring that the will of the deceased is to be the will of the deceased and that I will confirm the grant of probate. 

1. The summons is dismissed.

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