Hookway v Hookway
[2016] TASSC 28
•10 June 2016
[2016] TASSC 28
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Hookway v Hookway [2016] TASSC 28 |
| PARTIES: | HOOKWAY, Tamzin Peta |
| v | |
| HOOKWAY, Stirling Mathew | |
| HOOKWAY, Stirling Mathew v HOOKWAY, Tamzin Peta | |
| HOOKWAY, Tamzin Peta v HOOKWAY, Stirling Mathew | |
| FILE NOS: | 2014/2015, 675/2014, 169/2015 |
| DELIVERED ON: | 10 June 2016 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 9, 10, 11, 12, 18, 19 February and 20, 21 April 2016 |
| JUDGMENT OF: | Estcourt J |
| CATCHWORDS: |
Succession – The making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence – Will executed day before death – Rule in Parker v Felgate – Instructions for preparation of will not followed by solicitor.
Aust Dig Succession [1007]
Succession – The making of a will – Testamentary instruments – Knowledge and approval of contents – Distinct concept from testamentary capacity and understanding will prepared on earlier instructions.
Aust Dig Succession [1016]
Parker v Felgate (1883) LR 8 PD 171; Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786; Banks v
Goodfellow (1870) LR QB 549; Howroyd v Howroyd [2011] TASSC 73, applied.
Virginie-Pitel v Campbell [2010] NSWSC 1440; Bailey v Bailey (1924) 34 CLR 558; Lacerenza v Veronica Maria Calautti as Executor of the Estate of Anna Lacerenza (Dec) [2005] WASC 46; Landers v Landers (1914) 19 CLR 222; Harrison v Petersen [2000] QSC 415; Perrins v Holland [2011] Ch 270; Dickman v Holley; Estate of Simpson [2013] NSWSC 18; Bramston v Morris; Estate of Murray BC9303644 (unreported Supreme Court of NSW Probate Division 20 August 1993); Mohan v Broughton [1899] P 211; Brisbane South Regional Hospital v Taylor (1996) 186 CLR 541; Romascu v Manolache [2011] NSWSC 1362; Veall v Veall [2015] VSCA 60, considered.
REPRESENTATION:
Counsel:
Plaintiff: S B McElwaine SC Defendant: B R McTaggart SC Director of Public Prosecutions As Litigation Guardian: P Turner
Solicitors:
Plaintiff: Dobson Mitchell Allport Defendant: Mills Oakley Director of Public Prosecutions As Litigation Guardian: Office of the Solicitor-General
| Judgment Number: | [2016] TASSC 28 |
| Number of paragraphs: | 337 |
Serial No 28/2016
File No 2014/2015,
675/2014, 169/2015
TAMZIN PETA HOOKWAY v STIRLING MATTHEW HOOKWAY STIRLING MATTHEW HOOKWAY v TAMZIN PETA HOOKWAY TAMZIN PETA HOOKWAY v STIRLING MATTHEW HOOKWAY
| REASONS FOR JUDGMENT | ESTCOURT J 10 June 2016 |
| The proceedings |
1 The late Peter Hookway (variously referred to hereinafter as "the testator" or "father") executed a last will and testament on 13 June 2006 ("the June will"). On 23 July 2006 he revoked the June will and executed a new will ("the July will"). He died shortly after midnight that night. That is to say, he died on 24 July 2006.
2 By the June will, relevantly, the testator appointed his daughter, Tamzin Peta Hookway (with no disrespect, referred to hereinafter simply as "Tamzin") and his son Stirling Matthew Hookway (with no disrespect, referred to hereinafter simply as "Stirling") as executors and trustees of his will, and after making numerous specific bequests the testator gave devised and bequeathed the residue of his estate to Tamzin and Stirling in equal shares. Stirling admits that the testator had the necessary testamentary capacity when he executed the June will. That will is attached to these reasons as Attachment A.
3 By the July will, relevantly, the testator again appointed Tamzin and Stirling as executors and trustees of the will, but added two additional executors and trustees, namely Russell Hookway and Maxwell Simons.
4 By the July will the testator again made a number of specific bequests and again left the residue of his estate to Tamzin and Stirling in equal shares, but by cl 11 of the will he devised his land at Cambridge in Tasmania comprised in Certificates of Title 146586 Folios 3 and 6 and Volume 250819 Folio 1 (specified in the clause as "the Trust Allocation"), to his executors and trustees on the trusts he set out in cls 12 and 13 of the will ("the Testamentary Trust"). The beneficiaries of those trusts were named as his grandchildren Madeleine Peta Hookway, Monique Madeleine Hookway and Damien Harold Hookway, and any other grandchildren born before the termination of the trust, and any child or remoter issue of any grandchild. The July will is attached to these reasons as Attachment B.
5 On 7 September 2006 probate of the July will in common form was granted to all four of the appointed executors and trustees. Both Russell Hookway and Maxwell Simons subsequently retired as executors and trustees of the July will with effect from 18 December 2008.
6 In proceeding number M311/2006 brought by the testator's widow, Renate Reinisch, pursuant to the Testators Family Maintenance Act 1912, this Court made an order that further provision be made for her from the residuary estate in the sum of $1,800,000.
7 In proceeding number 675/2014 Stirling sought an order from this Court for the removal of Tamzin as a trustee of the Testamentary Trust, and an order that Russell Hookway be appointed in her place. By a cross-application in that proceeding Tamzin claimed that neither she nor Stirling should be trustees, and she sought an order appointing Mr Roger McBain, or some other fit and proper person, as the sole trustee in lieu of herself and Stirling.
2 No 28/2016
8 In action number 169/2015 Tamzin sought an order that the grant of probate on 7 September 2006 to Stirling should be revoked and letters of administration, with the July will annexed, be granted to Roger McBain or some other fit and proper person in lieu of the grant to herself and Stirling.
9 In action number 2014/2015 Tamzin, as plaintiff, claims as against Stirling, as defendant, that their father lacked testamentary capacity when he made the July will, and that in consequence this Court ought to revoke the grant of probate in respect of it. Tamzin seeks revocation of the grant of probate made by this Court on 7 September 2006, and an order that there be a grant of probate in solemn form or, alternatively, that there be a grant of letters of administration with the will annexed, of the June will, and that an independent person or corporation determined by this Court be appointed trustee and executor of the June will.
10 Roger McBain is no longer available to be appointed as an executor or trustee. However, upon the commencement of the trial of proceeding number 675/2014 and action number 169/2015, which were to be heard together with and at the same time as action number 2014/2015, Stirling advised the Court that he would agree to the appointment of an independent trustee company as executor of the July will should it be held to be valid, and as trustee of the Testamentary Trust should the will survive the challenge to the testator's testamentary capacity raised by action number 2014/2015.
11 It follows that it is only action number 2014/2015 with which I am presently concerned.
| The issues |
12 It is unnecessary to set out the pleadings in the action. The central and determinative issues they raise are, in a logical order:
(a)
Is Tamzin now precluded by acquiescence and affirmation, delay and/or resultant prejudice to Stirling or the estate from applying to have the grant of probate of the July will revoked?
(b)
If not, is there is evidence before the Court to incite a suspicion that the testator did not have testamentary capacity to make the July will?
(c)
If so, has Stirling proved affirmatively that the testator had testamentary capacity to make the July will and/or knew and approved of its contents?
(d) If not, does this case engage the rule in Parker v Felgate (1883) LR 8 PD 171?
The evidence
13 The trial of the action proceeded by way of evidence on affidavit.
14 The first witness called was Tamzin. Her counsel, Mr McElwaine SC, read four affidavits sworn by her. They were affidavits dated 11 March 2015, 14 December 2015, 17 December 2015 and 4 February 2016. No additional evidence-in-chief was led orally, and Tamzin was submitted for cross- examination by Stirling's counsel, Mr McTaggart SC.
15 It is convenient to mention at this point that as none of the testator's (now) four grandchildren had reached the age of 18 years they were represented, along with the class of unborn children or remoter issue of those grandchildren, by Mr Turner as counsel for the Director of Public Prosecutions, Mr Coates SC, who was appointed by the court as litigation guardian for the grandchildren and remoter issue.
3 No 28/2016
The evidence of Tamzin Hookway
16 As has already been observed, the testator passed away shortly after midnight on the day he executed the July will on Sunday 23 July 2006. That is to say, in the earliest hour of the morning of 24 July 2006.
17 He had been terminally ill with cancer and was cared for at his home until his death. Tamzin, who occupied an apartment underneath that of her father, looked after his needs. She had been a registered nurse until the year 2000.
18 There is no serious suggestion on the evidence, and there is no claim made by Tamzin, as to any lack of testamentary capacity on the part of the testator until a time after a palliative care nurse visited him at home in the late afternoon of Saturday, 22 July 2006, at around 6pm and connected him to a "syringe driver". That device automatically administered measured doses of morphine and Midazolam. The nurse showed Tamzin how to use the device in order to deliver additional measured doses of the drugs, known as "breakthrough medication", when required.
19 From that point in time I set out the relevant paragraphs of Tamzin's affidavit of 14 December 2015 in full. She stated as follows:
"24 The nurse told me that the 'breakthrough' medication was morphine and midazolam, the same medications as in the syringe driver, but in different ratios, and was to be given for breakthrough symptoms including agitation, pain, breathlessness and anxiety.
25 I had trained as a nurse in 1985 to 1988, and maintained my registration until approximately 2000. Whilst I had had some exposure to syringe drivers for terminally ill patients in the past, I had not worked in a hospital environment since 1992. The nurse explained for me to give the breakthrough doses when needed, this could mean giving it hourly if he was in pain, any sort of discomfort, restlessness or agitation.
26 I expressed my concern I could do harm to my father, and it was explained to me by the nurse that giving the breakthrough doses was not harmful, rather it was keeping my father comfortable. It was stressed to me that we should be able to minimise any pain and not to be concerned about giving additional doses if we considered it was necessary.
27 In the six months (at least) prior to his death my father had not been sleeping well due to pain, and I would often check on him during the night and find him sitting up in the TV room in pain. My father was a very gracious patient and didn't complain a lot about the pain he often experienced, and continued to fight against the cancer vigorously as he didn't want to die.
28 I know he often experienced considerable pain, because he told me he had pain, but at times he was reluctant to take all the medications as directed because they caused constipation, or he had difficulty swallowing the tablets due to large mouth ulcers. He preferred the Fentanyl skin patches for pain relief (and would often not want me to remove the old one when I put on the new patch).
29 During the last month of his life my father experienced shortness of breath and we tried to relieve this with oxygen (via a portable oxygen cylinder), but he didn't like the mask or the nasal prongs and rarely used it, preferring to recline in his 'Stressless' lounge chair with the footstool as he said he found this more comfortable and this may have assisted his breathing by sitting up.
30 He would also swap between the two bedrooms upstairs trying to get comfortable, as one had an electric bed and the other bed was much softer, but regardless of the bed I saw and heard that it was difficult for him to lie down to sleep for more than short periods.
4 No 28/2016
31 The house has two telephone lines and as I lived downstairs I would go to bed
with the portable hand set next to my bed so my father could call me during the night
if he needed anything, which he did on occasion.
32 During the night of 22 July 2006 my father appeared reasonably comfortable following the change in pain relief to the syringe driver, and slept for short periods.
33 On Sunday morning, 23 July 2006, my father seemed ok but as the morning progressed he appeared to become restless and I continued the breakthrough doses of morphine and midazolam to keep him comfortable and the symptoms under control, but I was not sure of the reason for his agitation.
34 When I asked him if he had pain he said it was OK, but as he didn't say no I was watching for signs of increased discomfort.
35 When I suggested he have a lie down he said he did not want to sleep in his bed despite appearing to be tired, and would instead recline (often resting) in his lounge chair or tried to shuffle around occasionally, but by late Sunday afternoon he was unstable on his feet and required assistance to move about.
36 At about midday he dropped the Will document in my lap and said he didn't
know what to do, I asked 'what do you mean?'. He responded that 'it doesn't say
50/50 or when they can be owners'.
37 I looked at the document and said to my father 'Dad, I can't let you sign this, you have been pumped full of pain killers, why now?'. My father appeared agitated or distressed by this, and said 'Stirling wants me to sign it, I don't know what to do, it must be 50/50'.
38 As he did not answer or acknowledge my question and I did not want to upset him there was no further discussion.
39 I took the new Will document to read and I again suggested my father have a lie down, hoping maybe I would be able to have a conversation with him after he had had a rest in bed - but he didn't want to move from the lounge chair and then shortly afterwards Max Simons arrived to sit with him.
40 Approximately mid-afternoon (after 3pm) and after I had read the Will I said to my father I don't understand this document (referring to the Trust clause). My father didn't say anything to this and I said the only suggestion I had was to try and contact the lawyer; again my father did not say anything, but nodded in response.
41 At this time my father was short of breath, he was awake but not alert, his concentration was poor, he was extremely tired/fatigued and was slow to answer questions, or stated the same thing over or didn't respond at all and appear to stare at nothing.
42 My father was unable to have a conversation as I had always known him to,
and I was unable to obtain any further clarity from him about the Will and his
concerns.
43 With the change in pain relief via the syringe driver I thought he would appear a little more relaxed, but he appeared to be fighting it, or anxious about something, or maybe it was his body nearing death, but he was not himself and I could not converse with him. He was not outwardly inappropriate in his behaviour, but he was rapidly changing both physically and mentally.
44 From the time my father commenced the syringe driver I used a guide of 4 hourly to administer the breakthrough doses of morphine and midazolam. Initially he appeared comfortable during the night without being administered these doses 4 hourly, however as Sunday 23rd July 2006 progressed the time between administering doses reduced to less than 4 hours.
5 No 28/2016
45 I telephoned David Morris, who said he would try to contact Peter Manser,
the lawyer who had prepared the new Will document with the Trust clause. Peter
Manser arrived between 4.45 and 5pm that same Sunday, and left shortly after 5pm.
46 I introduced Peter Manser to my father, my father tried to put his hand out to
shake hands but was too exhausted to lift his arm up and unable to get out of the
chair, so I indicated to Peter Manser to sit in the chair next to my father.
47 Peter didn't make any small talk with my father, and did not mention if there had been any previous conversations with my father about the new Will document.
48 My father sat quietly in his lounge chair and I explained to Peter Manser that my father had two questions about the Trust and was anxious about it being correct.
49 Peter Manser asked to see the Will, I handed the document to him and we sat while he read it and then I said 'the document doesn't say the Trust is 50/50'. Peter Manser did not ask any questions of my father, but simply said 'your Trustees will ensure that' and I then asked on behalf of my father what age the grandchildren can be owners (the same two questions my father had asked earlier in the day of me). Peter Manser said 'your Trustees can decide that' in response to my second question.
50 I then asked Peter Manser if he considered it to be OK for my father to sign the Will, and he stated 'yes' and asked if I knew how to have the Will executed.
51. Peter Manser left, and I then suggested to my father that he have a lie down in
bed, – but he declined this suggestion again, but I was anxious he lay down as he still
seemed agitated and had not slept all day.
52 He was extremely tired, restless (wringing and rubbing his hands intermittently) and withdrawn, but I was unsure if it was his illness, the medication, or the Will which was causing his apparent stress and I provided a breakthrough dose of the morphine and midazolam shortly after 5pm.
53 On Sunday 23rd July 2006 between the hours of approximately 6am and 7.30pm I administered a minimum of 3 breakthrough doses, and likely to have been 4 doses. My father remained agitated after Peter Manser left the house and I provided a breakthrough dose shortly after 5pm (being one of the 4 doses referred to above).
54 While I was concerned my father was not in a condition to be making
decisions about his Estate, I thought that if Peter Manser had reassured my father that
the Will reflected his wishes, then if he signed it he would be able to rest.
55 I visited Albert Ng across the road, and he and his wife Samantha came over a little later (approximately 7.30pm) to witness the signing.
56 My father didn't know where to sign and I had to show him where to do so. He practiced his signature on a spare piece of paper before he signed, and could barely hold the pen. He was unable to write the date in the Will, and I completed that.
57 After the Will was signed and witnessed, the Ngs left immediately and I suggested Dad have a rest in bed and for Max to say good bye.
58 As I was helping my father into bed he asked me if he should take his pyjamas off, I asked him if he needed to go to the bathroom (he had not been eating or drinking all day, just some ice or small sips to moisten his mouth so I thought this was unlikely) and he looked at me blankly.
59 I asked why did he want to take his pyjamas off (he never took his pyjamas off when he went to bed) and then he said 'do I need to put them on'. I explained he had his pyjamas on, and then I helped him into bed. His condition was deteriorating rapidly and I thought he was confused.
6 No 28/2016
60 It was approximately 8.30pm when I gave a further breakthrough dose of
morphine and midazolam and I held my father's hand while he fell asleep which
happened quite quickly.
61 I then attended to my daughter downstairs and in less than two hours Rene screamed for me to come quickly. I went to my father's room and saw him on his bed, clenching his fists and pushing them into the bed and clenching his jaw/mouth; his breathing pattern was laboured and he was not responding when I spoke to him.
62 Rene screamed at me to do something, I explained to her I did not expect him
to regain consciousness and I would give him another breakthrough dose – which I
did immediately.
63 Following the additional pain relief my father's body relaxed and his breathing relaxed to shallow breathes.
64 Within a short period of time his breathing became what I recognised as Cheyne-Stoking [sic] - the breathing was shallow and with irregular gaps, the gaps became longer, I thought he had died before midnight, but then there were a few more shallow gasps, this continued until his final breathe shortly after midnight."
20 Tamzin was cross-examined by Mr McTaggart.
21 She accepted that in her affidavit she suggests that it was her father's intention to benefit her child as to 50% and Stirling's children as to 50%. And Tamzin accepted that it was on the basis of that belief that, during the course of the earlier proceedings between her and Stirling, she had sought a distribution of the trust on a 50/50 basis, had looked at a suggestion to "clone" the trust and also sought a cash payout based on a 50/50 basis as a possible negotiated settlement.
22 She said that at the date her father signed the July will she understood that the trustees were to "distribute fifty-fifty" but she accepted that when she instituted an action in July 2012 against Mr Manser's firm of lawyers, Simmons Wolfhagen, for negligent advice as it pertained to the respective shares of the testator's grandchildren and remoter issue, she knew that there was no guarantee that the trustees of the Testamentary Trust would make distributions from the Trust in the ratio of 50% to her daughter and 50% between Stirling's three children. She accepted that nonetheless she made no challenge to the validity of the July will until the current action was commenced on 23 October 2015.
23 She accepted that in an affidavit sworn by her in the Testator's Family Maintenance Act proceedings brought by the testator's widow, she made no mention of the matters she now describes in her affidavit as set out above as to the testator's concerns about the terms of the July will. On the contrary, she accepted that in her affidavit in the widow's application for provision that she, Tamzin, swore that Mr Manser had discussed all her father's concerns as to the provisions of the July will to her father's satisfaction. She said that she was told that the matter of her father's concerns was not relevant.
24 Tamzin further accepted in cross-examination that she knew that she was personally better off under the terms of the June will, and that if her daughter were to die, Tamzin would receive no benefit from the trust established by the July will. She accepted that she knew that it was in her personal interest to claim that her father did not have the necessary capacity to make the July will.
25 Tamzin was asked by Mr McTaggart if she accepted that it was her desire following the death of her father to get 50% of the Testamentary Trust for the benefit of her child. Her answer was, "It was my father's wishes, not my desire." She accepted however that her desire was now to get rid of the Trust altogether and get 50% of the estate after bequests for herself.
7 No 28/2016
26 She denied that she was not present when Mr Manser visited her father shortly before he died. She denied that in fact Mr Manser had stayed with the testator, not for a few minutes but for an hour and a half, and she denied that she was not in fact present when Mr Manser spoke to the testator. She denied that Mr Manser initially spoke to her when he arrived for about 10 or 15 minutes and then spoke to her father alone for an hour.
27 Importantly, Tamzin denied that Mr Manser visited on the afternoon of Saturday, 22 July and not, as she maintained, during the afternoon of Sunday, 23 July.
28 She agreed that she had not included anything in her affidavit about raising any question of her father's capacity with Mr Manser, although she said that she had concerns. She said that she had raised questions about her father's capacity with David Morris when she contacted him to arrange Mr Manser's visit, but she accepted she had not mentioned that in her affidavit. She denied that she had telephoned Mr Morris on Saturday, 22 July 2006, as opposed to the Sunday.
29 Tamzin denied that she had gone to Simmons Wolfhagen on 21 July 2006 to pick up a letter dated that date written by Mr Manser or the unsigned July will that accompanied the letter. She said that she did not have a conversation with Stirling on 21 July 2006 about going to Simmons Wolfhagen to collect the will and giving it to her father. She said that Stirling had flown back to Melbourne on the afternoon of 21 July 2006 and had said to her that their father had had the will for a couple of days. She said that she did not know how long her father had the will because he could not tell her. She denied that she had said to Stirling after her father's death that it was lucky that he signed the July will when he did.
30 She also denied that she was not present when Mr and Mrs Ng attended the testator to witness his signing of the will. She denied that her father did not need assistance in signing the will in their presence. She denied that she rang Mr Manser on 24 July 2006 and told him that her father had signed the July will and had passed away.
31 In her statutory declaration made on 13 August 2015, a document prepared before she swore her affidavit, Tamzin accepted that she had not included details of the amounts of drugs that her father had been given, and agreed that those details were provided to her solicitors in a later email of 15 October 2010.
32 In cross-examination by Mr Turner, Tamzin revealed that she had kept a diary at the relevant time in 2006 and later in 2010 when she visited Mr Manser at his home on 26 May 2010 after he had retired, because her solicitor had advised her that she should not be trusting Stirling so much. She said that the visit was because she wanted to find out from Mr Manser "what had happened regarding writing of the will". She said the she made handwritten notes of her meeting with Mr Manser immediately she walked out of his door. When she arrived home she typed them up and she likely destroyed the handwritten version.
33 Tamzin had earlier agreed with Mr McTaggart in cross-examination that she did not raise with Mr Manser during that visit anything about her father's capacity to make the July will. She confirmed that in cross-examination by Mr Turner.
34 She told Mr Turner that she was concerned about her father's testamentary capacity on the day he signed the will, but she was of the belief that "the trust was still fifty-fifty". She said she continued to believe that until "Stirling said he would no longer be conciliatory" in October, November or December 2012.
35 Tamzin agreed that she signed documents to obtain probate of the July will as a valid will.
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36 She told Mr Turner that she told a lawyer, Mr Toomey, "the history" in March or April 2010, and that he said "the will is set". (I infer from her answers at this point in her cross-examination that she had raised her concerns about her father's testamentary capacity with Mr Toomey when she first saw him, and that he told her it was too late to do anything.)
37 Tamzin agreed that there had been discussions about an en globo settlement with Stirling, and that the question of cloning the trust was considered. She said that she wanted "separation" from Stirling. It was put to her that whilst she was having those discussions with her brother through her lawyer there was no mention at any time of the July will being invalid because her father did not have capacity. Her answer was that she had been advised that "the will was set" and there was nothing she could do. I then intervened and asked her when it was that she was told for the first time that there was something she could do. She answered that she remained of the view that it was too late to do anything until she met her counsel, Mr McElwaine, in February 2015.
38 As to the proceedings she had filed against Simmons Wolfhagen for negligence, she said that she made a commercial decision not to proceed with the action because when she saw Mr Manser's diary notes she thought that they were illegible.
39 Tamzin was asked by Mr Turner about her independent recollection of the day of 23 July 2006 and she said that it was "minute by minute".
40 She was asked about the number of breakthrough doses she administered to her father from midnight on 23 July 2006 until she says Mr Manser arrived, and she said that it was five. She also said that there had then been an additional dose before she went to get Mr and Mrs Ng to witness the will.
41 She was then asked about the entry in her diary for 23 July 2006 which she had produced pursuant to a call for its production by Mr Turner. The following exchange appears in the transcript:
"And do you remember – sorry. Now you've written in the note in your diary 'must
be fifty-fifty'……..That's what Dad said.Yes. Did you write that down at the time he said it?.......Ah yes, before I, when I called Murray [sic] so I knew what to ask.
And that was told you by your father at around about midday on the 23rd?......Yes.
And it's at about that time that he gave you the will?......Yes.
Which you were unaware of until that point?......Correct.
Plainly he had read it?.......I don't know.
Okay. And you read it over the course of, I think you next discussed it with him at about 3 pm?.......Yes.
So over the course of that three hours you read it?........I had a look at it. I didn't understand it.
You'd seen the one from June 2006?.......Yes, I understood that one.
Yeah, and this had some additions in terms of the trustee and several clauses relating to the discretionary trust?.......A large number of clauses.
You've also written:
When can they be owners.
Is that what your father wanted asked of Mr Manser?........When can they be owners.9 No 28/2016
I'm sorry?……..When can they be owners.
Yeah, that's something your father asked of you?........Yes.
Before Mr Manser arrived?......Before midday, about midday.
And before you called Mr Morris?........Yes.
And so we've got entries here:
Must be fifty-fifty.
When can they be owners?
Which were, what, reminders for you of what to ask Mr Manser?.......Yes.
Which you did in the presence of your father?.......Yes.
And you've recorded in inverted commas:
Your trustees can decide.
……That was in relation to the owners.
And your trustees will ensure that.
……..Yes.
In relation to the fifty-fifty?........Fifty-fifty, yes.
Your father, after the discussion with Mr Manser, wanted to sign the will?.......He didn't really – if I'd said not to, he wouldn't have.
And did you say 'You should sign it'?........No.
Well why did you go and get Mr and Mrs New to witness it?........Because Mr Manser said it was okay for him to sign and Dad was still agitated and I didn't know what to do.
And you went over and got them some time after 5pm?.......I waited another couple of hours because I wasn't sure what to do. I'd given Dad an additional dose. He was very agitated. I couldn't get any more information out of him. I'd said to him 'I don't know what to do', and I wasn't getting any information back."
42 Tamzin was then further cross-examined by Mr McTaggart about her 2006 diary.
43 She was asked about her entry for 23 July 2006 being in pencil. The following was the exchange recorded in the transcript:
"And back on the 23rd of July when you say you made the entry, it must have been fairly significant for you to record it. You must have thought it was significant?……I wrote down must be the fifty-fifty when they can be owners because I called Morrie and I had to make sure I put down what the conversation was, that was important.
It was important to you at the time, wasn't it?……Yes.
But you wrote it down in pencil?……Quite a few of my diary notes are in pencil.
Throughout the diary there's pencil and biro, it's whatever I pick up at the time.Well, I've only got a snapshot of your diary but if you go forward in your diary are there anymore entries in pencil through to - ?……Of the rest of my diary?
10 No 28/2016
No, no, it's through to the 30th of July?……There's two more entries, they're both in biro.
Biro, yes?……I just pick up what's next to – available."
44 She was also asked about the circling of the date 23 July and the writing occupying the diary space available for both Saturday, 22 July and Sunday, 23 July. The following exchange appears in the transcript:
"Now this entry on the 23rd July, you've circled 23?.....Yes.
But that's not something you've done on other weekends, is it? If you go forward to the 29th and the 30th July, you didn't circle the 29th?.....No, because the notes went across. The Saturday, the Sunday of the diary are half the size, you can't – there wasn't enough room to write it all in.
And you didn't circle the 1st and the 2nd of -……1st and 2nd of what, sorry?
The - …….July?
Probably August, the way it's stapled for me……Sorry, do you mean July?
Have you got an entry there for the 1st August, 'Return to Hobart 4:00 p.m. sixty nine dollars'?........Yes, that was the 1st July -
Thank you…….- because it only – to the Saturday, it didn't go across both."
45 Tamzin was asked about the nature and contents of the diary. It was put to her that even though there was a diary to record medical matters relating to her father, there was no record on 22 July for the visit of Dr Vidor. She agreed. It was put to her that there was no reference whatsoever to the commencement of the syringe driver. She agreed but added that there was a drug chart. She agreed that the "font" for the entry for 23 July was similar to only a couple of other entries, and she agreed that her entry for 23 July was the only entry of a descriptive nature, that is, where she had purported to record what someone had said.
46 Tamzin was re-examined by Mr McElwaine.
47 He directed her attention to a part of the transcript where Mr McTaggart had asked her about an email from her to Stirling of 19 October 2010 where she was expressing to Stirling circumstances in which she would not get any benefit from the Testamentary Trust, and she agreed that at that time she had not applied to challenge the capacity of her father to make the July will. Mr McElwaine asked her why she had not done so and she replied that she had already been orally advised by Patrick Toomey, of lawyers Toomey Maning & Co, in March or April 2010 that she "was out of time" and that "the will was set".
48 Mr McElwaine then directed Tamzin's attention to her affidavit in the Testator's Family Maintenance Act proceeding, and referred to Mr McTaggart's questions of her as to why in par 32 of that affidavit she had not referred to the details of the events of the day of 23 July 2006 as she did in her affidavit in the current proceeding. She explained that she had included in an earlier draft of the earlier affidavit a couple of pages about what had happened on the last day in the events leading up to the signing of the July will but that she had deleted it on Stirling's instruction to her that, "We don't need all this detail, we know that the will is correct and it's not relevant to the TFM action". She said that at that time they had a barrister whom Stirling had engaged, Mr Richard Phillips in Melbourne, and that Stirling was dealing directly with him. Tamzin said the redrafted affidavit went to Stirling and then Stirling forwarded both his affidavit and hers together to Mr Phillips.
49 Tamzin was recalled later in the trial to give further evidence on this topic.
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50 In her further evidence-in-chief she said that after she had sent a draft of her affidavit Richard Phillips, and had received some advice from him to include something about the writing of the July will, she had written a couple of pages on that subject "as a side document". She said that then, after discussions with Stirling about the relevance of what she had written, those pages were condensed down "essentially summarising … that Mr Manser had visited and advised that the will was correct".
51 She was cross-examined by Mr McTaggart about the second version of her affidavit and accepted that at the "very end" her father might have asked her to fetch the July will but she denied that any of the words she used conveyed that she had collected the will from Simmons Wolfhagen on Friday, 21 July, or that she knew the whereabouts of the will after it was collected.
52 She accepted that there was no reference in any of the emails between her and Stirling and Richard Phillips to the couple of separate pages to which she referred. She said that there was no need for them to be referenced.
53 Tamzin was also further cross-examined by Mr Turner.
54 She agreed with Mr Turner that she was familiar with the terms of the June will and that she knew that by its terms the property at 88 and 94 Kennedy Drive passed equally to her and Stirling. And she confirmed that at the time the July will was signed by her father she knew that under its terms 88 and 94 Kennedy Drive would not pass to her and Stirling, but had become the subject of the Testamentary Trust.
The evidence of Dr Vidor
55 The next witness called was the testator's former general practitioner, Dr Alan Vidor. The relevant parts of Dr Vidor's affidavit which formed his evidence-in-chief are as follows:
"7 I was Peter Hookway's general practitioner for more than two years. I remember Mr Hookway very well. I cared for him during his battle with prostate cancer and his subsequent demise. This included the terminal stages of his illness up until his death.
8 I am unable to make a retrospective assessment of Mr Hookway's capacity to make and understand his will on the late afternoon of 23 July 2006. Such an assessment would require specific questioning at the time to ascertain his awareness and understanding of the decisions and issues involved in making this will. I was not requested to make an assessment at the time and cannot do so in retrospect.
9 Despite this, I do have significant concerns regarding his capacity at that time, for the following reasons.
10 To try to maintain comfort and ease pain and agitation during the terminal
phase of Mr Hookway's illness he was receiving significant doses of opioid and
benzodiazepine medication.
11 On the afternoon of 23 July 2006 Mr Hookway was receiving Fentanyl (a powerful opiate medication) by a 150 microgram skin patch.
12 At that time Mr Hookway was also receiving a continuous subcutaneous
infusion of the opiate medication morphine (30mg over 24 hours) and the
benzodiazepine medication midazolam (30mg over 24 hours).
13 In addition to these medications, he was written up to be administered
additional medication if required for breakthrough or uncontrolled pain or agitation.
This was morphine 15mg and midazolam 5mg administered subcutaneously.
14 Tamzin Hookway says in her affidavit that Mr Hookway required breakthrough doses of these medications shortly before the signing of the will.
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15 Fentanyl, morphine and midazolam in the doses prescribed all have the capacity to cause drowsiness and impair cognition. Drowsiness and impaired cognition are even more likely to occur when they are used in combination, as was the case with Mr Hookway.
16 I visited Mr Hookway at his home on 22 July 2006. He was in a very frail and
weakened state and approaching death. He was extremely tired and lethargic and had
very little energy.
17 I am concerned that in the condition he was in on 22 July 2006 Mr Hookway
was not clear in his thinking or would be vulnerable to outside influence in his
decision making."
56 Dr Vidor was cross-examined by Mr McTaggart. Prior to that Mr McTaggart had raised an objection to Dr Vidor's use of the words "significant concerns" and "concerned" in pars 9 and 17 respectively of his affidavit. Mr McElwaine asked Dr Vidor, "Where you say 'significant concerns' in … paragraph 9 and 'concerned' at paragraph 17 are you putting that forward as your professional opinion or something else?" Dr Vidor answered that it was his "professional opinion".
57 Dr Vidor agreed that because his former medical practice had been dissolved, with the result that the testator's medical records kept by him were no longer available, his affidavit had been prepared by him without the benefit of any contemporaneous note that he had made of his attendances on the testator, and that it was based on his memory and also the notes from the Palliative Care Service that he had read.
58 He agreed that he had been first asked for his opinion for the purposes of these proceedings on 12 February 2016. He agreed that the source of his information as to what occurred on 23 July 2006, and as to when breakthrough medication was administered, was Tamzin.
59 It was suggested to Dr Vidor that the fact that the testator was capable of consenting to the commencement of the syringe driver on 22 July, the fact that he was apparently capable of clearly articulating his preference between cremation and burial in a conversation with Tamzin on that day, and the observations of Mr Manser in his affidavit as to his conversation with the testator on 22 July, assuming all that to be correct, would allay any concerns he had about capacity on 22 July. Dr Vidor's answer was that it would not affect his views on capacity once the syringe driver medication was commenced because syringe driver medication is provided generally towards the very end of a person's life to provide what is called terminal sedation.
60 Dr Vidor was then asked further whether, given Tamzin in her affidavit had said that her father was fine overnight, the night of 22 July, and the early hours of the morning of 23 July, and it was later in the morning on 23 July that things started to change, that would allay any concerns Dr Vidor might have about capacity on 22nd July. He replied that he would still have concerns about capacity because the agreement to have the syringe driver started was very different to making difficult complex decisions.
61 It was pointed out to him that the testator had already had the syringe driver started, and that "medication was on board and he'd had a good night and he was the same the following morning" according to Tamzin's evidence. He replied, "As I say, I didn't see him at that time, I can't attest to his capacity, all I can say is that I have significant concerns because of the circumstances."
62 Mr McTaggart suggested that Dr Vidor was not proffering any capacity opinion, but simply saying he would have concerns. He agreed that was correct.
63 The following exchange concluded Dr Vidor's cross-examination by Mr McTaggart:
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"And those concerns are in relation to the 23rd July based on what you're told by Tamzin Hookway about her father's condition?.....They're based on my assessment of – as far as my memory goes, of Peter on the 22nd, that he was in a very weakened and frail state, he was receiving medication which could be sedating and affect cognition and he was also, I thought because of his frailty, in a position where he would be at risk of the power of suggestion or compulsion.
Well in relation to any deterioration on the 23rd July are dependent on what Tamzin Hookway told you?.....As far as the 23rd July I did not see Peter that day, I cannot attest to his state on that day.
And when you saw him on the 22nd July he had the capacity to consent to the commencement of the syringe driver?.....He had the capacity at that time to tell me that he was in pain and that we could relieve his pain."
64 Dr Vidor was then cross-examined by Mr Turner.
65 Dr Vidor agreed that insofar as the day of 23 July 2006 was concerned his opinion was, "I don't know if he had capacity or not, but I have some concerns about whether he did or not."
66 He was asked if it was the same for 22 July and he replied:
"I believe again on the 22nd, as I have stated in my affidavit, that he was in a very weakened and frail state. He was at that time still receiving medication that could – can affect cognition and I would have concerns about the 22nd also."
Mr Turner retorted, "Yes, but again [sic] can't say whether he did or did not?" and Dr Vidor's answer was, "I can't say for certain, no."
The evidence of Professor Ashby
67 The next witness to be called was Professor Michael Ashby.
68 Professor Ashby is a Consultant in Palliative and Pain Medicine practising in Tasmania, and is the Professor of Palliative Care at the University of Tasmania.
69 In the affidavit that formed Professor Ashby's evidence-in-chief he stated:
"2 I have been asked to provide my opinion concerning whether or not the late Peter Hookway (referred to hereafter as 'the deceased'), was of sound mind at the time he made his will on 23 July 2006; ie that he:
a could understand the nature and effect of that will; b could understand the nature and extent of the property being disposed of by
that will; andc could comprehend and appreciate the claims to which he ought give effect; d was suffering from no disorder of the mind that would result in an unwanted
disposition."
70 Professor Ashby expressed the opinion that the testator, "on the balance of evidence supplied" to him, lacked the mental capacity, was not of sound mind, and was therefore incompetent to sign his revised newly drafted will on the evening of 23 July 2006.
71 He stated that his opinion was based on observations of:
"a his General Practitioner, Dr Ted Vidor, as contained in an affidavit sworn 14 December 2015, a copy of which is annexed and marked 'MA-2' and the substance of
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which is also contained in a letter dated 4 May 2015, a copy of which is annexed and
marked 'MA-3';b a close family friend Maxwell Simons, as contained in an affidavit sworn 14 December 2015 a copy of which is annexed and marked 'MA-4' and the substance of which is also contained in a statement dated 17 June 2015, a copy of which is annexed and marked 'MA-5'; and
c the main family carer, his daughter Tamzin, as contained in an affidavit sworn 14 December 2015 a copy of which is annexed and marked 'MA-6', and the substance of which is also contained in a statement dated 13 August 2015 a copy of which is annexed and marked 'MA-7' and an email dated 15 October 2015 a copy of which is annexed and marked 'MA-8'."
72 Professor Ashby said that the observations on which his opinion was based pertained to the level of exhaustion and impaired cognition, which given the proximity to the time of death, which he thought initially was some three to four hours, but later accepted could have been more, indicated that the deceased was affected by a terminal delirium.
73 The professor detailed the drugs and doses administered to the testator reported on the last day of his life, and said that it was standard practice, and within prescribed limits, but he said that the level of the additional "breakthrough" medication administration was at the upper end of the range prescribed, and was therefore indicative of acute and rapid deterioration, suffering and the onset of fairly severe so-called "terminal" restlessness commonly seen as death approaches. He went on to say that against the 24 hour background infusion dose, the additional "breakthrough" medication would inevitably lead to increased drowsiness and slower cognition, but importantly, he said that conclusive attribution of relative causal contribution to cognitive state of specific drugs or physiological failure processes is difficult in the terminal phase.
74 He said that delirium is very common as death approaches, and treatment with sedation is frequently needed, and that some degree of cognitive impairment is almost universal and is associated with profound fatigue and disengagement as life forces drain and the dying person detaches from the world around them. Professor Ashby said that end organ failure occurs as body systems fail, particularly as kidney and liver failure progresses and the body's normal elimination of toxins, including drugs, decreases and ceases altogether.
75 Professor Ashby was cross-examined by Mr McTaggart.
76 As already noted, it was pointed out to the professor that his three to four hour estimate of the time between the signing of the will and the testator's death may have been a little too short, but he said that he did not think that the timing of the will was critical to his opinion. He said that was because, from a medical point of view, the processes he had referred to were occurring over many hours. He said that he thought from the evidence that he had commented upon that the process was playing out over most of the day of 23 July 2006.
77 Professor Ashby was asked whether it would have been relevant to his opinion to know that as at 18 July the testator was alert and capable of concentrating and having a discussion. That was a reference to Dr Dunne's affidavit which stated that he had seen the testator on that day. It subsequently transpired, as will be seen, that Dr Dunne was in error, and the conversation that he had had with the testator was on Friday, 14 July 2006. In any event, in answer to the question as asked of him, Professor Ashby said that it would not have altered his interpretation of the evidence presented to him when he made his affidavit.
78 Professor Ashby was asked to note that Dr Dunne had referred to the affidavit of Mr Manser, and that Dr Dunne had opined that, based on the contents of that affidavit being correct, then his observations regarding the testator having capacity on 18 July 2006 were still pertinent on 22 July
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when Mr Manser saw him. Professor Ashby was asked whether he would agree with Dr Dunne's observations, assuming that the contents of Mr Manser's affidavit were accurate. The professor answered that he was not in a position to agree or disagree, but added that given Dr Dunne was a clinician on the ground and that those were his recollections of his care for his patient, then they would have very high standing both in professional terms and for this Court.
79 Professor Ashby was asked about Dr Vidor's evidence. It was put to him that it was not an observation of Dr Vidor on 22 July that the testator was not thinking clearly, but rather that Dr Vidor had just expressed that as a "concern", whereas Professor Ashby had noted it in his evidence as an "observation". He was asked whether that had led him into an error in his, Professor Ashby's, opinion. He answered that he did not believe that it had, that he accepted the distinction and the fact that it may make a difference, but he said that it did not make a difference to his conclusion.
80 It was put to him that the morphine opioid dose would be unlikely to have had a significant additional effect on mental capacity and he agreed, but there then followed this exchange between the professor and Mr McTaggart:
"In general terms, do I understand, in your opinion, that it's really the dying process which is possibly presented some cognitive issues rather than the medication?……Absolutely. I think both factors can potentially be operating and the problem is that empirically to find out is extremely difficult. What I would say is that the – the dying process and the last day of life for people dying of cancer is very frequently along the lines of the observations submitted to me in evidence and seen in other parts of the evidence here in this case, it's entirely consistent with that kind of course, in which one of the main features is a disturbance of organic brain function and eventually coma. Medications certainly can have an effect and I'm – I – I hope I haven't conveyed the impression that I think that they're of no importance, but in my practice I frequently see people who need escalation of medications in the dying process who still may have fluctuating capacity. And so, what I'm saying is the – those doses don't, of themselves, tell me that he would lack capacity but they may be an ingredient in it. But from my reading of the case, given that he'd been on opioids for a long while and that's the sort of nought to sixty argument that if you – if the brain encounters a sudden large dose of a new drug or a sudden step-up in dose of an existing drug, particularly the morphine family, then you will get confusion, you will get drowsiness, you'll get drowsiness at the very least. And what I'm saying here is I think the transition was a reasonable one in the circumstances, it was actually done by the Palliative Care Service of which I am a part and of which Dr Dunne was a former director, and I'm saying those kind of dose escalations and steps on the day of a person's death are within accepted medical practice and would not necessarily, of themselves, lead to a sudden loss of capacity or a loss of capacity at all."
81 Professor Ashby was asked whether it would be the case that, if the testator practised his signature on a spare piece of paper before he signed the July will, that would indicate to the professor that the testator understood the significance of what he was signing. He answered that, having been present at similar events in his own practice from time to time, he suspected it was indicative of the level of frailty, both mental and physical.
82 He was asked whether it was also consistent with the testator understanding the significance of what he was about to sign as well. He answered:
"No, I don't believe it has any bearing on his understanding of the significance. I think it just indicates that he's been, he's having a document put in front of him to sign and because of his frail state both physical and again mental because of course obviously writing a signature requires both the cognition and the motor function, both were on the line, the person administering the signature obviously felt that he needed assistance to practice the signature, and that would be common practice for a very sick person. So I think it's indicative of frailty and I don't think it gives any insight into his state of mind."
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83 Finally he was asked whether he thought that any insight could be gained from that as to how significant the testator thought the document was. Professor Ashby answered in the negative.
84 Professor Ashby was then cross-examined by Mr Turner.
85 After an exchange between Mr Turner and me as to the essential questions posed by Professor Ashby on the first page of his affidavit, as set out above, as going to "sound mind", Mr Turner put to the professor that in the context of what had just been discussed, he could not say whether the testator was of sound mind on 23 July 2006 at the time of the signing of the will. Professor Ashby's answer is of importance and warrants setting out in full. It was as follows:
"No, no, okay. But those were my understanding of the criteria for the signing of a will and as I do get involved from time to time in these matters, those were my understanding of the key factors that lawyers had to apply when receiving instructions for signing wills. With regard to the specific answer to your question I wonder if I'll answer it in this way, I hope it will be helpful. I've acknowledged, and the reason that I put some of this literature in here for the Court is to indicate, as I'm sure you are all aware, that the whole issue of capacity, particularly with the rising dementia epidemic, is a contested field and that there is a strong view now that it is a fluctuating function. It can vary with time. It can be affected by a number of physiological and pharmacological influences, and also that the degree of capacity, if you could measure it on a scale that you require to order a cup of tea or ask for a chair to sit down, is different to that of disposing of your estate and the potential effect on your children. With that in mind, can I say, you know, with the balance of probability required in a Court, that at that particular moment when that will was signed, assuming when it was, when the witnesses say it was on the 23rd, can I say that categorically that he had capacity or not at that moment, no, I can't, but what I can say is on the balance of probabilities, viewing the evidence that was presented to me when I made the affidavit, that I believe I should advise the Court that it is unlikely that he would have understood what he was signing. That he could, for instance, have answered those three questions if they'd been posed to him." [Emphasis added.]
86 He was then asked if he was able to say whether the testator would, more likely than not, have been able to understand that it was his will. Professor Ashby answered that it was possible that the testator may have recognised it as his will.
The evidence of Max Simons
87 Mr Simons was a close friend of the testator and one of the original four executors and trustees of the July will. Mr Simon's evidence-in-chief is taken from his affidavit. He stated, relevantly:
"8 I last saw Peter on Sunday 23 July 2006. I visited him at his home at 451 Churchill Ave that afternoon as I wanted to spend some time with Peter knowing there was very little time left for him, and I stayed until he went to bed at approximately 8pm.
9 I knew Peter didn't want to die but he seemed to always be in terrible pain and said it was all too much for him.
10 During my visit on 23 July 2006 I spoke with Peter; he seemed to be 'not with
it', appeared to be in a lost world, he seemed dazed and was making comments which
were unlike him.
11 He said 'I should give you a million dollars to have a gamble on the horses,' and other comments like this which were not like Peter.
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12 While I was visiting Peter, a lawyer arrived at approximately 4.30pm and had
a brief discussion with Tamzin and Peter. The lawyer was only there a brief time,
about 10 to 20 minutes, and I do not recall him saying much.
13 I did not get involved with that discussion; I was chatting with Rene in the
adjoining room.
14 I saw Sam and Albert Ng come over to Peter's house a couple of hours after the lawyer left, and witnessed the signing of Peter's new will.
15 Immediately after the will was signed, Tamzin said to Peter that she wanted
him to have a rest; I saw her help Peter to bed, and she suggested I say good bye
before she gave him some more pain killers with a needle.
16 I said goodbye and left Peter's house at approximately 8pm.
17 Tamzin telephoned the next morning to let me know that Peter had died shortly after midnight and had not regained consciousness after he had gone to bed."
88 Mr Simons was cross-examined by Mr McTaggart.
89 He said on Saturday, 22 July 2006, he had visited the testator in the afternoon from probably about half past twelve to about five o'clock watching horse racing on his television.
90 Mr Simons said that he did not recall the testator having any visitors that day while he was there. Specifically, he said that if Mr Manser came to the testator's house on 22 July and not 23 July as Mr Simons had said in his affidavit, then he, Mr Simons, did not see him.
91 He said that when the solicitor (he subsequently said that he did not know Mr Manser), visited, he, Mr Simons, left the room where he had been sitting with the testator and went out on to the verandah with the testator's wife.
92 It was not put to Mr Simons that the person he understood to be the solicitor and who spoke with the testator for about half an hour he thought, had not visited on the same day as Mr and Mrs Ng and within a couple of hours of each other as described by Mr Simons in his affidavit. I would find Mr Simon's unchallenged evidence as to that combination of events decisive of any contest between his recollection as to the day on which Mr Manser visited, and Mr Manser's file note prepared by him on Monday, 24 July 2006. However, as will be seen, I do not find the question of the day on which Mr Manser visited the testator as of dispositive significance in relation to the question of testamentary capacity.
93 Mr Simons agreed that he had first been asked to recall the events of 23 July when he was asked to do so by Tamzin a week or two before he drafted a statutory declaration for her on 17 June 2015.
94 Mr Simons was asked whether his memory had faded since July 2006 and he answered, "Not with Peter I didn't, no." On being pressed as to whether there had been some fading of his memory since July 2006 he replied, "Oh yes, well that's only understandable I think."
95 He was asked whether he was completely dependent upon his memory to recall those events and he answered, "And my wife." He explained that certain things that he had written in his statutory declaration he had checked with his wife and he said, "She said, 'Yes, you did say that, you come home and said this and this, and this person arrived in the room.'"
96 Mr Simons was cross-examined by Mr Turner.
97 He was asked about the events of the afternoon of Saturday 22 July 2006 and he said:
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" …I don't even think Peter really bet much that day, if he did. He was just sitting in the chair watching and sometimes I was watching a race and I'd turn around and his eyes were sort of half asleep and then he'd sort of open them up … and he couldn't get very comfortable, he was always cold. He sort of had a blanket over him. He was a bit uncomfortable I think or a bit cold."
98 He was asked if they were discussing the races and he said:
"Well when, he wasn't saying, putting a lot of input… he wasn't talking a lot, but he was watching, but I was saying things to him 'I like this horse or I like that', and he just sort of a bit of a, he was there and he was interested but only on and off."
The evidence of Dr Shane Jackson
99 Dr Jackson is a pharmacist who has an active private consulting practice which largely specialises in providing medication reviews to consumers who reside in aged care facilities. He has significant expertise in geriatric medicine, and regularly provides advice to general practitioners on the impact that medications can have on the elderly.
100 Dr Jackson had been asked to provide his opinion on the impact which the testator's medical state and his medications may have had on his ability to understand the nature and effect of the July will.
101 He had been provided with the following documents:
(a) the sworn affidavit of Dr Andrew Vidor; (b) the affidavit of Maxwell Simons; (c) the palliative care notes from the Tasmanian Department of Human Services, and (d) the affidavit of Tamzin Hookway sworn 14 December 2015. 102 Dr Jackson summarised his opinion as follows:
"C Summary 32 Based on the information provided to me, I would be concerned that there was a real and likely possibility that Peter Hookway may not have understood the impact of his will signed on the 23rd July 2006. It is likely that he lacked insight into the content and impact of that Will that was signed in the hours leading up to his death. This impairment is likely to have had been contributed to by many components, such as his impaired cognitive reserve, possible delirium and the probable side effects from the opioid medication, morphine.
33 It is therefore my view that there is enough concern regarding his medication use and presenting medical issues on the 23rd July 2006, that they are likely to have had some impact on his cognition to render him impaired in fully understanding the likely impact and outcome of the Will he signed on the 23rd July 2006."
103 Dr Jackson was cross-examined by Mr McTaggart.
104 He agreed with the proposition that his opinion was that the medications that the testator was taking on 23 July had some possible effect upon his cognitive state.
105 Dr Jackson agreed that Professor Ashby's evidence was that, in his opinion, the dying process could also have had some impact on the testator's cognitive state, and he said that he understood that and agreed with the professor's opinion.
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106 And Dr Jackson agreed with Professor Ashby's opinion given in evidence that it is difficult to tease apart whether it is the dying process or the medication which may have had some effect on the testator's capacity
107 Dr Jackson was asked about Professor Ashby's evidence concerning the drugs delivered by the syringe driver the testator was utilising. Dr Jackson said:
"The syringe driver dose conversion, in my view, was appropriate and modest, but the point being that he was naïve to morphine and – if I can explain that – different opioids act on different opioids receptors in the body and there's different opioid receptors sub-types within the body, and those different opioids can affect those different opioid receptors differently and so, by changing the type of opioid that's used you increase the sensitivity of the body to that opioid. So, whilst it mightn't be the morphine itself that had effect on his mental capacity I believe that in some respects the metabolites that were, you know, your body changes morphine to – in the liver to glucuronide metabolites and then it excretes them through the kidneys and it's those metabolites which can often cause problems, which I note that Dr Ashby hasn't mentioned."
108 Following that answer, Mr McTaggart put to Dr Jackson as a proposition that all he could say is that the possible transition to morphine as a different opioid may have possibly had some effect on the testator's cognition. He agreed that that was correct.
The evidence of Stirling Hookway
109 For present purposes it is sufficient to set out the following passages of the affidavit evidence that formed Stirling's evidence-in-chief:
"Testamentary Trust
9 My father first raised the issue of wanting to leave a significant portion of the Estate to his grandchildren in around May 2006. In my discussions with him he told me his reasons for wanting to do so was so that that wealth could not be touched by spouses or partners of his children and further if poor investments decisions were made by either Tamzin or myself that there would remain a significant fund to support his grandchildren.
10 In May 2006 my father asked me to investigate ways in which he could give effect to his wishes. The potential options considered by my father and I included the testamentary trust, a direct gift of the land to the grandchildren or setting up a company to hold the land for the legacy of the children.
11 In the discussions with my father regarding the various options he selected the testamentary trust option as his preferred course. He decided however not to do anything about that until a sale to Prudentia was confirmed and unconditional. Without that land sale my father considered that he didn't have the means to create such a legacy.
12 From 6 June 2006 I went to live in Hobart for an extended period of around
five weeks. At this time I was ordinarily resident in Melbourne but travelled
regularly to Tasmania to assist my father in the running of the family businesses.
13 During the five week period business matters were discussed regularly in particular the land sale to Prudentia. My father was concerned that if this sale fell through, there were no other potential purchasers and his lender was becoming concerned at my father's inability to service the debt going forward.
14 Notwithstanding my father's terminal illness he remained engaged and interested in business matters.
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15 During this period the 13 June 2006 Will was prepared and executed. The June Will was prepared with the assistance of Bert Wicks a retired lawyer. My father made notes as to his wishes and I typed it up for him. A copy of that Will is exhibit 'SMH-10' to my earlier affidavit. The Will was signed on 13 June 2006 and witnessed by Albert and Samantha Ng who were neighbours.
16 My father told me that whilst he was keen to create a testamentary trust for
the benefit of his grandchildren as at 13 June 2006 he wanted to update his will in
case anything happened to him whilst the Prudentia sale was uncertain.
17 The concept of a trust was however introduced into clause 11 of the 13 June Will. That clause provided as follows:
'I give, devise and bequeath the residue of my Estate to Tamzin Peta Hookway and Stirling Mathew Hookway in equal shares. As Executors they have full powers to set up a Trust in their names and the names of their children for any or all of these assets, and to sell, or to delay the sale of particular assets if they think it appropriate.'
18 On 13 June 2006 Prudentia contacted me to verbally advise that they intended to proceed with the purchase but would not sign a contract until July. On relaying this information to my father he asked me to contact Ian Creese to discuss the Prudentia contract and for Ian Creese to draft the testamentary trust.
19 I called Ian Creese who said he wasn't qualified to write such a clause and referred me to Peter Manser at Simmons Wolfhagen. I made a note of this in my diary on 13 June 2006. Annexed hereto and marked with the letters 'SMH-A' is a copy of my diary entry for 13 June 2006.
20 On 15 June 2006 I had a meeting with Peter Dobson of WHK Dennison accountants about the testamentary trust, the Prudentia contract and tax returns. A note of that discussion is in my diary on that day. Annexed hereto and marked with the letters 'SMH-B' is a copy of my diary for 15 June 2006. Prior to that meeting I listed the topics my father requested I discuss with Peter Dobson (in blue pen). During that meeting I took notes in black pen. It was during this meeting that Peter Dobson introduced me to Richard Cooper whom he had chosen as my main point of contact going forward.
21 … After the Prudentia settlement I met with Dad and gave him the cheques and other settlement documentation. Dad asked me to see Peter Manser straight away to get the Testamentary Trust underway and I arranged a meeting for the following day.
22 On 4 July 2006 I attended a meeting with Peter Manser at Simmons Wolfhagen to get advice about discretionary trusts. Prior to that meeting I discussed with my father the matters to be raised with Peter Manser. My father was concerned that putting the land into a Testamentary Trust might create a massive stamp duty burden. My father wanted to know if he had to explicitly state for what purposes distributions could be made to the beneficiaries, he wanted to ensure it wasn't going to be used to spoil them. My father was averse to paying tax and wanted to know why they were taxed as adults. My father also wanted to know when the trust would end. I made a note of these questions in my diary during the discussion. Annexed hereto and marked with the letters 'SMH-C' is a copy of my diary entry for that day. The note of my discussion with my father reads as follows:
- stamp duty for testamentary trust - spelt out in Will or can executors decide - tax rates for grandchildren – why so good - end of trust. 21 No 28/2016
23 I met with Peter Manser on 4 July 2006. I made notes of my discussion with Peter Manser during the meeting in my diary. The diary entry reads:
- middle part of will is a series of administrative directions - 80yrs unless directed to end - Trustees to dist income as they see fit - beneficiaries are loosely defined, have no power of control - hence children can be un-named remoter issue - letter to trustee for discretionary trust. - trustees - beneficiaries - discretion to distribute - term of trust (not less than 80yrs) - trusts are treated differently for CGT events - need to cheque(sic) with tax agent Peter Manser discussed with me how a Testamentary Trust works and what is required to set it up. He indicated he was not accepting any responsibility for the rest of the Will as it had not been prepared by him or his firm and that he would only be inserting a Testamentary Trust clause. I recall he did make some suggestions regarding the rest of the Will. He asked me how soon this needed to be prepared and I said as soon as possible.
24 I returned to Churchill Avenue and spoke with my father and discussed what I had learnt in my discussions with Peter Manser. It was a detailed discussion with my father and we went through all of the options and considerations of setting up a trust. My father indicated he was pleased that the Testamentary Trust mechanism suited his requirements very well and also provided for generations beyond his grandchildren. Prior to this my father had not mentioned generations beyond his grandchildren. My father did not indicate any need for an additional letter to the trustees and wanted his Will to provide all the instructions. My father wanted to leave all his land at Cambridge to the Trust. He told me he understood his options and asked me to write a letter of instructions to Peter Manser. He instructed me what he wanted included in the letter.
25 On the morning of the 5 July 2006 I showed my father the draft of the letter to Peter Manser requesting a discretionary trust for his Will. The letter was corrected / amended and a final version was prepared. My father read the letter carefully. My father then signed it and I faxed it to Simmons Wolfhagen.
26 The letter of instruction is exhibit 'SMH-2' to my earlier affidavit. The trust assets are identified in that letter were lot 3 and 4 of SP146586 and his 50% share of lots 5 and 6 of SP146586. I believe the reference to lot 3 & 4 should have been 3 & 6 and the reference to lot 5 & 6 should have been 4 & 5. The holdings provide that lots 3 and 6 of the land in question were to be held 50% for my children and 50% for Tamzin's children. With respect to lots 5 and 6 they were to be held 100% for my children. I believe the reference to lots 5 and 6 should have been to lots 5 and 4. The land had only just been subdivided and my father was not familiar with all the title numbers.
27 On 6 July 2006 Peter Manser called me to discuss multiple subjects, including but not limited to lot numbers of titles, clarification about the land holdings,
22 No 28/2016
Hookway Aerospace Pty Ltd leasing, concern about there only being three grandchildren and the possibility the Will could be intestate should something happen to all three, his concern that there should be more than two trustees. I made a note of that discussion in my diary during the call which reads as follows:
- intestate, residue clause or other to avoid 3GC problems - alternate trustees. Annexed hereto and marked with the letters 'SMH-D' is a copy of that note. I discussed all the above with my father the next time I saw him after the call. My father did not appear concerned about the intestate concerns that Peter Manser raised. My father did subsequently discuss with both Tamzin and myself the possibility of additional or alternate trustees and I recall it was decided that it was not necessary.
28 11 July 2006 was my father's 69th birthday. A gathering of people attended the family home that evening including Renee Reinisch, my wife Abi and our children Monique and Damien, Tamzin and her daughter Hannah, Max Simons, Matthie Simons, Graham McLeod and June McLeod. There may have been other people there however I do not recall.
29 On 12 July 2006 I had a telephone conversation with Peter Manser during
which he asked me to email him a copy of the existing Will. Annexed hereto and
marked with the letters 'SMH-E' is a copy of the diary entry on 12 July 2006.
30 On the evening of 12 July 2006 after a discussion with Dad I emailed Peter Manser with revised instructions from my father with regard to the parcels of land to be included. Annexed hereto and marked with the letters 'SMH-F' is a true copy of that email.
31 On 13 July 2006 I returned to Melbourne with my wife and children.
32 On 14 July 2006 I received a telephone call from my father who asked for an update about the drafting of the Will. I advised my father that I had not heard from Peter Manser and that I would follow up with Peter Manser on Monday 17 July 2006.
33 On 18 July 2006 I returned to Hobart. My father had telephoned Peter Manser earlier that day to discuss the Will. He advised Tamzin and I of that telephone conversation and of his request that two additional trustees be added being Russell Hookway and Max Simons. I recall that he was standing at the entrance to the TV room when he told us both. Tamzin and I were both surprised at this news.
34 My father and I continued to discuss business matters and in those
discussions he was coherent and responded appropriately to and therefore appeared to
understand what was being discussed. Items being discussed included
a what fencing needed to be constructed pursuant to the Prudentia sale contract b cleaning out a barn full of scrap metal that was on the land sold to Prudentia c leasing land to Rhonda Hall and a local sheep farmer d SolRio ASIC and director's statement e MID share ownership issues f Hookway Aerospace Pty Ltd directorships g Land Compensation Case h Group Certificates i 4 BAS statements for the companies 23 No 28/2016
j Acquisition of neighbouring land at Cambridge owned by Bob Howlett k Relocation of a pile of clay that was over the new boundary where a fence needed to be constructed – Dad remembered a local oyster farmer had approached him to buy it some time back l The thoroughbred horses m Robert Lynch's proposal to buy Acton Rd land n The Reynolds Lease of the centre part of the Cambridge building o and the sale of the tracker aircraft which I discussed with my father on the morning of Friday 21 July. He advised me that Floyd Stillwell had agreed to pay US$250k per aircraft. I made a note of matters to discuss with my father in my diary on 18 July 2006. Annexed and marked with the letters 'SMH-G' is a copy of my diary entry for 18 July 2006. We discussed these matters in the period of 18 to 21 July 2006 whilst I was in Hobart.
35 On 20 July 2006 I forwarded a further email to Peter Manser with yet another
correction to the title number for the land to be included in the testamentary trust.
Annexed hereto and marked with the letters 'SMH-H' is a true copy of that email.
36 On 21 July 2006 as I stated above was the last day that I saw my father as I returned to Melbourne in the afternoon.
37 On 21 July 2006 I received a call from someone at Simmons Wolfhagen (a lady I believe) to advise me that the Will was ready for collection. As I was flying out that afternoon I asked Tamzin to go to the offices of Simmons Wolfhagen to collect the Will and give it to dad.
38 I did not see the letter nor the draft of the Will before it was executed by my father. I did not have a further discussion with him about the Will after I left Hobart on 21 July 2006. I only became aware that the July Will had been executed when I spoke to Tamzin after dad's death. She said words to the effect that it was lucky that he signed it when he did."
Matters relevant to the discretion to revoke a grant
297 As was stated by Lindsay J in Lucas v Konakas (above) at [211], the central object which the court must keep in view in the exercise of probate jurisdiction generally, and in dealing with applications for the revocation of a grant in particular, is the due and proper administration of the estate before the court, having regard to any testamentary intention of the deceased and the interests of parties beneficially entitled to the estate.
298 This is my principal focus in approaching the exercise of my discretion to revoke the grant of probate of the July will and whilst having regard of course to the question of Tamzin's acquiescence. affirmation and delay, I nonetheless must have regard to all of the circumstances of the case (Neilson v The Public Trustee; the Estate of E L Neilson (above) at [304]. The probate jurisdiction is not primarily concerned with claims of right between adversarial parties. It is concerned with the due administration of property, having regard to the interests of the dead, the living and the public (Lucas v Konakas at [108]).
299 As Lindsay J said at [293]:
"The power to revoke a grant …. is not exercised as of course, or even as matter of right; rather, the question whether, in a particular case, the power ought to be exercised is one which lies in the discretion of the Court, having regard to all the circumstances of the case … Since that discretion is to be exercised after having regard to all the circumstances of the particular case, it is undesirable - and, in any event, probably impossible - to attempt to lay down, in advance, any general principles as to the way particular circumstances ought to affect the exercise of that discretion. However, having regard to the particular features of a case, it may be instructive to look at the way such questions as long delay, estoppel and the concept of abuse of process have been regarded over the years ... ." (Emphasis added.)
300 I instruct myself accordingly. In particular I adopt the approach suggested by Lindsay J in Lucas v Konakas (above) at [109] that independently of equity, an exercise of probate jurisdiction nonetheless requires the Court to take into account facts able, by close analogy, to be characterised as acquiescence or delay, and of course any resultant prejudice.
301 I do not overlook the submission made by Mr McTaggart in his written closing argument that:
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"Factors relevant to the Plaintiff's application for revocation of probate include the
following from the checklist set out by Lindsay J in [Lucas v Konakas] at [320]:
(a) The terms, the size and composition of the estate of the deceased at the time of death, and currently. (b) Whether any (and, if so, what) part of the estate has been distributed (and, if so, when and to whom). (c) The nature and foundation of the interest claimed in the estate by each applicant for a revocation order. (d) The nature and foundation of each competing interest. (e) The date, and circumstances, of each applicant's first knowledge of:
(i) the death of the deceased; (ii) the application upon which the grant was made; and (iii) the grant. (f) The existence and duration of any delay on the part of an applicant in challenging any will, or grant, under challenge. (g) Any explanation for such delay. (h) The grounds relied upon by each applicant to contend that:
(i) The grant should be revoked; and (ii) Any underlying will, or wills, should be held invalid. (i) The evidence available, or reasonably thought likely to be available, to each applicant in support of a prima facie case of invalidity of a will.
(j)
The nature and scope of any inquiries thought to be made by an applicant for the purpose of obtaining evidence in support of his or her application."
Consideration and findings as to acquiescence, delay and prejudice
302 I turn now to a consideration of Stirling's contentions as to acquiescence and affirmation and delay and prejudice. In my view, these contentions can be examined in three broad, but by no means discrete, categories. They are first the question of acquiescence in or affirmation of the July will, second, delay in bringing the present action and resultant prejudice to Stirling, and third, steps taken in administration of the testator's estate and any resultant prejudice to the estate or its beneficiaries.
303 In his written closing submissions, made on Stirling's behalf, Mr McTaggart argued as
follows: "Laches, acquiescence and delay in this case
11 There was significant delay in bringing the present action (in excess of 9 years) and acquiescence on the part of the Plaintiff by joining in the obtaining of probate (a judicial act in the character of an order: Estate Kouvakas at [228]) [sic] and in assisting in the administration of the will. In addition, the Plaintiff opposed the TFM proceedings of her father's partner, including by her own affidavit.
12 The Plaintiff claims that her concerns regarding her father's capacity to make the July Will ('the Will') and as to her father's concerns regarding the Will arose on the day it was made; ie 23 July 2006 (T117 line 44-46). It was therefore at this time
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that she must have had concerns about her father's capacity to understand Mr Manser's explanation of the Will and whether it reflected his intentions. On her case she therefore had sufficient knowledge of the facts to infer knowledge of her rights for acquiescence to apply from this time: Streeter v Western Areas Exploration Pty Ltd (No2) at [638]-[639].
13 She provides no explanation for her delay in the affidavits her counsel read on the trial. She sought to explain her delay through her Facts and Contentions dated 9 February 2016 on the basis that there was no need for her to commence proceedings for revocation until the Defendant repudiated the equal division of assets and that he did so by email on 1 November 2012. It is claimed that the delay since November 2012 is explicable by the litigation and the acrimony between the Plaintiff and the Defendant (para[41], 6th bullet point). The last submission is not developed to elucidate any reasonable basis for it.
14 The deceased died on 24 July 2006. Probate was obtained on 7 September 2006. Action 2014 of 2015 was not commenced until 23 October 2015.
15 The explanation for delay in respect to the period up to 1 November 2012 referred to above reveals that notwithstanding the Plaintiff's knowledge of her concerns regarding her father's capacity, she made a deliberate decision not to seek revocation of probate whilst the trust was to be distributed to the extent of 50% to her child. There is no explanation for the delay from 1 November 2012 until 23 October 2015."
304 In his written closing address Mr Turner submitted on behalf of the litigation guardian:
"18 Much the same can be said of the present circumstances namely:
• The plaintiff has joined in application for a grant of probate of the July will and is one of the persons to whom probate was granted; • She knew at the time of execution of the will that a discretionary trust in favour of the grandchildren was to be created ; • As one of the executors, she has joined in the due administration of the estate – in terms of meeting the liabilities and distribution of assets by way of bequests and the conclusion of a Testators Family Maintenance Act claim. So too, the testamentary trust has been constituted and distributions of its income made.
19 Significant weight ought to be accorded to that; and also to the testamentary intention of the late Mr Hookway – to benefit his grandchildren.
20 These things impel, it is respectfully submitted, a determination that the due and proper administration of the Estate is not served by revocation of the grant."
305 In terms of acquiescence by jointly obtaining a grant of probate of the July will in common form it seems to me that Tamzin's state of mind is of considerable importance. She told Mr Turner in cross-examination that she was concerned about her father's testamentary capacity on the day he signed the will, but she was of the belief that "the trust was still fifty-fifty". She said she continued to believe that until "Stirling said he would no longer be conciliatory". That was on 1 November 2012.
306 That evidence is consistent with what she said in cross-examination by Mr McTaggart. As already noted, Tamzin told Mr McTaggart that at the date her father signed the July will she understood that the trustees were to "distribute fifty-fifty", but she accepted that when she instituted an action in July 2012 against Mr Manser's firm of lawyers, Simmons Wolfhagen, for negligent advice as it pertained to the respective shares of the testator's grandchildren and remoter issue, she knew that there was no guarantee that the trustees of the Testamentary Trust would make distributions from the Trust in the ratio of 50% to her daughter and 50% between Stirling's three children. She accepted that
56 No 28/2016
she nonetheless made no challenge to the validity of the July will until the current action was
commenced on 23 October 2015.307 I accept that it was reasonable for Tamzin to have doubt about her father's testamentary capacity, but I nonetheless believe that the will accorded with her understanding of his testamentary intention because, I accept that Mr Manser, whenever he visited the testator at his home, did, contrary to Mr Manser's denial, advise the testator in answer to an observation from Tamzin that the will "doesn't say the Trust is 50/50" by stating "your trustees will ensure that".
308 I accept it was reasonable that because I accept Tamzin's evidence generally and that question and the answer were recorded by Tamzin in her diary. I am also confident in making this finding because there can be no doubt that Mr Manser was called to the house and there is no other explanation to my mind as to why Tamzin had him summoned if it had not been to address her father's concerns as to the will as noted by her. The day Mr Manser visited does not matter for the purpose of this finding.
309 Mr McTaggart's submission that there was no explanation from Tamzin as to her delay in bringing the present action after I November 2012 does not pay sufficient regard to Tamzin's evidence in re-examination where Mr McElwaine directed her attention to a part of the transcript where Mr McTaggart had asked her about an email from her to Stirling of 19 October 2010, wherein she was expressing to Stirling, circumstances in which she would not get any benefit from the Testamentary Trust. She agreed that at that time she had not applied to challenge the capacity of her father to make the July will. Mr McElwaine asked her why she had not done so, and she replied that she had already been orally advised by Patrick Toomey of lawyers Toomey Maning & Co in March or April 2010 that she "was out of time" and that "the will was set".
310 Notwithstanding that Mr Toomey was not called to verify that he gave that advice, I regard that as a sufficient explanation for any delay between 1 November 2012 and February 2015 when Tamzin first received advice from Mr McElwaine that she could institute the present action. I regard any hiatus in the explanation of delay between that latter date and the date the present writ was filed as insignificant. The parties were already heavily involved in litigation by then.
311 To the extent that it can be said that Tamzin affirmed the July will by her involvement in the application under the Testator's Family Maintenance Act brought by the testator's widow, I again regard Tamzin's governing state of mind as determinative. I do not regard any failure on Tamzin's part to disclose in her affidavit in those proceedings the details of her observations as to her father's testamentary capacity as an abuse of process. Those proceedings were of a very different kind to the present action, there was nothing on Tamzin's part akin to malversation and I note that the proceedings were settled by agreement.
312 It follows that I do not accept Mr Turner's submission that in joining in the application for the grant of probate and accepting the offices of executor and the trustee, "the plaintiff has eschewed the rights/entitlements conferred on her by the earlier, June 2006, will".
313 A further aspect of the delay in bringing the present action is said, on Stirling's behalf, to be that recollections of material witnesses have faded and documents have been lost.
314 Stirling relies on the often cited passage from the judgment of McHugh J in Brisbane South Regional Hospital v Taylor (1996) 186 CLR 541 at 555, where his Honour said:
"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates.' [11] Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties.
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Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [12], 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."
315 Mr McTaggart submitted in his written closing argument as follows:
"18 Mr Manser was contacted by the Plaintiff in late May 2010 but she didn't raise any question of her father's capacity. He was not asked to recall the events surrounding the making of the will until late December 2015 (T372) when he was asked to do so by the Defendant's representatives. Dr Vidor's opinion was not sought until 12 February 2015 (CB1581). Mr Simons was not asked to recall the events on 22 and 23 July 2006 until about June 2015 (T172-3). Mr Ng was not approached by the Plaintiff until November 2015 (T395). There is no evidence as to whether Renate Reinisch ('Renate'), Mrs Ng and David Morris have ever been asked by the Plaintiff to provide statements. If these witnesses had been contacted earlier the medical witnesses would have had the advantage of the observations of the deceased by these people whilst events were still fresh. As submitted below the experts rely upon the observations of persons who were in contact with the deceased shortly prior to his death to assess the effect upon him of the medications.
19 Stirling Hookway can't recall what his father told him regarding his father changing his mind regarding the fixed holdings of the assets of the testamentary trust (T322 line 7-14, T324 line 15-25 and T326 line 26-39).
20 Mr Manser has limited memory of his dealings with the Defendant and the deceased and largely relies upon his file notes (T348 line 16-19 and T368 line 41-45). For example on 18 July 2006 he spoke with the deceased for 20 minutes but only records in his file note the addition of two trustees. It is likely that they would have discussed why the deceased wanted the additional trustees. With fixed holdings he would not have needed additional trustees but with a discretionary trust he may have. Mr Manser no longer has the original notes he took at his 22 July 2006 meeting with the deceased although he did say that he believed they were as brief as the notes he was accustomed to making on the file (T365 line 10-15). Mr Manser couldn't recall his conversation with the deceased on 22 July 2006 in sufficient detail to advise the Court what he asked the deceased after he received verbal confirmation that the deceased had received and read the will (T375 line 32-T376). It is likely that over the course of an hour Mr Manser would have discussed the Will in more detail than he can now recall and that if the deceased had any concerns with the Will he would have raised them.
21 Dr Vidor's records of his treatment of the deceased have been destroyed (T92 line 1-20). He was dependent upon his memory ('as far as my memory goes': T99 line 16-17) for his observations about the deceased's health on 22 July 2006.
22 Mr Simons was not asked to recall the events on 22 and 23 July 2006 until about 9 years later. The limitations of his recollections are discussed below.
23 Mr Ng cannot remember any further details of the circumstances surrounding the signing of the will on 23 July (CB2046 [11]). He can't now say what discussions took place with the deceased about the will before he signed it (T392 line 41-2 and T393 line 41-T394 line 3).
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24 If probate had not been sought then it is likely that Renate Reinisch would
have been in a position to advise this Court as to her observations regarding her
partner's capacity at relevant times."
316 As to Mr Manser, it is true that he was not asked to recall the events surrounding the making of the July will until late December 2015. However, as a practising solicitor he had his professional file recording all relevant events to rely upon and, in my view, as a matter of common experience, it is doubtful whether as an actively engaged legal practitioner, other than for a short period after the events had occurred, he would have retained a detailed memory of those events independently of his file. In any event, as a matter of fact, I have not been hindered in making findings as to Mr Manser's instructions or advice by any lack of information beyond that recorded by him. What he recorded demonstrates the divergence between his instructions and the will, and the question of testamentary capacity would always have been the subject of expert evidence, as it was.
317 As to Dr Vidor, he did agree in oral evidence that because his former medical practice had been dissolved, with the result that the testator's medical records kept by him were no longer available, his affidavit had been prepared by him without the benefit of any contemporaneous note that he had made of his attendances on the testator, and that it was based on his memory and also the notes from the Palliative Care Service that he had read.
318 He also agreed that he had been first asked for his opinion for the purposes of these proceedings on 12 February 2016, and the source of his information as to what occurred on 23 July 2006, and as to when breakthrough medication was administered, was Tamzin.
319 Nonetheless, it must be remembered that Dr Vidor's evidence-in-chief was that he was unable to make a retrospective assessment of the testator's capacity to make and understand his will on the late afternoon of 23 July 2006. He said that such an assessment would require specific questioning at the time to ascertain his awareness and understanding of the decisions and issues involved in making his will. And he said that he was not requested to make an assessment at the time and could not do so in retrospect.
320 Despite this however Dr Vidor stated that he did have significant concerns regarding the testator's capacity at the relevant time. In the result it was not necessary for me to rely on Dr Vidor's evidence except in a most general way.
321 An important difference in considering Brisbane South Regional Hospital v Taylor (above) in an action which has been tried as opposed to an application to extend time, is that in the former case all of the available evidence has been heard and the trial judge is well placed to know the relative importance of the evidence led and tested on the trial and evidence that might have been lost or deteriorated in quality. In this regard I am able to say that in the result I did not find that I was hampered by any lack of a more detailed recollection of events from Dr Vidor or Mr Manser or Mr Simons or Mr Ng. And not having cause to disbelieve Tamzin, she being the testator's principal carer and attendant, I do not apprehend that I would have been particularly assisted by evidence from Renate Reinisch.
322 I should say something about Stirling's evidence, that he could not recall what he intimated he had been told by his father as to his father changing his mind regarding the fixed holdings of the assets of the Testamentary Trust. Put simply I did not believe him.
323 What Stirling first said in cross-examination by Mr McElwaine as to his father's intentions as to the Testamentary Trust is set out in full from the transcript at [143], [144] and [146] above in these reasons. In short Stirling agreed that his father wished his children to have a defined interest in particular properties, and that he never intended Stirling's children to be considered as beneficiaries of the Trust to the extent of 100% of income or capital.
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324 Stirling then suggested in the passage from the transcript set out at [160] above that his father changed his mind on what he wanted to do with Lots 3 and 6 saying that there was a discussion, after the testator signed the letter to Mr Manser of 5 July, "around" his father saying that he did not want Lots 3 and 6 to be held as to 50% for his children and 50% as to Tamzin's children. Stirling said that he could not remember what his father said, he could not remember exactly what his father told him and he could not remember the words used.
325 I found Stirling's evidence set out at [160] at the time he gave it to be quite preposterous. I gained the distinct impression at the time that he was seizing upon an opportunity to turn things in his favour by suggesting a volte face on his father's behalf, but that he was not prepared to elaborate. I did not gain the impression that he was genuinely affected by some lack of detailed recollection, but rather that he was either not willing, or not sufficiently rehearsed, to condescend to untruthful detail.
326 The suggested change in mind on his father's part as to this central feature of his testamentary intentions would have been sufficiently momentous that details of the relevant conversation is extremely unlikely, in my view, to have eluded Stirling's otherwise remarkably good recollection. Moreover it was not borne out by the email from Stirling to Mr Manser of 12 July 2006, and Stirling accepted that he had no further discussions with Mr Manser after that date. The testator did speak to Mr Manser on 18 July 2006 but there is no suggestion on the evidence that he changed his instructions to Mr Manser beyond requesting that two additional trustees be added. Indeed, Mr Manser accepted that prior to receipt of the email of 12 July he received no instruction as to any other alteration to the terms of the Trust the subject of the testator's letter of 5 July, and he agreed that if on 18 July 2006 when the testator rang him he had told Mr Manser to alter the Trust requested in the letter of 5 July he would have made a note about that.
327 It follows that I do not accept that any delay on Tamzin's part in bringing the present action resulted in any relevant deterioration in Stirling's memory.
328 The third category of conduct relevant to my consideration of the exercise of my discretion to revoke probate of the July will comprises the steps taken by Tamzin, and also Stirling of course, in the administration of the testator's estate and any prejudicial impact upon the estate or its beneficiaries as a consequence.
329 In his closing submissions Mr McTaggart, with whom Mr Turner joined on behalf of the litigation guardian, wrote:
"31 If the Plaintiff had not joined in proving the Will or had sought to revoke probate at an earlier time and was successful in doing so, then it is unlikely that the estate and or Stirling and Tamzin Hookway would have leased the 'trust' properties through Hookway Aerospace (T311 line 4-17). Therefore Hookway Aerospace and the other companies of which she and her brother are shareholders would not have gone into liquidation . She would have acquired the 50% of the residue of her father's estate which she desired. As a result there would not have been the following liquidator's costs:
•
CB1441 meeting of creditors on 31 October 2014 for Hookway Aerospace at which the liquidators remuneration was approved at $231,990.40 plus GST;
•
CB1437 an estimate for the liquidator's further costs as at 27 November 2014 of between $227,370.00 and $284,370.00;
•
CB1444 meeting of creditors of Sol Rio at which liquidator's costs were approved at $37,195.80 plus GST.
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32 The Plaintiff's delay has caused the trustees to incur possible personal
penalties and penalty interest for failing to lodge tax returns for the testamentary trust
(T315 line 23-26).
33 The Plaintiff's delay has caused the Defendant to bring application number 674/2015 and defend action number 169/2015 brought by the Plaintiff and incur costs in doing so. The Plaintiff has sought personal costs orders on an indemnity basis against the Defendant in respect of these proceedings."
| 330 | Mr McElwaine made the following written submissions on behalf of Tamzin: "Administration of the estate pursuant to the grant |
100 Factually, Tamzin and Stirling Hookway have taken various steps to administer the estate (albeit not effectively or efficiently) since the grant of probate.
101 For the reasons above, when those steps were taken her state of mind reflected firstly her belief that the will was consistent with her father's intentions and secondly the (wrong) advice which she received as to her ability to have the grant set aside.
102 In any event, the steps which she did take, jointly with her sibling, to administer the estate pursuant to the July will have been, apart from a bequest of $5,000, entirely consistent with the June will.
103 Moreover, other steps which have been taken, would have been taken in any event and pursuant to either will. The cross-examination of Stirling Hookway identified the following. First, the TFM application would in all likelihood have been brought under either will . Without any factual, legal or logical basis, Stirling Hookway contended that the settlement may have been greater under the June will because of the residue clause . Even if this contention is evidence of an admissible fact, it is entirely erroneous. TFM proceedings are brought by an applicant, within an eligible class, where inadequate provision has been made 'out of his (sic) estate' . Where that is so this Court has discretionary jurisdiction to make provision 'out of the estate of the deceased person'. The exercise of the discretion is plainly not limited by the terms of the will, and in particular how the residue is dealt with.
104 Secondly, the sale of property to Prudentia Investments P/L would have imposed a liability upon the estate under either will.
105 Thirdly, securing subtenants, by the entry into of subleases, was important to secure the income stream for the estate and was not impacted by the terms of either will.
106 Fourthly, in any event, so far as rental from subleases is concerned, in 2009 $34,399 was received and which was distributed equally as between the children of Tamzin and Stirling and the sum of $65,917 received for 2010 was distributed equally as between Stirling and Tamzin Hookway . No other rent has been paid by Hookway Aerospace.
107 Fifthly, and self-evidently notwithstanding the evasive evidence of Stirling Hookway, any communication with the liquidator would have been required pursuant to each will.
108 And finally, no taxation returns have been lodged since 2009."
331 I accept each of the submissions made by Mr McElwaine. To the extent that he does not address all of Stirling's contentions, I am of the view that it was not only Tamzin's delay that has caused the trustees to incur possible personal penalties and penalty interest for failing to lodge income tax returns for the Testamentary Trust, and it was not only Tamzin's delay that caused Stirling to bring application number 674/2015 and to defend action 169/2015. Stirling's position on the distribution of
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the Trust having gone from one where, on 1 February 2010, he was prepared to sign a document agreeing to the proposition that "Trust assets proceeds … be distributed between Stirling and Tamzin's children fifty-fifty respectively …", to one where, on 1 November 2012, his anger over Tamzin's application to wind-up their companies caused him to change his "conciliatory position regarding the trust", it cannot, in my view, be said that Stirling's animosity towards and inability to work with Tamzin was not in part responsible for the irretrievable breakdown of the relationship between them that led to the suite of litigation that ensued. In my view, it should have been obvious to Stirling at an early stage that the root cause of the problems he attempted to solve by litigation was not whether he was right and his sister wrong but the fact that the breakdown of their relationship meant that neither of them would be able to agree about anything.
332 It may well be that a detailed legal and accounting comparison between what has occurred purely in the administration of the July will, and what would have occurred had the June will been proved, would demonstrate that there has been unnecessarily wasted expenditure to date in the events that have happened. However, doing the best that I can on the evidence I have, I am not persuaded that any such wasted expenditure is sufficient in all of the circumstances to warrant me taking the view that Tamzin should be precluded from seeking the relief that she claims, or in me refusing to exercise my discretion to revoke the grant of probate of the July will.
333 Finally, I should make it clear that I accept the submission made by Mr McElwaine that there is no apparent difference between Stirling's defence, which is based on the administration of the estate pursuant to the grant, and the general contention of affirmation of the validity of the will by reference to the matters pleaded in the defence. As I have already observed, in any event, the answer is as I have accepted, namely that all of the steps which have been taken would most likely have been taken
pursuant to either will. Consequently the outcome would not have been materially different.
Conclusion
334 I have noted earlier in these reasons that the central object to be kept in mind in the exercise of the probate jurisdiction generally, and in dealing with appeals to the exercise of the discretion to revoke a grant of probate in particular, is the due and proper administration of the estate before the Court, having regard to any testamentary intention of the deceased, the interests of parties beneficially entitled to the estate and the interests of the public. This has been my focus in approaching the exercise of my discretion to revoke the grant of probate of the July will.
335 Taking into account all of those considerations as examined in these reasons I have reached the view that I should exercise my discretion to revoke the grant of probate of the July will made on 7 September 2006. The testator lacked testamentary capacity to execute the July will, the rule in Parker v Felgate is not engaged, and there is no sufficient disqualifying conduct on the part of Tamzin to preclude her from obtaining the relief she seeks.
336 I am not satisfied of the existence of any significant prejudice to Stirling or to the estate. It is true to say, as was submitted by Mr Turner in his written closing argument, that it is abundantly clear that the testator wanted his grandchildren, and not his children, to have the benefit of the property settled on the Testamentary Trust. However, it is equally clear that he wished his grandchildren to have a defined interest in the property and not a mere right to be possibly considered as a beneficiary of a discretionary distribution. Whilst I would exercise my discretion in the same way in any event, I apprehend that any loss of entitlement on the part of any child of Tamzin or Stirling is likely to be ameliorated or replaced as a result of the bounty of the natural love and affection of his or her parents.
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Disposition
337 I will hear counsel as to the terms of the appropriate orders, and as to the question of whether there should be a grant of probate of the June will, or a grant of letters of administration with the June will annexed and if so to whom.
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