IN THE ESTATE OF THE LATE LEO RENE RAIG

[2006] ACTSC 96

IN THE ESTATE OF THE LATE LEO RENE RAIG
[2006] ACTSC 96 (21 September 2006)

EX TEMPORE JUDGMENT

PROBATE – testamentary capacity – validity of will – onus of proof – two prima facie valid wills executed by deceased – testamentary capacity of deceased when later will executed – mental state of deceased at time of execution – evidence of widespread  cognitive decline –impairment of executive functions – no appearance or opposition by beneficiaries under later will

Banks v Goodfellow (1870) 5 QB 549
Re Gray Smith (1978) VR 596

No. P303 of 2006

Judge:              Master Harper
Supreme Court of the ACT

Date:               21 September 2006

IN THE SUPREME COURT OF THE  )
  )  P303 of 2006
AUSTRALIAN CAPITAL TERRITORY  )

IN THE ESTATE OF THE LATE LEO RENE RAIG

ORDER

Judge:  Master Harper
Date:  21 September 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. Probate be granted of the will of the deceased of 17 March 1989.

1. The costs of the application be paid out of the estate.

1. This is an application for probate in solemn form, in circumstances where there are two apparently valid wills made by the deceased. The first is a handwritten will on a form purchased from a newsagent and published by the Associated Newsagents Co-operative Ltd in New South Wales in 1989, completed by the deceased in handwriting and validly executed by him on 17 March 1989. The second is a will prepared by Mrs Elspeth Bodley of the firm Tetlow, Jansen & Doyle in Canberra, and executed by the deceased on 16 December 2003, on its face validly.

1. The deceased died on 2 June 2004 at Ginninderra Gardens Nursing Home in Canberra. The first will appointed Paula Frances McDonnell and Mark McDonnell as executors and included a bequest of the proceeds of the sale of identified property to pay off the mortgage of a house at Wilberforce then owned by Mark McDonnell and his wife, Ann McDonnell. The amount owing on mortgage at the date of the will is not in evidence, but I would treat that bequest as a bequest of whatever the necessary amount was at the date of death to discharge the mortgage.

1. The balance of the estate was effectively left to Paula Frances McDonnell, who is the mother of Mark McDonnell. The property at Wilberforce was sold and the mortgage paid out and discharged during the lifetime of the deceased, so that if the 1989 will is accepted as the last valid will of the deceased, its effect is to leave the whole of his estate to Paula Frances McDonnell.

1. In the later will, the deceased appointed Mark McDonnell as executor and trustee, provided for monetary legacies totalling $60,000, and left the residue of the estate equally to the Leukaemia Foundation of Australia Ltd for its general purposes and the Australian National University to assist young and promising violinists.

1. Of the monetary legacies, $10,000 was left to Paula Frances McDonnell, $15,000 to Paul Slater, $25,000 to be divided between two named children of Paul Slater and $10,000 for Thomas Edward McDonnell who is the son of Mark McDonnell.

1. In relation to the first will, Mrs Paula McDonnell has renounced her appointment as executor, and hence Mark McDonnell finds himself potentially the executor of whichever will is found to be the valid last will of the deceased. He applies to the court for a grant of probate of the earlier will, or in the alternative, probate of the later will.

1. Counsel for the executor submits that there is sufficient doubt about the testamentary capacity of the deceased at the time of execution of the second will for it to be inappropriate that that will be admitted to the probate and that in the circumstances, I should grant probate of the earlier will.

1. The evidence is that the state of health, including mental health, of the deceased deteriorated considerably in the years after he made his first will leading up to his death. There is evidence by a neuropsychologist, Dr Tania Lioulios, who conducted a neuropsychological assessment of the deceased in June 2003, some six months before the date of the second will and 12 months before he died.

1. She was asked to conduct the assessment in the context of consideration of whether the deceased should be the subject of a guardianship order on application to the Guardianship and Management of Property Tribunal. She found early indications of widespread cognitive impairment, apparently as a result of repeated infarctions at many different sites. She said that the presentation was consistent with multi-infarct dementia or vascular dementia, a condition which deteriorates over time.

1. She found significant impairment of executive behaviour including inflexible, concrete thinking, impaired social and intellectual judgement, inertia, impulsive aggression, and apathy. She also found deficits in attention and concentration, memory and learning, slowed speed of information processing, and impaired communication. The presentation was also suggestive of reduced orientation.

1. She concluded that there was widespread mild to moderate cognitive decline with significant impairment in the majority of executive functions, and that the decline was likely to continue. She recommended that the deceased should be referred to the Guardianship Tribunal for consideration of the making of a guardianship order.

1. What might be seen as a contrary opinion about the mental state of the deceased appears in a letter from his general practitioner, Dr Maureen McCluskey, of Macquarie, who assumed his care when he moved into Ginninderra Gardens Nursing Home. Her understanding was that he had a past history of cerebro-vascular accident and of transient ischaemic attacks, as well as suffering from Parkinson’s disease and from urinary tract infections. She said that he was admitted to Ginninderra Gardens because of mobility problems which rendered him in need of high-level care.

1. She conducted what is known as a mini mental state examination, and his score on that examination was 29/30 which Dr McCluskey said indicated no evidence of a dementing process. She said that he was undoubtedly eccentric but not, at that time, demented on the basis of the MMSE test result. She concluded her letter, which was addressed to the Mental Health Tribunal, by saying that she was unable to say that he was incapable of making decisions relating to his personal circumstances but that she was equally unable to say that he was capable of doing so, given her short acquaintance with him and her lack of knowledge of his previous coping skills.

1. Dr Lioulios was asked to comment on issues related to the testamentary capacity of the deceased after his death. In a letter of October 2004 addressed to the executor, she was somewhat critical of reliance on the MMSE test referred to by Dr McCluskey. She said that that test was typically used in primary care to monitor a patient’s response to medical care and to screen for cognitive change associated with Alzheimer’s disease. It was not a diagnostic test nor was it equivalent to formal neuropsychological examination, and it was not capable by itself of determining competence. It was not always sensitive to picking up early dementia and it might not be sensitive to some forms of vascular dementia of the kind which afflicted the deceased. She concluded that the MMSE test results alone would not have been adequate in evaluating the deceased’s testamentary competence in December 2003.

1. She expanded on those comments in a report to the solicitors engaged by the executor in January 2006. She was asked some specific questions which related, though she might not have been aware of this, to what has been described as the traditionally accepted formula for determining testamentary capacity, as stated by Cockburn CJ in Banks v Goodfellow (1870) 5 QB 549 in which his Lordship said:

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 delusions 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.

1. No doubt having regard to that passage, the solicitors for the executors framed some questions for Dr Lioulios in somewhat more contemporary language. The questions and answers were as follows:

1. Was Mr Raig aware in general terms of the nature, extent and value of the property he could dispose of?

Answer: I did not assess him directly for this as I was unaware that he was considering changing his will until after the assessment took place. However, there was evidence from behavioural observations that he was not fully aware of what he owned and what he was disposing of, see example above regarding buying multiple mobile phones.

2. Was he aware of those who might reasonably be thought to have a claim upon his testamentary bounty and the basis for and nature of the claims of such persons?

Answer: Mr Raig was disoriented at times and forgot the names of his family and friends including forgetting the name of the executor of the will. However, in general, his autobiographical memory, memory of people and events in his past, was functional when prompted.

3. Did he have the ability to evaluate and to discriminate between the respective strengths of the claims of such persons?

Answer: The balance of evidence clearly points to Mr Raig not being capable of discriminating the respective strengths of the claims of those reasonably having claim to his estate. Even back to June 2003, his judgement, decision-making capacity and problem-solving were impaired.

4. Was he suffering from a disorder of the mind, for example delusion or hallucination, such that his ability to so evaluate and to discriminate was affected?

Answer: According to historical information combined with psychometric test results, clinical observations and behavioural observations from hospital staff and family, Mr Raig was suffering from a clinical psychiatric illness/disorder, see my letter to Mr Mark McDonnell of October 2004, which included symptoms of delusional thinking, paranoid ideation, episodes of oppositional anger and social withdrawal.

At the time of testing in December 2003 these symptoms were of such a range and extent that they would have affected his ability to evaluate and discriminate in regard to the claims of those various people who would reasonably have had claim on his estate. In essence, his emotional judgement was impaired to the extent that he had paranoid delusions regarding people around him including family and some hospital/nursing home staff. At times this paranoia and delusional thinking caused him to behave in an oppositional way toward people trying to help him.

1. Instructions for the second will were taken by Mrs Bodley in circumstances which she explained in a letter to the solicitors for the executor in July 2005. In summary, she said that on 5 December 2003 she received a phone call from Paul Slater asking her if she could visit Mr Raig at Ginninderra Gardens regarding a new will. Mr Slater met her at Ginninderra Gardens on 9 December 2005 and introduced her to Mr Raig. She was told that Mr Raig had advanced Parkinson’s disease. He was in bed and rather short of breath. His speech was slurred, but after a little while he became easier to understand.

1. Before visiting him, Mrs Bodley had telephone discussions with the Public Trustee’s office and with Dr McCluskey. With the consent of the Public Trustee she arranged for Dr McCluskey to provide a medical certificate which I will summarise shortly. Dr McCluskey told Mrs Bodley on the telephone that the deceased had a peculiar personality but did not suffer from dementia.

1. On 10 December the Community Advocate responded to Mrs Bodley’s telephone call and suggested a psychiatric report which could be obtained at a cost of about $400. Mrs Bodley says in her letter that this was not done, though there is no further explanation as to why it was not.

1. She said that instructions were initially discussed with the deceased while Paul Slater was in the room. Once she found Mr Raig easier to understand, she asked Mr Slater to leave the room. She then went over each of Mr Raig’s instructions and asked him to confirm that each one was what he really wanted. He indicated his consent verbally or by nodding or giving an emphatic thumbs up sign. With patience she could understand his speech. She repeated what she understood him to say and he indicated verbally or by gesture whether she was correct or not. This went on until she got it correct each time. He told her that he was still happy for Mr McDonnell to be his executor. He was not sure of Mark’s full name. She said that Paul Slater later emailed full details of Mark McDonnell’s name and address to her. I interpolate that the address was incorrect and I infer that Mr Slater got the address from a Sydney telephone book and selected the wrong M McDonnell.

1. Mrs Bodley went on to say that she had taken notes at the time. With the benefit of these she was able to say that Mr Raig had told her that he had divorced in 1967 and that he and his ex-wife had parted in peace; that his mother had died of leukaemia which was why he was leaving a gift to the Leukaemia Foundation; that he had no children of his own and that his sister’s children already had plenty of money.

1. Mrs Bodley in the intervening week prepared the will. On 16 December she went back to Ginninderra Gardens with a legal secretary from her firm to act as a second witness. She says that they sat with Mr Raig in a gazebo in an inner courtyard. She read through each of the provisions in the operative clauses of the will and obtained his consent to each one before moving to the next. The will was then signed and witnessed.

1. The certificate by Dr McCluskey to which I have referred was dated 10 December 2003 and confirmed that Mr Raig, date of birth 30 March 1922, was a patient of her practice, currently resident at Ginninderra Gardens Nursing Home, and that he suffered physical disability with mobility problems but did not apparently suffer from dementia. The certificate went on to say that he had scored highly, at 29/30, on a mini mental state examination and on that basis could not be declared incompetent to make a will.

1. I accept from the evidence that the deceased had a long-standing relationship with Paula Frances McDonnell and that they had lived together as man and wife for a long period of time, after which they lived at separate addresses but a short distance from each other. Their relationship continued for years in that way, notwithstanding that they were no longer living together. The plaintiff ultimately accepted that it was impractical for him to continue living at his apartment in Sydney. He was persuaded by Mrs McDonnell’s daughter to move to Canberra where she lived with her family. Mrs McDonnell also moved to Canberra about six months later, and for a period of time Mrs McDonnell held a power of attorney for him.

1. I also accept that the relationship between the deceased and Mark McDonnell and his sister Ann was a very close one. They almost regarded the deceased as their father and their children regarded him as their grandfather.

1. I accept that Mrs McDonnell in particular had a entirely understandable claim on the bounty of the deceased. I accept that she was taken by complete surprise to discover that she had been reduced to a relatively nominal monetary legacy in the second will.

1. I accept the submission of counsel that the failure of the deceased to provide for Mrs McDonnell can probably be described as, to use an ancient legal word, inofficious; that is to say the second will can be seen as “a will in which natural affection and the claims of near relationship have been disregarded”, to quote again from Banks v Goodfellow (at p 570).

1. The beneficiaries under the second will have all been notified that this application has been brought and is to be heard today. The major potential beneficiaries, the Australian National University and the Leukaemia Foundation, have elected not to be represented, and not to oppose the application or propound the second will. The only action taken by a beneficiary under the second will is the filing of an affidavit by Paul Slater, sworn 19 September 2006, which under r. 3097 operates as a notice of intention to intervene in the proceeding.

1. Mr Slater, however, has not attended court and sought to be heard in opposition to the application. I note that on 17 July 2006 he telephoned the solicitor for the executor and in the course of the conversation said words to the effect, “I don’t wish to be involved in the proceeding but I want the executor to know the full situation”. A few days later he sent the solicitor an email setting out effectively the information to which he has deposed in his affidavit.

1. Counsel for the applicant has submitted that I should not receive that affidavit into evidence considering that there is no contradictor present and no one to tender the affidavit. It seems to me that I have a discretion nevertheless to admit the affidavit into evidence. I have read the affidavit for the purpose of considering that question. I am satisfied that there is nothing in it which is specifically contradictory to any of the evidence in the applicant’s case. It is clearly relevant to the issues. I propose to admit the affidavit.

1. In summary, Mr Slater deposes that he was a close friend and former student of the deceased, having first met him in 1972 when the deceased was a teacher and Mr Slater was a pupil at Canterbury Boys’ High School in Sydney. He says that the deceased was godfather to one of his sons and he gives what I take to be some information which might assist in explaining why the deceased might have made a decision to give the bulk of his estate to the Leukaemia Foundation and to the Australian National University to encourage young violinists.

1. As to the former, he says that the mother of the deceased died of leukaemia whilst the deceased was imprisoned during the Second World War in Siberia, in circumstances where the family, including the mother of the deceased, had been told that he had died. She did not lose hope of seeing him again. She died shortly before his release and missed seeing him by a short time, which Mr Slater says was a shattering experience for the deceased. He expresses the belief that this was the motivation for the bequest to the Leukaemia Foundation. He also speaks of the deceased having played the violin when younger and of incidents involving the deceased and the playing of the violin which he believes explain the motivation for the bequest to the university.

1. I note the contents of the affidavit, but I bear in mind that had it been tendered counsel for the executor had instructions to cross-examine Mr Slater on its contents both as to their accuracy and as to Mr Slater’s credit. I am in no position to make any observation as to what the effect might have been of such a cross-examination.

1. There is authority for the proposition that there is no onus on the executor in the circumstances of this case to satisfy the court that the second will is invalid, and thus no onus on the executor to satisfy me that the deceased lacked testamentary capacity at the date of its execution. Re Gray Smith (1978) VR 596, a decision of Murphy J of the Supreme Court of Victoria, is authority for the proposition that the onus of proving the validity of a later will in the circumstances of this case rests on those seeking to propound it. Where an executor can establish circumstances which give rise to a well-founded suspicion that the second document does not represent the true will of a capable testator then, provided that notice has been given to all interested parties and none have come forward to propound the later document when the will is proved in solemn form, the court should ignore the later document.

1. I should in relation to that case that the later document with which Murphy J was concerned was a piece of paper addressed by the deceased to her solicitors shortly before her death which was handwritten and clearly not prepared by a solicitor, or even witnessed by anyone independent who would be likely to have given any thought to the testamentary capacity of the testator. The present case is a little different, the second will being a formal document prepared by a solicitor who took some trouble to satisfy herself about testamentary capacity. Nevertheless, I accept that the case is authority for the proposition that there is no onus on the executor to prove a lack of testamentary capacity or to prove invalidity of the second will.

1. It might, in those circumstances, be enough for me simply to note that none of those who might have been expected to come to the court to propound the second will have chosen to do so, and that in those circumstances I am at liberty to ignore it. That seems to me an unsatisfactory way to deal with the issue in the present case and I prefer to deal with it by saying that there is uncontradicted evidence which I accept from which it can be found that at the time of execution of the second will the deceased lacked testamentary capacity by reference to the test in Banks v Goodfellow.

1. Without going so far as to say that I am satisfied on the balance of probabilities that the deceased lacked testamentary capacity, I can say that at least, if it were necessary, there would be a prima facie case leading to that conclusion. In those circumstances I am not satisfied that the second will was valid nor that at the time of its execution the deceased had the requisite testamentary capacity for it to be a valid will.

1. I therefore find that the earlier will is valid and is the last will and testament of the deceased. I order that probate be granted of the will of the deceased of 17 March 1989. The costs of the application are to be paid out of the estate.

   I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

   Associate:

   Date: 27 September 2006

Counsel for the applicant:  Mr R Arthur & Ms C Besemeres
Solicitors for the applicant:  Bradley Allen
Date of hearing:  21 September 2006
Date of judgment:  21 September 2006