In the Estate of Frederick Allwood
[2023] NTSC 72
•31 August 2023
CITATION:In the Estate of Frederick Allwood [2023] NTSC 72
PARTIES:IN THE MATTER of an application for grant of probate for Will in solemn form for the Estate of Frederick Allwood
DE SILVA, David Robert John
AND
PUBLIC TRUSTEE FOR THE NORTHERN TERRITORY
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-02591-SC
DELIVERED: 31 August 2023
JUDGMENT OF: Brownhill J
Ashkettle v Gwinnett [2013] EWHC 2125 (Cth); Banks v Goodfellow (1870) LR 5 QB 549; Brown v Wade [2010] WASC 367; Carr v Homersham (2018) 97 NSWLR 328; Chisak v Presot [2021] NSWSC 597; Chronis v Karen [2021] SASC 87; Hawes v Burgess [2013] EWCA Civ 74; Kerr v Badran [2004] NSWSC 735; Lim v Lim [2023] NSWCA 84; Magiera v Cekan [2023] SASC 20; Moloney v Hayward [2022] SASC 79; Re Klapsas; Klapsas v Muscat [2022] VSC 755; Re Levy (deceased) [1953] VLR 652; Robertson v Barker [2021] NSWSC 1682; Russell v Anderson [2021] WASC 435; The Estate of Alberto Magri (No 2) [2022] NSWSC 1779; Tobin v Ezekiel (2012) 83 NSWLR 757; Tsagouris v Bellairs [2010] SASC 147; Veall v Veall (2015) 46 VR 123; Wild v Merudi [2023] NSWSC 113; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, referred to.
Guardianship of Adults Act 2016 (NT) ss 5(4), 11(1)
Wills Act 2000 (NT) s 8
GE Dal Pont & KF Mackie, Law of Succession (LexisNexis Butterworths, 1st ed, 2013)
REPRESENTATION:
Solicitors:
Plaintiff:De Silva Hebron
Defendant:Solicitor for the Northern Territory
Judgment category classification: C
Judgment ID Number: Bro2314
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINIn the Estate of Frederick Allwood [2023] NTSC 72
No. 2022-02591-SC
IN THE MATTER of an application for grant of probate for Will in solemn form for the Estate of Frederick Allwood
BETWEEN
DE SILVA, David Robert John
Plaintiff
AND:
PUBLIC TRUSTEE OF THE NORTHERN TERRITORY
Defendant
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 31 August 2023)
The issue in this matter is whether the deceased had testamentary capacity at the time he made a will in 2018. If he did, probate will be granted for that will. If he did not, that will is invalid and probate will not be granted.
Background
The deceased died on 23 May 2021.
On 8 April 1998, the deceased executed a will appointing the Public Trustee for the Northern Territory (‘Public Trustee’) as the executor, and bequeathing the whole of his estate to the Salvation Army.
On 7 December 2018, the deceased executed a will appointing members of the firm De Silva Hebron, Barristers and Solicitors, as the executor, and bequeathing the whole of his estate to his friend, Victor Bastard (‘2018 Will’).
On 16 January 2019, the Northern Territory Civil and Administrative Tribunal (‘NTCAT’) appointed the Office of the Public Guardian as the deceased’s guardian for personal and financial matters.
On 27 May 2019, NTCAT appointed the Public Trustee as the deceased’s guardian for financial matters and the Public Guardian as the deceased’s guardian for personal matters.
After the deceased’s death, the Public Trustee wrote to De Silva Hebron suggesting that the deceased’s capacity to make a will in around December 2018 may have been impaired because he was suffering from dementia. De Silva Hebron wrote in response, describing the circumstances in which the 2018 Will was prepared. Further communications ensued.
On 14 October 2022, the plaintiff applied to this Court by writ seeking the grant of probate in solemn form for the 2018 Will, and joining the Public Trustee as the defendant. This was the appropriate course in the circumstances.[1] Notification of all interested parties is necessary for the grant of probate in solemn form.[2] The Salvation Army and Mr Bastard were notified of the proceedings and both declined to participate.
Consideration
The Court is required to undertake a vigorous examination of the whole of the evidence on an application for a grant of probate in solemn form to be satisfied of the validity of the will.[3]
The 2018 Will is rational on its face. It was drafted by a solicitor. It appoints an executor and bequeaths the estate to a friend of the testator or, if that friend were to predecease the testator, the Salvation Army.
In accordance with s 8 of the Wills Act 2000 (NT), the 2018 Will was duly executed. It was signed by the deceased, and by two witnesses. Those two witnesses were present when the deceased signed the 2018 Will.[4]
Those two matters give rise to the presumptions that: (a) the deceased was mentally competent; and (b) the deceased had knowledge of and approved the contents of the 2018 Will at the time of execution.[5] These presumptions are rebuttable and may be displaced by circumstances that raise a doubt as to the existence of testamentary capacity, or which ground a suspicion whether the testator knew and approved the contents of the will at the time of its execution.[6]
The Public Trustee has given evidence as follows.[7]
On 9 January 2019, an application for a guardianship order in respect of the deceased was made to the NTCAT by Marcelle Loffelman, the Assistant Manager of the aged care facility where the deceased was then living. In support of that application were filed a report from Dr Michael Lowe and a report from registered nurse Abigail Makunde. The report from Dr Lowe stated that, in October 2018, the deceased had a diagnosis of mild cognitive impairment and undertook testing with results consistent with a mild dementia. At that stage, the medical opinion was that the deceased was competent to make his own decisions. Reference was made to observations by others suggesting to them that Mr Bastard was making efforts to be provided with money from the deceased. Dr Lowe was told by the deceased that he had made the 2018 Will in favour of Mr Bastard, and that the deceased wanted Mr Bastard to have his money after he died, but not before. The deceased did not know exactly how much money he had in the bank but thought it was less than $500,000. The deceased said Mr Bastard was one of the few people who helped him. The deceased was concerned that he could not keep track of money coming in and bills going out and wanted help from the Public Guardian to manage his money if they were not too expensive. Dr Lowe’s view was that the deceased had a degree of cognitive impairment making him not competent to manage the complexities of his current finances, including his financial relationship with Mr Bastard. The report by Ms Makunde noted the deceased’s long term and short term memory were affected, he was disorientated as to time and place, not able to plan or solve problems without assistance and his memory appeared to be getting worse.
On 16 January 2019, NTCAT made orders, expiring on 16 April 2019, appointing the Public Guardian as guardian for the personal and financial matters of the deceased. The basis for the making of such an order is that the adult the subject of the application has impaired decision making capacity in relation to some or all personal or financial matters, which may be the case even if the impairment is episodic and from time to time the adult’s capacity is not impaired, or their capacity for some matters is not impaired, or the extent of impairment varies from time to time depending on the circumstances.[8]
On 29 March 2019, an officer of the Public Guardian prepared an inquiry report about the deceased. The officer met with the deceased and his guardian to discuss guardianship matters. The deceased said he had a memory problem and wanted the Public Guardian to be his guardian. The officer met with the deceased’s bank manager who recited an attendance at the bank on 30 November 2018 by the deceased and Mr Bastard, during which Mr Bastard informed the bank that the deceased wanted to transfer all of his money to Mr Bastard. The bank refused to make the transaction and the bank manager described the deceased as ‘muddled’. When she called the deceased a few days later, he had no recollection of the attendance. The officer met with Mr Bastard, who stated he did not think the deceased needed a guardian, but if there was to be one, he would like to be the guardian or a co-guardian. At a later meeting, Mr Bastard said he no longer wished to be a guardian for the deceased. The report concluded there were no individuals who may be eligible to be appointed as guardian, and recommended that it be the Public Guardian for personal matters and the Public Trustee for financial matters.
Those orders were made by the NTCAT on 27 May 2019.
The Public Trustee had advised that the deceased’s estate was valued at approximately $350,000, being cash in a bank account of approximately $53,000, an investment account of approximately $20,000 and the refundable accommodation deposit paid to the aged care facility of approximately $280,000.
The above evidence establishes that, in October 2018, the deceased had mild dementia and consequent mild cognitive impairment, but had the capacity to manage his personal and financial affairs. By January 2019, both the deceased and the aged care facility doctor were of the view that the deceased was no longer competent to manage his personal and financial affairs. Part of the rationale for that view appears to be the influence of Mr Bastard over the deceased and his apparent desire to access the deceased’s money.
The 2018 Will was executed on 7 December 2018. The plaintiff relied on the following evidence given by the solicitor who prepared the 2018 Will.[9] On 5 December 2018, she received a call from Mr Bastard about the making of a will for his friend, the deceased. An appointment was scheduled for 7 December 2018. The deceased and Mr Bastard attended. The deceased was in a motorised wheelchair. She explained that, in accordance with her usual practice, if Mr Bastard was to receive any benefit under the will, she would have to take instructions from the deceased alone. The deceased said he wanted Mr Bastard to be present. She then took instructions for the will from the deceased directly. The deceased wished to sign the will that day, so the instructions were taken and the will was typed immediately, with the deceased signing it that day. At the first meeting, noting the deceased’s age and health, she asked about any health conditions affecting the deceased’s memory or capacity to make decisions. The deceased said he had issues with hearing, vision and mobility, but no mention was made of any issues with memory. The deceased was lucid, but she took steps to satisfy herself of the deceased’s testamentary capacity and allay concerns about the influence of Mr Bastard. She spent two hours with the deceased in total. In order to test his memory, she asked the deceased to confirm his full name, date of birth, address and living arrangements. The deceased provided those details satisfactorily. She asked questions of the deceased to test his memory. She asked open-ended questions about his past occupations, places he had lived and family members. The deceased said he was unmarried, had no children, was not close to his extended family, was unaware if one of his sisters was alive as he had not heard from her for some time, and had some nieces and nephews living in Mildura. He was not at all close to these relatives. The deceased said he did not own any real property, but rented a unit in Nightcliff and had about $3,000 in the bank. Discussion was had about the executor of the will and the deceased said he wished to appoint De Silva Hebron. The deceased described Mr Bastard as a friend from work many years ago, who cared for him, and said he wanted to repay Mr Bastard’s kindness by making him the beneficiary of his estate. The deceased said he wanted to give his estate to the Salvation Army if Mr Bastard was ‘not around’. On the basis of these discussions, the solicitor was satisfied that the deceased had testamentary capacity, despite his age and frail condition. When the deceased executed the will, Mr Bastard was not in the room, having been asked to remain outside. The solicitor provided the will to the deceased to read, which he did, with his reading glasses on. This took some time, satisfying her the deceased read it carefully. She then read out and explained each operative clause of the will to the deceased, to make sure he understood what would happen to his estate. She confirmed his instructions that he wanted to give everything to Mr Bastard. The deceased also repeated his instructions back to the solicitor, and did not change them. He then executed the will.
In a letter written to the Public Trustee in July 2021,[10] the solicitor also described her meeting with the deceased for the preparation of the 2018 Will. She noted that the deceased told her he had a ‘pension with the CSC’ but no superannuation or life insurance, approximately $3,000 with the Commonwealth Bank, and no significant debts.
On the basis of the evidence before the Court, I conclude that, on 7 December 2018, when the deceased executed the 2018 Will, although he suffered from dementia:[11]
(a)he understood he was making a will in which he would leave his entire estate to Mr Bastard upon his death;
(b)he was able to comprehend and appreciate that there were others (namely his family members) who might reasonably be thought to have a claim upon his estate, the basis for such a claim and the nature of those persons; and
(c)save as discussed below, there were no delusions influencing his will to bequeath his estate to Mr Bastard – the deceased clearly wished to give his estate to Mr Bastard as one of the only people who helped him and cared for him.
The other requirement for testamentary capacity is awareness of the nature, extent and value of the estate.[12] The deceased told the solicitor that he had about $3,000 in the bank. In fact, he had some $70,000. He told the solicitor that he rented his unit in Nightcliff. At the time of his death, he had a refundable accommodation deposit at the aged care facility of some $280,000.
In Kerr v Badran [2004] NSWSC 735 (‘Kerr v Badran’), Windeyer J observed (at [49]) as follows:
Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing ‘the extent’ of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life.
This passage was approved by the New South Wales Court of Appeal in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (at [64], [94]).
The plaintiff relied on the decision in Hawes v Burgess [2013] EWCA Civ 74 (‘Hawes v Burgess’), in which the English Court of Appeal held (at [57] and [60]) as follows:
…[I]t is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.
…
My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. …
The decision in Hawes v Burgess has been cited with approval a number of times in decisions of the courts of New South Wales, Victoria and South Australia.[13]
In the text Law of Succession, the authors state (after citing the extract from Kerr v Badran set out above) that, if it is shown that the testator was mistaken as to the extent of the property to a real and substantial extent, this may lead to a finding of mental incompetency.[14] This is consistent with the observation of Basten JA in Carr v Homersham (2018) 97 NSWLR 328 (at [8]) that no high level of precision is required to be demonstrated in relation to the testator’s knowledge of their property as at the date of execution of the will.[15]
The following cases give some illustration of the situations in which courts will find a testator did, or did not, have testamentary capacity by reference to an understanding of the nature and value of their estate.
In Brown v Wade [2010] WASC 367, the Supreme Court of Western Australia held that an elderly testator’s persistent confusion (at the times of preparation and execution of the will) about whether he owned or had already disposed of the farmland holdings which were the bulk or at least a substantial part of his estate, tended to throw a substantial doubt upon his testamentary capacity by reference to his capacity to understand the extent of the property of which he was disposing.
In Veall v Veall (2015) 46 VR 123 (‘Veall v Veall’), the Victorian Court of Appeal held that the primary judge erred in finding the deceased had testamentary capacity, at least partly on the basis that the deceased had made express reference in his will to shares of a substantial value, which had in fact always been held in a trust and had been sold several years before the execution of the will, and the deceased had sworn an affidavit in another court proceeding shortly before the will’s execution in which he accurately described that the shares had been disposed of.
In Lim v Lim [2023] NSWCA 84, the New South Wales Court of Appeal overturned the decision of the primary judge that the testator did not have testamentary capacity, holding that the facts that the testator’s only asset was the house she lived in, she had gone to the trouble of making a will, and she had sought to ensure her children understood the will, strongly suggested that she understood that her estate had value, she owned her house, and understood the extent of her property.
In Moloney v Hayward [2022] SASC 79, McMillan J held that the testator understood the extent of his assets, but the evidence did not establish that he knew the approximate value of a portion of farmland within his estate, which was valued at $3.9 million but which the will provided could be acquired by his son for $2 million. It was held the testator did not have testamentary capacity.
In Wild v Merudi [2023] NSWSC 113, the testator was found to have testamentary capacity despite having dementia because her will dealt with all the properties she owned, and was prepared in conjunction with the application for probate for her late husband’s will, by a solicitor who had acted for her in the past and gave evidence that at the time of making the will the testator was alert and clear about what she owned, and the testator had made specific gifts of her personal effects.
In Robertson v Barker [2021] NSWSC 1682, Hallen J found that the testator had a realistic perception of her property, including an understanding, which his Honour found impressive, that the aged care facility she lived in had ‘some of her money’, which she estimated at over $300,000. The accommodation bond amounted to $400,000. The testator was found to have testamentary capacity.
In the present case, the deceased’s understanding was that the total value of his estate was approximately $3,000. It was actually approximately $350,000. That is a very substantial misunderstanding about the value of his estate. The deceased’s estate was not one comprised of multiple properties or a share portfolio which provided him an income and which he might not be expected to know the details of. His estate consisted of a significant amount of money in the bank (some $70,000), and a refundable accommodation deposit of significant value ($280,000). At the time he made the 2018 Will, he was apparently living in a unit in Nightcliff. There is no evidence as to where the $280,000 came from for the accommodation deposit at the aged care facility, but the deceased did not appear to have any awareness of money or an asset of that value held by him at the time the 2018 Will was prepared. This evidence establishes that the testator was mistaken as to the value or extent of his property to a real and substantial extent, and throws considerable doubt upon his testamentary capacity, that is whether he was of sound and disposing mind.
In Veall v Veall, the Victorian Court of Appeal cited with approval the observations of Pymont DJ in Ashkettle v Gwinnett [2013] EWHC 2125 (Cth), who referred to the observations in Hawes v Burgess set out above and said:
I accept the wisdom of these comments though I observe that they do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless…
Here, despite having made a proper assessment, the solicitor who prepared the 2018 Will did not have accurate information about the true nature or value of the deceased’s estate. Consequently, her assessment that the deceased had testamentary capacity carries little weight and is insufficient to overcome the considerable doubt about the testator’s testamentary capacity. The facts that the testator had dementia and consequent cognitive impairment and an assessed incapacity to make decisions about financial matters such that a guardianship order was in place are also relevant and support the conclusion that the deceased lacked testamentary capacity when the 2018 Will was prepared.
Consequently, I find that at the time of preparation and execution of the 2018 Will, the deceased did not have testamentary capacity and the 2018 Will is not a valid will. The application for grant of probate in solemn form should be refused.
Orders
The application for grant of probate in solemn form of the 2018 Will is refused.
I will hear the parties as to costs.
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[1]The Estate of Alberto Magri (No 2) [2022] NSWSC 1779 at [49] per Henry J; Re Levy (deceased) [1953] VLR 652 at 658 per Sholl J. See also Magiera v Cekan [2023] SASC 20 at [26] per Stanley J regarding a grant of probate in solemn form.
[2]Magiera v Cekan [2023] SASC 20 at [26] per Stanley J.
[3]Tsagouris v Bellairs [2010] SASC 147 at [12] per Gray J.
[4]Affidavit of Leanne Marie Kerr made 24 March 2023, [39]; Affidavit of Katerina Kalitsis made 28 February 2023, [3].
[5]Russell v Anderson [2021] WASC 435 at [12]-[13] per Allanson J, citing Tobin v Ezekiel (2012) 83 NSWLR 757 at [43]-[54] per Meagher JA (Basten and Campbell JJA agreeing) and the authorities there cited.
[6]Ibid.
[7]Affidavit of Beth Susanne Walker made on 13 December 2022.
[8]Guardianship of Adults Act 2016 (NT) ss 5(4), 11(1).
[9]Affidavit of Leanne Marie Kerr made on 24 March 2023, [15]-[41].
[10]Affidavit of David Robert John De Silva made on 14 October 2022, Annexure DDS-4.
[11]Banks v Goodfellow (1870) LR 5 QB 549 at 565 per Cockburn CJ.
[12]Ibid.
[13]See, for example, Chisak v Presot [2021] NSWSC 597 at [3] per Hallen J; Veall v Veall (2015) 46 VR 123 at [191]-[192] per Santamaria JA (Beach and Kyrou JJA agreeing); Re Klapsas; Klapsas v Muscat [2022] VSC 755 at [15]-[16], [131] per Walker JA; Chronis v Karen [2021] SASC 87 at [249] per Parker J; Moloney v Hayward [2022] SASC 79 at [269] per McMillan AJ.
[14]GE Dal Pont & KF Mackie, Law of Succession (LexisNexis Butterworths, 1st ed, 2013) [2.7].
[15]Cited with approval in Lim v Lim [2023] NSWCA 84 at [67] per Kirk JA (Bell CJ and Griffiths AJA agreeing).
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