Docking v Schwarzkopf

Case [2015] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

DOCKING v SCHWARZKOPF

[2015] SASC 18

Judgment of The Honourable Justice Stanley

13 February 2015

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY

SUCCESSION - MAKING OF A WILL - EXECUTION - GENERALLY

Application to admit a will to probate in solemn form. 

Albert Theodore Docking, the deceased, died on 2 August 2009.  On 27 April 1989 the deceased made and duly executed a will appointing the plaintiff as the sole executor of his estate.  On 19 June 2007 the deceased made and duly executed a document purporting to be a will revoking all former wills and testamentary dispositions, and appointing the defendant as the sole executor of his estate.  The plaintiff seeks to have the 1989 will admitted to probate.  He seeks to have the Court pronounce against the force and validity of the 2007 will on the basis that the deceased lacked testamentary capacity at the time he made and executed the 2007 will as a result of suffering mental illness, namely, dementia.  The defendant took no steps to participate in the trial of the action.  The matter proceeded in the absence of a party seeking to propound the validity of the 2007 will. 

Whether the deceased lacked testamentary capacity at the time he made and executed the 2007 will.

Held:

1. The 2007 will appears to have been executed in accordance with the formalities prescribed by the Wills Act 1936 (SA), and so in the absence of evidence to the contrary would be presumed to have been made by a person with the requisite testamentary capacity (at [24] - [25]).

2. There is evidence to the contrary in this case. It has been affirmatively established that the deceased did lack testamentary capacity at the time of the making of the 2007 will (at [25] and [29]).

3. The plaintiff has the advantage of the presumption arising from the proper execution of the 1989 will that the deceased had testamentary capacity at that time (at [32]).

4. Orders pronouncing in favour of the force and validity of the 1989 will and against the 2007 will (at [33]).

Wills Act 1936 (SA); Guardianship and Administration Act 1993 (SA) s 3, referred to.
Menz v Menz [2014] SASC 180; Wheatley v Edgar (2003) 4 ASTLR 1; R v Levy (No. 2) (1957) VLR 662; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171; Banks v Goodfellow (1870) LR 5 QB 549; Boreham v Prince Henry Hospital (1955) 29 ALJ 179; Timbury v Coffee (1941) 66 CLR 277; Wade v Frost [2014] SASC 162; Re Estate of Griffith (1951 – 2002) 217 ALR 284, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"testamentary capacity"

DOCKING v SCHWARZKOPF
[2015] SASC 18

Civil

STANLEY J:

Introduction

  1. This is an application to admit a will to probate in solemn form. 

    Background

  2. Albert Theodore…

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Docking v Schwarzkopf [2015] SASC 18
Case
[2015] SASC 18
Decision Date

CaseChat Overview and Summary

In Docking v Schwarzkopf, the court considered whether a 1989 will or a 2007 will should be admitted to probate. The deceased, Albert Theodore Docking, made a will in 1989, which appointed the plaintiff, Graeme John Docking, as the sole executor and made specific bequests to him and his brother, Ralph William Docking. The residue of the estate was to be shared equally between the plaintiff and Mark James Packer. In 2007, the deceased executed a new will revoking all former wills and testamentary dispositions, and appointing the defendant, Michael Bjorn Schwarzkopf, as the sole executor, with the residue of the estate to go to the defendant or his daughter if the defendant predeceased the deceased. The plaintiff lodged a caveat to prevent the sealing of a grant of probate over the deceased’s estate without notice to him. The plaintiff sought to have the 1989 will admitted to probate and to have the 2007 will declared invalid on the basis that the deceased lacked testamentary capacity when he made and executed the 2007 will.

The court had to decide whether the deceased had testamentary capacity when he executed the 2007 will. The court noted that the 2007 will appeared to have been executed in accordance with the formalities prescribed by the Wills Act 1936 (SA). However, the court was satisfied that there were circumstances to excite suspicion that the deceased lacked testamentary capacity at the time of the execution of the 2007 will. The evidence of the plaintiff established that the deceased was suffering from periods of confusion from 2006, such that he was deluded into thinking that the plaintiff was trying to take his money. By 2007, the deceased's thinking was so disordered that he informed the plaintiff that he had changed his will to leave his entire estate to a non-existent granddaughter. The evidence of Dr Field established that by June 2007 the deceased was suffering from a vascular dementia that deprived him of the capacity to understand properly the nature and extent of a will and the persons who might have a legitimate claim on his estate. The court accepted Dr Field’s opinion that the deceased lacked testamentary capacity in accordance with the test in Banks v Goodfellow at the time of the execution of the 2007 will.

The court made orders pronouncing in favour of the force and validity of the deceased’s will dated 27 April 1989 and against the document dated 19 June 2007. The court concluded that the plaintiff had the advantage of the presumption arising from the proper execution of the 1989 will that the deceased had testamentary capacity at that time. The court was satisfied that there were circumstances to excite suspicion that the deceased lacked testamentary capacity at the time of the execution of the 2007 will. The court accepted Dr Field’s opinion that the deceased lacked testamentary capacity in accordance with the test in Banks v Goodfellow at the time of the execution of the 2007 will.

Orders

Orders of the court

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Background

Background to the litigation

This is an application to admit a will to probate in solemn form. Background Albert Theodore Docking, the deceased, died on 2 August 2009. He was 92 years old. On 27 April 1989 the deceased made and duly executed a will appointing the plaintiff as the sole executor of his estate (“the 1989 will”). The 1989 will made a specific bequest of photographs to the plaintiff, Graeme John Docking, and a further specific bequest of a motor vehicle to the deceased’s brother, Ralph William Docking. The residue of the estate was to be shared equally between the plaintiff and Mark James Packer. The plaintiff is a nephew of the deceased. On 19 June 2007 the deceased made and duly executed a document purporting to be a will revoking all former wills and testamentary dispositions, and appointing the defendant, Michael Bjorn Schwarzkopf, as the sole executor of his estate (“the 2007 will”). The 2007 will provided that in the event the defendant was unwilling or unable to act as executor, the deceased appointed the defendant’s fiancée, Ella Elmira Schwarzkopf, as the sole executor (sic) of the estate. The 2007 will bequeathes the whole of the estate to the defendant and in the event that he predeceases the testator, it provides that the defendant’s daughter, Claudia Anttoinette Schwarzkopf, takes the whole of the estate. The defendant also is a nephew of the deceased. On 11 February 2011 the plaintiff lodged a caveat at the Probate registry. The caveat sought to prevent the sealing of a grant of probate over the deceased’s estate without notice to the plaintiff. The caveat has been renewed from time to time. The plaintiff seeks to have the 1989 will admitted to probate. He seeks to have the Court pronounce against the force and validity of the 2007 will on the basis that the deceased lacked testamentary capacity at the time he made and executed the 2007 will as a result of suffering mental illness, namely, dementia. The plaintiff is a discharged bankrupt. He became bankrupt on 7 January 2011. He was discharged from bankruptcy on 8 January 2014. These proceedings were commenced in this Court on 25 July 2014. The plaintiff’s trustee in bankruptcy, Anthony Christopher Matthews, swore an affidavit on 6 November 2014. He states that the plaintiff paid the deceased’s funeral costs in the sum of $10,296.83. The plaintiff and his trustee have agreed that that money is an asset which vests in the plaintiff’s bankrupt estate. Further, the trustee takes the view that any entitlement on the part of the plaintiff to the deceased’s estate will fall into the plaintiff’s bankrupt estate. Mr Matthews also takes the view that the plaintiff’s right to pursue a grant of probate became vested in the plaintiff’s trustee. Mr Matthews states that he has come to a settlement with the plaintiff. He has agreed to allow the plaintiff to pursue a grant of probate in relation to the deceased’s estate. Mr Matthews will not take any steps to involve himself in these proceedings and will not interfere with any administration of the deceased’s estate by the plaintiff should a grant of probate be made in respect of the 1989 will provided that the trustee receives the amount payable to him as part of the settlement.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances, the plaintiff has the advantage of the presumption arising from the proper execution of the 1989 will that the deceased had testamentary capacity at that time. Accordingly, I am prepared to make an order pronouncing in favour of the force and validity of the 1989 will. Conclusion For these reasons, I make orders pronouncing for the force and validity of the deceased’s will dated 27 April 1989 and against the document dated 19 June 2007.

Ratio Decidendi

Legal Principle Established

Dr Field concluded that the deceased suffered a mental incapacity as defined in s 3 of the Guardianship and Administration Act, namely, an established dementia, probably vascular subtype. Further, Dr Field concluded that this dementia had been present for some considerable period of time, possibly one or more years, and was severe. On that basis he was of the opinion that the deceased in June 2007 lacked testamentary capacity in accordance with the principles in Banks v Goodfellow.[16] That is to say that Dr Field was of the opinion that the severity of the deceased’s symptoms of vascular dementia were such that for a period of some months, if not a year, prior to his assessment, the deceased was incapable of understanding the meaning and effect of a will, the nature and extent of his assets and the person or persons who might have had a legitimate claim on his estate. [16] (1870) LR 5 QB 549. Consideration On its face, the 2007 will appears to have been executed in accordance with the formalities prescribed by the Wills Act 1936 (SA). It was signed by the deceased as testator. It appears on the face of the document that the deceased intended by his signature to give effect to the document as his will. His signature was witnessed by two solicitors. There is no evidence, however, that they were present at the same time or that they also attested and signed the will in the presence of the deceased. Nonetheless, in circumstances where the witnesses appear to have been solicitors, I am prepared to infer that was so. In the absence of evidence to the contrary, the 2007 will would be presumed to have been made by a person with the requisite testamentary capacity. However, there is evidence to the contrary. On the basis of the evidence of the plaintiff and Dr Field, I am satisfied that circumstances exist to excite suspicion that the deceased lacked testamentary capacity at the time of the execution of the 2007 will. The evidence of the plaintiff establishes that from some time in 2006 the deceased was suffering from periods of confusion such that he was deluded into thinking that the plaintiff was trying to take his money. [17] I am satisfied that the plaintiff was not trying to take the deceased’s money. From that time the deceased had episodes where he could not recognise the plaintiff or his wife. By 2007 the deceased’s thinking was so disordered that approximately two months after executing the 2007 will he informed the plaintiff that he had changed his will to leave his entire estate to a non-existent granddaughter. [17] I use the term “deluded” in the sense described by Gleeson CJ in Re Estate of Griffith (1951 – 2002) 217 ALR 284 at 291. The evidence of Dr Field establishes that by June 2007 the deceased was suffering from a vascular dementia that deprived him of the capacity to understand properly the nature and extent of a will and the persons who might have a legitimate claim on his estate. While Dr Field considered that the deceased lacked the capacity to understand the nature and extent of his assets, that seems to me less clear. The deceased was able to tell Dr Field that his estate consisted of a house in Highbury and money in the bank. This appears to be correct. However, there is support for Dr Field’s opinion in that the deceased seemed to think that at the most he had $2,000 in the bank when the evidence suggests that the figure was more like $20,000.[18] On balance, I accept Dr Field’s opinion in this regard. In any event, I am satisfied on the basis of Dr Field’s evidence that the deceased lacked testamentary capacity in accordance with the test in Banks v Goodfellow[19] at the time of the execution of the 2007 will. [18] Transcript p 34.[19] (1870) LR 5 QB 549.