Howroyd v Howroyd
[2011] TASSC 73
•22 December 2011
[2011] TASSC 73
COURT: SUPREME COURT OF TASMANIA
CITATION: Howroyd v Howroyd [2011] TASSC 73
PARTIES: HOWROYD, Richard John
v
HOWROYD, Terence David
FILE NO/S: 423/2009
DELIVERED ON: 22 December 2011
DELIVERED AT: Hobart
HEARING DATE: 7, 8, 9 and 10 December 2010
JUDGMENT OF: Wood J
CATCHWORDS:
Succession – Wills, probate and administration – The making of a will – Testamentary instruments – Knowledge and approval of contents – Generally – Circumstances raising suspicion – Will prepared by person taking benefit.
Vernon v Watson [2002] NSWSC 600; Nock v Austin (1918) 25 CLR 519, referred to.
Aust Dig Succession [12]
Succession – Wills, probate and administration – 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.
Banks v Goodfellow (1870) LR 5 QB 549, Bailey v Bailey (1924) 34 CLR 558, referred to.
Wills Act 1992 (Tas), s10.
Aust Dig Succession [8]
REPRESENTATION:
Counsel:
Plaintiff: T J Williams
Defendant: D F M Zeeman
Solicitors:
Plaintiff: Gunson Williams
Defendant: Butler McIntyre & Butler
Judgment Number: [2011] TASSC 73
Number of paragraphs: 241
Serial No 73/2011
File No 423/2009
RICHARD JOHN HOWROYD v TERENCE DAVID HOWROYD
REASONS FOR JUDGMENT WOOD J
22 December 2011
A claim has been made that the Court shall decree probate of the will of Denis James Howroyd in solemn form. Mr Howroyd died on 9 July 2007.
The plaintiff, Richard Howroyd, is the nephew of the testator and a solicitor. On Sunday, 8 July 2007, he received a request to attend his uncle in St John's Hospital, Hobart to speak about his will. Richard Howroyd knew his uncle was gravely ill and might be dying. He took instructions for a will at his bed-side and drafted the clauses in long-hand. He had never prepared a deathbed will before. Two women visiting a patient at the hospital agreed to witness the signing of the will. The attesting witnesses recall aspects of the incident, accept they signed the will, but cannot remember seeing Mr Howroyd sign the will in their presence. Mr Howroyd died the following day.
The challenged will is simple and short. It contains some errors, one of which was corrected by Richard Howroyd, but the correction was not initialled by the testator. Standard clauses have not been included.
Richard Howroyd is a residuary beneficiary under the challenged will. The other residuary beneficiary is his brother, Glenn Howroyd.
The defendant, Terence Howroyd, is the testator's youngest brother. He has entered a caveat opposing the grant of probate. He is a beneficiary under the challenged will, but his share of the estate is less substantial than that of his two nephews.
Under an earlier will made by the testator in 2003, Richard Howroyd and his brother, Glenn, were both beneficiaries as was Terence Howroyd. Under that will, Terence Howroyd was to receive a larger share of the estate than Richard Howroyd. Richard Howroyd stands to gain by the new will and his position is improved by comparison with the bequest to him under the 2003 will.
The issues
Three separate questions arise from the pleadings:
1 Was the signature made or acknowledged by the testator in the presence of the two witnesses who were present, as required by s10 Wills Act 1992?
2 At the time of the execution of the will, did the testator lack testamentary capacity?
3 At the time of the execution of the will, did the testator know and approve of the contents of the will?
Particulars of the assertion of lack of testamentary capacity set out in the defence are as follows:
"4The deceased Denis James Howroyd at the time of the execution of the alleged Will dated the 8th July 2007 lacked testamentary capacity.
PARTICULARS
The defendant says that the deceased Denis James Howroyd lacked testamentary capacity at the time he signed the alleged Will dated 8 July 2007 because:
(a) he was in a rapidly changing clinical state in that he was dying at that time;
(b)he was medicated to such a state at that time as to not be able to appreciate the effect of his actions at that time; and
(c) he was unable to communicate at all at that time."
The particulars of lack of knowledge and approval are as follows:
"3 The defendant says further that the deceased Denis James Howroyd at the time of the execution of the alleged Will dated the 8th July 2007 did not know and approve of the contents thereof.
PARTICULARS
(a)The deceased Denis James Howroyd did not give the instructions for the alleged Will;
(b) No written instructions for the alleged Will were taken;
(c)The alleged Will was not read over or explained to the deceased Denis James Howroyd at the time of its alleged execution;
(d)The deceased Denis James Howroyd at the time of the execution of the alleged Will dated the 8th July 2007 did not know and approve of the contents thereof."
In relation to the third issue of knowledge and approval, the defence has invoked the doctrine of probate law of "suspicious circumstances". A key factor relied upon is that the person instrumental in the framing of the will, Richard Howroyd, is also a beneficiary under the will. The circumstances identified as suspicious, such that the testator did not know and approve the contents of the will, are particularised as follows:
"PARTICULARS
(a) The plaintiff was the nephew of the deceased Denis James Howroyd;
(b)The deceased Denis James Howroyd was in a rapidly changing clinical state in that he was dying at the time of the execution of the said Will;
(c)The deceased Denis James Howroyd was medicated to such a state as to not be able to appreciate the effect of his actions at the time of execution of the said Will;
(d)The deceased Denis James Howroyd was unable to communicate at all at the time of the execution of the said will.
(e)The plaintiff wrote out the said Will for the deceased Denis James Howroyd in his hospital room immediately before it was executed;
(f)No other person was present with the plaintiff and the deceased Denis James Howroyd in his hospital room at the time that the said Will was written out by the plaintiff;
(h)The plaintiff was present at the time of the execution of the said Will by the deceased Denis James Howroyd.
(i)The plaintiff benefited substantially from the said Will whereas the Plaintiff would have received a substantially smaller portion of the estate of the deceased Denis James Howroyd in the only other known Will executed by the deceased Denis James Howroyd on the 19th June 2003;
(j)The deceased Denis James Howroyd had had no regular contact with the plaintiff before his death.
(k)The Plaintiff, who wrote the said Will, is a legal practitioner with experience in the preparation of Wills and despite such experience, the said Will is messy and contains errors;
(l)The said Will was initially dated 8 June 2007 with that date crossed out and corrected to read 8 July 2007 and although that correction was initialled by the two witnesses to the execution of the said Will, it was not initialled by the said Denis James Howroyd;
(m)The Plaintiff and his brother, named as beneficiaries in the said Will, have their names written out in full in the said Will whilst the Defendant, also named as a beneficiary in the said Will has his named [sic] shortened in the said Will;
(n)The said Will does not purport to revoke any previous Will of the said Denis James Howroyd in circumstances where the said Denis James Howroyd had apparently made a Will on the 19th June 2003;
(o)The said Will purports to describe the said Denis James Howroyd by the first names of 'Dennis' and 'Deniis'; and
(p)The said Will does not provide for the payment of the funeral and other testamentary expenses of the said Denis James Howroyd."
An issue that does not arise
The defence does not assert fraud or undue influence by the plaintiff in the preparation of the will.
Common ground
Some of the facts are common ground: matters of personal history about the testator, the testator's relationships with family members, the existence of a will made by the testator in 2003, the terms of the contested will, and details regarding the deceased's estate. These are set out at this stage as context for the consideration of the questions identified above.
There is a substantial amount of evidence from the plaintiff and witnesses for the plaintiff which is challenged. In relation to most of it there is no evidence to the contrary, from other witnesses or documents. Nonetheless, the evidence is very much in contention. It falls into the category of evidence to be scrutinised, and is dealt with separately.
The testator
The testator, Mr Denis James Howroyd, was aged 74 when he died. He had no children and had never married. He did not have a partner or companion in life.
Mr Howroyd graduated from the University of Tasmania with an economics degree and pursued a career as an accountant employed by Treasury. Towards the end of his working life he worked as a State Government auditor.
He grew up in Scottsdale with his parents and three brothers and moved to Hobart to attend university. Soon afterwards his parents moved to Lindisfarne. Mr Howroyd then lived with them in their house at Lindisfarne, caring for his mother when she was widowed. After her death in 1987 he inherited the house and continued to live there, alone.
He also had a holiday house at Bridport. His major hobby was growing orchids and he had an "orchid house" at Lindisfarne and Bridport.
Mr Howroyd was described as "his own person". By that I gather it was meant that he was an independent thinker and did things his own way, to the point of eccentricity. By way of example, he continued wearing a gentleman's hat, a pork pie hat or similar, long after it was out of fashion. He was described in evidence as reserved, not demonstrative and a "private person". The descriptions of Mr Howroyd in evidence, portray him as an intelligent, kind and dignified gentleman.
Terence Howroyd has given evidence that I accept about some of his brother Denis Howroyd's character traits. These traits are relied upon as giving rise to concern about the challenged will. Terence Howroyd noted that his brother was always a very formal man who exercised great care with detail. Similarly, Mr Howroyd's treating doctor, Dr Jupe spoke about Mr Howroyd as a "fastidious" man. Mr Howroyd always spelled his name with one "n" and whenever people spelled it with double "n", he was greatly annoyed.
Mr Howroyd developed cancer, multiple myeloma about five years before his death. Over those years he had a number of admissions to hospital for that condition and complications associated with it. His treating practitioner for that condition was Dr David Jupe.
Mr Howroyd died at the Palliative Care Unit at the Gibson Unit, St John's Hospital on 9 July 2007. He was in the Gibson Unit in the days leading up to his death. The background to his admission to that Unit are as follows.
Mr Howroyd was admitted to St John's Hospital as a consequence of a complete small bowel obstruction. That was unrelated to his condition of multiple myeloma which was at an advanced stage and had led to a significant loss of condition.
Dr Jupe sought a surgical opinion with respect to the bowel obstruction and Mr Howroyd was transferred to Calvary Hospital for a period of assessment and intravenous nutrition. At Calvary Hospital he spent some time in intensive care. After consultation with the specialist, Mr Bob Linnacre, it was decided that surgical intervention was not possible due to the fact that he was a high risk operative candidate. Unless there was spontaneous improvement, the outlook was grave. Mr Howroyd was made aware of that and that if the condition did not resolve he would not survive.
On 6 July, Mr Howroyd was transferred to the Gibson Unit at St John's Hospital for palliative care. Dr Jupe sought advice from Dr Paul Dunne as the consultant in palliative medicine at the Repatriation General Hospital regarding palliative management of the bowel obstruction. A meeting with Dr Jupe, Dr Dunne and Mr Howroyd was held on 6 July to discuss palliative management.
At this meeting Dr Jupe and Dr Dunne talked to Mr Howroyd about the incurability of his bowel condition and the plan to treat him palliatively. Dr Dunne spoke to him about making the rest of his days as comfortable as possible. The doctors, uncertain as to how long his time was, spoke in terms of generalities of days and weeks. Undoubtedly, Mr Howroyd knew after that discussion that his condition was very grave and he did not have long to live.
Dr Dunne looked after Mr Howroyd over the weekend. He saw him on 7 July and then the following day, approximately three to five hours before the time the challenged will was made. After the meeting on 6 July, described above, Dr Jupe did not see Mr Howroyd until the morning of Monday, 9 July, and by that time he was comatose.
The testator's family
The testator is the second youngest of four brothers. His eldest brother is Richard Brian Howroyd (usually known as Brian, and referred to as Brian in these reasons to avoid confusion with the plaintiff), born 1924 and the father of the plaintiff. He had a brother Laurence (Bill) born in 1929, Denis was born in July 1933 and the youngest brother, Terence was born in 1935.
Brian Howroyd studied in Hobart and settled in Hobart. Terence moved away in the 1950s after graduating from university. He pursued a career as a university academic and lived in Melbourne and Scotland and finally moved to Canada where he became a professor of mathematics and has continued to live there since retirement. Bill Howroyd moved to Western Australia in the 1970s and returned to live in Hobart in about 1980.
The testator, Mr Howroyd had regular contact with his brother Brian Howroyd, his wife and children throughout his life. He lived with Brian and his wife for a short while when he was at university. Brian Howroyd was an architect and he designed Mr Howroyd's holiday house at Bridport. Mr Howroyd celebrated family events such as Christmas and birthdays with Brian, his wife Pat Howroyd, and their two children Richard and his younger brother Glenn.
After Mr Howroyd developed cancer and his physical condition deteriorated, Brian Howroyd and his wife assisted him in various ways. They helped with household chores such as hanging out his washing and washing-up. When he was in hospital they had the keys to his house and watered his orchids, did some tidying of his house, collected his mail and attended to his banking. On an ongoing basis they did his shopping and collected his medicines. As time went on he needed increasing support. In the last six months or so there was frequent contact with him.
As he was growing up, Richard Howroyd had regular contact with his uncle in the family setting. There were visits to his grandparents' home at Lindisfarne where Mr Howroyd lived. These visits were a regular event on Friday nights, but there was also contact at other times, and on special occasions such as birthdays, Easter and Christmas. As Richard Howroyd was growing up they shared an interest in coins and shares.
Richard Howroyd, as an adult, kept in contact with his uncle. Mr Howroyd visited his nephew when he was living in England. Mr Howroyd went to his wedding in 1981. After that for a period of approximately four years the plaintiff lived interstate, returning with his own family to live in Hobart. Richard Howroyd and his family visited his grandmother and Mr Howroyd occasionally and on special occasions.
On one occasion Richard Howroyd and his wife used Mr Howroyd's holiday home at Bridport. He saw less of his uncle after his grandmother's death in 1987. However, Richard Howroyd continued to see Mr Howroyd at Christmas time and on family occasions, and they continued to have a friendly relationship. Richard Howroyd visited him in hospital in 2005. Mr Howroyd attended Brian and Pat Howroyd's sixtieth wedding anniversary in May 2007. He did not stay long but joined the family for the meal and sat next to Richard Howroyd.
Richard drew the will for his grandmother, Mrs Howroyd. The testator was left the house subject to the mortgage. Richard Howroyd acted in her estate. Richard transferred the house to Mr Howroyd and accounted to him in the estate because Mr Howroyd was responsible under the will for the payment of the funeral and testamentary expenses.
In October 2005 Mr Howroyd asked Richard Howroyd to keep his title deeds to his two properties in safekeeping at his office. Richard Howroyd did so and wrote to Mr Howroyd confirming that he would do that for him.
Glenn Howroyd described his uncle as appearing to have a strong attachment to his immediate family. Mr Howroyd also developed a friendship with Pat Howroyd's family. He kept beehives in the orchard of Pat Howroyd's father's property at Kettering.
Glenn Howroyd described his own relationship with his uncle as he was growing up. Friday nights were spent at his grandparents' house and, as the other adults conversed, Mr Howroyd often chatted to his nephews instead and entertained them. On Christmas Day, at the evening meal held at Lindisfarne, when the dining table was crowded, Mr Howroyd joined his nephews at the card table for dinner. Mr Howroyd helped Glenn Howroyd with his schoolwork.
Glenn Howroyd moved to Sydney in the late 1970s. He kept in contact with his uncle by occasionally telephoning him and exchanging Christmas cards. On return visits to Tasmania, Glenn Howroyd visited Mr Howroyd approximately once a year. Mr Howroyd stayed with Glenn Howroyd when he travelled to Sydney on two occasions for the funerals of family members. Glenn Howroyd's evidence was that Mr Howroyd never told him or even hinted at the fact that he had included him in his will. He only learnt of this and his role as executor of the estate, when Mr Howroyd died.
Glenn Howroyd's evidence was that Mr Howroyd showed a genuine interest in him and his brother as they were growing up and used to engage with them in a meaningful way.
A mutual fond regard between uncle and both nephews was evident from the evidence of Richard and Glenn Howroyd.
Terence Howroyd's contact with his brother was limited due to the fact he lived in Canada. He returned to Tasmania and visited family at regular intervals and had done so in the previous ten years before Mr Howroyd's death. The last time he saw his brother was in 2000 when he visited Tasmania. On that visit he stayed with the testator for some weeks.
The two wills
The testator, Mr Howroyd, made an earlier will dated 19 June 2003. It was made on a "Quill Will" form. It was kept by Mr Howroyd at his home amongst his papers. Its whereabouts became known by Brian Howroyd when Mr Howroyd was in hospital in 2005. Richard Howroyd was not instrumental in drafting that will or assisting Mr Howroyd with regard to it.
The terms of the 2003 will were that the testator left the Lindisfarne property to his brother Terence Howroyd, the Bridport property to Glenn Howroyd and the remainder of the estate to Richard Howroyd. The terms of the will were as follows:
"This is the last Will and Testament of me, Denis James Howroyd otherwise known as Dennis James Howroyd (name)
of 49 Kaoota Rd, Rose Bay, Hobart, Tasmania (address)
in the State of Tasmania
1I revoke all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament.
2 I appoint my nephew Glen Howroyd (name)
of Sydney
to be Executor or Executrix and Trustee of this my Will.
I give to Malcolm French of Benjafield Terrace, Mt Stuart, Hobart my my [sic] shade house orchids and orchid library books plus a computer.
I give my tools and workshop equipment as held at Bridport to Ken Walker of 9 Emily St, Bridport
I give and devise my holiday cottage at 127 Westwood st. Bridport Tasmania to my nephew Glen Howroyd. I give the furniture and fittings in the aforesaid cottage to Glen Howroyd. I give and devise my home at 49 Kaoota Rd Rose Bay, Hobart Tasmania to my brother Terrance David Howroyd
I give my car to my nephew Glen Howroyd
I give all the rest of my property to my nephew Richard Howroyd of Hobart Tasmania as beneficiary
Dated this 19th day of June in the year two thousand and three"
The challenged Will made on 8 July 2007 is in simple terms and was completed on a single page. The substantive part of the Will is as follows:
"2 I appoint Glenn Calvert Howroyd, my nephew, to be my executor.
3 I give my shares to my brother, Terry Howroyd.
4I give devise and bequeath the rest of my estate to my 2 nephews, Glenn Calvert Howroyd and Richard John Howroyd in equal shares."
A copy of it appears at the end of these reasons.
The estate
An inventory of assets and liabilities filed with the probate registry is part of the evidence. Glenn Howroyd, as executor, has filed an affidavit in these proceedings attaching the inventory and describing it "as a true statement of the estate of the deceased and that the values are fair and reasonable". It provides that the total value of the assets are $843,233.50 and total liabilities are $12,514.68. Details of the value of cash and assets provided in the inventory are as follows:
Motor vehicle
$5,500
Cash held in bank accounts totalling
$26,683.50
House and land at Bridport, Tasmania
$300,000
House and land at Lindisfarne, Tasmania
$300,000
House and chattels, tools and furniture
$12,000
Orchid collection and shade house
$800
Shares
$198,250
The inventory provides an estimate of the value of the entirety of the estate at the time it was prepared. Richard Howroyd's evidence was that the affidavit of assets and liabilities was prepared, and information about the value of the shares was obtained after Mr Howroyd's death and before 18 February 2008. There is no other more specific evidence regarding the value of the estate and specific assets at that time. The parties have proceeded on the basis that for the purposes of this case the appropriate assumption is that the inventory reflects an estimate of the value of the assets at the time of Mr Howroyd's death. There is also no evidence regarding the value of the estate or any of the specific assets at any other time such as at the time the making of the challenged will in July 2007 or the original will in 2003.
The position of the beneficiaries under the 2007 will compared with the 2003 will
Based on the estimates of the value of the testator's assets as set out above in the inventory, there is common ground about the comparative positions of the beneficiaries under the two wills. Richard Howroyd receives a larger share of the estate under the 2007 will than under the 2003 will. His share of the estate under the 2007 will is worth about $100,000 more than his share under the 2003 will, based on the values of the real estate and share portfolio at the time the inventory was prepared. Under the 2007 will Terence Howroyd would receive a share of the estate which was then worth about $100,000 less than his share under the 2003 will. The bequest of the Lindisfarne house to Richard Howroyd in the 2007 will represents a gain to him to the detriment of Terence Howroyd who was to receive the house under the 2003 will. Of course, it is reasonable to assume that for Terence Howroyd the family home at Lindisfarne would possess a sentimental value. The bequest to Glenn Howroyd in the challenged will, compared with the 2003 will, is worth approximately the same.
There was evidence that by the time of the hearing the value of the share portfolio had decreased due to the global financial crisis, and the value of the real estate had risen. Again, no exactitude has been brought to the values of the share portfolio and real estate at that time. Of course, it is the value at the time of the testator's death which is significant in determining the issues in this case.
The law
1 – Due execution
It is pleaded that the will is invalid and not all of the statutory requirements for due execution have been complied with. While no evidence has been led by the defendant on this issue, no concessions have been made, and the defendant puts the plaintiff to proof.
The Wills Act 1992, s10, provides:
"10 Requirements as to writing and execution of will
Except as provided by this Act, a will is invalid unless it is in writing and executed in the following manner:
(a) it is to be signed at the foot or end of the will by the testator or by some other person in the presence of, and by the direction of, the testator;
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time;
(c) the witnesses must attest and subscribe the will in the presence of the testator, but no form of attestation is necessary."
It is the defendant's position that the Wills Act, s10(b), has not been established and that the evidence does not establish that the testator signed the challenged will in the presence of the two witnesses, or that he acknowledged his signature in their presence.
The two witnesses must be present at the same time, and if the testator did not actually sign in their presence, there must be an acknowledgement by the testator of his signature in their presence.
An acknowledgment by the testator of his signature may be inferred from the facts. It has been held to be sufficient acknowledgment for the testator to produce the document with the signature on it and to ask the witnesses to subscribe: Daintree & Butcher v Fasulo (1888) 13 PD 67. The concept of acknowledgment by the testator of his signature in the presence of witnesses requires at least that the witnesses see or have the opportunity of seeing the signature: In re Skelton [1930] VLR 323.
It is worth noting that there is no necessity for due execution to be proved by evidence from the attesting witnesses. It can be proved by evidence from some other source.
The principles of law that govern a consideration of the second and third issues, testamentary capacity and knowledge and approval, are well settled. They are separate legal issues, and both need to be proved.
2 Testamentary capacity
If testamentary capacity is not established, the will is void. The burden of proving testamentary capacity lies on the person propounding the will: Bailey v Bailey (1924) 34 CLR 558 at 570. The court must be affirmatively satisfied that the testator was of sound mind, memory and understanding when he executed the will (Bull v Fulton (1942) 66 CLR 295). If testamentary capacity is not established, the court must decide against the validity of the will: Bull v Fulton (supra) per Williams J at 343.
In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ set out at 565 what is essential in terms of a testator's understanding. This statement of the requirements of the law is regarded as the classic test of whether or not a person has testamentary capacity:
"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
It is worth highlighting (see Smith J In Re Brokenshire (deceased); The Equity Trustees Executors and Agency Co Ltd v Worts (1998) 8 VR 659) that the test requires that Mr Howroyd comprehended:
· the nature of what he was doing and its effects;
· the extent and character of the property with which he was dealing, and
· the claims and a weighing of the claims to which he ought to give effect.
In dealing with unsoundness of mind arising from the "decay of advancing age" Cockburn CJ in Banks v Goodfellow (supra) stated at 566 that "though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains." In focussing on deficiency of memory it was noted that (at 568):
"The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?"
Feebleness, grave illness or extreme age are not sufficient of themselves to disentitle the testator of his right to dispose of his or her property by will: Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, Kirby P at 295, and Banks v Goodfellow (supra) at 560. It will only do so if age or illness so affected the mind of the testator in regard to testamentary disposition (In re White (Deceased); Brown v Free [1951] NZLR 393; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707).
In cases where the evidence raises a doubt about the testator's testamentary capacity, it is necessary that there be a vigilant examination of the whole of the evidence. The standard of proof is the balance of probabilities: Worth v Clasohm (1952) 86 CLR 439 at 453. The burden is on the proponent to satisfy the "conscience of the court" that the testator had testamentary capacity (In re Estate of Griffith, per Gleeson CJ 289). The burden continues throughout the case and must be determined upon the whole of the evidence: Bailey v Bailey (supra) at 570.
Counsel for the plaintiff submitted that the critical time in terms of testamentary capacity is the time of giving instructions, less so the moment of execution of the will. While the sound disposing mind must exist at the execution of the will, the testamentary capacity need not be as complete at the time of execution of the will as it was at the time of giving instructions for the will: Perera v Perera [1901] AC 354 at 362.
3 Knowledge and approval
The third issue is whether the testator knew and approved of the contents of his will. Ordinarily proof of capacity and proof of due execution of the instrument creates an assumption of knowledge and approval. However, where the circumstances give rise to a suspicion about knowledge and approval the assumption does not apply. Here, the circumstances are suspicious. This means that the proponent of the will has the burden of dispelling the suspicion and must establish that the testator knew of and approved the contents of the will. (Nock v Austin (1918) 25 CLR 519 at 528.) This is described as the rule or doctrine of suspicious circumstances.
A suspicion arises in this case because the person who wrote the will also takes a benefit under the terms he was instrumental in framing. The will is not void by virtue of this fact but, necessarily because of this circumstance, the validity of the will is called into question and gives rise to a need for scrutiny. The question that is to be closely examined by the Court is whether the mind of the testator is reflected in the will.
The descriptions of the Court's role when there is ground for suspicion emphasise the need for very close scrutiny of the evidence. The issue under close consideration is whether the testator knew and approved of its contents. The following descriptions of the Court's role have been uttered and bear repetition. They are collated in Vernon v Watson [2002] NSWSC 600 at par[4]:
· The Court is "vigilant and jealous" and "requires clear and satisfactory proof that the instrument contains the real intention of the Testator", at par[4], referring to Baker v Batt [1838] 2 Moore 317; 12 ER 1026.
· The circumstance calls for the "vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will" Nock v Austin (supra) at 528, pars[3] and [4].
· The circumstance of suspicion demands the "vigilant care and circumspection of the Court in investigating the case" and requiring "full and entire satisfaction that the instrument did express the real intentions of the deceased": Barry v Butlin [1838] 2 Moore 480; 12 ER 1089.
· The Court ought to be "well satisfied, from evidence calculated to exclude all doubt, that the testator … knew and approved of its contents": Atter v Atkinson (1869) 1 PD 665 at 668, Sir JP Wilde.
· There is a "salutary" burden on the propounder of the will to prove affirmatively that the deceased knew and approved of the will: Fuller v Strum [2002] 2 All ER 87 per Peter Gibson LJ.
Having given due consideration to the thorough and careful examination of the evidence that is required, and the vigilance I must exercise, I note that it is also necessary to approach the evidence sensibly, remembering that the degree of suspicion varies with the circumstances: Bisdee v Smith [2004] TASSC 152, per Blow J at 4. Depending on the circumstances, the burden of establishing that the testator knew and approved the contents of the will can be a very heavy one.
In this case, there is no allegation of fraud or misconduct on the part of the plaintiff. This means that the question about which there needs to be suspicion is confined. The question is, absent any such fraud or misconduct by Richard Howroyd, has it been affirmatively established that the testator knew what he was doing when he executed his will: Nock v Austin (1918) 25 CLR 519 at 523. As stated by Isaacs J in Nock v Austin at 528, par[7]:
"(7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn LC in Low v Guthrie)."
See also Wintle v Nye [1959] 1 All ER 552 at 560.
Notwithstanding the absence of an allegation of fraud or undue influence, the circumstances of this case rouse a significant degree of suspicion and the burden on the plaintiff is a heavy one. Richard Howroyd was the only person present at the time the instructions were taken. He was instrumental in drafting the will and was to receive a large benefit. Richard Howroyd's conduct, such as not seeing that Mr Howroyd had independent legal advice, or arranging an independent person to be present when the will was read over to Mr Howroyd, contributes to the level of suspicion that has been raised (Nock v Austin (supra) per Isaacs J at 530). The full force of the descriptions of the court's role set out in Vernon v Watson (supra) apply and the burden on Richard Howroyd is a salutary one. Given these circumstances, Richard Howroyd's evidence must be closely and critically examined: see Nock v Austin at 529, Wintle v Nye (supra) at 557 - 558.
Evidence of knowledge, approval and capacity
A consideration of the application of the legal principles regarding testamentary capacity and knowledge and approval concerns evidence that overlaps both issues. For example, evidence of the testator's medical condition or the medication administered to him has implications for both capacity and knowledge. For this reason the evidence regarding these two issues is dealt with together and set out under headings which deal with both issues, but for convenience are described as "testamentary capacity".
First to be considered is the medical evidence of Mr Howroyd's condition and then evidence regarding the medication administered to Mr Howroyd.
Testamentary capacity: medical evidence
Dr Dunne gave evidence about his observations of Mr Howroyd on 6 July, the deterioration in Mr Howroyd's condition after that date, and his observations on both days of the weekend. On 6 July Mr Howroyd was well settled with medication designed to manage nausea and other symptoms. He was "reasonably alert", able to make decisions and he was agreeable to palliative management.
As previously noted, Dr Dunne took care of Mr Howroyd over the weekend of 7 and 8 July while Dr Jupe was away. When Dr Dunne reviewed him on 7 July he was comfortable but then had problems with persistent vomiting. He was reasonably alert although he was a "little slow" in his thinking. Dr Dunne explained to Mr Howroyd the reason for the medication and the syringe driver. He had to explain to him the reason a few times but Mr Howroyd seemed to understand. Dr Dunne and Mr Howroyd talked about various aspects of his diet and what he could and could not eat at that stage. There were reports of frequent vomiting over night.
Dr Dunne saw Mr Howroyd at approximately lunchtime (11:30am to 1pm) on Sunday 8 July. Dr Dunne noted a "marked deterioration" in his overall condition. He had a rattly cough, he was tachycardic (rapid heart beat) and had tachypnoea (rapid respiration). In Dr Dunne's opinion he was in quite a perilous condition and dying. Dr Dunne considered that he had probably developed aspiration pneumonia as a result of repeated vomiting.
Dr Dunne spent some time with Mr Howroyd, probably about 15 - 20 minutes. He said some of his words were a little indistinct but, "I think we got the message across and I could understand him".
Because Mr Howroyd was uncomfortable with rapid breathing and he was distressed, the medication was increased, adding an opiate, Hydromorphone, to the syringe driver. Dr Dunne also added a low dose of Midazolam, as a means of overcoming some of the distress and anxiety.
Afterwards the course was one of rapid deterioration and death on the afternoon of 9 July. The "most likely cause of death was overwhelming sepsis (probably as a result of inhalational (aspiration) pneumonia or a gram negative septicaemia from the persistent bowel obstruction). The Myeloma probably contributed to the cause of death by adding to his decreased immunity and inability to fight off infection."
Dr Dunne has been asked to provide an opinion as to whether Mr Howroyd had testamentary capacity at the time he signed his will on 8 July. He provided a report stating that he was uncertain:
"As to the question that he had testamentary capacity at the time that he signed his will I am not certain. I certainly feel that on the day before the 7th and certainly on the 6th July that he would have been able to make these depositions without let or hindrance, however the man I saw on the afternoon of the 8th July was very unwell and was beginning to die.
The mode of his death as a result of infection was more acute than from the effects of prolonged inanition due to a cancer and there is the possibility that he might have had the clarity of mind to make a will. However, his rapidly changing clinical state and the presence of medications which had been given in increasing doses to allow him to be more comfortable makes me uncertain as to whether he would have had full testamentary capacity on the afternoon of the 8th of July.
I am afraid I cannot be more specific as to whether or not Mr Howroyd had testamentary capacity. I can mount an argument either way but I am unable to be certain as to the moment in time the will was made."
There were requests for further opinions from Dr Dunne on the critical issue of testamentary capacity. Counsel for the defendant requested a report and provided to Dr Dunne hospital drug charts and statements from two friends, not in evidence. Dr Dunne provided a report of 8 December 2009, and expressed reservations about Mr Howroyd's testamentary capacity. Speaking of his capacity at the time, Dr Dunne noted that Mr Howroyd was "near death and although people can do prodigious feats in this pre terminal phase I believe he was failing mentally and physically and such a sustained effort would I believe have been beyond his capability at that stage".
Counsel for the plaintiff then requested a further report. He enclosed relevant parts of the statements of the plaintiff and his parents concerning contact with Mr Howroyd on 8 July. He was asked to arrive at an opinion as to testamentary capacity, assuming those statements to be true. These statements contained information that was included in the affidavits of these witnesses tendered in evidence.
Dr Dunne provided a report dated 15 June 2010, indicating that he had read the statements and that the "question does come down to whether or not the statements are true". He stated:
"If they are then that gives a lot more clarity around the decision making process and I would be happy that Mr Howroyd had capacity and was able to comprehend the matters involved in the process of making provision for his estate. However as I have previously said, it is a very difficult thing to work out what a person's testamentary capacity was retrospectively and in the absence of any formal review and it may end up being a decision for the court."
It is clear that Dr Dunne's opinion about testamentary capacity hinges on the observations of those who saw and spoke with Mr Howroyd on 8 July in the period up to and at the time of the making of the will. The essence of Dr Dunne's opinion is that if the evidence of Richard Howroyd and his parents is true then the testator had testamentary capacity.
Dr Dunne's evidence was that at the time he saw Mr Howroyd on Sunday at about lunch-time, he would have thought that he did then have that capacity. He added that although he could not recall doing so, it would have been his practice to have spoken to the patient at that time about resuscitative attempts and treatment.
Dr Dunne was asked about his expectation of Mr Howroyd's condition after he saw him on Sunday, 8 July. Dr Dunne stated that his expectation was that he was deteriorating, whether he would have "put that hour by hour" he was not sure. Even at the point that he saw him on Sunday, he may still have had a prognosis of days rather than hours. By 4pm he could have been a bit calmer than he was when Dr Dunne saw him at about 11.30am - 1pm.
Dr Dunne was asked about whether he expected there was any decreased mental alertness on the afternoon of 8 July. In summary, he said that there would have been a level of mental deterioration. As to whether it affected Mr Howroyd's reasoning he was unable to say. In evidence and cross-examination Dr Dunne maintained his uncertainty about testamentary capacity.
Further, he gave evidence that the sort of stress on the body suffered by Mr Howroyd may heighten focus or it may cause a clouding of consciousness. It is impossible to say from person to person the effect on an individual's mental capacity. He explained a state of delirium can occur as part of the dying process and is high in terminally ill patients. People can come out of apparent delirium, focus fairly acutely on the task at hand, do incredible feats of thinking and then lapse back. Dr Dunne noted it is possible for someone in an acute dying situation, especially without a long-term chronic illness, for the body's metabolism to maintain a level of fairly acute thinking.
At the time of the making of the will Mr Howroyd was under stress and dying, and yet he could have been aware of what he was doing. Dr Dunne was asked to assume that Richard Howroyd's affidavit was correct; his evidence was that it would not surprise him that Mr Howroyd would have been able to do the things described in the affidavit.
In evidence Dr Dunne explained that in terms of testamentary capacity you could argue either way. Mr Howroyd could have had the capacity or there may have been clouding of his consciousness. He explained that ultimately it was a question for the Court.
Testamentary capacity: medication
Over the course of the weekend of 7 and 8 July, the drugs administered to Mr Howroyd were Hydromorphone, Midazolam and Haloperidol.
There is no dispute that the drugs administered, a description of them, dosages and times of administering the drugs are as follows:
"Annexure 'OO' (page 1 of 1)
CNS Drugs Administered to Denis Howroyd for Final 4 Days in Palliative Care Ward. CNS DRUG NAME DOSE HALOPERIDOL
High-potency antipsychotic with anti-vomiting and sedative effectsSYRINGE-DRIVER:
1) 5mg/24hours from 7:50pm Friday July 6th 2007 until death
BREAKTHROUGH INJECTIONS:
1) 8:10pm Saturday night July 7th 2007:
2.5mg injection
2) 8:40am Sunday morning July 8th 2007:
2.5mg injection
MIDAZOLAM
Sedative/Anaesthetic/Hypnotic
BREAKTHROUGH INJECTION:
1) 8:40am Sunday morning July 8th 2007:
2.5mg injection
SRYING-DRIVER:
1) 2pm Sunday July 8th 2007 until death:
10mg/24hours
HYDROMORPHONE
Narcotic painkiller with sedative effects.
SRYINGE-DRIVER:
1) From 2pm Sunday July 8th 2007 until death:
4mg/24hours"
It is important to note that the breakthrough injections were administered subcutaneously and not intravenously.
The issues explored were whether, at the time of the making and execution of the will, the medication might have clouded the testator's judgment or even caused a state of "conscious sedation".
Dr Jupe was of the view that the drugs in these doses would not be expected to cloud judgment. In response to a request for a report from Mr Zeeman focussing on the effect of the drugs on mental state, Dr Jupe stated as follows in his report of 5 March 2009:
"As to the drugs prescribed, they are all drugs capable of altering ones [sic] mental state and so might cause mental confusion and incompetence. However the intention of the prescription is to alleviate anxiety and pain without any severe effect on clarity of mind. The doses prescribed are relatively small and would normally not be sufficient in themselves to cause confusion. However as you point out Mr Howroyd was in a preterminal weakened state and one could not be, a priori, sure that no confusion would be caused."
The effect of Dr Jupe's evidence was that Midazolam will cause some degree of loss of acuity and the issue is the extent of the loss likely in this situation. If the objective is maximising avoidance of risk, then the advice would be that the patient should avoid doing anything which might require maximum acuity of thinking.
Dr Jupe explained that Mr Howroyd was given "relatively modest" doses of Midazolam. The effects of the drug would be dramatically higher if given intravenously rather than administration by a syringe driver and subcutaneously.
Dr Jupe was asked whether the levels of Midazolam given to Mr Howroyd on Sunday would be sufficient to cause conscious sedation, and he replied, "possibly briefly", but that the doses administered were "low" for that sort of effect. Dr Jupe said that the breakthrough injection and the syringe driver could certainly bring about some clouding of consciousness. He emphasised that the dose was way below levels that would be achieved by injecting a patient with 2 - 3 mg intravenously to achieve conscious sedation for the purpose of a medical procedure. Dr Jupe deferred to Dr Dunne's experience with syringe drivers in relation to this issue of the effect of medication.
Dr Jupe was asked about the combination of drugs administered, and whether Mr Howroyd would have been in a state of conscious sedation at 4pm on 8 July. His response was that the doses were reasonably small and the intent was to make him comfortable without such an effect. He said he could not swear to the fact that the combined effect would not have been able to cause him some sedation.
As to whether, at about 4pm, the effect of the drugs would have prevented testamentary capacity, Dr Jupe could not be sure. An assessment of that matter was dependent on Mr Howroyd's behaviour and what he was saying to people.
Dr Dunne also gave evidence about the medication administered to Mr Howroyd. It was Dr Dunne who selected the mix of medication to be administered.
He agreed that two of the drugs administered to Mr Howroyd, Haloperidol and Midazolam, are central nervous system drugs with a sedative effect proportional to dose.
Generally, at Mr Howroyd's stage of the dying process, there is already some clouding of consciousness. However, the question remains as to capacity. It is possible that mental alertness may have been affected by the haloperidol started the night before. Dr Dunne qualified that by explaining that the dose was relatively small and in his experience it is usually well tolerated. Dr Dunne added that he was of the view that:
"… in the situation when someone is close to the end of life as Mr Howroyd was then other factors come into play such as the level of clearance of the drug, the beginning of delirium and various biochemical changes in the body."
Further in relation to Midazolam:
"It is very difficult to be certain as to whether that level of Midazolam in his system could have been responsible for conscious sedation. … there tends to be a balance between the secretion of adrenaline from the dying phase and the Midazolam which does sometimes allow people to be relatively unaffected by that dose in much the same way as someone who is taking an anxiolytic for anxiety. However, in retrospect, knowing that his condition was pre terminal, I would think that there would be reasonable grounds to assume that there would have been some effect from the Midazolam even at that dose as he was entering into a dying phase.
… I do not think the Midazolam was solely the cause of his sedation and decreased mental alertness. In my opinion I feel that other factors were at play. Certainly there may have been some contribution from the medication but I suspect that in retrospect there was an element of clouding of consciousness due to the dying process that was occurring."
Dr Dunne gave evidence that it was reasonable to assume that on the afternoon of July 8 Mr Howroyd would have had decreased mental alertness but, whether due to the effect of sedation or otherwise, he was unable to say. There remains a question of the degree of reduction of mental alertness. From his point of view the issue of capacity is an "unknown".
The contention of conscious sedation was explored in evidence with Dr Dunne. He said that given the medications in Mr Howroyd's system, it was his opinion that Mr Howroyd was not consciously sedated on 8 July 2007. He explained that conscious sedation is not what palliative care is about:
"Our aim certainly is a proportional response to peoples distress and suffering with the idea of trying to maintain as much mental clarity and comfort as possible with the objective of allowing people to have as much ability to be in the moment as possible."
He gave evidence that he did not agree that the effect of the medication administered to Mr Howroyd was that he was malleable.
I accept Dr Dunne's evidence discounting conscious sedation and malleability as possible effects of the medication administered to Mr Howroyd. I accept the evidence of Dr Dunne and Dr Jupe that by the time of the making of the will, Mr Howroyd would have been experiencing a degree of decreased mental alertness. The critical question of whether the decrease impinged on his testamentary capacity is to be resolved by reference to the evidence of the observations of Mr Howroyd, his condition, and what he said and did at the critical time of the period before, and at the time of the making of the will. This evidence is also central to the question of knowledge and approval.
Testamentary capacity: the timing of observations
I summarise below the evidence of Mrs Patricia Howroyd (referred to as "Pat" in the evidence) and Mr Brian Howroyd who visited Mr Howroyd in hospital on 8 July, and made observations of him during the early afternoon, before the will was made. I will then consider the evidence of Richard Howroyd regarding the making and execution of the will. I will consider the evidence of the attesting witnesses, Mrs McClymont and Mrs Jacobs, regarding the execution of the will. Evidence about executing the will is considered in the context of testamentary capacity, as it is relevant to Mr Howroyd's condition and bears on an assessment of Richard Howroyd's credibility and reliability.
As seen from the review of the medical evidence, Dr Dunne spoke to Mr Howroyd on the day the challenged will was made. The sequence of the observations made on 8 July by the witnesses is as follows: between 11.30am - 1pm Dr Dunne, from 2pm Brian Howroyd and Pat Howroyd, from 4pm Richard Howroyd, Mrs Jacobs and Mrs McClymont and again, Richard Howroyd. It is evident from the evidence that the times mentioned are approximate and refer to the time the visit commenced.
The evidence from Richard Howroyd is to be scrutinised and subjected to critical appraisal. The evidence of Pat and Brian Howroyd, as well as the evidence of Richard Howroyd, is to be considered in a critical light. The evidence of Mrs Jacobs and Mrs McClymont has significance as objective and independent evidence.
Testamentary capacity: observations by Brian Howroyd and Pat Howroyd
Brian Howroyd and his wife visited Mr Howroyd on 8 July at approximately 2pm. The will was made about two hours later.
The evidence of Brian Howroyd was that he brought his brother his mail. Brian Howroyd observed that his brother's condition had deteriorated since he had last seen him.
Brian Howroyd could recall nothing out of the ordinary about his conversation with his brother or his condition during that visit. He would have been concerned if he was incoherent or vague.
Mr Howroyd opened several of the envelopes, read what was in them and closed the envelopes. Brian Howroyd asked Mr Howroyd what he wanted him to do with the letters. Mr Howroyd replied, "Put them in the drawer".
Brian Howroyd left the room for a short time to visit a friend who was at the hospital. He returned and said goodbye to his brother.
When Brian Howroyd left his brother it had not occurred to him that his brother might have only days to live. As they left the room his wife told him that Denis wanted to see Richard about his will. It was not until he and his wife had a conversation with a woman at the ward reception about Mr Howroyd wanting to see about his will, and the woman said that it had better be attended to immediately, that he realised that his brother might be close to death.
Brian Howroyd and his wife collected their son, Richard, from his office and took him to the hospital where he spent time with Mr Howroyd alone.
Mrs Pat Howroyd gave evidence about the visit to her brother-in-law. She was sure that the time that she and her husband visited Mr Howroyd was at about 2pm.
Pat Howroyd was shocked to see how his condition had deteriorated. She was with Brian when Mr Howroyd opened his mail and talked a little while. Mr Howroyd spoke quite normally and she said that "we spoke about the things we normally spoke about". Brian left the room and Pat Howroyd stayed with her brother-in-law. He asked her if she could find Richard as he wanted to see to his will. She remembered the word "will" and that his exact words she remembered "very clearly" were "he will know what I mean". Afterwards Pat Howroyd spoke to a female in charge and told her about Mr Howroyd asking her to contact Richard to discuss his will. The woman in charge replied to the effect, "Can you do that this afternoon?" Pat Howroyd's evidence was that she then realised how ill her brother-in-law was and that he was not going to live very long.
Pat Howroyd described having a very clear recollection of 8 July. She was asked about her brother-in-law's condition on 8 July. She said he was not sleepy or drowsy when they got there, and in fact talked animatedly. When they left he was relaxing.
It was also revealed in cross-examination that a few days after the death of her brother-in-law she prepared some notes of Saturday, 7 July and Sunday, 8 July. She provided those notes to her son, Richard, at a later stage. Pat Howroyd had been a school teacher and described herself as someone who makes notes. In material respects these notes are consistent with her evidence regarding 8 July.
Pat Howroyd's affidavit tendered in evidence-in-chief referred to visiting her brother-in-law with her husband on 7 July (as well as 8 July) after collecting some mail and tending to some of his plants. Her notes reveal that she telephoned Mr Howroyd on 7 July and did not visit him on that date. In cross-examination Pat Howroyd was shown the notes and she was not sure whether they had visited Denis on 7 July, as well as 8 July. I did not consider that her uncertainty about the visit on 7 July was indicative of her recollection of 8 July.
It was evident that Pat Howroyd had a clear recall of the visit on 8 July and I found her account to be sound and reliable.
Cross-examination of Brian Howroyd ranged across a range of matters. It probed his reliability with respect to matters of peripheral details such as the discussion with the woman at reception and collecting his son.
The questioning during cross-examination provided an opportunity to make observations about Brian Howroyd's responses and demeanour. He did not always wait for the question to finish before answering it, and did not always attend to it carefully. He was impatient and often his answers were not fully responsive. It seemed he was trying to bring an end to the line of questioning by providing a definitive answer and, in his haste and impatience, he misunderstood the question, or sometimes his evidence was overstated. He mentioned his age, 83 years at the time of the events in 2007, to explain his point of view about matters and as context for his answers. Perhaps, to an extent, it also led to the impatience that was observed.
Cross-examination also challenged an account Brian Howroyd gave about finding Mr Howroyd's 2003 will. It probed whether he was frank with the Court in this regard.
Brian Howroyd gave evidence that after finding the will he became embarrassed that he had opened it and did not read the contents in any detail. I found that initially he was reluctant to reveal the fact that he had read the contents. After some questioning he was candid about his natural interest in the contents of the will. Further, it seemed to me that his reason for apologising to his brother for reading the will was not merely, as he said, because he had read a private document, but to give Brian Howroyd an opening in the conversation so that he could make the suggestion that his son look after the will. It was obvious that given the benefit his sons would receive under that will, he was anxious that the will could get lost.
Despite these observations about his evidence, I found his account of 8 July, his interaction with Mr Howroyd, and his observations about his condition, sound. His account that while his brother's condition had deteriorated, he was unaware of the significance of the deterioration or how dire his brother's condition was until he spoke to the woman at reception after the visit, seemed genuine and reliable.
Testamentary capacity: Richard Howroyd and the making of the will
Richard Howroyd is the only witness to the making of the will. According to his account, after he drafted it and his uncle agreed it was correct, the will was signed in his presence and the presence of two women, Mrs McClymont and Mrs Jacobs. A summary of Richard Howroyd's evidence is as follows.
On Sunday 8 July 2007, Richard Howroyd was at his office working. His father arrived at his office to say that "Denis was very low" and asked if he could come to the hospital. He agreed and went immediately with his father and mother in their car to St John's Hospital. On the way his father told him that Denis had asked to see him about his will. Brian Howroyd and Richard went into the hospital. Brian Howroyd said hello to his uncle and said he would leave Richard there with Mr Howroyd. Richard and Mr Howroyd were left alone. His account of what occurred taken from his affidavit, tendered in evidence-in-chief, is set out below. It will be seen that at par89 of the affidavit Richard Howroyd refers to the time of the making of the will as about 4pm:
"81I greeted Denis. I asked him if he needed anything. He said that a doctor had been to see him and he didn't need anything. He said that he didn't know how long he might be in the hospital.
82I said that I understood he wanted to see me about his will and he said yes and that he wanted a new will.
83Denis was looking very thin and pale and gaunt but he was quite alert and could talk to me. He had some restriction in this throat and sounded a bit raspy or hoarse but I could understand what he was saying.
84.He did not appear to be down or depressed. He did not appear to be in any pain.
85 He was in his pyjamas sitting up in his hospital bed.
86He had a small pan beside him on the bed. He vomited into it once when I was there. There were no nurses or doctors present in Denis' room while I was there. Nor was Denis sharing his room with another patient.
87After Denis told me that he wanted to draw up a new will I left the room and got some writing paper and a pen from staff at the nursing station outside the room.
88I didn't think that perhaps I shouldn't draw up Denis' will or that I should arrange to have his instructions typed up on the following Monday. Denis was my uncle and I readily agreed to help him and I was aware that Denis may be dying and he might not have another opportunity to express his wishes.
89I returned to the room and Denis gave me instructions for a new will. This was about 4.00 pm in the afternoon.
90 It took me about 20 minutes to take instructions and complete the will.
91I could understand Denis clearly and he was clear as to his wishes. They weren't complicated.
92 I asked him who was to be the executor and he said my brother Glenn.
93 He told me that he wanted to leave his shares to my uncle Terry.
94I asked him about the rest of his estate and he said it was to be left to Glenn and me equally.
95I asked him if there were any other bequests he wanted to make but he said no.
96I wrote up the Will in Denis' presence. I referred to him by the alternative spellings of 'Dennis' and 'Denis' because I was aware from holding his title deeds of the use of both spellings. I was a bit nervous as I was aware that this could be a death bed Will and I have never been in that situation before. I read what I had written to Denis.
97Once before, some years ago, I had taken instructions for a Will in hospital but there had been no urgency in that particular situation and the Will had been typed up at a later stage.
98When drawing Denis' Will, I wasn't aware that I may be criticised for drawing my uncle's Will when I was a major beneficiary. I became aware of this after Denis' death.
99I gave Denis the document to read. He appeared to read over what I had written and agreed that this was what he wanted."
Richard Howroyd then went in search of witnesses and, seeing two women, Mrs Jacobs and Mrs McClymont, he asked the medical attendant to approach the women. The attendant told him that they had agreed and they came into the room. The attendant left the room, leaving Mr Howroyd in the presence of the attesting witnesses, Mrs Irene Jacobs and Mrs McClymont, and Richard Howroyd. Richard Howroyd's account was that he introduced the women to his uncle and then handed his uncle the will. Mr Howroyd looked over it and then signed it. Mrs Jacobs and Mrs McClymont signed as witnesses and wrote their addresses on the will. It was then that the error in the date was picked up but Richard Howroyd could not be certain who picked it up. As best he could recall, the error was picked up by himself or one of the witnesses, but it could have been Mr Howroyd. Richard Howroyd crossed out the word June and wrote July, and the alteration was initialled by each witness. He omitted to ask Mr Howroyd to initial the alteration. Richard Howroyd thanked the witnesses and they left the room. The following day he made notes of what had occurred.
In evidence, Richard Howroyd added that after the women entered the room, he introduced the witnesses to Mr Howroyd, and Mr Howroyd nodded to them or acknowledged their presence. They sat down and then he gave the will to Mr Howroyd, who looked over it and signed it in their presence.
After they left the room he talked some more to his uncle. He asked him again if he required anything more and his uncle said no. Richard Howroyd said he could arrange for the will to be typed up at some later stage if he wanted but again he said no. He wished Mr Howroyd well and told him he could contact him through Brian if he wanted anything further. Richard Howroyd described his uncle as calm, resting and conscious when he left him. The following day he made notes of his attendance. These notes conform with his affidavit set out above.
The reference at par83 of the affidavit, that Mr Howroyd was "quite alert", was expanded upon in evidence-in-chief. Richard Howroyd's evidence was that his answers to questions were responsive, stating "He looked me in the eye. He gave me no indication that he had any problem in understanding me and he just gave no indication that he had any problems that were affecting him talking to me". Richard Howroyd stated that Mr Howroyd was very clear and he could understand him very easily.
There was no change or deterioration in Mr Howroyd in the time that Richard Howroyd spent with him.
Further detail about aspects of his account regarding the making of the will was provided. He was cross-examined closely about the details of his account. Needless to say, I have considered carefully the details of his account regarding the making of the will and indeed, all aspects of his evidence.
Richard Howroyd's evidence was that he drafted the main part of the will. He then read that out to Mr Howroyd. He explained further that he first made some notes which he described as "just jottings". After the jottings he wrote out the four paragraphs of the will which he read out. Later, he said he could not be sure whether he had read out the first paragraph. He apologised if he had misled the Court in that regard.
Richard Howroyd gave evidence that after he read out the paragraphs, Mr Howroyd said "yes that's what I want". Richard Howroyd then completed the will, proceeding to put in the date and a section for the testator to sign in front of the witnesses. This may have been the stage when he wrote out the first paragraph if he had not written that out earlier. Having completed the will, he handed it to Mr Howroyd to read, and he appeared to read it, and agreed with it.
Richard Howroyd was asked about the notes, the "jottings" he mentioned having taken before he drafted the main part of the will. He said he made those notes on a pad as he went and destroyed those the next day. He described these as jottings of what Mr Howroyd had told him and they were basically the three main paragraphs numbered 2 - 4.
He was asked why he destroyed the notes and he said they were just "jottings" not formal notes.
The notes or jottings were not mentioned in Mr Howroyd's affidavit or his attendance note made on 9 July.
I must acknowledge labouring under some uncertainty about one aspect of Richard Howroyd's evidence. It was not clear for part of the cross-examination whether it was the jottings that were read out by Richard Howroyd or the main clauses of the challenged will. It was unclear whether he read out jottings and, after that, he drafted the will in accordance with those jottings. Alternatively, whether he made jottings then wrote out the main clauses of the challenged will, and then read those out. If the latter, it was plain that the will was then incomplete because he afterwards added to that same document the paragraph for signing, and perhaps also the first paragraph if that had not previously been done. The confusion arose because Richard Howroyd said that, after having read the will to Mr Howroyd, he then completed the part of the document regarding the signature. However, he also spoke about drafting the clauses, reading those out to Mr Howroyd, Mr Howroyd agreeing, and then the will was drafted which Richard Howroyd gave to him to read and which he agreed to.
My attempts to bring certainty by asking some questions of my own were not effective. The issue was clarified in the end, and the summary set out above, at par[133], reflects the evidence incorporating the clarification.
Richard Howroyd was asked about the incorrect spelling of Mr Howroyd's name with double "i". He stated that he made the mistake as he was under some pressure. He acknowledged that Mr Howroyd did not say that his name was spelt incorrectly.
He was asked about overlooking the standard revocation clause, and was pressed about the fact that he represented himself as a legal practitioner with expertise in preparing wills. A similar line of cross-examination was pursued in relation to the fact that he had not included a clause normally included in wills about payment of funeral and testamentary expenses before disposing of the residue. He explained that the circumstances of the making of the will were difficult. It was an unusual situation which he had never been in before. He realised that there was some urgency because Mr Howroyd wanted to do his will when he was in hospital. Richard Howroyd thought his uncle might be dying. He thought his uncle might know he was dying and that was why it was urgent. He stated that he did not think he had time to go into detail about testamentary expenses, and his understanding of the law was that this "will would cover that situation".
There was cross-examination about Richard Howroyd's experience in the area of preparing wills. It was evident that Richard Howroyd was a general legal practitioner who did not specialise in the area of wills, estate and probate, but he had sufficient experience to include it in an advertisement listing his areas of his practice. Like many lawyers who could provide good service in this area he would be reliant on precedents. It was evident that he did not have extensive experience in the area, of wills. He had never prepared a death bed will before. All wills that he had drafted in the past had been typed up and checked, and he had never drafted a will in long-hand before.
He was asked a question about whether he had asked his uncle about his orchid collection and what he wanted to do with that. His answer is revealing about his mind-set at the time, and his deference to his uncle's situation.
"Did you ask him at all about his orchid collection and what he wanted to do with that?.......No as I say, I asked him whether he wanted any specific bequests; I said you can leave special bequests to people that you want. He said no and he was clear as to that. In the circumstances I didn't consider that I should badger him as to where he wanted to leave his orchids or his lawn mower or whatever.
But as a solicitor Mr Howroyd, you wouldn't think you were badgering Dennis Howroyd by asking him whether or not he wants to dispose of his property in any particular way would you?......Well I'd already asked him whether he wanted to leave any particular bequests to anyone and he'd said no and I understood that that was a no; he was clear as to that and the circumstances were such that my uncle was in a hospital bed and putting two and two together, I thought that it was quite possible that he only had days to live."
He was asked in cross-examination as to whether he had considered it appropriate to have a doctor assess Mr Howroyd as to capacity to know, understand and make a will. He responded "no", explaining that Mr Howroyd gave no indication that he did not understand what he was saying. Mr Howroyd was clear in what he was saying, there was no vagueness. He explained further that it seemed rational that his parents had been told that Mr Howroyd wanted to make a will. Richard Howroyd had seen him a couple of weeks earlier and he was obviously thinking about his will. He was not told that there was a problem by anybody at the hospital. He further explained that his uncle was in hospital with cancer and obstruction of the gut, and he did not understand there was any problem with his mental capacity.
The following day, after Richard Howroyd had considered his position, he made notes of his attendance regarding the making of the will. In part the notes provide:
"When we arrived at the hospital, Brian & I went to Dennis' room in the hospital & my father left me there.
Dennis said that he wanted to draw up a new will.
He gave me instructions and I wrote up his will …
I wrote down Dennis' instructions & he then read over what I had written and he agreed that was what he wanted. I asked him if there were any other bequests he wanted to make but he said no."
Observations about specific aspects of Richard Howroyd's evidence
Counsel for the defendant spent some time drawing to my attention differences between Richard Howroyd's account of 8 July and that of his father's account. They related to differences such as whether the time that Richard Howroyd was collected from his office was 4pm or 5pm, whether Brian Howroyd went into his son's office or waited outside, whether there was a conversation about Mr Howroyd and the will in the car at Franklin Square or having left Franklin Square en route to the hospital. It was submitted that these differences were significant. To the contrary, these matters were not at all significant and were the kind of differences to be expected if the evidence of the witnesses was based on genuine recall and, given the peripheral nature of the details referred to, and the time that has since passed. The differences do not undermine Richard Howroyd's account to any extent.
I would rank the issue of the notes, including the fact that they were not mentioned until cross-examination, the confusing quality of this evidence, and the destruction of the notes the next day, as warranting more scrutiny than any other aspect of Mr Richard Howroyd's evidence. After all, the notes were the contemporaneous record of the words uttered by the maker of the will.
The lack of clarity regarding Richard Howroyd's evidence about the notes and his late mentioning of them was a result of the way he viewed the notes. The notes were mentioned in cross-examination without guile as if they were completely incidental. If Richard Howroyd's account is true, from his perspective they were jottings to assist him in drawing up the will and merely a rough note of the paragraphs set out more neatly in the will. They were not regarded by him as a file note of an attendance or record of instructions. Their status to him was completely incidental to the important document, the will.
It must be remembered that once the notes were made the will was drafted without any pause or break in time or place. It was the draft will that was shown to Mr Howroyd and not the jottings. In this light his destruction of them is understandable. The contemporaneous preparation of the substantive paragraphs in the will document, and the immediacy of the testator's reading and agreement with those paragraphs, meant that the notes did not have any residual value to Mr Howroyd. They were no more the instructions than the will itself. They would have a value to the Court in these proceedings, but not to Richard Howroyd at the time.
I have had careful regard to the evidence that Richard Howroyd had destroyed the notes the next day, the same day he made his file-note and after he had reflected on the situation overnight. I have concluded that his conduct in destroying the notes was consistent with him regarding them as of no importance. His conduct also revealed a failure to contemplate the potential legal questions that might arise. Making a file-note but destroying the jottings is consistent with the response of someone who had an appreciation that he was compromised and his actions may be called into question in a general sense but did not appreciate, at the relevant time, the substantive issues at stake and the importance that may be placed on records of the testator's wishes.
The lack of significance Richard Howroyd attached to the notes is a satisfactory explanation for his conduct in destroying them when he did and not mentioning them until cross-examination.
Richard Howroyd was subjected to a significant attack in cross-examination and submissions for failing to disclose in his affidavit of testamentary scripts his attendance note made on 9 July 2007, which recorded instructions from Mr Howroyd. As can be seen from the extract from the notes set out above at par[145], there is recorded a question by Richard Howroyd "if there were any other bequests he wanted to make" and Mr Howroyd's response "no".
Whether he was obliged to disclose these notes in his affidavit of testamentary scripts is a matter of law and not self-evident. Mr Zeeman relied upon the definition of "testamentary scripts" under the Supreme Court Rules and submitted that the notes amount to a clear instruction regarding the will and should have been included in the affidavit. It was apparent in cross-examination that Richard Howroyd did not understand that he was required as a matter of law to do so. Whether he was required to do so is a point that I do not need to decide. I am satisfied that he acted in good faith in relation to his affidavit of testamentary scripts. He disclosed the notes in his affidavit for these proceedings and I do not draw an adverse inference about his credibility on this issue.
Mrs McClymont and Mrs Jacobs
The attesting witnesses gave oral evidence-in-chief. Their affidavits were tendered in evidence.
The entire incident from the time the witnesses walked into the room and the time of leaving was a very short period. Mrs Jacobs gave evidence that it was no more than a couple of minutes. Their recollection of the events is imperfect.
Mrs Jacobs and her sister, Mrs McClymont, were visiting her husband. Mrs Jacobs described herself as being under stress and a lot of pressure at the time. Her husband's condition was grave and she said he was dying. She described herself as having only a very vague recollection of what took place with the will.
Mrs McClymont's recollection of the events is more detailed. She was struck by the appearance of Mr Howroyd and how reminiscent he was of her husband and his condition just before he died.
Mrs Jacobs gave evidence that when she entered the hospital room there was an elderly gentleman propped up in bed. She did not speak to him and he did not speak to her. He did not acknowledge her presence. She was not introduced to Richard Howroyd but she thought she had been told that he was a lawyer.
Mrs Jacobs gave evidence that she saw the "other man", who must have been Richard Howroyd, hand the old man a biro. She did not see him put that biro to the paper. She did not see the old man sign his name on the will. She stated in her affidavit that he had signed it but that was because she assumed that to be so. When the will was handed to her she saw it was signed.
Mrs Jacobs was given the will to sign and she remembered signing it. She did not read it. She did not recall initialling any changes to it. She has seen what appears to be her initials on an amendment to the will regarding the date. In her evidence she accepted that she must have initialled the document and she stated that she recognised the initials as her own. Even so, Mrs Jacobs could not recall putting those initials on the will.
Mrs Jacobs described the gentleman in the bed as very sick. She observed that he had to be helped up in bed by the sister who propped him up with a pillow. He was making the "most awful noises". She did not take notice whether his eyes were open or closed.
In cross-examination she was asked whether she could say who put the biro in the man's hand. Mrs Jacobs responded that she thought it might have been the female member of staff when she propped him up before she left the room but she was not a hundred per cent sure. Mrs Jacobs was asked whether she saw the man's hand moving in a writing manner. She said "we saw a very slight movement", but she described herself as positioned "well away" and her sister was a lot closer. The old man had his head down. She thought that the lawyer in the room handed the will to them to sign.
Mrs Avis McClymont's evidence was that she entered the room and saw the old man in the bed. The other man in the room introduced himself to her. She recalled shaking his hand. She believed she then introduced that man to her sister.
Mrs McClymont did not speak to the old man in the bed and cannot recall him speaking to her. She did not make eye contact. She heard him breathing heavily and making crackling noises. She did not see the old man actually sign his name. In her affidavit, acknowledged by her in her evidence as correct, she stated she saw him put a pen to paper. During cross-examination she gave evidence she could not recall him putting pen to paper. She said that she saw the document on the bed but could not confirm that she saw it in his hand.
Mrs McClymont recalled signing the will. She did not recall placing her initials on the will, although she readily agreed the initials on the will above the correction to the date appeared to be hers.
De bene esse rulings
Mrs Jacobs was asked a question as to whether Mr Howroyd appeared to be aware of his surroundings, in the sense of "being with it". The evidence she gave was taken de bene esse. Her response was "no, I don't think so. I don't think there was any eye contact at all". This was objected to on the basis that it was sought to be admitted to prove Mr Howroyd was "not with it" and was opinion evidence. There was the following exchange as context for that response:
"Did you look at him?……Oh, I don't – no, I don't think I did really.
Isn't it true that - ?.....Look, I wasn't really with it, to be quite honest. I don't know.
No. isn't it true though that you said you saw him lying in the bed and propped up?.....I saw the sister prop him up as I walked in, but I was behind my sister and the lawyer that was in there and I was sort of at the back of them."
The evidence of the opinion under objection is allowed. It is relevant for a purpose other than proof of the fact that Mr Howroyd was "not with it". Mrs Jacobs' evidence made it clear that the opinion was based on speculation and not based on observations (and thus the opinion is not admissible as an exception to the opinion rule in the Evidence Act 2001, s78). In fact, it is evident that very limited observations were made by Mrs Jacobs. The opinion and the evidence of context for that opinion are closely linked and enable an understanding of the very limited observations made by Mrs Jacobs, her own circumstances and her own condition. Obviously, her observations such as lack of eye contact and the evidence she gave about the limitations of her observations are admissible and there is no objection to that evidence.
Some later evidence was received on the same conditional basis. The question in cross-examination was "Did you believe after signing this will on the 8th July, 2007 that perhaps you shouldn't have signed that will?" and the answer was "Well maybe had I thought about it I probably would have said, no". The next question and answer then follows:
"Yes. And why – why would you have said, no?……Because I didn't – well I wasn't in any condition to do it and the fact that she came in and asked I just sort of went in without hesitation and did it."
The first answer reveals her response to the request to witness the signing of the will and the following question and answer assists in an understanding of factors impinging on her observations, ie she was not in any condition to do it. The evidence should also be admitted.
A portion of Mrs McClymont's evidence is also subject to objection. Mrs McClymont had a recall of what flashed through her mind at the time she observed Mr Howroyd. The evidence was objected to on the basis of relevance, and was taken de bene esse:
"WITNESS: Well that's what I am feeling. I know in my own mind that when I looked at the man and I heard the crackling it reminded me of my own husband who died three years or so before and he had exactly the same kind of symptoms, and in that state he wouldn't have been able to do anything.
…
HER HONOUR: Yes, all right. And am I correct in understanding then, Mrs McClymont, that you – that was what went through your mind at the time?
WITNESS: At the time, yes. That's exactly what went through my mind when I viewed the situation.
…
MR ZEEMAN: … I'm simply asking you, Mrs McClymont, any other physical observations of the man lying in the bed that you could add to?.......Oh the slump of his body. He was probably finding it very uncomfortable sitting. He'd been propped up a bit. His feebleness, his shakiness, his – just his colouring, the look, the whole scenario was just - left me feeling for days and weeks after that, I had a vision of that very figure."
The evidence is admitted. It is a mix of observations, it reveals the impact upon her of her observations and her focus on Mr Howroyd's condition. The comment that when in that same state her husband would not have been able to do anything is innocuous and intertwined with the admissible evidence she has given. Beyond her observations, the comment does not bear on Mr Howroyd's capacity.
Assessment of Mrs Jacobs and Mrs McClymont
Mrs Jacobs' recollection was vague and affected by the pressure she was under at the time. She described herself as "not really with it". Her husband was dying and he died a short while after 8 July.
The evidence given by the two women revealed that they both agreed to be witnesses without hesitation and then found the man's condition confronting and were shocked by his condition. Evidently, his condition was the focus of their attention. Mrs Jacobs mentioned that he was making "the most awful noises", and, "He just laid there making a real awful noise and they just propped him up". Mrs McClymont was struck by the likeness with her husband at a time when he was dying.
Richard Howroyd and his parents were less shocked by his condition. His parents had seen Mr Howroyd recently and Richard Howroyd had seen him on 21 June.
The evidence of Mrs Jacobs and Mrs McClymont as to Mr Howroyd's condition should be considered in light of the medical evidence from Dr Jupe and Dr Dunne. They were asked about the descriptions given by these two women. Their evidence made it clear that the descriptions of a feeble, exhausted man who looked and sounded terrible are of little assistance as to his mental state at the time. It must be remembered that Mr Howroyd's appearance would have been much the same a few hours earlier on 8 July at a time when Dr Dunne considered he had testamentary capacity. Dr Jupe said that Mr Howroyd looked dreadful and had for some time. Dr Jupe explained that a lot of the observations of the witnesses would have accurately described how he looked several days before.
Dr Dunne explained that Mr Howroyd would have been making noises with his breathing irrespective of his alertness. Mr Howroyd may have concentrated and after telling people what he wanted to do and then having a gap in time before coming back to sign, there may have been some exhaustion.
The evidence of the two women that Mr Howroyd did not make eye contact with them and his lack of interaction with them is consistent with Dr Jupe's description of Mr Howroyd and his typical presentation. Even when he was reasonably well he was fairly uncommunicative and did not make eye contact. Dr Jupe explained that by Sunday Mr Howroyd was aware he was dying and he was withdrawn, metaphorically "curled up in bed". The observations of Mrs Jacobs and Mrs McClymont in this regard are not telling in relation to his capacity at the time. For obvious reasons, Mrs McClymont's painful experience and the comparison she drew with her husband and his capacity, does not assist in ascertaining Mr Howroyd's capacity.
Largely, the evidence of Mrs Jacobs and Mrs McClymont was consistent with Richard Howroyd's evidence. Richard Howroyd did not mention the crackling noises made by Mr Howroyd when breathing. However he made a note of him having a "throat restriction". There was a difference in the evidence as to whether Mr Howroyd nodded at the women when they entered the room as acknowledgement of their presence. That is not necessarily an inconsistency as a nod in acknowledgement may have been made, noticed by Richard Howroyd but not observed by the women. Even if Richard Howroyd's evidence was not correct and Mr Howroyd did not acknowledge the women, I would not regard an inaccuracy on that point as significant in determining Richard Howroyd's credibility or reliability. I conclude that the differences in the evidence of the women and Richard Howroyd are mostly accounted for by their different perspectives and familiarity, or lack of familiarity with Mr Howroyd. The differences did not undermine Richard Howroyd's account.
Testamentary capacity: Indications of the deceased's wishes
21 June 2007
There was evidence given by Mrs Pat Howroyd and Richard Howroyd regarding a conversation between Richard Howroyd and Mr Howroyd on 21 June 2007. This evidence is relied upon as relevant to indicate that the testator was contemplating a new will.
Mrs Pat Howroyd gave evidence that after Mr Howroyd's second last visit to St John's Hospital, she and Brian Howroyd were taking him home when they called into Salamanca Market to get some supplies. Brian went into the shop and Mrs Howroyd had a conversation with Mr Howroyd in the car. Mr Howroyd requested that she ask Richard to visit him. While Mr Howroyd did not state the reason for the visit she immediately concluded it would have been in relation to his will. She contacted Richard and told him that Denis wanted to see him about his will.
Richard Howroyd gave evidence that he had received a phone call from one of his parents and he understood from that conversation that his uncle wanted to see him about his will. On 21 June 2007, Richard Howroyd went over to Mr Howroyd's house at Lindisfarne. This occasion was the last time Richard saw Mr Howroyd before the making of the will on 8 July 2007.
Richard Howroyd found his uncle "frail and shrunken". He was seated in a chair in the lounge room. Richard Howroyd stated that he was there to discuss his will. Mr Howroyd did not discuss making a will or the terms of the existing will. Instead, he just discussed with Richard Howroyd the various members of the family and how they were situated. Richard Howroyd did not recall the details of that conversation except that he remembered his uncle saying that "Bill was looked after with his second wife, businesswoman Pat Cleveland" and that he did not have any rapport with Alexander, the son of Richard's cousin, Charles. Richard Howroyd's evidence was that he did not feel that he should initiate the topic of a new will, noting that his uncle was a private person.
Towards the end of the conversation Mr Howroyd asked Richard if he would be interested in any of the family furniture or paintings. Richard Howroyd said that he would like a water colour of an East Coast Tasmania scene that always hung above the dining room table. Richard Howroyd asked his uncle if he could help him in any way. Instead of mentioning his will, Mr Howroyd spoke about a Clarence Council clean-up day. Richard Howroyd offered to help remove rubbish. Mr Howroyd spoke about going to the shop to get some provisions; that was the end of the discussion and his uncle drove away.
In cross-examination Richard Howroyd was pressed about this visit on 21 June. The cross-examination referred to the fact that he had made a file note of his attendance on 21 June with the heading "Dennis [sic] Howroyd estate" and recorded that he discussed with Mr Howroyd his will and possible changes, and noted his time as two and a half hours. Richard Howroyd explained that his uncle talked about family circumstances and did not talk about changes to his will and that the note was inaccurate. The cross-examination about the file-note did not highlight any matters that I regarded as significant in my assessment of Richard Howroyd's credibility.
Richard Howroyd was further asked about an answer he gave to interrogatory number 20, sworn to be correct, that the testator had asked him to visit to discuss changes to his will when the testator had not in fact mentioned changes to his will. The cross-examination drew attention to an affidavit Richard Howroyd had sworn on 22 July 2010, in which he had corrected the answer he gave to that interrogatory. In that later affidavit he explained that the request to visit had been made to his mother or father who passed the request to him. It was Richard Howroyd's belief at the time he answered the interrogatory that the testator had said that he wanted Richard to visit him to discuss changes to his will. His affidavit further provided that he was now aware of his mother's recollection that the testator had not stated to her the purpose of the visit.
It seemed to me that Richard Howroyd's answer to interrogatory 20 was based on a genuine belief of the purpose of the visit. It was loosely answered, as his belief was based on what he had been told by his mother. When Richard Howroyd discovered that his mother had assumed that to be the purpose of the visit, he acted in a conscientious fashion by filing the later affidavit correcting the representation. I did not regard the evidence in cross-examination on these matters undermined Richard Howroyd's credibility or reliability.
I found the evidence about the visit on 21 June 2007, revealing about the wishes of Mr Howroyd and also the nature of the relationship between Mr Howroyd and Richard Howroyd. It reveals that Mr Howroyd was considering changes to his will; he was thinking about the needs of various family members; and his consideration encompassed his brothers' children. This is understandable given the age of his brothers, their stage of life and that that their children were adults.
The visit is also revealing about the relationship. Richard Howroyd went to the house believing that his uncle wanted to see him about his will. He went there ready to assist in his capacity as nephew but also as a lawyer, and with a history of helping the family on legal matters. Yet when the subject of his will was not broached by Mr Howroyd, it is clear that Richard Howroyd felt that it would be inappropriate for him to press him about the will and his wishes in this regard. It reveals a deference and respect for his uncle. It seemed to me that the offer by Richard Howroyd to help him "in any way" was an oblique and courteous offer to help with a will or at least to create an opportunity for his uncle to mention it. The relationship that existed between uncle and nephew was such that when the uncle then did not mention his will, the nephew let the matter lie.
Richard Howroyd's approach to the making of the will and his interaction with his uncle on 8 July are consistent with his deference and reticence seen on the earlier date. Again, rather than probing questions, there are questions of clarification as necessary and general offers to help. It is entirely consistent with the nature of their relationship that Richard Howroyd would not ask questions about specific assets and that he would see that as "badgering".
Testamentary capacity: final observations and findings
Credibility and reliability of Richard Howroyd
The first question that springs to mind is why Richard Howroyd, as a major beneficiary would be involved in drafting the will. It would be thought that he would seek to avoid this situation if possible. It may be observed that on his account he did not know what his uncle wanted to do until he received his uncle's instructions at his bed-side. His evidence was that at the time of making Mr Howroyd's will he did not realise that there was anything wrong with helping his uncle and being a major beneficiary. I note that he was ill-prepared for the situation he was in.
Richard Howroyd may be criticised for not having anticipated that he may be called on to assist his uncle with his will and that it would have been wise for him not to be instrumental in making the will in light of the fact that he was a beneficiary under the 2003 will. However, it is plain that he had not thought about the difficulties arising from his situation as a potential beneficiary.
The circumstances in which he was called upon to assist in preparing the will are highly relevant. It was Sunday afternoon, he was not expecting his father to call on him, he was presented with an urgent family situation, and he was not given any time to prepare or consider his position. I note that it was Richard Howroyd's evidence that it was not until he was in his father's car on the way to the hospital that his father specifically mentioned his uncle's will. Regardless of whether he appreciated that was to be the purpose of the visit when he was in the car on the way to the hospital, or at an earlier time when his father arrived at his office, it was clear he had minimal notice of the situation. He left his office without even a pen or paper. I accept his evidence that he was thrown into the situation and as he said in his evidence "tried to do the best" he could.
Other lawyers may have resisted the urgency of the situation and taken time to prepare. Richard Howroyd responded immediately and in a dutiful way to his father's request without question. Having found himself unprepared, he managed as best he could.
I note that in assessing the proprieties of the situation, Richard Howroyd's role in drafting the will was confined. It is not a case where as a lawyer he provided advice about the claims to the estate or the disposal of the estate. His uncle had a firm mind about what he wanted and Richard Howroyd did not do much more than transcribe his uncle's wishes, employing legal language and seeking clarification to enable the wishes to be put into effect.
A mistake that was attributed to Richard Howroyd in the preparation of the will is the spelling of "Dennis" with a double "n". That was not a mistake, it was an alternative spelling to the correct spelling with a single "n" included in the will. It may be noted that Richard Howroyd held the titles to the testator's two properties and the alternative spelling of his name was set out in the titles in that way.
The mistakes in the will such as the double "i" in Denis, the mistake over June/July, the failure to have Mr Howroyd initial the correction to July, were all consistent with mistakes that may be made by Richard Howroyd given the situation in which the will was made.
As for the failure to include the revocation clause, Richard Howroyd's evidence on this point that it was an oversight, albeit a major one, seemed credible. Again, no sinister inference springs from this oversight, and I note that was not in Richard Howroyd's interests as a major beneficiary to overlook that clause.
I found Richard Howroyd's evidence about the failure to include a usual clause regarding funeral expenses convincing. He revealed a level of impatience about the importance of this clause given the circumstances. It was evident that for him it was in a category of ideal clauses that in the scheme of things, given the gravity and urgency of the situation, paled somewhat into insignificance.
In evaluating the mistakes made by Richard Howroyd it is relevant to bear in mind his lack of extensive experience as a lawyer in the area of preparing wills. It seemed that he was familiar with the standard clauses but not to the extent that they were second nature.
Richard Howroyd's evidence regarding the making of the will struck me as honest and sound. I made a number of observations about his demeanour which bore favourably on my assessment of his credibility.
I did not detect that Richard Howroyd had a close interest in, or any anxiety about, the bequest to him in the 2003 will or potentially under the 2007 will. Richard Howroyd's evidence was that he knew about the 2003 will because his father had told him about it. Brian Howroyd's evidence was that he told Richard Howroyd about finding the will and that he was a residuary beneficiary, and that his son told him to put the will back or leave it there. That account of Richard Howroyd's response is consistent with the conduct of someone who was not closely concerned about his benefit under that will.
Clearly there have been a number of failings and errors committed by Richard Howroyd in the drafting of the will and related matters. Cross-examination traversed these failings and Richard Howroyd was subjected to considerable pressure about them. Richard Howroyd was frank and open in his responses. At times his discomfort about these failings and errors was evident but notably it did not colour his responses. Indeed, his responses remained conscientious and fair. Despite the pressure he was subjected to he did not overstate his responses or try to cast himself or his case in a better light. Impressively, he retained his objectivity; he did not depart from his proper role as witness to the proceedings and advocate his position.
I also noted that I have a number of accounts about the events prepared by Richard Howroyd at various stages: contemporaneous file notes, affidavits and sworn evidence. In all of these accounts there is no indication that he has not been conscientious in adhering to the truth. I found no signs of exaggeration or overstatement.
I also made observations which bore favourably on my assessment of his reliability.
I note in terms of the reliability of his evidence given the passage of time he had the benefit of contemporaneous notes made on 21 June and 9 July. Many details of importance that may be forgotten are recorded in his notes, I note for example the time of the making of the will, which has some significance, is recorded and a note was made about Mr Howroyd's symptoms such as his "throat restriction".
Richard Howroyd's observations of his uncle and his condition are also consistent with the observations of his parents and their account of speaking to Mr Howroyd. Their visit commenced at about 2pm and they spent some time with him, Pat Howroyd more time than Brian Howroyd. After they left Mr Howroyd they went directly to collect their son and return to the hospital. It is reasonable to assume that they were not away for a lengthy period. Their observations were close in time to the visit by their son and his subsequent observations.
In assessing veracity and reliability I note Richard Howroyd's account of Mr Howroyd's physical condition was consistent with Dr Dunne's observations of Mr Howroyd's condition approximately three hours before. Richard Howroyd's account that his uncle was speaking and he could understand him was consistent with Dr Dunne's evidence about Mr Howroyd's condition and his capacity to understand him at that earlier time. I note Richard Howroyd described him as calm and yet he was not calm when Dr Dunne saw him. The difference is accounted for by the calming medication that had been administered in the interim.
In my assessment, the evidence of Mrs McClymont and Mrs Jacobs does not undermine Richard Howroyd's evidence about his uncle's condition, his account of what his uncle said to him and that he was able to understand his uncle. Their evidence did not give rise to any reservations about Richard Howroyd's evidence regarding the signing of the will.
If Richard Howroyd's description of his uncle's condition is correct, there had not been a significant deterioration in Mr Howroyd's condition after he was seen by Dr Dunne. It is clear from Dr Dunne's account that it is entirely feasible that there would not have been a significant deterioration in that-time frame. Dr Dunne's expectation was that he was deteriorating but as to whether that was an hour-to-hour process he was not sure.
I found Richard Howroyd's account convincing and sound. I found him to be an honest witness.
There is another point, well made by Mr Williams in his closing submissions, that is relevant in scrutinising Richard Howroyd's evidence. At the time of the making of the will, Richard Howroyd did not know what shares his uncle had and the worth of the share portfolio. He did not know that the second will would result in a greater benefit than he would have received under the 2003 will. As a related point, at the time Richard Howroyd drafted the will, he did not know that he and his brother Glenn were each receiving a more generous bequest than Terence Howroyd. This was not evident from the terms of the will. There is no suggestion that he knew that the worth of the share portfolio was less than his share of the balance of the estate.
Objective signs of lack of mental acuity?
The incorrect spelling of "Dennis" is relied upon as revealing that Mr Howroyd was not alert. In my view it does not reveal that. It is an alternative spelling to the correct spelling with one "n" included in the will, and Mr Howroyd's name was noted on the titles in the same fashion, presumably without objection by him.
Counsel for the defendant drew to the Court's attention the evidence of the errors in the will, the spelling of "Denis" with a double "i" and the wrong month of June. It was argued that these uncorrected errors were suspicious, noting that Mr Howroyd was fastidious and particular about matters of detail.
The double "i" and the error regarding the month are not material factors in my assessment of the evidence regarding testamentary capacity. Assuming it was not Mr Howroyd who picked up the error with the date, and that it was someone else, Mr Howroyd may not have been conscious of the correct date at the time. June and July are months that are often transposed. Mr Howroyd had been in hospital for some time and may have lost track of the date.
The spelling of Denis with double "i" may have seemed not worth mentioning. The two strokes suggest a double "i" but there is only one dot above the two strokes. It is to be borne in mind that it is a hand-written document and it would be natural for the reader to make some allowances for that. In the scheme of things it is a very minor error.
As a general observation I note that even though Mr Howroyd was fastidious, his priority and attention would have been on the substantive paragraphs. The errors referred to do not appear in those paragraphs.
I find that it is not significant that Terence Howroyd's name was shortened, but not Richard Howroyd and Glenn Howroyd's name.
There are no signs of lack of mental acuity on the face of the will. I note no concerns have been raised about the form of the signature. There is no suggestion it is unlike Mr Howroyd's usual signature, such as the signature appearing on his 2003 will, or that it appears unsteady.
The terms of the new will
As previously noted, I accept Dr Dunne's opinion and that of Dr Jupe that at the time of the making of the will there was some decrease in mental alertness as Mr Howroyd was in the process of dying. I have rejected any suggestion of malleability or conscious sedation.
The terms of the will do not cast doubt on Mr Howroyd's capacity to understand them. They would not have required significant mental stamina to comprehend. The will was short and simple and expressed in clear language. The terms of the will do not suggest irrational thought or lack of clear thinking.
The probabilities of a new will?
It was argued for the defendant that the timing of the new will was completely improbable because Mr Howroyd had not indicated that he was even contemplating changing his will and further that the making of a new will was at such a late stage of his illness.
I found the timing of Mr Howroyd's wish to make a new will entirely plausible. The evidence of the visit on 21 June reveals that Mr Howroyd was contemplating changing his will. It is not surprising given his reserved nature that he did not disclose those changes at that time.
While Mr Howroyd knew on 6 July that he did not have long to live, death was not yet imminent. The doctors spoke to him in terms of generalities, days and weeks. Then, overnight on 7 July his condition deteriorated significantly. On 8 July he saw his treating doctor at approximately 1pm. By then he would have known with certainty that his condition was perilous. He saw his brother and sister-in-law, and that presented an obvious opportunity to ask to see his nephew about his will.
It was natural for Mr Howroyd to call on his nephew for help with his will. Mr Howroyd knew that Richard Howroyd had drafted Mr Howroyd's mother's will. The testator had asked Richard Howroyd to look after his title deeds. Richard Howroyd was trusted in his capacity as lawyer and family member, and Mr Howroyd had had a discussion with him on 21 June 2007 relevant to bequests and his estate.
Unlike the 2003 will, there were no bequests to friends and no mention of his orchids, tools and motor vehicle. I am conscious of the evidence about his orchid collection, its value to him and that it represented a pastime he had enjoyed. However, it would be consistent with his perilous state that the importance of these things to him would be diminished, and that in his tired and feeble state he would have been focussing on the essentials.
The exchange between Richard Howroyd and his uncle is entirely feasible given the respect and deference I have mentioned, and his uncle's reserved nature. It is consistent with their relationship and rapport that Richard Howroyd would not presume to ask questions about specific assets.
The content of the will and the generous bequest to his nephews is consistent with his fond affections for them, and the enduring relationship he had had with them over their life-time, as well as a close and enduring relationship with their parents.
Contact with Richard Howroyd had diminished since the death of his paternal grandparents. It had reduced before the 2003 will, which included a generous bequest to both nephews. It may have been even less frequent again after that will. That did not affect the mutual fond regard and that there was still a regularity about the contact, even if it was infrequent. It is also clear that Mr Howroyd was an independent person and not needy in terms of attention from his family.
It was submitted by counsel for the defendant that it could be inferred that Mr Howroyd was not close to his brother Brian and his family, noting that Mr Howroyd had not wanted his family to know he was in hospital, or to be informed by medical staff about his condition. I reject that submission. It was entirely consistent with a close relationship and his desire not to burden his family, particularly, given his nature as a private person.
The increase in benefit to Richard Howroyd under the new will is not surprising given the fact that the period from 2003 when the first will was made, and his death, was a period of illness when he had received consistent help and assistance from his brother Brian and his wife Pat.
The 2007 will, compared with the 2003 will, did not suggest a drastic change of heart and indeed, there had been no incident or disharmony in Mr Howroyd's relations with his family to suggest that he might want to alter the will in a drastic fashion. The 2007 will reflected a close relationship with his brother, Terence. There is no suggestion Mr Howroyd had discussed his 2003 will with Terence Howroyd or that he knew he would be disappointing Terence Howroyd by the bequest in the second will, in comparison with the first will. After all, Terence was honoured by being the only brother specifically mentioned. The fact that his brother Bill was not favoured, was in line with his 2003 will, his conversation with Richard Howroyd on 21 June 2007, and his consideration of the financial needs of family members.
Testamentary capacity: conclusions
After carefully scrutinising the whole of the evidence, I conclude there is no just cause for the suspicion that has been roused. This suspicion has been dispelled. Richard Howroyd has given an honest and reliable account of the events. I find the account given by him is what occurred. I accept Mr Howroyd uttered instructions as described by Richard Howroyd in his evidence. Mr Howroyd's words could be clearly understood by him, and were unambiguous. I am satisfied that Richard Howroyd acted in good faith and dutifully wrote down his uncle's wishes. He prepared the will in accordance with those instructions, and then read the substantive clauses to the testator. They accurately reflected the instructions provided by Mr Howroyd. Mr Howroyd expressed his approval of those clauses, stating "that is what I want", or words to that effect. Richard Howroyd then gave the will to Mr Howroyd to read. Mr Howroyd appeared to read the will. There is no reason to doubt that he read at least the key portions of the document. I am positively satisfied that Mr Howroyd knew and approved the contents of the will. In light of those facts as I find them to be, the opinions of Dr Dunne and Dr Jupe support the conclusion that the testator had testamentary capacity. I find accordingly.
Additionally, I have given consideration to the time when the will was executed. Noting my conclusion, set out below, that I accept Richard Howroyd's evidence about the signing of the will, and noting also his evidence about a conversation with Mr Howroyd after the will was signed, accepted along with the rest of Richard Howroyd's evidence as honest and reliable, I find that Mr Howroyd had testamentary capacity at the time the will was executed.
Due execution: conclusion
I note my observations that I found the evidence of Richard Howroyd to be honest and reliable. Broadly, his account was consistent with the evidence of Mrs McClymont and Mrs Jacobs, but contained more detail than their accounts. I have commented on their lack of recall and reasons for that.
A point of difference between Richard Howroyd's account and the evidence of Mrs McClymont and Mrs Jacobs was whether Mr Howroyd acknowledged their presence. Richard Howroyd's account was that he did, while their account was that he did not do so in any way. They may be correct about that, or the acknowledgement may have gone unnoticed. The point of difference is not material.
The evidence of the attesting witnesses is consistent with Richard Howroyd's account as to the sequence of events. The evidence of Mrs Jacobs that the testator was handed a biro and that she saw a very slight movement was supportive of Richard Howroyd's account that Mr Howroyd signed the will. Mrs McClymont's evidence in her affidavit that she saw pen put to paper was further support for Richard Howroyd's account, even though she lacked a memory of that at the time of the hearing. Mrs McClymont's recall of seeing the document on the bed is broadly consistent with Richard Howroyd's account that Mr Howroyd had possession of the will until it was handed to the two women to sign.
The lack of recall of Mrs Jacobs and Mrs McClymont at the hearing of seeing Mr Howroyd sign the will is consistent with it being a subtle action of the hand in circumstances where their attention was not drawn to that action, but taken up with his appearance and frailty. The action of signing may well have been a slight action. Their lack of recall of other events which undoubtedly occurred, such as initialling the alteration to the date reveals how distracted they were and their lack of focus on the process. It is not a situation where their lack of recall of that critical moment of signing is telling.
The document itself is supportive of Richard Howroyd's account. It shows the signatures of Mrs Jacobs and Mrs McClymont and underneath a hand printed name and address. These details were evidently written by them and the handwriting of the two sets of details appears to be different, and both appear to be different to the body of the document. I reject any suggestion that Mr Howroyd's signature was not on the document at the time they signed the document as well as any suggestion that Mr Howroyd did not sign at all, or signed the document before they entered the room. I find the whole purpose of Richard Howroyd asking the women to attend was to witness the signing of the will, and the handing of the pen to Mr Howroyd reveals that that was the process Richard Howroyd was following.
I am clearly persuaded that Mr Howroyd signed the document in the presence of Mrs Jacobs and Mrs McClymont. There was compliance with the Wills Act, s10(b).
Conclusion and order
For the reasons I have given I am satisfied that the testator signed his will in the presence of two witnesses, Mrs Jacobs and Mrs McClymont, and that the testator had testamentary capacity and that he knew and approved the contents of the will.
I pronounce for the force and validity of the last will and testament of Denis James Howroyd dated 8 July 2007. I order that probate thereof be granted.
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