Public Trustee v Eastwood Estate of Monaghan

[2006] NSWSC 819

CITATION:	Public Trustee v Eastwood Estate of Monaghan [2006] NSWSC 819
HEARING DATE(S):	8, 9, 10, 11 August 2006
JUDGMENT DATE :	11 August 2006
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Last will admitted to Probate
CATCHWORDS:	WILLS PROBATE AND ADMINISTRATION - question of testamentary capacity
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549
PARTIES:	Public Trustee (Plaintiff) Scott Matthew Eastwood (First Defendant) Lesley Eileen Davis (Second Defendant) Joanne Margaret Ward (Third Defendant)
FILE NUMBER(S):	SC 118948 of 2004
COUNSEL:	Mr J Kildea (Plaintiff) Mr A Bouris (Defendants)
SOLICITORS:	Bartier Perry (Plaintiff) Sydney Cove Law Group (Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

FRIDAY 11 AUGUST 2006

118948/04 THE PUBLIC TRUSTEE v SCOTT MATTHEW EASTWOOD & ORS THE ESTATE OF DOROTHY MAY MONAGHAN

JUDGMENT

1 HIS HONOUR: In this matter, so that there is no undue suspense, I say at the outset that I find the 2001 will to be valid. I will now give my reasons for that.

2 Dorothy May Monaghan died on 16 April 2004 aged 98 years. She had a will dated 5 November 2001 under which she appointed the Public Trustee sole executor. She gave the whole of her estate to her grandson, Brian John Lyster, but if he predeceased her, then to Elaine Shirley Lyster, the daughter of the deceased and the mother of Brian John Lyster. The Public Trustee propounds this 2001 will.

3 The defendants are the children of Dorothy Margaret Eastwood, the eldest child of the deceased. Mrs Eastwood died on 14 February 1998. The deceased had made a will dated 23 July 1996 which will also appointed the Public Trustee as executor. Under this will Mrs Monaghan gave one half of her estate to her daughter, Dorothy Eastwood, if she survived, and if she did not survive, then to her children, who are the defendants in this case. She gave the other one half of her to estate to Brian Lyster, and if he did not survive, then to his mother Elaine Lyster. The defendants by cross-claim propound that will.

4 I should say that there is no question as to the validity of the 1996 will. If the 2001 will were not a valid will, then a grant of probate in common form of the 1996 will would be made. The defendants' defences, raised as to the validity of the 2001 will, are lack of knowledge and approval and lack of testamentary capacity. The particulars given cover both defences. They are: (a) At the time the will was made, the deceased was 95 years old and suffered from dementia; (b) At that time, the deceased had been suffering from defective memory and understanding for approximately four years; (c) At that time, the deceased was incapable of understanding the nature of the act of execution of a will, the extent of the property of which she was disposing, and the claims to which she ought to give effect, and, (d) At that time, the deceased suffered from an insane delusion of the mind, namely, that her money and personal possessions had been stolen or taken by her daughter, Mrs Lyster, and that this delusion affected the dispositions made by her in the will dated 5 November 2001.

5 The deceased had a good relationship with both her daughters and with all four grandchildren. She may not have had such a good relationship with Mr Eastwood, the father of the defendants, but that is irrelevant. The deceased and her husband lived at 8 Shannon Parade, Berkeley Vale from 1968. Mr Monaghan died in 1989. In 1994 the deceased went to live with her daughter, Mrs Lyster, at 37 Lake Edge Avenue, Berkeley Vale, but in 2000, after a robbery had taken place at the deceased's home, the deceased and Mrs Lyster moved back to Shannon Parade, and lived there until the death of the deceased.

6 Mrs Lyster, who was born in 1927, was the full-time carer of her mother during her final years. On 5 August 1994, Mrs Monaghan had the first admission to the hospital relevant to this action. She was suffering, among other things, from acute anaemia, needing significant blood transfusions. She was in hospital for about nine or 10 days. She was prepared for a colonoscopy on 12 August 1994. A Mini Mental State Examination took place on that day. The score was 23 out of 30. A note beside this score, on page 477 of Exhibit 1 has the words "generally quite capable". The discharge summary notes this score. A copy of the summary went to Dr Bowers, the deceased's normal general practitioner, with a note "LMO - could you please organise dementia screening". Dr Bowers, who was the deceased's general practitioner, did not do so. He decided to wait and see how Mrs Monaghan progressed. He thought the anaemia might well have borne upon the test result. There was one other admission to hospital prior to the 2001 will, but that was for a cataract operation, and is really not relevant to this matter.

7 At the end of 1997, Mrs Lyster went to visit her son, who was living in Perth. Mrs Monaghan went to stay with her grandchild, Mrs Ward, as by then her sister, Mrs Eastwood, was quite ill. There is conflicting evidence about the trip to Perth. Mrs Lyster says she was called home early by her mother who was not happy where she was. Her son's evidence supports the evidence of his mother that she went home early and did not stay for the full 10 days which was expected. He said that after a few days he arranged for his mother to return to Sydney as soon as he could get an air ticket, but quite when that was is not established. Mrs Ward disputes this. She says that the visit was up to about 10 days as expected. It does not really matter a great deal, as the credit of Mrs Lyster is not a very important matter in this action. There was, however, a serious fall-out between Mrs Ward and Mrs Lyster when Mrs Ward picked Mrs Lyster up from the airport. If it were necessary to apportion blame for this, I will consider Mrs Lyster was more at fault. I accept Mrs Ward on this matter. It is more likely than not that the deceased, who was by this time was 94 years old, did not like the unfamiliar surrounding at the Ward home and made some sort of excuse to call her daughter home early.

8 Mrs Ward said at the time of the visit her grandmother was forgetful, disoriented in the home, had difficulty in dressing, had an unkempt appearance, and could not be engaged in sensible conversation. While there is, as is not surprising, some dispute about this, I accept that, at least from the point of view of Mrs Ward, her grandmother did have a somewhat unkempt appearance, was in old clothes, and would not have had the cared-for look that Mrs Ward may have wished. That, however, was not necessarily the view of the deceased's condition which would have been shared by Mrs Lyster, who would have, I think, looked at things at a somewhat different point of view.

9 Mr Lyster, the son of Elaine Lyster, was living in Western Australia from 1987, although he tried to come to New South Wales on three or four occasions each year. Mrs Davis was either overseas or in Victoria for most of the time. However, from 1997 on, and after the Perth visit, there can be no doubt that the defendants did not see their grandmother as much as they had before. Their evidence is that Mrs Elaine Lyster made visiting difficult. I find that visiting was not impossible, but I also find that Mrs Lyster was quite unhelpful and uncooperative about visiting. It is, I think, proper to say that this can have little bearing on the ultimate result of this case unless in some way it were shown that what would have otherwise been an affectionate view of the grandmother towards the grandchildren was somehow changed.

10 All of the family were present at Mrs Ward's home at Christmas in 1997. By that time, Mrs Eastwood was very sick. The defendants say that the deceased was removed, took more interest in the great-grandchildren than in them, or their mother, and was rather child-like in her behaviour. They also said the deceased seemed more interested in food than in their mother's house. Mr Lyster, who was there, denies this. He agreed that the deceased was withdrawn, but said that she was not unsociable and denied that she was behaving in a child-like way, although he accepted that she spent a lot of time with the great-grandchildren and looking at the presents.

11 Mrs Eastwood died in February 1998. Again, there is conflicting evidence as to the deceased's behaviour at the funeral. The defendants claim that the deceased did not appear to know that her daughter had died, or, if she did, she displayed no emotion about this. Mr Lyster says, to the contrary, that his grandmother was very disturbed about her daughter's death and cried most of the way home. She said on a number of occasions, and I accept this, "I shouldn't have to bury my own child". It is likely, I think, that both sides are trying to give true evidence about events at the funeral. There were a great many people at the funeral, or if not at the funeral at the wake after it. Their attention could not have been on Mrs Monaghan for the whole of that time. It is likely that she cried and it is likely that she controlled her emotions for a lot of the time. It must be remembered that she was a very old lady and old people's emotions are not necessarily always the same or under control, and that some old people think that they should not cry.

12 In July 2000 Mrs Lyster wrote out a letter of instruction to the Public Trustee for a new will for her mother. That change, according to what was written on the instruction of the deceased, was said to be necessary because of the death of Mrs Eastwood. The letter was signed by the deceased. I accept the evidence that by this time the arthritis, which the deceased had, made it difficult for her to write more than necessary and, generally speaking, to write more than her signature. The letter gives a clear instruction about leaving the whole estate to Brian Lyster and in the event of his death before Mrs Monaghan to his mother. It goes on to say: "As provided for by my grandmother in her last will and testament if my grandson Brian Lyster predeceases his mother (the sole surviving daughter of the marriage to Henry Joseph Monaghan)". This may seem a somewhat extraordinary explanation, but that is the explanation given, and Mrs Lyster said that she made a will in 1996, as I understand it, on the same day as her mother had made her earlier will. That evidence is a little bit difficult to understand and appears to conflict with the evidence of Mr Cullen, the present manager of the Public Trust Office at Gosford, but, nevertheless, that is the evidence which was given. That letter is dated 28 July 2000. It was, however, not sent, or certainly not received by the Public Trustee, until December. The explanation for this is said by Mrs Lyster to be that her mother decided that she would wait to see whether the Eastwood children made any contact with her, and she said that they had not, so she decided to go ahead with it.

13 Mr Cullen, the manager of the Public Trust Office at Gosford, said, when he received the letter, he had a conversation with Mrs Lyster and told her that he would not send out a will in the mail based on the letter, but would require to see the testatrix and take her separate instructions. He said, however, that he would prepare a will and Mrs Lyster said that she would take her mother in. Mr Cullen did prepare the will and he put it in a drawer in the office. He completed a part of the will instruction form maintained by the Public Trustee, insofar as is on page 1. He wrote down the name of the deceased, her address, her occupation, her date of birth, and the beneficiaries, with will instructions saying, "all to Brian GO to Elaine". GO obviously is gift over.

14 Some time later Mrs Lyster called Mr Cullen and said that it was difficult to take her mother in and asked if he would attend at the home at Shannon Parade. He did this with another employee from the Office at Gosford. Mr Cullen is experienced in preparing wills. He has been employed by the Public Trust Office for 25 years and involved in will-making or preparation for 22 years. He has been manager of the Gosford branch for some years. He said that he currently takes instructions for about 150 wills a year and, as I understand it, has been doing for some time.

15 He said that he attended on 5 November 2001 at 8 Shannon Parade, Berkeley Vale. He said that they were met by Mrs Lyster, who introduced them to the deceased. He said that he had a conversation with the deceased in the presence of Mrs Charlton, who was the lady from the Office with him, and with Mrs Lyster. He gave evidence in his affidavit and in oral evidence of his normal practice. He could not remember the conversation which he had with the deceased but he did remember being met by Mrs Lyster and remembered the deceased. He said that his usual practice was to take notes as to information provided and his observations of the testator in the relevant sections of the will information form. He said that he did not take instructions as to disposition of the estate in the presence of Mrs Lyster but he asked her to leave the room. He said that was his invariable practice when that stage of proceedings was reached. He said that he filled in those parts of the will information sheet which were relevant as to the conversation which proceeded. In other words, under "Assets", he filled in under the heading "Realty", 8 Shannon Parade, Berkeley Vale. He filled in the location of the deeds, and under "bank accounts" he put Commonwealth Bank. I should say that this is correct. It is not suggested that the deceased had any other assets. Under the Family Provision Act 1982 part of the form against a heading "name of possible claimant", he put four children in all. Underneath that, he put three predeceased. Then under "reasons for exclusion" which is really a somewhat inappropriate place, he put "Brian is Elaine's son". Underneath that he put, "all other grandchildren are well off and not in need of provision in my will". Under the heading "Funeral Details" he inserted the words, "burial at Woronora Cemetery". I should add that that is where the funeral took place.

16 He gave evidence as to his practice. He said that he would ascertain the family of the testator, ascertain the property, discuss with them possible claim amounts under the Family Provision Act. He said that there were occasions when he made notes as to capacity. If he had any doubt about it he would make a note. He said that in some cases he had refused to make wills because he considered that a proposed testator did not have capacity. There is a heading on the form under "testamentary capacity" which has three questions: Understood nature of will? Knew assets and value of assets? Understood FPA (if applicable)?. Against each of these he put the answer yes. There must be at least some little doubt about this because there is no suggestion anywhere that the deceased was asked or said anything about the value of the house at Berkeley Vale.

17 Mrs Lyster in her affidavit at paragraph 35, which I will not set out, gave an account of what she said was the conversation between Mr Cullen and her mother prior to the time when they discussed who was to benefit under the will. That conversation is so detailed that perhaps one must have some doubt about it. Nevertheless, it does support Mr Cullen's evidence as to his normal practice what would have happened on that day. In general, the questions and answers related to the name of the deceased, her husband's name, when he died, the address of the house, numbers of children that the deceased had, husband's occupation, how long she had lived at Berkeley Vale, whether she owned the house, whether she had any debts, whether she looked after herself.

18 In oral evidence Mrs Lyster was asked to give an account of what happened at that time without looking at her affidavit. It is correct to say that she did not give the same detail in oral evidence as she had in the affidavit, but I do not consider too much attention should be given to that. She did say Mr Cullen asked her mother how many children she had and asked her their names, and stated that she was the only one living. She said at the moment she could remember nothing else.

19 As a result of that evidence, I do not consider I should find that the evidence in paragraph 35 is not true and it does coincide at least with the form as filled in by Mr Cullen. It was not put to Mrs Lyster it was untrue.

20 Mr Cullen said that he told the deceased that he had prepared a will based on her instructions and that he then said to her: "Are you able to read the will?", to which she replied: "Yes". He said she then appeared to read it and Mrs Monaghan then said "Yes, that is what I want", to which he said: "Please sign the will here in your normal signature". Once again there is some doubt about this evidence because Mr Cullen at one stage said that he was giving evidence based on his general practice. In this case he could not have been giving that evidence based on his general practice because he had the letter written by Mrs Lyster, signed by the deceased, as a result of which he had prepared the will and taken it with him. Nevertheless, I accept his evidence that he gave the will to the deceased to read and that she read it and said she was satisfied with it. For what it is worth, I repeat again, that in my view people who prepare wills for an elderly person and who then go to the house of the elderly person to have the will signed are much better advised to read the will and explain it rather than to give it to the person to read. That does not mean in this case I should find that the deceased did not know the contents of the will. If she did have capacity, in my view she did know and approve of its contents. I should add that my views on the desirability of reading and explaining wills is even more to the point for what is said to be the short-form plain English will now adopted by the Public Trustee. That short form in my view is not necessarily readily comprehendible on first reading.

21 Mr Eastwood did not see the deceased between his mother's death in 1998 and the deceased’s admission to hospital in September 2003. At that last time she was seriously ill. Mrs Ward probably saw her on two or three occasions during that time. Mrs Davis may have seen her once during that time, but that is all.

22 By September 2003 there had been a serious deterioration in the condition of the deceased. I am satisfied that she had advanced dementia by then. The Mini Mental State Examination carried out at that time while she was in hospital may have shown a score of 3 out of 30 or probably that it was not possible to carry out the test. It does not really matter which. Dr Death, a specialist geriatrician, noted her problems were dementia, gait disorder, heart failure, and anaemia. I am satisfied by that time the deceased would not have had testamentary capacity.

23 It is necessary now to deal briefly with the medical evidence. Dr Bowers, who saw the deceased on nine occasions, between her admission to hospital in 1994 until 2001, the date of the will. He retired from practice in 2002. His notes are in evidence. It is correct to say, as counsel for the defendant says, that he made no notes as to her cognitive capacity. He said, however, that he was on the lookout for this and would have made notes if there was anything relevant to note. In other words, he said that there was nothing to indicate dementia.

24 While the defendants' evidence does of course cast some doubt about this, as to the events of Christmas 1997 and at the funeral of Mrs Eastwood, I find the evidence of Dr Bowers quite persuasive. I thought that he was endeavouring to give a true picture. His evidence was that he always took histories from patients not from their carers. The evidence was to the general effect that the deceased was able to give a proper account for herself and whatever complaints she had were relevant to what he found on examination. In my view, the evidence of treating general practitioners in cases such as this is usually of far more assistance than expert reports of doctors or neuro-psychologists who have not seen the deceased. That does not mean that their evidence cannot be of use. It is not just as valuable as other evidence is.

25 Dr Williams is a specialist psychiatrist called by the plaintiff. He did not ever see the deceased. It is fair to say that I do not consider his evidence particularly persuasive, although I accept his evidence that notes of confusion in various places in hospital notes which maybe made by nursing staff and maybe made by physiotherapists and maybe made at times by people with more qualifications do not necessarily carry them out and certainly do not establish dementia. However, the evidence of Dr Williams, of the conclusion which should be drawn from the Mini Mental State Examination in 1994, as not establishing dementia or even cognitive impairment I think does assist.

26 Dr Williams, like Dr Rawling, to whom I will shortly come, as is inevitable in these cases, had to give his evidence not only to what appeared in the hospital notes and records but on assumed facts which he took from affidavit evidence of the witnesses in this case. Insofar as, therefore, he relied on evidence which he said was given by Mr Cullen as to what happened on a particular date, his evidence is not very persuasive, and his evidence as to assumed facts where some of these were contested must be looked at in light of the findings on those facts. His view was that the deceased did have capacity; that, of course, is finally a question for the court.

27 Dr Rawling is a well-known neuro-psychologist called by the defendant: his evidence probably brought about the decision of the defendants to contest these proceedings. His decision that the deceased lacked capacity is largely based upon the Mini Mental State Examination results in September 1994. He did not even see the actual test results, nor did he see which questions were answered correctly or incorrectly. He did, however, see these in the witness box but that made little difference to his views. He said that a score of 21 or below indicated dementia and that a score of 23 out of 30 was borderline. He thought that considering the evidence of the Eastwood defendants at the time when the deceased was staying with Mrs Ward, her behaviour at Christmas in 1997 and at the funeral and after the funeral of Mrs Eastwood supported a finding of dementia in 1994 of the Alzheimer's variety. He said that Alzheimer's disease had an inevitable progression and that as the deceased was clearly demented in 2003, this would indicate that more likely than not she did not have testamentary capacity in 2001.

28 As I have said, the difficulty in that conclusion is that it was really entirely dependent upon a finding of commencement of dementia and probably of the Alzheimer's type in 1994. I do not accept that to be the position. I accept the evidence of Dr Bowers as to this. It is important to note that while no doubt these tests take into account the age of the person doing the tests, they do not necessarily take into account the fact that the deceased had been admitted to hospital with very serious anaemia and she had been subject to an unpleasant preparation for an investigation either on the same day or the day before. I point out that one of the questions on which the deceased failed was what floor she was on when she was in a hospital. I consider with Dr Williams that that was not a very serious failure.

29 The law in this matter is set out in Banks v Goodfellow (1870) LR 5 QB 549 and I will not go into it in any detail. It requires that a testator be aware of his or her actions in making a will, knows the seriousness of what is being done, has a knowledge of his or her property and its extent, and understands those persons entitled to consideration in the disposition of his or her estate and an ability to weigh up the various claims. It is important to understand that this test does not demand fairness. Freedom of testation has nothing to do with fairness. It requires an ability to understand what is being done, what is being disposed of, and the people who have some claim in the disposition. I find that the deceased had the necessary ability. It seems to me to have been established that she was clearly aware that she was making a will and what a will was. She knew that she owned a house. She knew that she had bank accounts with the Commonwealth Bank. Apart from jewellery, if she had any, it seems she had little else apart perhaps from some furniture. It is not in my view necessary that a deceased should know the value of the home which she owns. It is perhaps more important that she knows where the deeds to the home are which according to the notes taken by Mr Cullen, she did know. There is no doubt that she knew who her only daughter surviving was. There is no doubt that she knew who her grandchildren were. There seemed at least to be a suggestion that she thought that her daughter might spend money on poker machines giving a reason to think that her grandson was a better person to look after the funds for the purpose of providing for his mother than his mother in looking after the funds to provide for herself. In any event, it is perfectly clear that she did not overlook the Eastwood grandchildren. There is no evidence that what she told Mr Cullen about those people being well off was incorrect.

30 Lastly, it is necessary for me to turn briefly to the question of delusion, that being one of the matters as to lack of testamentary capacity given in the particulars to which I have referred. In her affidavit sworn on 2 December 2004 Mrs Ward gave some evidence about an occasion when the deceased opened her handbag, took out a pile of papers with handwritten messages on them, most of which were various IOUs or various amounts signed by Mrs Elaine Lyster. Mrs Ward said that she asked her grandmother about these, and the deceased said Elaine borrowed this money to play the poker machines. According to Mrs Lyster that evidence is generally correct in that she and her mother borrowed money from each other from time to time which they put in IOUs. She paid her mother back. This does not show delusion, and I do not think it is relied on any longer. Mrs Ward also said that, after her grandfather died, the deceased had told her that she had only $85,000 left to her name and that she told her on another occasion, this not appearing in the affidavit but elicited in oral evidence, that "Elaine has taken the lot and put it through the poker machines. I have no cash left." She also said, "Elaine has my bank book." This latter statement appears to be true, as Elaine did look after her banking for her but did not sign the withdrawal forms. The other statement may well be true, too, because it may have been an occasion at the club when all the money that the deceased had on that day had been put through the poker machines and there was none left. Whatever the position about these money matters is, the simple fact is that none of them establish insane delusion. Some of the statements were true and another statement about Mrs Lyster having taken the jewellery and money from the deceased at the time when the deceased was in hospital is also true. Mrs Lyster said that is what she did. If it were not true, then it would not have established an insane delusion being a false view from which the deceased could not be shifted. The evidence does not go so far. In any event, it is clear that it does not establish that if there were some delusion it bore importance on the dispositions in the will. Mrs Lyster was, after all, not a direct beneficiary under the will which the defendants seek to prove.

31 I find the 2001 will valid. Order that probate in solemn form of the will of Dorothy May Monaghan dated 5 November 2001 be granted to the Public Trustee. Order the cross-claim be dismissed.

32 So far as costs are concerned, in my view it is clear that this case does not fall within the exception to the general rule that an unsuccessful party's costs can be paid out of the estate in circumstances where it was the conduct of the deceased which brought about the litigation: that could never be said to have been the position in this particular case. The deceased did not give a false impression to anybody about what she intended to do, she did not confuse her affairs, she did not engage in inappropriate or misleading behaviour; that claim could not be made out. It is the second exception which has exercised my mind. In certain circumstances the court can, if you like, leave the parties to their own costs rather than award costs to the successful plaintiff where the court is satisfied that the circumstances of the case were such as to justify an examination of the facts to see whether or not the will was a valid will.

33 In my view, having regard to the evidence which the defendants had from Mr Rawling, and having regard, at least to some of the matters referred to in the hospital notes, and having regard to their evidence of the condition of the deceased, which to a large extent I have accepted, I consider that this case does fall within what is usually called the second exception, and, therefore, the appropriate order should be made that the costs of the plaintiff on the indemnity basis be paid out of the estate of the deceased, and that there be no order as to the costs of the defendants.

34 Order the costs of the plaintiff on the indemnity basis be paid out of the estate. No order as to defendants' costs. The exhibits other than the wills may be returned.

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