Hamill v Wright

Case [2018] QSC 197

SUPREME COURT OF QUEENSLAND

CITATION:

Hamill and Anor v Wright and Ors [2018] QSC 197

PARTIES:

SUSAN BELLE HAMILL

(first plaintiff)
and
RICHARD KEITH HAMILL
(second plaintiff)

v
LORRAINE FRANCIS WRIGHT

(first defendant)
and
TREVOR GRANT WRIGHT
(second defendant)
and
MICHELLE WRIGHT
(third defendant)

FILE NO:

SC No 10150 of 2017

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 and 24 August 2018

JUDGE:

Applegarth J

ORDERS:

1.   The Court pronounces against the force and validity of the will of the late Lloyd Stephen Wright dated 14 April 2016.

2.   The Court pronounces against the force and validity of the will of the late Lloyd Stephen Wright dated 6 May 2016.

3.   The Court pronounces in solemn form for the force and validity of the last will of the late Lloyd Stephen Wright dated 28 March 2015, a copy of which is Exhibit A to the affidavit of scripts filed 4 October 2017.

4.   The requirements for giving notice of intention to apply for a grant of probate of the will of the late Lloyd Stephen Wright dated 28 March 2015 and the publication of that notice be dispensed with.

5.   It is declared that the late Lloyd Stephen Wright lacked the capacity to sever the joint tenancy held by him and Susan Belle Hamill over land described as Lot 339 on RP 138740, County of Ward, Parish of Nerang, Title Reference 15199199 (“the Lot”). 

6.   It is declared that at all times until his death on 19 July 2016, Lloyd Stephen Wright and Susan Belle Hamill held the Lot as joint tenants.

7.   The purported transfer executed by Lloyd Stephen Wright on 16 May 2016, No 717386458 is set aside.

8.   Pursuant to s 114 of the Land Title Act1994 (Qld), Susan Belle Hamill be registered as proprietor of the Lot.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where the testator in 2015 made a will that favoured the first plaintiff over her siblings – where the testator developed delusions, and in 2016 made two wills disinheriting the first plaintiff – whether the delusions were material to his capacity to make the 2016 wills – whether testator had testamentary capacity to make the second will dated 14 April 2016 and the final will dated 6 May 2016

REAL PROPERTY – GENERAL PRINCIPLES – INTERESTS IN LAND INCIDENTS – JOINT TENANCY SEVERANCE – OTHER CASES – where the deceased created a joint tenancy with the first plaintiff over a residential property in 2015 – where in 2015 the deceased made clear his intention that the property pass to the first plaintiff when he died – where in 2016 the deceased claimed that he did not know what he was signing and did not know that he had entered a joint tenancy – where the deceased suffered…

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Hamill v Wright [2018] QSC 197
Case
[2018] QSC 197
Decision Date

CaseChat Overview and Summary

Hamill v Wright involved a dispute over the validity of two wills made by Lloyd Wright and the severability of a joint tenancy over a residential property in Queensland. The plaintiffs, Susan and Richard Hamill, Lloyd's daughter and son-in-law, argued that Lloyd lacked the testamentary capacity to make the 2016 wills and lacked the mental capacity to sever the joint tenancy over the Burleigh Waters property. The defendants argued that Lloyd was of sound mind when he made the 2016 wills and severed the joint tenancy. The central legal issues were whether Lloyd's delusions affected his capacity to make the 2016 wills and whether he had the capacity to sever the joint tenancy with Susan. The court examined Lloyd's mental state, particularly his delusions, and their impact on his capacity to make the wills and sever the joint tenancy. Evidence showed Lloyd suffered from delusions, including beliefs that his daughter and son-in-law were stealing from him and drugging him, which continued into 2016. The court found that Lloyd's delusions were material to his capacity to make the 2016 wills and sever the joint tenancy. The delusions prevented him from properly evaluating the claims of his children and effectively severing the joint tenancy. Consequently, the court invalidated the 2016 wills and declared the 2015 will valid. It also declared that Lloyd lacked the capacity to sever the joint tenancy, confirming that Susan remained a joint tenant of the Burleigh Waters property. The court ordered the invalidity of the 2016 wills, the validity of the 2015 will, and that Susan be registered as the proprietor of the Lot as a sole owner.

Orders

Orders of the court

1. The Court pronounces against the force and validity of the will of the late Lloyd Stephen Wright dated 14 April 2016.

2. The Court pronounces against the force and validity of the will of the late Lloyd Stephen Wright dated 6 May 2016.

3. The Court pronounces in solemn form for the force and validity of the last will of the late Lloyd Stephen Wright dated 28 March 2015, a copy of which is Exhibit A to the affidavit of scripts filed 4 October 2017.

4. The requirements for giving notice of intention to apply for a grant of probate of the will of the late Lloyd Stephen Wright dated 28 March 2015 and the publication of that notice be dispensed with.

5. It is declared that the late Lloyd Stephen Wright lacked the capacity to sever the joint tenancy held by him and Susan Belle Hamill over land described as Lot 339 on RP 138740, County of Ward, Parish of Nerang, Title Reference 15199199 (“the Lot”).

6. It is declared that at all times until his death on 19 July 2016, Lloyd Stephen Wright and Susan Belle Hamill held the Lot as joint tenants.

7. The purported transfer executed by Lloyd Stephen Wright on 16 May 2016, No 717386458 is set aside.

8. Pursuant to s 114 of the Land Title Act 1994 (Qld), Susan Belle Hamill be registered as proprietor of the Lot.

Background

Background to the litigation

More generally, and in circumstances in which substantial doubts have been raised about Lloyd’s capacity at the relevant dates, the general issue is whether the defendants have affirmatively satisfied the Court that he was not under the influence of delusions when he made his last will and severed the joint tenancy.Additional background Susan had been close to her parents during her adult life, and until the sad events of early 2016 enjoyed a loving and trusting relationship with her father. Susan’s husband, Richard Hamill, also enjoyed a good and trusting relationship with Lloyd Wright after he met him in May 1976. Susan and Richard lived in Port Macquarie. In 2007, Lloyd and Shirley came to live in Port Macquarie, so they could be close to Susan and Richard. Susan and Richard were appointed as their executors and attorneys. In 2011, Susan moved in with her parents as Lloyd had suffered a major health crisis and Shirley was already affected by dementia. In 2014, Lloyd suffered another major health crisis, contracted double pneumonia and was not expected to live. After seven weeks in hospital he was discharged in an extremely weak condition. Rather than having him discharged to a nursing home, Susan cared for him. About six months later, his health had recovered somewhat and a decision was made to move to Queensland, where the warmer weather would be good for Lloyd’s health. Susan and Richard had lost their home and most of their wealth during the global financial crises. When they moved to Queensland, a house was purchased at Burleigh Waters with the proceeds of the sale of Lloyd and Shirley’s home. Lloyd, Susan and Richard moved into it in March 2015. Shirley’s condition necessitated her living in a nursing home. Susan could not care for both of her parents at the same time, given Lloyd’s poor physical health and Shirley’s dementia. For reasons that were explained by Lloyd in a statutory declaration dated 13 March 2015, the property at Burleigh Waters was purchased in the joint names of Lloyd and Susan. Lloyd was advised by a solicitor, and understood that the creation of the joint tenancy would, in effect, gift the house to his daughter if she survived him. He intended that she become the sole owner of the property. Lloyd also declared that his wife Shirley had expressed her wish, over many years, that Susan be provided with a home. This was because Susan had been caring for Lloyd and Shirley in their home for about four years, and before that had “always provided us with love and support as well as practical help”. Lloyd also explained that Susan was dependent on him for a home and financial support, having no separate assets of her own. Because Lloyd’s principal asset, being his interest in the Burleigh Waters property, was held as a joint tenancy, it would not become part of his estate upon his death. Lloyd made a will dated 28 March 2015 (“the 2015 will”) which appointed Susan and Richard as his executors. Susan was the sole beneficiary under that will.

Evidence

Evidence Before The Court

On 18 July 2016 Ms Lewis attended upon Lloyd at his home and learned that he was dying. As a result, she did not pursue taking instructions in relation to a forced sale of the property in Queensland. Evidence of delusions Earlier I have outlined evidence of delusions that Lloyd expressed and adhered to in early 2016. They include:·The theft of coins;·Allegations that Susan and Richard had been drugging him and attempting to poison him;·That Richard and Susan had stolen money from him; and·That he had been misled or tricked into signing papers which, unbeknownst to him, created a joint tenancy. The existence of some of these delusions is confirmed by what Lloyd told Dr Hempling. These matters were of sufficient concern to Dr Hempling to consider and recommend a psychiatric review. After the events of late March 2016, on 1 April 2016, Dr Hempling contacted the Acute Older Persons Mental Health Team for advice and recorded his genuine concern that Lloyd may have been suffering a degree of mental impairment that was affecting his judgment. Dr Hempling gave evidence and was cross-examined. This included evidence that if Lloyd had been suffering from delusions, he would expect them to continue. The continuance of delusions in relation to theft, financial abuse and other misconduct is evidenced by a letter which Lloyd wrote in May 2016. The circumstances in which the letter came to be written are unexplained. It is dated 12 May 2016, being six days after the date of the will made in Ms Lewis’ office. However, the letter was only signed by Lloyd and witnessed by a JP on 26 May 2016. Ms Lewis gave no evidence about the letter and there is no evidence that she was ever shown it. Lorraine, with whom Lloyd was living at the time, must have known about the letter and how it came to be created. The letter was sent to the plaintiffs on her behalf by a community legal centre in March 2018. In any case, the parties proceeded on the basis that the letter was written by Lloyd. It is in a typed form. The letter contains evidence of delusions. One such delusion relates to what is described as “a very valuable coin collection”. Lloyd reported that he noticed the pennies were missing and estimated their weight to be about 25 pounds. He said that when he asked Susan and Richard about what happened to “my pennies, they acted like I knew nothing”. He also refers to the rest of his coins “which weighed about 45 pounds” and that Susan and Richard suggested he was going mad. This amounts to a persistence in the allegation that Susan and Richard stole valuable coins. This time it was not a few 1913 pennies, but approximately 25 pounds of pennies. The letter goes on to recount how, after discussing his situation with Moira, she had suggested that they go to the Council and the bank to get documents about his property and finances. He reports that the documents he got from the Council said that Susan “owned half my new property”, and was on the title as a joint tenant. He also said that he found out that the whole of his wife’s and his estate would go to Susan “which was never my intention as I have three other children”. He wrote “I was in shock to find she owned half of my property”. This was not some mere forgetfulness. It was completely inconsistent with the arrangements which Lloyd had made, documented in a statutory declaration and told others about. His clear testamentary intention, as expressed to family and friends in 2015, was that Susan should become the owner of the house when he died.

Decision

Reasons for decision

Whilst Dr Martin and Ms Lewis had the advantage of observing Lloyd, the limitations on their evidence and opinions about his capacity must be recognised. For the reasons I have discussed in relation to their evidence, neither was in a position to recognise the non-bizarre delusions under which Lloyd was functioning at the time. Conclusions Based on my assessment of the evidence as a whole, I reach the following conclusions: Lloyd suffered from non-bizarre delusions in 2016, including the time he made and executed the will dated 6 May 2016 and gave instructions to sever any joint tenancy. Those delusions continued at the time the joint tenancy was severed. His delusions were material to his testamentary capacity and to his capacity to sever the joint tenancy. They were directly relevant to whether Susan had a claim upon his testamentary bounty, and also to whether the house should become her property as a surviving joint tenant or, instead, a half interest in the property should become part of his estate. In the words of Banks v Goodfellow, his delusions were such as to “poison his affections” for Susan and prevented him from being able to evaluate, and discriminate between, the respective strengths of the claims of each of his children upon his testamentary bounty. For similar reasons, he lacked the capacity to sever the joint tenancy. The second defendant (whose submissions were adopted by the first defendant) has not proven that the delusions were not operative on the dates that Lloyd gave instructions in relation to his will and to sever any joint tenancy or on the dates he executed relevant documents. My conclusions about the effect of his non-bizarre delusions are reinforced by evidence of his inability to recall the circumstances in which he created a joint tenancy a little over a year earlier and his reasons for doing so, namely the care which Susan had provided to Lloyd and Shirley over the years and the fact that Susan had no home of her own, as well as the lack of care provided to him and his wife by his other children. The whole of the evidence establishes that Lloyd lacked testamentary capacity in April and May 2016 and lacked the capacity to sever the joint tenancy in May and June 2016. Because I have reached the conclusion that he lacked those capacities, it is unnecessary to decide the matter by reference to the onus of proof. However, I find, in the alternative, that the defendants have not discharged the onus of proving that he had the required testamentary capacity. The evidence of his delusions, in conjunction with the evidence as a whole, precludes a state of affirmative satisfaction on the balance of probabilities as to his testamentary capacity. Insofar as the plaintiffs have assumed an onus to prove a lack of capacity to sever the joint tenancy, they have discharged that onus. Orders The plaintiffs have been successful in their claim. I propose the following orders:1.The Court pronounces against the force and validity of the will of the late Lloyd Stephen Wright dated 14 April 2016.2.The Court pronounces against the force and validity of the will of the late Lloyd Stephen Wright dated 6 May 2016.3.The Court pronounces in solemn form for the force and validity of the last will of the late Lloyd Stephen Wright dated 28 March 2015, a copy of which is Exhibit A to the affidavit of scripts filed 4 October 2017.4.The requirements for giving notice of intention to apply for a grant of probate of the will of the late Lloyd Stephen Wright dated 28 March 2015 and the publication of that notice be dispensed with.5.It is declared that the late Lloyd Stephen Wright lacked the capacity to sever the joint tenancy held by him and Susan Belle Hamill over land described as Lot 339 on RP 138740, County of Ward, Parish of Nerang, Title Reference 15199199 (“the Lot”). 6.It is declared that at all times until his death on 19 July 2016, Lloyd Stephen Wright and Susan Belle Hamill held the Lot as joint tenants.7.The purported transfer executed by Lloyd Stephen Wright on 16 May 2016, No 717386458 is set aside.8.Pursuant to s 114 of the Land Title Act1994 (Qld), Susan Belle Hamill be registered as proprietor of the Lot.Costs

Ratio Decidendi

Legal Principle Established

The letter concludes with reference to “thefts and abuse” by Richard and Susan.The duration of the delusions The May 2016 letter written by Lloyd proves that his delusions continued. These delusions included the theft of coins, the theft of $26,000 out of a bank account, the misuse of a power of attorney and misconduct so as to create a joint tenancy and thwart his intention to benefit his other three children. While the letter of May 2016 does not make specific references to drugging and poisoning, it makes grave allegations of abuse without any justification. The allegations of abuse are consistent with what he had told Dr Hempling a few months earlier about the loss of precious coins and that Susan and Richard had been drugging him. As noted, in his instructions to Ms Lewis at around this time, Lloyd had raised allegations of financial abuse, including a failure to account for the proceeds of sale of the Port Macquarie home and, as with his May 2016 letter, claimed not to know of any joint tenancy. He could not explain to her how Susan became a joint tenant, and acted under the delusion that she and Richard had contrived this result. It is unnecessary to precisely align specific false allegations made on different dates to different individuals, including Susan and Richard, Dr Hempling, Moira, Lorraine, Ms Lewis and the intended recipient of his May 2016 letter. The different allegations involve delusions about Susan and Richard stealing a valuable coin collection, of being drugged by them and of them attempting to poison him. It includes allegations of misappropriation of $26,000 out of a bank account and dishonestly using their powers and influence to make Susan a joint tenant in the purchase of the Burleigh Waters property. Lloyd was deluded about financial abuse and being drugged by Susan and Richard. His belief that Susan and Richard were stealing from him and drugging him were clearly false. They could not be accounted for. They were firmly held regardless of attempts to explain the truth to him. For example, when he was shown bank statements which explained how the property had been improved with Richard’s money, rather than with the proceeds of allegedly stolen coins, he refused to accept the contents of those documents, saying that they were lies from the internet. The assertions that Susan and Richard were in control of his finances and had misused the power of attorney in some fashion (either to create the joint tenancy, to create the joint bank account or to withdraw the $26,000) were false. At the relevant time Lloyd was not cognitively impaired, as the results of his MMSE showed. He was able to visit banks and other places. He had access to bank records. Access to the bank statements in relation to the joint account (which he presumably had in order to write his May 2016 letter) would have shown to him that the $26,000 was deposited as Susan told him it had been, by Richard, and that the same amount had been withdrawn. Also, he had no reason to believe that the balance of the proceeds of sale of the Port Macquarie property had been diverted. There was no balance. As the settlement documents he had kept showed, because of the transactional costs of stamp duty and the like, and the fact that the Burleigh Waters property cost a little more than the Port Macquarie property, his savings went below $50,000. This was the reason that Richard topped up the joint account. Susan attempted to explain these matters to her father. He refused to accept the truth and persisted in the delusion that she and Richard were stealing from him and abusing him in other ways such that, if he stayed with them, he would shortly die.Expert opinion on capacity