Re Cameron
[2019] VSC 166
•15 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2017 21710
| IN THE MATTER of the Will of MERVYN ERIC CAMERON deceased | |
| Application by: ALLAN RAE BELL & PATRICIA FLORENCE ARNOTT | Plaintiffs |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 September 2018 |
DATE OF JUDGMENT: | 15 March 2019 |
CASE MAY BE CITED AS: | Re Cameron |
MEDIUM NEUTRAL CITATION: | [2019] VSC 166 |
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WILLS AND ESTATES — Where caveator objected to grant of probate — Where caveator required to file particulars of grounds of objection — Whether caveator’s amended particulars establish a prima facie case — Summons dismissed — Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 — Banks v Goodfellow (1870) LR 5 QB 549 — Nock v Austin (1918) 25 CLR 519.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Pascoe | BJT Legal Pty Ltd |
| For the Caveator | Ms B K Nolan, with leave of the Court |
HER HONOUR:
Introduction
Mervyn Eric Cameron died on 7 April 2017, aged 86 years. He did not marry, had no children and his siblings predeceased him. The deceased’s will dated 4 February 2016 (‘the 2016 will’) appoints the plaintiffs as the executors and trustees of his estate.
By originating motion filed 21 December 2017, the plaintiffs seek a grant of probate of the 2016 will. The 2016 will leaves the deceased’s residuary estate equally between fourteen beneficiaries: his brother, eight of his nine nephews, his three nieces, the second plaintiff and the second plaintiff’s husband. The inventory of assets and liabilities filed in support of the application for a grant of probate shows a net estate of $1,472,294. Under the 2016 will, each residuary beneficiary receives approximately $105,163.
The caveator objects to the grant of probate of the 2016 will. He is a nephew of the deceased and not a beneficiary under the 2016 will.
Under the deceased’s penultimate will dated 2 September 2014 (‘the 2014 will’), the caveator was left a one fifteenth share of the residuary estate, together with the deceased’s brother, his other eight nephews, his three nieces, the second plaintiff and the second plaintiff’s husband. Under the 2014 will, each residuary beneficiary would receive approximately $98,152.
The deceased made two earlier wills, one dated 4 October 2013 (‘the 2013 will’) and the other dated 14 June 2005 (‘the 2005 will’). Under those wills, the caveator was a residuary beneficiary along with others.
Procedural history
The caveator first filed a caveat objecting to the grant that was due to expire on 16 December 2017. On 14 December 2017 he filed a second caveat. On 5 February 2018, the caveator filed grounds of objection, comprising ten grounds in total, alleging that the deceased lacked testamentary capacity, undue influence on the deceased by the second plaintiff and other matters. He also objected to the appointment of the plaintiffs as executors of the estate and to the plaintiffs’ solicitors, Power & Bennett, representing the estate.
On 18 April 2018, leave was granted to the caveator to file amended grounds by 27 April 2018. Of the ten grounds relied on by the caveator, grounds 1, 7, 8, 9 and 10 were struck out and orders were made allowing the caveator to amend the ground relating to lack of testamentary capacity and, if he saw fit, to amend or delete the grounds alleging that the deceased acted under undue influence. The further hearing of the grounds was adjourned to 4 May 2018.
On 4 May 2018, leave was granted to the caveator to file amended particulars of grounds by 18 May 2018 and the proceeding was further adjourned to 25 May 2018. An extension of time for the filing of the particulars of grounds from 27 April to 18 May was agreed by the plaintiffs and caveator.
On 21 May 2018, the caveator filed his amended particulars bearing the date of 18 May 2018. Those amended grounds referred to medical correspondence not previously relied on by the caveator, and his solicitors at that time refused to provide the medical correspondence to the plaintiff’s solicitors. For this reason, orders were made on 25 May 2018 for the correspondence to be provided to the plaintiffs by 28 May and the proceeding was adjourned to 1 June. This did not occur by the due date and, on 1 June, the proceeding was by consent adjourned to 7 June and then further adjourned to 15 June 2018. On 14 June 2018, orders by consent were filed adjourning the proceeding to 10 August 2018.
On 9 August 2018, the caveator produced a document headed ‘caveator’s proposed amended grounds of objection’. No orders had been made granting leave for such a document to be filed. Further, the determination of the amended particulars dated 18 May 2018 had not been heard and remained outstanding. The plaintiffs objected to the new document being relied on by the caveator. At the directions hearing on 10 August 2018, the proceeding was adjourned to 31 August 2018, when orders were made listing the hearing of the amended particulars dated 18 May 2018 on 25 September 2018.
At 11:50am on 24 September 2018, the caveator’s counsel informed the Court that his instructions had been withdrawn. At 12:14pm, the solicitors for the caveator in New South Wales, W M Lawyers Pty Ltd, informed the Court that its retainer had been terminated. At 4:39pm, the caveator informed the Court that he would appear personally and seek an adjournment as he had been unable to engage a lawyer at short notice. Attached to the caveator’s email were undated written submissions and a copy affidavit of Dr Carmelle Peisah affirmed on 21 September 2018 and obtained by his former lawyers.
At the commencement of the hearing on 25 September 2018, Mr Maier of McNab & McNab, the Victorian agents for W M Lawyers Pty Ltd, appeared to seek leave to file a notice of ceasing to act, pursuant to r 20.3 of the Supreme Court (General Civil Procedure) Rules 2015. Mr Maier had been informed by W M Lawyers the day before that the defendant had retained new solicitors and counsel. No notice of a change of practitioner for the caveator had been filed. As this exchange ended, counsel entered the court room and announced that she appeared for the caveator. Counsel stated she had flown from Sydney that morning and was retained recently by Mr Thomas Bray, solicitor, from New South Wales. Counsel undertook to the Court that the necessary notices of change of solicitors in New South Wales and Victoria would be filed by 4:00pm that day. The Court granted leave to W M Lawyers Pty Ltd ceasing to act for the caveator. The notice was filed by McNab & McNab the next day.
At the commencement of the hearing, counsel for the caveator sought to rely on a copy affidavit by Dr Peisah and her report dated 21 September 2018, which was not exhibited to her affidavit. Counsel submitted the report ‘breathes life into the particulars of testamentary capacity’, which was the real issue in dispute in the proceeding. The report was based on instructions from W M Lawyers Pty Ltd and was missing a page. Counsel for the plaintiff objected to any reliance on these documents, having only received either the affidavit or the report, or both, and written submissions referring to Dr Peisah’s report the evening before the hearing.
The caveator’s conduct in seeking to rely on an unfiled affidavit and an incomplete report provided to the plaintiff only the day before the hearing and without the leave of the Court is an abuse of process. The caveator does not become a party in the proceeding until he establishes a prima facie case.[1] It is only after a caveator is joined as a defendant to the proceeding that the issue of adducing expert evidence at trial would be determined by the Court.[2]
[1]Moran v Place [1896] P 214, 216-7 (Kay RJ) cited in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, [242].
[2]Civil Procedure Act 2010 (Vic) s 65G.
Applicable principles
Caveats act as a mechanism for notice from the Court to a party interested in an estate that an application for a grant of probate or letters of administration has been made in respect of a deceased estate. The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of probate or letters of administration is made can be investigated and dealt with by the Court. This ensures that any grant gives effect to the final valid testamentary wishes of the deceased or the intestacy provisions and title to any real or personal property owned by the deceased at the date of their death passes in accordance with these wishes or provisions.
If a caveator disputes the validity of the last will of a deceased, he or she must establish standing to object to the grant and file grounds of objection with particulars that provide a sufficient factual basis to raise at least a prima facie case of the grounds of objection relied on by him or her.[3]
[3]Moran v Place cited in Estate Kouvakas (n 1) [242].
The purpose of the particulars and the grounds of objection is to define the questions for trial, to enable the propounder of the last will to understand the case put against making a grant with precision and particularity and so as to avoid surprise at the trial. Where the particulars of objection are imprecise, vague or inadequate, the Court may order that further particulars be provided within a certain time, as has happened twice in this proceeding. Where the particulars are ambiguous, obscure or inadequate the particulars may be struck out.[4] In default of particulars that fail to provide a sufficient factual basis for the grounds of objection, the Court will order that the caveat cease to be of effect. If there is a proper basis for the caveat, orders would be made joining the caveator as a defendant in the proceeding and directions made for the trial of the proceeding.
[4]In re Smith (dec’d) [1951] VLR 368.
For a will to be admitted to probate, it must have been made of the free will of the testator. The approach to be taken as to the determination of a lack of testamentary capacity and a will being executed in suspicious circumstances is summarised by Santamaria JA in Veall v Veall as follows:
If the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity. The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent. If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity: that is that the testator was of ‘sound and disposing mind’.
Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.
The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof. The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder. But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will’s legitimacy.
In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator. In Bailey v Bailey, Isaacs J (with whom Gavan Duffy and Rich JJ agreed) summarised the law thus:
(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.
(2)This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.
(3)The proponent’s duty is, in the first place, discharged by establishing a prima facie case. [5]
[5]Veall v Veall [2015] VSCA 60, [168]–[171] (Santamaria JA).
In this proceeding, the 2016 will is valid on its face and the propounders of the 2016 will have the benefit of the presumption that the deceased had testamentary capacity.[6] The caveator has the evidentiary burden to point to circumstances that raise a suspicion that the deceased lacked testamentary capacity so as to require an investigation of the 2016 will.
Testamentary capacity
[6]Gornall v Masen (1887) 12 PD 142; Palin v Ponting [1930] P 185, 188.
The classic statement as to the legal test for testamentary capacity is stated in Banks v Goodfellow:
It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[7]
Suspicious circumstances/knowledge and approval
[7](1870) LR 5 QB 549, 565.
Testamentary capacity and knowledge and approval are separate and distinct concepts. The assertion by the caveator that the 2016 will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval, an assertion that goes beyond lack of testamentary capacity.[8] It is a testator’s understanding that is decisive in determining whether the testator knew and approved the contents of her will.
[8]Veall v Veall [2015] VSCA 60, [173] (Santamaria JA) citing Hoff v Atherton [2005] WTLR 99.
In Nock v Austin, Isaacs J provided a summary of the principles to be drawn from the leading cases on the question of knowledge and approval as follows:
(1)In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.
(2)Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3)If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.
(4)The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will.
(5)But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.
(6)Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.
(7)The doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud or dishonesty may be relied on without distinctly charging it.[9]
[9](1918) 25 CLR 519, 528 (citations omitted).
More recently, in Tobin v Ezekiel, Meagher JA stated:
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be ‘the most satisfactory evidence’ of actual knowledge of the contents of the will … What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye ... the relevant circumstances were described ... as being such as to impose ‘as heavy a burden as can be imagined’. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator ... [10]
[10](2012) 83 NSWLR 757, [47] (citations omitted).
At all times an applicant must be mindful of the applicable overarching obligations under the Civil Procedure Act 2010.
Plaintiff’s preliminary point
In their written submissions, the plaintiffs referred to paragraph 7 of the amended particulars where it is alleged that in August 2014 the deceased said to the caveator that:
… all nephews and nieces would be cared for in his will and that he did not want Patricia Florence Arnott’s husband to be included as a beneficiary in his will.
Notwithstanding that the plaintiffs deny the deceased made this statement, the plaintiffs submit the statement is inconsistent with the fact that one month later, the deceased included his twelve nephews and nieces, including the caveator, as well as the second plaintiff’s husband, in his 2014 will. As the caveator relies on the deceased’s statement in August 2014, they submit it should be inferred that the caveator accepts it as a rational statement that the deceased possessed testamentary capacity at the time he made the statement.
The fact that the caveator seeks to rely on the statement in August 2014 assumes the deceased had testamentary capacity at that time. It would, therefore, be inconsistent and not credible for the caveator to rely on any allegations occurring before August 2014 as a particular of the deceased’s lack of testamentary capacity. This conclusion directly affects and excludes any reliance on the following amended particulars insofar as they purport to support the grounds of objection:
(a) 5(c) — the alleged statement in December 2013 regarding the requirement of being the executor of his sister’s estate;
(b) 5(f)(iii) — the alleged improvident transactions in June 2014. Further, this characterisation of the transactions as ‘improvident’ is conclusionary and the caveator lacks any standing to make such a complaint. The plaintiffs also deny that these transactions are ‘improvident’;
(c) 5(a), 5(d) and 5(f)(i) — the unparticularised allegations insofar as they relate to events before August 2014; and
(d) 12(b) and (c) — the medical records that it is alleged the deceased lost capacity in February 2014 and the cancellation of the deceased’s driving licence in April 2014.
Paragraph 21 is also excluded as the content of this paragraph is the same as paragraph 7.
Further, at the hearing, counsel for the caveator informed the Court that the caveator no longer relied on the particulars set out at paragraphs 10, 13, 21 and 22. Counsel also did not rely on paragraph 11 for the ground of lack of testamentary capacity but did rely on that ground for suspicious circumstances/lack of knowledge and approval.
Remaining amended particulars of grounds filed 18 May 2018
The remaining amended particulars commence at paragraphs 1 to 3 where the caveator refers to the deceased’s four wills and to the fact that the 2016 will does not include the caveator as an equal residuary beneficiary. Under the 2014 will, the 2013 will and the 2005 will, the caveator was an equal residuary beneficiary of the estate.
Lack of testamentary capacity
The ground of lack of testamentary capacity is set out in the amended particulars in paragraphs 4 to 13:
Amended Particulars of the ground of lack of testamentary capacity[11]
[11]In the amended particulars, the parts no longer relied on by the caveator and the parts struck out are marked through with a line. Other appropriate amendments are in square brackets – i.e. to make clear that the allegation does not relate to events prior to August 2014.
4.The deceased did not have the ability to understand and assess relevant claims on his bounty during the period shortly before and at the time of execution of the 2016 Will. The following Particulars support that contention.
5.By the time the deceased died at the age of 86 he had suffered from Alzheimer's disease for 5 years. By January 2016 the deceased's Alzheimer's Disease had progressed to the point where he:
a) [from after August 2014] was not living an independent life at home, requiring supervision in relation to medications, meals, hygiene, doctor's appointments, and daily tasks;
b) was unable to manage his financial affairs (he was a self-funded retiree); his Accountant was his enduring attorney and managed his finances, including income from and expenses of a share farming arrangement that he had with the First Plaintiff and paying his rates and bills, and gave him “pocket money”;
c) had an inability to concentrate for any length of time, evident from when h
ehad been unable to act as an executor of Gwen's estate [the deceased’s sister]and told the Caveator in December 2013 that “all that estate stuff is beyond me now....l can't do much for any length of time”;d) [from after August 2014] had significant short term memory loss, the Caveator observing that he was unable to remember events and conversations that had taken place minutes before, articles that he had just read in the newspaper, and where simple things like keys were kept at his home;
e) had episodes of confusion; in mid 2015 he did not recognise the Caveator, who had a close relationship with him and who had stepped into his mother's shoes in assisting him after her death in 2010;
f) had significant cognitive decline:
i.[from after August 2014] he was unable to follow simple conversations with the Caveator;
ii. he had been unable to understand, in February 2015, that the lineal descendants of nephews and nieces would not inherit under the 2014 Will;
iii.
he had, in June 2014, entered into an improvident transaction whereby he granted the First Plaintiff an option to purchase part of his farming property at a price equal to only 75% of its value and a contract of sale to sell to the First Plaintiff another part of his farming property at a significantly reduced value;
iv. in January 2016 he told the Caveator that he had sold the farm and had received payment in full for the sale, which was incorrect;
v. in January 2016 he had no recollection of the death of a cat that he had owned for many years and was unable to appreciate that his new cat was not the same cat, although they were vastly different;
vi. which was observed by a neighbour who saw him up to twice a day and who worked in aged care (in particular, he had been unable to understand her simple instructions in January 2016 when she asked him to feed her cat when she was going away).
6.The deceased was in poor physical health. He suffered from Chronic Obstructive Airways Disease, Diabetes (meant to have been controlled by diet but malnourishment and significant weight loss were observed by the Caveator in mid January 2016) and diabetic nerve pain, sciatica, osteoarthritis, hyperlipidaemia, and hyperthyroidism. The Caveator observed in January 2016 that he was in constant pain.
7.The 2016 Will did not accord with previous wills in which the Caveator had been included as a beneficiary,
nor with statements that the Deceased made to the Caveator in August 2014 that all nephews and nieces would be cared for in his will and that he did not want Patricia Florence Arnott's husband to be included as a beneficiary in his will.8.The Deceased's judgment in excluding the Caveator from the 2016 Will was affected by a delusion that the Caveator had borrowed and not repaid $800.00 and had shown copies of his will and a contract of sale of land to other members of the Deceased's family. The solicitors who prepared the 2016 Will, Power & Bennett, sent a letter making those allegations dated 9 February 2016 to the Caveator. The Caveator responded by letter, denying the allegations and giving reasons for the denials. Power & Bennett replied by letter dated 16 February 2016, stating that the Deceased had considered the Caveator's letter, ratified his instructions, and insisted that he did not wish to have any further contact with the Caveator.
9.The 2016 Will did not reflect the claim that the Caveator had upon his bounty. The Caveator had always had a close relationship with the Deceased and had effectively replaced his mother after her death in 2010 as the person who monitored the Deceased's well being and had regular contact with him by way of visits and phone calls. Prior to the letter from Power & Bennett the Caveator had been organising a care regime with family involvement in order to enable the Deceased to continue living at home with quality live in care.
10.
The 2016 Will left part of the estate to persons whom the deceased owed no moral duty, being Patricia Florence Arnott and her husband.11.The only evidence that the Deceased did have testamentary capacity when he made the 2016 Will before the Court is the opinion of Dr Donald Gang Liu. That opinion is flawed. It appears to have been provided well after the 2016 Will and expresses a belief, based on “the deceased’s cognitive ability at the time of making his Will”, that the deceased “would have had” testamentary capacity.[12]
[12]Although at the hearing the caveator did not rely on this particular under the ground of lack of testamentary capacity, he relied on it for the ground of suspicious circumstance/lack of knowledge and approval.
12.The Deceased's medical records kept by Dr Liu's clinic show:
a. on 18 October 2013 the Deceased's MMSE score had, over 7 months, gone from 27/30 to 19/30 and a CT scan indicated Alzheimer's disease;
b.
the Deceased had become lost outside a supermarket in late February 2014;c.
on 23 April 2014 the Plaintiffs requested cancellation of the Deceased's driving licence;d. a notation of increased confusion on 16 October 2015;
e. Dr Liu saw the deceased on 7 December 2015 and did not see him again until 22 March 2016;
f. an MMSE score of 23/30 on 22 March 2016 carried out by a Practice Nurse;
g. a notation that “memory is deteriorating” in the Deceased's Annual Health Assessment dated 22 March 2016;
h. a notation “Difficulty managing own medicines because of literacy, language, dexterity, visual problems, confusion/dementia/other cognitive difficulties” in the Deceased's Annual Health Assessment dated 22 March 2016.
13.
Power & Bennett have not provided the Caveator’s Solicitors with a copy of their will file, despite repeated requests. They have refused to provide a Larke v Nugus statement, and refused to sign authorities for the provision of the deceased’s medical records.
Consideration
The aspect of lack of testamentary capacity relied on by the caveator is that the deceased did not have the ability to understand and assess relevant claims on his bounty during the period shortly before and at the time of execution of the 2016 will, and that the 2016 will did not reflect the claim that the caveator had on the deceased’s bounty. This is a reference to the third requirement of the legal test for testamentary capacity, as stated in Banks v Goodfellow, that a testator shall be able to comprehend and appreciate the claims to which he ought to give effect.[13]
[13](1870) LR 5 QB 549, 565 (Cockburn CJ).
This third requirement requires an awareness by the testator of the individuals who might reasonably have a claim on his testamentary bounty. Counsel for the caveator submitted that this requirement ties in to two concepts, being the content of the deceased’s bounty and his estate at the relevant time. Although not elaborated upon in submissions, the content of the deceased’s bounty is taken to mean the category of person who might reasonably have a claim on the testator’s testamentary bounty and the estate at the relevant time is taken to mean the deceased’s estate at the time the 2016 will.
In support of the allegation that the 2016 will did not reflect the claim that the caveator had on his bounty, the caveator refers to his close relationship with the deceased described in the amended particulars as regular visits and telephone calls made by him to the deceased after 2010. He also alleges that the fact he is not a beneficiary under the 2016 will, yet is a beneficiary under the deceased’s previous three wills, means that the deceased did not have the ability to understand and assess the relevant claims on his bounty in February 2016.
The deceased’s wife predeceased him and he had no children. Of his extended family, the deceased’s seven siblings predeceased him and he was survived by his nephews and nieces, one of whom is the caveator. The caveator is alleging that the deceased should have considered him when weighing and judging the claims on his bounty. Prima facie, the caveator is not a person who might reasonably be considered a natural object of the deceased’s testamentary bounty or have a claim on it. He is not a person who falls within the category of ‘eligible person’ under the family provision legislation, as defined in s 90 of the Administration and Probate Act 1958, nor do the amended particulars support any moral claim on the deceased’s bounty under the family provision legislation.
With no claims on his bounty, the deceased was free to exercise his testamentary freedom in disposing of his estate and was free to change his testamentary dispositions. The deceased’s previous three wills made provision for his siblings, nephews, nieces and friends, the latter being the second plaintiff and her husband. In the changes made to his wills, the deceased excluded his sister from the 2014 will because she died in 2013 and he excluded the caveator from the 2016 will for reasons now set out.
The deceased’s reasons for the exclusion of the caveator resulted from a falling out between the deceased and the caveator. The caveator describes the deceased’s stance in the falling out as a delusion whereby the deceased’s judgment was affected. The circumstances of the falling out were that the deceased alleged the caveator had not repaid an $800 loan to him and the caveator had shown copies of the deceased’s 2014 will and a contract of sale of the deceased’s land to other members of his family without his permission. As a result, the deceased attended on his solicitors, Power & Bennett, on 4 February 2016. On that day, he instructed his solicitor to draw up the 2016 will, which he signed in the presence of his solicitor and a law clerk. He also instructed his solicitors to write to the caveator about the two issues. The issues were the subject of correspondence between the plaintiff’s solicitors and the caveator on 9, 15 and 16 February 2016, as exhibited to an affidavit by the caveator sworn 23 August 2018.
By letter dated 9 February 2016 to the caveator, Power & Bennett set out the deceased’s instructions concerning the loan of $800, informed the caveator that the deceased expected the loan to be repaid and sought repayment of the loan from the caveator. The letter also stated that the deceased had become aware that the caveator had, without the deceased’s permission, obtained a copy of the deceased’s 2014 will and a contract for the sale of part of his farm to the first plaintiff and shown these documents to other members of the deceased’s family. The letter informed the caveator that the caveator was not welcome to contact the deceased directly, or to attend his premises or approach him any further.
By letter dated 15 February 2016, the caveator vigorously denied the allegations. By letter dated 16 February 2016, the deceased’s solicitors described the circumstances of the loan as being made in cash directly between the deceased and the caveator and again informed the caveator that the deceased did not wish to have any further contact with the caveator.
While the caveator’s responses vigorously denied the allegations and sought particulars of the loan and other allegations, at no time did he describe the deceased as suffering from a delusion. The difference of views between the caveator and the deceased provide a rational explanation for the deceased to exclude the caveator from the 2016 will.
Notwithstanding that the caveator is not a person who has a claim on the deceased’s bounty, the remaining particulars under this ground will still be considered.
The particulars in paragraph 5 of the amended particulars allege that by the time the deceased died at the age of 86, he had suffered from Alzheimer's disease for five years, as recorded in the deceased’s death certificate. The particulars also allege that by January 2016, the deceased’s Alzheimer's disease had progressed to a point where he was not living an independent life at home and he required supervision for his medications, meals, hygiene, doctor’s appointments and daily tasks. The particulars refer to short-term memory loss being observed by the caveator, such as not remembering the death of his cat and not being able to follow instructions to feed a neighbour’s cat. Reference is also made to the deceased’s physical health and his cognitive decline. These generalised allegations seek by inference to suggest that they are connected to the deceased’s Alzheimer's disease and, therefore, the grounds of objection.
The deceased was formally diagnosed with Alzheimer's disease in 2014 by his specialist, Dr Rosemary Shea, consultant physician in geriatric medicine, although there had previously been a scan where the possibility of Alzheimer's disease had been raised. From the time of that diagnosis by Dr Shea, the deceased took the medication Reminyl to assist in dealing with the disease.
It was common ground that the deceased was living at home in February 2016 and that the deceased had a meals regime whereby he drove himself each day to the local hotel for lunch. It would be usual for the deceased at his age to be assisted in matters such as attending appointments and having some home care and is not necessarily a result of his Alzheimer’s disease. No causal connection is made between the deceased’s Alzheimer’s disease and allegedly not living an independent life and requiring some type of assistance, including the provision of meals.
The particulars also refer to the deceased having enduring attorneys and being a self-funded retiree. The attorneys were appointed in May 2014. There is no causal connection between these facts, the deceased’s Alzheimer’s disease or the deceased’s ability to understand and assess the relevant claims on his bounty in February 2016.
In respect of the allegation that the deceased had significant short-term memory loss, the caveator refers to the deceased’s mini mental scores between 2013 and 2016. While this allegation refers to scores predating August 2014, it is significant to refer to the pattern of the scores for the purpose of the ground of lack of testamentary capacity. On 5 March 2013, the deceased’s mini mental score was 26/30 and on 18 October 2013 it was 19/30. Thereafter, the scores were 20/30 on 11 March 2014 and 27/30 on 29 July 2014. On 17 March 2015, the score was 23/30 and on 22 March 2016 the score was also 23/30. The lowest score was 19/30 on 18 October 2013.
On 8 May 2014, when Dr Shea formally diagnosed the deceased as suffering from Alzheimer's disease, she referred to the October 2013 score and stated that ‘it was probable that the death of [the deceased’s] sister has caused a temporary worsening of his cognition’. This was a reference to the deceased’s sister, Gwen, with whom he lived, who had died two days before the October 2013 test.
The plaintiffs accepted the deceased suffered from Alzheimer's disease and some accompanying memory impairment, however, noted that the deceased was only ever assessed as having memory loss, not cognitive decline. Counsel for the plaintiffs referred to the fact that the mini mental scores between 18 and 24 suggest only mild dementia, and not significant cognitive decline, which is very different.[14]
[14]Nick O'Neill and Carmelle Peisah, Capacity and the Law (Sydney University Press and the Australasian Legal Information Institute, 2nd ed, including 2018 online updates) [4.9.3.1.1].
The fact that the deceased suffered from Alzheimer's disease and some memory impairment does not suggest that the deceased did not have the ability to understand and assess the relevant claims on his bounty in February 2016. Without more, any connection between memory loss and an alleged inability to weigh claims upon his bounty is not causally linked.
Although counsel for the caveator did not refer to the allegation that the deceased had no recollection of the death of his cat in January 2016, counsel for the plaintiffs referred to this as an example of the minutiae relied on by the caveator. It is a reference to the deceased’s mini mental test on 22 March 2016 when he was asked to write a sentence and he wrote ‘my cat’s name is Molly’, which was correct. The allegation is not probative of the deceased’s ability to understand and assess the relevant claims on his bounty in February 2016. Similarly, the particular referring to the neighbour who was an aged care worker asking the deceased to feed her cat while she was away is not probative of the deceased’s ability to understand and assess the relevant claims on his bounty in February 2016.
At trial, the caveator did not rely on paragraph 11 of the amended particulars, which refer to the affidavit of the deceased’s treating doctor, Dr Donald Gang Liu, sworn 21 December 2017 and filed in support of the plaintiffs’ application for probate. In his affidavit, Dr Liu deposes to his opinion that the deceased had testamentary capacity at the time of making the 2016 will, and that the deceased was not suffering from any disorder of the mind or from any insane delusions. The amended particular alleges that Dr Liu’s opinion is flawed as it ‘appears to have been provided well after the 2016 Will’. Dr Liu was the deceased’s long-standing general practitioner over a period of five years. The caveator’s allegation is not probative of the deceased’s ability to understand and assess the relevant claims on his bounty in February 2016.
Suspicious circumstances/lack of knowledge and approval
The caveators rely on the following amended particulars:
Amended Particulars of the Ground of Objection of Suspicious Circumstances/Lack of Knowledge and Approval
14.The Deceased did not know and approve of the contents of the 2016 Will.
15. The following Particulars ought to excite the suspicion of the Court so that the Court’s vigilant and anxious examination of evidence as to appreciation and approval of the contents of the 2016 Will is called for.
16.The Deceased was unable to understand the contents of the 2016 Will by reason of:
a. his age and the progression of his dementia, as detailed in Paragraph 5 above;
b. poor health and constant pain, as detailed in Paragraph 6 above;
c. the effect of malnourishment on his mental state;
17.The Deceased's Home Care records indicate that Patricia Florence Arnott took the Deceased to his appointment with Power & Bennett on 4 February 2016. The 2016 Will is more favourable to herself and her husband due to the exclusion of the Caveator as a beneficiary.
18.The exclusion of the Caveator as a beneficiary in the 2016 Will is a radical departure from previous wills.
19.There is a marked deterioration in the quality of the Deceased's signature to the 2016 Will.
20.The 2016 Will incorrectly refers to the Deceased's niece Julie Elizabeth Campbell as “Julie Elizabeth Bayles”. Julie Elizabeth Campbell's maiden name was “Bale”. Julie Bayles is a law clerk at Power & Bennett.
21.The 2016 Will is inconsistent with the Deceased's statements to the Caveator about caring for all nieces and nephews and not wanting to benefit Patricia Florence Arnott's husband, as detailed in Paragraph 7 above.
22.Power & Bennet have, as detailed in Paragraph 13 above, denied requests by the Caveator’s solicitors for copies of their will file and a Larke v Nugus statement and refused to sign authorities for provision of medical records.
Consideration
Paragraphs 14 and 15 set out the ground of suspicious circumstances and lack of knowledge and approval. The particulars at paragraphs 16, 18 and 21 effectively repeat the particulars under the ground of lack of testamentary capacity. Those particulars do not excite the suspicion of the Court.
Paragraph 17 alleges that the deceased’s home care records indicate that the second plaintiff took the deceased to his appointment at Power & Bennett on 4 February 2016. The plaintiffs deny the allegation. In any event, even if this allegation were accepted, the effect of the change made to the 2016 will assists all of the remaining beneficiaries, not just the second plaintiff and her husband. This particular does not excite the suspicion of the Court.
Paragraph 19 makes a broad-brush and subjective allegation that there was a marked deterioration in the quality of the deceased’s signature in the 2016 will. As the will was signed in the presence of an Australian legal practitioner and his law clerk, there is nothing in the allegation that excites the suspicion of the Court.
Paragraph 20 alleges an incorrect spelling of the surname of the deceased’s niece in that her surname was written as ‘Bayles’. This same spelling was used in all four of the deceased’s wills, not just the 2016 will. The plaintiffs have verified that the person is the beneficiary named in all four wills of the deceased, having been provided with the niece’s birth and marriage certificates by her solicitor. With the spelling error occurring in the deceased’s three previous wills, there is nothing suspicious arising from the spelling error.
At the hearing, the caveator also wished to rely on paragraph 11 of the amended particulars, which refer to the affidavit of Dr Liu sworn 21 December 2017. As stated, Dr Liu deposes that the deceased had testamentary capacity at the time of making the 2016 will, and that the deceased was not suffering from any disorder of the mind or from any insane delusions. Dr Liu’s opinion supports that the deceased had testamentary capacity in February 2016 and it does not support any suspicious circumstance or lack of knowledge and approval in February 2016.
Caveator’s foreshadowed further ground of objection
Despite there being no ground of undue influence alleged by the caveator, at the hearing, counsel for the caveator stated that this ground would be relied on ’at some future point’. As stated, on 18 April 2018, leave was granted to the caveator to file amended grounds by 27 April 2018 that, inter alia, allowed the caveator, if he saw fit, to amend or delete the grounds alleging that the deceased acted under undue influence and the further hearing of the grounds was adjourned to 4 May 2018. The caveator has been granted multiple adjournments for the purpose of preparing his grounds of objection and particulars. It was incumbent on him to provide any particulars of this ground by 4 May 2018 and not at some future point, consistent with the overarching obligations under the Civil Procedure Act 2010.
Conclusions
The caveator has now amended his original grounds on two occasions. He bears the onus of showing a prima facie case to challenge the will on the grounds of lack of testamentary capacity and suspicious circumstances/lack of knowledge and approval. The amended particulars are discursive and wide-ranging. They contain many generalities, are often vague, ambiguous and obscure and they include irrelevant facts. They do not provide a causal connection between the circumstantial facts and the grounds relied on by the caveator. They do not support the grounds that the deceased lacked testamentary capacity at the time he executed the 2016 will or that there were any suspicious circumstances that excite the suspicion of the Court as to the deceased’s knowledge and approval of the 2016 will. The caveator’s amended particulars of grounds of objection do not establish a prima facie case and will be struck out.
Orders
The Court orders that the caveator’s summons filed 7 February 2018 be dismissed.
Costs
The plaintiffs seek that the caveator pay their costs taxed on the standard basis in default of agreement. In default of agreement with this proposed order, the caveator should file short written submissions on or before 29 March 2019.
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