Griffin v Boardman
[2009] SASC 315
•2 October 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
GRIFFIN v BOARDMAN
[2009] SASC 315
Judgment of The Honourable Justice White
2 October 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - TIME AT WHICH SOUND MIND NECESSARY
Application for an order authorising the making of a will for the defendant - defendant suffers Alzheimer's dementia - absent a statutory will the defendant will die intestate.
Whether the proposed testator lacks testamentary capacity - whether the proposed will reflects the likely intentions of the testator - whether proposed order reasonable.
Held: permission granted to make the application - application granted.
Wills Act 1936 (SA) s 7; Inheritance (Family Provision) Act 1972 (SA) s 7; Administration and Probate Act 1919 (SA) s 72G; Mental Capacity Act 2005 (UK), referred to.
Timbury v Coffee (1941) 66 CLR 277, applied.
Bryant v Blake [2004] SASC 369; Hoffmann v Waters (2007) 98 SASR 500; In Re P [2009] 2 All ER 1198; In re D (J) [1982] Ch 237, considered.
GRIFFIN v BOARDMAN
[2009] SASC 315Testamentary Causes Jurisdiction
WHITE J: The plaintiff applies for an order of the Court under s 7(1) of the Wills Act 1936 (SA) authorising the making of a will of behalf of Mrs Agnes Boardman. The plaintiff is the stepdaughter of Agnes.
Under s 7 of the Wills Act, such an application may be made only with the permission of the Court. As the affidavits filed in support of the application indicated that it appeared to have some merit, I directed that the application for permission and the substantive application be heard at the same time.[1]
[1] Cf Bryant v Blake [2004] SASC 369 at [25]; Hoffmann v Waters [2007] SASC 273 at [10]; (2007) 98 SASR 500 at 503.
Before making an order under s 7(1), the Court must be satisfied of the matters specified in s 7(3) of the Wills Act:
(a) the person lacks testamentary capacity; and
(b)the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c) it is reasonable in all the circumstances that the order should be made.
“Testamentary capacity” is defined in s 7(12) as follows:
(12) In this section—
testamentary capacity means the capacity to make a will1.
Note—
1 The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
The capacity to make a will requires testators to have sufficient mental capacity to comprehend the nature of what they are doing, and its effects, and to be able to realize the extent and character of their property, and to weigh the claims which ought naturally to press upon them.[2] Their minds should be free to act in a natural, regular, and ordinary manner.[3]
[2] Timbury v Coffee (1941) 66 CLR 277 at 283 per Dixon J.
[3] Ibid.
Section 7(4) of the Wills Act specifies matters which the Court must take into account when considering an application under s 7(1). It provides:
(4)In considering an application for an order under this section, the Court must take into account the following matters:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of—
(i) the beneficiaries under any will previously made by the person;
(ii)any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii)any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv) any other person who has cared for or provided emotional support to the person;
(e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f) the likely size of the estate;
(g) any other matter that the Court considers to be relevant.
In these reasons it is convenient to refer to Mrs Boardman by her first name of Agnes. It is also convenient to refer to various family members by their first names. In doing so I am not intending any disrespect.
On the hearing of the application, I received submissions from Mr Keith, representing the plaintiff, Brenda Griffin; from Mr Howard on instructions from Mrs Quick who was appointed by order of the Registrar of Probates as guardian ad litem of Mrs Boardman; and from Ms Gray on instructions from Mrs Millard, who was appointed by an order of the Registrar of Probates to act as representative for the class of relatives of the fourth degree of Mrs Boardman. The Public Advocate indicated that he does not wish to be heard on the application.
I received affidavits from the plaintiff; her sister June Stewart; Mr Welden, the solicitor acting for the plaintiff; Mrs Quick; and Mrs Millard. No party sought to have any deponent attend for cross-examination and I am satisfied that it is appropriate to act on the basis of the matters disclosed in the affidavits.
The plaintiff seeks a Court order authorising the making of a will which, in substance, contains the following:
(i)bequests of $15,000 to each of the Royal Society for the Blind and the Cancer Council of South Australia;
(ii)a bequest of $2,000 to Shirley Bond, a friend of Agnes;
(iii)a bequest of Agnes’ collection of books and literature to her friend Eric Hudson in the United Kingdom;
(iv) a bequest of 80 per cent of the residuary estate to the plaintiff and her husband and the remaining 20 per cent to June Stewart.
The plaintiff also proposes that she and her husband be appointed as Agnes’ executors. The plaintiff and her husband are willing to act in that capacity.
For the reasons which follow, I am satisfied that it is appropriate both to grant the plaintiff permission to bring the application and to make the order which she seeks.
The Testamentary Capacity of Agnes
Agnes was born in Scotland in October 1917. She will shortly attain the age of 92 years. Since 2006, Agnes has resided in an Aged Care Facility and, since mid 2009, in the dementia ward of that Facility.
A geriatrician, Dr Peh, examined Agnes at the request of her general practitioner, Dr Fung, in February 2007. He concluded that Agnes “is mentally incompetent and lacks testamentary capacity, probably due to Alzheimer’s dementia”. Dr Peh confirmed this opinion and the progression of Agnes’ dementia in a letter to the plaintiff’s solicitors dated 20 August 2008.
Agnes also suffers from other conditions and afflictions, including a condition of her eyes resulting in sufficient blindness for her to be characterised as legally blind. However, I do not understand these other conditions or afflictions to affect her testamentary capacity.
The plaintiff, who has had regular contact with Agnes, has deposed to the difficulties with memory and understanding of financial arrangements which Agnes experiences. Mr Welden and Mrs Quick have each spoken to Agnes in relation to the current application. Their accounts of their respective interviews indicate that Agnes’ dementia is not complete but are consistent with the existence of a dementia as diagnosed by Dr Peh. I am satisfied that Agnes does not comprehend the amount of her assets, nor the place and nature of her investments and that she is unable to make rational decisions concerning the disposition of those assets upon her death.
Accordingly, I am satisfied that Agnes lacks testamentary capacity and has done so for approximately two years.
Agnes’ dementia is permanent. I am satisfied that she will not recover any testamentary capacity.
The Family History
The plaintiff, who is now 67 years of age, is the daughter of Henry William Boardman. Henry married Joan Elizabeth Bowley in August 1937 in the United Kingdom. Henry and Joan had six children born between May 1938 and July 1965. They are Harry Edward Boardman born in May 1938, the plaintiff who was born in 1942, June Priscilla Stewart born in June 1944, Ann Carol Steel born in October 1946, Trevor Allan Boardman born in April 1949, and David Andrew Boardman born in July 1965.
Henry and Joan divorced in 1981 or 1982. In about 1982, Henry returned to the United Kingdom for a visit and resumed a relationship with Agnes. They had been childhood sweethearts. On 26 February 1983 Henry and Agnes, who were then aged 66 and 65 respectively, married in the United Kingdom and shortly afterwards came to Australia. As I understand it, this was Agnes’ second visit to Australia as she had visited with Henry for a period of about six weeks in late 1982. Henry had lived and worked in Australia for many years. From 1983 Henry and Agnes resided in Australia.
Henry died on 6 August 2001. He had been a resident in a nursing home from 1994 until the time of his death.
Agnes had married John Albert Leslie Davies in the United Kingdom on 22 June 1940. That marriage continued until John’s death in 1977. They did not have any children.
Agnes had one sibling, a sister named Carolina who was born in November 1918. Carolina died in December 1998 in the United Kingdom without leaving any issue.
The father of Agnes and Carolina was Peter John McGuire Menzies. He died in 1923. The mother of Agnes and Carolina was Rebecca Fleming Menzies. After the death of Peter, Rebecca married David Robquer Bruce, but they did not have any children. David had three children from an earlier marriage, but all three died in World War II. Rebecca died in 1977.
During her working life, Agnes was employed as a teacher at Brighton College in England. At that school, she taught blind children.
The fact that Henry formed a relationship with Agnes so soon after (and possibly before) his divorce from Joan, together with some personality clashes, resulted in some rifts in the Boardman family. The loyalties of some of the children were torn between Henry and Joan. Some of the plaintiff’s siblings were supportive of Joan and dismissive of Agnes. It also seems that Agnes’ consumption of alcohol may have contributed to some of these difficulties. The significance of this is that for many years the children of Henry, apart from the plaintiff and June, have had very little to do with Agnes, and several of them nothing at all.
The Existing Will of Agnes
Agnes’ current will was made on 28 July 1987. By that will Agnes appointed Henry as her executor and left the whole of her residuary estate to him. The will does not contain any stipulation as to what should occur in the event that Henry predeceased Agnes. Agnes has not made any further will since Henry’s death in 2001.
The estimated value of the estate of Agnes is about $600,000 in addition to some furniture, a large collection of books and some personal items.
If the Court does not approve the making of a statutory will under s 7 of the Wills Act, Agnes will die intestate. In that event, her estate would be distributed in accordance with the rules contained in s 72G of the Administration and Probate Act 1919 (SA). However, Agnes will not be survived by a spouse or domestic partner or by any issue or by any relatives of the first, second, or third degree. It is theoretically possible that Agnes may be survived by a relative of the fourth degree (a brother or sister of one or other of her parents) but given Agnes’ age, that seems quite unlikely. It is also possible that there may be some issue of the relatives of the fourth degree. I made a direction that it was not necessary for Ms Millard to make actual investigations to ascertain the possible existence of such issue. Any such investigation was likely to be expensive with the expense to be borne ultimately by Agnes’ estate. There is no evidence that such issue do exist, and, even if they do, there is no evidence at all to indicate that it is likely Agnes would wish to make provision for them in her will or that they would have any moral claim on her bounty. Agnes has now been resident in Australia for over 25 years and there is no evidence of any contact at all with issue of her grandparents (apart from Carolina) in that period.
I consider that it is appropriate to proceed on the basis that in the event that the Court does not approve the making of a statutory will, it is probable that the intestate estate of Agnes would vest in the Crown (s 72G(1)(e) of the Administration and Probate Act 1919).
The Likely Intentions of the Testator
The plaintiff has maintained a good relationship with Agnes ever since her arrival in Australia. Henry and Agnes stayed with the plaintiff and her husband in their home for a period of about two months when they first arrived in Adelaide as a married couple in February 1984. After Henry and Agnes purchased their own home, the plaintiff maintained a close relationship. Since Agnes moved to the Aged Care Facility in June 2006, the plaintiff and her husband have visited Agnes at least twice, and sometimes more often, each week. Apart from anything else, the plaintiff accepts a responsibility to care for Agnes because of a request to that effect made by Henry. In addition to seeing Agnes, the plaintiff is also in regular telephone contact with her.
The plaintiff has deposed to conversations which she had with Agnes prior to the development of her dementia concerning what she would like to have happen to her monies and her estate. There have also been some conversations on this topic since Agnes’ dementia became apparent.
Agnes told the plaintiff that she wished to make gifts of $5,000 to each of the Royal Society of the Blind and to Cancer Research. She has also expressed a wish that $2,000 should be given to a good friend, Shirley Bond. Agnes would like her large collection of books to be sent to her friends in the United Kingdom, Mr and Mrs Eric Hudson. Finally, Agnes has told the plaintiff that she wishes the remainder of her estate to go to the plaintiff herself and the plaintiff’s husband. The plaintiff has some diffidence about this. She has deposed as follows:
I am uncomfortable with Agnes wanting to give the remainder of her estate and monies to myself and my husband. It is a natural reaction to think that people will believe I only spent time with her or looked after her for her money or estate but that is far from the truth.
I have tried to persuade Agnes to give other people the money or at least share it with my other siblings whom I believe are the closest living relatives she has. Whenever this has been suggested Agnes has clearly told me that she does not want any money to go to my other siblings. Agnes has told me that none of them visit her or even send a birthday card to her so they do not play any role in her life.
The only sibling that has seen Agnes in the Nursing Home has been June Priscilla Stewart who would visit occasionally. I have raised this with Agnes on many occasions but for some reason she does not want June to receive any money or share in her estate.
The plaintiff’s reservations are understandable and appropriate. To a certain extent they mirror the caution required of this Court when asked to approve the making of a statutory will, the effect of which will be to advantage the applicant for the order.
Even keeping that caution in mind, there are a number of indications that the substantial bequest to the plaintiff and her husband does accurately reflect “the likely intentions” of Agnes if she had testamentary capacity.
On 24 August 2006, Agnes executed an Enduring Power of Attorney and an Enduring Power of Guardianship appointing the plaintiff as her Attorney and Guardian respectively. In the event that the plaintiff predeceased Agnes, the plaintiff’s husband, Robert Griffin is appointed as the Attorney and Guardian. At the same time, Agnes also executed a Medical Power of Attorney appointing both the plaintiff and Robert as her medical agents.
I regard the appointments made by Agnes as significant. They are an indication by Agnes, at a time when she was mentally competent, of the trust which she had in the plaintiff and the closeness of their relationship.
There are a number of other indications that Agnes, if she had testamentary capacity, would wish to make a substantial bequest to the plaintiff and her husband. In addition to being Agnes’ stepdaughter, it is plain that the plaintiff has provided considerable support and assistance to Agnes over a number of years. That is evident from the plaintiff’s own affidavit. It is natural that Agnes would wish to recognise that support in her will, especially in the absence of others who may be thought to be Agnes’ natural beneficiaries.
The support and care which the plaintiff has provided is also confirmed in the affidavit of June Stewart. In respect of the period from 2001 until Henry’s death in 2006 Ms Stewart says:
During these times Brenda and her husband provided much more support than I could due to their close proximity and generous nature.
Later in her affidavit Ms Stewart says:
I also understand that Agnes has requested the majority of her estate to go to Brenda and her husband. I cannot speak more highly of Brenda and her efforts towards Agnes. If a decision was made for the majority of Agnes’ estate to go to Brenda and Bob I could only say that they are both very worthy.
Mrs Quick spoke to Agnes on 1 September 2009 in the absence of the plaintiff. Agnes described the plaintiff as being “an angel to me” and later said “Brenda and Bob have always looked after me and visited me very often”. Later on the same day, Mrs Quick noted the pleasure and reassurance which the plaintiff’s presence gave to Agnes.
Mr Parisi, Agnes’ accountant for many years, has spoken in complimentary terms of the assistance which the plaintiff has provided over the last three years to Agnes. When Mr Welden spoke to Agnes on 4 August 2008 she told him of her wish to make a bequest to the Royal Society for the Blind, to her friend Shirley and to the plaintiff and her husband.
Finally, I note that the case notes from the Aged Care Facility in which Agnes is resident confirm the considerable contact which Agnes has with the plaintiff and her husband and the plaintiff’s general oversight of Agnes’ welfare in the Facility.
It can be readily inferred that Agnes would not wish to die intestate with the effect that her estate passed to the Crown. Mr Welden noted that Agnes became distressed when, on 4 August 2008, he attempted to explain to her that this was a possible outcome. The very fact that Agnes made a will in 1987 is also an indication that she does not wish to die intestate. There is no advantage to Agnes or to anyone associated with her by her dying intestate.
In short, I am satisfied that insofar as the proposed will contains a substantial bequest to the plaintiff and her husband, it does reflect the likely intentions of Agnes.
I am also satisfied that if Agnes had testamentary capacity, she would wish to make a modest bequest to the Royal Society for the Blind. As noted earlier, during the course of her working life Agnes was involved in the teaching of blind children in England. Since being in Australia, she and her friend Shirley Bond have worked together to assist the Royal Society for the Blind in this State. Agnes has told the plaintiff of her wish to make a bequest of $5,000 to the Royal Society for the Blind. The plaintiff believes that if Agnes appreciated the true size of estate, she would wish to make a larger bequest and, hence, the plaintiff proposes a bequest of $15,000.
The proposed bequest to the Cancer Council of South Australia stands in a slightly different position. The evidence does not disclose any prior association between Agnes, on the one hand, and the Cancer Council on the other. Nevertheless, I see no reason to doubt the evidence of the plaintiff to the effect that Agnes has expressed to her a wish to make a bequest of $5,000 to the Cancer Council. The amount of $15,000 proposed by the plaintiff is greater than that suggested by Agnes but, again, it is appropriate to accept the evidence of the plaintiff to the effect that if Agnes was aware of the true size of her estate, she would make a larger bequest.
The position of June Stewart can be put to one side while the position of the other four children of Henry is addressed. Each of those persons live in South Australia and are described as being financially independent. Agnes has told the plaintiff that she does not wish the other children to share in her estate. She has provided a reason for this, namely, the absence of any contact with them and their failure to visit Henry in the latter years of his life. Those circumstances are confirmed by the affidavits of both the plaintiff and by June Stewart. There is no reason to consider it likely that Agnes would have wished Henry’s children (apart from the plaintiff and June) to share in her estate.
The position of June Stewart presents more difficulties. The statements by Agnes concerning June, considered by themselves, indicate an absence of intention that June should share in her estate. However, given that these statements have been made at a time when Agnes has lacked testamentary capacity, there are some limits to the weight which can be attached to them.
Some things are clear. It is Agnes’ express wish to recognise persons who have provided assistance and support to her. That explains in part the proposed provisions concerning the plaintiff and her husband. But June Stewart has provided assistance and support to Agnes as well.
Between 1992 and 1994 and between 1996 and late 1999, June worked in Saudi Arabia. However, when living in Adelaide, and during her holidays home, she did provide assistance to Agnes and Henry. After 1999, until Henry’s death in 2001 it was her practice to take Agnes each week to visit him. She has continued to visit Agnes approximately once each week since Henry’s death in 2001. When Agnes lived in her own home, June assisted by cleaning, gardening and shopping. They have enjoyed, and continue to enjoy, an amicable relationship.
The plaintiff has confirmed that June visits Agnes periodically in the Aged Care Facility.
June is aware that Agnes has expressed a wish that she not receive anything from her estate. As to this June has said:
I am not surprised to hear comments such as that but I am deeply hurt. I would be very happy for all of Agnes’ estate to go to Brenda and Bob or even to the Government if that is Agnes’ true wishes. My disappointment comes from the “lack of value” that Agnes has placed on our relationship which I have considered to be immeasurable. In conversation with Agnes she has always been very supportive and positive towards me. I do not know why Agnes would deliberately not wish me to receive anything from her estate. I only hope that she became flustered in the situation and wanted it all finished with.
If Agnes did have testamentary capacity, it is likely that she would recognise the assistance and support which June has provided over several years. I also consider it likely that she would wish to recognise that assistance and support by a bequest in her will. Accordingly, I do not regard the statements of subjective intention attributed to Agnes as being decisive.
In Re P,[4] Lewiston J considered, in analogous circumstances, what was in the “best interests” of the incapacitated testator. The Mental Capacity Act 2005 (UK) requires a “best interests” test to be applied, and not the “likely intentions” of the testator as is required by s 7(3)(b) of the Wills Act. Lewiston J held that the best interests of a person would include the way in which they were likely to be remembered by family and friends after their death. A belief by those who survived them that the testator had “done the right thing” in the will may bear upon that memory.
[4] [2009] EWHC 163; (2009) 2 All ER 1198.
In my opinion, ss 7(3)(b) and 7(4)(g) permit a testator’s wishes concerning their memory to be taken into account in determining their “likely intentions” if they did have testamentary capacity. In that respect it is reasonable to suppose that Agnes would not wish to cause hurt to June. It seems unlikely that if Agnes did have testamentary capacity that she would wish to go on receiving enjoyment and satisfaction from June’s visits but, at the same time, to cause her a sense of grievance by depriving her altogether of some share in her estate.
Furthermore, account should be taken of the prospect that whatever animus Agnes may have had towards June in the past, is likely to have been assuaged overtime. In this respect, the observations of Sir Robert Megarry V C in In Re D (J)[5] are pertinent:
Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last at full capacity, for sometimes strong feelings mellow into indifference and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason.[6] [Emphasis added]
[5] (1982) Ch 237.
[6] Ibid at 243.
Finally, I note that s 7(4)(d)(iv) specifically requires the Court to take account of the interests of those persons who have cared for or provided emotional support to the testator. June appears to be such a person in relation to Agnes.
In my opinion, it is likely that if Agnes did have testamentary capacity she would wish to recognise in some way the assistance and support which she has received from June. It is likely that Agnes would recognise that that assistance and support is less than that which she has received from the plaintiff and her husband but nevertheless she would wish to recognise it. That can be done in the way proposed by the plaintiff in the statutory will.
In short, I am satisfied that the proposed bequest to June does reflect the likely intentions of Agnes.
It is not necessary to discuss in any detail the proposed bequest of $2,000 to Shirley Bond and the gift of the books to Eric Hudson. They will be minor bequests and the affection which the plaintiff had for each of those persons provides a ready rationale for it being likely that the plaintiff would have wished them to benefit in the way proposed.
Potential Claims under the Inheritance (Family Provision) Act 1972
It was common ground between the parties that there were no persons who could, upon the death of Agnes, make claims for provision under s 7 of the Inheritance (Family Provision) Act 1972 (SA). Accordingly, the Court does not need to be concerned about the effect of the statutory will on such persons.
Conclusion
For the reasons give above, I am satisfied that Agnes does lack testamentary capacity and is unlikely to recover it. I am satisfied that the statutory will proposed by the plaintiff does accurately reflect the likely intentions of Agnes if she did have testamentary capacity and I am satisfied that it is reasonable, in all the circumstances, for the order sought to be made.
The orders of the Court are:
1. Permission to make the application is granted to the plaintiff.
2.The Court authorises the making of a will on behalf of the defendant in the terms of the document which is Exhibit BSG24 to the affidavit of the plaintiff affirmed on 12 March 2009.
3.The will is to be signed by the Registrar of Probates and to be sealed with the seal of the Court.
4.The will is to be retained by the Registrar of Probates and is not to be withdrawn from deposit from the Registrar by or on behalf of the defendant unless by an order of the Court made under s 7(11) of the Wills Act 1936.
I will hear the parties as to costs.
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