Haim v NSW Trustee and Guardian
[2013] NSWSC 1406
•17 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Haim v NSW Trustee & Guardian; Estate of Feuerring [2013] NSWSC 1406 Hearing dates: 17 September 2013 Decision date: 17 September 2013 Jurisdiction: Equity Division Before: White J Decision: Refer to paras [51] and [52] of judgment.
Catchwords: SUCCESSION - wills, probate and administration - the making of a will - testamentary capacity - deceased made two wills - first will left estate to sister whereas second left estate to person of whom there is no evidence of existence - deceased suffered from paranoid schizophrenia - whether deceased had testamentary capacity at the time of making second will - onus of proof for testamentary capacity Legislation Cited: Family Provision Act 1982 Cases Cited: Banks v Goodfellow (1869-70) LR 5 QB 549 Category: Principal judgment Parties: Karlene Haim (Plaintiff)
NSW Trustee & Guardian (Defendant)Representation: Counsel:
S Chapple (Plaintiff)
N C T Bilinsky (Defendant)
Solicitors:
Alison Butler & Associates (Plaintiff)
Makinson & d'Apice (Defendant)
File Number(s): 2011/303438
Judgment
HIS HONOUR: These proceedings concern the estate of Stephen Karol Feuerring who died on 29 March 2011 aged 59. The deceased left only a modest estate. He made a will on 16 September 1997 by which he appointed the Public Trustee as the executor and trustee of the will and left his estate, after payment of liabilities, to his sister. The plaintiff is the deceased's sister and seeks an order that probate of the will of 16 September 1997 be given to the Public Trustee, now the NSW Trustee and Guardian.
On 4 February 2003 the deceased made a later will. Again he appointed the Public Trustee as the executor and trustee of the will. Under the will dated 4 February 2003 the deceased gave all his property, after payment of estate liabilities, to a person whom he described as his friend, Ben Marriot.
The NSW Trustee and Guardian seeks a grant of probate of the later will. The plaintiff contends that probate should not be granted of the later will because the deceased lacked testamentary capacity.
The deceased suffered from paranoid schizophrenia. The plaintiff contends that he suffered from delusions that prevented his comprehending and appreciating her claim on his testamentary bounty. She contends that no person answering the description of Ben Marriot, being a friend of the deceased, existed.
The 2003 will was prepared for the deceased by officers of the Public Trustee whom the deceased visited in the Chatswood office of that organisation. A will information form was prepared recording the deceased's instructions. The officers who took the instructions and prepared the will did not consider that the deceased lacked testamentary capacity. The defendant submits that the deceased's disorder of mind did not affect his will-making capacity at the relevant time and that at the relevant time he was not suffering from delusions about his sister or Mr Marriot. The defendant submits that the absence of Mr Marriot, who cannot be found, does not mean that no such person existed. The defendant also submits that at the relevant time the deceased was stable, was relatively outgoing and not reclusive and displayed no paranoid ideation.
It is common ground that the onus of showing that the deceased had testamentary capacity when he made the 2003 will lies on the defendant. For the reasons which follow, I have concluded that that onus has not been discharged and that probate of the 2003 will should not be granted.
Between the 1970s and the 1990s the deceased was admitted to psychiatric hospitals on at least ten occasions for periods varying between a few days and many months. In 1982 the Protective Commissioner was appointed as his financial manager.
The reasons for his admissions to psychiatric hospitals included discharging a firearm, for which he was scheduled and for which he was said to have showed increased delusional ideation. He was also scheduled after what was called increased delusional ideation, auditory hallucinations, threats of self-harm, having been transferred from the emergency department after presenting with injuries from an alleged knife attack, deterioration in mental health and inability to cope at home. In 1999 he was admitted to Morriset Hospital for rehabilitation of social and independent living skills.
The plaintiff deposed that after the death of their parents the deceased purchased a unit in Mosman using his share of the proceeds of sale of the family home in Mosman.
During the period of his living in Mosman in the 1970s he was monitored by the Mosman Community Health Team, but was later arrested and ultimately transferred to a psychiatric facility. The deceased's financial affairs were in the hands of the Protective Commissioner, but the plaintiff arranged for the Mosman unit to be cleaned and painted and made arrangements for the unit to be sold. Through most of the 1980s, the deceased lived in various boarding houses and was supported by community mental health teams, but, owing to his mental condition, he was prone to isolate himself and was unable to create relationships with people.
The Protective Office, with the assistance of the plaintiff, arranged for the deceased to purchase a house in Newcastle where he was again supported by a community mental health team. His mental health deteriorated during the 1990s and he was transferred to Morisset Hospital in 1999. After discharge from that facility, the deceased moved into a group home in Marrickville that was owned by an organisation known as the Richmond Fellowship. This is a community organisation that provides supported accommodation for people with mental illness. He later moved to a similar boarding house in Leichhardt.
The plaintiff deposed that their mother died of a stroke in 1968, and their father died of lung disease in 1972. She deposed that after the death of their father the deceased's behaviour became increasingly erratic and he accused her of trying to kill him by poisoning his food and was aggressive towards her.
She deposed that in 2001 she moved to Wollongong for financial reasons and from that time was unable to visit the deceased very often, but called him on the phone at various intervals to see how he was. She deposed that during those conversations the deceased said to her words to the effect that, "You're not my sister, I don't have a sister". When the plaintiff reminded the deceased of who she was and how they had grown up together in Mosman, he responded with words to the effect, "No, I don't have a sister called Karlene, I grew up in Randwick, not Mosman. I don't know who you are. Don't call me again". The plaintiff was not cross-examined. I accept this evidence. That evidence is also corroborated by other evidence of the deceased's exhibiting paranoid ideation about the plaintiff.
The deceased was reclusive. A report from the Newcastle Community Mental Health Team of 1994 records his living alone, becoming paranoid about noises coming from his neighbours, living a secluded life and only leaving his unit to go shopping each fortnight.
An occupational therapist's report dated 6 August 1999 stated that the deceased was able to answer questions about his current situation appropriately but when asked about any situation or events before his admission to Maitland Hospital (where he was admitted in 1998 and 1999), he replied "I cannot remember". This included questions about, amongst other things, his family. A further report in 1999 describes the deceased's account of his personal history as being vague and unclear. There were repeated references in the voluminous notes of various mental health organisations of his being isolated and reclusive.
On 27 March 2001, he told one of the mental health workers who assisted him that he did not want any information about himself released to the plaintiff. In December 2002, he exhibited delusional ideations concerning his own identity, describing himself as either Pablo Picasso or a pastry chef. In about December 2002, he moved from the community home in Dulwich Hill to Leichhardt. A note of a worker with the Richmond Fellowship, described as a "Resident's Progress Note" of 8 January 2003, records that the deceased was then asked by a worker about his parents and stated that his father was taken away and died a destitute or a drunk and his mother died in the family home by committing suicide. There was no rational basis for those statements.
On 8 January 2003, the deceased's general practitioner, Dr Kennedy, sought approval from the Office of the Public Guardian to change the deceased's medication. The Public Guardian had been appointed as the deceased's guardian in 2000 and its approval was needed for the change. Dr Kennedy stated that the likely consequence of not carrying out the proposed treatment was the deceased would suffer from an uncontrolled psychosis which would most likely lead to hospital admission.
Approval for the change of medication was given.
The defendant submits that following this and following the move to the Leichhardt premises, the deceased's condition stabilised and that there was no ongoing evidence of his suffering from paranoid ideas. The progress notes of the Richmond Fellowship record the following for the date of 30 January 2003:
"Stephen received a phone call from his sister this morning. He informed her about how he is settling into his new accommodation/accessing community facilities/participating in household tasks and activities. Staff also spoke to Karlene [the plaintiff], who said she will plan to visit Stephen in the near future. Stephen has been walking down to the local park on a daily basis for a few days now. He informed staff of the various things he sees while on his walk, which he enjoys",
and for 31 January 2003:
"Stephen left at 8.45am to catch a bus to Glebe to pay his food/bills money. Stephen appears confident in his ability to access public transport, and he is planning on going to Chatswood to see the Public Trustee while out this morning."
The deceased in fact went to Chatswood and met the officers of the Public Trustee on 4 February 2003.
On 5 February 2003 Dr Kennedy reported that one of the deceased's medications had been increased due to some "paranoid ideas recently". Dr Kennedy said, "These have settled with the increase in dose and a change in hostel."
On 24 February 2003 a Dr O'Rourke, who was a psychiatric registrar with the Central Sydney Area Health Service, reported that he had reviewed the deceased on 20 February 2003. Dr O'Rourke stated:
"Our file indicates Mr Feuerring has a diagnosis of Schizophrenia and Depression. First psychiatry admission was in 1971. His last appears to have been in 1999 and he has been stable since.
He is a difficult man to assess due to his presentation and poverty of speech and thought content. He frequently used shock [sic] phrase 'I don't know what this means?!'
On mental status examination ... there were no psychotic symptoms ...
My impression of his psychiatric condition is that his symptoms are controlled with current medication ...".
On 5 March 2003 the Resident Progress Notes of the Richmond Fellowship for the deceased stated that the deceased had become increasingly delusional and paranoid during the course of the night. The paranoia appears to have been directed towards problems associated with a resident in another house. The same problem persisted the following day.
There were further incidents of paranoia exhibited later that month. On 26 June 2003 progress notes of the Marrickville Health Centre record a discussion with the deceased in which the deceased told a person whom I infer was a community nurse, a Mr White, about "various Karlenes" who claim to be his sisters. The note says that the deceased denied he had a sister and thought that these "various Karlenes" were trying to take control of his estate. He said that he would prefer that the Protective Office keep control of his finances.
In a report to the Guardianship Tribunal dated 18 July 2003 Mr White, who was a clinical nurse specialist with the Central Sydney Area Health Service, stated:
"Initially, Mr Feuerring was reluctant to talk to me, as he had been discharged from the care of the Marrickville Health Centre in January 2002 and he claimed he had been told that he no longer needed a case manager. He kept up this resistance to talking with me until his G.P. requested a review by the psychiatrist from the Glebe Centre. Subsequently Mr Feuerring has been more talkative with me, but he remains very much wedded to his routine of minimal contact with others and keeping himself shut away in his bedroom for long periods.
Mr Feuerring's diagnoses of Schizophrenia and depression are well established, as is his functioning in the 'borderline' range of intelligence. His mental state fluctuates between states when he gives voice to such paranoid delusions that the woman who claims to be his sister is not his sister and she is trying to gain control of his money, and states when there is no evidence of any such psychotic features. However, Mr Feuerring displays at all times a marked thought disorder, characterised by perseveration, poverty of thought, stock phrases and concrete thinking.
...
Mr Feuerring is quite isolative in his current accommodation. He spends a lot of time in his room and rarely socialises with the other residents. When he goes out he seldom tells staff where he is going or what he is doing. However, he does seem to manage the basic living skills. He attends to his appearance without prompting and he can prepare simple meals for himself."
Medical or community health records for subsequent years also convey a picture of a reclusive and isolated man who continued to suffer from paranoia, including paranoid ideas about his sister.
On 8 June 2005 a report from the CSAHS Mental Health Service spoke of the deceased as having had a, "history of schizophrenia, depression and cognitive impairment secondary to a head injury ... Stephen remained well and stable. He has some chronic treatment-resistant delusions about his guardian and tends to be concrete and perceverate [sic] in his interactions."
In February 2007 the medical report states that the deceased mentioned that he was an only child and that he had attended Randwick Primary School. There was not a rational basis for either statement.
On 18 April 2007 a medical report noted that the deceased had stated that a woman from Wollongong was contacting the Protective Office claiming to be his sister and that the Protective Office was protecting him from this woman accessing his money. This is the same theme as he had conveyed to Mr White in 2003.
On 18 July 2008 a further report from a mental health worker described the deceased's mental illness as being characterised with chronic persecutory delusion, namely, that people were making a mess in his unit at night, were following him and watching him, and also with misidentification delusions, namely, that his sister was not his sister and that there were impostors acting as his case manager. The report also stated there were multiple somatic delusions and auditory hallucinations.
It is thus clear that the deceased for a long time, both before and after making his will in February 2003, suffered from quite an extensive range of paranoid delusions.
The defendant submits, correctly, that the issue is not simply whether the deceased suffered from paranoid delusions, but whether when he made his will he was suffering from a paranoid delusion or other mental disorder that affected his testamentary capacity. Relevant to this case, such a delusion or disorder would affect his testamentary capacity if he were unable to bring to mind those who might reasonably be thought to have a claim on his testamentary bounty and to evaluate such a claim and discriminate between the respective strengths of the claims of others on his bounty, if there were such other persons.
The defendant pointed to the fact that on 5 February 2003 Dr Kennedy said that the deceased's paranoid ideas had "settled" with the change to his medication and accommodation. Similarly, on 24 February 2003 Dr O'Rourke reported that with the medication the deceased was then on he exhibited no psychotic symptoms, that is to say, that his symptoms were controlled with current medication. The Richmond Fellowship progress notes for this period are consistent with this, as they do not report any paranoid ideas having been exhibited by the deceased at this time.
None of the doctors was called. I am not critical of this because this is a small estate and questions of expense arise when decisions have to be made about what witnesses are to be called. Nonetheless, it remains the case that I am asked to conclude from the reports of the relevant doctors that the deceased's paranoid ideas had settled and that he did not exhibit psychotic symptoms, that at that time he did not have paranoid delusions about his sister, notwithstanding that he had exhibited such delusions at both earlier and later times.
I do not draw that conclusion from the reports. That is to say, I understand the medical reports to convey that medication was able to control the exhibition of paranoid ideas. It was able to control and prevent florid behaviour. But I do not understand the medical reports to suggest that the medication provided a temporary cure for the deceased's paranoia.
In my view, it would have been necessary for the defendant to call Dr Kennedy or Dr O'Rourke for that point to be made good. I think the position appears clearly enough from the report of Mr White to the Guardianship Tribunal of 18 July 2003, where Mr White stated that the deceased's mental state fluctuated between states when he gave voice to his paranoid delusions about his sister and states when there was "no evidence of any such psychotic features". In other words, sometimes the deceased voiced paranoid delusions and at other times he did not. But I do not infer that he ceased to have such delusions because he did not always voice them.
In Banks v Goodfellow (1869-70) LR 5 QB 549, the Court of Queen's Bench said (at 570):
"No doubt, where the fact that the testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every presumption should in the first instance be made against it. Where insane delusion has once been shewn to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property. And the presumption against a will made under such circumstances becomes additionally strong where the will is, to use the term of the civilians, an inofficious one, that is to say, one in which natural affection and the claims of near relationship have been disregarded. But where in the result a jury are satisfied that the delusion has not affected the general faculties of the mind, and can have had no effect upon the will, we see no sufficient reason why the testator should be held to have lost his right to make a will, or why a will made under such circumstances should not be upheld."
The 2003 will is clearly an inofficious will, assuming for the moment that Mr Ben Marriot existed. Moreover, the delusions that the deceased exhibited about his sister clearly would have affected his decision about the disposition of his estate if a delusion were present when the will was made. The question then is whether I should be satisfied on the evidence of those who prepared and witnessed the 2003 will that the deceased was not suffering from a delusion that affected his testamentary capacity.
The 2003 will was witnessed by a Mr Trevor Booth and a Ms Faye Jones. Mr Booth is now the manager of the Gosford branch of the NSW Trustee and Guardian. They were both employed at the Chatswood branch of what was then the NSW Public Trustee in February 2003. Mr Booth deposed that:
"3. When the deceased signed the Will, he had full knowledge of his assets, next of kin and the role of a Will. The deceased gave full details of previous Wills and requested that a copy of the Will be sent to the Protective Office (now the New South Wales Trustee & Guardian). Annexed and marked 'B' is a copy of the Public Trustee Will Information From which I completed at the time which the Will was signed by the deceased."
That paragraph was not objected to, but it is clear from a later affidavit that Mr Booth has no independent recollection of the deceased making his will on 4 February 2003. His statement that the deceased had full knowledge of, amongst other things, his next of kin, is simply a repetition of a statement to that effect on the Public Trustee Will Information Form which was completed when the will was signed.
It is clear from the Will Information Form that not all aspects of the deceased's cognition were adversely affected by his mental illness. Thus he correctly gave his address. He correctly identified that his funds were held by the Protective Office. He correctly described his assets, being a house at Newcastle, and a sum of $17,000 held for him by the Protective Commissioner. He correctly stated that his funeral had not been prepaid. He correctly gave a telephone number and a name for the person at the Protective Office who dealt with his affairs.
On the Will Information Form, Mr Booth recorded the deceased's instructions to leave "all to friend - Ben Marriot", and underneath that "Absolute - No substitution". In a separate section Mr Marriot was identified as a friend and his address was stated as being Coburg, Melbourne, Victoria. Under the heading "General Comments", Mr Booth stated that:
"Mr Feuerring had full knowledge of his assets - next of kin and the role of a will. He gave full details of previous wills and requested we send a copy of this will to Protective Office."
There is no record of what the deceased said which led Mr Booth to conclude that he had full knowledge of his next of kin. In a section of the form dealing with claims that might be made under the Family Provision Act 1982 (now repealed), Mr Booth had crossed out the deceased having had a spouse, or an ex-spouse, or a child, or a grandchild, or any person who was at any time wholly or partly dependent on him and was a member of his household. However, that would not be a sufficient basis for concluding that the deceased had full knowledge of his next of kin, and I do not know how Mr Booth came to that conclusion.
Mr Booth deposed that there was no particular policy or procedure when it came to using the Will Information Form, but he used it as a personal tool to go through relevant matters with a person making or changing his or her will. He said that he used the form to note down matters he considered important or noteworthy. He said that he had now no specific recollection of this occasion.
I agree with the submission of counsel for the plaintiff that it would have been an important and noteworthy matter, and one that in all probability Mr Booth would have recorded on the Will Information Form, if the deceased had advised him that his closest relative was his sister who had been the sole beneficiary under his previous will. The fact of disinheriting a sister in favour of a friend would clearly be an important matter. I infer from the fact that it was not recorded on the form that the deceased did not convey that information. Therefore, I cannot conclude that the deceased did bring his sister's claim on his testamentary bounty to mind when he made his will, and I am not satisfied that he was capable of bringing her claim on his testamentary bounty to mind when he made his will.
There is no evidence about Mr Marriot, if indeed he exists. The plaintiff has never heard of Mr Marriot. He is not mentioned in any of the progress notes at the Richmond Fellowship, nor in the notes of the Sydney Central Area Health Service, nor in other medical records. This is noteworthy as the picture presented of the deceased is that of a recluse who found it very difficult to form relationships. Mr Marriot did not attend the deceased's funeral. The only persons present at the funeral were the plaintiff, her family and the employees of the Richmond Fellowship. If Mr Marriot existed, the will was clearly inofficious. I do not know what claim he could have had on the deceased's testamentary bounty, and I do not consider that the deceased had the capacity to weigh any such claim.
However, I think it unlikely that Mr Marriot existed. This is not only because if had the deceased had had such a friend it would have been a noteworthy matter, given his reclusive and isolative personality, and some mention could be expected to be seen of Mr Marriot in two notes. It is also because, despite extensive searches, no person answering the description of Ben Marriot, a friend of the deceased, has been found. If he existed, he was living in Australia and apparently a resident of Melbourne in 2003. His name does not appear on any electoral roll for that time. His name does not appear on any land title inquiry in Victoria, nor in a rental search of a national tenant database. His name does not appear in the Australian Business Registry nor in an ASIC search. If he existed, it appears that he did not use any credit cards by that name.
The plaintiff has engaged a private investigator who has conducted extensive searches for a Mr Ben Marriot, either Ben Marriot or Benjamin Marriot or Ben Marriott or Benjamin Marriott. A number of names has come up as a result of those searches. Enquiries have been made of all of those persons. Not all of the enquiries have been responded to, but the letters of enquiry advised that the plaintiff's solicitors were trying to locate a Ben Marriot who was named as a beneficiary of the deceased's will. Had the persons in question known the deceased it is unlikely that they would not have responded to those enquiries.
It is true, as the defendant submits, that the searches do not exclude the possibility of a Ben Marriot having existed who was known to the deceased. Thus the enquiries have been limited to Australia. As the defendant says, it is possible that a Ben Marriot may have been living in Australia at the time, but have moved overseas. Various plausible possibilities can be advanced as to why the searches have been unavailing. But a plausible possibility is not a probability.
I think it unlikely if a Ben Marriot existed that the extensive searches that have been made for him on behalf of the plaintiff would not have revealed his existence. Given the deceased's mental illness, his reclusive personality, which was due to his mental illness, and the unavailing search for a Ben Marriot, it is much more likely that no such person existed.
I conclude that the deceased did not have capacity to make his 2003 will. Accordingly, subject to anything counsel may have to say as to the proper form of the orders to be made, I propose the following orders:
1. Order that probate of the deceased's will dated 16 September 1997 in solemn form be granted to the defendant.
2. Order that the cross-claim be dismissed.
3. Order that the costs of both parties be paid out of the estate on the indemnity basis.
[Counsel addressed]
I make those orders and the following further order:
4. I remit the proceedings to the Registrar to complete the grant.
Decision last updated: 24 September 2013
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