SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
In the Estate of O'DEA (DECEASED)
O’DEA v MCINERNEY & ORS
[2024] SASC 110
Judgment of the Honourable Justice McIntyre
SUCCESSION - MAKING OF A WILL - EXECUTION - GENERALLY - PRESUMPTION AND EVIDENCE OF DUE EXECUTION
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS
The applicant, Peter Francis O’Dea applied to this Court to determine which, if any, of four wills of his relation Ms Shirley Margaret O’Dea should be admitted to probate. These wills are dated 25 January 2019, 26 December 2018, 15 February 2018 and 30 March 2016. Ms O’Dea died in October 2020 at the age of 96.
On the face of the documents, each will complies with s 8 of the Wills Act 1936 (SA). They were all prepared by a solicitor experienced in drafting wills. They all bear the signature of Ms O’Dea and two witnesses. However, the applicant who is the executor in each of the four wills was uncertain as to which of the wills was the last valid will of Ms O’Dea due to a number of circumstances including:
•Concerns about Ms O’Dea’s capacity arising from information from her General Practitioner, an email from a community health nurse to the GP and an ACAT assessment.
•The fact that there had been a significant change to the December 2018 and January 2019 wills in favour of the first respondent compared to Ms O’Dea’s previous wills.
•Whether Ms O’Dea had knowledge of the contents of the January 2019 will when it was executed.
•Conversations that had apparently occurred between the first respondent and Ms O’Dea in August 2018; and
•Conversations that the applicant had with the first respondent in 2015 and on 5 July 2020.
The applicant takes no position as to which, if any, of the four wills should be admitted.
The first respondent James Vincent McInerney seeks that the 25 January 2019 will or, in the alternative, the 26 December 2018 will, be admitted to probate. The second respondent, the Catholic Church Endowment Society Incorporated, and third respondent, Dr Harold Lane, contend that Ms O’Dea did not have testamentary capacity at the time of the execution of the 25 January 2019 will or the 26 December 2018 will, and that the 15 February 2018 will should be admitted to probate. Nobody contends that the will incorrectly dated 30 March 2016, but executed on 30 March 2017, should be admitted to probate. The evidence established that this document did not represent the testamentary intentions of Ms O’Dea as communicated to her solicitor.
Ms O’Dea’s estate was substantial. The main asset comprised six parcels of farmland around Riverton South Australia. The first respondent is the major beneficiary of the farmland in the January 2019 and December 2018 wills. The second respondent is the major beneficiary of the farmland in the earlier two wills. The third respondent is to receive…
Continue reading O'Dea v McInerney
Sign in free to access the full text
Details
- AGLC
- O'Dea v McInerney [2024] SASC 110
- Case
- [2024] SASC 110
- Decision Date
CaseChat Overview and Summary
The case of O'Dea v McInerney involved the examination of the validity of three wills executed by Shirley O'Dea, who passed away in October 2020. The primary legal issues centred around the testamentary capacity of Shirley O'Dea at the time of executing the wills, specifically the wills dated February 2018, December 2018, and January 2019. Additionally, the court had to determine whether Shirley O'Dea had the requisite knowledge and approval of the contents of these wills.
The court found that Shirley O'Dea lacked testamentary capacity when she executed the January 2019 and December 2018 wills, primarily due to her advanced age, significant cognitive impairment, and the lack of a cogent explanation for the substantial changes to her longstanding testamentary intentions. The court was particularly influenced by the absence of evidence that Shirley O'Dea had reflected upon the wills or received independent advice. Moreover, the active involvement of Jim McInerney, the beneficiary of the changes, in the preparation and execution of these wills raised serious doubts about their validity. The February 2018 will, however, was deemed valid as it did not present the same issues of capacity and rational disposition. Consequently, the court declared the January 2019 and December 2018 wills invalid and ordered that the February 2018 will be admitted to probate.
The court’s reasoning was grounded in the principles of testamentary capacity, the requirement for a will to be rational, and the need for evidence of due execution. The court emphasised the importance of a testator’s mental state and the necessity for clear evidence of their understanding and approval of the will's contents. The evidence presented, including medical records and witness testimonies, played a crucial role in determining the validity of the wills. The court’s decision was informed by a careful consideration of the circumstances surrounding the execution of the wills and the changes in Shirley O'Dea's testamentary intentions.
The court found that Shirley O'Dea lacked testamentary capacity when she executed the January 2019 and December 2018 wills, primarily due to her advanced age, significant cognitive impairment, and the lack of a cogent explanation for the substantial changes to her longstanding testamentary intentions. The court was particularly influenced by the absence of evidence that Shirley O'Dea had reflected upon the wills or received independent advice. Moreover, the active involvement of Jim McInerney, the beneficiary of the changes, in the preparation and execution of these wills raised serious doubts about their validity. The February 2018 will, however, was deemed valid as it did not present the same issues of capacity and rational disposition. Consequently, the court declared the January 2019 and December 2018 wills invalid and ordered that the February 2018 will be admitted to probate.
The court’s reasoning was grounded in the principles of testamentary capacity, the requirement for a will to be rational, and the need for evidence of due execution. The court emphasised the importance of a testator’s mental state and the necessity for clear evidence of their understanding and approval of the will's contents. The evidence presented, including medical records and witness testimonies, played a crucial role in determining the validity of the wills. The court’s decision was informed by a careful consideration of the circumstances surrounding the execution of the wills and the changes in Shirley O'Dea's testamentary intentions.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons that I now deliver:·I am not satisfied that Shirley O’Dea had testamentary capacity at the time she provided instructions for and executed the January 2019 will or the December 2018 will. I declare both invalid. ·I am satisfied that the February 2018 will should be admitted to probate.·I will hear the parties as to the form of the orders. Background Shirley O’Dea was born on 10 September 1924 and died on 5 October 2020. She was 96 years of age. She was single and had no children. Shirley O’Dea lived her entire life in the mid-North of South Australia. She was born and raised in Hamley Bridge. Between 2007 to 2011 she lived in Riverton and, between 2011 and 2014 she lived in a house in Balaklava. In 2014 Shirley O’Dea moved into an independent living unit at Mill Court in Balaklava in 2014. She moved into the adjacent Balaklava Nursing Home in January 2019 where she remained until her death. Shirley O’Dea came from a farming family. She had three sisters who predeceased her. She was particularly close to her sister Phyllis O’Dea who she lived with until Phyllis O’Dea’s death in 2009. Shirley O’Dea was passionate about her family and about farming. She was a devout Catholic. Shirley O’Dea was also greatly interested in horse racing and, in particular, the Balaklava Racing Club. Shirley O’Dea, and her sister Phyllis O’Dea (“the O’Dea sisters”), regularly attended race meetings at Balaklava. The O’Dea sisters sponsored a race for prize money in the name of the O’Dea Family, At the time of her death, Shirley O’Dea owned farmland around Riverton South Australia that she inherited from her family. Her estate is substantial. It was valued at approximately $3,855,000 as at the date of her death. This comprised:·Six parcels of farming land. Section 405, 431, 480, 270, 375 and 407 in the Hundred of Alma valued at $3,480,000. The land has increased in value and is now valued at approximately $6,250,000.[2]·Bank accounts with balances of approximately $25,000; and ·Residential accommodation bond with the Balaklava Aged Care Community Homes of $350,000. [2] Exhibit R2 59. In addition, there is lease income for some of the farmland which is being received and held in trust by Jack O’Dea as executor. Shirley O’Dea made many wills over the course of her life, frequently changing pecuniary legacies to various beneficiaries. The bequest of the farming land remained largely unchanged from 2001 until the December 2018 will. The disposition of the land in the propounded wills is as follows: ·March 2017 will: The Church was the devisee of sections 405, 480 and 270 and Dr Lane[3] was the devisee of section 407. ·February 2018 will: The Church was the devisee of sections 405, 480 and 270 and Dr Lane was the devisee of section 407. ·December 2018 will: Jim McInerney was the devisee of sections 405, 407, 480 and 270. Section 407 was the subject of a life interest to Dr Lane with the reversion to go to Jim McInerney. ·January 2019 will: Jim McInerney was the devisee of sections 405, 407, 480 and 270. Section 407 was the subject of a life interest to Dr Lane with the reversion to go to Jim McInerney. ·The balance of the farming land was left jointly to Jack O’Dea and his brother Anthony O’Dea (“the O’Dea brothers”), in each of the four wills. [3] Dr Lane was the devisee with his late wife Mrs Peggy Lane in all four wills. For simplicity I will refer to this bequest as his alone.
Evidence
Evidence Before The Court
Accordingly, Shirley O’Dea evidenced a long held commitment in each of her wills to make the same gifts of her farmland to the Church and to the Lanes. The substantive change in the testamentary dispositions made by Shirley O’Dea occurred in the December 2018 and January 2019 wills. Evidence of the PartiesJack O’Dea – the applicant Jack O’Dea provided three affidavits dated 17 June 2021, 18 July 2023 and 3 October 2023.[39] He also gave evidence in a careful, coherent and forthright manner. I accept his evidence. Jack O’Dea could be described as a disinterested party in the sense that his entitlement does not change, and he does not take any fixed position concerning which will ought to be admitted to probate. [39] Exhibit A 6; Exhibit A 7; Exhibit A 8. Jack O’Dea’s father was a second cousin of Shirley O’Dea. Jack O’Dea is a retired accountant with a Bachelor of Arts majoring in Economics and a Bachelor of Accounting. He commenced working as an accountant in 1976 and continued until his retirement in June 2018. From around 1990, when he was working in Riverton, he commenced providing accounting services to the O’Dea sisters. Generally, the work was confined to preparing taxation returns for the farming business. Prior to Ms Phyllis O’Dea’s death he dealt mainly with her and thereafter with Shirley O’Dea. The O’Dea sisters kept handwritten records, or cheque summaries, of the cheques they had written through the year. They would forward these cheque summaries to Jack O’Dea together with bank account statements at the end of each financial year. He would then have records of the income and expenses for the farming business which he used to prepare their taxation returns. Shirley O’Dea prepared the cheque summaries after Ms Phyllis O’Dea’s death until September 2017. Jack O’Dea says that he was contacted by Shirley O’Dea’s solicitor, David Evans, a number of years ago to see if he was prepared to act as Shirley O’Dea’s executor with David Evans. Jack O’Dea agreed. From that time on he assumed he was Shirley O’Dea’s executor but did not know about the contents of her will. He did not see any of Shirley O’Dea’s wills until after her death when Mellor Olsson sent him a copy of the January 2019 will via email on 6 October 2020. Jack O’Dea was contacted by the nursing home shortly after Shirley O’Dea’s death and told that he would have to clear her possessions out of her room. When he did so he found an envelope in her cupboard that contained all the documents relating to her will that he found in her room. This included:[40]·The original February 2018 will;·Copies of wills dated 25 January 2019, 15 February 2018 and 30 March 2016 wills together with covering correspondence and accounts from Mellor Olsson; and·Unsigned draft wills dated 2017 and 24 November 2015.[40] Exhibit A 6. In view of the matters outlined in his affidavit Jack O’Dea was uncertain which of the various wills represented Shirley O’Dea’s last will and testament and accordingly he brought the present application.
Decision
Reasons for decision
Jim McInerney took possession of the will after execution and sent it to Mellor Olsson in the envelope provided by Gregory Anderson during his meeting with Shirley O’Dea on 20 December 2018. I do not know who wrote the various notations on the will. I find that they were on the will at the time of execution given Jim McInerney took possession of the will immediately after execution. Conclusion - legal onus I find that there is evidence of due execution of the February 2018, December 2018, and January 2019 wills notwithstanding some unsatisfactory aspects to this evidence in relation to the execution of the December 2018 will outlined above. I put the March 2017 will to one side because no party contends that this will represents the testamentary intentions of Shirley O’Dea as communicated to Gregory Anderson. The legal onus of proving a will lies with the party propounding it both as to testamentary capacity and knowledge and approval. Jack O’Dea, the executor, takes a neutral position and accordingly the burden falls on Jim McInerney in relation to the December 2018 and January 2019 wills and on the Church and Dr Lane in relation to the February 2018 will. Testamentary CapacityIs there a presumption as to testamentary capacity? As the February 2018, December 2018 and January 2019 wills were duly executed the question then arises whether they are rational on their face. The Church contends, relying upon Hayward v Moloney,[301] that the December 2018 and January 2019 wills are not given the substantial change to Shirley O’Dea’s longstanding testamentary intentions. [301] Moloney at [289]. A substantial change, of itself, does not indicate that the wills are not rational. In the circumstances of this case however there is no proper explanation of the reasons for the change. There is a serious concern that the beneficiary of those changes, Jim McInerney, was actively involved in the changes to the extent that he was present when instructions were given and when both wills were executed. I conclude that the wills are not rational on their face. There is no similar issue with the February 2018 will.Has the presumption as to testamentary capacity been rebutted by doubt? Even if I was wrong to find that the December 2018 and January 2019 wills were not rational, I consider that the presumption as to testamentary capacity in respect of both has been rebutted by doubt due to a number of factors. Specifically:·the radical changes to Shirley O’Dea’s long adhered to testamentary dispositions of her land, the lack of cogent evidence as to the reasons for those changes and the absence of any evidence that Shirley O’Dea weighed the competing claims and made a deliberate choice to change her wills. ·Shirley O’Dea’s advanced age of 94 and the fact that she was about to, and in the case of the January 2019 will, had just entered a nursing home.·The evidence of the observations in the medical and nursing records and the oral evidence of Jack O’Dea, Dr Lane, Sonja Gangell and Kirsty Ingram including forgetfulness, inability to look after herself, inability to undertake financial tasks.·Shirley O’Dea’s significant vision impairment and absence of evidence that she read the wills or had the wills read to her.·The evidence that, at the time instructions were provided and at the time of execution of the wills Shirley O’Dea was physically unwell including with leg ulcers requiring regular nursing treatment. ·The medical evidence that Shirley O’Dea was suffering mild brain disease and mild cognitive impairment.·The lack of evidence about whether Shirley O’Dea had the opportunity to reflect upon her wills and whether she received independent advice.·Jim McInerney’s active involvement in the preparation and execution of the two wills which represented a significant change from long held testamentary intentions in his favour.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.