Queensland Art Gallery Board of Trustees v Henderson Trout (a Firm)
[1998] QSC 250
•10 November 1998
IN THE SUPREME COURT
OF QUEENSLAND No. 1750 of 1992
Brisbane
[Queensland Art Gallery Board of Trustees v Henderson Trout (a firm)]
BETWEEN:
QUEENSLAND ART GALLERY BOARD OF TRUSTEES
Plaintiff
AND:
HENDERSON TROUT (A FIRM)
Defendant
CATCHWORDS: NEGLIGENCE - professional negligence - duty of care owed by defendant firm of solicitors to testatrix in preparation and engrossment of will for execution
Duty of care - nature and scope of duty - role of solicitors in obtaining instructions from testatrix in relation to preparation and engrossment of will - whether co-extensive duty owed to plaintiff as potential beneficiary
Breach of duty - whether testatrix had finalised testamentary intention - whether testatrix instructed solicitors to engross will for execution - whether delay by solicitors justified
Causation - whether testatrix had opportunity to prevent further delay or otherwise expedite execution of will - termination of retainer by client due to solicitors’ delay - whether such termination was supervening factor
Damages - measure of loss and damage - prospective use of property by plaintiff - whether interest appropriate.
Anns v. Merton London Borough Council [1978] AC 728
Bennett v. Minister of Community Welfare (1992) 176 CLR 408
Butler v. Egg & Egg Pulp Marketing Board (1966) 114 CLR 185
Carradine Properties Ltd v. D J Freeman and Company (a firm) (1982) 5 Const LJ 267
Gartside v. Sheffield, Young & Ellis [1983] NZLR 37
Haines v. Bendall (1991) 172 CLR 60
Hill v. Van Erp (1997) 188 CLR 159
March v. E & M H Stramare Pty Ltd (1991) 171 CLR 506
McDonald v. McDonald 41 NE 336 (1895)
Medlin v. State Government Insurance Commission (1995) 182 CLR 1
Midland Bank Trust Co Ltd v. Hett Stubbs & Kemp [1979] Ch 384
Ritz Hotel Ltd v. Charles of the Ritz Ltd (1988) 15 NSWLR 158
Ross v. Caunters [1980] Ch 297
Rybak v. Senneh Pty Ltd (1997) ANZ Conv R 74
Sutherland Shire Council v. Heyman [1985] 157 CLR 424
Walton v. R (1989) 166 CLR 283 at 289
White v. Jones [1995] 2 AC 207
Counsel:Mr R Hanson QC, with him Mr P O’Shea for the plaintiff
Mr P Keane QC, with him Mr S Doyle SC and Mr D Clothier for the defendant
Solicitors:Gadens for the plaintiff
Corrs Chambers Westgarth for the defendant
Hearing Dates: 21 to 25 September 1998
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 10 November 1998
Background
1 Peggy Trout died unexpectedly on 24 May, 1988, two months short of her seventy-second birthday. Her husband, Sir Leon Trout, had died ten years earlier. Both Sir Leon and Lady Trout were dedicated art collectors who had turned their spacious home, Everton House, into “a veritable depository for a large and significant collection of paintings, sculpture and decorative arts” gathered over more than half a century. The collection (which passed in its entirety to Lady Trout upon her husband’s death) was the most important private collection ever put together in Queensland. In both scope and size it was one of the finest in Australia.
2 Lady Trout made her last will on 24 October, 1986. Apart from some pecuniary legacies and gifts of personalty, her estate was to be converted into cash and divided equally between five charities well known for their public benevolence. When sold, the works of art realised $11,650,944.00.
3 The plaintiff is a corporation which represents the State of Queensland and is charged with the responsibility of managing and maintaining the Queensland Art Gallery (“the gallery”). It is empowered by its statute to acquire, own and dispose of property both real and personal.
4 Sir Leon Trout had been a solicitor and the senior partner of a firm, Messrs Trout Bernays & Tingle. In about 1983 the firm merged with another firm, Messrs Henderson & Leahy, to become the defendant, Messrs Henderson Trout. On his death Sir Leon Trout’s estate would have been entitled to the payment of a modest amount from the surviving partners of Trout Bernays & Tingle. The money was not paid. Instead the partners agreed to provide Lady Trout with legal, accounting, financial and secretarial services, free of charge, for the rest of her life. This responsibility fell initially on Mr Vann and after his death in about 1985 upon Mr Deeb.
5 By these proceedings the plaintiff asserts that the defendant’s negligence prevented Lady Trout making a later will by which her collection would have passed to it. Damages are sought as compensation for the deprivation of the collection. The plaintiff thus claims a remedy which, as Lord Nolan noted ([1995] 2 AC at 293), produces the curious asymmetry of leaving undisturbed the charitable dispositions of Lady Trout’s will while effectively augmenting her estate by the monetary value of the collection which is awarded to the plaintiff at the expense of the defendant.
6 Not only were Sir Leon and Lady Trout discerning and avid collectors, they were also generous benefactors to the plaintiff. He had been chairman of trustees of the Gallery. She, too, was briefly a trustee. Over a course of years notable paintings of considerable value were given to the gallery. Lady Trout continued to make substantial gifts after her husband died. Sometime, probably between July, 1980 and December, 1982, Lady Trout’s affections for the gallery turned cold. The reasons for her disaffection were, tactfully, not explored in evidence. Between December, 1982 and October, 1986, Lady Trout signed no fewer than six wills, none of which made a bequest in favour of the gallery. By 1987 Lady Trout was showing signs of a change of heart.
7 It is unseemly to be critical of the dead and courts ought always to be careful not to express opinions which might be hurtful to persons who are not represented and who have no opportunity to answer criticism. At the heart of this case, though, is whether Lady Trout did intend to leave the plaintiff her collection and, if she did, whether the defendant’s acts or omissions operated so as to defeat her intention. The resolution of these issues necessarily involves a close examination of what Lady Trout said and did in order to discover whether she truly intended to make a gift to the gallery and whether she instructed the defendant to give effect to such a gift. The court cannot avoid passing comment on Lady Trout’s conduct as it affects the issues between the parties. It is clear from the evidence of those who knew her that she would have been both mortified and greatly indignant that she should be the subject of such scrutiny. I am conscious that nothing beyond what is strictly necessary should be said about her.
Admissibility of Statements
8 It is essential for the plaintiff’s success in this suit for it to prove that prior to her death Lady Trout had formed the definite intention of making a testamentary gift of her art collection to the plaintiff. Unless the evidence establishes such a “settled intention” or a “firm, clear, intention” to make such a gift the plaintiff’s case will fail at the threshold. The plaintiff seeks to discharge this evidentiary burden by leading evidence of statements made by Lady Trout about what she intended to happen to her collection.
9 The evidence of such statements, that she intended to make a gift of her artworks to the plaintiff and that her desire to give effect to that intention was being frustrated by Mr Deeb, is admissible as original evidence of her state of mind or of facts from which her state of mind might be inferred (Walton v. R (1989) 166 CLR 283 at 289) or is admissible as an exception to the rule against hearsay which allows such evidence to prove a state of mind where that is relevant. (Ritz Hotel Ltd v. Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 179.)
10 The assertions made by Lady Trout that the defendant, or Mr Deeb, disobeyed her express instructions in relation to her will; or that they frustrated her attempts to make a new will; or statements to the like effect, are admitted only for the purpose of allowing an inference to be drawn that Lady Trout did, in fact, intend to benefit the gallery in her will. The fact that she complained that she was obstructed in making a will in favour of the plaintiff might support an inference that she did wish to make such a will.
11 The statements are not admissible as the slightest evidence that the defendant or Mr Deeb delayed the preparation of the will or sought to obstruct Lady Trout’s instructions.
12 It will emerge that the particularity of the complaints against the defendant is wrong and must have been known by Lady Trout to be wrong. The discrepancy between fact and the substance of the complaints is a matter which affects the inference for which the plaintiff contends.
Facts
13 Between March, 1975 and July, 1993 Mrs MacAulay was the education officer and then the curator at the gallery. She had regular contact with Lady Trout who informed her, probably in 1983, that she had altered her will so as to leave nothing to the gallery. Sometime later, Mrs MacAulay thinks it was in 1987, Lady Trout rang her. A severe thunderstorm had passed over Brisbane and Lady Trout was agitated because her house had suffered some damage. She was concerned for her collection and told Mrs MacAulay that she “was being a selfish old woman by not giving those works to the gallery for the benefit of the people of Queensland. She was going to change her will to put that into effect. She had all these valuable works there that she realised were at risk as a consequence of the storm”.
14 On subsequent occasions, between late 1987 and about April, 1988, Lady Trout repeated to Mrs MacAulay her intention to leave her works of art to the gallery. On at least some of these occasions Lady Trout complained to Mrs MacAulay that her solicitors were taking too long to prepare a will and that they presented her with draft wills which did not express her instructions.
15 In May, 1987 Mr Hall was appointed director of the gallery. Prior to his appointment he knew of the Trout collection and that it was, in his words, “one of the most extraordinary private collections owned by two people that had had a very long and distinguished association with the gallery”. Mr Hall met Lady Trout soon after his arrival and became, if not a friend, an acquaintance on cordial terms. At her request he assisted Lady Trout to select the painting which she gave annually to the gallery. Mr Hall was aware that Lady Trout’s then current will did not bequeath the collection to the gallery but he was aware of her (and her husband’s) earlier association with the gallery and believed that she may eventually dispose of it by will to the gallery. Mr Hall, very properly, encouraged her to that opinion.
16 Between May and November, 1987 Lady Trout told Mr Hall that she intended to bequeath her collection to the gallery. Shortly before 25 November, 1987 Lady Trout asked Mr Hall to arrange for a photographer to attend her home to make a photographic record of her decorative art to be included as a testamentary gift to the gallery. There was no point, she told Mr Hall, in having her paintings photographed because the gallery already possessed sufficient records of them. On 25 November, 1987 Mr Hall and a photographer went to Everton House where she identified her works of decorative art that she said she intended to give the gallery. These were photographed systematically. She confirmed with Mr Hall that her intention was to leave her paintings as well as the other objets d’art to the gallery.
17 As well as telling Mr Hall that she intended to benefit the gallery by her will, Lady Trout complained to him that she was experiencing grave difficulty in having her intentions put into effect. Early in September, 1987 her comments to this effect became “increasingly agitated” as she remarked that “she was unable to get the new will prepared”. She mentioned Mr Deeb by name and spoke of him in strong and deprecating terms. The essence of her complaint was that Mr Deeb would not prepare a will. Her complaints lasted until she died.
18 Mr Bacon, a well known art dealer and gallery owner, knew both Sir Leon and Lady Trout. After Sir Leon’s death he extended his friendship to Lady Trout who was lonely. Their friendship became close. They spoke several times a week and generally would share a meal at least once a week.
19 During their conversations she mentioned to him that “she expected her collection to go to the Queensland Art Gallery”. Her expectation wavered only in 1983 following her falling out with the then trustees. She told Mr Bacon that she had “disinherited the gallery”. Later, however, she “made her peace with the gallery”, intimating to Mr Bacon that she had been charmed by the new chairman of trustees, Dr Botsman. Mr Bacon dates her expressed intention to “reinstate the gallery as the beneficiary of her estate” as occurring in 1987.
20 She expressed this intention frequently and explained to Mr Bacon that “the Trout name was very connected to the Queensland Art Gallery” which “she felt was the home of the Trout collection”.
21 To Mr Bacon, also, Lady Trout complained that her endeavours to make a testamentary gift of her collection to the gallery were frustrated by Mr Deeb. She complained frequently that her desire to make a new will was not implemented. No doubt because of her friendship with Mr Bacon, Lady Trout confided in him something she did not tell Mrs MacAulay or Mr Hall. This was that she wished, as part of the preparation of a new will, to supplant what she called a “vicious codicil” which had been executed expressly to disinherit members of her family who had offended her and thereby lost her affection. As Mr Bacon understood things from what he was told by Lady Trout, the codicil revoked earlier gifts but also made disparaging remarks about the persons. Lady Trout suspected that Mr Deeb was deliberately frustrating her desire to make a new will in the hope that she would reconsider her attitude towards the displaced legatees and was delaying the process in that hope.
22 Lady Trout complained constantly along these lines for the last year of her life. For about a year prior to that she made similar complaints, though less stridently.
23 Lady Trout’s sister, Mrs Hawley, recalls that from the end of 1987 until her death in 1988 “she only ever spoke of leaving (her art collection) to the Queensland Art Gallery”. She was “quite definite in every conversation” that she intended to bequeath her collection to the gallery. Lady Trout also complained to her sister, in 1988, that Mr Deeb would not prepare a will in accordance with her instructions. Mrs Hawley is eighty-five and was not required to give viva voce evidence. Her statement was tendered by consent. One passage is worth setting out in full. Mrs Hawley said:
“I also recall an occasion which was not too long before Lady Trout’s death. I recall on this occasion that Lady Trout telephoned me early in the day to tell me that Mr Deeb had phoned her to say he had finished her Will and would be bringing it out that day for her to execute. I recall her telling me during that conversation that she had arranged for some neighbours to come to her house to witness the Will.
I recall Lady Trout appeared to be very happy that the matter was at last being finalised and that she would be able to execute her new Will. ... I recall however that Lady Trout phoned me later the same day to tell me that Mr Deeb had phoned her to say he could not keep the appointment. Lady Trout was very annoyed and very upset.
Not long after this incident, I recall Lady Trout telling me she had spoken to Ian Callinan and had asked him to arrange for or suggest a new Solicitor to complete her Will because she was fed up with Henderson Trout.”
24 Lady Trout repeated her statements of testamentary intention to Justice Lockhart, a judge of the Federal Court of Australia, who met Lady Trout by the introduction of Mr Brown, an art dealer of Melbourne known both to the judge and Lady Trout. He was shown her collection and admired it. On the rare occasions he was in Brisbane he spoke to her and occasionally dined with her in the company of other friends. Lady Trout told Justice Lockhart of her desire to establish a foundation, to bear her husband’s name and her own, which would maintain their home as an art gallery for the public display of her collection of paintings and decorative artifacts. She asked whether the judge would accept appointment as a trustee of the proposed foundation.
25 What Lady Trout had in mind may be seen from an examination of her will dated 20 December, 1983. She gave the whole of her estate (so far as relevant) to Mr Callinan, Dr Kerr, Justice Lockhart and Mr Sakzewski whom she appointed trustees and executors to hold her house property and her collection of “works of art including all my paintings drawings sketches etchings sculptures bronzes statuary antiques porcelain china ware crystal silver ware pewter furniture furnishings and fittings and other objects of artistic merit” in perpetuity upon a trust which should come into being upon her death and which should be called “The Sir Leon and Lady Trout Foundation”. The trustees were given the power and the duty “to conduct ‘Everton House’ as an Art Gallery for the display therein to the public of the Sir Leon and Lady Trout Collection” and to maintain Everton House and the collection in good and substantial repair.
26 Similar provisions were made in her wills of 21 December, 1982 and 14 March, 1984 though there were differences in the identity of the trustees.
27 Lady Trout had discussed the proposal with Mr Bacon and another old friend, Sir William Dargie. They had both advised against it and Lady Trout had, apparently, accepted their advice. When Mr Hall took up his appointment she asked him for his opinion. Mr Hall explained the considerable financial and technical difficulties in such a scheme. To become a suitable gallery there would have to be substantial work done to the house to control light, temperature and humidity to conserve the paintings. The cost of capital works, of maintaining the environment, of security and staff would be very substantial. From the plaintiff’s point of view there was a further objection. As a satellite gallery the Trout collection might distract attention and patronage from the Queensland Art Gallery itself. Both Mr Hall and Mr Bacon thought that Lady Trout had abandoned the idea.
28 Throughout 1983, 1984 and 1985, Lady Trout told Justice Lockhart that if there could not be a “Trout Foundation” her desire was to bequeath the collection to the Queensland Art Gallery, though “she had some reservations about this because of personality differences” she had or had had with those charged with control of the gallery.
29 To the best of the judge’s recollection, in 1987 Lady Trout’s intention to benefit the gallery firmed in her mind. But she told Justice Lockhart that Mr Deeb, her solicitor, would not carry out her instructions for some personal reason of his own.
30 In 1987 and 1988 one of Lady Trout’s few friends was Mr Callinan QC, a statement from whom was tendered by consent. The statement recites that in about May, 1987 Lady Trout began to “express great dissatisfaction with ... George Deeb. ... He simply would not ... prepare her will: he was refusing to carry out her instructions” which were “clear and simple: she intended specific legacies and bequests ... and had come round to the notion that the Gallery should have all of the paintings and sculptures and furniture, objets and porcelain.”
31 Mr Callinan recalled that some weeks prior to her death Lady Trout complained that Mr Deeb “was trying to persuade her to deny benefits to a relative (who, she claimed was friendly with Deeb).” This, she thought, was Mr Deeb’s reason for delaying the preparation of her will.
32 About a fortnight before her death Lady Trout telephoned Mr Callinan to say that she had lost all patience with Mr Deeb and asked Mr Callinan to recommend another solicitor who might attend to the preparation of her will. Although Mr Callinan sought to dissuade her she was adamant. Some days later she again rang Mr Callinan and told him that Mr Deeb had sent to her papers including “a virtually, if not complete will, which did finally reflect her instructions”. She was nonetheless determined to go elsewhere and pressed Mr Callinan for the name of another solicitor. Mr Callinan recommended Mr Meadows, a partner of Messrs Flower & Hart.
33 Mr Meadows was telephoned one evening by Mr Callinan who relayed Lady Trout’s request. Later that same evening Mr Meadows spoke by telephone to Lady Trout and explained why he had called. She told him “she had a niece who was presently a beneficiary under her existing will whom she now wished to disinherit; that a codicil had been prepared by Messrs Henderson Trout to this effect but it was unsatisfactory” and she wished to meet Mr Meadows “to discuss preparation of a new will altogether”. By arrangement Mr Meadows called on Lady Trout at her home. Lady Trout told Mr Meadows “she had been endeavouring to have Messrs Henderson Trout prepare a new will for her for the last eighteen months or so ... but had not been able to get the will ‘out of them’. She said matters had now reached the stage where she wanted other solicitors to prepare a will for her promptly. Lady Trout said ‘Messrs Henderson Trout had finally produced a new form of will to her a few weeks ago ... but it still had to be completed (with the incorporation of photographs of furniture and jewellery). ... Lady Trout said Mr Tim Ferrier of Messrs Henderson Trout had ... been ‘rude and unable to understand what had to be done’. ... Lady Trout said she particularly wanted to omit from her old will a niece. ... She said that at one stage, Messrs Henderson Trout produced a codicil to her existing will which expressly disinherited the niece, but she had been unwilling to execute this codicil as she ... thought it was a ‘horrible’ document. ... Lady Trout (said) the delays in obtaining her will from Messrs Henderson Trout had been such that she thought her solicitor, Mr George Deeb had been conferring with her niece. ... Lady Trout complained that on the morning prior to her (then) recent admission to hospital ... a solicitor from Messrs Henderson Trout ... had presented her with a new will for signing, but she had been too upset to sign the will at that time. She said she had gone into hospital that same afternoon and was in no state to sign a will in the morning. She ... thought Messrs Henderson Trout’s attitude ... was thoughtless.”
34 Lady Trout gave Mr Meadows a draft will dated 27 April, 1988 which had been prepared by the defendant. Mr Meadows discussed the contents of the draft in detail with Lady Trout who confirmed that its contents accurately reflected her intentions with respect to the disposition of her estate. Clause 3(B) of the draft provided that Lady Trout gave, devised and bequeathed:
“To the Queensland Art Gallery all my paintings located or normally located or housed or stored in or about my residence ... including each and every painting whether hanging or in storage ... and my collection of porcelain, silverware and sculptures and all other works and objects of art displayed or stored in or about the said (house) (but excluding my household and domestic items) and the items of furniture (such items of furniture having been photographed and identified by Item number ... on (variable to be inserted) separate sheets which ... form part of this my will)”.
Having obtained clear instructions, Mr Meadows told Lady Trout that he would prepare a will in appropriate form and make an appointment to see her in about a week to have the will formally executed and attested.
35 Professor Botsman was president of the plaintiff between May, 1983 and April, 1987. It was his appointment, Lady Trout suggested to Mr Bacon, which induced her changed intention to benefit the plaintiff.
36 Lady Trout was acutely conscious of the value and importance of her collection. She was, perhaps too much, aware of her late husband’s, and her own, generosity to the gallery. She felt a sense of grievance that that generosity had not been sufficiently recognised or publicised by the gallery. In particular she thought her own contributions, as opposed to her husband’s, have not been sufficiently noted. It was her wish that the collection be retained and exhibited in its entirety and she feared that, if given unconditionally to the plaintiff, it may be exhibited piecemeal and some of its works might be stored and shown only occasionally.
37 Lady Trout’s last will, that executed on 24 October, 1986, had been prepared for her by Mr McCafferty of Messrs Morris Fletcher & Cross. On 16 November, 1987 she made a note of instructions she intended to convey to Mr Deeb for the preparation of a new will. They contained, in summary form, a number of gifts to relatives and friends. Relevantly, her note read:
“Qld Art Gallery. All Paintings & Portraits Porcelain Sculpture Silver Ware & Furniture as per Photografs [sic] & Inscriptions attached.”
38 On or shortly before 8 December, 1987 Lady Trout spoke to Mr Deeb by telephone and informed him that she was contemplating a new will and gave Mr Deeb some details of what she intended. He made a note of what she said from which he had typed a memorandum which he entitled “RE: LADY TROUT - Main provisions for proposed new Will to be read in conjunction with current Will dated 24.10.86 and Codicil dated 28.10.87”. Mr Deeb’s note of what Lady Trout had said about her bequest to the gallery was:
“To the Queensland Art Gallery - the twentyseven paintings that are insured, plus all the portraits in the Menzies Wing, (some of these may be included in the twentyseven insured paintings) plus all porcelain silverware and sculpture and certain items of furniture as per a list and photographs to be supplied.”
39 On the occasion of this conversation, or a few days later, Lady Trout told Mr Deeb that she did not wish to proceed with the preparation of the new will until January, 1988 because she was going into hospital early that month for exploratory surgery and she did not wish to be concerned with business until she recuperated.
40 On 4 January, 1988, Lady Trout spoke to Mr Deeb by telephone and advised him she had been discharged from hospital and that news on her condition was good. A growth, which may or may not have been cancerous, had been removed. Mr Deeb’s diary note records “cancer on bladder” although his evidence was that she told him non-cancerous polyps were removed. The only relevance of the discrepancy is that the plaintiff submits it is an indication that Mr Deeb’s evidence is unreliable and that he sought to make light of Lady Trout’s ailment which should have alerted a careful solicitor to the need to attend expeditiously to her instructions to make a will.
41 I will deal later with the question of Mr Deeb’s credit. In relation to Lady Trout’s health it is enough to say that her death was entirely unconnected to the ailment which led to her hospitalisation in January and the cause of her death was, as I have said, unsuspected and her death itself was unexpected.
42 On 6 January, 1988 Mr Deeb sent Lady Trout a copy of his diary note. Between then and 18 January, 1988 they discussed its contents. She told him that she proposed to leave the plaintiff all her paintings, not merely the twenty-seven identified in the diary note. Lady Trout, in fact, struck out the words “twenty-seven paintings” in the copy of the note sent to her and wrote above them “all paintings”.
43 It was submitted by the plaintiff that Mr Deeb mistook Lady Trout’s instructions when making his note. Mr Hanson QC argues that on 16 November, 1987 and on or shortly before 18 January, 1988, Lady Trout had clearly expressed an intention to give all of her paintings to the plaintiff. Therefore, it is said, she would not have intended to give only twenty-seven paintings on 8 December, 1987.
44 I do not accept that this is so. I think it more likely that Mr Deeb correctly recorded his instructions but that Lady Trout’s mind changed, and then changed again. It is hard to imagine that Mr Deeb could mistake “all paintings” for the elaborate description that appears in his diary note. I note that on 11 April, 1986 Lady Trout noted in her diary that she was trying to draft instructions for a new will and sought the assistance of Mr Bacon to select portraits to bequeath to the plaintiff. The entry records that Lady Trout changed her mind about the bequest. Her wills made on 2 June, 1986 and 9 July, 1986 make no gift to the gallery.
45 On 18 January, 1988 Mr Deeb prepared a draft will in “cut and paste” format. It consisted of clauses drafted by Mr Deeb pursuant to Lady Trout’s recent instructions and portions of her previous will, the effect of which was to remain unaltered. The draft was sent under cover of a note which read:
“Dear Lady Trout,
As arranged, we are enclosing herewith a further draft of your new Will, to facilitate our discussions.”
46 Lady Trout replied by letter of 21 January, 1988:
“Thanks for the amended Instructions to the Will. All now seems in order.
I have enclosed my Copy with Alterations in margin. Also .. Photos’ & descriptions of furnature [sic] for the Qld Art Gallery ... ”.
Lady Trout enclosed with her letter a list of furniture in her own handwriting and a bundle of photographs which had been taken by Mr Hall’s photographer on 25 November, 1987. Noted on the copy of the draft will returned to Mr Deeb were the words “Refer to Ian’s letter of the 22nd Dec”. The reference was to a letter from Mr Callinan QC suggesting a clause to allow the replacement of trustees and executors appointed by the will. Mr Callinan was to be one of them.
47 It seems Mr Deeb was never given a copy of Mr Callinan’s letter but its contents were read to him over the phone by Lady Trout and he made a note of the proposed clause which appeared in subsequent drafts of the will.
48 Mr Deeb took some time off. He was absent from his office between about 22 January, 1988 and the first few days of February. Late in February, he passed the task of preparing Lady Trout’s will to Mr Ferrier, one of his partners. Lady Trout agreed to the transfer.
49 The plaintiff is critical of the delay between Mr Deeb’s return from holidays and the instruction of Mr Ferrier to attend to the will. Mr Deeb defends the month of inactivity by saying he recollects that during that period Lady Trout told him she was not certain that she wished her collection to go to the gallery and that she might change the bequest. She expressed dissatisfaction with the manner in which the gallery had treated her in the past.
50 This evidence is attacked but for reasons which I will give later I think it likely that at some time Lady Trout did express those reservations to Mr Deeb. It may not have been in February because, as the plaintiff’s submissions emphasise, Mr Ferrier was not made aware of the reservation and the instruction to him was to proceed with the preparation of a will, not to await clarification of Lady Trout’s intentions.
51 Upon receipt of his instructions Mr Ferrier telephoned Lady Trout and discussed with her the contents of the document which, in these proceedings, has been called “draft 1”. In the course of the conversation Lady Trout made a change to a bequest which appeared in the draft. It had given the sum of $100,000.00 to St Margaret’s Anglican Girls’ School to be applied in providing a music scholarship for students at the school. The draft also gave a Steinway grand piano, a Kawai organ and a harpsichord. Lady Trout instructed Mr Ferrier to delete these items from the gift which was to become one of money only. The value of the instruments established by their sale when the estate was converted into cash was about $93,000.00.
52 As a result of his conversation Mr Ferrier prepared a further draft will, called “draft 2” in these proceedings. It was an amalgam of draft 1 and provisions from Lady Trout’s existing will executed in October, 1986. Mr Ferrier met Lady Trout at her home in early March at which they discussed the contents of draft 2. As a result Lady Trout included a specific gift of a mink stole to Mrs Callinan and another gift of a mink coat to one of her nieces. As well, she gave to the defendant an identified painting which had been lent to the firm and hung in its boardroom. Lady Trout told Mr Ferrier she “did not care” for making her will and was unenthusiastic about endowing her named beneficiaries. She found the process an imposition.
53 Clause 8 of the draft requested the trustees of the will “when considering the sale of any works of art antiques or other object of artistic merit” falling into the residue of her estate to consult Mr Bacon about their value. As a result of discussion, the recommendation to consult with Mr Bacon was limited to works of art, the reference to “antiques or other object of artistic merit” being deleted.
54 In addition some changes were made to the sequence of the bequests.
55 When Mr Ferrier returned to his office he had a further draft will (“draft 3”) prepared to incorporate the alterations requested by Lady Trout at their meeting. Draft 3 was not prepared until on, or just before, 21 March, 1988. Lady Trout had telephoned Mr Ferrier on 16 March, 1988. No record exists of the content of the telephone message but it seems likely that Lady Trout was enquiring about the preparation of the will.
56 Draft 2 has written on the top of the first page in Mr Ferrier’s hand, “Leigh - urgent please”. Leigh was Mr Ferrier’s word processor. His account is that when he returned from discussing draft 2 with Lady Trout in early March, 1988, he wrote the words on the draft and gave it to Leigh so that she would prepare a further document incorporating the handwritten changes which had been made to draft 2 during the meeting. He explained that he was busy at the time and without the written instruction the draft may not have been dealt with immediately but been delayed for some days. Mr Ferrier denied that the direction to Leigh was a result of Lady Trout’s impatience expressed on 16 March. I find this explanation unconvincing. I think it more likely that it was Lady Trout’s call of 16 March, 1988 which prompted Mr Ferrier to have Leigh prepare the next document and to ask for it urgently. It seems improbable that Mr Ferrier would write “urgent please” on a document the production of which was not pressing. Five days after her call, on 21 March, 1988, Mr Ferrier met Lady Trout at her home to discuss the contents of draft 3. The changes from the previous draft were not so momentous as to require three weeks gestation.
57 On 21 March, 1988, two errors in draft 3 were corrected: an alteration in the sequence of a bequest to a nephew and the beneficiary of the mink stole was altered from Mr Callinan to his wife. The only change of substance was that Lady Trout mentioned, for the first time, that she wished to benefit a neighbour, a Mrs Formica, who had been kind to her after her release from hospital, apparently in January. (Her name is spelt “Formoca” in some places. I shall call her Mrs Formica.) She wished to give the neighbour $50,000.00 and a piece of jewellery which was not identified. Because the matter is contentious I note that Mr Ferrier made a contemporaneous note of the instruction which may be seen at page 141 of the Agreed Bundle of Documents, volume 4. The three changes to the draft will are recorded cryptically. Relevantly the note reads:
“Claudia Formoca - Flockton St
$50,000 + piece of jewellry [sic].”
58 There is no doubt, and I so find, that the note reflects Lady Trout’s instruction that such a gift was to be included in her will.
59 By 11 April, 1988 Mr Ferrier had not heard from Lady Trout. He did not contact her to seek an explicit identification of the item of jewellery to be given to Mrs Formica. Instead, on that day, he wrote to Lady Trout:
“Re: Your Will
Enclosed is a further draft of your Will for your consideration.
Please telephone me to discuss any further changes you may require.”
The draft will enclosed with the letter (“draft 4”) makes no reference to the gift of jewellery to Mrs Formica. Clause 3C(v) read:
“As to the sum of FIFTY THOUSAND DOLLARS ($50,000.00) to CLAUDIA FORMOCA of Flockton Street Everton Park Brisbane aforesaid.”
60 Mr Ferrier’s failure to ascertain, prior to the preparation of draft 4, what item of jewellery Lady Trout intended for Mrs Formica is puzzling, as are his failure to include reference to such a gift in the draft will (leaving the particular item of jewellery unidentified) and his failure to refer in his letter to the need to select an item of jewellery. Mr Ferrier said that he thought the point was sufficiently brought to Lady Trout’s notice by the mention of “further changes” but this is unconvincing.
61 Perhaps the most likely explanation is that he had forgotten about it, but this must mean that he prepared draft 4 without reference to his diary note. Mr Ferrier had no convincing explanation for the omissions but did not discount the possibility that he had forgotten about the gift of jewellery.
62 Apart from these two matters in respect of which I have reservations about Mr Ferrier’s testimony, I accept what he has said. I do so not so much from any reliance upon his manner of giving evidence but rather from my appreciation of events which can be pieced together from documentary records and of incidents for which there is corroboration. I do not think that Mr Ferrier sought to be other than candid. The events he was asked to recall were ten years old by the time he was questioned and he had not made extensive contemporaneous notes. Nevertheless, with the two exceptions I have mentioned, I generally accept what he has said.
63 It is convenient to deal also with an attack upon Mr Deeb’s credit. Although he, too, was subjected to the same criticism I accept his evidence. Again I do not rely upon demeanour, though there was nothing in it which would make me hesitate to accept his evidence, so much as the overall picture which emerges partly from the documents. I think Mr Keane QC was right in his submission that Mr Deeb acted honourably and carefully in the discharge of his varied retainers for Lady Trout. He may not always have pleased her but I am satisfied that he acted professionally in the discharge of his duties and when giving evidence. I formed the impression that he conscientiously attempted to assist the court. His memory was deficient with respect to some details and timing, but in the main I think it safe to act upon what he said.
64 On 18 April, 1988 Lady Trout telephoned Mr Deeb. The conversation is important. Mr Deeb made brief notes during it though it is not accurate, I think, to say that he made a note of the conversation. The note is fragmentary but it is the best record of what was discussed.
65 Earlier in the year Lady Trout had given a valuable painting to the plaintiff. She was entitled to a tax deduction, the amount of which depended upon the value of the painting. This was to be established by two valuations which the donor was required to obtain and pay for. Sotheby’s was one valuer and had submitted an invoice for $2,800.00. The defendant, as part of the services rendered to Lady Trout, attended to the payment of such expenses.
66 During the conversation Lady Trout mentioned the valuation and the fact that she had received the invoice. She wanted Mr Deeb to pay it. Lady Trout informed Mr Deeb that she was to go into hospital on Friday, 29 April, 1988 as a follow-up to her surgery earlier in January.
67 The diary note (omitting Mr Deeb’s underlining and encircling) reads:
“pne Lady Trout
re Will 1998
Sotheby a/c Lady Trout (Romney)$2800-00
Valuation
to bring in a/c & we to pay when signing the will.
Friday 29th - in hospitalHoly Spirit 9 AM
operation at 1:15 pm / one night only
expect to find only a few adhesions
should not be as knocked about.”
68 To anticipate a little, the plaintiff submits that Mr Deeb’s note that the defendant was to pay Sotheby’s invoice “when signing the will” unequivocally establishes that Lady Trout instructed Mr Deeb on 18 April, 1988 to prepare and engross a will in accordance with the terms of draft 4 and that she would attend the defendant’s offices to execute the will and, at the same time, deliver the account to Mr Deeb so he could attend to its payment.
69 During the course of the conversation, Mr Deeb noted in his desk diary for 28 April, “Lady Trout might come in?”.
70 Mr Deeb’s recollection of the conversation is that Lady Trout wished to confer with him about the contents of her will and he discussed with her possible dates for an appointment at which that might happen. It was in that context he noted that she might see him on 28 April.
71 Lady Trout did not confirm or keep the appointment for 28 April. She went into hospital on 29 April and was discharged the next day. She apparently received a clean bill of health. On 5 May, 1998 she rang Mr Ferrier and, according to his recollection, inquired about her will. He replied that he was waiting for her to identify the item of jewellery to be included in the gift to Mrs Formica. Lady Trout’s retort was that she had never intended to make a gift of jewellery to Mrs Formica. She expressed her irritation and ended the call abruptly. Mr Ferrier was perturbed. He spoke to Mr Deeb. He must have briefed him on what had happened. Mr Deeb returned a call from Lady Trout. It is not entirely clear, I think, whether Lady Trout terminated the defendant’s retainer in relation to her will initially in the conversation or only after she had engaged Mr Deeb in conversation. I do not think it matters. It is clear that she expressed annoyance with the defendant’s performance of her instructions to prepare a will. Specifically, in answer to a question from Mr Deeb, “What is wrong?”, she complained that she could not “get on with” Mr Ferrier because he did not “understand” her. Mr Deeb explained that Mr Ferrier was awaiting her instructions as to which item of jewellery was to form part of the bequest to Mrs Formica. He queried the legacy of $50,000.00 to Mrs Formica because the amount was substantial and the beneficiary had never figured in any previous will or draft will. Mr Deeb had normally discussed such topics with her and he wondered whether Lady Trout truly intended such a gift. His interrogation fanned the flames of Lady Trout’s anger. She said it was none of his business. She told him (she may have told him earlier in the conversation) to send her file to her immediately so that she could instruct other solicitors to complete her will. The documents were sent out by taxi that afternoon.
72 I have already set out in paragraphs 32 - 34 of these reasons what happened next. It was on 9 May, 1988 that Mr Meadows was telephoned by Mr Callinan. Mr Meadows spoke to Lady Trout on 10 May, 1988 and conferred with her at her home on 12 May, 1988. She gave him draft 4 together with her handwritten list of furniture, photographs of the furniture and photographs of the jewellery. Mr Meadows read through the draft with Lady Trout who confirmed that its contents expressed her testamentary intentions. Mr Meadows promised Lady Trout that he would prepare a will for her to sign giving effect to their discussions and what was set out in draft 4. He said he would have the document “in a week or so”. Lady Trout expressed her concurrence with that timetable. Indeed, she told Mr Meadows that she was travelling overseas at the end of June and would like to have the will finalised by then. Mr Meadows did not believe that the circumstances were such as to require a will to be prepared as a matter of urgency. He said:
“There was nothing in her demeanour or plans to suggest that she was infirm in any way, she was planning to go overseas, she was happy that she’d recently been released from hospital and cleared of whatever condition it was that had caused her to go there in the first place and she was spirited and appeared to me to be in robust, good health.”
73 Mr Goss in 1987 and 1988 was a Brisbane City Council alderman for the ward in which Lady Trout lived. I mention at the outset that his evidence appears to me to be of particular importance in the resolution of the action and that I accept Mr Goss’s evidence without hesitation.
74 Lady Trout had communicated with Mr Goss’s office about some inconvenience she had experienced which was within the power of the Brisbane City Council (“the Council”) to alleviate. Mr Goss called upon her. Lady Trout appears to have been impressed by his deferential manners and, to an extent, she unburdened herself in conversation with him. She was obviously lonely and the possession of her immensely valuable art collection, though a source of great pride, was also a worrisome responsibility.
75 She showed her collection to Mr Goss on a number of occasions and confessed to him her concern about what would happen to it after she died. She feared that it would not all be constantly on display if the plaintiff owned it. She told him she had discussed her concern with representatives of the gallery, one of whom she believed, whether rightly or wrongly, had hinted that a personal gift would ensure that the collection would remain on permanent display. Lady Trout took umbridge at the suggestion for which, in her mind, the gallery was responsible. She told Mr Goss that the event had hardened her resolve not to “leave the paintings to the art gallery”. She told him that she had had a number of wills drawn up in respect of which “she had been stalling in the hope that she could find some alternative to keep the art collection together rather than being split up”. She “made it quite clear that she did not want the Queensland Art Gallery to get the collection”.
76 In subsequent conversations Mr Goss canvassed the possibility that the Council could undertake the preservation and exhibition of the collection for the benefit of the public of Brisbane if it were left to the Council in Lady Trout’s will. He told Lady Trout that he would approach the Lord Mayor to ascertain her attitude to the Council accepting the obligation to maintain Everton House as a gallery for the collection. Lady Trout was enthusiastic.
77 Mr Goss did contact the Mayor’s office and made a tentative date for Lady Trout to meet the Lord Mayor to discuss the idea. 10 May, 1988 was suggested but rejected by Lady Trout who said she was going into hospital for something minor and requested a later date. Mr Goss arranged 26 May, but could not contact Lady Trout to inform her of it. On 19 May, 1988 Mr Goss wrote to Lady Trout:
“With reference to our discussion some weeks go [sic], I have invited the Lord Mayor to visit your home at 3 p.m. on Thursday, 26th May, as she is keen to view your art collection.”
To the best of Mr Goss’s recollection the conversations with Lady Trout occurred in April, 1988.
78 In May, 1988 Lady Trout was invited to have lunch with the members of the committee of The Brisbane Club. The invitation had been extended by Mr Borsellino, then the secretary/manager of the club. He had known Sir Leon Trout, who had been President of the club, and he had maintained some sort of contact with Lady Trout. He spoke to her about the possibility of her donating some paintings to the club which would be hung in the President’s dining room which would be renamed the “Sir Leon Trout Room”. Lady Trout was amenable to the suggestion and Mr Borsellino arranged for the committee members to lunch with her. She deferred the occasion because she felt unwell. She died soon afterwards.
79 It was on Sunday, 15 May, 1988 that Lady Trout was admitted to the Wesley Hospital. She was suffering from headaches. Her admission was arranged by Dr Kerr, who was a friend and was named as an executor and trustee of her will. Dr Kerr put her in hospital to ensure that she rested. He told Mr Deeb that he expected her to be home for the following weekend, 21 and 22 May, 1988. She apparently had a stroke over the weekend and was transferred to the Holy Spirit Hospital where she died on 24 May, 1988.
Analysis of Facts
(i)80 The evidence appears to me to establish that Lady Trout had not, by the time she died, unequivocally decided that the plaintiff should be the beneficiary of her art collection. Mr Goss’s evidence, I think, shows that Lady Trout still harboured the desire for her collection to remain intact and be displayed to the public in her home as a memorial to herself and her late husband. She was enthusiastic about the prospect that the Council might undertake the financial and organisational burdens of maintaining the house and the collection. Lady Trout would not give it to the plaintiff until she knew the Council’s decision. Her discussions with Mr Goss took place in April, the time the plaintiff submits Lady Trout instructed Mr Deeb to engross a will.
81 There is no doubt that Lady Trout wished to keep the collection intact. Mr Bacon, Mr Meadows and Mr Goss all recall her expressing such a desire. It was also her wish that the whole of the collection be exhibited permanently for the benefit of the Queensland public. Mrs MacAulay was told of that desire, as was Mr Goss.
82 It is also clear that, despite her protestations to the contrary, Lady Trout did not have an enduring intention to give her collection to the plaintiff. There were two reasons. She had not forgotten the past slights, real or imagined, dealt her by people connected with the gallery. Secondly, she had a concern that the gallery had insufficient space to put her whole collection on permanent display.
83 It is significant that of the five wills made between April, 1978 and March, 1979 no gift was directed to the plaintiff. The same is true of the six wills made between December, 1982 and October, 1986. A review of Lady Trout’s wills is interesting. After her husband died she made fifteen wills and codicils. The earliest, that made on 13 April, 1978, gave her art collection to the plaintiff for a period of fifty years. Her next will was made six days later. It and the succeeding four wills conferred no benefit on the plaintiff. Her next three wills, made between 24 May, 1979 and 2 July, 1980, left her house and art collection to the plaintiff. No subsequent will made any such gift. The three following wills made between 21 December, 1982 and 14 March, 1984 are the ones which provided for the establishment of the “Sir Leon and Lady Trout Foundation”. Her next three wills made between 2 June, 1986 and 24 October, 1986 gave her estate to charity. Between 19 April, 1978 and November, 1987, if one has regard only to documentary evidence, Lady Trout expressed no desire to donate her art collection to the plaintiff.
84 Lady Trout had wanted to create and endow a foundation which would maintain the integrity of the collection and would provide the perpetual recognition she thought she and her late husband deserved. She was dissuaded from the idea of a foundation because of its expense and the technical difficulty of maintaining the collection. This was the evidence of Mrs MacAulay, Mr Hall and Mr Bacon. If these difficulties could have been overcome by the Council shouldering the burden, Lady Trout, in my view, would have reverted with alacrity to the prospect of a foundation.
85 Lady Trout was to meet with the Lord Mayor in the second half of May. She was not due to leave for overseas until the end of June. In my opinion Lady Trout would not commit herself to the disposition of the collection until she knew whether the Council would accept responsibility for maintaining her house and collection. If it would not, or if its attitude were not known before her departure for overseas, then it is probable she would have executed her will in the terms found in draft 4. When she was admitted to hospital on 15 May, 1988 her condition was not believed to be serious. The reason for her admission was to ensure she had rest. It was thought she would return home within a few days. Before she lapsed into unconsciousness she had not heard from the Lord Mayor and she did not believe a decision about her will had to be made imminently.
86 This state of affairs is inconsistent with the evidence, which I have accepted, that on some occasions after 16 March Lady Trout had exhibited some impatience with Mr Ferrier’s rate of progress. I think she did hurry him up. But, paradoxically, in my judgment Lady Trout would not have signed the will unless, prior to her departure, the Council had rejected the proposal that it accept the collection or had not indicated that it would accept. As I have said, there are inconsistencies which cannot be reconciled.
87 This is not the only element of contradiction in this tale. I have rehearsed the evidence of statements made by Lady Trout of her intention to benefit the plaintiff and of the frustration of that intention by Mr Deeb. It is apparent from what Lady Trout told Mr Goss that her protestations to Mr Hall, Mrs MacAulay, Mr Bacon, Justice Lockhart, Mr Callinan and Mrs Hawley were not genuine. Her true attitude was different. In her diary for 16 April, 1986 she had written:
“The Queensland Art Gallery have already received a great amount ... The gallery have proved to be ungrateful donees. They must change their attitude before I could be back on side ...”
It was not until November, 1987 that Lady Trout began to make preparations for a gift to the plaintiff and then initially she vacillated about the extent of the gift. Mr Deeb recalled her being very critical of the gallery for not showing sufficient appreciation for her generosity. It is instructive that she made similar complaints to Mr Meadows and Mr Goss, both of whom were virtually strangers.
88 It should be observed that Lady Trout’s dissembling assertions that she intended to benefit the gallery in her will produced, for her, a tangible benefit. There is no doubt that in her last years Lady Trout was very lonely. I think it likely that she craved recognition as well as company. As long as she had not committed herself to a gift to the gallery but indicated that she would, if she only could, make such a gift, she attracted the attention and solicitude of people like Mr Hall and Mrs MacAulay. Indeed, it was part of Mr Hall’s duties to make Lady Trout think agreeably of the gallery. One can speculate that Lady Trout took some delight in teasing such deference from gallery personnel.
89 It is also noteworthy that when Lady Trout transferred her retainer to Mr Meadows she did not instruct him to proceed as a matter of urgency, nor did she give as her primary reason for wanting a new will that she wished to benefit the plaintiff. The thing uppermost on her mind was the suppression of the codicil. While that remained an operative document her niece and nephew would know that they had been included but then specifically omitted from her benevolence. A new will which made no reference to them would not tell that tale.
90 Lady Trout was content to proceed on the basis that her will would be prepared and signed before her departure overseas, a period of about six weeks. Mr Meadows intended to return with an engrossed will within about two weeks. All the solicitors who gave evidence agreed that had Lady Trout expressed a wish to proceed urgently, once she gave her approval to the contents of draft 4, a will fit for execution could have been prepared within half a day. She did not request such haste from the defendant or Mr Meadows.
91 I do not think Mr Borsellino’s evidence is of much moment. The fact that Lady Trout was contemplating the gift of a small number of paintings to The Brisbane Club does not assist in determining her attitude in relation to the ownership of her art collection subsequent to her death. It is possible that a gift to The Brisbane Club would have been inter vivos. What may be of some significance is that what attracted Lady Trout to the prospect of making a gift of some paintings is that, in return, there would be a memorial to her late husband in the form of the “Sir Leon Trout Room” in The Brisbane Club. Such things appeared important to Lady Trout.
(ii)
92 It is convenient now to recall some instances of complaints made by Lady Trout, the effect of which was that the defendant, and Mr Deeb in particular, would not fulfill her intention to bequeath her artworks to the plaintiff. As I mentioned earlier, this evidence is admissible only as original evidence of her statements from which her state of mind (intention to benefit the plaintiff) might be inferred. In several notable instances the complaints were wrong in fact and must have been known by Lady Trout to be wrong. Two things follow. The evidence of complaints provides no sure basis for inferring an intention to benefit the plaintiff. Secondly, the false complaints throw doubt upon the genuineness of more direct assertions by Lady Trout that she intended to benefit the gallery.
93 I do not wish to dwell unduly upon these matters. The evidence is clear that Lady Trout misstated significant events. In paragraph 23 I set out part of Mrs Hawley’s statement. The events recounted there were untrue. Nothing like them occurred.
94 Mr Hanson QC endeavoured to find some support in Mrs Hawley’s statement for his submission that Lady Trout on 18 April, 1988 instructed Mr Deeb to prepare a will for her to sign but he did not do so. That is not what Mrs Hawley says Lady Trout told her. It was never intended by Mr Deeb that he would take the finished will to Everton House for Lady Trout to sign. He always intended and believed she would come to his office. He did not make and then break an appointment. He never asked her to request neighbours to attend as witnesses. Lady Trout seems to have quarrelled with all her neighbours as Mr Deeb knew.
95 The complaints to Mr Meadows which appear in paragraph 33 of these reasons are likewise erroneous. Lady Trout had not been endeavouring to obtain a will from the defendant for eighteen months prior to May, 1988. She first approached Mr Deeb about the topic in December, 1987. I do not see how it is possible to add verisimilitude to the complaint by including a reference to the 1987 codicil. That had been requested in August, 1987 and prepared in the same month. It was signed in October.
96 It is a complete fiction that on the morning of 29 April, 1988, the day she was admitted to hospital for routine investigation, a solicitor from the defendant presented her with a new will for signing.
97 The story about the codicil is equally unedifying. She told Mr Meadows that “at one stage, Messrs Henderson Trout produced a codicil to her existing will which expressly disinherited the niece, but she had been unwilling to execute this codicil as she ... thought it was a ‘horrible’ document”. She conveyed to Mr Meadows the clear impression that she had not, and would not, sign the codicil.
98 Lady Trout told Mr Bacon about the codicil and led him to believe that it made personal and disparaging remarks about the persons disinherited by it.
99 In fact the codicil had been executed by Lady Trout on 28 October, 1987. It had been prepared, pursuant to her instructions, early in August but she apparently hesitated before signing it. It disinherited a nephew and a niece and gave what had been their gifts to their brother. It offered no reason and expressed no criticism.
100 Likewise the complaint to Mrs MacAulay that her solicitors presented Lady Trout with draft wills which did not express her instructions is without substance. The only respect in which it might be said that a draft was prepared which did not reflect what Lady Trout had instructed was Mr Ferrier’s mistake in making a gift of the mink stole to Mr Callinan and not Mrs Callinan. The mistake was trivial and quickly corrected. Similarly, the complaints made to Mr Hall in September, 1987 that Mr Deeb would not prepare a will for her were entirely false. Instructions to Mr Deeb were not given until December. Then she said she wished the matter deferred to the new year.
101 The plaintiff also relies upon the fact that between December, 1987 and May, 1988 she gave her express approval to draft wills containing a bequest of her collection to the plaintiff. The plaintiff argues that this shows a subsisting and persistent intention to make the testamentary gift.
102 It is true that, although changes were made in the draft wills prepared and discussed with Lady Trout, there was no discussion of any change to that particular bequest. It remained unaltered from draft 1 to draft 4 and beyond when Lady Trout confirmed its contents to Mr Meadows.
103 This fact does not alter my conclusion that Lady Trout did not in fact have a settled intention to benefit the plaintiff. When instructions were first given to Mr Deeb for the preparation of a will it is no doubt the case that Lady Trout intended to leave her collection to the plaintiff. It was an intention she held without much enthusiasm. She told Mr Deeb in February, 1988 that she was having second thoughts about the gift. She told Mr Ferrier that she did not care whether any beneficiary took under her will. Her discussions with Mr Goss re-ignited her interest in the creation and perpetuation of a “Trout Foundation”. That, in my view, was her first preference. She would leave the collection to the plaintiff if she could not achieve her primary objective. Until she knew whether she could or not there was little point in directing a changed bequest in draft wills. It was because Lady Trout was waiting to see what would come from her discussions with the Lord Mayor that she did not wish to have the will prepared and signed which would commit her to a bequest of the collection to the plaintiff. I deal in the next section with this point.
104 The plaintiff’s argument appears to me to be equally valid in its obverse. If Lady Trout had, throughout the first four months of 1988, a fixed and persisting intention to make a bequest of her collection to the Art Gallery, one would have expected her to request the defendant to prepare a will fit for execution making such a gift. On my view of the evidence she did not do so.
105 If I have not done so I make it clear that I accept the evidence of Mrs MacAulay, Mr Hall and Mr Bacon as well as that of Mr Meadows. The statements from Mrs Hawley, Justice Lockhart and Justice Callinan were admitted by consent. For the reasons I have given I do not accept that Lady Trout’s intimations to them truly reflected a consistent definite intention.
106 The industry of counsel for the defendant has discovered a succinct but eloquent caution which is particularly apt in the present circumstances. Jordon J said in McDonald v. McDonald 41 NE 336 (1895) at 345:
“... such statements of the testator should be received as evidence with great caution, for the reason that they are sometimes made by him for the express purpose of misleading or satisfying curious friends or expectant relatives.”
(iii)
107 An important question is whether Lady Trout instructed Mr Deeb on 18 April, 1988 to prepare a will, in form suitable for execution, giving effect to the contents of draft 4. The plaintiff submits the question should be answered affirmatively, relying principally on two matters:
(i)exhibitions of impatience from Lady Trout that the process of preparing a will had not produced a document in final form for her to sign; and
(ii)the terms of Mr Deeb’s diary note which referred to her giving him a document when she came in “to sign the will”.
108 The defendant submits the question should be answered in the negative, relying upon:
(iii)the fact that Mr Deeb did not engross a will. He would have done so had he been so instructed;
(iv)the fact that Lady Trout had not provided final instructions about Mrs Formica’s gift of jewellery; and
(v)the fact that Lady Trout did not keep the appointment for 28 April, 1988 which she would have done had she believed that her will had been prepared in accordance with her instructions and awaited her signature.
109 Each of these points has substance. There is something of a paradox to which there is no completely satisfactory solution. The factors cannot all be reconciled to produce a completely harmonious result.
110 I think it is right that Lady Trout on occasions, probably on 16 March, and perhaps on 18 April and on 5 May, did display some impatience with the length of time it took Mr Ferrier to respond to her instructions. By this I do not mean that she instructed him to engross a will. I do not think she did. However, I think it likely that she believed he took too long to prepare draft 3 after their meeting early in March and she was concerned about his inactivity after they met on 21 March or, perhaps, after 11 April, when he wrote to her. It is, however, significant that when she rang Mr Ferrier on 5 May, 1988 she did not ask when she could come to sign the will or request Mr Ferrier to bring it to her for signature. She enquired about the progress of the will which is, I think, different.
111 I am inclined to accept Mr Ferrier’s account of the conversation largely because an important feature of it is corroborated by Mr Deeb. He told Lady Trout when they spoke on 5 May that Mr Ferrier was waiting for instructions about the item of jewellery. Mr Ferrier had explained that to Mr Deeb on that day or perhaps a day or two earlier. Unless Mr Deeb and Mr Ferrier colluded about this aspect of their evidence Mr Deeb did explain to Lady Trout why Mr Ferrier had not proceeded further with the will and his knowledge came from what Mr Ferrier had told him. Collusion was not suggested and the court would need compelling evidence before it found that two reputable solicitors had so tainted their evidence. It follows, in my opinion, that Lady Trout was told by both Mr Ferrier and Mr Deeb that matters had not progressed further because Lady Trout had not provided instructions about the item of jewellery. They would hardly have told her that had she instructed either or both of them to engross a will in terms of draft 4.
112 Mr Ferrier’s response to Lady Trout is puzzling. He had clearly forgotten about the need to identify the jewellery when he prepared draft 4 and sent it with his letter of 11 April, 1988. He remembered it, though, when Lady Trout rang him on 5 May, 1988. I think it likely that Mr Deeb had told him of his conversation with Lady Trout on 18 April, 1988. Mr Deeb has some recollection of such a conversation. Mr Ferrier may have been prompted to consult his file.
113 Although in their conversation of 18 April, 1988 Lady Trout said something to indicate to Mr Deeb that she contemplated signing her will in the near future, I do not think it follows that she gave instructions for the engrossment of a will. Mr Deeb clearly understood that he was to discuss the contents of the will with Lady Trout. Had she said explicitly that she wanted the will engrossed there is no plausible reason why he would not have done so. Moreover, if that is what she wanted, it is likely she would have rung Mr Ferrier and not Mr Deeb. It was Mr Ferrier who had been charged with the mechanical task of taking instructions and preparing the document. If her diary musings are accurate, Lady Trout respected Mr Deeb though she did not like him. She had been accustomed to discuss her testamentary intentions with Mr Deeb though she resented his suggestions. Mr Deeb’s response to the conversation of 18 April was to obtain a copy of the most recent draft of the will to become familiar with it and so be able to discuss it with Lady Trout when she arrived. He did this on 27 April, 1988, the day before he expected her to come. This, I think, corroborates his understanding of what Lady Trout intended. It was to be a last review of the will prior to its production in final form.
114 The plaintiff argued that Mr Deeb did not engross a will as requested by Lady Trout because he forgot, or because he regarded her as an over-demanding nuisance who had in the past received too much consideration from the defendant and who, for that reason, should be ignored.
115 Neither explanation is plausible. Mr Deeb did not overlook the fact that Lady Trout was likely to call upon him on 28 April, 1988. The appointment was noted on his desk diary. He obtained a copy of the latest draft the day before for the express purpose of discussing its contents with Lady Trout. He had become aware of the proposed gift to Mrs Formica.
116 The suggested motive for ignoring her instructions, that she was a “pest” (to use Mr Hanson’s word), does not fit my assessment of how Mr Deeb and Mr Ferrier responded to her. All the witnesses who had personal knowledge of Lady Trout agreed that she was difficult to deal with. She certainly had a sense of self-importance. She was quick to take offence and slow to forgive. Despite all this Mr Deeb behaved towards her politely, patiently and conscientiously. As her attorney he attended to the administration of her finances. He was actively engaged in making arrangements for her trip overseas at the end of June. On her behalf he remitted moneys to her London bank account and contacted Claridge’s Hotel to arrange accommodation. He was in frequent contact with her about these arrangements. This contact continued after the defendant’s retainer in respect of the will was terminated in acrimonious circumstances. There is not the slightest indication that Mr Deeb ceased behaving towards Lady Trout with his customary politeness. It does not seem to me at all likely that Mr Deeb ignored an express instruction to engross the will because he found Lady Trout irritating.
117 There is another small pointer to the conclusion that Mr Deeb was not instructed on 18 April to engross a will. Lady Trout had proposed a number of specific bequests of individual items of jewellery which were to be identified by description and by reference to a numbered photograph. The photographs were to be arranged in sheets and physically annexed to the will as had been done with the previous will. The defendant did not have a spare set of photographs. The only ones it had were those that formed part of the previous will which Mr Ferrier was loath to dismantle. No criticism is made of him for this reluctance. Lady Trout had another set of photographs but had refused to give them to Mr Deeb. The will could not be prepared in final form without the photographs. Lady Trout did not provide the photographs or offer to do so on (or after) 18 April. Mr Deeb did not make any alternative arrangements to obtain a copy of the photographs. This suggests to me that the point had not yet arisen when Mr Deeb had been instructed definitely to prepare a will in final form.
118 Lady Trout did not attend Mr Deeb’s office on 28 April, nor did she arrange an alternative date. It is a small point but she was in a shop on the ground floor of the building which housed the defendant’s offices on 4 May, 1988 but did not call in to see if it was convenient to speak to Mr Deeb or to inquire of him if she could sign the will.
119 On 3 May, 1988, Lady Trout and Mr Deeb spoke by telephone to discuss some items of business that Lady Trout wished to have attended to before she left the country. She did not ask about her will or whether an engrossment had been prepared. She did not mention her non-attendance on 28 April.
120 On 5 May, 1988, before she spoke to Mr Ferrier, Lady Trout spoke to Mr Deeb about the transfer of moneys to her London account. She did not then mention her will or ask when it might be convenient for her to attend and sign it. Later in the day she rang Mr Ferrier as I have recounted.
121 I cannot accept that had she given instructions on 18 April to prepare a will in form suitable for execution she would not have made some reference to it in the conversations of 3 or 5 May. Nor is it easy to understand why she did not keep the appointment on 28 April had she given such an instruction, nor why, having instructed Mr Deeb to engross a will, she should ring Mr Ferrier to ask what the “current situation” was about the will.
122 My opinion is reinforced by my finding that Lady Trout did not have a fixed intention to give her collection to the plaintiff. It was in April that she spoke to Mr Goss of having the Council maintain her collection. It is not likely that she would have asked for a will that she would not wish to sign until she knew the Council’s response.
Law
123 The plaintiff’s case is that early in 1988 Lady Trout gave the defendant instructions for the preparation of a new will, one of the bequests of which was the donation of her art collection to the plaintiff. In breach of its retainer to carry out its client’s instructions the defendant did not prepare a will capable of execution giving effect to her intentions. Had it complied with her instructions, Lady Trout would have signed the will prior to her death on 24 May, 1988 and the plaintiff would have succeeded to the ownership of the collection. Instead the previous will of October, 1986 was admitted to probate and the collection was sold to allow the proceeds to be divided among the residuary beneficiaries. The plaintiff submits that the defendant’s breach of its retainer to Lady Trout constitutes a breach of duty owed to it for which the defendant is liable to pay damages to compensate the plaintiff for the loss of the collection.
124 It is convenient to examine the relevant legal principles to ascertain the nature and extent of any duty owed by the defendant to the plaintiff. The law has recently been the subject of exposition by the High Court in Hill v. Van Erp (1997) 188 CLR 159. A solicitor who prepared a will for a client was given instructions that it was to include a gift to a friend. When the will was being executed, the solicitor asked the husband of the intended beneficiary to attest it. The gift to his wife failed because of the prohibition contained in section 15(1) of the Succession Act 1981. The defect in attestation was not discovered until after the testatrix’s death. The disappointed beneficiary sued the solicitor and recovered in damages the value of the gift.
125 A case raising similar issues but a little different on its facts had been decided by a majority of the House of Lords not long before. In White v. Jones [1995] 2 AC 207 a solicitor was sued by two daughters of the solicitors’ client who had given instructions to prepare a will, reinstating his daughters as beneficiaries, for his signature. The solicitor entirely neglected the instruction. The client died five weeks later without having changed his will.
126 Factually White is closer to this case than Hill. Although the result in each case was that the solicitors were held liable to pay damages, the reasoning by which the House of Lords reached that result was rejected by the High Court in Hill. The leading judgment in the House of Lords was delivered by Lord Goff who relied upon an extension of the principle expressed in Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465. Lord Goff said ([1995] 2 AC 207 at 268):
“... the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor’s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor”.
127 Lord Browne-Wilkinson agreed but added that the solicitor’s liability arose from the special relationship which the law should find exists between a solicitor and an intended beneficiary and from which a duty of care would arise. Lord Nolan also agreed, adding that he thought the case was covered by existing principles of liability in negligence, there being a foreseeability of loss and sufficient proximity between solicitor and intended beneficiary.
128 The approach of the High Court was quite different. Brennan CJ said ((1997) 188 CLR 159 at 167-8):
“But the interests of a client who retains a solicitor to carry out the client’s testamentary instructions and the interests of an intended beneficiary are coincident. ... A breach of the retainer by failing to use reasonable care in carrying the client’s instructions into effect is also a breach of the solicitor’s duty to an intended beneficiary who thereby suffers foreseeable loss. If the solicitor’s carelessness results in the loss of a testamentary gift intended to be given to a beneficiary, ‘it is eminently fair, just and reasonable that the solicitor should be liable in damages to the intended beneficiary’ ... [N]ot only is the remedy of damages effective to compensate the beneficiary; it is necessary to enforce the duty owed to the client. ‘Otherwise ... there is no sanction in respect of the solicitor’s breach in his professional duty’. ... But in the case of an ineffective gift intended to be given by a testator to a beneficiary, the thing intended to be given passes on the testator’s death to another. It is no longer the property of the donor. And, unless the intended but disappointed beneficiary can claim the thing from the testator’s estate ..., the testator’s intention is frustrated and the thing which passed from the testator on death is irretrievably lost to the intended donee. That is the nature of the ‘loss’ with which this class of case is concerned. It is a loss that is suffered upon the dropping of the testator’s life.”
129 Dawson J (with whom Toohey J agreed) said:
“And if the relationship between the solicitor and the testatrix gave rise to a duty of care in tort there is no reason in logic or principle why the relationship between the solicitor and the intended beneficiary should not also do so” (at 181-2).
“The person to whom a testator wishes to make a bequest is the object of the testator’s intentions. The reason for engaging a solicitor to make a will is to confer benefits upon the beneficiaries ... [W]hat is important is the position of a solicitor as a professional person of specialised skill and knowledge. That is significant with respect to the drawing up and execution of a will because the failure to exercise due care may affect not only the interests of the client but also the interests of others whom the client has in mind as beneficiaries. The interests of those others are relevantly the same as the interests of the client in that situation” (at 185).
“The notion of general reliance or dependence described by Mason J (in Sutherland Shire Council v. Heyman) is apt also to describe the situation in which, whilst there will usually be no specific reliance by an intended beneficiary upon a solicitor retained to attend to the will, the intended beneficiary’s interests are totally and unavoidably dependent upon the proper performance of a function within the sole province of the solicitor. And ... the solicitor knows of the beneficiary’s dependence and in that respect may be regarded as having assumed responsibility towards the intended beneficiary.
156 There was no particular time frame and it suited Lady Trout not to have a will engrossed until she had heard from the Council. If Mr Ferrier’s duty was to prepare a will in final form once he knew that Lady Trout was content with the contents of draft 4 she could have informed him of that on 5 May, 1988 when they spoke. She did not give him those instructions. His letter of 11 April made it clear that he was waiting to hear from Lady Trout before proceeding further. A proficient solicitor would, I think, have reminded his client specifically that she was to decide on the item of jewellery to form part of the bequest to Mrs Formica and, when he had not heard within a few days, would have contacted his client to seek instructions. But the standard to determine whether there has been a breach of duty is not that of a “particularly meticulous and conscientious practitioner ... The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession” (per Oliver J in Midland Bank Trust Co Ltd v. Hett Stubbs & Kemp [1979] Ch 384 at 403). Mr Ferrier’s omissions did not amount, in my view, to a breach of duty. Relevant to this conclusion is that what a reasonably competent practitioner would do in the circumstances depends to a degree upon the client’s needs and ability to understand what is needed and to articulate to the solicitor what is required. See Carradine Properties Ltd v. D J Freeman and Company (a firm) (1982) 5 Const LJ 267; Rybak v. Senneh Pty Ltd (1997) ANZ Conv R 74 at 78-9; and the discussion in paragraphs 163 and 164.
157 Moreover, there was no apparent urgency in the finalisation of the will. Although the process had taken almost six months, Lady Trout did not (apart from the two or three occasions I have earlier mentioned and which remain a conundrum) express a desire to proceed at a greater pace. Again, as I have mentioned several times now, Lady Trout did not wish to sign a will until she knew the Council’s pleasure.
158 In the circumstances I do not see that Mr Ferrier was in breach of duty in waiting for Lady Trout to contact him with instructions.
(iv)
159 The plaintiff makes much of the fact that Lady Trout was seventy-one at the relevant period; that she had twice been admitted to hospital and died before the defendant had prepared and had her execute a will. But to attain seventy-one is not to be of an age which necessarily suggests that one is on the brink of eternity. Her admission to hospital shortly before her death was completely unrelated to the admissions earlier in the year. The first of those was for exploratory surgery which showed there was no need for concern. The second admission was for a check-up which likewise showed her to be healthy. Her death was sudden and unexpected. She appeared to be strong and well. She was planning an extended trip overseas. There was simply nothing in the circumstances to suggest that a will should be prepared and signed urgently.
160 It is an integral part of the plaintiff’s submissions that the defendant owed Lady Trout a duty to urge her into deciding what testamentary dispositions she should make and then to attend speedily to have her execute the will. In the plaintiff’s submissions the preparation and execution of a will should have been attended to as a matter approaching urgency.
161 I am not persuaded that this is right, notwithstanding the support for the view given by Mr Whitney, an experienced and reputable solicitor who practises almost exclusively in the area of succession. Mr Whitney’s opinion was that the defendant, exercising reasonable care, should have assisted Lady Trout “to conclude on her instructions” and then to implement them promptly. In Mr Whitney’s opinion this would have involved being “pro-active, by preparing ... a will, presented as a draft, but nevertheless a will capable of being executed, (with any undecided matters at that time (to be) covered by a later will or a codicil) containing the bequests about which there was a significant degree of certainty at various times”.
162 This seems rather to overstate a solicitor’s duty. This may well be an appropriate course of action where a client is in the last stages of a terminal illness but not, I think, otherwise. In his oral evidence Mr Whitney quite properly conceded that the nature and degree of advice that should be given to a client depends upon the abilities, experience and personality of the client. As to these he agreed, quite rightly, that Mr Deeb and Mr Ferrier were in a better position than he to decide what advice should be given to Lady Trout with respect to her instructions for a new will.
163 There is no doubt that, in Mr Keane’s words, Lady Trout was a sophisticated will-maker. She was certainly experienced in the role. In the decade ending in 1986 she had given instructions for and signed seventeen wills (counting codicils). Her diary, which describes the process of making her October, 1986 will, and the process engaged in with the defendant, show her attitude to the preparation of a will to be deliberative and, to borrow Mr Keane’s language again, “iterative and inter-active”. It was something which Lady Trout regarded seriously and as a solemn responsibility. It was not something to which she was prepared to give less than careful and reflective consideration. She knew, however, that she could at any time give instructions for the preparation of a will in final form on any terms she wished. That is, she could have expressed satisfaction with any set of gifts and requested them to be the subject of an engrossed will. On or shortly after 11 April (depending upon when she decided against the gift of jewellery to Mrs Formica), she had the terms of a will with which she was satisfied. This is well established. After 11 April she neither made nor requested changes to the terms of the draft. She told Mr Meadows that it reflected her intentions and she instructed him to prepare a will giving effect to the contents of draft 4. Lady Trout could at any time after 11 April have given instruction for the production of a document which she could sign. That she did not do so supports me in the conclusion that she did not then wish to make a will which would pass the collection to the plaintiff.
164 Both Mr Deeb and Mr Ferrier knew Lady Trout understood what was involved in making a will and that she appreciated she would not have made a will until the document was signed and witnessed. Moreover, they knew her to be a woman of decided opinions. In Mr Deeb’s words she was intelligent and precise in conversation and difficult, imperious and demanding in manner. She knew her own mind and resented gratuitous advice. She was not reticent in giving instructions. The approach advocated by Mr Whitney would have been inappropriate. It would probably have led to unpleasantness.
(v)
165 The plaintiff points, with some justification, to the delays that can be seen in the process of preparing Lady Trout’s will. Taking an overview, on 21 January, 1988, Lady Trout notes that Mr Deeb’s draft (draft 1) appeared to give expression to her wishes. By 5 May, 1988 no will fit for execution has been prepared. This is a period in excess of three months during all of which the majority of testamentary gifts remain unaltered. As well as what the plaintiff calls the cumulative delay in preparing a will there are instances of individual delay which can be identified in the preparation of each of drafts 2, 3, and 4. Almost three weeks went by after Mr Ferrier conferred with Lady Trout about draft 2 before he produced draft 3 on 21 March and discussed it with her. He then took two weeks to send her draft 4 on 11 April and then did nothing until she contacted him on 5 May.
166 I have already dealt with this argument when concluding that Mr Ferrier was not in breach of his duty. My attitude is much influenced by the evidence that Lady Trout was deliberately slowing the process, “stalling” as she told Mr Goss and that she did not, in reality, want a will that might be presented to her for signature leaving her collection to the plaintiff before she knew what the Council would say.
167 Mr Deeb was told directly that she was reconsidering her gift to the plaintiff. Mr Ferrier was told that she found the process of making a will burdensome and would be glad to be quit of the responsibility. He seems to have guessed rather than to have been told that she was in no hurry.
168 These factors have to be taken into account in determining whether the time taken to prepare a final will was such as to amount to a departure from the standard of reasonable care.
169 For the reasons I have endeavoured to explain I do not think that it was.
Causation
170 The plaintiff’s approach to the question of causation is admirably straightforward. It argues that (a) by the end of April, 1988 the defendant should have engrossed and had ready for execution a will whose contents were identical to draft 4; and (b) had the defendant prepared such a will Lady Trout would have signed it and, on her death, her art collection would have passed to the plaintiff. “But for” these omissions, ownership in the collection would have passed to the plaintiff when Lady Trout died.
171 In March v. E & M H Stramare Pty Ltd (1991) 171 CLR 506, Mason CJ said (at 515):
“The common law tradition is that what was the cause of a particular occurrence is a question of fact which ‘must be determined by applying common sense to the facts of each particular case’ ... Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the ‘but for’ test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing ... However, this approach to the issue of causation (a) places rather too much weight on the ‘but for’ test to the exclusion of the ‘common sense’ approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact.”
172 Deane J said (at 522-3):
“The ‘but for’ ... test may well be a useful aid in determining whether something is properly to be seen as an effective cause of something else in that sense. In particular, the test will commonly exclude causation for the purposes of the law of negligence if the answer to the question it poses is that the accident which caused the injuries would have occurred in the same way and with the same consequences in any event ... There are however, in my view, convincing reasons precluding its adoption as a comprehensive definitive test of causation in the law of negligence. First, the clear weight of authority is against the substitution of such a formularized test of causation for a ‘common sense idea of what is meant by saying that one fact is a cause of another’”.
173 These passages were approved by Mason CJ, Deane and Toohey JJ in Bennett v. Minister of Community Welfare (1992) 176 CLR 408 at 412-3.
174 This exposition of causation requires a rather more elaborate investigation of the facts than the plaintiff invites. I have already noticed what I perceive to be a problem. When one is considering whether, as a matter of common sense, the defendant’s negligent failure to prepare a will and have it executed caused the plaintiff to lose its expectation of succeeding to the collection it is significant that Lady Trout deprived the defendant of the opportunity to give effect to her instructions by withdrawing its authority to prepare her will. Had she instructed the defendant on 5 May, 1988 that she wished to sign a will immediately and that draft 4 recorded her testamentary wishes an engrossment of the will could have been prepared within hours. It could have been executed on the afternoon of 5 May or on 6 May. When questions of policy and value judgment intrude into the enquiry about causation it seems difficult to ignore the point that the cause of the plaintiff’s loss was not the defendant’s failure to prepare a will for execution prior to 5 May, 1988, but Lady Trout’s direction to it on that day not to proceed further and/or her instruction to Mr Meadows to prepare a will without asking him to proceed urgently. Lord Goff in White at 268 noted that:
“... liability will not of course arise in cases in which the defect in the will comes to light before the death of the testator, and the testator either leaves the will as it is or otherwise continues to exclude the previously intended beneficiary from the relevant benefit”.
This is not quite that case but it is closer to it than a case of deficient execution or attestation.
175 I do not think that either policy or “justice” leads to the finding that the defendant’s negligence caused the plaintiff’s loss.
176 The finding that Lady Trout’s testamentary intentions had not settled finally upon making a gift to the plaintiff before death unexpectedly supervened means, as a consequence, that any failure on the part of the defendant to prepare a will in the same terms as draft 4 capable of execution was not causative of the plaintiff’s not becoming the owner of the collection. At the very least the plaintiff must prove that Lady Trout actually intended to bequeath her collection to the plaintiff and but for the defendant’s inactivity would have made a will having that effect on her death. Proof of formation of the intention to benefit the plaintiff is essential to the plaintiff’s cause of action. As I have found, Lady Trout’s intention to benefit the plaintiff was conditional upon not being able to direct the collection to a beneficiary who would make of it and her home a separate museum for the pleasure of the public and the preservation of the Trout name and reputation as philanthropists. Until she knew such an achievement was impossible she would not commit herself to a gift of the collection to the plaintiff. She would not know whether it was possible before having discussed the prospect with the Lord Mayor.
177 The finding that Lady Trout had not given instructions to engross a will for her signature between 11 April and 5 May, 1988 has the same consequence. The defendant’s retainer was terminated without it ever having been instructed to prepare a will for execution. Earlier delay or inactivity cannot be the cause of the plaintiff’s disappointment in circumstances where the testatrix did not, in the end, instruct the preparation of a will for execution and brought the retainer to an end without giving such instructions. The cause is more properly seen as Lady Trout’s decision to withdraw the defendant’s authority to proceed further with the will. The reason a will was not prepared and presented to her for execution is that she chose not to repress her irritation with Mr Ferrier but to change solicitors. Her knowledge and experience of will-making must have made her aware that she should have had a will in terms of draft 4 prepared for execution and signing within a very short time. She did not follow such a course.
178 The application of the “but for” test does produce (with a qualification) the result that had a will been prepared earlier the plaintiff would have succeeded to the collection.
179 The qualification is substantial. It is that Lady Trout would have signed a will leaving the collection to the plaintiff before knowing the outcome of the discussions with the Council. In my opinion, she would not have done so.
180 Leaving the qualification aside, the case seems to me an illustration of the inadequacy of the “but for” test of causation. Looking at the matter less simplistically, the points I have mentioned seem to me to point to the conclusion that the defendant’s inactivity complained of did not cause the plaintiff the loss for which it seeks recompense.
181 The fact that Lady Trout did not instruct (and did not then want) to sign a will shows that there is no causal connection between the defendant’s inactivity or inattention in preparing such a document and the plaintiff’s loss. The loss was not caused by that inactivity but by Lady Trout’s conscious choice not to instruct the defendant to present her with a will for her signature.
182 In Hill, Dawson J (at 180) pointed out that:
“Had the result of the solicitor’s negligence in this case been discovered during the lifetime of the testatrix, the will could have been re-executed by her, provided her intentions remained the same.”
183 The passages I have quoted from Hill, though germane to the existence of a duty, are also apposite to this question of causation. A substantial reason for imposing a duty on a solicitor towards an intended beneficiary is the irreversibility of the error where it is discovered after the testators death. Such is the case when the error involves the formalities of execution or attestation. Liability is imposed, at least in part, because the disappointed beneficiary would otherwise have no means of redress. But when the error is known in the lifetime of the testator there is no such helplessness. Nor is there any immediacy between the solicitor’s error and the failure of the gift. The testator knows his intended gift will not take effect and so does the solicitor. The means are readily at hand to overcome the problem. When, for some reason, the testator does not address the problem or does not do so with reasonable promptitude one proceeds cautiously to say that the original error by the solicitor caused the beneficiary’s disappointment. The need for caution is increased when the testator looks to someone other than the errant solicitor to make an effective gift.
184 Lady Trout terminated the defendant’s retainer on 5 May, 1988. She waited four or five days before asking Mr Callinan to recommend another solicitor. Another day or two went by before she confirmed to the new solicitor that the last draft prepared by the defendant embodied her wishes. She agreed to Mr Meadows’ proposal that he should produce a will for execution in a further ten to fourteen days. Indeed her express deadline was 22 June, 1988 when she was to leave for England. She did not seek to expedite the execution of the will when she knew she was to go to hospital for a few days.
185 These superseding events and Lady Trout’s dictation of the pace at which they occurred form a gap between the defendant’s non-production of an engrossed will and Lady Trout’s dying without signing a new will. It is relevant in this regard to remember that, had she so desired, an engrossment from draft 4 could have been produced in hours.
186 The plaintiff, relying upon Medlin v. State Government Insurance Commission (1995) 182 CLR 1, submits that Lady Trout’s termination of instructions to the defendant and her retention of Mr Meadows’ services does not affect the causal connection between the defendant’s failure to present Lady Trout with a will for her signature and the plaintiff’s lost bequest. The principle enunciated in Medlin does not seem apposite in the present circumstances. In that case a teacher was unable, by reason of his injuries which the defendant’s negligence had caused, to perform his work satisfactorily. He therefore retired early from his university post. He was held entitled to recover as damages the value of the difference in earnings between his salary as a teacher and his superannuation. Although the immediate cause of the diminished earnings was his decision to retire, the reason for the decision was his accident-caused inability to work effectively. In the joint judgment of Deane, Dawson, Toohey and Gaudron JJ, it was said (at 6-7):
“Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. It will be seen that ... the present was such a case.”
187 It follows from my finding that Lady Trout had not instructed the defendant to prepare a will for her signature that her termination of its retainer was not caused by a breach of duty. It is not the case that Lady Trout withdrew instructions from the defendant because it disobeyed or refused to carry out her instructions. She did so for personal reasons of her own.
188 The decision in White seems at first sight to support the plaintiff’s case. I am not sure, for the reasons I have expressed, that the outcome of that case would have been the same if the solicitors’ conduct in that case were analysed by reference to the formulation of duty which appears in Hill. The solicitors’ failure was to attend in any respect to the testator’s express instructions to prepare a relatively simple will to reinstate his daughters as beneficiaries. Some five weeks elapsed between the instructions and the testator’s sudden death. Inactivity for much of that period was the result of an employee going on holidays without sufficiently bringing the instructions to the attention of anyone else in the firm. But the solicitors’ omission in not preparing a will was known to the testator, who did nothing. There is missing the “irreversibility” which exists when the error is discovered only after death. There was, however, in that case a more immediate connection between the solicitors’ negligence and the loss. The solicitors did nothing at all to fulfill their express instructions to prepare a will for execution. The terms were straightforward and clear and were conveyed explicitly to the solicitors. Their negligence was “a failure to carry out (their client’s) instructions within a reasonable time before the death of the testator”. Per Dawson J in Hill at 179.
189 White is, on its facts, different from this case. Lady Trout did not give express instructions for the preparation of a will for her execution. She did not, as I have said, unconditionally intend to make a gift to the plaintiff.
190 Although the plaintiff’s submissions have the attraction of simplicity their allure should be resisted. From the want of a nail the shoe was lost and there followed a series of misadventures culminating in the loss of a battle. But as Lord Templeman pointed out ([1991] 2 AC 249 at 279-280) the careless farrier was not liable in damages for the lost revenues of the kingdom.
Damages
191 Because, in my judgment, the plaintiff has not made out any entitlement to relief it is not necessary to discuss what damages it would have recovered had it been successful in the suit. However, I will briefly address the assessment of damages in case the topic later becomes relevant.
192 Had Lady Trout, before her death, made a will containing a gift of her collection to the plaintiff the works in the collection would, with some trivial exceptions, have been retained by it as part of its collection. The plaintiff would not have converted the objects comprised in the bequest into money. What the plaintiff has therefore lost is the aggregate of the works of fine and decorative art that would have passed to it under the will.
193 The object of an award of damages is to restore the plaintiff to the position it would have occupied had the negligence of which it complained not occurred (Butler v. Egg & Egg Pulp Marketing Board (1966) 114 CLR 185 at 191; Haines v. Bendall (1991) 172 CLR 60 at 63).
194 In this case the appropriate measure of compensation is the amount of money which will restore to the plaintiff what it would have had if the property had devolved on it by the operation of Lady Trout’s will. The measure is therefore the amount of money that will allow the plaintiff to buy the objets d’art which would have comprised the gift.
195 At the risk of appearing philistinic it must be said that artistic objects, like any other goods, have a value which can be measured in money. In fact the works were sold to give effect to the residuary gifts to the charities which took under Lady Trout’s 1986 will. Many of the works were auctioned by Christie’s, in Brisbane and London. As well, paintings were sold privately on behalf of the estate by Mr Bacon. The furniture was sold separately. The total amount realised from these sales was $11,650,944.00. The plaintiff claims this amount together with interest from 24 November, 1988 to judgment. As at 31 September, 1998 (the aberrant date is Mr Calabro’s who performed the interest calculation for the plaintiff) interest amounted to $8,703,343.00.
196 The award of such an amount of interest would be to overcompensate the plaintiff very substantially. The plaintiff would never have earned money from its ownership of Lady Trout’s art collection. There is no loss for which interest is an appropriate compensation. The plaintiff did not outlay money in the acquisition of the collection so that it is worse off by having spent the money. The plaintiff’s loss will be fully alleviated by giving it that sum of money which will enable it to buy from the present owners the paintings and furniture dissipated pursuant to the former will and which would have gone to the plaintiff had the new will been signed.
197 That amount of money is not necessarily the amount for which the collection sold in 1988. It is its present value which is the proper measure of loss.
198 The evidence, which I accept, establishes that the value of the collection has decreased since it was sold. Dr Dedman, who holds a doctorate in fine art and a bachelors degree in science included in which was a double major in mathematics, is the author of a work, The Australian Art Market Movements Handbook, which charts the price movements of art works of one hundred individual Australian artists over the period 1975-1996 and combines sixty of those artists into an art market index. It is regarded by major auction houses as a reliable, independent guide to trends in art market movements and the prices for works by individual artists.
199 In his report Dr Dedman notes that:
“The Trout sale was remarkably successful, even for those buoyant times, with 98% of the lots selling, many of them for considerably more than the upper estimate. By comparison, the average clearance rate at the three major sales held the preceding April was 74%. At the three August sales which followed, the clearance rate was 68%. Clearance rates at the major auction houses during 1997 and 1998 have been approximately 65%.”
200 Dr Dedman reported that 1989 was the year in which the “art boom” peaked. Prices in all sectors of Australian art fell heavily over subsequent years and have not yet fully recovered. The art market index, with a base figure of 1,000 in 1975, reached 15,500 in 1989 and stood at just over 11,000 at the end of 1996. A reasonable estimate of its current value (September, 1998) is 12,220, still down twenty per cent on the 1989 peak.
201 Applying Dr Dedman’s methodology, the estimate of the current value of all paintings sold by Christie’s at the Brisbane auction is $4,370,000. The current value of the paintings sold by Mr Bacon is $3,192,000 and the current value of the paintings sold by Christie’s at their London auction is $1,032,043. The value of furniture is $281,700.
202 The total is $8,875,743.
203 The detail of Dr Dedman’s methodology is set out in an appendix to his report and will no doubt repay study by those who have an interest in higher statistical mathematics. The appendix was not the subject of examination or cross-examination. Mr Bacon, who was inclined to disparage Dr Dedman’s approach, did not, I think (without in any way being critical of Mr Bacon), fully appreciate how Dr Dedman’s art market index was compiled, or the methodology involved in ascertaining the index from time to time. Mr Bacon did, though, concede that the index has utility in showing the movement in value of the works of particular artists. I think it does more than that and that Dr Dedman’s evidence is the best guide to the present value of the collection. Because it cannot be precise, I would, if assessing damages, round the figures up to $8,900,000.00. I think it is clear that prices at which major works of art have sold since 1989 have fallen substantially as is demonstrated by Dr Dedman’s report.
Judgment
204 The plaintiff has failed to make out its case. There must be judgment for the defendant.
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