In The Will of
[2012] QSC 20
•16 February 2012
SUPREME COURT OF QUEENSLAND
CITATION:
In The Will of Edward Victor Macfarlane Deceased [2012] QSC 20
PARTIES:
In The Will of Edward Victor Macfarlane Deceased
(Applicant)
FILE NO/S:
S602/2010
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court Rockhampton
DELIVERED ON:
16 February 2012
DELIVERED AT:
Rockhampton
HEARING DATE:
30 January 2012
JUDGE:
McMeekin J
ORDER:
- Declare that the grant of probate dated 26 November 2010 of the will dated 11 May 2000 is valid
- Order that the executors’ costs be met out of the estate on the indemnity basis.
CATCHWORDS:
SUCCESSION – WILLS PROBATE AND
ADMINISTRATION – Probate and letters of administration
– Lack of Testamentary Capacity - whether testator of soundmind during creation of second will
Succession Act 1981 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
In re Muirhead [1971] P 263
Middlebrook v Middlebrook (1962) 36 ALJR 216
Re Estate Griffith (Deceased); Easter v Griffith & Ors (1995)
217 ALR 284COUNSEL:
Mr N Peacey (Solicitor) for the executors
SOLICITORS:
John Crossan and Company Solicitors for the executors
The Registrar in person
McMeekin J: This application concerns the testamentary capacity of the deceased testator. The matter has been referred to the court by the Registrar pursuant to r 601(2) Uniform Civil Procedure Rules 1999.
The testator, Edward Macfarlane, died on 1 May 2010 aged 96 years. His executors have been granted probate of his will dated 11 May 2000. There is however a later will dated 16 April 2008.
The executors initially sought to administer the estate in accordance with the later will. However, upon receipt of the Death Certificate it was noted that “multi infarct dementia” was listed as a cause of death and the duration of the illness dated back to 2002. It is the registrar’s practise to requisition the will in these circumstances. The testator’s solicitor, Mr Peacey, advised the executors of the imminent problems in obtaining probate of this will. The executors subsequently sought, and were granted, probate of the earlier will dated 11 May 2000 without, however, disclosing to the Court the existence of the later will. I should stress that there is no suggestion of any impropriety by those involved. However probate of the earlier will in common form should not have been sought in these circumstances. It is for the Court to determine matters of testamentary capacity.
Here the matter is complicated by the circumstance that the same executors are appointed under the two wills, and the two wills make the same disposition, save that the later will makes no reference to certain realty which had in the meantime been sold. The executors, who are themselves beneficiaries, and the sole non executor beneficiary, have no interest in propounding one will over the other.
If the executors thought it appropriate they could have sought to prove the earlier will in solemn form. Alternatively they should have propounded the later will and sought to meet the registrar’s concerns. The issue now is what should be done, probate having been granted in respect of the earlier will, steps having been taken under that grant, and no person being adversely affected thereby. I am mindful of the comments of Cairns J in In re Muirhead:
“I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator expressed in testamentary documents. Sometimes it is impossible to discover the true intention of the testator, because there may be doubts about his testamentary capacity, or about whether he knew and understood the contents of some document propounded, or there may be doubts about the formalities of execution. In such cases a compromise is often reached, and given effect to by the court. Where certainty cannot be achieved, it is often better that a will which is prima facie valid should be admitted to probate than that there should be a prolonged investigation into allegations of incapacity or undue influence; and it is sometimes better that a will or codicil should be pronounced against, where there are good reasons for suspecting its validity, although by full inquiry it might be possible to remove those suspicions.”[1]
[1] [1971] P 263 at 265E-G
I have studied the affidavit material. I am not at all sure that it is shown that the testator lacked the necessary capacity in 2008 albeit he had long standing dementia by then. However this is one of those cases Cairns J spoke of where there is no point to any prolonged investigation. That I have the power to take this course is, I think, evident from the terms of subsection 6(1) Succession Act 1981 (Qld):
“(1) Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.”
I propose to pronounce for the earlier will even though I entertain the view that closer examination might remove the suspicions about capacity. I think it “necessary or convenient” to do so. I take this course as no one is adversely affected thereby, the wishes of the testator being effectively the same in each will, steps have already been taken to administer the estate under the will propounded, and the parties would otherwise be put to unnecessary expense.
I will briefly mention the relevant principles and evidence.
The Legal Principles
Where there is doubt as to the testamentary capacity of the testator, as there is in this case, the plaintiff bears the onus of proving that the testator had the necessary capacity at the relevant point in time.[2] Probate will not be granted where there is significant doubt as to the testator’s soundness of “mind, memory and understanding” at the point in time the will was executed.[3] Gleeson CJ in Re Estate of Griffith (Deceased); Easter v Griffith & Ors noted that “[t]he power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.”[4]
[2] Re Estate of Griffith (Deceased); Easter v Griffith & Ors (1995) 217 ALR 284 at 289
[3] Ibid
[4] Ibid at 290
Furthermore Gleeson CJ held:
“The traditionally accepted formula for determining testamentary capacity is that stated by Sir Alexander Cockburn CJ in Banks v Goodfellow[5]:
‘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.’”[6]
[5] (1870) LR 5 QB 549 at 565
[6] Re Estate of Griffith (Deceased); Easter v Griffith & Ors (1995) 217 ALR 284 at 290
Consideration
There is no question that the testator had the necessary mental capacity to execute a will in May 2000. The question is whether he had the necessary capacity in April 2008.
The testator was aged 94 years at the date of signing his last will dated 16 April 2008. This of itself does not establish that the testator lacked testamentary capacity.[7] The Court in Banks v Goodfellow held that “mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.”[8]
[7] Bailey v Bailey (1924) 34 CLR 558 at 560
[8] (1870) LR 5 QB 549
That the testator had dementia as early as 2002 is clear from the report of his general practitioner, Dr Calais, a report based in part on the records of his predecessor Dr Lock.[9] Dr Calais advises that in October 2001 a CT Brain scan revealed multinfarct changes and age related atrophic changes. It was recorded that the testator needed support and supervision due to his confusion. However, the testator’s mini mental score was 29 out of 30. It was noted in February 2002 that the testator was having difficulties living on his own and was becoming more confused, experiencing delusions of people staying in his unit. It is also noted that the testator had been a heavier drinker for many years.
[9] Ex C to the affidavit of Neil Hickson Peacey
In February 2003 the testator was reported as being a difficult historian when trying to ascertain his history. In June 2007 Blue Care nurses on home visits recorded that the testator had difficulty remembering to take his medications and as a result nurses would attend to him morning and evening to administer his medication. In January 2008 it was noted that he had a transient ischemic attack which resulted in an episode of slurred speech and increased confusion according to his niece. In April 2008 the testator executed his last will. Eight months later, in December 2008, he was recorded as having increasing paranoia and delusional ideation. In March 2009, almost one year after the execution of the last will, a geriatrician review confirmed the testator was suffering from mixed Alzheimer’s and Ethanol related Dementia.
Dr Calais’ report concluded that the testator had a progressive cognitive decline since 2002 but observed that no formal assessment of the testator’s testamentary capacity had been completed. Thus, despite the concerns that his material obviously raises, Dr Calais was not prepared to express any opinion.
The solicitors acting for the executors sought a report from a Dr Easton, a general practitioner, as to his opinion of the testator’s capacity. It is not clear what level of involvement Dr Easton had with the testator. In a very brief report dated 8 June 2011[10] Dr Easton indicated that in May 2008, when the doctor last saw the testator, he would have had the testamentary capacity to execute a will. But in a subsequent report dated 18 September 2011[11] Dr Easton said that on reflection the testator did not have the mental capacity and thus his judgment at the time would have been questionable. That latter opinion seems to have been prompted by the receipt of Dr Calais’ report.
[10] Ex D to the affidavit of Neil Hickson Peacey
[11] Ex E to the affidavit of Neil Hickson Peacey
While very little weight can be given to Dr Easton’s reports, given the lack of any explanation for his change of heart, Dr Calais’ report does raise a significant concern about capacity. That being so and the executors not wishing to seek to discharge the onus on them of propounding for the later will, and there being no point to them doing so, I propose to not set aside the grant of probate already made. I merely record that the affidavits of the executors and the solicitor go some way to dispelling the concerns raised by Dr Calais.
Order
I declare that the grant of probate dated 26 November 2010 of the will dated 11 May 2000 is a valid instrument.
The executors should have their costs out of the estate.
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