Moloney v Hayward

Case [2022] SASC 79

Supreme Court of South Australia

(Civil)

MOLONEY v HAYWARD & ORS

[2022] SASC 79

Judgment of the Honourable Auxiliary Justice McMillan  

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY

SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - CIRCUMSTANCES AROUSING SUSPICION

SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION

WILLS — Testamentary capacity — Whether deceased had testamentary capacity to give instructions for a will — Whether deceased had testamentary capacity to execute a will — Insufficient evidence that the deceased had testamentary capacity.

WILLS — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Insufficient evidence that the deceased knew and approved of contents of will.

WILLS — Undue influence — Standard of proof — Court satisfied that instructions not the genuine instructions of the deceased and deceased unduly influenced.

WILLS — Rectification — s 25AA Wills Act 1936 (SA).

Wills Act 1936 (SA) ss 8, 25AA, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Roche v Roche [2017] SASC 8; Hawes v Burgess [2013] EWCA Civ 74; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; Thomas v Nash (2010) 107 SASR 309; Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934; Carr v Homersham (2018) 97 NSWLR 328; Re Sue [2016] NSWSC 721; Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275; Fradgley v Pocklington (No 2) [2011] QSC 355; Ryan v Dalton [2017] NSWSC 1007; Loosley v Powell [2018] 2 NZLR 618; Veall v Veall (2015) 46 VR 23; Tobin v Ezekiel (2012) 83 NSWLR 757; Nock v Austin (1918) 25 CLR 519; Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089; Fulton v Andrew (1875) LR 7 HL 448; Baker v Batt (1838) 2 Moo PC 317; 12 ER 1026; Tyrrell v Painton (1894) P 151; Shama Churn Kundu v Khettromoni Dasi (1899) LR 27 Ind App 10; Low v Guthrie (1909) AC 278; In the Estate of Osment [1914] P 129; Worth v Clasohm (1952) 86 CLR 439; Kantor v Vosahlo [2004] VSCA 235; Briginshaw v Briginshaw (1938) 60 CLR 336; Mekail v Hana; Mekail v Hana [2019] NSWCA 197; Starr v Miller [2021] NSWSC 426; Perrins v Holland [2011] Ch 270; Perera v Perera (1901) AC 354; Parker v Felgate (1883) 8 PD 171; Bridgewater v Leahy (1998) 194 CLR 457; Wingrove v Wingrove (1885) 11 PD 81; Bailey v Bailey (1924) 34 CLR 558; Hall v Hall (1868) LR 1 P & D 481; Boyse v Rossborough (1857) 6 HL Cas 2; 10 ER 1192; McKinnon v Voigt [1998] 3 VR 543; Williams v Goude (1828) 1 Hag Ecc 577; 162 ER 682; Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd

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AGLC
Moloney v Hayward [2022] SASC 79
Case
[2022] SASC 79
Decision Date

CaseChat Overview and Summary

In the matter of Moloney v Hayward, the deceased, Paul Moloney, and his daughter, the applicant, disputed the validity of a 2018 will and the conditions under which it was made. The case was heard in the Supreme Court of South Australia, where the court was required to determine whether the deceased had testamentary capacity at the time the 2018 will was made and signed. Additionally, the court had to consider claims of undue influence by the applicant and whether the 2012 will should be rectified to include an option for the applicant to purchase a property known as Brewers at market value.

The court found that the deceased lacked testamentary capacity when giving instructions for the 2018 will on 18 August 2017 and when signing it on 15 February 2018. The court also determined that the applicant's claims of knowledge and approval and undue influence were in favour of the respondents. The parties had agreed that, following these determinations, the respondents would seek rectification of the 2012 will to include an option for the applicant to purchase Brewers at market value, and that the 2012 will, as rectified, would be admitted to probate.

The court's reasoning was based on evidence from various witnesses, including the deceased's doctor, Dr Moore, who found him to be an independent and strong-willed man until his death. However, the court found that the deceased's mental and physical health had deteriorated, making him susceptible to undue influence by the applicant. The court concluded that the 2018 will should not be admitted to probate, and the parties were to forward proposed orders to that effect by a specified date. If the parties could not agree on the costs of the proceeding, written submissions were to be filed by another specified date.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Court has determined that the deceased did not have testamentary capacity on 18 August 2017 when he gave instructions for the 2018 will or when he signed the 2018 will on 15 February 2018. It has also determined the applicant’s claims of knowledge and approval and undue influence in favour of the respondents. The parties had agreed that following such a determination the respondents would seek rectification of the 2012 will to include an option for the applicant to purchase Brewers at market value and that the 2012 will, as rectified, be admitted to probate.Factual backgroundThe Moloney family and brewers The Moloney family have for generations been farmers on land near Maitland, South Australia. From time to time, members of the family have owned various parcels of land located near Maitland. The deceased was born on 10 February 1923. In 1936, the deceased’s sister, Patricia Sheila Moloney (‘Sheila’) became the registered proprietor of land comprising 636.9 acres, which had previously been owned by the Brewer family.[5] Within the Moloney family, this land was known as Brewers. The deceased and his father farmed Brewers for Sheila’s benefit and, following the death of the deceased’s father, the deceased farmed it on Sheila’s behalf.[5] That land is now described in Certificate of Title Register Book Volume 5660 Folio 15, being Section 242, Hundred of Maitland in the Area of Maitland. Sheila died in 1986. She had no children. Pursuant to her last will, 40 per cent of Brewers was inherited by the deceased and the remaining 60 per cent was inherited equally by the deceased’s three other siblings. In 1988 the deceased acquired the remaining 60 per cent share of Brewers from his siblings. Brewers then became part of the Moloney farm and was farmed by the deceased and the applicant. Of the children of the deceased and Mona, the applicant is the only child who took up farming as an occupation. In 1969 when the applicant was aged 16 years and still at school, he became a partner in the farming enterprise with his parents, known as EP Moloney & Co., apparently for taxation purposes. In 1972 the applicant commenced full-time work on the farm and shared the work with the deceased and other farm workers. In 1982 the applicant’s wife, Deirdre, also became a partner for taxation purposes. As time passed, the deceased became less active in the day-to-day farming operation, particularly towards the end of the 1980s.[6] [6] This evidence was not contradicted by the respondents. The parties agreed that at all material times it was the wish and intention of the deceased’s father and the deceased that the Moloney farm be maintained for the next generation of the family and beyond, such wish and intention being common to farmers. The land comprising the Moloney farm consists of 1,504.45 hectares. Of that holding, three properties with a total land area of 635 hectares were owned by the deceased, one of which was Brewers comprising 257.78 hectares. Brewers was said to have a market value of $3,925,000 as at 15 February 2018 and $4,075,000 as at 1 May 2019. The values of the deceased’s other two properties were said to be $370,000 for the property of 19.5 hectares and $6,475,000 for the property of 357.72 hectares. The balance of the land comprising the Maloney farm is owned by the applicant and comprises four properties totalling 869.45 hectares.

Evidence

Evidence Before The Court

The agreed statement of legal issues does not identify any issue of due execution of the 2018 will. Notwithstanding some suggestions to the contrary by the respondents that arose as a result of certain evidence given,[4] the respondents do not seriously contend that the Court should determine whether the 2018 will was duly executed in accordance with s 8 of the Wills Act 1936 (SA).[4] See, eg, the written closing submissions of the respondents at para [2], where it states: ‘While the … respondents do not contest that the deceased signed the 2018 will, the lack of reliability of the three witnesses [that gave evidence as to the due execution of the 2018 will] must cause a doubt as to the sequence in which the document was signed’. See also paras [46]–[47] where the respondents submit that while on its face the 2018 will appears to be duly executed, there may not be a sufficient basis for the Court to be satisfied that it was duly executed. General comments on the evidence Limited evidence was given by four witnesses: Eugene Justin Moloney, whose father was a first cousin of the deceased, Malcolm McCauley, who was a neighbour of the deceased and the applicant, Andrew Chambers, who is a pastor at the residential village where the deceased resided for the last four years of his life; and William Robert Moloney, who is a nephew of the deceased. Their evidence consisted mainly of brief or sporadic observations of the deceased, or general and broad observations that were of limited or no utility and insufficient to ground any meaningful conclusions. Some of the applicant’s evidence was also of limited utility, for example, details of his labour on the farm and payment for such labour since he left school. This appeared to be given more by way of background as to his role in the farming enterprise with his parents and is not relevant to the determination of the issues in the proceeding. The applicant submits that all witnesses gave honest evidence to the best of their abilities and recollections, and while recollections vary on some topics, it is not possible to remember details of conversations or events that occurred over many years. The respondents submit that the applicant’s evidence was highly suspect and unreliable. The evidence covered events going back to 2005, however, the evidence relevant to the 2018 will is relatively more recent. Evidence that is given orally and later in time than the date of making a witness statement can be more susceptible to difficulties arising from fading memories and a tendency of witnesses to tailor the evidence to suit their case. Where there are uncontentious contemporaneous records that support the oral evidence, it is likely to be the most reliable evidence. The consequences of the findings to be made and the inability to hear any evidence from the deceased as to his actual intentions means that the evaluation of all the evidence must be approached with care.Summary of findings The Court has determined that the deceased did not have testamentary capacity on 18 August 2017 when he gave instructions for the 2018 will or when he signed the 2018 will on 15 February 2018. It has also determined the applicant’s claims of knowledge and approval and undue influence in favour of the respondents. The parties had agreed that following such a determination the respondents would seek rectification of the 2012 will to include an option for the applicant to purchase Brewers at market value and that the 2012 will, as rectified, be admitted to probate.Factual backgroundThe Moloney family and brewers

Decision

Reasons for decision

The Court is satisfied that the instructions for the 2018 will were not the genuine instructions of the deceased and that the 2018 will was the product of undue influence of the applicant upon the deceased.Conclusion The deceased did not have testamentary capacity on 18 August 2017 when he gave instructions for the 2018 will or when he signed the 2018 will on 15 February 2018. Given this, it was unnecessary to decide the issues of knowledge and approval and undue influence. However, as these issues were before the Court, it was appropriate to determine them in any event. The determination as to the deceased’s lack of testamentary capacity means that the 2018 will should not be admitted to probate. In that event, the parties agreed that the respondents would seek rectification of the 2012 will so that it includes an option for the applicant to purchase Brewers at market value and that the 2012 will, as rectified, be admitted to probate.Orders The parties are to forward proposed orders to that effect on or before 5 August 2022. In the event that the parties are unable to agree on the costs of the proceeding, written submissions are to be filed by 9 September 2022.

Ratio Decidendi

Legal Principle Established

Dr Moore found the deceased a very independent, strong willed man who was not easily influenced right up until his death, and referenced the following matters to support her opinion:(a)In August 2010 the deceased suffered a myocardial infarct and was transferred to a hospital in Adelaide. Dr Moore recalled that prior to his ambulance transfer and while in the resuscitation room at the Maitland Hospital, in the presence of the applicant, discussing his advance care directive and the deceased said he wanted full resuscitation measures;(b)On his return from the hospital in Adelaide, the deceased had trouble sleeping and required a small dose of temazepam 5 mg at night, which in late 2011 was increased to 10mg. He walked daily and managed well at home on the farm, and continued to drive his car locally;(c)On 12 December 2013 Dr Moore organised a family meeting in the hospital to discuss possible care options for the deceased. From her memory, in addition to the deceased and herself, the applicant and two of the deceased’s daughters were present, as well as a registered nurse. Dr Moore’s recollection was that the deceased was very much in charge of the family group and it was only on her recommendation that he accepted that he required respite residential care, even though he was not pleased. The deceased was transferred to the Village on 20 December 2013, initially for respite care that became permanent on 20 February 2014;(d)Dr Moore’s experience is that going into residential care can be very challenging for some people, especially those who have been the patriarch of their family and a product of their generation. The deceased found it difficult and took some time to adjust. This was reflected in his observed behaviours, for example, finger tapping, being short with staff, not taking direction and sleep disturbance;(e)In February 2016 the deceased had suffered acute urinary retention, and needed a urinary catheter inserted. Blood tests revealed elevated prostate specific antigen levels that strongly indicated the presence of prostate cancer. After discussion with the visiting urologist, a diagnostic prostate biopsy was booked with him for early May 2016. The booking was cancelled because the deceased had a fall that resulted in a fractured right hip and left femur. He was transferred from the Village to Maitland Hospital and then for specialist orthopaedic treatment at the Royal Adelaide Hospital. He had a total right hip revision as well as an internal fixation of the left femur and returned to the village on 17 May 2016.Consideration — undue influence The respondents contend that the applicant unduly influenced the deceased in the lead up to and in the making of the 2018 will on the basis of the discussions between the applicant and the deceased over time and when the deceased was elderly, mentally and physically unwell and susceptible to influence. By 2013 the applicant knew what was in the 2012 will, namely, that he had no right to acquire Brewers. The deceased’s wills and evidence of his testamentary intentions from 2013 onwards show a stark contrast between the deceased’s position when the applicant was present and when he was not. This was compounded by Paul not recognising that it was inappropriate for the applicant to be present when Paul met with the deceased regarding his various wills.