In the Estate of Coonan
[2023] ACTSC 320
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Coonan |
Citation: | [2023] ACTSC 320 |
Hearing Date: | 13 October 2023 |
Decision Date: | 8 November 2023 |
Before: | McWilliam J |
Decision: | The Court DECLARES that the deceased, Anne Elizabeth Coonan, died intestate and orders as follows: (1) Pursuant to s 12(1) of the Administration and Probate Act 1929 (ACT) (Administration Act), letters of administration in respect of the intestate estate of Anne Elizabeth Coonan (Estate), who died on 1 August 2020, are granted to Margaret Majella Jones (Administrator). (2) The Registrar is directed to do all things and take all steps necessary to give effect to the grant of letters of administration referred to in Order 1. (3) Following due administration, pursuant to s 49C of the Administration Act, the Administrator is at liberty to distribute the residue Estate in equal shares to: Peter John Coonan, Timothy Gerard Coonan, Francis Damien Coonan, Theresa Imelda O’Keefe, Paul Edward Coonan, Patricia Mary Coonan, Catherine Louise Coonan and Margaret Majella Jones. (4) The costs of the application are to be paid out of the Estate on an indemnity basis. |
Catchwords: | SUCCESSION – WILLS, PROBATE & ADMINISTRATION – Wills Act 1968 (ACT) – Administration and Probate Act1929 (ACT) – testamentary capacity – where testator diagnosed with schizophrenia – where no person propounding the will and no other contradictor available – where the will is non-sensical on its face – letters of administration granted to sibling of deceased |
Legislation Cited: | Administration and Probate Act 1929 (ACT) ss 9, 12, 20, 38A, 45 Court Procedures Rules 2006 (ACT) r 3045 Wills Act 1968 (ACT) ss 9, 11A |
Cases Cited: | Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328 In the Estate of Jansen [2020] ACTSC 130 Osborne v Smith (1960) 105 CLR 153 Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Re Canavan [2017] HCA 45; 263 CLR 284 Re Estate of Hodges (dec’d); Shorter v Hodges (1998) 14 NSWLR 698 Timbury v Coffee (1941) 66 CLR 277 Watson v Kerridge (1888) 9 LR (NSW) Eq 35 Worth v Clasohm (1952) 86 CLR 439 |
Parties: | Margaret Majella Jones ( Applicant) |
Representation: | Counsel K Cotchett ( Applicant) |
| Solicitors Elringtons Lawyers ( Applicant) | |
File Number: | SC 126 of 2023 |
McWILLIAM J:
1․The application before the Court relates to the will and estate of the late Anne Elizabeth Coonan (the Deceased), who died on 1 August 2020 leaving no spouse, partner or issue. She was 68 when she died. The estate of the Deceased (Estate) has an estimated gross value of a little over $217,000, comprising bank accounts and a deposit held with Jindalee Aged Care residence, where the Deceased was living when she died.
2․The Deceased has eight other siblings who have survived her. The plaintiff is one of the Deceased’s sisters. She has brought the present proceeding in respect of a will executed by the Deceased on 7 November 2006 (the Will). The plaintiff seeks to either set aside the Will for lack of testamentary capacity, or to declare part of the Will void for uncertainty (with the consequence being that a partial intestacy arises). In either case, the primary relief sought by the plaintiff is for the Court to make a declaration that the plaintiff be at liberty to distribute the whole estate on intestacy to the eight surviving siblings.
3․For the reasons that follow, the declaratory relief sought will be made. The issue of testamentary capacity has been addressed first, as it affects the validity of the Will itself.
The Will
4․The Will is in the following terms:
Calvary Hospital
6th November 2006Last will and Testament
I am undergoing surgery. This will is to revoke my prior will. I nominate Teddy Coonan and Michael Coonan as executors.
There is money I have not yet received being the legitimate copyright fees from my software and associated stationery. This money will be accessible from the courts. The crimes involved were Australia wide so I can only presume it is the federal courts. This money will be quite substantial since it earnings over many years. The software copyrights must be sold to people who can maintain the software. Stationey (sic) copyrights have the same rules. It is best sold together. I suggest Warrick Capper & Luke Webber.
I would like a Foundation to be established and to use the money to help farmers who are prepared to follow green priniples (sic), to restore their land. It can be done as low interest loans. The restoration must include the river, or creek, on their property. After 20 years the money is to be divided between Teddy, Michael, Lorraine (Oliver), Mary-Fran and Nita (Brian’s wife). Michael of [address] in Victoria can supply full addresses for all concerned.
Yours sincerely
Ann E. Coonan
7 November 2006.
Relevant legislative provisions
5․The formal requirements for a valid will pursuant to s 9 of the Wills Act 1968 (ACT) (Wills Act) were not in fact met. Although the Will was signed by two Justices of the Peace, neither attested to having seen the Deceased sign the will in their presence before subscribing the Will (as required by s 9(1)(c) of the Wills Act).
6․Mossop J dealt with attestation on a will in the matter of In the Estate of Jansen [2020] ACTSC 130, where his Honour stated (relevantly) at [29]-[30]:
29.…Section 9(2) of the Wills Act makes it clear that s 9(1) does not require any particular form of attestation on a will. The usual course is to include an attestation clause which indicates that s 9(1)(c) (or equivalent) has been complied with. An example of such a clause is that which was included in the present case:
SIGNED by the Testator as and for his last Will and Testament in the presence of us present at the same time, who at his request in his presence and in the presence of each other have hereunto subscribed our names as attesting witnesses.
30.The inclusion of an adequate attestation clause is prudent because although not conclusive, it constitutes prima facie evidence that the wills formalities have been complied with: Certoma GL, The Law of Succession in New South Wales (4th ed, Thomson Reuters, 2010) at [6.80]. Where such an attestation clause is included, r 3030(2) permits the court to accept the attestation as evidence of the proper making of the will. However, where such a clause is not included, evidence from the witnesses (r 3030(3)) or other persons present (r 3030(4)) may be necessary to satisfy the court that the requirements for the making of a valid will have been satisfied...
7․In the present case, despite the plaintiff’s searches, neither witness could subsequently be located for the purposes of giving evidence about the execution of the Will. I may have been prepared to infer that each saw the Deceased sign the Will from the fact that each witness was a certified Justice of the Peace, who presumably understood their obligations. Notwithstanding the informal nature of the Will, it may have been capable of a declaration of validity through the application of s 11A of the Wills Act. However, because of the findings below, that issue has been rendered otiose.
The absence of a contradictor
8․The application was unopposed. As will become apparent, any potential beneficiary either consents to the application or does not oppose it. This meant the Court did not have the benefit of an active contradictor.
9․Because the Will discusses making provision by way of a foundation for a group of farmers who are prepared to follow green principles, the plaintiff sought to obtain a contradictor from the National Farmers’ Federation. The Federation has corresponded with the plaintiff’s solicitors, indicating it does not intend to make any representation in the matter or to press for any interest.
10․Where there is no sufficient contradictor to ensure that all relevant arguments are presented, the Court may appoint an amicus curiae. An example of such a case at the High Court level is Re Canavan [2017] HCA 45; 263 CLR 284 at [7], where an amicus was appointed to present complex legal arguments. Three reasons militated against that course here. The first was that the only people whose interests may be adversely affected have all been notified and they consent. The second was that the Estate is small and appointing an amicus would have depleted the assets of the Estate further. The third was that through the diligence of the solicitors acting for the plaintiff, I was satisfied that all relevant arguments were presented, including the presentation of evidence potentially adverse to the plaintiff’s case (discussed below). I was therefore satisfied that the appropriate course was to proceed without a contradictor.
11․In those circumstances, it is important to record that consideration has been given to ensuring that notice of the application was properly given to any interested person. This is to give effect to the principle that where a person who is interested in the outcome of probate or administration proceedings has been given notice of those proceedings and a reasonable opportunity to intervene in them, that person may be bound by the outcome. This is the case even if that person has not been formally made a party to those proceedings: see Osborne v Smith (1960) 105 CLR 153at 158-159.
Notification to interested parties
12․The Will names two executors, Teddy Coonan and Michael Coonan. The plaintiff deposes to Teddy Coonan being a reference to her cousin, Edward Joseph Coonan who was living at the time the Will was executed but who has since predeceased the Deceased.
13․The other executor, Mr Michael Coonan, is another cousin of the Deceased. He is Teddy’s brother and has corroborated Teddy’s death.
14․Michael has confirmed that he does not wish to propound the Will, nor be executor and consents to the application for letters of administration. If the Will is found to be valid, the effect of his correspondence is that he has renounced probate of the Will pursuant to s 20(1)(a) of the Administration and Probate Act 1929 (ACT) (Administration Act). The consequence of that is that the representation of the testator and administration of the testator’s estate are taken to devolve as if he had not been appointed executor.
15․The relevant people with a potential interest in the Estate, and therefore required to be notified, include any person named as a beneficiary in the Will under challenge and the Deceased’s surviving relatives who would take on intestacy.
16․The evidence before the Court established that the Deceased’s parents each predeceased the Deceased, with copies of their Death Certificates included among the annexures to the affidavit of the plaintiff sworn 24 March 2023.
17․The seven other siblings of the Deceased have each been notified. The affidavit evidence confirmed receipt of the application by:
(a)Mr Peter Coonan;
(b)Mr Timothy Coonan;
(c)Mr Francis (Franc) Coonan;
(d)Ms Theresa O’Keefe;
(e)Mr Paul Coonan;
(f)Ms Patricia Cookson; and
(g)Ms Catherine Coonan.
18․The Will refers to ‘Nita’, Brian’s wife. That is a reference to Ms Anita Coonan, who is the widow of the Deceased’s cousin, Brian Coonan (Michael and Teddy’s brother). She has confirmed she received notice of the application and does not want to have anything further to do with the matter.
19․The Will also refers to two other cousins: Mary Fran Coonan and Lorraine Oliver. They are the sisters of Michael, Teddy and Brian. Mary Fran Coonan has consented to the letters of administration being granted to the Plaintiff on the basis that the Deceased died intestate. Lorraine Oliver has also written to the plaintiff’s solicitor, consenting to letters of administration being granted to the Plaintiff and confirming that she does not intend to participate in the matter any further.
20․Sheila Marcia Coonan is the widow of Teddy. She was also served with notice of the application for an abundance of caution, as she is the executor and sole beneficiary of Teddy’s estate. Sheila Coonan has also confirmed that she disclaims any hypothetical or potential interest in the Will.
21․Apart from family members, the Will names two other people, Warrick Capper and Luke Webber. It appears that the reference to Warrick Capper is to the flamboyant former Australian Rules footballer. It is not known whom the Deceased had in mind when naming Mr Webber. From the context, I suspect that the reference is in fact meant to be to the famous Australian Formula 1 racing car driver at the time, Mark Webber. In any event, as they are not named as beneficiaries under the Will, they are not persons who have an ‘interest’ in the proceedings.
22․The plaintiff has served the application on the ACT Public Trustee and Guardian (the Public Trustee). Under s 38A of the Administration Act, where a person has died and representation has not yet been granted, the estate vests in the Public Trustee and Guardian (although there is no requirement for the Public Trustee to administer the estate: s 38A(4)(a)). The Public Trustee has confirmed in writing that there is no opposition to the plaintiff’s application.
23․Otherwise, the relevant statutory notices of intention to apply for letters of administration have also been published.
Applicable Legal Principles
24․The starting point is that in order for a will to be valid, a testator must have a sound mind and understanding: see Banks v Goodfellow (1870) LR 5 QB 549 (Banks), where Cockburn J stated at 565 (emphasis added):
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.
25․Banks was applied in Australian in the leading decision of Timbury v Coffee (1941) 66 CLR 277 (Timbury), which was decided in a similar effect. At 283, Dixon J stated that the focus is on showing that at the time of making the Will, the Deceased had sufficient mental capacity to:
(a)Comprehend the nature of what she was doing, and its effects;
(b)Realise the extent and character of the property she was dealing with, and
(c)Weigh the claims which naturally ought to press upon her.
26․Dixon J went on to state at 283:
In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular and ordinary manner.
27․In Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328 (Carr), Basten JA (with whom Leeming JA agreed) helpfully discussed each of the three considerations at [7]-[10] (footnotes omitted):
7.The first affirmative element was not in dispute, it being accepted that the testator fully understood the nature of a will and how it worked and, through her instructions and execution of the will, approved the document in fact presented for probate as her last will and testament.
8.The second element of testamentary “capacity” appears from the case-law not to be so much a question of capacity as a question of knowledge and understanding of the facts. No high level of precision is required to be demonstrated in relation to the testator’s knowledge of her property as at the date of execution of the will. The trial judge was satisfied that she had a sufficient understanding of her assets and that finding has not been challenged.
9.The third affirmative element may properly be understood as involving capacity. As noted by the primary judge, Powell J in Re the Estate of Hodges described this element by reference to a passage in the opinion of Erskine J in Harwood v Baker, dealing with a testator who had left all his property to his wife and excluded all other relations from any share of it. Erskine J said the issue was “whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property”.
10. Erskine J further stated:
“If he had not the capacity required, the propriety of the disposition made by the will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity.”
What constitutes a disorder of the mind?
28․Conditions which might be understood to interfere with full testamentary capacity have been described in language such as a ‘disorder of the mind’ or an ‘insane delusion’: Carr at [6]. However, it has been emphasised that the precise language does not warrant too much scrutiny. What is relevant is the extent to which the condition is shown to interfere with the testator’s normal capacity for decision-making: Carr at [6].
29․Relevant to the present case, a lack of testamentary capacity may be established by a mental disorder which does not involve delusions: Carr at [15] per Basten JA (again, with whom Leeming JA agreed).It is not necessary to couch the evidence in terms of a ‘delusion’ to characterise a person as lacking mental capacity: Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 (Griffith)per Gleeson CJ at 292 (with whom Handley JA agreed). The focus is really on the extent to which there was an interference with the testator’s normal capacity for decision-making or whether the testator was able to consider and give effect to the claims upon their bounty; that is, to ‘comprehend and appreciate the claims to which he ought to give effect’: Carr at [101], citing Banks at 565; see also Griffith at 291.
30․Evidence relevant to establishing a lack of capacity may include the exclusion of persons naturally having a claim on the testator’s bounty and extreme age or sickness: Re Estate of Hodges (dec’d); Shorter v Hodges (1998) 14 NSWLR 6989 (Hodges)at 706. Incapacity will only be established if it appears that age or illness has so affected the testator’s mental faculties as to make them unequal to the task of disposing of their property: Bailey v Bailey (1924) 34 CLR 558 (Bailey) at 571-572; Worth v Clasohm (1952) 86 CLR 439 (Worth)at 453.
The shifting onus
31․The relevant principles in that regard are as follows. A duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding: Bailey at 570; Hodges at 706. Indeed, it is prima facie evidence of testamentary capacity: Bull v Fulton (1942) 66 CLR 295 (Bull)at 343.
32․However, where the evidence raises a doubt as to testamentary capacity, there rests upon the propounder of the will the burden of satisfying the conscience of the court that the testator had such capacity at the relevant time: Griffith at 289; Bailey at 570. In cases where there is foundation for questioning the testator’s testamentary capacity, the onus shifts from testamentary capacity being presumed, to an obligation or onus to persuade the Court that the testator had such capacity.
33․A party seeking to impeach the will then bears the evidential burden of proving that the testator did not have testamentary capacity: Worth at 453.
34․Similarly, if it has been shown the testator suffered from a delusion or a disorder, the onus is on the propounder of the will to prove the delusions or disorder either were not in existence at the relevant time, or alternatively, that they did not affect the will: Watson v Kerridge (1888) 9 LR (NSW) Eq 35; at 45; Bull at 342.
35․If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix (in this case) was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth at 453.
Did the Deceased lack testamentary capacity to make the Will?
36․In the present case, the evidence necessary to raise a doubt about testamentary capacity overlaps completely with the evidence relevant to the lack of testamentary capacity. Given the absence of a contradictor, I have dealt with the two steps together for convenience. The evidence falls into three categories:
(a)The text of the Will itself;
(b)The evidence surrounding the making of the Will; and
(c)The medical condition of the plaintiff at the time the Will was made.
The text of the Will
37․The text of the Will itself is not coherent. The Deceased appoints executors and purports to distribute assets by way of a foundation, so that it might be concluded that she had an appreciation of the effect of a Will.
38․However, the Deceased does not name any of her immediate family in the Will, namely, her eight siblings. That is, the Deceased has excluded persons that might naturally be thought of as having a claim on her bounty.
39․Further, the Deceased has not referred to any assets that would indicate she appreciated the extent and character of the property she was dealing with. She does not refer to the money she has in her bank accounts (being her only assets). Instead, the Deceased refers to a claim about “legitimate copyright fees” from software and associated stationery, and “crimes” which were “Australia wide”.
40․Although the text of the Will refers to such sums as being “accessible from the courts”, this appears to be a suggestion that a claim could be made, rather than a reference to money that was actually held by a court at the time the Will was executed. The plaintiff deposes to searching the records of IP Australia and of the Federal Court. She has been unable to locate any registration, application or reference to any intellectual property rights that allegedly belonged to the Deceased. No money is held by the Federal Court in the Deceased’s name or proceedings involving the Deceased and the reference to such moneys is otherwise incomprehensible.
41․Further still, the description of the non-existent but supposedly “quite substantial” monies as being a product of crimes Australia-wide, without any apparent basis in fact, gives rise to a doubt that the text reflects a paranoid delusion held by the Deceased.
42․The Deceased then speaks of selling the intellectual property rights to “someone who can maintain the software” and then suggests Mr Capper or Mr Webber, in circumstances where there is no evidence either was ever personally known to the Deceased.
43․Finally, the Will makes reference to a wish for a benevolent foundation to be established with “the money” (which appears to be a reference to the proceeds of selling the intellectual property rights to Mr Capper or Mr Webber), and then managed for twenty years before distribution to certain cousins.
44․Overall, the Will overlooks immediate family members and speaks of a fanciful idea about a substantial pot of money attached to copyright fees, which exists because of crimes Australia wide but must first be obtained through Federal Court proceedings, and then sold to sports stars and used for the benefit of loans to unspecified environmentally minded farmers. The text of the Will and the scheme devised gives rise to a doubt in the conscience of the Court that the testator had testamentary capacity at the relevant time. On the plain words of the Will, I could not state with confidence that the Will constitutes a document made by someone who comprehended the effect of what she was doing, had a proper understanding about the extent and character of the property she was dealing with, and had given consideration to claims that might naturally weigh upon her.
Surrounding circumstances
45․The surrounding circumstances in which the Will came to be made are contained in the Deceased’s clinical records that were put before the Court. It does nothing to assuage the doubt. The evidence establishes that the Deceased suffered from a history of schizophrenia, which is clearly a relevant disorder of the mind. The Court must therefore consider whether there is sufficient evidence to establish that the Deceased’s schizophrenia did not affect her testamentary capacity at the time she executed the Will.
46․The plaintiff’s legal representative drew the Court’s attention to the relevant clinical notes. At the time the Will was executed (7 November 2006), the Deceased was admitted as a patient of the psychiatric ward at Calvary Hospital. She was admitted on 21 February 2006 and discharged on 28 November 2006.
47․The hospital notes contain a discharge summary created on 28 November 2006. It refers to a “known history of chronic paranoid schizophrenia and alcohol dependency”. Under the treatment and progress section, it is reported that on admission, the Deceased presented as:
…guarded and with delusion content and it became more apparent during the early days of her admission that she was floridly psychotic on the background of her chronic paranoid schizophrenic illness.
48․The discharge summary reports that by 18 April 2006, the Deceased’s mental state has stabilised in that she was no longer “acutely psychotic.” However, the report states that “chronic delusions remained”. The discharge summary continues:
…Concerns surrounding her mobility and ability to self care, as well as other medical issues remained the focus of her care for the rest of her admission… ”.
49․There was a reference to the Deceased being homeless and requiring and assessment by the Guardianship Tribunal. She was transferred to Canberra Hospital for surgery relating to cancer and was recovering in the Aged and Rehabilitation Unit.
50․Previously on 13 September 2006 (less than two months before the Will was executed), patient progress notes prepared by the Psychiatric Registrar at Canberra Hospital confirm that the Deceased has “an established diagnosis chronic paranoid schizophrenia” going on to state:
[the Deceased] continues to suffer from somatic delusions. She believes that the muscles in her legs have been cut electronically and is unable to entertain that this belief might be false. She also suffers from auditory hallucinations in the form of electronic noises which only she can interpret. She denies experiencing [auditory] hallucinations in the form of voices…
51․On 6 November 2006 (the day the Will appears to have been typed, although it was executed the next day), the clinical notes refers to “nil psychotic phenomena observed”.
52․On 7 November 2006, Dr Friedgut (a geriatrician) wrote:
…she is continuing to remain quite capable of lucid thought and in spite of her physical illness she [is] capable of making a will. There is no doubt in my mind that she is of “sound mind to make a will.”
53․I will deal with that clinical note separately below.
54․A month later on 5 December 2006, a social worker prepared a detailed report. It states (emphasis added):
[the Deceased] is homeless with chronic psychiatric and physical disabilities. She continues to have poor memory at times and her thinking appears to be colored by her very paranoid beliefs. She totally denies that she has a long standing problem with alcohol and has no insight at all into her psychiatric condition. She for a very long time refused to consider living independently as she did not think she could manage even with community supports. As she is only 55 years old Aged Care Assessment Team would not assess her for Hostel Type Accommodation. Refuges all rejected her…For both her physical problems and her psychiatric presentation…
55․The Deceased was assessed as high needs and the social care worker indicated that she would send a copy of her report to the Guardianship Tribunal.
56․The medical evidence thus establishes that both before and after the execution of the Will, various medically qualified professionals, considered the Deceased to be suffering from what was unequivocally an active disorder of the mind, to the point where she was being assessed by the Guardianship Tribunal.
The Deceased’s mental state on 7 November 2006
57․The only note contradicting the Deceased suffering a chronic disorder of the mind that affected her testamentary capacity was that set out at [50] above, written by Dr Friedgut on the day the Deceased signed the Will. It is clear from the contents of the note that the doctor was aware the Deceased was about to execute what became the Will.
58․The note is both a firm conclusion and contemporaneous with when the Will was executed. However, there are a number of difficulties which detract from the weight the Court can give to the opinion expressed in the clinical notes:
(a)There is no record of what investigations were undertaken in order to form the view expressed. If it was simply that the Deceased was capable of having a lucid conversation, that is not sufficient to establish testamentary capacity.
(b)The note does not in terms reveal that the doctor’s opinion substantively reflected consideration of any of the three matters to be contemplated in forming a view about testamentary capacity.
(c)There is no record that the doctor had read the Will that the Deceased was proposing to execute. Had he done so, it is unknown whether the doctor would have adhered to the opinion recorded in the medical notes.
(d)The note and the view formed is at odds with all other medical evidence before the Court.
59․It is important to recognise that what was sought from the doctor was not a formal report on the question, and otherwise the nature of informal clinical notes is necessarily brief. Further, the doctor was not subsequently asked about the note and there is no more detailed evidence before the Court. What follows below should therefore be taken simply as an assessment of what weight to give to the brief note, and not a criticism of the doctor who made the note as if the Court were considering an expert opinion about testamentary capacity.
60․Accepting that a clinical note is meant to be brief and informal, the record lacks the cogency that would have been expected where the task was to record an opinion about testamentary capacity to approve a will, in that the note does not purport to address the requisite criteria for establishing testamentary capacity at all.
61․The lack of any discussion in that regard is important, because a medical opinion as to soundness of mind based on “lucid thought” may be very different to legal satisfaction of the three components of testamentary capacity to approve a will. A person may be able to hold an intelligent conversation and yet remain quite without the capacity to make a will. For example, a father with dementia may engage in an intelligent conversation with their son for an afternoon, and after the son leaves, ask his wife, “Who was that nice young man I have just been talking to?” or alternatively comment that he thought he was talking to his brother, when in fact the said brother is no longer alive. These hypothetical examples are to explain why working out whether a person has testamentary capacity, as opposed to capacity, requires more than just considering whether a person can engage in lucid thought. That is particularly the case where the Deceased not only had a long-standing diagnosis of chronic paranoid schizophrenia, but the reason for the Deceased being admitted to hospital for such a lengthy period of time was acute psychosis.
62․As to the third matter, being the lack of any knowledge of the specific testamentary document to be signed, it should be emphasised that there is no general principle that a medical professional is obliged to read the Will a person intends to make or has made when assessing capacity. The issue here is one of assessing the contradictory evidence about capacity on 7 November 2006. I have found that the plain words of the text of the Will itself raises a doubt about the Deceased’s testamentary capacity. That document existed and was purportedly approved by the Deceased on the same day the doctor formed an opposite view about the Deceased’s soundness of mind. Had the doctor indicated that he held the view expressed even with knowledge of what the Deceased had written, that would have been relevant to an evaluation of what weight to give the opinion.
63․As to the fourth matter about the remainder of the evidence, the preponderance of the evidence repeatedly confirms the Deceased’s acute mental disorder. The extent of the disorder is so significant that a brief medical note that the Deceased was “of sound mind to make a Will” on the day of execution is insufficient on its own to establish testamentary capacity.
64․For example, at the time Dr Friedgut was asked to record his view about testamentary capacity to make a will, the Deceased was being assessed for capacity by the Guardianship Tribunal. It is not clear whether Dr Friedgut knew what was occurring at that time in the Guardianship Tribunal at the time he expressed “no doubt” about capacity to make a will. I have applied the caution that the existence of a financial management order or a guardianship order does not of itself require, or justify, a presumption or finding of testamentary incapacity: Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377, cited more recently in Estate Rofe [2021] NSWSC 257 at [102]. That principle applies with greater force when no order has yet been made, as was the case here. However, the fact that the Deceased was being assessed because she was unable to self-care by reason of her disorder is one of the concerns here. When it is taken together with the other medical evidence contradicting the view expressed by Dr Friedgut on the day the Will was executed, the combined circumstances called for a thorough assessment of the different components involved in confirming testamentary capacity, rather than simply noting whether the person was capable of lucid thought.
Conclusion on testamentary capacity
65․Drawing together the above discussion:
(a)The medical evidence confirms that the Deceased did in fact have a diagnosed disorder of the mind, which included paranoid delusions. The history of the Deceased’s acute mental disorder is significant and extensive.
(b)The contents of the Will itself is mainly nonsense. It reflects a delusion that the Deceased had substantial money to distribute, which she did not in fact have. It also reflects the Deceased’s belief that crimes against her intellectual property rights had been committed. It cannot be concluded that the contents of the Will was unaffected by the Deceased’s diagnosed disorder of the mind.
(c)The contemporaneous evidence of the medical opinion sought about the Deceased’s mental state on 7 November 2006 is inadequate to address those concerns.
66․Taking all of the evidence into account, although I accept that the Deceased had an appreciation of what a will is, and that she was making a will to put her affairs in order before having surgery, I am not persuaded that the Deceased had sufficient soundness of mind, memory and understanding in relation to her family and more particularly, of her assets, or what to do with them. The doubt I entertain is substantial enough to preclude a belief that the Deceased had testamentary capacity at the time she executed the Will. Accordingly, no declaration that the Will is valid will be made. The document has no effect.
Alternative construction argument
67․As there is no valid Will, the alternative argument as to its proper construction falls away.
No prior will
68․In light of the findings above that the Will was invalid for lack of form and lack of testamentary capacity, attention would then have turned to any previous will, with the same task of reviewing it for satisfaction that it was a valid will both in form (in that it complied with the requirements of the Wills Act) and in substance (that the Deceased had testamentary capacity at the time it was made).
69․For completeness, it is necessary to record that although the opening lines of the Will refer to a “prior will” being revoked, there was no other document that might have met the description of a prior will found by the plaintiff.
70․The plaintiff has searched the Deceased’s personal records and papers and has been unable to locate any other document. She has also contacted numerous legal firms in Canberra, advertised in publications such as Hearsay (the newsletter of the ACT Law Society), and made enquiries with the respective Public Trustees in the ACT and NSW. Given the thoroughness of the plaintiff’s efforts, assuming there may have been a document in existence at some earlier point in time, I have treated it as having been destroyed.
Administration of the Estate without a will
71․The lack of any valid Will means that the Estate will be administered in accordance with the intestacy provisions under the Administration and Probate Act 1929 (ACT) (Administration Act).
72․Section 9 confirms the Court’s power to grant administration of the estate of the Deceased:
9Probate or administration may be granted
(1)The Supreme Court has jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within the ACT.
...
73․Under s 12 of the Administration Act, the Court may grant letters of administration of an intestate estate to a next of kin of the intestate (s 12(1)(b)) or to any other person the court considers appropriate (s 12(1)(e)).
74․Under s 49(5) of the Administration Act, for the purposes of distribution of an intestate estate, brothers and sisters of an intestate are within the definition of “next of kin”.
75․Here, the plaintiff is the Deceased’s sibling, and therefore a person eligible to be granted administration. If there were any doubt about her being the closest living blood relation, I would nevertheless have considered her to be an appropriate person to whom letters of administration should be granted, due to her sibling relationship and the fact that all her siblings have consented to her being appointed.
76․The Court may appoint a person to be an administrator of the estate of the deceased, or of any part of the estate, on giving the security (if any) that the Court directs and may limit the administration as the Court considers appropriate: s 24 of the Administration Act. Under r 3045 of the Court Procedures Rules 2006 (ACT)(Rules), the Court may require an administration bond that the surety will make good, up to the required amount, any loss that anyone interested in the administration of the estate may have because of a breach by the administrator of the administrator’s duties.
77․I do not consider it appropriate to require an administration bond in the circumstances of the present case. These include the absence of contest from any interested person, the fact that the plaintiff is legally represented and that the administration of the estate is unlikely to involve any more than a distribution of the monies held in three bank accounts.
Orders
78․For the above reasons, the Court orders as follows:
THE COURT DECLARES THAT:
(1)The deceased, Anne Elizabeth Coonan, died intestate.
THE COURT ORDERS THAT:
(1)Pursuant to s 12(1) of the Administration and Probate Act 1929 (ACT) (Administration Act), letters of administration in respect of the intestate estate of Anne Elizabeth Coonan (Estate), who died on 1 August 2020, are granted to Margaret Majella Jones (Administrator).
(2)The Registrar is directed to do all things and take all steps necessary to give effect to the grant of letters of administration referred to in Order 1.
(3)Following due administration, pursuant to s 49C of the Administration Act, the Administrator is at liberty to distribute the residue Estate in equal shares to: Peter John Coonan, Timothy Gerard Coonan, Francis Damien Coonan, Theresa Imelda O’Keefe, Paul Edward Coonan, Patricia Mary Coonan, Catherine Louise Coonan and Margaret Majella Jones.
(4)The costs of the application are to be paid out of the Estate on an indemnity basis.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: 8 November 2023 |
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