In the Matter of the Estate of Jocelyn Heather Jones (Deceased)
[2014] ACTSC 200
•20 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Matter of the Estate of Jocelyn Heather Jones (Deceased) And in the Matter of the Public Trustee of the Australian Capital Territory | |
Citation: | [2014] ACTSC 200 | |
Hearing Date(s): | 11 August 2014 | |
DecisionDate: | 20 August 2014 | |
Before: | Refshauge J | |
Decision: | The Court declares that: 1. At the time of the execution of the purported wills dated 9 May 2002 and 6 August 2002, the deceased, Jocelyn Heather Jones, lacked testamentary capacity and the two wills are of no effect. 2. The deceased, Jocelyn Heather Jones, had the testamentary capacity to make the will dated 7 October 1980 which is fit to be admitted to probate. | |
Category: | Principal Judgment | |
Catchwords: | SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Whether testator had capacity to make will – Testator suffering psychiatric condition affecting her capacity – Testator not of sound mind to make will SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Will not in force until death of testator – Will comes into force upon death of testator | |
Legislation Cited: | Administration and Probate Ordinance 1929 (ACT), s 97A, Pt 6, Div 3.1 Court Procedures Rules 2006 (ACT), rr 3005, 3006, 3091 | |
Cases Cited: | Banks v Goodfellow (1870) 5 QB 549 | |
Parties: | The Public Trustee (Applicant) | |
Representation: | Counsel Mr W Andrews (Applicant) No appearance (Respondent) | |
| Solicitors Snedden Hall & Gallop (Applicant) No appearance (Respondent) | ||
File Number: | SC 258 of 2014 | |
REFSHAUGE J:
On 3 November 2013, Jocelyn Heather Jones died. She left three documents purporting to be wills to the knowledge of the applicant, the Public Trustee of the Australian Capital Territory (the Public Trustee).
The first purported will made was dated 7 October 1980 (the first will) and appointed the Curator of Deceased Estates for the Australian Capital Territory (the Curator) as executor. The Curator was an office established by the Administration and Probate Ordinance 1929 (ACT), as it then was, as a public official who was given power under s 88 to collect and administer the estate of certain deceased persons where, inter alia, by the will of the deceased person, the Curator was so appointed.
That position was abolished by the Public Trustee (Miscellaneous Amendments) Act 1985 (ACT) and, under the Public Trustee Act 1985 (ACT) the Public Trustee essentially took over the functions of the Curator.
I shall deal further with that issue later in these reasons.
Two further purported wills were, however, made by Ms Jones, both prepared by officers in the Office of the Public Trustee, one dated 9 May 2002 and one dated 6 August 2002.
On 10 June 2014, the Public Trustee certified under s 74(2) of the Public Trustee Act that he was “the Executor/Administrator” of the estate of Ms Jones. It is not clear to me the basis on which the Public Trustee has assumed that role, but the section provides that the certificate is evidence of the fact that he is so acting.
A question has arisen about the mental capacity of Ms Jones to make the two further purported wills. The Public Trustee has now made application for orders as to the validity of those wills.
Jurisdiction
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 application now made by the Public Trustee, apparently under s 97A of the Administration and Probate Act, seeks the following orders:
1.At the time of the execution of the purported Wills dated 9 May 2002 and 6 August 2002, the deceased, Jocelyn Heather Jones, lacked testamentary capacity and the Wills are of no effect.
2.The Will of the deceased dated 7 October 1980 is the last Will and Testament of the deceased.
3.Any other orders that the Court considers appropriate.
That section authorises the Public Trustee to take the opinion or obtain the direction of this Court as to any question, whether of law or fact, arising under Part 6 of the Act or in the course of his duties. Given the role that the Public Trustee has taken, as evidence by the certificate referred to above (at [6]), it seems to me that the application is within power.
The section permits the Public Trustee to make the application ex parte. In the circumstances, however, it was clearly appropriate for persons named in the two purported wills sought to be challenged and the persons named in the first will should be notified of the application. This was done. Two of the four persons to whom notice was given made contact with the Public Trustee, one of whom advised that she would not attend the hearing. When the matter was called, no person appeared other than the Public Trustee.
One person mentioned in the two purported wills sought to be challenged was not contacted for reasons that will become clear below (at [24]-[25]). One other person named in the first will was unable to be contacted as her address was not ascertainable.
The law
The challenge to the two later purported wills is, it is asserted by the Public Trustee, that at the time Ms Jones made those instruments she was not of mental capacity to make them.
It has been, for a very long time, the case that a valid will can only be made by a person of sound mind, as stated in Marquess of Winchester’s Case (1598) 6 Co Rep 23a; 77 ER 287.
The classic description of what that requires has been set out in a passage of Cockburn CJ in Banks v Goodfellow (1870) 5 QB 549 at 565 and which is often cited. There, 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 delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind has been sound, would not have been made.
In In Will of Wilson (1897) 23 VLR 197, Hood J explained the meaning of this concept in terms which have found favour in the High Court (Timbury v Coffee (1941) 66 CLR 277 at 283) and the New Zealand Court of Appeal (Re White [1951] NZLR 393 at 409; Public Trustee v Bick [1973] NZLR 301 at 303) as well as in most Australian Supreme Courts.
His Honour said (at 199)
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 realise 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.
Soundness of mind in a testator is presumed unless the contrary is proved, as Powell J noted in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706. Once, however, an insane delusion is established, the onus is on those supporting the will to show that the delusion did not influence the will: Worth v Clasohm (1952) 86 CLR 439 at 453.
Where the testator is delusional, the delusions must, on the tests as so propounded, be such as to affect the provisions in the will which dispose of the testator’s property. If those provisions are affected by the delusions, then the whole will is invalid. See Bull v Fulton (1942) 66 CLR 295 at 299, 342. The effect of the delusions, though only directed to some provisions of the will, is to invalidate the whole will: Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267.
The facts
A then well-known private law firm, Macphillamy Cummins & Gibson, prepared the first will made on 7 October 1980. The Public Trustee made the other two, later purported wills.
It was the dispositive clause in these two later purported wills which gave rise to the concern of the Public Trustee when he came to prepare to administer the estate. The provisions were in similar terms, though there were some minor differences in wording which is not relevant for present purposes. The relevant clause in the purported will of 9 May 2002 was as follows:
4. I GIVE my residuary estate to my Trustee UPON TRUST to pay from the income thereof with power to resort to capital if considered necessary in the sole opinion of my Trustee all fees and charges to provide for the care of my husband MICHAEL ALEXANDER JONES also known as FATHER JOHN MCLEAN and also for clothing and medical fees comforts and necessities and other such matters as my Trustee in sole and absolute discretion shall deem advisable for the welfare and happiness of my husband MICHAEL ALEXANDER JONES also known as FATHER JOHN MCLEAN during his lifetime AND FROM AND AFTER the death of my husband MICHAEL ALEXANDER JONES also known as FATHER JOHN MCLEAN UPON TRUST for CARITAS AUSTRALIA for the purpose of the care of the aged and the disabled and I DIRECT the receipt of the secretary treasurer or other proper office of CARITAS AUSTRALIA shall be a full and sufficient discharge to my Trustee.
In an affidavit in support of the application, Susan Joy La Peyre, Deputy Public Trustee, deposed that extensive inquiries had been made about “Michael Alexander Jones also known as Father John McLean” and she had come to the view that he was not a real person but a creation of Ms Jones’ delusions caused by schizophrenia from which she had suffered.
The inquiries included:
(a)Searches in all States and Territories of Australia for a record of a marriage between Ms Jones and Mr Jones without finding any such record.
(b)Discussions with Ms Jones’ brother and her carer, who had worked with her for years, both of whom expressed the belief that Mr Jones was the product of her delusion and he was a fictional character.
(c)Consideration of a postcard sent to the Office of the Public Trustee on or about 15 November 2005 and which showed a well-known film and television actor, Matthew Macfadyen, whom Ms Jones described on the postcard as her husband.
Ms Jones was, from November 2005 until her death, subject to a Management Order made by the ACT Guardianship and Management of Property Tribunal under which the Public Trustee had been appointed as her financial manager and the Public Advocate of the ACT as her guardian.
The Public Trustee also received a medical report dated 1 May 2014 from Dr Mandy Evans, Clinical Director of ACT Mental Health Services, a copy of which was before the Court.
Dr Evans stated that she had not been concerned with the clinical care of Ms Jones but inspected the Services’ records and drew her conclusions from them.
The records showed that
Ms Jones was suffering from a psychotic disorder of at least several years standing at the time she made her Will in 2002. Although first referred to the Service in 1999, the history obtained from her family, neighbours, general practitioner and community health workers suggested Ms Jones had experienced many years of fluctuating illness prior to this. Ms Jones had numerous lengthy periods of contact with various components of the Mental Health Service from 1999, including the year of interest, 2002. Throughout this time Ms Jones was assessed as being psychotic and was noted to be acting upon her psychotic experiences. Ms Jones frequently contacted Police to report burglaries that had not occurred. Mr Jones also repeatedly refused treatment that might have had an impact upon the distressing symptoms up to and including 2002.
Documented delusions included:
·On 16 June 2003, she told two mental health clinicians that she was “married to a spy ... a Vietnam Veteran”.
·A cousin of Ms Jones, a medical practitioner, reported that she had been sending him letters for a year referring to a “secret affair with a veteran”.
There was, as noted above (at [25]), no evidence that she was ever married and no family member has suggested otherwise.
Dr Evans stated that
At the time of making her will in 2002 Ms Jones was diagnosed with a psychotic disorder (schizophrenia) for which she was would accept no treatment.
Her opinion was that
Ms Jones’ psychiatric illness directly influenced both her decision making regarding who should rightly inherit her property and her actions in making a Will in accordance with this delusional belief.
Conclusion on capacity
I accept the evidence of Ms La Peyre and of Dr Evans. Accordingly, I am satisfied that at the time at which she made the purported wills dated 9 May 2002 and 6 August 2002, Ms Jones lacked the testamentary capacity to make a valid will.
The first will
There is no evidence that Ms Jones was suffering from any mental illness as at 7 October 1980. The presumption to which I have referred above, supported by the evidence of Dr Evans about the onset of the mental illness suffered by Ms Jones, points strongly to her having testamentary capacity at the time she made that will.
I have, however, not been asked to grant probate of the first will. While it appears that an executor has what has been described as an “absolute right” to proof in solemn form (see In the Will of Harrison (1905) 11 ALR (CN) 25d; In Re Levy (deceased) [1953] VLR 652 at 657) this is not what has in this case been sought.
While the precise procedure for an application for a grant of probate in solemn form has in the past been unclear (Re Collins (deceased) [1969] VR 499 at 500), I am not sure that it is, in this jurisdiction, any clearer.
A useful description of the nature of an action for the grant of probate of a will in solemn form is set out in Re Young; Hobbs v Christchurch City [1968] NZLR 1178 at 1178-9. Briefly, this requires an Originating Claim to be issued with a Statement of Claim with the executors of the challenged will or wills as defendants or, where appropriate, the beneficiaries such as here where the same person is executor under not only the propounded will but a challenged will. Evidence is given orally and each witness may be cross-examined. These proceedings are not in that form. Nor does the relief sought make the case for such an order.
Ordinarily, however, a grant of probate in solemn form becomes necessary when contentious issues arise which need to be resolved. It may be suggested that this has occurred here. Indeed, to a large extent, the Public Trustee has followed the procedure set out in r 3091 of the Court Procedures Rules 2006 (ACT).
Nevertheless, the grant of probate of a will in solemn form requires the party propounding a will to commence an action in which the persons who may be prejudiced are made parties. See Re Millen (deceased) [1975] 2 NZLR 605 at 606-7. While that is not possible so far as concerns the fictional Mr Jones, who would, were he a real person, be so prejudiced, the organisation, Caritas Australia, is an existing entity and would also be prejudiced. It was not made a party.
Further, it is usual in such actions for the plaintiff to call witnesses to prove capacity and the fact of execution: McDonald v Valentine [1920] NZLR 270 at 272. The witnesses are usually subject to cross-examination, though, as Mitchell J pointed out in Estate of Roediger [1967] SASR 118 at 120, this is not necessary if no counsel seeks to do so.
The purpose of an action for a grant of probate in solemn form is to obtain a judgment of the court which is binding on all parties. See Re Young; Hobbs v Christchurch City at 1178. In this case, there is unlikely to be any person who would challenge a grant of probate in common form, even though such a grant is revocable. Given these proceedings and the notice to all parties, there would be difficulties to be faced and, likely, a risk of costs, were such a challenge to be mounted.
The provisions relating to grants in rr 3005 and 3006 of the Court Procedures Rules have, however, not been satisfied and, in my view, would prevent the making of a grant by me at this time on the material before me. Accordingly, I should leave the Public Trustee to seek a grant of probate in common form and will do so.
In the circumstances, however, I am prepared to assist that process by finding that at the date on which Ms Jones executed the first will, she was of testamentary capacity. The evidence before me, supported by the presumption of law and the absence of any objection is sufficient for me to make this finding.
I can also find that the first will is a testamentary document fit to be admitted to probate. I will make both findings.
The executor
As noted above (at [3]), the office of Curator was abolished in 1985 by the Public Trustee (Miscellaneous Amendments) Act (the Act). Transitional provisions in Part IV of that Act, however, did not provide for the situation where a will named the Curator but the will had not at the date of that Act’s commencement come into effect.
A will does not come into force until the testator dies. As Lord Davey said in Beddington v Baumann [1903] AC 13 at 19
The will was an ambulatory document having no force or effect whatever until the death of the gentleman who made the will ...
The only provision that made reference in the Act to the substitution of the Public Trustee for the Curator in instruments (which term includes a will) was in s 22(2) which made a reference to the Curator to be a reference to the Public Trustee “in an order or other instrument ... in force immediately before the commencement date [of the Act]”. This, of course, could not refer to a will where, as here, the testator had not then died. A will is not “in force” until the death of the testator.
I am grateful for the assiduous researches of Mr W Andrews, who appeared for the Public Trustee. He pointed to later legislation which amended the transitional provisions of the Act one would suspect to rectify what was a clear lacuna.
Thus, s 2 of the Public Trustee (Miscellaneous Amendments) (Amendment) Act 1989 (ACT) provided for an additional sub-section to s 22 of the Act as follows:
(3) A reference to the Curator in a will made before the commencement of this Act by a testator who dies after that commencement, being a will that has not been revoked, has effect, or shall be taken to have had effect, on and after the death of the testator as if that reference to the Curator were a reference to the Public Trustee.
(4) In subsection (3), ‘will’ includes a codicil.
The Explanatory Memorandum for the Bill that became this Act makes it clear that the amendment was intended to address the specific issue; it was said to be enacted
to remove any doubts that may exist as to the power of the Court to grant probate to the Public Trustee of the ACT of a will naming the Curator of Deceased Persons as executor.
That resolves the issue.
Conclusion
I will make a declaration in the terms of order 1 in the Originating Application and a declaration in accordance with what I have indicated above (at [44] and [45]).
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 20 August 2014 |
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