Hassold v Hassold
[2018] SASC 68
•29 May 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HASSOLD & ANOR v HASSOLD
[2018] SASC 68
Judgment of The Honourable Justice Nicholson
29 May 2018
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - PROOF IN SOLEMN FORM
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION WITH WILL ANNEXED
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - PARTICULAR TESTAMENTARY DISPOSITIONS - CONDITIONS AND GIFTS OVER
David Martin Hassold died in April 2013. At the date of his death, the Public Trustee had in its possession four documents, namely a will dated 21 June 1966 and three documents which are described as codicils to the will. The deceased had suffered with schizophrenia for most of his adult life.
The plaintiffs, who are the children of the deceased’s brother, seek orders propounding in solemn form the will of the deceased and granting letters of administration in favour of the plaintiffs with the will annexed. The plaintiffs further seek the determination of a question of construction with respect to conditions expressed in the will attaching to a gift and gift over.
In the event that probate were not to be granted, the deceased will have died intestate and his estate would likely devolve to the plaintiffs and the surviving children of the deceased’s half siblings, one of whom is the defendant. The defendant consented to the hearing and determination of the application in his absence. The other nieces and nephews of the deceased were made aware of the proceedings and took no steps to be involved nor to oppose the orders sought by the plaintiffs.
Held per Nicholson J (allowing the application):
1. While there is no direct evidence of due execution, the plaintiffs have established that the will was duly executed on the date it bears.
2. On the evidence before the Court and in the circumstances of this case generally, it is established to the requisite standard that the deceased had testamentary capacity as at the date of the will. However, it is not so established with respect to each of the purported codicil documents.
3. Orders made pronouncing for the force and validity of the will and against the force and validity of the three documents described as codicils.
4. The will is admitted to probate with letters of administration in favour of the plaintiffs annexed.
5. The conditions expressed in the will attaching to the gift to the deceased’s parents and the gift over to the plaintiffs are precatory only, intended as expressing a desire rather than the imposition of a binding legal obligation.
6. Costs of the parties to be paid out of the estate of the deceased on a solicitor-client basis.
Supreme Court Civil Rules 2006 (SA) r 205, r 206, referred to.
Thomas v Nash (2010) 107 SASR 309, considered.
HASSOLD & ANOR v HASSOLD
[2018] SASC 68Civil
NICHOLSON J.
Introduction
These reasons concern an application by Stephen Hassold and Julianne Wandel, the first and second plaintiffs, to propound in solemn form a will of the deceased, David Martin Hassold dated 21 June 1966; to obtain a grant of letters of administration with the will annexed; and in these events, to determine a question of construction of the will. The plaintiffs are a nephew and a niece of the deceased and the surviving beneficiaries named in the will. Notwithstanding that its validity as a last will and testament is to be determined, I will, throughout these reasons, refer to the propounded document of 21 June 1966 as “the will”.
The deceased had suffered with schizophrenia throughout his life. He did not marry nor did he have a domestic partner nor did he have any children. The deceased’s parents, Frederick and Margareta, both predeceased him. The deceased’s parents had another son, Theodore, who also predeceased the deceased. Theodore had two children, the nephew and niece of the deceased who are the two plaintiffs.
Prior to his marriage to Margareta, the deceased’s father had five other children from an earlier marriage. None of those half siblings survived the deceased. However, of the ten children of those half siblings, seven have survived the deceased, of which the defendant to these proceedings, Michael Hassold, is one. Of the seven surviving grandchildren deriving from the earlier marriage, three live in New Zealand,[1] two live in Melbourne and two, including the defendant, live in Adelaide.
[1] Whilst it is unnecessary to make findings I note that there is evidence to the effect that two of the ten grandchildren died in infancy and a another who had lived in New Zealand, Pauline, predeceased the deceased and left no issue.
Early in the proceedings, I made orders with the consent of the defendant, that the action was to be heard and determined in the absence of the filing of a defence and that the defendant was to be excused from further attendance.
In the event that probate were not to be granted, the deceased would have died intestate and, in accordance with Part 3A of the Administration and Probate Act 1919 (SA), it is likely that his estate would devolve equally to all of the deceased’s nine surviving nieces and nephews.
However, each of the seven deriving from the earlier marriage has been made aware of the existence of and nature of these proceedings and their right to intervene. Each has indicated to the Court that they have no interest in opposing the orders sought by the plaintiffs in this matter. In addition, a notice, pursuant to rule 205(8) of the Supreme Court Civil Rules 2006, in appropriate form, was provided to six of the seven (excluding the defendant) on a date in early March 2018. There has been no response to that notice by any of the recipients.
Whilst it is unnecessary for me to make a finding to this effect, in all the circumstances, each of the nieces and nephews who have knowingly taken no steps to be involved in these proceedings may be taken to be bound by any judgment I give in this matter. In any event, I am satisfied that it is appropriate to proceed to determine this application on, effectively, an ex parte basis.
The evidence
In support of the plaintiffs’ application, the Court had before it unchallenged oral evidence from the second plaintiff and unchallenged evidence in the form of the documentary evidence set out below.
The affidavit evidence
The plaintiffs read and relied on the following.
(i)a joint affidavit of the plaintiffs sworn by the first plaintiff on 3 December 2015 and by the second plaintiff on 23 November 2015 (FDN 2[2]);
[2] An acronym employed by the Registry. Documents are identified by their filed document number.
(ii)an affidavit of Margaret Hassold, the widow of Theodore (the deceased’s brother) affirmed 6 July 2015 (FDN 3);
(iii)an affidavit of Owen Altus, a named executor in the will,[3] sworn 6 July 2015 (FDN 4);
(iv)an affidavit of Julie Anita Van Der Velde, a solicitor acting for the plaintiffs, sworn 7 December 2015 (FDN 5);
(v)an affidavit of William Steele Esau, a solicitor acting on behalf of the plaintiffs, sworn 27 October 2016 (FDN 9);
(vi)an affidavit of Raj Kishore Sharma, a general practitioner who attended on the deceased periodically from about 1987 until sometime in 2014, affirmed 16 May 2017 (FDN 10);
(vii)an affidavit of Robert John Niehus, parish priest at St Bede’s Anglican Church Sempahore between 1981 and 1987, during which period he knew the deceased as a parishioner, sworn 7 March 2017 (FDN 11);
(viii)an affidavit of Helen Frances Tunney, a parishioner at St Bede’s Anglican Church during the period 1981 to 1987, affirmed 16 March 2017 (FDN 12);
(ix)an affidavit of Sharon O’Reilly, an employee of the solicitors for the plaintiffs, sworn 16 February 2018 (FDN 13);
(x)an affidavit of Marianna Hill Danby, a solicitor for the plaintiffs, affirmed 19 February 2018 (FDN 14);
(xi)an affidavit of Sarah Kathleen Annicchiarico, a solicitor for the plaintiffs, sworn 20 February 2018 (FDN 15); and
(xii)the second affidavit of Marianna Hill Danby affirmed 22 February 2018 (FDN 16).
[3] Mr Altus deposes to the fact that he is a named executor in the will which names himself and a Mr Louis Paech as executors, that Mr Paech is now deceased, that Mr Altus does not seek a grant of probate and that Mr Altus at no time has intermeddled in the estate.
The oral evidence of Julianne Wandel
The second plaintiff was an impressive witness who plainly was doing her best to honestly and reliably explain that which she knew of her uncle, the deceased, and her understanding of the extent and nature of the various relationships the deceased had with various members of the family, including all of the nieces and nephews referred to earlier. Family histories extending back for 40 or 50 years or so can be difficult for a single member of the family to accurately recall and recite. Nevertheless, I accept Ms Wandel’s evidence as generally reliable. The matters canvassed by her evidence included the following.
(i)Ms Wandel gave evidence as to the family tree as best she understood it. She is now in her mid-fifties and there is a substantial age gap between she and her brother, the first plaintiff, and the first tranche of nieces and nephews that issued from the children of her grandfather, Frederick, and his first wife.
(ii)Ms Wandel described herself and her brother as having a close and caring relationship with the deceased. As children and young adults she and her brother spent significant periods of time with the deceased at family gatherings and generally. As an adult the first plaintiff has lived in Adelaide but Ms Wandel has lived for decades now in the South Australian country. Nevertheless, both maintained close and regular contact with the deceased until his death.
(iii)Ms Wandel also gave evidence without any criticism whatsoever, and to the limited extent of which she was aware, to the effect that the other Adelaide, New Zealand and Melbourne nieces and nephews had had little contact with the deceased. This no doubt was a function of physical distance and generational distance, together with the fact that the respective parents of these nieces and nephews were born to Frederick’s first wife and not the deceased’s mother.
(iv)Ms Wandel provided a potted history of the deceased’s living arrangements. The deceased was born in 1925. In 1953, he spent some months in Northfield Mental Hospital. After discharge, he must have visited New Zealand because he spent November 1957 to April 1959 in Sunnyside Hospital Christchurch. From 1959, the deceased lived with his parents at the family Glenside house until his parents died. In April 1974, very soon after his mother’s death, he was admitted to the Eastwood Hospital having had some form of mental illness relapse or breakdown. He was at some later time discharged and went to live in an assisted living environment in Semaphore where he stayed for many years. The residential care facility in Semaphore was, in effect, a boarding house where the deceased had his own room and meals were provided. It was not an establishment run by any mental health authority. At some stage the facility was closed and the deceased moved to another residential care facility on the same street. Not long before his death, the deceased had a stroke and the first plaintiff organised for the deceased to move to another residential care facility, Anaster, where he was able to obtain the necessary nursing care. It was at the Anaster facility that the deceased died.
(v)Throughout the decades that the deceased was not living in the Glenside home, it remained empty except during various periods from time to time when members of the extended family lived there. The property has been vacant since the death of the deceased and is in an extremely run down condition.
(vi)Ms Wandel described the deceased as being “quite a functioning person” when he was on his medication. However when he was not on his medication his imagination would take over and “there were some quite interesting stories”. However, he was still quite able to communicate and was very sociable. He enjoyed the times when the plaintiffs visited him. Ms Wandel was asked how he presented when she perceived him to be in the grip of his schizophrenia. She said this.
It was more the verbal, the stories he’d come out with, imagination, all sorts of interesting things. Might be some space science fiction type stories, it was all quite well structured. It could ... some of what I’ve written - is - primary students have written, but it was still very social, prepared to talk. It was just the topics were a little bit out there.
Ms Wandel gave confident and cogent evidence that she recognised the signature on the will as that of the deceased. She described clauses 6 and 7 of the will as “very typical of a lot of his writing and talking”. She described the deceased as a “very, very religious man”. He had been brought up in a very religious household with his father, Frederick, having been a pioneer Lutheran pastor.
Unless otherwise indicated, I am satisfied that the findings of fact earlier set out and that follow have been established by the unchallenged affidavit and oral evidence.
Further background
The deceased, late of Anaster Residential Care Eastwood, died on 6 April 2013 aged 87. The deceased’s estate had been administered by the Public Trustee from about 1974 until the date of death, although a formal appointment as administrator by way of an order of the Guardianship Board was not made until some time in 1999.[4]
[4] In their written submissions and in accordance with the affidavit evidence, the plaintiffs provide this explanation, the reliability of which I have no reason to doubt. “It appears that, upon being detained in 1974, the Public Trustee had custody and administration of the deceased’s estate as if it had been appointed a committee under the Mental Health Act 1935 (SA): s.98. Upon the coming into force of the Mental Health Act 1977 (SA), subs.4(3) of that Act deemed the Public Trustee to be administrator of the deceased’s estate. There is no evidence that this appointment ever ceased; it was “reviewed” for the first time in 1987…”.
At the date of the deceased’s death, the Public Trustee had in its possession four documents, apparently of a testamentary nature, namely the will and three documents described as “codicils”, one dated 10 May 1987 (the first codicil), one dated 22 October 1987 (the second codicil) and one dated 5 March 1988 (the third codicil).
As far as the will is concerned, an original typed document with affixed original signatures is relied on and was tendered as Exhibit P1. As far as the first codicil is concerned, an apparent original typed document with apparent original signatures and handwritten date of 10 May 1987 affixed is relied on and was tendered as Exhibit P2. As far as the second codicil is concerned, an apparent original handwritten document with apparent original signatures and handwritten date of 22 October 1987 affixed is relied on and was tendered as Exhibit P3. As far as the third codicil is concerned, an apparent photocopy of a typed document dated 5 March 1988 with signatures affixed is relied on and was tendered as Exhibit P4. Notwithstanding the making of what I am satisfied were thorough and diligent searches and enquiries, the plaintiffs have been unable to locate the original of Exhibit P4.
As recorded in the evidence, the deceased suffered from schizophrenia for most of his life. He was detained as a result of mental illness in 1953 in Adelaide and between 1957 and 1959 in New Zealand. Following his return to Adelaide in 1959, he lived with his parents in a house in the Adelaide suburb of Glenside. That house was subsequently left to the deceased following the death of his parents. During that period the deceased lived what has been described in the affidavit evidence as a “normal life”. However, in 1974, very soon after the death of his mother,[5] the deceased evidently suffered a relapse with florid symptoms because he was again detained due to mental illness. The detention was in Adelaide and was for an unknown period of time. It was at this time, as earlier noted, that the deceased’s estate came to be administered or managed by the Public Trustee.
[5] The deceased’s father had died in 1970.
At the date of the deceased’s death, his estate comprised the Glenside property valued at approximately $600,000 and cash of approximately $35,000, together with some personal possessions including a quantity of the deceased’s own religious music compositions and papers.
Amongst the documents held by the Public Trustee is a handwritten letter apparently from the deceased, addressed to a Mr Graham McNeil of the Public Trustee and dated 16 March 1987. In this letter there is a reference to a last will and testament of David Hassold dated 25 July 1981. If such a 1981 will had been validly made, it may have expressly or impliedly revoked the will now under consideration. However, no such 1981 will has been found and there is no other evidence of it ever having existed. On the basis of the affidavit evidence before me,[6] I am satisfied that thorough and diligent searches and enquiries have been undertaken in an effort to find any such will but without success. In the circumstances, no further consideration need be given to this reference.
[6] Principally the Esau affidavit at paragraphs [23]-[30] and the contents of the deed packet collected from the Public Trustee by the solicitors for the plaintiff, see generally the Annicchiarico affidavit at paragraphs [2]-[7].
The will – should it be propounded as a valid testamentary instrument?
Two primary questions arise: first, have the plaintiffs proved due execution of the will; and second, if so, did the deceased have testamentary capacity at the time he executed the will?
The first question – due execution
In seeking to propound the will, the plaintiffs are obliged to place before the Court all potential testamentary documents.[7] I am satisfied, on the affidavit evidence, that by tendering the will and the three codicils, the plaintiffs have attended to this requirement.
[7] Re Grey Smith [1978] VR 596 at 603-605.
The three codicils are of some potential significance in that the terms in which each was written will have some bearing on an assessment of the deceased’s mental state at least as at the respective dates of the codicils. As potential dispositive instruments, their effect is relatively minor. They are devoted in large part to an expression of the deceased’s religious and musical beliefs, concerns and aspirations. They are written in quite florid language which, to the lay person, would suggest an irrational, perhaps delusional, state of mind.
As far as any dispositions are concerned, they principally canvass the question of the deceased’s musical papers. The second codicil appears to make a gift of money held by the Public Trustee to the plaintiffs after payment of $400 to one of the named executors, Mr Altus.
The will has all the hallmarks of being professionally drawn. It does not appear to be a pro forma type document such as might have been obtained from a proprietary will kit and such is not surprising given that it was drawn up in 1966. It commences in a conventional manner.
THIS IS THE LAST WILL AND TESTAMENT of Me DAVID MARTIN HASSOLD or DAVID HASSOLD, G., of […] Street, Glenside in the State of South Australia, Architectural Director, who was born on the 5th day of December, 1925 at Eudunda in the said State.
Thereafter follows a revocation clause in conventional and professionally drawn terms and an appointment of executors in conventional and professionally drawn terms. The executors appointed under the will are a Louis Paech, who according to the evidence is now deceased, and an Owen Altus, who according to the evidence has renounced.
The primary dispositive provisions are in the following terms.
3.I DEVISE AND BEQUEATH all my real and personal estate to my Trustees UPON TRUST to receive possess hold and keep intact according to the directions hereinafter appearing.
4.MY TRUSTEES shall out of my moneys forming part of my estate pay my funeral and testamentary expenses and debts and the estate probate and succession duties payable in respect of all benefits passing under or by virtue of this my Will and hold the clear residue of my estate intact and IN TRUST for my parents PASTOR AND MRS. FREDERICK HASSOLD, TH. D., or the survivor of them with the hope but without creating any legal obligation that my family shall benefit by the use of my home and its furnishings and its motor car either personally if desired or as a special trust to honor the cause for which I lived, but if both of my said parents shall have died in my lifetime then I leave the residue of my estate which is my home at […] Glenside and the contents of it and its car, provided I get married, then to my wife and my offspring, or if not, I bequeath the said property to both my niece Julianne Christine Hassold and my nephew Stephen Lionel Hassold of […] Kapunda, South Australia for them on the same conditions especially that the home be kept intact, and all other residue of my estate I leave to be held and received by the said LOUIS PAECH without creating any legal obligation to be shared and apportioned to “my Company or Family of Generalship” Which I name my sons and daughters according to The Will of a Committee called by “AELOHEEM” WHICH SHALL and WILL share and apportion most verily.
Clause 5 comprises a request for the deceased’s writings and music “written and composed by my hand and all things copyrighted for myself” to be stored in the archives of the Evangelical Lutheran Church of Australia and to be available to “HIGHER AUTHORITIES of The Conservative Lutherans” if necessary. Clauses 6 and 7 are declarations by the deceased as to his conduct and behaviour as a loyal and faithful Evangelical Lutheran throughout his life and as to his religious beliefs. The statements in these two clauses are elaborate and to many will make little sense, although that is not to say that they would not make sense to some who might be sympathetic with the expressed beliefs and descriptions of religious experiences contained therein.
The will concludes with formal attestation provisions in conventional form.
IN WITNESS whereof I have hereunto set my hand to this page of this my last Will and Testament this twenty first day of June in the year of OUR LORD One Thousand Nine Hundred and Sixty Six.
SIGNED by The Testator as and for his last Will and Testament in the presence of us both present at the same time who at his request in his presence and in the presence of each other have hereunto subscribed our names as witnesses:-
At the bottom of the will is recorded a handwritten signature that reads David M Hassold as testator and handwritten signatures of two purported witnesses, one described as a “Trust Officer Adelaide” and one described as a “Stenographer Adelaide”.
The format and language used in the will is, in large part, in stark contrast to that of each of the three codicils. It can be inferred that, with respect to the will, the deceased had some professional or, at least, knowledgeable assistance by a person to whom he gave instructions.
Notwithstanding the presence of handwritten signatures apparently affixed by the deceased and two witnesses, the plaintiffs concede a lack of evidence of due execution of the will. They have been unable to prove the identity of the attesting witnesses. Not having access to the witnesses, the plaintiffs are unable to prove by direct evidence that the apparent signature of the deceased is indeed that of the deceased and was affixed in the presence of the two witnesses in the circumstances as provided for in the attestation clause as, ordinarily, required for a due and effective execution of a will.[8]
[8] Leaving aside the scope for an informal will to be proved in accordance with subsection 12(2) of the Wills Act 1936.
However, the inability to directly prove due execution of the will is not necessarily fatal to the plaintiffs. In appropriate circumstances a presumption of due execution will arise. The authors of Executors, Administrators and Probate offer the following summary of the position.[9]
[9] Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (20th ed, 2016) at [12-31].
There is no absolute necessity for positive evidence of due execution in order to enable the court to pronounce for a will. The court will take into account the circumstances and judge from them collectively whether or not there was due execution.
. . . .
The presumption that everything was properly done (omnia rite et solemniter esse acta), arises whenever a will, regular on the face of it and apparently duly executed, is before the court, and amounts to an inference, in the absence of evidence to the contrary, that the requirements of the statute have been duly complied with.
Probate judges have been long accustomed to give great weight to the presumption of due execution arising from the regularity, ex facie, of the testamentary paper produced where no suspicion of fraud has occurred.
. . . .
The presumption applies with more or less force according to the circumstances of each case. When there is a regular attestation clause, with the names of the witnesses appended thereto, leading to the conclusion that the will was duly executed by a person who knew the requirements of the Wills Act, that principle applies directly, for the court will assume that no one would have signed his name to the statement contained in such clause unless it were true. … In such circumstances, “the strongest evidence” will be required to overturn the presumption.
[footnotes omitted]
In this case, there is no evidence that would raise a suspicion of fraud or undue influence. There is a regular attestation clause with the signatures of witnesses appended and no evidence that would serve to contradict the presumption thereby arising. In further support of or in addition to the presumption are the facts that:
(1)the document has all the hallmarks of a professionally prepared will;
(2)the document is signed by the deceased;
(3)the three signatures appear to be handwritten in different writings;
(4)there is a formal attestation clause in conventional terms; and
(5)the document has been kept in the possession of the Public Trustee for many years.[10]
[10] See for example In Re Griffiths (Deceased) [1955] NZLR 127 at 130; Re Denning (Deceased) [1958] 2 All ER 1 at 2.
As far as the indicator in paragraph (2) above is concerned, oral evidence of the second plaintiff, which I accept, was to the effect that she had had an ongoing and reasonably close relationship with the deceased, that she was familiar with his handwriting and signature and that the signature of the testator on the will appeared to her to be that of the deceased.
I am satisfied that the will was duly executed by the deceased on the date it bears, 21 June 1966, and that in the absence of any subsequent act of revocation, about which there is no evidence and subject to the question of the deceased’s testamentary capacity as at the date of execution, the will should be admitted to probate.
The second question – testamentary capacity
The fact that I am satisfied that there was due execution of the will gives rise to a presumption of testamentary capacity.[11] In Thomas v Nash,[12] Doyle CJ provided the following summary of the law relevant to an assessment of testamentary capacity.[13]
[11] See generally Symes v Green (1859) 1 Sw&Tr 401 at 402 (Cresswell J).
[12] [2010] SASC 153; (2010) 107 SASR 309.
[13] At [70]-[77].
The identification of the issues in a case like this will always turn on the facts of the case. General propositions based on particular circumstances must be treated with care. On the other hand, I must follow the accepted authorities in this area.
In Banks v Goodfellow (1870) LR 5 QB 549 Cockburn CJ, delivering the judgment of the court, said (at 565):
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
This statement has often been cited with approval, although the point has been made that the effect of the concluding part is not altogether clear. The case before the court was one in which the testator had suffered mental illness. As to that, Cockburn CJ said (at 565-566):
If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.”
He spoke to the same effect at 569-570.
In Bailey v Bailey (1924) 34 CLR 558, Isaacs J formulated a number of “working propositions” drawn from the case law, including Banks v Goodfellow. The other two members of the majority (Gavan Duffy J and Rich J) agreed with the reasons of Isaacs J. These propositions (at 570-572) are, relevantly, as follows:
(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument …
(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence …
(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case …
…
(5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments …
(6) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances …
(7) As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries … ; (b) the exclusion of persons naturally having a claim upon the testator … ; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit …
…
(9) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property …
(10) The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue …
(11) While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions …
…
I treat these passages as binding authority.
In Timbury v Coffee (1941) 66 CLR 277, Dixon J referred with approval to three passages from reported cases (at 283):
“Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner” (per Hood J, In the Will of Wilson (1897) 23 VLR 197, at p 199). “If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it” (per Cresswell J, Symes v Green (1859) 1 Sw & Tr 401, at p 402) — Cf per Holroyd J, In the Will of Key (1892) 18 VLR 640. “In the end the tribunal — the court or jury — must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v Tebbitt (1867) LR 1 P & D 398, at p 436; Sutton v Sadler (1857) 3 CB(NS) 87, at p 97)” (per Rich J, Landers v Landers (1914) 19 CLR 222, at pp 235, 236).
In Worth v Clasohm (1952) 86 CLR 439, the court (Dixon CJ, Webb J and Kitto J) made the following statement in relation to the standard of proof (at 453):
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution …
Finally, I refer to the decision of the court (Williams, Fullagar and Kitto JJ) in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 where the court said (at 180):
The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given …
In relation to the question of testamentary capacity, issues for me are whether Mrs Nash knew the effect of the will, whether she knew the nature and extent of her estate, whether she was aware of those who might be thought to have a claim upon her bounty, and the basis for such a claim, and whether she was in a position to evaluate those claims and make a decision. Her memory is relevant because she had to have the ability to remember these matters. Her state of health is relevant because her physical and mental health might affect her testamentary capacity.
As to these matters, it is for the plaintiffs to establish testamentary capacity, and to do so on the balance of probabilities. The burden of proof rests on them throughout. Particular facts or matters might, because of their nature, call for particular scrutiny or particular care before I find that the burden of proof is discharged.
The plaintiffs bear the onus of demonstrating that as at the date of the will, that is, 21 June 1966, the deceased had testamentary capacity. Notwithstanding the relatively limited nature of the evidence available to the Court and notwithstanding that it is to be accepted that the deceased suffered with schizophrenia throughout his adult life including at the time of execution of the will, I am satisfied that the deceased did have testamentary capacity at the relevant time. The following matters support that finding.
(i)There is the presumption that arises from due execution. However, as counsel for the plaintiffs properly conceded, the strength of that presumption will itself depend upon the strength of the evidence bearing on due execution. In this case the presumption of capacity itself relies on a presumption of due execution and as such may be seen as weakened thereby.
(ii)At the time of execution, the deceased had been discharged from the care of the New Zealand Public Trustee and had returned to Adelaide where he was living with his parents at Glenside.
(iii)Following his return to Adelaide the deceased had been examined by a Dr Dibden, a psychiatrist, who expressed the view that he was fit to manage his own affairs, albeit, that opinion was expressed as at 16 June 1959.
(iv)It was not until 1974, some eight years after the date of the will, that the deceased went back into hospital and had the management of his financial affairs taken over by the Public Trustee.
(v)There is the evidence from the second plaintiff to the effect, and the general experience of the Court with respect to schizophrenia generally supports, that whilst the deceased remained on his medication he behaved more rationally and his delusional behaviour and other symptoms were far less florid. In addition, the deceased was to all intents and purposes successfully residing at home and not institutionalised and living what Ms Wandel described as a “normal life”.
(vi)The will, whilst containing clauses 6 and 7 which are apparently a product of the deceased’s deep religious convictions and spiritual experiences and which might be seen as at the least eccentric by others, is in all important respects rational on its face. It is relatively clearly drawn and in conventional terms. It is not inofficious. It leaves the deceased’s estate first to his parents and then in the event of their deaths to the niece and nephew of his full brother. These are the niece and nephew with respect to which the deceased throughout his adult life had the closest and most enduring connection. The testamentary wishes of the deceased, as expressed in the will, are, on the evidence before the Court, plainly those which one would expect this deceased, if thinking rationally, to make.
(vii)The fact that there is no challenge to the will by any of the other more distant nieces and nephews is supportive of the evidence of Ms Wandel as to the nature of the relationship between the deceased with her and her brother, the first plaintiff, as compared with the nature of the relationship the deceased may have had with any of the other more distant nieces and nephews.
I accept the following written submission put in conclusion on behalf of the plaintiffs.
There is nothing to suggest that the first three elements of [the] test outlined in Banks v Goodfellow are not satisfied at the time of making the Will. Judicial notice may be taken of the fact that a symptom of schizophrenia is the suffering of delusions, often of a persecutory nature. There is nothing to suggest that the Deceased was suffered from any delusion at the time of making the Will. More importantly, there is nothing to suggest that any delusion had effect upon the Will or any of its dispositions. The Will makes provision in the manner that would ordinarily be expected of a person in the position of the Deceased.
[footnotes and citations omitted]
In terms of proof positive that, as at 21 June 1966, the deceased had testamentary capacity, the case may be regarded as not a strong one. However, the plaintiffs do not need to establish a strong case, only an adequate case. That is, the plaintiffs are obliged to leave the Court with an actual persuasion, on the balance of probabilities, of the fact of testamentary capacity at the relevant time. On the evidence before the Court and in the circumstances of this case generally, I am so persuaded.
Without staying to discuss the matter at any length, I indicate that I am of a different view with respect to the three “codicil” documents. They achieve very little of substance by way of testamentary disposition. They are lengthy, handwritten and consist almost entirely of obscure, florid, likely delusional, language. They also were all executed after the deceased had been admitted to the Eastwood Hospital pursuant to the Mental Health Act provisions and whilst the deceased’s affairs remained under management by the Public Trustee.
Again, I agree with the following written submission put on behalf of the plaintiffs.
On the whole of the evidence, the terms of the non-dispositive clauses of the codicils are so extreme that it would be open for the Court to conclude that, in the absence of positive evidence, it could not be satisfied of the capacity at the relevant time.
Grant of letters of administration
The evidence establishes that one of the named executors in the will, Mr Paech, has died and that the second named executor in the will, Mr Altus, has renounced. In these circumstances, the will should be admitted to probate but with letters of administration in favour of the plaintiffs annexed.
A question of construction
Whilst not common, it is open to the Court to resolve a question of construction together with whether or not a will should be admitted to probate in solemn form in the same proceedings.[14]
[14] See for example Fielder v Burgess [2014] SASC 98.
In the will the estate is left to the deceased’s parents but, in the event that they were to predecease the deceased, a major component of the estate, including the Glenside house is left to the first and second plaintiffs. However, the gift to the parents was expressed to be qualified in this way.
… with the hope but without creating any legal obligation that my family shall benefit by the use of my home and its furnishings and its motor car either personally if desired or as a special trust to honor the cause for which I lived.
Further, the gift over to the plaintiffs was expressed in these terms.
… if both of my said parents shall have died in my lifetime then I leave the residue of my estate which is my home at […] Glenside and the contents of it and its car, provided I get married, then to my wife and my offspring, or if not, I bequeath the said property to both my niece Julianne Christine Hassold and my nephew Stephen Lionel Hassold […] for them on the same conditions especially that the home be kept intact, …
The plaintiffs submit that the conditions attaching to the gift to the deceased’s parents and the gift over to the plaintiffs should be regarded as precatory only, that is, expressing a mere desire on the part of the deceased, not an intention to create a binding obligation or trust.
The three considerations relevant to the resolution of this question concern the subject of the alleged trust, the object of the alleged trust and finally the words in question. Ultimately, the question to be decided is whether the words in question are clearly mandatory or whether they only impose a moral obligation.[15] In this case, the subject matter of the trust would appear to be “my home at … Glenside and the contents of it and its car” which seem to be clear enough.[16] Further, the intended beneficiaries of the trust, the plaintiffs (as events have turned out) is also clear enough. However, as far as the language is concerned I am quite persuaded that it is of a precatory nature only. It expresses a desire but no more and certainly not a binding obligation. The desire made some sense in the event that the property was to devolve on the parents; it makes little sense in the context of the property devolving on the plaintiffs. It is simply not practical and indeed not possible for the run down Glenside house to be kept in a sufficient condition and maintained to the benefit, indefinitely, for the deceased’s “family”. This can only have been, as the language itself strongly indicates, intended as a desire but not as the imposition of a binding legal obligation.
[15] See generally Strickland v Strickland (1907) 7 SR (NSW) 657 at 660 (Simpson CJ in Eq), Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29 at 31-32.
[16] And whether or not any car is in existence.
At the date of death, the deceased was possessed of a sum of money which was in the hands of and being managed by the Public Trustee. It would seem clear enough, according to the terms of the will and in the circumstances of the deceased’s parents predeceasing him and his not having married or had children, that this money was to pass as part of the residue to Mr Louis Paech, again subject to precatory language. As earlier indicated, Mr Paech has died and ordinarily that gift would fail and be dealt with upon an intestacy to that extent. However, I have an understanding of the amount of work that has been performed by the plaintiffs’ legal advisors to this point. The practical reality is that such funds as were in the estate as at the date of death will likely be substantially, if not entirely, exhausted in legal costs thus diminishing, perhaps eliminating, any such intestate residue.
Conclusion
For the foregoing reasons, I make the following orders.
1.The Court pronounce for the force and validity of the last will and testament of David Martin Hassold, formerly of … Glenside, South Australia but late of Anaster Residential Care, 47 Glen Osmond Road, Eastwood, South Australia deceased, (“the Deceased”) being the document dated 21 June 1966 admitted into evidence as Exhibit P1 (“the Will”).
2.The Court pronounce against the force and validity of a document purporting to be a codicil to the Will of the Deceased, being a document dated 10 May 1987 admitted into evidence as Exhibit P2.
3.The Court pronounce against the force and validity of a document purporting to be a codicil to the Will of the Deceased, being a document dated 22 October 1987 admitted into evidence as Exhibit P3.
4.The Court pronounce against the force and validity of a document purporting to be a codicil to the Will of the Deceased, being a document dated 5 March 1988, a copy of which was admitted into evidence as Exhibit P4.
5.There be a grant of letters of administration with the Will annexed to the Plaintiffs.
6.The determination without administration pursuant to r 206 that, on the proper construction of the Will of the Deceased, the expression that the gift to the Plaintiffs of the property owned by the deceased at … Glenside was to be “on the same conditions especially that the home be kept intact” was not a binding condition or direction in respect of the gift, but precatory only.
7.The costs of the parties be paid out of the estate of the Deceased on a solicitor-client basis, such costs to be adjudicated or agreed.
0
6
0