In the Estate of McFadyen
[2015] ACTSC 219
•31 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of McFadyen |
Citation: | [2015] ACTSC 219 |
Hearing Date(s): | 14 August 2015 |
DecisionDate: | 31 August 2015 |
Before: | Burns J |
Decision: | The deceased’s will dated 15 August 2014 is declared invalid. The deceased’s will dated 26 November 2009 is declared the last will and testament of the deceased. The costs of the application are to be paid by the estate. |
Category: | Principal Judgment |
Catchwords: | SUCCESSION – Wills, Probate and Administration – whether testator had capacity to make will at time of execution. |
Legislation Cited: | Wills Act 1968 (ACT) s 16A |
Cases Cited: | Banks v Goodfellow (1870) 5 Q.B. 549 In the Matter of the Estate of Jocelyn Heather Jones (Deceased); And in the Matter of the Public Trustee of the Australian Capital Territory [2014] ACTSC 2000 |
Parties: | Mary Sutton as executor of the will of the late Shenee Pixie McFadyen (Applicant) AB (First Respondent) Delilah Macgillivray (Second Respondent) |
Representation: | Counsel Mr WL Sharwood (Applicant) No appearance (First Respondent) Ms T Tanzillo (Second Respondent) |
| Solicitors Sneddon Hall & Gallop (Applicant) No appearance (First Respondent) Donohue & Co (Second Respondent) | |
File Number(s): | SC 119 of 2015 |
BURNS J:
Shenee Pixie McFadyen (the deceased) died in Canberra on 24 December 2014. She left a will dated 15 August 2014 (the Second Will). In that will, she appointed Marlene Margaret Sutton as the trustee of her will and left her residuary estate to AB.
The deceased had also executed an earlier will dated 26 November 2009 (the First Will). In this will, she appointed Christian Chambard and Delilah Macgillivray as joint trustees and executors. The First Will provided, inter alia, for a number of gifts to be made to charities and longstanding friends. The residue of her estate was to be applied to the Jason McFadyen Foundation for its general purposes.
Ms Sutton, as trustee of the Second Will, now applies by way of an application dated 17 April 2015 for an order that the Second Will be revoked on the ground that the deceased lacked the requisite testamentary capacity at the time it was executed, and an order declaring the First Will the last will and testament of the deceased. In order to determine this issue, it is first necessary to consider the circumstances and events leading up to and surrounding the execution of each will.
Background
In drafting this background, I have relied on the affidavits of Ms Sutton dated 15 April 2015 and Ms Macgillivray dated 27 June 2015, which were tendered in support of this application. I note that there was no evidence tendered in defence of this application as there was no appearance entered by the first respondent to the application, though I am satisfied that AB has been served with the Originating Application.
The deceased spent most of her working life as a public servant and was a long standing member of the Canberra Indigenous community. The deceased married Malcolm Charles McFadyen on 8 April 1972. There was one child of the marriage, namely Jason McFadyen. On 27 June 1988, the Family Court of Australia pronounced a Decree Nisi of Dissolution of Marriage. The deceased’s son died in 2000 from a drug overdose. As such, the deceased had no next of kin.
The deceased’s son was a member of the Australian rowing squad and, during his lifetime, the deceased was active in raising funds for her son to attend the Olympics as an elite rower. Following her son’s death, the deceased established the Jason McFadyen Foundation (the Foundation). I note that there is some discrepancy in the evidence before me about whether the Foundation was indeed established, however it appears that, if the Foundation has not yet been established, it is Ms Sutton’s intention to have such a charitable trust established and administered by a professional trustee company if this application is successful.
The First Will
The deceased met Ms Macgillivray when Ms Macgillivray was posted to Canberra as an 18 year old private in the Australian Regular Army between 1976 and 1980. During that time, Ms Macgillivray described an active and diverse population of Aboriginal and Torres Strait Islanders in Canberra, and Ms Macgillivray and the deceased socialised at Woden Town Club, each other’s houses and community events. Ms Macgillivray connected with the deceased again in 1990 when she commenced working in Woden at Aboriginal Hostels Limited (AHL). They worked together from 1 May 1990 to early February 1997, and they often socialised outside of work together. The deceased and Ms Macgillivray also worked together at Centrelink for some time. Ms Macgillivray’s children referred to the deceased as “Aunty Shenee”. When the deceased’s son died, Ms Macgillivray took three weeks off work to assist in organising the funeral, a traditional ceremony, and to support the deceased through her grief. In 2000, Ms Macgillivray returned to Queensland. She and the deceased maintained regular contact through telephone conversations, and they referred to each other as sisters.
In 2009, shortly after its execution, the deceased sent the First Will to Ms Macgillivray with a covering letter, addressed to “My Sis Delilah”, which outlined her testamentary wishes. The First Will was prepared by the solicitor Graeme C Nettle and executed on 26 November 2009. It provided, inter alia, a number of gifts to charities, and to longstanding friends. It also left the residue of her estate to be applied to the Foundation for its general purposes. It also specified the deceased’s wishes regarding her funeral arrangements, including the company that was to conduct the service, which was the same company that had assisted the deceased with the funeral of her son. It also specified that return airfares and accommodation were to be paid from her estate for the attendance of her sister and other specified family members and friends at her funeral.
Ms Macgillivray deposed that at no time did the deceased express any desire or intention to amend her will.
The Second Will
In April 2014, the beneficiary of the residuary estate of the Second Will, AB, stayed with the deceased for a period of two weeks. The deceased and AB were work colleagues at AHL. In that period, AB took the deceased to Toscan Dinn Funerals to arrange her funeral, which is a different funeral company to that specified in the First Will. AB also made contact with a legally qualified member of the deceased’s church, SK, to arrange for a will and Enduring Power of Attorney (EPOA) to be prepared.
On 12 April 2014, an EPOA was executed appointing AB. This appears to have been the last contact the deceased had with AB.
On 15 July 2014, the deceased contacted Ms Sutton, who had been a close family friend of the deceased since 1977, via Facebook Messenger:
I haven’t heard from [AB] for sometime now, may I ask if you can be executor of my will & enduring power of attorney?
Ms Sutton agreed to take on these roles.
On 19 July 2014, the deceased was admitted to Canberra Hospital following a left cerebellar haemorrhage. This resulted in impaired cognitive functioning, reduction in her mobility and self care. The deceased was assessed as requiring ongoing full time care. The medical evidence before me indicates that the deceased suffered a further left cerebella haemorrhage on 13 August 2014. I will set out in more detail the medical evidence provided later.
The Second Will, prepared by the solicitor SK, was executed by the deceased on 15 August 2014, while she was in hospital. There was evidence put before me to suggest that SK was aware that the deceased was unwell at the time the Second Will was executed.
Both Ms Macgillivray and Ms Sutton expressed in their affidavits concerns that the Second Will was not consistent with the testamentary wishes they believed the deceased had. Ms Macgillivray in her affidavit stated:
I have serious concerns about the 2014 will which doesn’t reflect the charitable donations, particularly the foundation in memory of her son, bequeathed under the 2009 will and what I believe were Shenee’s true interests. I also have concerns about her personal belongings and memories which should go to her family.
Ms Sutton also expressed a similar view regarding the Second Will, stating that, as far as she was aware, the wishes contained in the First Will remained her wishes throughout her life and up until her admission in to hospital. Ms Sutton visited the deceased from her admission to her death, who at the time was suffering imminent liver failure, and often appeared confused and repeatedly did not know where she was, how she got there or where her pet dog was located. On one occasion in August 2014, Ms Sutton recalled that she said words to the effect of “I don’t know how I got to hospital, because [I] was over at Kippax shopping and I ended up in hospital”. At this stage, the deceased had already been in hospital for several weeks. On another occasion in August 2014, Ms Sutton deposed of the following exchange:
...she said to me, words to the effect “can you go shopping and buy some mince steak, because I want to cook a meal for Pinjara (her dog) tonight”. I went downstairs and had a cup of coffee at the hospital coffee shop and then when I returned to see her, she said “did you buy the meat for Pinjara”? I pretended that I had and she said to me “did you put it in the fridge?” I said “I don’t know where the fridge is here” and she replied “I have lived in this house for 38 years and this kitchen is still in the same place”. She pointed to the corner of her room and said “the kitchen is over there”. I turned her around in the chair and showed her the wall and I said “there is no kitchen there, you are now being looked after in hospital”. She replied “no I’m not”. I said “yes you are, you are in Canberra Hospital”, she replied “oh, that’s right, but I don’t know how I got here”.
In her affidavit, Ms Sutton described these conversations as characteristic of the conversations she had with the deceased in the period from July to December 2014.
On 12 September 2014, the deceased was deemed medically stable and ready for discharge to a residential aged care facility. In order to facilitate this, the deceased’s EPOA was required to action a number of tasks. The social worker at the hospital, Vera Steiner, attempted to contact AB, being the deceased’s EPOA, on a number of occasions in September 2014 both via email and telephone. On 22 September 2014, AB advised Ms Steiner via email that she was unable to travel to Canberra to attend to the tasks, who in turn expressed to AB that she needed to appoint someone to take over the EPOA responsibilities, as they required physical attendance. There was no further response from AB.
By way of an application dated 14 October 2014, Ms Steiner made a request for the appointment of a guardian and/or manager to the ACT Civil and Administrative Tribunal, proposing that the Public Advocate and the Public Trustee be appointed guardian financial manager respectively. Ms Steiner’s application detailed the deceased’s medical condition:
Ms McFadyen had a cerebellar haemorrhage which has reduced her cognitive function significantly, as well as her mobility and self care (Ms McFadyen requires full care on an ongoing basis).
Ms Sutton attended the ACT Civil Administrative Tribunal in relation to the EPOA matter. The Tribunal advised her to apply for the position of the deceased’s guardian. Ms Sutton agreed, filed a statutory declaration setting out her association with the deceased and filed an application for guardianship.
The deceased remained in hospital and passed away on 24 December 2014 from respiratory failure. The day following the deceased’s death, Ms Sutton obtained the number for AB and left a message advising that the deceased had died. AB returned her call and they discussed the deceased’s funeral arrangements:
[AB] informed me that everything concerning the funeral had been organised and that the only people she wanted invited the funeral (sic) were the deceased ex-husband (sic), her former father in-law and herself with her husband. She advised the deceased’s sister was not to come to Canberra as she didn’t get on with her. She said she would prepare the eulogy and organise a hangi for the wake.
Ms Sutton was surprised by AB’s statement, as it was quite inconsistent with the First Will. AB further said she would not be able to attend the funeral in Canberra, and that was the last communication that was received by Ms Sutton from AB.
Medical Evidence
I will briefly summarise the contents of the relevant medical evidence that was tendered in these proceedings.
Ms Eleni Pavlidou’s progress notes dated 15 August 2014
I have before me Neuropsychology Progress Notes from the Canberra Hospital written by Ms Pavlidou, a clinical psychologist. I note that these notes were taken the same day the Second Will was executed. It is useful to reproduce the relevant parts of those notes here:
Referral for cognitive assessment of a 63 y.o. female following a large left cerebellar haemorrhage received on the 13.08.2014. It is understood that neuropsychology input was requested to provide a current opinion of Ms McFadyen’s cognition in the event her future care needs required involvement of guardianship tribunal.
...
Impression/opinion
· In light of the psychiatric assessment outlining patient’s significant alcohol dependence, brain injury, recorded presentation consistent with Korsakoff’s syndrome, and lack of social support, consideration to involve public advocate or guardianship tribunal to assist in patient’s ongoing medical treatment and care needs is likely to be in her best interest.
· Given that CL Psychiatry have commented that Ms McFadyen is “not competent to consent or plan future care”, there is no need to proceed in conducting any further assessment, as treating team would have enough evidence to warrant public advocate and/or guardianship trial input.
Dr Klaas Akkerman’s report dated 3 June 2015
Dr Akkerman, a consultant psychiatrist, was commissioned by the applicant to prepare a report on the deceased’s testamentary capacity at the time she executed the Second Will on 15 August 2014. I note that Dr Akkerman did not have the benefit of examining the deceased and has relied on the file provided by the applicant’s solicitors, which included, inter alia, the notes of Ms Pavlidou.
Dr Akkerman notes a long standing history of alcohol use, depression and lack of compliance with treatment. Dr Akkerman reports that the deceased’s mental state fluctuated significantly during her admission and that her insight into her medical and psychological circumstances was very limited. He reports extreme levels of depression and distress symptoms, including lack of motivation, lack of interest, low mood, poor concentration, insomnia, rumination of negative thoughts, difficulty making decisions, hopelessness, low self worth and suicidal ideation, as well as physical deterioration.
Dr Akkerman referred to the report of Ms Pavlidou:
There was a report from Eleni Pavlidou, clinical psychologist, dated 15 August 2014. This said she had Korsakoff’s syndrome. This is an alcohol induced short term memory abnormality. It makes patients disorientated for time and place. It said that the consultation and liaison psychiatrist commented that Ms McFadyen is “not competent to consent or to plan future care”.
Dr Akkerman referred to the principles of Banks v Goodfellow (1870) 5 Q.B. 549 and concluded that “in my opinion [the deceased] definitely did not have capacity to make the Will allegedly executed on 15 August 2014. She was severely cognitively impaired and did not have the capacity to make a Will...”
I note that Dr Akkerman also provided an opinion on the level of influence AB or SK would have had over the deceased in relation to the Second Will, noting that “her clinical condition was such that it would have been quite possible to unduly influence her”. However, I note that the issue of undue influence is not pressed in this application.
The relevant law
Jurisdiction
Counsel for the applicant referred me to the decision of Refshauge J in the Matter of the Estate of Jocelyn Heather Jones (Deceased); And in the Matter of the Public Trustee of the Australian Capital Territory [2014] ACTSC 200, which relates to the jurisdiction of this Court to determine the validity of a will. Refshauge J sets out at [8] – [10]:
It seems to me that Div 3.1 of the Administration and Probate Act 1929 (ACT) and s 20 of the Supreme Court Act 1933 (ACT) constitute this Court as a Court of Probate with the powers derived from the Ecclesiastical Courts of England. See In re Bishop (No 2) (1892) 18 VLR 793 at 802.
As a Court of Probate, this Court has power, as such, to determine whether documents are testamentary documents and whether they are fit to be admitted to probate: Permanent Trustee Co Ltd v WEC International; Estate of Thornthwaite (Unreported, New South Wales Supreme Court, Powell J, 19 March 1993) at p 6.
Thus, as a Court of Probate, this Court has power to determine whether a purported will is a valid will. This includes the question of whether the testator had the necessary mental capacity to make the will.
The written submissions of the applicant also submit that s 16A of the Wills Act 1968 (ACT) governs the present situation. Respectfully, s 16A of the Wills Act has no application to the present situation, and is to only apply when a person is alive: s 16A (3) of the Wills Act 1968.
I am, nevertheless, satisfied that this Court has the power to determine the validity of a will, and within that scope questions regarding testamentary capacity, as outlined by Refshauge J.
Testamentary Capacity
The test for determining whether a person possesses sufficient testamentary capacity is well established and was set out by Cockburn CJ in Banks v Goodfellow at 565:
It is essential to the exercise of [testamentary] 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.
In Timbury v Coffee (1941) 66 CLR 277, Dixon J (as he then was), at 283 quoted from the judgment of Hood J In the Will of Wilson (1897) 23 V.L.R. 197:
“... Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner”.
Dixon J went on to quote from the judgment of Cresswell J in Symes v Green (1859) 164 E.R. 785:
“If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it”
Consideration
I accept and give significant weight to the notes of Ms Pavlidou, given their proximity in time to the signing of the Second Will, the notes being dated the same day the Second Will was executed. I particularly note Ms Pavildou’s finding that the deceased was not competent as of 15 August 2014 to consent or plan for her future care, which strongly supports the applicant’s submission that the deceased lacked testamentary capacity as at that date. I consider that Ms Pavlidou would have been in the best position to assess the deceased’s testamentary capacity on 15 August 2014, given her expertise and training as a clinical psychologist and having actually observed and examined the deceased on that date.
I also accept Dr Akkerman’s conclusion that the deceased was severely cognitively impaired and did not have capacity to execute the Second Will on 15 August 2014.
I also find the account of the deceased’s testamentary capacity provided by Ms Sutton to be most telling of the deceased’s level of cognitive awareness in August 2014.
I also take into account the fact that the contents of the Second Will markedly differ from the contents of the First Will. In particular, I note that the Second Will makes no provision for the Jason McFadyen Foundation and does not provide for the deceased’s sister to attend her funeral, both elements of the Second Will that disturbed Ms Sutton and Ms Macgillivray.
Taking into account the consistent and definitive conclusions of the medical evidence before me, with no evidence having been tendered to the contrary, as well as the evidence contained in the affidavits of Ms Sutton and Ms Macgillivray, I am satisfied that, following the deceased being admitted to Canberra Hospital for a cerebellar haemorrhage, the deceased’s cognitive capacity deteriorated to the extent that she would not have been aware of the significance of the document she was asked to sign on 15 August 2014. It seems abundantly clear to me that the deceased did not possess the requisite testamentary capacity outlined in Banks v Goodfellow at the time she executed the Second Will. It follows that the Second Will should be declared invalid and the First Will should be declared the last will and testament of the deceased.
Orders
I order that:
(a)the deceased’s will dated 15 August 2014 is declared invalid;
(b)the deceased’s will dated 26 November 2009 be declared the last will and testament of the deceased; and
(c)the costs of the application be paid by the estate.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 31 August 2015 |
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