Harrison v Carey; re Castles, deceased
[2006] VSC 104
•24 March 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
Prob 12 of 2005
IN THE MATTER of the Will and Estate IVY MAUD ELIZABETH CASTLES (deceased)
| GAVIN DOUGLAS HARRISON | Plaintiff |
| v | |
| CAROL ANN CAREY | Defendant |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 February 2006 | |
DATE OF JUDGMENT: | 24 March 2006 | |
CASE MAY BE CITED AS: | Re Castles, deceased | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 104 | |
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WILLS – testamentary capacity – 88 year old woman in frail health – conflict of evidence –testamentary capacity proved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Sievers | Harrison Dobson & Cottrill |
| For the Defendant | Mr Peter Crofts | BJT Legal |
HIS HONOUR:
On 19 November 2004, Ivy Maud Elizabeth Castles died in Benalla aged 88 years. Before the Court is a contested application for probate of her will dated 30 September 2004 brought by Gavin Douglas Harrison who is the person identified in the will to be the executor. The issue in this case is the testamentary capacity of Mrs Castles at the time she executed this document in the Benalla Hospital on 30 September 2004.
Under the terms of the will, Mrs Castles gave certain jewellery to one Hazel Smith and eight legacies totalling $30,000. The residue she gave to the Benalla and District Memorial Hospital (“Benalla Hospital”). This residue may not in fact amount to very much since the value of her estate is a little under $110,000 and the cost of this litigation may have to be paid from this.
Mrs Castles was a widow of some 20 years who lived in her own home until late-2003 or early 2004. She was at this time an alert women who was in good health for her age, according to her treating general practitioner, Dr Yu Yu Chit-Jellinek, who had begun treating her in early 2004. In about May 2004, Mrs Castles consulted the doctor at her clinic complaining of shortness of breath and dizzy spells. Dr Chit-Jellinek diagnosed her condition as severe pulmonary hypertension with cardiac arrhythmia. She had a history of chronic heart failure, chronic renal failure, alvial fibrillation and hypothyroidism and she was on multiple medication for these conditions. She was, nonetheless in a good state of mental well-being and showed no sign of depression.
Dr Chit-Jellinek admitted her to Benalla Hospital on 19 May 2004 for an assessment of her condition and arranged for an aged care assessment to be undertaken so that she might, upon her discharge from hospital, be admitted to Cooinda Nursing Home. This was done and the testatrix lived at Cooinda for some months. Neither this assessment nor the usual assessment made on her admission to Cooinda is before the Court.
Mrs Castles was admitted again to Benalla Hospital under the care of Dr Chit-Jellinek on 14 September 2004. She was transferred for specialist review to Wangaratta Hospital on 19 or 20 September and returned to the Benalla Hospital on 23 September. I had before me no assessment of her at these times and, subject to one entry only, none of the nursing notes which were maintained by Benalla Hospital.
About a week later, an old friend and neighbour of Mrs Castles, Trevor Squires, contacted his solicitor, Harrison Dobson & Cottrill with a message that Mrs Castles wanted to see a solicitor. The task was entrusted to an employee solicitor, Matthew James Sussmilch, who on the morning of 30 September attended the Benalla Hospital together with Cherie Louise Leatham, then an articled clerk but now herself a legal practitioner.
I pause at this stage to remark that when Mr Sussmilch and the clerk first attended the Benalla Hospital on that day they did not know why Mrs Castles wanted to see a solicitor. Mr Sussmilch said, however, that he suspected that it was for the purposes of taking instructions for a will. Furthermore, Mrs Castles was not a client of the firm and neither of them knew her or anything about her or her affairs other than that she was about 80 years old. I infer, too, that they were not aware of the fact that she had made a previous will on 6 August 2000 or of its contents.
They arrived at the hospital at about 11.00 am and went to a room which she shared with other patients. Mr Sussmilch described his client as an elderly lady who appeared visibly frail. He said that she told him she wanted to make a will. In his recollection of the details of the visit Mr Sussmilch relied upon the notes which he took as the visit proceeded. Ms Leatham also took notes of the consultation which are consistent with those of Mr Sussmilch.
Mr Sussmilch and Ms Leatham told me that, in answer to his questions, Mrs Castles provided them with a good deal of information. She told them that her name was Ivy Maud Elizabeth Castles and that she lived at Cooinda Nursing Home. She had been born at Numeralla, near Orbost, on 25 August 1916. She was a widow, her husband, William Alfred Castles, having died some 20 years before. She was married to him in Holy Trinity Church, Benalla on 25 April 1940 but had no children. She told them that she had previously made a will and that she wanted to change it. Ms Leatham recorded her as saying that her will was in a cupboard at Cooinda.
She was not asked and did not say anything about her property other than that she had sold her home at 40 Thomas Street, Benalla on 7 October 2003. Ms Leatham’s notes record the client as saying that there were children of her brother-in-law and two children of her sister-in-law. As will appear, there were in fact three children of her sister-in-law. It may be that this information was given in response to a question about her family.
She told the solicitor that she wanted to give $4,000 each to the children of her sister-in-law whom she identified as Isabelle Dalglish. She later named these three children as Lorraine, Carol and Gregory.
She said that she wanted to make a similar gift to four members of the Squires family - Rodney, Graeme, Trevor and Philip. It was Trevor Squires who had made the initial contact with the solicitors some two days previously. The balance of her estate was to go to the Benalla Hospital and, in particular, to the John Lindell Wing and the Morrie Evans Wing of the Hospital.
She then mentioned a friend, Hazel Smith, of 13 Hair Crescent Benalla. Mrs Smith was to receive a legacy of $2,000 plus her wedding ring, her engagement ring and her eternity ring.
She said that she wanted to be buried beside her husband in the Benalla cemetery.
Mr Sussmilch then raised with her the question of her executor. The form of his notes suggest that he expected her to appoint one or other of her nieces, but she told him that she wanted her executor to be a solicitor. Accordingly, he followed the practice of his firm in inserting as executor the senior partner of that firm as at the date of death.
Mr Sussmilch told me that Mrs Castles did not hesitate in her answers or appear confused. In answer to questions at the trial he said that she was sitting up in her bed and that she was not receiving oxygen by mask or nasal prongs. He said that he was not aware that she suffered from a hearing impairment. He was satisfied from her appearance and from the way she answered his preliminary questions that she had capacity to give instructions for her will.
The earlier will of Mrs Castles is dated 6 August 2000. It appears to be not professionally prepared. In it she appointed her nephew Gregory Robert Dalglish and her niece, Lorraine May Bliss, to be executors with a provision for the appointment of her other niece Carol Ann Carey in the event that they not survive her or be unwilling to act. She gave the whole of her estate to the three of them. Carol Ann Carey is the caveatrix in this proceeding and a legatee under the later will.
The two nieces and her treating doctor gave me a description of Mrs Castles which is so much at variance to that of the solicitors that it is difficult to believe that they are speaking of the same person. Mrs Carey and Mrs Bliss, who live in Melbourne, spoke of visiting their aunt a number of times in September following her admission to the Benalla Hospital. I quote the evidence of Mrs Bliss:
“When Aunty Ivy was admitted to hospital in September 2004, I and my sister, Carol, visited her in Benalla & District Memorial Hospital on a number of occasions. During those visits, I realised that Aunty Ivy’s condition had become quite critical. It was practically impossible to communicate with Aunty Ivy at the time. She was bedridden and immobile on her bed and hardly spoke any word. I believe that she was unable to hear or understand when we spoke to her, although she did recognise our faces. I also noted that Aunty Ivy was receiving oxygen at that time.
Mrs Carey put it this way:
“I and my sister visited the deceased regularly, at least once or twice a week, during her stay in hospital in Benalla and, in fact, between 17 September 2004 and 1 October 2004, I visited her on more than three occasions. During those visitations, it was extremely difficult to communicate with the deceased as her hearing was extremely poor and I tried writing on a pad but she had difficulty reading as well. From the day she was admitted to the Benalla & District Memorial Hospital until about midOctober 2004, the deceased was always in a critical condition. She was receiving oxygen fulltime and she remained on oxygen until the day she passed away on Friday 19 November 2004. At no time during that period did the deceased mention to me about changing or amending her Will or making a new Will. During my visits, the deceased was practically immobile and she could barely speak or move around in her bed without assistance. She was not eating and could barely hear when she was spoken to.”
On 27 September, Mrs Carey received a telephone call from Dr Chit-Jellinek. The doctor told her that her aunt was semi-comatose and that the outcome was not looking good. And so, the two sisters travelled to Benalla on the following day, Tuesday, 28 September. Mrs Carey said that her aunt could hardly talk or open her eyes and that her hearing was extremely poor. Mrs Bliss’ evidence of her condition was much the same. She said that her aunt may have recognised her but apart from that, she was “practically in a vegetative state”. It will be recalled that it was on or about this day that Mr Trevor Squires made initial contact with the solicitors. It does not appear from whom and in what manner he learned that she wanted to see a solicitor.
At 9.00 am on the following day, Wednesday 29 September, Dr Chit-Jellinek made her daily round of her patients at the Benalla Hospital. She visited Mrs Castles and made a note of this in the hospital nursing record, to which I shall return.
It will be recalled that Mrs Castles was readmitted to the Bendigo Hospital on 23 September following her brief visit to Wangaratta Hospital. Dr Chit-Jellinek said that, between that date and her visit on 29 September, the patient had declined quite significantly. When asked for details of this the doctor said as follows:
“I communicated with her every morning. It just was difficult she understand my communication. As I said, Mrs Castles had a hearing impairment also too and on top of that, she was not well enough to sit and listen to what I was doing, what I was explaining to her. Every nine am when I talk about her condition, the level of communication between Mrs Castles and me is just – it was very difficult to work it out, she understand what I was saying rather than simple question. Even with a simple question she just say yes or no so I was really concerned.”
The doctor said that the patient suffered from shortness of breath and that she was constantly on oxygen by nasal prong or face mask. On 29 September, when the doctor visited, her patient had nasal prongs in place.
Some point at trial was made of the electrolytes level of Mrs Castles. These tests show the level of sodium in the blood. The normal level is 135 but, when it falls below a certain level the condition is referred to as hypernatraemia. The doctor said that this condition could be described as severe when the level of sodium falls to 120. This severe condition produces symptoms in the patient including confusion, lethargy, muscle cramps, loss of motor function, depression and personality changes. Dr Chit-Jellinek said that, following Mrs Castles return from Wangaratta Hospital, her level of electrolytes was monitored regularly. She said that one such test was taken on 28 September and another on 1 October.
I pause at this stage to make mention of the first of a number of very unsatisfactory aspects of the evidence at this trial. It appeared to be the case of the caveatrix that the sodium level of Mrs Castles was abnormally low between 23 September and 4 October 2004. It improved after that date and so did her mental and physical condition. The case, then, was that the patient was confused on 30 September and unable to make a will and that this was demonstrated by the electrolytes tests which were taken regularly and perhaps daily during this period.
All of this is perfectly understandable. That the test results were not tendered in evidence is less so. When I raised this with counsel, I was told that the results were available but that counsel for the propounder had indicated that they objected to the tender on the ground of hearsay. It is regrettable that counsel for the caveatrix did not press the tender so that the validity of the objection could be the subject of a ruling, but this was not done.
And then, after counsel for the propounder had indicated that the test results were inadmissible and counsel for the caveatrix had accepted this, each of them relied on secondary evidence of those parts of the test results which appeared to favour them.
For example, Dr Chit-Jellinek volunteered that on 28 September the level was 123. Counsel for the caveatrix asked this witness, without objection, what the test results generally show over the period. The doctor said that they were “significantly declining from day by day” and, in answer to his question whether they were below 135, she said “Well, it’s closer to 120 range and below”.
Counsel for the propounder adopted the same technique. He established from the doctor that she would regard as severe hypernatraemia as being a sodium level below 120. Then he asked the witness:
“Are you aware of any test before 1 October where you would regard Mrs Castles as having severe hypernatraemia?”
Given that counsel must have known the test results, this was an unfortunate question, for the doctor answered in the affirmative.
To my mind, all of this is most unsatisfactory. While this is litigation in an adversary environment, I am asked to determine an issue as to the status of the propounded will and, as a consequence, as to the disposition of certain property. I am far from satisfied that the objection to the test results, if proper, is a good one. I am, in any event, very uncomfortable with the stratagems which both counsel adopted to by-pass the problem of inadmissibility.
I return to the evidence of Dr Chit-Jellinek. She was, as I have mentioned, the treating doctor and it was she who arranged for Mrs Castles’ admission to the Benalla Hospital on 14 September and again on 23 September 2004. She saw her patient every day with one exception. She saw Mrs Castles on the morning of the 28, 29 and 30 September on each occasion between 9 and 9.30 am. On the following day, 1 October, she asked her colleague Dr Nandra to see her and she, Dr Chit-Jellinek, resumed her visits on 2 October. The doctor said that on each occasion after her visit she made a note in the hospital nursing rounds and, it would seem, made her own progress note.
Counsel for the propounder tendered in evidence the doctor’s entry in the hospital medical records for 29 September. The evidence was that no entry was made by the doctor of her visit on 30 September but that she made an entry in her own progress note of the visit on that day. With this solitary exception, none of the hospital nursing records was put in evidence and no progress notes. These records had been produced to the Prothonotary last August and were presumably available to both parties. I queried the absence of this important evidence but neither party sought to tender the hospital nursing records or the doctor’s progress notes. This is the second unsatisfactory evidentiary feature of this case.
On her visit on the morning of 29 September, Dr Chit-Jellinek described Mrs Castles as comatose or, perhaps, as “nearly semi-comatose”. Notwithstanding this, her description of the patient in her evidence-in-chief suggests that her principal disability was one of communication. She said that it was difficult to know whether Mrs Castles understood the questions put to her. She simply answered yes or no in a soft voice. When asked for an example of this, she told me that she was unable to obtain from Mrs Castles a satisfactory answer when she asked her whether she wanted the hospital to resuscitate her in the event of a life-threatening incident. I mention in passing that I could well-understand a person, even without the disabilities attributed to Mrs Castles, hesitating over a straight answer to such a question.
The entry in the hospital nursing records made by the doctor on her visit to Mrs Castles on the morning of 29 September is in these terms, insofar as it deals with communication with the patient:
“Look depressed, not happy at all, speaking to her about relatives, seems to be distant from her relatives, all her sister & brother gone already.
Clinically very depressed lady.”
The doctor was pressed in cross-examination that this is not the sort of information which might be obtained from a semi-comatose and non-communicative patient. As best as I can decipher the doctor’s responses, she seemed to say that these notes reflected her impressions rather than a record of the information received.
Dr Chit-Jellinek visited Mrs Castles again at about 9 am on 30 September 2004, the date the instructions were given for the will a little less than two hours later. The doctor said that she entered the patient’s room and went out again because Mrs Castles appeared comatose. She said later that she did not wake Mrs Castles up and that she looked terribly ill. She called her name but Mrs Castles did not wake up. As I have mentioned, she made no entry in the hospital nursing notes of this visit.
The doctor provided two written reports as exhibits to her affidavit. The second, dated 2 September 2005, was apparently provided in response to the direct request of the solicitor for the caveatrix that she report her opinion as to the mental state of Mrs Castles on 30 September 2004. Her response was brief and I set it out in full.
“On 30th of September 2004 she was still in the hospital, with critically ill condition. She hardly got out from the bed and most of the time she was lying on the bed. Her mental status was nearly in semiconscious stage, but she could open her eye as a response to the question. She could barely talk and her voices were too soft and weak. She also had very severe hearing impairment and communication was very difficult. As I described previously in my report when she was critically ill and physically incapacitated, she developed confusion off and on during that time. In my opinion; it is very unlikely that Mrs Ivy Castles had the mental capacity to understand the nature, the importance, and the contents of the document namely the will, that she executed on that particular day which was on 30th September 2004.”
It will be immediately apparent that this is at variance to her description in the witness box of the comatose woman with whom she had had, on other occasions, difficulty in communication. When pressed in cross-examination, Dr Chit-Jellinek said that the first sentence only was a description of the condition of Mrs Castles on 30 September. The balance of the quoted passage dealt with the her condition about that time generally.
It is apparent from what I have written that, assuming, as I do, that both Mr Sussmilch and Ms Leatham and Dr Chit-Jellinek were speaking of the same person, one or more of these witnesses is mistaken in their recollection, exaggerating or just lying. My task is to determine this difficult question bearing always in mind where the ultimate burden of proof lies.
And so I look around to see in what direction independent and apparently reliable contemporaneous evidence points. I have already remarked upon the absence of the electrolytes test results and of the hospital records. At the very outset of this case I remarked to counsel upon the absence of any evidence as to Mrs Castles’ mental condition from the nurses and hospital staff who would have dealt with her on a day to day basis. The unexplained absence of this evidence represents the third unsatisfactory evidentiary aspect of this trial.
The significance of this absence appears from the affidavit of Mr Sussmilch where he says that, when he returned to the hospital for the execution of the will, he noticed that Mrs Castles appeared to be dozing. He continues:
“On our arrival at Benalla Hospital I entered the ward in which Mrs Castles was staying and saw that Mrs Castles appeared to be dozing. I then went out into the corridor and spoke to a nurse who identified himself to me as Mr Rudi Iro, the charge nurse. Mr Iro told me that Mrs Castles was easily tired and he volunteered that she was mentally with it. Mr Iro did request of me that I keep the visit as short as possible to avoid tiring Mrs Castles. I then went back to the ward with Mr Iro, Ms Leatham and Mrs Havlicek. Mr Iro walked around the bed to where Mrs Castles head was resting and woke her up by calling her name.”
The deponent, a lawyer, and those responsible for drafting this affidavit ought not to have included this hearsay evidence. Mr Iro was not called and no explanation for this was offered. But the case of the caveatrix is not altogether guiltless in this regard, although I accept in their case, this was in a non-responsive answer. In her answer as to the difficulties of knowing whether Mrs Castles understood what was told of her, Dr Chit-Jellinek added that “all the nursing staff [were] feeling that way”.
I will not act upon this hearsay in this case. The evidence does, however, suggest an unexplained reluctance on the part of the parties to put forward the best evidence.
In final address, counsel for the caveatrix submitted that I should infer from these deficiencies in the evidence that the missing material would not assist the propounder’s case. He contended that I should treat the hospital staff and records as evidence “in the camp” of the propounder, for the purposes of an O’Donnell v Reichard reference, since the hospital, as a residuary beneficiary, had an interest in the success of the propounder’s case. I am not at all confident that his analogy is a good one. The hospital records were available to the caveatrix as well as to the propounder. Counsel added, as a further response, that the caveatrix had placed medical evidence before the Court by filing an affidavit of Dr Chit-Jellinek. Counsel for the propounder took the position that, since the hospital records were available to both parties, I should draw no inference adverse to either party by reason of their absence from evidence. A little later, he adopted a slightly different position:
“...the only inference that I invite the court to draw is that there was nothing in the documents [the hospital records] to assist either party. In my view if there was it would have been produced and should have been produced and both parties had ample opportunity to do so.”
As to the first sentence, I am not prepared to accept that submission, flying as it does in the face of reality in a case such as this. Even if the hospital records contained nothing about Mrs Castles’ state of mind about the relevant time, this would be significant piece of evidence supporting the propounder. This latter submission, too, says nothing about the evidence of Mr Iro or other hospital staff members.
I wondered whether the propounder of a will occupies a position which requires greater candour than that of an ordinary adversary litigant. Counsel referred me to no authority on this point and I am aware of none. I will, in the circumstances, express no view on the point.
I will draw no inference adverse to either party from the evidentiary shortcomings to which I have referred. I will not act upon the statement attributed to Mr Iro.
I return to the conflict in the evidence. I have anxiously considered and reviewed the evidence to which I have referred and the other evidence in this case. On balance, I accept that of Mr Sussmilch and Ms Leatham. I reach this conclusion for the following reasons. They struck me as honest and reliable witnesses. The information which they obtained from Mrs Castles indicates that she was on 30 September 2004, able to communicate with them complex information and to do so accurately and that she knew what she was doing. As Dr Chit-Jellinek accepted, it is difficult to suppose that a patient in the condition she described could provide this information. Even making allowances for the fact that English is not her first language, the terms of Dr Chit-Jellinek’s reports are not consistent with her evidence in the witness box. Even this evidence tended to point to communication difficulties rather than to cognitive ones. The information in Dr Chit-Jellinek’s note of the visit of the day prior to 30 September 2004 is also not consistent with her evidence before me. I bear in mind that her oral evidence is that of a busy practitioner speaking of events some 18 months ago. She did not, however, have the benefit of referral to her own contemporaneous notes in giving that evidence.
The evidence of Mrs Casey and Mrs Bliss was of their aunt’s condition shortly before and after the relevant date. It is, however, related to that date by Dr Chit-Jellinek’s evidence that from 24 November to the date of the will, Mrs Castles’ condition was deteriorating. Even so, I fear that the understandable disappointment of the nieces, perhaps in the light of the doctor’s reports, has led their recollection of their aunt’s condition to become somewhat distorted.
I mention, too, lest it be thought I overlooked them, a number of subsidiary matters.
It was inappropriate for Mr Sussmilch to accept instructions to make a will in favour of the hospital of which he was a board member and vice president. This emboldened counsel for the caveatrix to advance a suggestion that there was here a suspicion that Mr Sussmilch had influenced the testatrix in deciding upon the terms of the will. I make no such finding. It was not alleged as a ground of objection and the evidence clearly shows that he did no such thing. Even if I rejected his evidence as to the manner of obtaining instructions, there is no affirmative evidence to support an allegation of influence.
There was a conflict between the subscribing witnesses as to how the will was read to the testatrix. I prefer the evidence of Ms Leatham and Mr Sussmilch as to this.
Mr Sussmilch was criticised for not questioning his client further to see what she knew as to the amount of her estate and as to the moral demands upon her bounty. He should have probed her understanding of these matters and of her ability to make a rational decision as to the disposition of her property. He should have brought in as a subscribing witness a person more independent than those who he chose. He should have had a medical practitioner present.[1] All of these things, it was submitted on behalf of the caveatrix, a competent practitioner taking instructions from an elderly and enfeebled testatrix should have done. It was said, too, that he was relatively inexperienced. These are all matters which cause me to look carefully upon his evidence and that which bears upon its accuracy. I am conscious of the fact that it is not his professional skill and care which is in issue here; it is the state of mind of his client.
[1]It may be that the hospital would not have permitted its staff to be put in this position, but there was no evidence about this.
Finally, I have not overlooked the appearance of the signatures of the deceased on the will. I accept the evidence that the distortion in the first signature is the result of the difficult placement of the paper on the hospital tray.
In conclusion, I find that on 30 September 2004 when she gave instructions and when she executed her will, Mrs Castles was frail and hard of hearing but that she had the mental capacity to make a will.
Accordingly, probate of her will will be granted.
I heard argument on the question of costs. In the event, it was not disputed that the propounder should have the usual costs order. The issue was whether the caveatrix should have her costs out of the estate, as her counsel contended, or whether she should bear her own costs.
To my mind, the caveatrix had reasonable grounds to suspect a want of testamentary capacity in her aunt. In these circumstances she was entitled to put the propounder to proof. In the event, she has been unsuccessful. She should, nevertheless, have her costs from the estate. She should have them on a solicitor client basis as is common in these circumstances.
I propose, therefore, the following orders:
(1)Probate of the last will of Ivy Maud Elizabeth Castles dated 30 September 2004 be granted to the executor identified therein, Gavin Douglas Harrison.
(2)The costs and expenses of the executor of and incident to the proof of the will be had and retained out of the estate.
(3)The costs of the defendant caveatrix be paid out of the estate, such costs to be taxed on a solicitor and client basis in default of agreement.
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