Dowling v Clynes

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PROBATE JURISDICTION

Probate No. 14 of 2002

IN THE MATTER of the Will of PHILOMENA MARY COATES Deceased

Application by:

ROBERT HOWARD DOWLING, DENNIS BRUCE and PETER JOHN WALSH	Plaintiffs
v
MICHAEL ROSS CLYNES	Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 9, 10 and 12 November 2004
DATE OF JUDGMENT:	15 December 2004
CASE MAY BE CITED AS:	Dowling v Clynes
MEDIUM NEUTRAL CITATION:	[2004] VSC 517

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Succession – probate – testamentary capacity – whether deceased lacked testamentary capacity during period shortly before or at the time of the execution of the will and codicil.

Cognitive degeneration – mild to moderate dementia – impact on testamentary capacity.

Whether the deceased did not know and approve of the contents of the will and codicil.

Banks v Goodfellow (1870) LR 5 QB 549; Kerr & Anor v Badran & Anor Estate of Badran [2004] NSW SC 735; Ridge v Rowden & Anor (Unreported, Supreme Court of New South Wales Probate Division, Santow J, 10 April 1996).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr DG Collins SC with Mr R.B. Phillips	Peter J Walsh Carroll Kiernan & Forrest
For the Defendant	Mr R.J. Stanley QC with Mr R.C. Wells	Robert M Matisi Pty Ltd

HER HONOUR:

Introduction

This matter was initiated on 27 February 2002 by an originating motion, being an application for a grant of probate of the last Will of Philomena Mary Coates made on 23 March 2001 (“the Will”) and a Codicil thereto made on 9 July 2001 (“the Codicil”). Mrs Coates, who was known to her family and her friends as “Mena”, died on 25 January 2002 aged 92 years. The plaintiffs are the executors named in the Will. On 22 February 2002 the defendant (“Ross Clynes”) had lodged a caveat with the Registrar of Probates requiring that nothing be done in the matter of the Will of Mrs Coates without notice to him. Notice of the lodging of the application for a grant of probate was sent to him by the Registrar on 1 March 2002.

The plaintiffs are Mr Dowling, who was Mrs Coates’s accountant, Mr Bruce, her stockbroker, and Mr Walsh, the solicitor who prepared the Will and Codicil. Ross Clynes is the husband of Mrs Coates’s second cousin, Virginia Clynes.

The defendant’s formal grounds of objection to the grant of probate, filed on 3 April 2002, read as follows:

1.That the deceased lacked testamentary capacity during the period shortly before and at the time of execution of the will and the codicil. The deceased suffered from significant cognitive changes as a result of her age and the degeneration of her mental capacity; and by 1999 her lack of short term memory and the minimal long term memory which she retained was [sic] such as to deprive her of testamentary capacity and render her incapable of giving instructions for the preparation of a will or codicil.
2.That the deceased did not know and approve the contents of the will.

On 18 April 2002 Beach J ordered the joinder of the defendant to the proceeding and directed that evidence in chief be given by affidavit.

The sole issue before the Court is whether Mrs Coates had testamentary capacity at the time of executing the Will and the Codicil. Thus there is no claim of undue influence, and no claim that the Will and Codicil were other than duly executed. Nor is there any claim under the provisions of Part IV of the Administration and Probate Act 1958, despite the extension of the operation of those provisions effected by the Wills Act 1997. Although the execution of the Will and of the Codicil were separated in time by a matter of months, counsel were in agreement that the two testamentary documents would stand or fall together.

Affidavits were filed and oral evidence given by the following persons:

For the plaintiffs
Each of the three plaintiffs, including Mr Walsh, the solicitor who prepared the Will and Codicil;
Mr Forrest, a solicitor who witnessed the execution of the Will;
Mr Michael Holligan, a tenant and friend of Mrs Coates; and
Dr Tofler, a consultant psychiatrist, who examined Mrs Coates on 20 February and 23 March 2001.

For the defendant
Ross Clynes;
His son, Mr Timothy Clynes;
Ms Harper, a nurse, who was the principal carer for Mrs Coates at all relevant times and visited her on most days;
Professor Helme, a consultant neurologist, who examined Mrs Coates on 28 March 2001 and who also examined Mrs Virginia Clynes, the wife of the defendant, on several occasions;
Dr Phillips, Mrs Coates’s general practitioner; and
Mr Chamberlin, who had been Mrs Coates’s solicitor for many years.

Ms Jordan, a solicitor who was the other witness to the Will, and was also a witness to the Codicil, is overseas, and her affidavit was tendered without objection. As I have said, no question arises as to the due execution of either document.

Mrs Virginia Clynes swore affidavits on 8 April and 12 September 2003. Professor Helme, who had examined her in November and December 2002, February 2003, and August 2004, gave evidence to the effect that on the three earlier occasions when he saw her she was suffering from minor cognitive impairment, although he believed that at that period she would have been able to give instructions relating to past facts and circumstances. In August 2004 that impairment had gone to a level compatible with a diagnosis of dementia. His opinion was that Mrs Clynes would not now be able to recall things and give evidence in court, and that any evidence she might give would be very unreliable and would serve no useful purpose in determining the truth of the matters which she was asked. The affidavits were tendered and after some discussion and reference to authority were admitted into evidence, on the understanding that there would be no opportunity for cross-examination on those affidavits, with consequent considerations arising as to the weight to be given them.

In 1935 Mrs Coates’s father bought for her a large house in Hotham Street, East Melbourne, in which she lived for the rest of her life. The house was divided into 8 flats, with a bungalow at the rear, and she lived in a first floor flat, the remaining flats being rented out and being the principal source of her income. She also had a substantial share portfolio and significant amounts of cash in bank accounts. The supporting affidavit of the executors was sworn on 26 February 2003. Exhibit “D” to that affidavit is an Inventory of assets and liabilities showing the net assets of her estate at that time as just over $3.5 million.

Mrs Coates’s husband died in 1969 and she had no children. It is not entirely clear what other relations she had. Her maiden name was Coughlan. Her father remarried after her mother’s death and had more children, and her closest relations on that side of her family were thus her half-siblings. Ross Clynes in his affidavit deposed that “Mena had I think two step-brothers and one step-sister”, but the Will provides for specific legacies and shares of residue to “my sister, Anastasia Coughlan” and to the Loreto Sisters “in memory of my sister Mother Juliana Coughlan late of Loreto Convent Brisbane”, so that it appears that she had at least two half-sisters (not, of course, step-sisters). Mr Walsh deposes that she referred to six of the beneficiaries as the children of her half-brother Desmond Coughlan, and to another beneficiary as the daughter of her half-brother Jack. There is provision in the Will for specific legacies and shares of residue to go to a number of people specified as being her nieces or nephews, several of whom bear the name “Coughlan”.

On her mother’s side was her mother’s sister’s surviving granddaughter, Virginia Wakefield-Kent, who married Ross Clynes. There are four children of that marriage. Mr Walsh deposes that Mrs Coates told him that Mrs Clynes’s sister, Felicity Wakefield-Kent, had died. There is no evidence as to any other relations on Mrs Coates’s mother’s side, although Mr Walsh deposes that Mrs Coates described two of the specific legatees as her cousins, and one as the daughter of her first cousin. However, it appears that she did not specify the precise connections.

In any case, there is no suggestion that any relative was overlooked in the dispositions in the Will, or that Mrs Coates had any relatives closer than her half-siblings, nieces, nephews and cousins.

The law

There is no dispute as to the relevant law. The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it. That duty is in the first place discharged by establishing a prima facie case of sound mind, memory and understanding with reference to the particular will. Once that is done, the onus of proof lies upon the party impeaching the will to show that it ought not to be admitted to proof by reason (as is claimed in the present case) of a lack of testamentary capacity. [1]
[1]Bailey v Bailey (1924) 34 CLR 558 at 570 per Isaacs J.

The classic statements as to the capacity required for the making of a valid will are to be found in the following passages from the judgment of Cockburn CJ delivering the judgment of the court in Banks v Goodfellow: [2]
[2](1870) LR 5 QB 549 at 565-7

It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of 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 . . .
It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause – namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains . . .

And, quoting from the judgment of the United States Circuit Court for the district of New Jersey in the case of Harrison v Rowan : [3]
As to the testator’s capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms . . .

And finally, in a passage from Stevens v Vancleve, [4] another American decision:
The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory maybe very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will.

[3]3 Washington at 585

[4]4 Washington at 267

Also relevant is the following passage from the judgment of Windeyer J in Kerr v Badran: [5]

In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995 . . . Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will.

[5][2004] NSWSC 735 at [49]

It is important to remember that, as Kirby P said in Easter v Griffith: [6]

In judging the will propounded, and the challenge to it the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence still less of jargon as to whether particular conditions such as ‘delusion’ or ‘paranoia’ have been established.

[6]unreported, decided on 7 June 1995, at 6

Santow J in Ridge v Rowden [7] cited from the judgment of Isaacs J in Bailey v Bailey[8] where His Honour noted that the quantum of evidence sufficient to establish testamentary capacity must always depend upon the circumstances of each case, because the degree of vigilance exercised by the court varies with the circumstances, which may include the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions and its exclusion or non-exclusion of beneficiaries. The decision is one for the Court, and the opinion of witnesses as to the testamentary capacity of the testator is usually to be given little weight; as to the attesting witnesses, the Court must judge from the facts they state, and not from their opinions.
[7]unreported, decided on 10 April 1996, at 43
[8](1924) 34 CLR 558 at 571

Mr Munro

Much was made by the defence of the involvement of Mr Graeme Munro in the affairs of Mrs Coates. Mr Munro was, from March 2000, a tenant of a garage at the house in Hotham Street, which he used for storage. He became a friend and visited Mrs Coates frequently in her flat. He was neither a relative nor a long-standing friend of Mrs Coates. Ross Clynes considered that Mr Munro was a suspect character and attempted to have Mrs Coates eject him from his tenancy. This was unsuccessful. He said in oral evidence that he considered that Mr Munro was interested in Mrs Coates’s share portfolio and was trying to influence her to leave it to him. He agreed that it was because of his concern that Mr Munro might influence Mrs Coates that he arranged for Dr Phillips to ask Professor Helme to examine her as to her capacity. This was after the making of the Will.

Ms Harper, the nurse who visited Mrs Coates on most days to attend to her, described Mr Munro as having become “a trusted friend”. However, she became concerned about the activities of Mr Munro when it appeared that he had bought pills for Mrs Coates which were of a kind which Dr Phillips had advised her not to take. Dr Phillips was also concerned about the activities of Mr Munro.

Mr Munro contacted both Mr Dowling and Mr Bruce from about June 2000 suggesting that Mrs Coates was not being properly being looked after by them or by her solicitor, Mr Chamberlin. He also contacted various solicitors, asking them to take instructions from her for a new will. It was he who contacted Mr Walsh, and when Mr Walsh formed the view that it would be desirable to have a doctor examine Mrs Coates as to her capacity, he asked Mr Munro to arrange for such an examination. Mr Munro arranged for Dr Tofler to do the examination, after Mr Walsh had formed the view that Dr Tofler was appropriate.

Mr Holligan said that he was concerned about Mr Munro’s involvement with Mrs Coates. Mr Munro had told him that he had experience in helping old ladies to get their affairs in order. Mr Chamberlin was similarly concerned. Mr Dowling agreed that he and Ross Clynes had both been concerned that Mr Munro should not be in a position to exert undue influence over Mrs Coates. There were suggestions that he had been going through her personal papers.

In the event, Mr Munro received a legacy of $5,000 under the Will. In the context of the estate as a whole that was a very small amount. Mr Stanley submitted that it was to be inferred that Mr Munro was influencing Mrs Coates, and in particular was influencing her against the interests of the Clynes family. However, there is no evidence that he played any part in the giving of instructions for the Will (apart from his involvement, described above, in administrative arrangements) and there is no evidence that any of the dispositions in the Will or the Codicil were influenced by him. It was put to Mr Walsh that some letters which Mrs Coates wrote to him were dictated or influenced by Mr Munro, which may have been the case, but it was not suggested that those letters influenced Mr Walsh in the preparation of the Will.

Mr Walsh deposes that he told Mr Munro that he could introduce Mr Walsh to Mrs Coates, but that he would see her by himself. He further deposes that after introducing them on the occasion of Mr Walsh’s first visit Mr Munro then left the house. There is no suggestion that Mr Munro was present on any other occasion when Mr Walsh visited Mrs Coates.

Mr Collins, for the plaintiffs, suggested that a concern that Mrs Coates was vulnerable and was being manipulated by Mr Munro may have led some of the people concerned to decide more readily that she lacked testamentary capacity. There may have been, albeit unconsciously, some effect of that kind, but I make no finding on that point. I understand that Mr Munro was in Court throughout the hearing. He was not called to give evidence by either party. I observed on the Court file what appeared to be an affidavit sworn by Mr Munro. I did not read that document and have no knowledge of its contents. No reference was made to it during the hearing.

The involvement of Mr Munro was at the time, perhaps understandably, a matter of concern to those people associated in various ways with Mrs Coates, and gave rise to a great deal of activity among them. However, it has no bearing on the sole issue in this matter, which is whether Mrs Coates had testamentary capacity at the time of making of the Will and the Codicil. There is, as I have said, no claim of undue influence before the Court.

It should be noted that there was evidence, from before the arrival on the scene of Mr Munro in March 2000, of the desire of Mrs Coates to make a new will, and to reduce the amount left to the Clynes from the amount in her previous will. Mr Dowling wrote to Mr Chamberlin in February 1999 setting out certain changes to her will which she had raised with him. One of those changes was that the Clynes should not receive as much as $3 million. Mr Dowling said in evidence that at that time he had told Mrs Coates that under the previous will the Clynes would receive two or two and half million dollars. Mrs Coates had said to him that she felt that it was ridiculous that one person or one family would be getting as much as that from her estate.

Mr Stanley, for the defendant, rightly said that the evidence of Mr Walsh is the linchpin of the plaintiffs’ case, which stands or falls by the weight given by the Court to that evidence. The fact that the engagement of Mr Walsh to prepare the Will was initiated by Mr Munro does not affect the weight to be given to his evidence. Similarly, the fact that Mr Munro was concerned in the selection of Dr Tofler has no bearing on the view I should take of Dr Tofler’s evidence.

Mr Chamberlin

Mr Chamberlin had been Mrs Coates’s solicitor since 1976. Over the years he made six wills and one codicil for her, the last of the wills being made in 1994. By that will she left a large number of specific legacies to relatives and friends. As to the Clynes family, she left her jewellery and her shares in Amcor Ltd to Virginia Clynes, her shares in Mayne Nickless Limited to Ross Clynes, $15,000 each to the children Anna, Timothy, John and Matthew Clynes, her shares in Bank of Melbourne Limited to Matthew Clynes, and the residue of her estate to Virginia and Ross Clynes in equal shares.

By the Will which is the subject of this proceeding, the jewellery still goes to Virginia Clynes; there is no provision for any of the Clynes children; and Virginia Clynes still receives the Amcor shares and Ross Clynes the Mayne Nickless shares. By virtue of the Codicil, Virginia and Ross Clynes each receive one-tenth of one–half of the residue. The hearing proceeded on the basis that the effect of the provisions of the two documents was that Mr and Mrs Clynes would together receive some $3,200,000 under the 1994 will and some $350,000 under the 2001 Will and Codicil.

Following the receipt of the letter referred in [24] above Mr Chamberlin attended on Mrs Coates at her home (as was his practice) on 22 February 1999, accompanied by Mr Dowling, and they reviewed the clauses of her will, but she became tired before they had dealt with the question of the residue. They were there for about 45 minutes. His notes included what he described as a comment, but not an instruction, reading “Clynes say $100,000”. That is another indication, however, that Mrs Coates had decided, before the advent of Mr Munro, to reduce the amount to be left to the Clynes. Although he had doubts on that day as to her testamentary capacity it was not until some two months later that Mr Chamberlin formed the view that she did not have capacity. For this reason, although he prepared a draft codicil, he did not revert to her in relation to her will. When asked why he considered that she did not have capacity, he said that she asked his name a number of times while they were there. He sent the codicil to Mr Dowling, but he did not advise against having it executed. However, there is no evidence to suggest that it was executed.

The medical witnesses

Dr Phillips was Mrs Coates’s general practitioner for the last 13 or 14 years of her life and visited her frequently. His records showed that her mental condition began to deteriorate between late 1990 and July 1992. He described the behaviour, particularly difficulties with her short-term memory, which led him to the conclusion that she had been unable to look after her affairs adequately for at least the previous four to five years prior to March 2001, and that she certainly did not have testamentary capacity at the time of her consultation with Dr Tofler. He said that Mrs Coates knew that she had the building, had lots of shares and had plenty of money, but was losing contact with the exact details of what she had.

Dr Phillips was extremely concerned at the fact that Dr Tofler had been called to examine his patient without reference to him. However, when he learned of it he made no attempt to contact Dr Tofler. The first time he became aware of Dr Tofler’s having seen Mrs Coates was when she told him that she could not remember why she had written a cheque payable to Dr Tofler. It appears that he was present on the occasion when Professor Helme examined Mrs Coates, and in fact arranged for that examination to be performed, but his recollection of the event was vague.

There is no suggestion that either Dr Tofler or Professor Helme was an inappropriate person to examine Mrs Coates in the context of assessing her testamentary capacity. Both tested Mrs Coates in similar ways and both diagnosed her as suffering from mild to moderate dementia.

Dr Tofler concluded after his first visit:

In terms of testamentary capacity Mrs Coates has a grasp of the nature of her assets, the house, her accounts her shares and their relative value. She appeared to have an understanding of the way she wished the assets to be disposed of through her will on her death, and to have good reason to update her will. Her capacity did not appear to be impaired by her memory impairment or by any other form of mental illness. She was therefore of testamentary capacity at the time of the assessment.

After his second visit, on the afternoon of the date of execution of the will, he said that her mental state was essentially the same, and continued:
She was able to recall that she had a good solicitor, who had helped her make her will, but she was not able to recall his name, and did not recall signing the will that morning. She stated that in her reasoning for the changes to the will, that certain people had died, and that there were certain relatives who she felt deserved less, considering that they had not reciprocated when she had helped to educate their daughters. She appeared to retain testamentary capacity despite her poor memory, in that she had a grasp of the nature of her assets, and an understanding of the way she wished them to be disposed of through her will after he death. This disposal did not appear to be influenced by her memory function or any other mental disorder.

No other person was present when Dr Tofler examined Mrs Coates. He believed that his examination took one and a half to two hours.

Professor Helme visited Mrs Coates at nine o’clock in the morning to carry out his assessment, accompanied by Mr Dowling, Dr Phillips and Ross Clynes. He described her in his report as “dishevelled”, by which he said that he meant “poorly groomed” in relation to personal hygiene and dress. The evidence of Ms Harper was that it was her practice to visit Mrs Coates between ten thirty and eleven thirty in the morning to shower and dress her; she was usually in her dressing gown when Ms Harper arrived. It is to be assumed, in the absence of evidence to the contrary, and particularly noting the use of the word “dishevelled”, that Mrs Coates was neither showered nor dressed when four men arrived at her flat to assess her testamentary capacity. That situation appears to me to be less than ideal. There is no evidence as to whether she had been advised of their intended arrival.

The evidence was that Professor Helme’s examination took about one hour. While Professor Helme carried out his assessment the other men remained in the room. No explanation is before the Court as to why this was thought to be either necessary or appropriate. Dr Tofler considered that the presence of other people might have made Mrs Coates more anxious, which might have made it more difficult for her to express herself clearly or to concentrate on what was being asked of her. It is to be remembered that Ross Clynes, who was among those present, had a very considerable interest in the assessment of Mrs Coates’s testamentary capacity.

Asked whether the three other men were anxious because someone had been trying to take advantage of Mrs Coates, Professor Helme replied “They were anxious”. He agreed that they had told him that “the will had been made that they’d like to prove was without testamentary capacity”.

However, it appears from his first report of 28 March 2001 that when he made his examination Professor Helme was under the impression that the assessment he was to undertake related to the capacity of Mrs Coates to execute an enduring power of attorney. Partly on the basis of Mrs Coates’s lack of understanding of some aspects of such a document, he found that she did not have that capacity. He was asked in February 2002 to report specifically as to her testamentary capacity. In a letter of 20 April 2004 he replied that for both capacity for a power of attorney and for a will, a person must be aware of the character, extent and value of their estate, and Mrs Coates was unable to offer any idea as to the nature of her assets and their value, and on that basis did not have “testamentary capacity in relation to her financial affairs”.

As I have said, Dr Tofler and Professor Helme were in agreement as to the nature and degree of Mrs Coates’s underlying condition. Their opinions differed only on the ultimate question of testamentary capacity; which in any case is a matter for the decision of the Court, [9] although medical evidence can of course be of assistance in reaching that decision. [10] Having said that, the basis given by Professor Helme for his conclusion, and the differences in the circumstances of the two examinations incline me to the view that Dr Tofler was in a better position than Professor Helme to form a correct view as to Mrs Coates’s testamentary capacity.
[9]see [16] and [17] above
[10]see the passage from Easter v Griffith cited in [16] above

Mrs Harper worked for Stanhope Nursing Agency and provided care for Mrs Coates for about two years from 1990 and later from 1998 until shortly before her death, visiting her on weekdays and alternate weekends. She believed that by 2000 and possibly earlier, Mrs Coates was incapable of effectively managing her affairs, and that she would not have had a coherent and clear understanding of what she was doing when she had a new will prepared for her in 2001.

Financial advisers

Mr Bruce deposed that he had been Mrs Coates’s stockbroker since 1991. He would visit her about every three months. She was always aware of money and her financial affairs. Whilst she may not have known the value of her shareholdings on a day to day basis, she had a general idea of what she was worth and if she needed to know in detail she would telephone him and he would send her a statement. He had no doubt that she was aware of her money position and was able to manage and look after the flats. Although over the last two years or so there was a deterioration in her mental faculties, she was still well seized and aware of her own personal affairs. In oral evidence he said that “at times she was confused and she had to be refocussed”.

Mr Dowling deposed that in 1998 he succeeded a deceased colleague as Mrs Coates’s accountant since when he had visited her on an irregular basis. His involvement in the preparation of the abortive codicil in 1999, and his concern about the involvement of Mr Munro in the affairs of Mrs Coates have already been described. He said that throughout his dealings with her over the years she consistently stated that she had no idea of how much money she was worth and that the Clynes should not receive several million dollars. In oral evidence he said that she thought it was inappropriate that any one person should receive as much as that from her estate. He believed firmly that the Will and the Codicil accurately reflected her wishes as expressed consistently over the previous three years. He said that while it was difficult to have a conversation with her, as everything would be repeated several times, if not more, there was never any occasion where her comments, observations or behaviour were considered by him to be irrational or insane. He was satisfied that she did possess testamentary capacity at the time of execution of the Will and the Codicil.

Mr Holligan

Mr Holligan deposed that he has lived since 1975 as a tenant of the bungalow at the rear of the Hotham Street property. He would see Mrs Coates nearly every day, they became very good friends and she trusted him. He did odd jobs around the flats, mowed the lawns, and did Mrs Coates’s shopping. Most of her tenants paid rent in cash, and in later years he would bank the money for her. Some of the tenants would take advantage of her over rent, and he would sort it out for her.

Ross Clynes deposed that Mrs Coates helped her widowed cousin Mrs Wakefield-Kent with bringing up her daughters Felicity and Virginia, and that this led to a close relationship which he and Virginia and their four children maintained until the death of Mrs Coates. However, his son Timothy, who was 33 years old at the time of swearing his affidavit in 2003, and who Ross Clynes specifically referred to as having “quite a close relationship with Mena”, said in evidence that he had not actually seen Mrs Coates since Christmas dinner in 1995 or 1996. There is no evidence as to any specific contact of the other children with Mrs Coates, save that Anna Clynes borrowed Mrs Coates’s garage for two weeks.

Ross Clynes described his contacts with Mrs Coates as “the usual contacts that occur between close extended family” as well as weekly brief visits by him to the Hotham Street property, and the carrying out of maintenance work there at weekends. He described several occasions when he had intervened to help Mrs Coates over difficulties with tenants and other people. He considered that her mental condition began to deteriorate in 1993 or 1994.

The two affidavits of Virginia Clynes generally confirm the contents of the two affidavits of her husband. She deposes also that she visited Mrs Coates regularly for nearly 20 years until Mrs Coates was admitted to hospital in August 2001. She was the contact person for Vitalcall, the device that Mrs Coates would activate when she needed medical assistance, and she would be contacted by Vitalcall staff, usually in the middle of the night. Mrs Coates would let her know that she was not a preferred relative, but Virginia nevertheless visited her regularly out a sense of obligation for the help she had given to Virginia’s mother and out of compassion because she was lonely.

In cross-examination, Ross Clynes said that he had not expected to be a substantial beneficiary under the will of Mrs Coates. Asked what therefore was his motivation in bringing this proceeding he replied that it was the drop of 90 per cent from what he and his wife would have received under the 1994 will. He agreed that he had known from 1999 that Mrs Coates wished to change her will, but apart from speaking once to Mr Chamberlin, he had done nothing to assist her in doing so. He had not known then that Mrs Coates wished to reduce the amount payable to him.

Mr Walsh

As Mr Stanley conceded, [11] the evidence of Mr Walsh is the linchpin of the plaintiffs’ case. No challenge was made to the credit or the professionalism of Mr Walsh or as to the accuracy of his affidavit. Nor was there any challenge to his evidence as to the extent of his experience in the preparation of wills. He deposed that he had practised as a solicitor since 1966, and from the late 1970s he had specialised in the practice of wills, probate and estate administration. He estimated that he had drawn over 200 wills a year, and he had been the executor of many deceased estates. His present practice included the referral of all wills and probate work from the firm of Corrs Chambers Westgarth.
[11][27] above

Mr Walsh’s affidavit is 35 pages long. He describes four visits to Mrs Coates, from 14 December 2000 to 16 March 2001, totalling ten and a quarter hours in which he took instructions for the Will; the visit on 23 March 2001 when the Will was executed, which occupied three-quarters of an hour; four visits totalling six and three-quarter hours from 1 to 22 June 2001, in which he took instructions for the Codicil; and the visit when the Codicil was executed, which occupied a further three-quarters of an hour. He also described several telephone calls with Mrs Coates.

During those visits Mr Walsh took extensive notes, which were of assistance to him in the preparation of his affidavit. He said in oral evidence that throughout the visits Mrs Coates was most attentive, concentrating on the situation and on him. She was not distracted. She made clear that she did not wish Dr Phillips to know that she was making another will, because she was concerned that he might reveal this to the Clynes. She did not wish Mr Walsh to speak to anyone about the matter.

The affidavit, like other material before the Court, describes many occasions when Mrs Coates repeated herself, and many occasions of failure of short-term memory. However, there were many occasions of the accuracy of short-term memory. For example, on Mr Walsh’s second visit, some two months after the first, although she had to ask who he was, when he explained that he had seen her about her will, she remembered that he had told her that he knew the Carmelites at Kew, who were among her proposed beneficiaries.

The explanations which Mrs Coates gave, as described in Mr Walsh’s affidavit, for the various provisions she wished to include in the Will, whether in respect of relatives, friends or charities, were entirely rational and reasonable. Many of the facts on which those explanations rely are confirmed by other evidence. She said that she never saw Timothy Clynes, and this is confirmed by his evidence in [44] above. She said that Mr Chamberlin had not been helpful; she had wanted to make a new will for a long time, but he had not come or helped; she wanted someone who would listen. This is consistent with Mr Chamberlin’s evidence in [30] above . She said that the Clynes had not bothered with her the last Christmas, and that she had not been invited to a wedding, and both of these statements are confirmed in the supplementary affidavit of Ross Clynes. Her description of her assets was accurate in generalised terms. She said that Mr Bruce had built up her share portfolio, which is consistent with the evidence of Mr Bruce. Her description of her relationship with Virginia and Ross Clynes is generally consistent with their evidence, although some of her perceptions of attitudes and events would appear to differ from theirs. She was aware that the shares in National Australia Bank which she had left to Mr Bruce in the 1994 will had increased in value, so that she wished to reduce the number of them.

When Mr Walsh suggested that the house might be worth $2,000,000 she said that she thought that it would be a bit more than that; it appears in the Inventory at $2,000,000. She told him that she had more than $125,000 in bank accounts, and the Inventory shows the total of the bank accounts as $138,630.

Mrs Coates pointed out spelling errors in drafts presented to her and in the spelling of the name “Coughlan” in the Codicil.

On 30 May 2001, some two months after the execution of the Will, Mrs Coates rang Mr Walsh to say that she had overlooked some relatives of her husband called Collins and wished to include them in the Will. He went to see her to take instructions for a codicil and while there he asked her whether she wished to do anything about Virginia and Ross Clynes. After some extensive discussion she decided to leave each of them a share of residue.

Dr Tofler was asked whether, assuming the accuracy of Mr Walsh’s affidavit, it assisted him in forming an opinion as to the testamentary capacity of Mrs Coates. He replied:

I'm very impressed with the - with the detail here and the fact that it - it consistently shows that she is quite actively involved in the thinking about the will and that she is making reasonable - well, understandable judgments about the details of the will and that the - the views that she has are held consistently more or less throughout as a kind of integrity in her wishes that is repeatedly indicated by the information in this affidavit.

Conclusion

It is not necessary to describe Mr Walsh’s affidavit in greater detail; I have set out something of the picture which it displays of Mrs Coates’s mental capacity at the time when she was giving instructions for, and executing, her Will and Codicil. It is to be noted that, while those documents contain a number of specific provisions benefiting different people, neither the Will nor the Codicil could be described in any sense as complex. The distributions are simple and straightforward both in substance and in expression.

Looking at the requirements of the first passage cited at [14] above from Banks v Goodfellow, it is apparent from the affidavit of Mr Walsh that Mrs Coates understood the nature of the act of making a will and its effects: I did not understand that requirement to be in issue. In my view that affidavit demonstrates that she understood, as much as was necessary for her purposes, the extent of the property of which she was disposing, in terms of the passage from Kerr v Badran cited in [15] above. Further, I note that she was at the relevant time still administering the collection of her rents, with the assistance of Mr Holligan, and that Mr Bruce kept her informed from time to time of the value of her share portfolio. I would refer also to the evidence of Mr Bruce in [41] above as to her general awareness of her personal affairs.

The expression “claims to which he ought to give effect” is wide and general. Mrs Coates had no dependants, and no children or other issue. In saying that it is not suggested that any relative was overlooked, I would not wish to suggest that a testator in her position is required to distribute largesse among nephews, nieces and cousins, although she did in fact choose to do so. Her assets were hers, to dispose of as she thought fit. As I have said, no claim is brought under Part IV of the Administration and Probate Act 1958. This case is not a claim by the Clynes under that legislation; the sole issue is as to the testamentary capacity of Mrs Coates. She gave rational reasons for her decisions as to the amounts appropriate to leave to different people. Her decision that it was inappropriate that any beneficiary receive as large a proportion of her estate as the Clynes were to receive under the 1994 will was expressed to Mr Dowling in 1999 and did not change before the making of the Will. That was an entirely rational decision; in the event, the Clynes, taken together, receive more under the Will and Codicil than any other beneficiary. It is not in issue that Mrs Coates had in the past given considerable assistance to Virginia Clynes’s mother and her children.

As to the presence of “disorder of the mind”, in my view of the whole of the evidence, including evidence to which I have not referred, and in particular the affidavit of Mr Walsh, Mrs Coates’s capacity is appropriately described in the following two passages cited above from Banks v Goodfellow:

. . . though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
. . . his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recall the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will.

For the reasons I have given, I find that at the time of making the Will and Codicil, that is the time of the giving of instructions for and the execution of each of those documents, Mrs Coates had testamentary capacity in terms of the requirements set out in the authorities to which I have referred.

Subject to any further submissions by counsel as to the form of the orders, there will be orders in the form submitted by counsel for the plaintiffs, as follows:

(a)That Probate of the Will of Philomena Mary Coates made on 23 March 2001 and of the Codicil thereto made on 9 July 2001 be granted to the plaintiffs;
(b)That the plaintiffs’ costs and expenses of this proceeding, including all reserved costs, be taxed on a solicitor and client basis and be paid or retained out of the estate of Mrs Coates;
(c)That the defendant’s costs and expenses of this proceeding, including all reserved costs, be taxed on a solicitor and client basis and be paid or retained out of the estate of Mrs Coates;
(d)That liberty to apply is reserved.

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Dowling v Clynes [2004] VSC 517

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Bailey v Bailey [1924] HCA 21

[2004] VSC 517

15 December 2004