Jageurs v Downing
[2015] VSC 432
•21 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROBATE LIST
S PRB 2014 17341
BETWEEN
| MICHAEL DAVID JAGEURS (who is sued as executor and trustee of the estate of DANIEL JOSEPH JAGEURS, deceased) | Plaintiff |
| - and - | |
| PATRICIA MARGARET DOWNING | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20-21 July 2015 |
DATE OF JUDGMENT: | 21 August 2015 |
CASE MAY BE CITED AS: | Jageurs v Downing |
MEDIUM NEUTRAL CITATION: | [2015] VSC 432 |
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SUCCESSION, WILLS AND PROBATE — Informal codicil — Whether deceased intended informal document to be a codicil to his will — Whether informal document rational on its face — Whether deceased knew and approved of informal codicil — Whether deceased had testamentary capacity — Whether informal document was the product of influence over the deceased — Wills Act 1997, s 9 — Fast v Rockman[2013] VSC 18 — Hatsatouris v Hatsatouris[2001] NSWCA 408 — Re Springfield (1991) 23 NSWLR 535
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M McKenzie | A. B. Natoli Pty Ltd |
| For the Caveator | Mr S Newton | Suzanne Jones Lawyers |
HER HONOUR:
Introduction
Joseph Jageurs (‘the deceased’ or ‘father’) died on 16 September 2010, aged 93 years. He was survived by his four adult children, Michael Joseph David Jageurs (‘Michael’ or ‘plaintiff’), Patricia Margaret Downing (‘Patricia’ or ‘defendant’), John Richard Jageurs (‘John’) and Annette Mary Hope (‘Annette’).
At the date of his death, the deceased was the registered proprietor as tenant in common in equal shares of two pieces of land in Kireep Road, Balwyn as follows:
(a) the property known as 31 Kireep Road Balwyn (‘the 31 Kireep Road property’ or ‘property’) with Michael; and
(b) the property known as 33 Kireep Road Balwyn (‘the 33 Kireep Road property’) with Patricia.
The two properties adjoin each other, having a common boundary of 250 feet. John and Michael own a property known as 32 and 32A Yarrbat Avenue Balwyn (‘the Yarrbat Avenue property’). John owns one fifth of this property with the remaining four fifths owned by a company, Caduser Pty Ltd, the shareholding of which is owned equally by John and Michael. The Yarrbat Avenue property has a common boundary with the rear boundaries of the 31 Kireep Road property and the 33 Kireep Road property.
The deceased left a will dated 5 April 2007 (‘the 2007 will’) which relevantly provided that if his wife, Mrs Jageurs (‘Mrs Jageurs’ or ‘mother’), failed to survive him:
(a) his interest in the 31 Kireep Road property passed to Michael; and
(b) his interest in the 33 Kireep Road property passed to Patricia.
The deceased’s wife (‘Mrs Jageurs’ or ‘mother’) predeceased him, having died on 26 January 2008. At the date of her death, Mrs Jageurs and the deceased were tenants in common in equal shares of the 33 Kireep Road property. Under her will, Mrs Jageurs left her share of the 33 Kireep Road property to Patricia, subject to the deceased having the right to reside in the property until his death.[1] In her will, Mrs Jageurs stated that she left her share of the 33 Kireep Road property to Patricia because Patricia was the primary carer for both her parents. Prior to Patricia moving into the property, it was rented for many years, with Mrs Jageurs receiving the rent. In 1997, when her parents were elderly and her mother became ill, Patricia moved to the 31 Kireep Road property in order to be their primary carer. After her mother’s death, Patricia continued to live at the 31 Kireep Road property and care for her father. Patricia was not required to pay rent while she lived there.
[1]This property was the family home of the deceased and Mrs Jageurs for many years.
The plaintiff’s application
By application filed 13 November 2014, the plaintiff seeks a grant of probate of the 2007 will and an informal document, pursuant to s 9 of the Wills Act 1997 (‘the Act’).
The plaintiff contends that the deceased left an informal document dated 20 May 2010 (‘the informal codicil’) intended by the deceased to be a codicil to the 2007 will. The informal codicil was written by the deceased on a page from a notepad headed “Things to do Today”. The deceased signed the document and his signature was witnessed by Hendrik Ari Beninga (‘Mr Beninga’), an employee salesman at Michael’s carpet business. The deceased’s handwriting in the informal codicil is almost illegible, making the meaning difficult to discern, but it appears to read:
I want John R Jageurs, wish Joseph J.D.R. - 100 ft length JJ plus the wid widert = B Back port from 33 Keepe Balwyn To be.
Without explanation, these words do not make sense. The plaintiff says the informal codicil gives 100 feet at the rear of the 33 Kireep Road property to John. The application was supported by affidavits sworn by Michael, Mr Beninga and the deceased’s solicitor, Mr Watkins. They gave oral evidence at trial, as did John. Unusually, John did not swear an affidavit, despite his evidence being relevant and despite the fact that at the directions hearing on 13 March 2015, counsel sought leave to appear on his behalf.
As the caveator, Patricia opposed the plaintiff’s application in respect of the informal codicil, relying on an affidavit sworn by her and her oral evidence.
For the reasons that follow, I have determined that the plaintiff’s application for a grant of the informal codicil be refused.
Applicable Principles
Section 9 of the Act allows the Court to admit to probate a will that has not been executed in conformity with s 7 of the Act. Ordinarily, for there to be a valid will, it must be signed by the testator in the presence of two witnesses.
However, s 9 of the Act allows a will that fails to satisfy the requisite formalities to be admitted to probate as long as certain conditions are met:
9When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
…
(3)In making a decision under subsection (1) or (2) the Court may have regard to—
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
Section 9 of the Act is a remedial provision, enabling the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. Ordinary principles of statutory construction dictate that it should be given a broad construction. However, as observed in Estate of Peter Brock, its remedial nature must be tempered by an acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[2]
[2][2007] VSC 415 (24 October 2007) [19]–[20], [23].
In order to admit an informal will to probate under s 9 of the Act, the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:
(a) there must be a ‘document’;
(b) the document must express or record the testamentary intentions of the deceased; and
(c) that document must have been intended by the deceased to be his or her will.[3]
[3]Fast v Rockman [2013] VSC 18 (7 February 2013) [45] (Habersberger J); Rowe v Storer [2013] VSC 385 (2 August 2013) [54] (McMillan J). See also, Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, with whom Priestley and Stein JJA agreed); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]–[53] (Newnes AJA, with whom Martin CJ and McLure JA agreed); Re Trethewey [2002] VSC 83; (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin[2004] VSC 203 (26 May 2004) [15] (Whelan J); Prucha v Standing [2011] VSC 90 (22 March 2011) [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277 (24 June 2011) [42] (J Forrest J).
In this case, it is clear there is a document, being the page headed ‘Things to do Today’ from Mr Beninga’s work notepad. Although the wording in the document is difficult to discern, I consider that the wording expresses the deceased’s testamentary intentions in respect of 100 feet at the rear of the 33 Kireep Road property.
The remaining question is whether the deceased intended the informal document to be a codicil to his 2007 will. In considering that question, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the document should have effect as his will. If the Court can be satisfied of this, it is clear that the person must also have intended the document to be a legally operative act that disposes of the person’s property on his or her death.[4]
[4]Fast v Rockman [2013] VSC 18 (7 February 2013) [59], [73], [75], [86], [92], [96], [105]–[110], [114] (Habersberger J)
What is required to satisfy the third element was considered by Powell J in Re Springfield:[5]
... the ultimate inquiry remains, whether the document itself, the circumstances regarding its contents ... and other relevant circumstances ... lead to the conclusion that the relevant deceased intended the subject document to constitute his will…
... while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
Where, the subject document was not seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased, was, in truth, no more than ‘instructions’, or a note of ‘instructions’, for a will ... I would, I believe, find it very difficult, indeed, to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.[6]
[5](1991) 23 NSWLR 535 (discussing the equivalent NSW provisions).
[6]Ibid 539-540.
The Court may receive direct evidence of statements made by a testator and what the testator said and did and may also receive evidence surrounding the making of the ‘will’.[7] In Application of Becroft, Harper J held that statements of a testator are admissible as evidence of his or her intentions:
In determining whether the deceased intended the document to have testamentary effect, the court is not restricted to the document itself but may have regard, in addition, to evidence of what the deceased did and said. Evidence of subsequent statements by the deceased is admissible for the purposes of establishing testamentary intention.[8]
[7]Re Springfield (1991) 23 NSWLR 535, 539.
[8][2009] VSC 481 ( 15 October 2009) [10] (Harper J).
The intention of the deceased is a matter of fact and each case depends on its own facts and circumstances. An application under s 9 of the Act is assessed by reference to the requisite document, with the inquiry directed at whether the deceased intended the document to have effect as a testamentary document. In Hatsatouris v Hatsatouris[9] the Court observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, ‘either at the time of the subject document being brought into being, or at some later time’.[10] A will that has not been validly executed but satisfies the requirements of s 9 of the Act could still in theory be refused probate where the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will. If the deceased lacked the capacity to make a will, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased did not know and approve of the document, then the Court could not be satisfied that the deceased intended the document to be his or her will. If the deceased was unduly influenced in the sense recognised by the Courts of Probate, such that his or her will were overborne, then the Court could not be satisfied that the deceased intended the document to be his or her will. [11]
[9][2001] NSWCA 408 (30 November 2001) (Priestly, Powell and Stein JJA).
[10]Ibid [56]. See also National Australia Trustees Limited v Fazey; Estate of Nancy Elaine Lees [2011] NSWSC 559 (10 June 2011) [17] (Windeyer AJ).
[11]Re Stuckey [2014] VSC 221 (23 May 2014) [40]–[41] (McMillan J).
For these reasons, issues related to the capacity of the deceased, the knowledge and approval of the deceased and undue influence of the deceased, are relevant factors in considering whether an informal document satisfies s 9 of the Act.
The application of s 9 of the Act and the standard of proof required was set out by Habersberger J in Fast v Rockman:
The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities. Furthermore, because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[12]
[12][2013] VSC 18 (7 February 2013) [48] (citations omitted).
When an informal will or codicil is to be admitted over a formally executed will, Briginshaw dictates that reasonable satisfaction should not be attained by ‘inexact proofs, indefinite testimony, or indirect inferences’.[13]
[13]Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
The evidence
The deceased had limited schooling. After he left school, he worked and also went to night school at Collingwood Technical College for nine years. His formal qualifications were as a toolmaker, a boilermaker and a fitter and turner. He worked for the Tramways, retiring at the age of 65 years.
John described his father as ‘street smart’ in the way he conducted his financial life. His father was cautious with his money and he had a liking for property, taking the view that there was a limited supply. Over the years, he bought a number of properties and owned interests in four properties at his death. John presumed that his father used a solicitor when he purchased those properties, because he would not have sufficient knowledge or understanding to prepare the documentation himself. His father’s solicitor before his death was Mr Paul Watkins. Mr Watkins’s file note of his meeting with the deceased on 2 July 2010 records that the deceased said he ‘made his own fortune through hard work’.
Patricia was not aware of the contents of her father’s 2007 will until possibly 2009, although at the time of her mother’s death in 2008, her father had told her that he was leaving his share of the 33 Kireep Road property to her because she had helped maintain the house for her parents and looked after their everyday needs.
In 2007, Michael drove his father to his solicitor to make his 2007 will. Michael and his father did not discuss what was in the will and Michael did not want to know this in any event. Michael knew that his mother left her share of the 33 Kireep Road property to Patricia and he said it was always assumed in the family that Patricia would be given his father’s share of the 33 Kireep Road property. As far as he was concerned, this was not an issue in the family and he thought it was not an issue for John or Annette.
Patricia was aware that her father had made one other will before making the 2007 will. This was in 2006, just before her father went to hospital to have his hip replaced for the second time and he did not have a will. Her father had received a draft will from his solicitors sent by letter dated 31 January 2006. That letter states clearly how the deceased owned his assets:
As you own your share in each of the abovementioned properties as ‘tenant in common’ with the other registered proprietor, you are able to dispose of your share in your will. … In the event that your wife predeceased you, on your death, your interest in … 33 Kireep Road shall pass to Patricia …
After receiving the draft will, Patricia heard her parents having big discussions and arguments about the draft will because her mother did not want to be left any of her father’s property. These discussions and arguments recognised that some of the properties were held as tenants in common as opposed to jointly. Her father wrote to his solicitor, but she either did not answer, did not get in contact with him or return his calls. Because of this, Patricia typed up a will using the draft will and sent it to her solicitor to check that it was legal. The re-typed will adhered to her mother’s wishes not to be left with any of her husband’s property. When her father went to see his general practitioner for an appointment, Patricia drove him there and while he was with his general practitioner, he signed the will. His signature was witnessed by his general practitioner and her receptionist. Patricia was present when her father signed this will. She gave the 2006 will to John because he told her that her father wanted the 2006 will returned to him.
The 2006 will was later revoked by the 2007 will. Patricia did not hear any discussions, arguments, quarrels or matters between her parents in connection with her father’s 2007 will.
After her mother died in 2008, Patricia continued to look after her father, making sure he was safe and taking his medication. By then, his health was deteriorating and Patricia had to weigh him every day and measure his ankles so she could adjust his medication. From time to time, he would leave the heater or gas on and he would not remember to take his medication.
Patricia had an excellent relationship with her father and saw him every day for about eight months after her mother died. When she came home from work, she turned on the laundry light so he could see she was home. Her father then came to her house for dinner and stayed the night at her house. The next morning, he went back to the 33 Kireep Road property for the day.
Patricia described her father as ‘pretty paranoid’ about the things he owned and treasured, such as his jams, his teabags and his sarsaparilla. He was always suspicious that somebody was taking and stealing something. This had been going on for years prior to Mrs Jageur’s death, possibly as far back as the 1960s. He was volatile at times, especially when he thought someone was stealing his things. He would verbally lash out and was sometimes physical, especially towards the women in the family.
Towards the end of the eight months, her father decided that Patricia had stolen his American Tramways book. His reaction was to ‘bash’ on her bedroom door, telling her to give him his book and he would forgive her. To avoid this, Patricia ate her dinner in her bedroom. This behaviour went on for about a week until her father decided that he was not wanted in the house and went back to his own house. Patricia said there was no truth to the allegations. She said the situation with the Tramways book was that her father had probably misplaced it.
On the day he left her house, the deceased, in an aggressive manner, also accused Patricia of stealing or taking his sister's bedroom suite, being a wardrobe, a chest of drawers and a double bed that was in his sister’s house in Hampton when she died in the 1980s. Patricia said she did not have the bedroom suite.
This was not the first instance of irrational behaviour from the deceased towards Patricia. In about 2010, her father thought Patricia was stealing his money. Patricia had no authority over her father’s bank accounts but he still accused her of stealing it. Patricia said that for two years and a half years after her mother’s death, her father wanted to buy her a car, because he knew she had bad knees and it was difficult for her to get in and out of her existing car. He would head off to the car yards with his carers and collect car pamphlets, showing her what he thought were suitable cars. He then accused her of taking his money or being after his money and did not buy her a car. Patricia had never asked him for a car.
Michael agreed that his father had a few disputes with his two daughters and said that he occasionally had a dispute with him. Regarding the accusations that Patricia had been stealing from her father, Michael agreed with Patricia’s version of events. He said his father would lose things and ‘get a bit uptight about it’.
Although John made comments in his evidence about his father’s attitude to Patricia because he had spoken to Patricia about it, he could not remember the exact conversations with her and did not remember what his father said other than to say that he was aware that there was a souring or falling out of some sort between them. In cross examination, John said that he was told the reason for the informal codicil was that the deceased has fallen out with Patricia because he thought she was stealing from him.
Background to the creation of the informal codicil
Michael owns and operates a carpet business known as Jageurs Carpets. About twice a week, he would pick up his father and either take him on a job or to his business premises. Sometimes, the deceased’s carers would bring him into Michael’s work as well. From 2009 onwards, the company employed Mr Beninga as a salesman.
In his affidavit affirmed on 22 October 2014, Michael deposed:
The deceased had spoken to me about two to three weeks before the informal codicil was signed on 20 May 2010.
In his oral evidence, Michael said he made a mistake in his affidavit and that over a period of three to four or five weeks prior to 20 May 2010, he had about five to six very short conversations with his father about his father’s intention to give the back 100 feet of the 33 Kireep Road property to John.
He described one of those conversations. They were brief, approximately one or two minutes. Michael said the idea came out of the blue from his father. One conversation was when they were both in the car. The essence of what his father said to him was ‘I want to even it up and I want to leave 100 foot of the back yard to John because John lived in England… I'm worried about John’.
He said that his father’s worry for John was money although his father never said anything to Michael about what he thought John’s financial position might be. He said his father paid for a few of John’s airfares from London to Melbourne. Michael’s attitude was that it was his father’s money and his father could do what he liked with it. Michael agreed that John owned or controlled the majority interest in the Yarrbat Avenue property. Patricia did not at any stage have any discussion with her father in which he referred to John's financial situation.
His father said to Michael on some occasions before the informal codicil was signed that ‘I'm not letting [Patricia] down’ as he always promised that she would get the house (situated on the front 150 feet) at the 33 Kireep Road property.
Mr Beninga first met the deceased when he started work at Jageurs Carpets in 2009. The deceased came in maybe three or four days of the week or thereabouts and would sit at his desk with him. Sometimes the deceased would go to the back of the store to make a cup of tea or to the lavatory. Mr Beninga described the deceased as an older guy, with failing eyesight and who always felt cold. Mr Beninga usually gave him a blanket to put around himself when he was sitting with him. He could not recall what the deceased said about his health or his age. In his discussions with Mr Beninga, the deceased did not discuss the death of his wife, or the conduct of Patricia, John or Michael.
Occasionally, he said to Mr Beninga that he wanted the back part of the 33 Kireep Road property to be left to John. He was not sure when he first heard the deceased mention this or whether it was weeks or months before 20 May 2010, and he cannot recall the substance of any of these conversations. In cross examination, Mr Beninga said he could not recall how many times this topic came up in conversation with the deceased, and he also said it was perhaps on two or three occasions.
Mr Beninga said that in his conversations with the deceased, the deceased generally spoke about things such as politics, day to day life, his childhood, his work, how business was going, and other day to day talk. Occasionally he said that he wanted the back part of the 33 Kireep Road property to go to John but did not elaborate on this with Mr Beninga. Mr Beninga did not engage in conversation with the deceased about this because he thought it was not any of his business. Mr Beninga said the Kireep Road issue was a private sort of thing, particularly when talking to a man into his nineties, who may well have been getting towards the end of his life.
The day the informal codicil was created
On 20 May 2010, the deceased came into Michael’s work. He sat at the front desk with Mr Beninga at the front of the building, as he usually did.
Michael said that on this day, his father said that he wanted ‘to do something with this will thing, I want to leave 100 foot’. Michael told his father to ‘write it down in your own terms. Harry's over there, [he will] get you a piece of paper and just write it down and you write in your own way what you want to do in your own handwriting’. Michael told his father to write it down because ‘that’s what you do if you want to do something – leave something’. He did not tell his father to see his solicitor because he did not think it relevant at the time and he was not as forceful as he should have been at the time. Michael thought that his father should write it down in front of someone else apart from his family.
Michael said his father got a piece of paper and started writing on it. Michael then walked away and left his father with Mr Beninga because he did not want to be involved. His reason for not wanting to be involved was that he was conscious that everybody thought that he influenced his father.
Mr Beninga said that on 20 May 2010, the deceased mentioned the Kireep Road issue again to him. On that occasion, Mr Beninga said to the deceased: ‘Well, Joe, well, write it down on a bit of paper and I'll witness it for you’. Mr Beninga could not recall what led him to say this nor could he recall what caused him to say to ‘write it down on a bit of paper’. Mr Beninga then slid a page of his work notepad headed ‘Things to do Today’ to the deceased, who wrote on it and handed it back to him. Mr Beninga then read it, signed and dated it and gave the piece of paper back to the deceased. Mr Beninga said the initials halfway down the right hand side of the page are the deceased's initials. He cannot recall whether the deceased said anything after that. He did not say ‘that's a good idea or anything like that’.
Mr Beninga agreed that it looked like it was done in a bit of a rush but thought it was an appropriate piece of paper to write what might become an important record of the deceased’s intentions in relation to the 33 Kireep Road property and it was adequate. He agreed that this was probably the first time that he had seen a will written down on a page from a notepad headed ‘Things to do Today’. He agreed that that if he wanted to, he could possibly have found a better piece of paper to write it on other than the page from his notepad. He did not do this because the notepad was in front of him at the time and there was no time to be lost in getting the deceased to write it down.
In cross examination, Mr Beninga was taken to his affidavit sworn on 20 February 2013 in support of the application for probate of the informal codicil where he deposed in paragraph 4:
… the deceased did mention that he wanted the back part of the 33 Kireep Road property to go to John. This was said just in discussion. He mentioned in some of our conversations at the time that he wanted the back part of the block to go to John. I don’t recall how many conversations, two or three times and not sure over what period of time.
Mr Beninga agreed that paragraph 4 set out the extent of his recollection of his discussions that took place with the deceased in relation to the 33 Kireep Road property. He said this was the only conversation that he could recall about this issue. All that was said by the deceased was ‘I want part of the back of 33 Kireep Road to go to John’ and the deceased did not elaborate on this to him or the reason why he wanted to do it.
When he swore his affidavit, he could recall that the deceased started talking again about leaving the back of Kireep Road to John but he could not remember whether this was part of a wider conversation where there may have been other topics discussed. He said at the time of the conversation, nobody else was in the room and he was at his desk and the deceased was sitting in front of him.
Mr Beninga was taken to Michael Jageurs’ affidavit sworn on 7 February 2014 where he deposed:
The deceased was at my workplace on 20 May 2010. He raised the issue of Kireep Road again with me saying words to the effect that I've got to get round to doing something about leaving John the back 100 feet of Kireep Road. I replied to the effect well Harry is here, write it down now.
Mr Beninga said he could not comment on the fact that Michael seemed to be saying that it was his idea and not Mr Beninga’s idea that the deceased should write it down and presumably for Mr Beninga to sign as a witness. He said it was not his normal practice to witness documents that people wrote but, on this particular occasion, he did because the deceased had mentioned the issue a few times.
At paragraph 5 of his affidavit, Mr Beninga deposed:
On 20 May the deceased started talking again about doing this and I suggested that he should write down his wishes and that I would sign it. I suggested this because he was harping on it, like kept mentioning it. So I said, ‘Well if that's how you feel then jot it down on some paper and I'll witness it for you’.
Mr Beninga said to the deceased to write his wishes down on a piece of paper because he knew that it needed to be documented, signed and witnessed. In his mind, the purpose of signing it was that it was the deceased’s wish that he wanted to leave this part of the land to John and he had mentioned it a few times. Mr Beninga did not think he should suggest to the deceased that it would be a good idea to see a solicitor because Mr Beninga did not know that sort of thing. On this occasion, he just said to the deceased what came to his mind. He said that it was just the deceased and himself who were present at the time the conversation occurred. Michael was somewhere else and could have been in another part of the shop.
After signing his name on the piece of paper, Mr Beninga gave the piece of paper back to the deceased and this was the last that he saw of it. Mr Beninga said the deceased appeared satisfied with what he had done and the deceased did not say anything to him about what he intended to do with it. Mr Beninga did not observe the deceased do anything in particular with the piece of paper.
In Michael’s affidavit, he deposed that as far as he was aware, his father retained the informal codicil. In his oral evidence, he said that his father gave the informal codicil to him. At the time he said this in his affidavit he believed that to be the case, but Michael now thinks that his father either kept it at work or took it home and put it into a drawer. Michael also said that Mr Beninga gave him the piece of paper but he now cannot remember whether he put it in the office out the back or into his briefcase to store it at home.
Mr Beninga could not recall whether on 20 May 2010 he knew that people often go to solicitors to make a will. It did not occur to him to say to the deceased ‘why don't you go and see a solicitor’. He thought that writing it down on a piece of paper was obviously something the deceased wanted to do. Mr Beninga thought that a will could be done in a variety of ways, either a post office will, writing it down on a bit of paper or going to a solicitor.
Mr Beninga did not understand that a will needed to be witnessed by two people. He said there were a number of other people round in the office on the day and he could have got another person to witness the document but he did not think about that. In May 2010, there were a number of people working at Jageurs Carpets such as carpet layers, office staff, and casual staff. There were three office staff at the premises as well as the sales staff. Other staff, such as carpet cutters, were in the work room at the back of the building. It would not have been an effort for him to get a second witness from the office and he did not know why he did not do that, other than it was five or six years ago. In hindsight, he said he could have found another witness as it was easy to get someone else from a nearby office but he did not understand that there needed to be more than one witness for a formal will.
Events after the informal codicil was signed by the deceased
In late June 2010, John travelled to Melbourne from the United Kingdom to visit his father. He was aware that his father was not well and he wanted to see him. He had previously visited his father earlier that year at Easter time. He travelled with his daughter in June 2010, arriving on 24 June 2010 and they stayed with his father at his house. John denied that his visit to Melbourne had anything to do with getting his father to make a will.
The first occasion John heard that his father was intending to leave him his interest in the back of the 33 Kireep Road property was the next day on 25 June 2010 when Michael told him. John said he was surprised.
Michael recounted this first conversation between John and himself over the 100 feet. Michael said, ‘Joe wants to leave you a 100 foot of the backyard. He wants to even things up’. Michael did not know whether John made any reply to him at the time and he does not know what his father meant about wanting ‘to even things up’. In cross examination, John said that Michael also told him his father had written something out on a piece of paper headed ‘Things to do Today’ when he was at Michael’s shop.
John then spoke to his father about it on either 26 or 27 June when he brought up the issue. John knew at this time that his father’s 2007 will provided for his interest in the 33 Kireep Road property was to pass to Patricia.
John and his father had a discussion about the issue and his father confirmed that this was what he wanted to do. In the discussion, his father produced two pieces of paper with sketches on them to show John what he meant.[14] The first sketch has a square drawn on it and written next to the square is ‘33 Kireep Rd. Balwyn’. There is a broken line marked through the square. The top part of the square has ‘Trish’ written in it and the other part has ‘John’ written on it. Outside the square and next to John’s name is ‘= 100 FT 1.7.10’. The second page has a rectangle drawn on it with Patricia’s name written in the top two thirds of the rectangle. There is a line across the rectangle about two thirds down with ‘100’ written in that bottom portion and ‘John’ next to that portion. The second page is undated.
[14]Affidavit of Paul John Watkins sworn 18 December 2013, [3], exhibit G. Exhibit G comprises three pages. John was shown the first two pages.
His father told him that it was part of his intention to leave the back 100 feet of the 33 Kireep Road property to him so that John could then combine it with the Yarrbat Avenue property. His father said that in leaving John the back 100 feet, he felt that he was still honouring what he had told Patricia which was that he was leaving her the house at the 33 Kireep Road property.
His father did not say anything that led him to believe there was a particular reason why he wanted to do it and John did not recall any direct conversation in which his father identified the reason why he was proposing to make this change. John again told his father that he was surprised and his father said that was what he wanted to do.
In cross examination, John did identify why his father proposed the change. He said his father’s relationship with Patricia was ‘a bit precarious’, they were not getting on well and his father’s relationship with Patricia had soured. He said his father ‘felt not inclined to give as much to my sister as he originally had thought, but he felt an obligation to honour his agreement to my sister by giving her the house. And by this way he could honour that agreement and give me this part’.
John also said that at the time of this discussion with his father, he understood that he may well be able to combine the back 100 feet of the 33 Kireep Road property with the property at Yarrbat Avenue which would be a significant financial benefit to him and, in part, to Michael, although the benefit to Michael would depend on the price to be paid to Caduser Pty Ltd for access over the Yarrbat Avenue property to the back 100 feet.
John was reluctant to talk too much about the issue with his father. He did not want to feel that he was being callous or hard and taking something from his father. He felt that it was up to his father if he wanted to give the back 100 feet to him.
A day or two later, John spoke again to his father about the Kireep Road property. He told his father that he needed to see his solicitor, Mr Paul Watkins, to put what he wanted to do into a formal will document. When he said this to his father, John was talking about something more formal that the informal codicil. John said his father told him about the informal document and he had been shown the two pages of sketches by his father. John said that he knew it was an informal document because of what Michael had told him about it. His father told John he was happy with what had been done. In the conversation about going to his solicitor to get a formal document prepared, his father said, ‘No, son, it's okay’. John felt his father was reluctant to see his solicitor because he did not want to spend the money on a will although his father did not actually say that to him.
John had two or three more discussions with his father about needing a more formal document. He felt a little bit of concern about pushing his father too hard to get a more formal document because he did not want to feel that he was pressuring his father. The discussions occurred when they went for a drive together or were having a coffee together. After those further discussions, his father said, ‘Okay, let's get the solicitor in’.
John then spoke to Michael who knew Mr Watkins and John understood that Michael spoke to Mr Watkins. Michael said his father asked him to call Mr Watkins and tell him that he wanted to do something with his will. Michael said he did not organise for his father to see his solicitor any earlier because he ‘wasn’t trying to be a bad influence’ and he was busy working at his business.
The deceased’s meeting with his solicitor
Mr Watkins said his office received a call on 1 July 2010 from Michael who left a message with his secretary as to whether he could see the deceased at his home. Mr Watkins rang Michael and organised an appointment to see his father at his home the next morning.
When Mr Watkins arrived at the deceased’s home at 9.30 in the morning, John was at the house. Michael arrived later. Neither John nor Michael were present when Mr Watkins met with the deceased to discuss his will. Mr Watkins met with the deceased straight away in his bedroom with the door closed while they discussed his will. The deceased was in his pyjamas and his dressing gown. Mr Watkins understood that the deceased had been in hospital prior to his visit. The meeting finished at 10.45. Mr Watkins said that to the best of his recollection, he spent 45 minutes to an hour with the deceased. In the remaining half hour, he said he arranged for the deceased to sign a power of attorney.
During the meeting, Mr Watkins and the deceased sat on the deceased’s bed. His file note described the deceased as ‘very alert/in bed but sitting up. Hard of hearing but right ear good ear’. Mr Watkins explained to the deceased why he was there. He then asked the deceased why he thought that Mr Watkins was there. The deceased said he wanted to make a will. They went through his current will and the discussed some possible changes to his will with Mr Watkins.
Mr Watkins spoke about the deceased’s asset position. Mr Watkins said there were four properties in which the deceased had an interest. He discussed those properties with the deceased. He told Mr Watkins that he had a half interest in the 33 Kireep Road property, a half interest in the property next door and interests in two other properties, one being a half interest in a property in Hawthorn and the other being an interest in a property in Northcote, although he was a bit uncertain about what interest he had in the last property.
They went through the gifts in his 2007 will and the deceased told Mr Watkins that he wanted to make some changes to his will and leave something more to John. He mentioned leaving him an area of 100 feet at the rear of the home at the 33 Kireep Road property, possibly using words along the lines of, ‘to make it more fair’ and mentioned that was the point in making the gift of 100 feet to John. The deceased showed Mr Watkins three pages of sketches, one of which is dated 1 July 2010, to demonstrate what he was discussing.
Mr Watkins’ file note records that the deceased wanted to ‘keep it secret from [Patricia]’. Michael said that he knew about that at the time and it would have been his father’s idea. Michael did not want to upset Patricia then or now and his view was that it was a personal thing between his father and Patricia.
Mr Watkins said that the deceased told him that his wife had passed away a couple of years before. The deceased said he thought his wife's will had made provision for his daughters and that was why he wanted to make some further provision in his will to John. Mr Watkins asked the deceased how his wife's will made further provision for his daughters but the deceased was not sure about that. Mr Watkins said the reality was that the deceased did not appear to understand or know how the family assets had been divided up by his wife. In his discussion with the deceased, Mr Watkins said there was no detail of how there was some degree of unfairness towards John.
Mr Watkins said to the deceased that he had a 50 per cent undivided interest as tenant in common in the 33 Kireep Road property and that he was not sure whether a gift of 100 feet at the rear of the property would be effective in those circumstances. He told the deceased that he did not own the 100 feet at the rear and discussed possible alternatives with him. His file note records ‘explained not possible’. The deceased kept repeating to Mr Watkins that he wanted to leave the 100 feet at the rear to John. In re-examination, Mr Watkins said he did not definitely say to the deceased that it could not be done but he did express doubts about whether it could be done.
Mr Watkins said that the deceased did not tell him at the conference that he had executed a document purporting to be a will that gave 100 feet at the back of the 33 Kireep Road property to John nor did he say that John, or interests associated with John, owned the adjoining land abutting at the rear of the 33 Kireep Road property.
Mr Watkins said that from his conference with the deceased, there were two issues to clear up. One was how the estate of the deceased’s wife was distributed, including what interest the deceased had in the Northcote property and what the situation was with the family assets. The second was ‘how on earth [the deceased] could give away half of 33, or 100 feet of 33 Kireep Road when he only owned half of it’.
The conversations ended at this point on the day of the meeting. This was noted by Mr Watkins in his file note of the conference with the deceased as follows:
Told me any queries/see Michael. First he needs to decide and tell me what he wants. Wants me to investigate titles and wife's estate. Need to find out who owns what - then make final decision on the new will when considered and advised on all this.
As far as Mr Watkins was concerned, that was how it was left and there was still a lot of work to be done before any decision could be made in relation to the final form of the deceased’s will and before he would document anything. He said his instructions were to obtain the title searches and the details of how Mrs Jageur’s estate had been dealt with, and then he would come back and get further instructions from the deceased.
After the deceased’s meeting with his solicitor
Mr Watkins’s conference with the deceased was on a Friday. On the following Monday, he had the deceased’s will file obtained from the firm’s archives and he arranged for the relevant title searches to be done. He also attempted to obtain a probate search of Mrs Jageurs' estate, but could not as probate had not been applied for at that stage.
Michael said that he left Melbourne and returned to London on the Tuesday or Wednesday after Mr Watkin’s meeting with his father.
On 6 July 2010 Mr Watkins sent a letter addressed to the deceased at 33 Kireep Road, Balwyn enclosing copies of the title searches, advising him that an application for probate of his late wife's will had not yet been made, and asking him for a copy of her will. On the same day, he rang Michael and confirmed that he had done the searches and that a letter was being sent later that day. Mr Watkins contacted Michael because the deceased had told him that if he had any queries, he could see Michael.
Mr Watkins then followed up a couple of weeks later by ringing Michael again because he had not received a copy of Mrs Jageur’s will. Mr Watkins has a file note of his further conversation with Michael on 29 July. Michael told Mr Watkins that the deceased's health had improved and that they would come back to him. His file note says ‘Joe has improved. Joe still deciding on will’.
Mr Watkins said he did not prepare a will for the deceased because he did not have instructions at that stage. Mr Watkins did not receive any further instructions and the next conversation he had about the deceased was when he was advised that the deceased had died. Mr Watkins said the informal codicil was provided to him by Michael some months after the deceased had died.
Mr Watkins swore an affidavit in relation to Michael’s application for a grant of probate of the will and informal codicil. He said the affidavit was sent to him for checking and he made a couple of minor amendments to it before it was sworn by him. He agreed that he did not exhibit his file notes to his affidavit. He thought that he did not provide his file notes to the solicitors who prepared the affidavit prior to it being prepared. He did provide his file notes at a later stage after an order of the court was made to do so. He said that no one asked him for his file notes before then and he did not volunteer them to the plaintiff’s solicitors as he was not aware what was happening in the proceeding.
The deceased’s health between May and September 2010
Patricia said that in the lead up from around May to September 2010, her father had been in and out of hospital with very swollen legs and a skin rash. In June 2010 Patricia took him to the doctor but he developed a chest infection. She asked the chemist if she could give him the same antibiotics that she was taking and was told that she could. However, because her father was already on another antibiotic, he became very ill. She took him to see more doctors but he ended up in hospital in the middle of June. His geriatrician told Annette, Michael and Patricia that their father was in the last stages of his illness and had three months to live. He did however recover from that infection and returned home. It was expected that he would have more bouts of hospitalisation because of the build-up of fluid in his body and his deteriorating heart. Although he was in the last stages of his life, he was active and capable between June and September, doing the things he liked to do, such as trying to make wooden toys for the great-grandchildren, and going out with Michael in the car. Michael more or less agreed with this.
Eventually, at the end of August, her father ended up back in hospital with a chest infection. He recovered and was about to return home when he had two falls. He was in a lot of pain, especially around his ribs from the second fall and, at that point, he stopped eating. Michael and John brought him home but he died a couple of days later.
Patricia’s knowledge of the informal codicil
Patricia first found out about the back 100 feet of the 33 Kireep Road property being given to John in October 2010 when John told her about it in a telephone conversation. He told her that the deceased wanted him to have 100 feet of the 33 Kireep Road property and that he had seen a solicitor about it.
Patricia did not see or hear from John until September 2011, when he told Patricia who the solicitor was, that he had come to the deceased’s home and there were documents, diagrams and a note or letter.
In 2014, Patricia received a letter dated 14 February from Michael’s solicitors in relation to a proposed application concerning an informal codicil, to be made at some stage. Michael agreed that was probably the first notification that Patricia received of a proposed application by Michael for a grant of probate or letters of administration. He agreed that he should have told Patricia much earlier than he did. His excuse for not telling Patricia about it was because they did not talk much.
In part the letter states:
You may not be aware, but we are instructed that, not long before he died, Joe was wanting to ensure that your brother John received the back 100 feet of the 33 Kireep Road property. In this regard, he signed an informal document, a copy of which is attached. We have advised Michael, as the executor of Joe’s will, that it could be construed as an informal codicil to Joe’s will, where he stated his wish for John to receive the back 100 feet.
In addition, we are instructed Joe went to see a solicitor about effecting a more formal will incorporating this gift to John, but unfortunately died before it could be finalised.
Michael agreed that he gave the instructions to his solicitor for the letter to be written. He agreed that it was not accurate to say that his father went to see a solicitor because the solicitor came to him at his house. He also agreed that it was not accurate that his father died before a more formal will could be finalised as his father lived for some three months after he saw Mr Watkins and that his father had plenty of time to finalise it if he wanted to do so.
The letter then informed Patricia, amongst other matters, that it ‘is possible for the Registrar of Probates to grant the application for probate in respect of the informal document when all the relevant parties affected by the consent to the Registrar so doing’ and attached a draft consent for signing subject to obtaining independent legal advice. The writer also informed Patricia that his client ‘is more than happy to meet in an informal ‘round-table’ discussion, if it will assist’.
Michael also agreed that in October 2014, Patricia commenced a proceeding that effectively forced him to bring an application for a grant of probate for his father’s estate.[15]
[15]Proceeding S CI 2014 5424 issued by Patricia against Michael seeking that he show cause why he should not bring the will and alleged codicil into court and orders that he make application for a grant of probate the will and alleged codicil or renounce probate.
The plaintiff’s case
The plaintiff contends that the evidence is sufficient to satisfy the Court that the criteria set out in s 9 of the Act is established on the balance of probabilities. The plaintiff submits that the informal codicil is testamentary in nature because it deals with a matter in the 2007 will and modifies or otherwise varies that nature or outcome of the devise of the 33 Kireep Road property to Patricia.
The plaintiff submits the deceased was steadfast in early 2010 that he wanted John to have the benefit of the land at the rear of the 33 Kireep Road property. The plaintiff relies on the fact that he told people about this, he signed a document to effect it, he confirmed it with his solicitor and he did not appear to waver or vary from this intention from the date that he signed the informal codicil.
In respect of the issue that the deceased did not own the whole of the 33 Kireep Road property, yet by his informal codicil purported to give 100 feet of the rear of it to John, the plaintiff submits that the deceased was a man of limited education and literacy and he may not have fully comprehended that the nature and operation of co-ownership of property. Further, the plaintiff submits the issue is not a relevant issue before the Court on this application pursuant to s 9 of the Act.
Credibility of the witnesses
The evidence in this proceeding covers the period from around May to September 2010. Most of the evidence concerning the creation of the informal will was oral, save for the informal documents and Mr Watkins’ file notes. Where there are events taking place five years ago, there are obvious difficulties with a witness’s recollection as well as a witness’s tendency to tailor the evidence to suit his or her case. Where the witnesses rely on their recollection, any contemporaneous documents are of assistance in determining the facts.
Mr Watkins’ oral evidence was assisted by his file notes of his meeting with the deceased on 2 July 2010 and his subsequent communications, as recorded in his file notes or letters. I found Mr Watkins to be a credible and honest witness. Where there is a difference between his oral evidence and his file notes or records, I prefer his written contemporaneous evidence.
Michael’s evidence was inconsistent in significant parts from that of Mr Beninga. Both had poor recollection of the relevant events. As an employee and not involved in the Jageurs’ family issues, that is more understandable from Mr Beninga’s point of view. It is not understandable from Michael’s point of view, particularly when the informal codicil makes a substantial change to the long held dispositions of the deceased. In much of his oral evidence, Michael gave either vague or non-responsive answers to questions. Overall, I found Michael to be an unsatisfactory witness.
John’s evidence was mainly of discussions with his father with no one else present. His evidence that his father showed him the two pages of sketches on either 26 or 27 June 2010 is doubtful as one of the pages bears a date of 1 July 2010, the day before the deceased’s meeting with Mr Watkins. Michael gave many non-responsive answers to questions. His failure to file an affidavit in support of Michael’s application for a grant of probate of the informal codicil is inexplicable. Overall, I found John was not a credible witness.
Patricia’s evidence did not concern the creation of the informal codicil or the deceased’s meeting with Mr Watkins. She was unaware of the informal codicil until a substantial time after the death of the deceased. In respect of her evidence, generally, Michael and John did not contradict her. I found Patricia to be a credible and impressive witness. Where there is a conflict in the evidence, I accept Patricia’s version of events.
Consideration
As the propounder of the informal codicil, Michael does not have the benefit of the usual presumptions of testamentary capacity or knowledge and approval associated with a duly executed will. If the informal codicil is rational on its face and the circumstances of its creation are also rational, then save for any other fact, the inference is that the deceased had testamentary capacity and that he knew and approved of the informal codicil.
The plaintiff’s submission that the deceased had a limited education and limited literacy skills is relied on to explain the deceased’s written words in the informal codicil and to support that he would not have an understanding of his ownership of the 33 Kireep Road property.
In my view, the evidence demonstrates that the deceased’s education or literary skills were not as limited as submitted by the plaintiff. Whilst the deceased left school at an early age, he subsequently qualified as a toolmaker, a boilermaker and a fitter and turner. He was employed all his working life at the Tramways, retiring at the age of 65 years. He managed his finances successfully, as evidenced by his interests in four properties and other assets as at the date of his death and he told Mr Watkins at his meeting on 2 July 2010 that he ‘made his own fortune’.
I also consider that the evidence demonstrates that the deceased would have understood how he owned the 33 Kireep Road property. He owned his other three properties with others as a tenant in common. The nature of this type of ownership was made clear to the deceased in his solicitor’s letter dated 31 January 2006 and was partly the cause of argument and discussion with Mrs Jageurs over his 2006 will. The provisions of his 2006 will and his 2007 will also reflect this type of ownership of his properties. Finally, in 2009, the deceased told Patricia that he was leaving his share of the 33 Kireep Road property to her, demonstrating that he knew that he owned the 33 Kireep Road property with her.
Is the informal codicil rational on its face?
In submissions supporting his application, the plaintiff did not address in any substantial way the issue of whether the informal codicil was rational on its face, contending that the nature and operation of co-ownership of the property was not a relevant issue before the court.
As an owner as tenant in common with Patricia of the property, neither the deceased nor Patricia is entitled to the exclusive possession of any part of the property, each being entitled to occupy the whole in common with the other. They have a distinct yet undivided share in the land.[16]
[16]Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635, 643-644 (Brennan J).
The informal codicil purports to give 100 feet at the rear of the 33 Kireep Road property to John. Putting to one side the issue of whether such a division can be achieved in the circumstances, the scenario for the division of the property postulated by the plaintiff would result in John receiving 100 feet of the rear of the property and Patricia receiving the remaining 25 feet.[17] In other words, John would receive four fifths or eighty per cent of the deceased’s interest in the property and Patricia would receive one fifth or twenty per cent.
[17]As Patricia is a tenant in common with the deceased of the property, the plaintiff’s scenario must notionally provide that Patricia’s ownership is the other half of the property comprising the front 125 feet of the property.
This result directly contradicts the deceased’s statement made to Patricia in 2009 that he was leaving his share of the 33 Kireep Road property to her. There is no evidence that the deceased ever said to Patricia that he would leave her only the house area of the property. The result also contradicts Michael’s evidence that, within the family, it was assumed that Patricia would be given the deceased’s share of the property. In his evidence, John did not contradict Michael’s evidence on this point. Such an assumption within the family is, on balance, more than likely to have resulted from the deceased and Mrs Jageurs expressing this view to their children. It is consistent with the reasons set out in Mrs Jageurs’ will for leaving her share of the 33 Kireep Road property to Patricia, as well as the care that Patricia did give her parents over many years.
When considered on the basis of the plaintiff’s scenario, the informal codicil is not rational on its face having regard to the deceased’s statement to Patricia, his long held testamentary disposition of the 33 Kireep Road property to Patricia and the assumption within the family in respect of the property.
Are the circumstances of the creation of the informal codicil rational?
The circumstances of the creation of the informal codicil raise concerns as to whether the deceased knew and approved of its contents. Where the evidence raises a suspicion that a testamentary document does not express the intention of the deceased, knowledge and approval will not be presumed from the execution of the document. Suspicion is aroused where the person who prepared or procured the execution of the document receives a benefit under it or where the deceased was elderly, enfeebled or blind.
The change to the deceased’s disposition of the 33 Kireep Road property would benefit Michael in two possible ways: first, because of his ownership of shares in Caduser Pty Ltd, the owner of four fifths of the Yarrbat Avenue property and, secondly, because the rear boundary of the 31 Kireep Road property owned by Michael abuts the Yarrbat Avenue property.
As a reason for the change to his disposition of the property, Michael said the deceased said he wanted to ‘even it up’ and was concerned about John’s financial security, although he did not say anything about John’s financial position to him. Patricia said the deceased did not ever speak to her about John’s financial situation. John did not give any evidence that the deceased said to him that he was concerned about John’s financial security. John did not give any evidence about his financial situation, other than his ownership in the Yarrbat Avenue property. There was no evidence about what the deceased meant by ‘even it up’ and he could not explain what he meant by this to Mr Watkins.
The change to the deceased’s disposition of the 33 Kireep Road property would be a substantial detriment to Patricia, not only by her receiving less of the property (applying the plaintiff’s analysis) but also because she is a person who has a natural claim on the deceased’s bounty as his child as well as a result of her care of the deceased over many years, in difficult circumstances.
The evidence concerning the creation of the informal codicil is insubstantial and contradictory, with both Michael and Mr Beninga not being able to recall any detail of their discussions with the deceased leading up to 20 May 2010. Their evidence of the events on 20 May 2010 differed as to how that deceased came to write down the words on document and who retained it. The fact that the informal document is written on a page from a notepad and that only Michael’s employee, Mr Beninga, witnessed the deceased’s signature, is unusual in the circumstances of such an important document, considering there were other people nearby who could act as witnesses and better paper readily available from the office.
It is suspicious that the document was created in Michael’s workplace and that he did not suggest to his father that he see his solicitor, just as when he took him to see his solicitor to do his 2007 will. The deceased was a person who used solicitors for his legal work. John accepted that it was likely that his father would have used solicitors for the purchases of his properties over time. The evidence was that the deceased had the same firm of solicitors in 2006, 2007 and 2010. The deceased made wills in 2006 and 2007. He was familiar with the formal requirements for signing a will. In my view, it would be highly unlikely for the deceased to make such a substantial change to his long held testamentary intentions without consulting his solicitor. This is confirmed by the fact that the deceased did meet with his solicitor and the final communication to Mr Watkins on 29 July 2010 was that the deceased was ‘still deciding’ on his will. Importantly, the deceased did not tell Mr Watkins about the informal codicil or give it to him at their meeting.
In such circumstances, I am not satisfied that the deceased knew and approved of the contents of the informal codicil or that he intended it to be a testamentary document.
Did the deceased have testamentary capacity when he made the informal codicil?
Over time, the deceased exhibited paranoid delusions and, in the years prior to his death, expressed delusions in relation to Patricia. Michael and John did not disagree with Patricia’s evidence concerning Patricia’s version of events and I accept her evidence in this regard.
Given the deceased’s delusions, his age, his failing eye sight, his inability to see, his general health (such as always feeling cold and being hard of hearing), the substantial change to the disposition of his interest in the 33 Kireep Road property affected by the informal codicil and the manner in which it was created, the question of the plaintiff’s capacity must also be considered. The plaintiff did not provide any evidence to substantiate the deceased’s testamentary capacity at the date the informal codicil was created.
Mr Watkins noted at his meeting with the deceased on 2 July 2010 that the deceased was unable to say what his interest was in one of his properties, did not know or understand how the family assets had been divided up by Mrs Jageurs’ will and had no detail about how there was unfairness to John. The deceased also failed to tell Mr Watkins two relevant items of information about the proposed change to his will: the existence of the informal codicil and that John or interests associated with John owned the adjoining land abutting the rear of the 33 Kireep Road property. He also did not appear to appreciate Patricia’s claim on his bounty, being his child and having cared for him over many years. Such matters directly relate to a person’s testamentary capacity.[18]
[18]Banks v Goodfellow (1870) LR 5 QB 549, 565; Timbury v Coffee (1941) 66 CLR 277, 283.
Accordingly, I am not satisfied the deceased had testamentary capacity at the date the informal codicil was created.
Was the informal codicil a product of influence over the deceased?
Both Michael and John spoke about their concerns of being seen to influence the deceased in regard to the deceased’s change to his disposition of the 33 Kireep Road property. In my view, the circumstances of the creation of the informal codicil and John’s endeavours to get his father to execute a formal codicil give rise to an inference of influence over the deceased. Subsequent events support this conclusion.
After the creation of the informal codicil and John’s discussions with his father, the deceased met with Mr Watkins. There was no-one else present in the bedroom when they met, but both Michael and John were present at the deceased’s house. The fact that the informal codicil was not given to Mr Watkins at the meeting is suspicious, particularly when Michael was at the house and the purpose of the meeting with Mr Watkins was for the deceased to discuss his will. It is also relevant that Mr Watkins was not told of the benefits that would be given to Michael and John as a result of the change in the disposition of the 33 Kireep Road property nor of Patricia’s role in the care of her father.
The fact that the informal codicil was kept secret from Patricia for a very long time is also suspicious. Michael’s excuse for not telling Patricia about the informal codicil because ‘they did not talk much’ is not credible, particularly when he is the executor of the 2007 will. When Patricia was given information, it was given almost four years after the deceased’s death in the letter in February 2014 from Michael’s solicitors. It was inaccurate in a substantial manner, as conceded by Michael at trial. Nevertheless, with the provision of that inaccurate information, Patricia was invited by Michael to meet for an informal ‘round table’ discussion.
Where the informal codicil gives a significant benefit to John, a benefit to Michael and a significant detriment to Patricia, any negotiations based on inaccurate information would be unfair, if not, misleading. Patricia was then required to take action in October 2014 to force Michael to bring an application for a grant. Yet, even when he made the application, Michael failed to produce Mr Watkins’ file notes of his meeting with the deceased without a court order. Importantly and relevantly, these notes clearly record that the deceased was still deciding on his will as at the end of July 2010 and thereafter he did not give Mr Watkins any further instructions.
Conclusions
I am not satisfied that the informal codicil was intended by the deceased to be a codicil to his 2007 will. Accordingly, I dismiss the plaintiff’s application for a grant of probate of the informal codicil dated 20 May 2010.
There is a further issue that arises for consideration. In proceeding S CI 2014 05424, Patricia has sought orders that Michael make an application for a grant in the estate or renounce probate. Although in this proceeding, Michael has made an application for a grant, his failure to administer the estate of the deceased in a timely manner and to communicate effectively with Patricia raises the question of whether he is the appropriate person to be propounding the 2007 will, notwithstanding he is named as the executor in the 2007 will.
In respect of costs, subject to further submissions, my preliminary view is that the entitlements of Patricia and Annette under the 2007 will should not be affected in any way.
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