In the Will of
[2001] QSC 447
•30 November 2001
SUPREME COURT OF QUEENSLAND
[2001] QSC 447
File No S2558 of 2001
IN THE WILL of JOHN PILL, DECEASED
MOYNIHAN J – ORDER
DELIVERED ON: | 30 November 2001 |
HEARING DATE: | 27 November 2001 |
ORDER: | 1. The will of John Pill (deceased) dated 15 May 1996 is declared null and void. 2. The Public Trustee of Queensland administer the estate of John Pill (deceased) on intestacy. 3. All parties costs of these proceedings be paid out of the estate of the deceased assessed on an indemnity basis. |
CATCHWORDS: | SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – Where deceased suffered dementia and Alzheimer’s disease – whether deceased executed the will during a lucid period – whether the deceased had testamentary capacity. |
COUNSEL: | R T Whiteford for the applicant. P M Robinson for the beneficiaries. |
SOLICITORS: | The Official Solicitor to the Public Trustee for the applicant. Baker Johnson Lawyers for the beneficiaries. |
On 20 March 2001, the Public Trustee applied to administer the estate of John Pill deceased (the deceased). On 1 October 2001, White J ordered that the application be treated as an application to prove, in solemn form, the will dated 15 May 1996.
The deceased was born on 30 December 1901 in Estonia. He left in 1918 and worked as a merchant seaman, coming to Australia in the 1920’s. He did not marry, he has no issue. His only living next of kin is a paternal cousin living in Estonia who was served but did not participate in the proceedings.
The deceased eventually came to live on the Gold Coast and became friendly with the Ranneskogs who he ultimately made the sole beneficiaries of his will. The Ranneskogs gave the deceased emotional and physical support and through them he came to know a Mr Robert Howard. The deceased and Mr Ranneskog would regularly meet at Howard’s shop for coffee. Mr Howard and his mother witnessed the will.
On 19 January 1995, the deceased fell and was admitted to the Gold Coast Hospital. While he was in hospital he was diagnosed as suffering from dementia. On 10 February 1995, a social worker at the hospital applied to the Intellectually Disabled Citizens Council for an order for the provision of special assistance (financial management) to the deceased because of his dementia. This was supported by an opinion from a visiting Medical Officer, that the deceased was unable to manage his affairs due to a moderate degree of dementia, and by material about his behaviour supplied by the social worker, Ms Peil.
On 5 April 1995, the Public Trustee was notified by the Intellectually Disabled Citizens Council to manage the deceased’s estate and it did so up to the date of his death. On 21 April 1995, the deceased was admitted to a nursing home where he remained until his death.
It seemed that the deceased told the Ranneskogs, probably on a number of occasions, that he wished to make a will leaving his estate, valued at approximately $180,000, to them.
The Ranneskogs made arrangements for a friend to type a will in accordance with the deceased’s instruction. This appointed the Public Trustee as executor and left the estate to them. It seems that Mrs Ranneskog kept the will with her for some time until it appeared that the deceased’s “mind was sound enough to discuss the will”. In other words this is a “lucid interval” case.
On 15 May 1996, Mrs Ranneskog phoned Mr Howard. She said that the deceased was able to sign the will. He and his mother came to the nursing home to witness it.
The deceased appeared to read the will and respond to Mr Howard’s questions. The Ranneskogs took no part, apart from Mrs Ranneskog saying he did not have to sign it if he didn’t want to. On Mr Howard’s recollection he asked some unspecified question which Mr Howard answered. When asked whether he understood what the will meant, the deceased apparently concurred and he grunted in answer to a question as to whether he understood that everything was left to the Ranneskogs. It may be accepted that the Ranneskogs and the Howards believed that the testator was having a “lucid interval”.
The weight of the medical evidence is however that the deceased was suffering from Alzheimer’s disease, it was progressive and that it is extremely unlikely that he had the required testamentary capacity to understand the nature, meaning and effect of his will, the nature and extent of his assets and the persons to whom he should have had regard making his will. It is unlikely that he had a lucid interval.
The record of the Gold Coast Hospital and of the nursing home are in evidence. In February 1995, the deceased’s condition justified the Public Trustee becoming responsible for the management of his affairs. The medical opinion founded on the history is that the severe form of mental deterioration which affected the testator was inconsistent with the retention of any of the cognitive capacity necessary to make a will on 15 May 1996.
The medical evidence also supports the view that concurrence by persons in the deceased’s condition cannot be relied on and that it was necessary to invite them to explain their understanding of the transaction and the considerations relevant to determining whether or not they had a testamentary capacity in their own words in order to found a sound opinion. That did not occur.
Once the medical evidence was to hand the Ranneskogs withdrew from the proceedings save with respect to the issue of costs. It should be mentioned that the dispositions in the will are in accordance with the deceased’s reasonable testamentary wishes. I am however satisfied that he lacked the capacity to form a testamentary intent.
The Public Trustee properly accepted that it was appropriate to order the Ranneskogs costs be paid out of the deceased’s estate assessed on an indemnity basis.
The orders therefore be as follow:-
1. The court pronounces against the validity of the will of John Pill (deceased) dated 15 May 1996, exhibit A to the affidavit of A J Edwards filed on 20 March 2001 and declares the will to be null and void.
2. The Public Trustee of Queensland is granted an order to administer the estate of John Pill (deceased) on intestacy.
3. All parties costs of these proceedings be paid out of the estate of the deceased assessed on an indemnity basis.
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