Daley v Barton

Case [2008] QSC 228

SUPREME COURT OF QUEENSLAND

CITATION:  Daley v Barton & Anor; Barton v Daley [2008] QSC 228
PARTIES:  PETER GEOFFREY DALEY
(plaintiff)
v
WILLIAM ADAM BARTON
(defendant/plaintiff)
and
BAISCO RESERVE PTY LTD
(defendant by counter-claim)
WILLIAM ADAM BARTON
(Under Part IV, Section 40-44, Succession Act 1981)
(applicant)
v
PETER GEOFFREY DALEY (As Executor of the Will of
William Anthony Barton, Deceased)
(respondent)
FILE NOS:  SC No 10471 of 2005
SC No 3735 of 2006
DIVISION:  Trial Division
PROCEEDINGS:  General Claim; Application
ORIGINATING 
COURT: 		 Supreme Court at Brisbane
DELIVERED ON:  24 September 2008
DELIVERED AT:  Brisbane
HEARING DATE:  26, 27, 28, 29, 30 May 2008
JUDGE:  Lyons J
ORDER: 
1.  I pronounce for the full force and validity of the Will dated 28 July 2005 and order that probate in solemn form be granted to the plaintiff, the executor named in the Will subject to the formal requirements of the Registry.
2.  The defendant’s amended counter-claim is dismissed.
3.  Pursuant to s 41 of the Succession Act 1981 (Qld) further provision should be made for the proper maintenance and support of William Adam Barton out of the estate of William Anthony Barton by a payment of a lump sum of $560,000 from the estate.
CATCHWORDS:  SUCCESSION – WILLS, PROBATE AND
ADMINISTRATION – THE MAKING OF A WILL –
TESTAMENTARY CAPACITY – SOUNDNESS OF
MIND, MEMORY AND UNDERSTANDING –
GENERALLY – the testator was diagnosed with a brain
tumour – within a few days of the diagnosis the testator
executed a third Will which left his entire estate to his new
wife – no provision was made for his son in the third Will –
the son lodged a caveat requiring proof in solemn form of any
Will of the testator – the plaintiff filed a claim for a
declaration for the full force and validity of the third Will –
whether the testator had a full understanding of the nature and
extent of his assets at the time of the execution of the third
Will and those who had a claim on it – whether the testator
had testamentary capacity at the time of giving instructions or
executing the third Will
EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – a company was appointed as trustee of a discretionary family trust – the directors and shareholders of the company were the testator and his first wife – the company bought the property with money from the family trust – the company appeared as the registered proprietor of the property on the Title Deed – the company listed the property as a fixed asset on the balance sheets of the family trust – the testator and his first wife agreed to Family Court Consent Orders which distributed the property to the testator – the Consent Orders identified the property as an asset of the company and no reference was made…

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AGLC
Daley v Barton [2008] QSC 228
Case
[2008] QSC 228
Decision Date

CaseChat Overview and Summary

The case of Daley v Barton involved a dispute regarding the validity of a will made by William Anthony Barton, who was diagnosed with a brain tumour. Adam Barton, the son of the deceased, contested the validity of the will on the grounds that his father did not have the necessary testamentary capacity at the time of its execution. The dispute was heard in the Queensland Supreme Court.

The primary legal issue was whether William Anthony Barton had the requisite testamentary capacity when he executed the will on 28 July 2005. This required the court to determine if he understood the effect of his wishes being carried out at his death, the extent of the property he was disposing of, and the nature of the claims on him. Additionally, the court had to consider if he could recall the people who might be fitting objects of his bounty and comprehend their relationship to him and their claims upon him to decide whether or not to give each of them any part of his property by his will.

The court found that William Anthony Barton had testamentary capacity at the time of executing the will. Despite his diagnosis of a brain tumour, the court noted that there was no substantial evidence suggesting a deterioration in his capacity between 26 July 2005, when he first discussed his will with his solicitor, and 28 July 2005, the date of execution. The court relied on the evidence that he was capable of understanding and did understand he was executing a will for which he had previously given instructions. Therefore, the court pronounced for the full force and validity of the will dated 28 July 2005 and granted probate to the executor named in the will.

The court also dismissed Adam Barton's amended counter-claim and ordered that further provision should be made for the proper maintenance and support of Adam Barton by a payment of a lump sum of $560,000 from the estate.

Orders

Orders of the court

1.

I pronounce for the full force and validity of the Will dated 28 July 2005 and order that probate in solemn form be granted to the plaintiff, the executor named in the Will subject to the formal requirements of the Registry.

2.

The defendant’s amended counter-claim is dismissed.

3.

Pursuant to s 41 of the Succession Act 1981 (Qld) further provision should be made for the proper maintenance and support of William Adam Barton out of the estate of William Anthony Barton by a payment of a lump sum of $560,000 from the estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The testator had been for a holiday to Thailand with his wife and returned to Australia on 11 July 2005. Whilst he had previously been a very capable golf player, when he played golf on 12, 14, and 19 July 2005, he had difficulty in playing. On 12 and 14 July 2005 he was only capable of playing nine holes, and on 19 July 2005 he only played three holes because he was having difficulty hitting the ball and was very tired. Mr Warren Patterson gave evidence that when he had lunch with the testator at the Gold Coast on 20 July 2005, he observed a change in his behaviour and it was clear that he considered that the testator was irritable. There was also a disagreement about directions to get to Brisbane airport which, he contends, indicates the testator was confused. The medical evidence On 22 July 2005 the testator saw Dr Konkoly, who had been his General Practitioner since February that year. He had seen him on four previous occasions. Dr Konkoly gave evidence at the hearing that the testator told him that his right side felt different, he was not feeling good, he was finding golf difficult due to his tiredness, and he did not consider his thinking was as good. Dr Konkoly observed that the testator had “…expressive dysphasia” which means that a person has difficulty “…finding the right words that you wish to say or conceptualising your thoughts into language.”[15] He did not consider that he had “dyspraxia”, which is difficulty in speaking, as Dr Konkoly had no problem understanding what he was saying.[16] Whilst he also indicated that he had “…receptive problems”, he was unable to give any examples of a lack of comprehension. Dr Konkoly also recorded that “…his normal demeanour was down; thought he may have had a minor stroke.” He also thought he was “vague” but also acknowledged that the testator was a “…man of few words.”[17] [15] [16] [17] The testator was sent for a CT scan on 25 July 2005 which revealed the brain tumour. He was then referred to Dr Redmond and Dr Konkoly did not see him again. Counsel for Adam Barton asked Dr Konkoly to express his opinion in relation to the following scenario:[18] “Doctor, if I ask you to accept that there is evidence in this proceeding that Mr Barton saw his solicitor on 26 July 2005 to discuss his will. His solicitor asked him to produce the original of his earlier will. He said he did not have it and a discussion ensued about whether the original will was with Mr Barton's bank. His solicitor advised him to attend his bank and retrieve the original will. Mr Barton's wife gave evidence that the next day, 27 July 2005, she and her husband attended the Westpac bank in the city and took the will - original will and a Power of Attorney out of the bank security box. When Mr Barton returned to see his solicitor on the next day, 28 July 2005, he told his solicitor he had been unable to locate the original will. Now, can I ask you to accept that that's evidence in the proceeding before her Honour and to express your medical opinion as to what that set of fact evidences to you in terms of what Mr Barton - what that evidence suggests to you in terms of your medical opinion about his condition?” [18]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 21 September 2005, Adam Barton lodged a caveat requiring proof in solemn form of any Will of the testator. The plaintiff’s 9 December 2005 claim for a declaration for full force and validity of the Will (BS 10471/05) The plaintiff filed a claim on 9 December 2005 (BS 10471/05) for a declaration for the full force and validity of the third Will. On 4 January 2006, a Notice of Intention to defend was filed by Adam Barton, alleging that at the time the instructions for that Will were provided, the testator was not possessed of sound mind, memory, and understanding. Further, he was not capable of knowing and approving the contents of the third Will. On 8 March 2006, Mackenzie J appointed John Nagel, solicitor, Administrator of the estate of the testator until the trial and he was authorised to invest the funds in an interest bearing deposit. A further amended reply and answer was subsequently filed and the plaintiff seeks a declaration that the Unit was at all material times an asset which the testator was competent to devise by his Will or alternatively a declaration that Baisco holds the Unit on constructive trust for the testator. Adam Barton’s 5 May 2006 claim for provision out of the estate (BS 3735/06) On 5 May 2006, Adam Barton filed an application (BS 3735/06) that adequate provision be made for his proper maintenance and support out of the estate of William Anthony Barton. Further Orders were subsequently made that the two proceedings be heard together at trial and that the matter should proceed by way of affidavit. In the first action Adam Barton claims that the testator did not have capacity to sign the third Will and was not capable of knowing and approving the contents of the Will. In essence, therefore, he claims the testator lacked the requisite testamentary capacity. In order to ascertain if the testator had testamentary capacity at the time of making this third Will, it is necessary to have regard to the classic test discussed by Cockburn CJ in Banks v Goodfellow.[14] To satisfy the requirements set out in Banks v Goodfellow the testator at the time of the making of the Will must have understood the effect of his wishes being carried out at his death, the extent of the property he was disposing of, and the nature of the claims on him. He must also have been able to recall the people who may be fitting objects of his bounty and understand and comprehend their relationship to him and their claims upon him so that he could decide whether or not to give each of them any part of his property by his Will. [14] The testator must have testamentary capacity at the time when he actually executed the Will as well as at the time he gave instructions. It would suffice, however, if the testator had testamentary capacity at the time of giving instructions for the preparation of the Will, provided the Will is prepared in accordance with his instructions and, at the time of execution of the Will, he was capable of understanding and does understand he is executing a Will for which he had previously given instructions. This alternative is usually relied upon in cases where a testator’s capacity deteriorates after giving instructions. As there is no evidence of any instructions being given on 26 July 2005 and no evidence of a substantial deterioration between 26 July 2005 and 28 July 2005, this is not relevant in the present case.