Re Gardiner (No 3)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2015 18727
| LACHLAN OWEN STUART HUGHES and KERRIE LOUISE SLES (as executors of the will of DOUGLAS WILLIAM GARDINER, deceased) | Plaintiffs |
| v | |
| JAMES ALEXANDER GARDINER and others (according to the schedule) | Defendants |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 March 2018 |
DATE OF JUDGMENT: | 31 July 2018 |
CASE MAY BE CITED AS: | Re Gardiner (No 3) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 414 |
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WILLS AND ESTATES — Application for revocation of grant of probate — Whether particulars of grounds establish a prima facie case of testamentary incapacity — Re Egan [1963] VR 318 — Re Watson [2017] VSC 322 — Re Gardiner (No 2) [2017] VSC 699.
EVIDENCE — Onus of proof, presumptions, weight and sufficiency of prima facie case — Nicholson v Knaggs [2009] VSC 64.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C Caleo QC with Mr S T Pitt | Lawson Hughes Peter Walsh |
| For the First, Second and Third Defendants | Mr S Anderson QC with Mr A J Verspaandonk | Holding Redlich |
| For the Fourth Defendant | Mr S Wotherspoon | Thomson Geer |
SCHEDULE OF PARTIES
BETWEEN:
| LACHLAN OWEN STUART HUGHES | First Plaintiff |
| -and- | |
| KERRIE LOUISE SLES | Second Plaintiff |
| -and- | |
| JAMES ALEXANDER GARDINER | First Defendant |
| -and- | |
| SARAH JANE BORRACK | Second Defendant |
| -and- | |
| CHARLES GEORGE GARDINER | Third Defendant |
| -and- | |
| ZOE MAY SLES (a minor, by her litigation guardian, Kerrie Louise Sles) | Fourth Defendant |
31 July 2018
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Revocation principles........................................................................................................................ 1
Testamentary capacity principles............................................................................................... 6
Onus of establishing prima facie case....................................................................................... 6
The applicants’ amended particulars of grounds of revocation................................................ 9
Applicants’ particulars of the deceased’s circumstances and history................................ 10
Written submissions of the applicants......................................................................................... 12
Written submissions of the plaintiffs and fourth defendant................................................... 13
Consideration of the applicants’ prima facie case...................................................................... 15
Behaviour of the deceased......................................................................................................... 15
Employment of the deceased.................................................................................................... 16
Will of the mother of the deceased........................................................................................... 17
Physical health of the deceased from 2005 onwards............................................................. 19
Psychiatric assessment of the deceased in 2006..................................................................... 21
Deceased’s behaviour towards his mother in September/October 2007........................... 21
Deceased’s personality and behaviour.................................................................................... 25
Hospital admission of the deceased in May or June 2015.................................................... 27
Deceased’s relationship with the second plaintiff................................................................. 30
Continuity between the deceased’s 2008 will, 2012 will and last will................................ 32
Natural objects of the deceased’s bounty................................................................................ 33
Financial decisions of the deceased......................................................................................... 34
Applicants’ submissions relying on Larke v Nugus................................................................... 35
Applicants’ submission as to satisfying the conscience of the Court..................................... 39
Conclusions....................................................................................................................................... 40
Orders................................................................................................................................................. 41
HER HONOUR:
Introduction
The first, second and third defendants (‘the applicants’) seek revocation of the grant of probate of the will dated 6 May 2015 of Douglas William Gardiner deceased (‘the last will’), on the ground that the deceased did not possess testamentary capacity at the time of making the last will.
The applicants are the niece and nephews of the deceased. They are the adult children of the deceased’s brother, Robert Gardiner, who pre-deceased the deceased. The applicants receive no benefit under the last will or under his two prior wills made in 2008 (‘the 2008 will’) and 2012 (‘the 2012 will’) respectively.
The plaintiffs are the executors of the last will. Probate of the last will was granted to them on 25 January 2016.
The fourth defendant is a beneficiary under the last will and a minor, represented by her litigation guardian.
The plaintiffs and the fourth defendant oppose the application for revocation of the grant of probate of the last will.
By orders made 8 December 2017, the applicants were to file and serve their grounds of revocation, with their particulars by 22 December 2017. Orders were also made for the filing of objections and responses to the affidavits filed by the applicants and for a hearing of the applicants’ prima facie case for revocation.
The applicants’ particulars were filed on 22 December 2017 and amended on 23 February 2018. At the commencement of the hearing of the prima facie case, the applicants eschewed any reliance on their affidavits filed in support of their summons for revocation.
Revocation principles
The Court in its probate jurisdiction has power to revoke a grant, with such power exercised at the discretion of the Court, having regard to all relevant circumstances in the particular case.[1] An applicant seeking to revoke a grant must show:
[1]Re Lamont (1881) 7 VLR (I) 86; Re Goode (1890) 11 NSWR (Eq) 281; Re Gillard [1949] VLR 378; Re Egan [1963] VR 318; Re Gardiner [2016] VSC 541 (9 September 2016).
(a) standing to make such an application;
(b) a reasonable explanation for the delay in bringing the application; and
(c) a prima facie case to challenge the grant of probate or letters of administration.[2]
[2]See, eg, Offley v Best (1793) 1 Lev 186; (1793) 83 ER 361; Re Gillard [1949] VLR 378, 381; Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VR 318, 320; Van Wyk v Albon [2011] VSC 120 (24 March 2011); Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [285]–[288], [310]; Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53]; Re Watson [2017] VSC 322 (8 June 2017) [15].
The first two requirements have been satisfied by the applicants.[3] These reasons concern the establishment of a prima facie case.
[3]Gardiner v Hughes [2017] VSCA 167 (29 June 2017).
The phrase ‘prima facie’ translated literally means ‘at first sight; on the face of it; as appears at first sight without investigation’.[4] In the legal context, it is typically used as part of the phrase ‘prima facie case’. There is no one fixed meaning attributable to that phrase, and what is required to be shown to establish a prima facie case takes on its character from the context in which it operates.[5] For example, in Beecham Group Ltd v Bristol Laboratories Pty Ltd the High Court defined a ‘prima facie case’ as being established where, ‘if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief’.[6] The High Court has clearly expressed this definition as contextual, with the requirement for a prima facie case to be established sourced from the High Court’s ability to deal with applications for interlocutory injunctions in patent cases in its discretionary jurisdiction under s 31 of the Judiciary Act 1903-1965.[7] The approach adopted in Beecham Group for establishing a ‘prima facie case’ for obtaining an interlocutory injunction was approved by the majority in Australian Broadcasting Corporation v O’Neill[8] in the context of an interlocutory injunction in a defamation action, with the jurisdiction for making the injunctive relief conferred by ss 10 and 11(12) of the Supreme Court Civil Procedure Act 1932 (Tas).[9]
[4]Oxford English Dictionary (2nd ed, 1989) vol XII, 470–1, quoted in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, 616 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).
[5]North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, 615 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ). The importance of context is illustrated in, for example, Bristol Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies and Owen JJ); Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 78 [54] (Gummow and Hayne JJ).
[6]Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies and Owen JJ) (‘Beecham Group’). See also Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729, 735–6.
[7]Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (Kitto, Taylor, Menzies and Owen JJ).
[8]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68 [19] (Gleeson CJ and Crennan J),
81–4 [65]–[71] (Gummow and Hayne JJ).
[9]Ibid 60 [2] (Gleeson CJ and Crennan J), 78 [54] (Gummow and Hayne JJ), cf 121–4 [188]–[193] (Heydon J).
In the Court’s probate jurisdiction, the requirement that an applicant seeking revocation of a grant establish a prima facie case before trial can be traced back to older authorities, as illustrated by the 1893 decision of Wrigley v Buxton.[10] In Wrigley v Buxton, after construing and reconciling the Judicature Act 1883 and Supreme Court Act 1890 and the Supreme Court Rules 1884, the Full Court determined that the proper procedure for the commencement of a proceeding for revocation of a grant was by rule nisi (otherwise known as order nisi),[11] not by action.
[10](1893) 19 VLR 37.
[11]A ‘rule nisi’ is ‘[a] rule or order of the court which is not to take effect unless the person affected by it fails to show some cause against it. Where sufficient cause is not shown, the order or rule is made absolute. In cases where sufficient cause is shown the rule or order is discharged’: LexisNexis, Australian Legal Dictionary (2nd ed, 2016) 1364–5.
In determining the appropriate procedure, the majority in Wrigley v Buxton underlined the benefits of a proceeding for revocation of a grant being initiated by rule nisi. Madden CJ observed that ‘[t]he procedure by rule nisi gave the Court an opportunity in the first instance of insisting that the party seeking to revoke probate should show some ground for making the application.’[12] A’Beckett J similarly concluded that ‘there is a substantial safeguard against attempts to revoke probate in requiring a primâ facie case to be made out before the court grants the rule nisi.’[13] The Victorian authorities since Wrigley v Buxton maintained the centrality of the rule nisi process to the revocation of grants of probate.[14]
[12]Wrigley v Buxton (1893) 19 VLR 37, 44 (Madden CJ).
[13]Ibid (A’Beckett J).
[14]See, eg, Re Lewis (1897) 18 ALR 169 (A'Beckett J); Re Gillard [1949] VLR 378, 382; Re Levy [1953] VLR 652, 660 ; Re Egan [1963] VR 318, 320; Carlisle v Wills [1963] VR 583, 583–4 (Gowans J); Re Podolanski (Unreported, Supreme Court of Victoria (Practice Court), Ormiston J, 28 May 1993) 1–2. Cf Re Oddy (1895) 21 VLR 85, 91–2; Re Sutherland [1910] VLR 118, 120.
The 1990s saw a shift from the rule nisi procedures for governing the administration and probate jurisdiction in Victoria. The various reforms were contained in the Administration and Probate (Amendment) Act 1994. These reforms repealed the order nisi process by which an executor could challenge a caveat lodged with the Registrar of Probate against any application for probate or administration.[15] Order 11 was inserted into the Supreme Court (Administration and Probate) Rules 1994, the predecessor of the current Supreme Court (Administration and Probate) Rules 2014.[16] Order 11 altered the procedure to be used by a party seeking revocation a grant of probate, so that such an application is now made by summons in the probate proceeding.[17]
[15]Administration and Probate (Amendment) Act 1994, s 11.
[16]Supreme Court (Chapter III Amendment No. 1) Rules 1996, r 6.
[17] Supreme Court (Administration and Probate) Rules 1994, r 11.02; Supreme Court (Administration and Probate) Rules 2014, r 11.02.
The effect of this change was summarised by Byrne J in Re Vosahlo deceased; Vosahlo v Kantor:
Prior to the 1996 amendment to the Administration and Probate Rules 1994, an application such as the present proceeded in two stages. The applicant was required to show a prima facie case for revocation in order to obtain an order nisi calling upon the executor to bring the probate into court and to prove the will in solemn form or to show cause why the will should not be pronounced null and void. Under the current procedure the applicant proceeds by summons for an order revoking the grant of probate.[18]
[18]Re Vosahlo; Vosahlo v Kantor [2003] VSC 81 (21 March 2003) [6] (citations omitted).
The new process of application by summons did not alter the requirement for an applicant to establish a prima facie case at the commencement of an application for revocation. This requirement is grounded in the Court’s concerns at the commencement of a revocation application to prevent ‘frivolous or vexatious’[19] proceedings, to ‘show some ground for making the application’,[20] to ensure that there is ‘a case for investigation’[21] and to provide ‘a substantial safeguard against attempts to revoke probate’[22] before an application proceeds to trial.
[19]Re Egan [1963] VR 318, 320; Nicolson v Knaggs [2009] VSC 64 (27 February 2009) [78].
[20]Wrigley v Buxton (1893) 19 VLR 37, 44 (Madden CJ).
[21]Re Egan [1963] VR 318, 320.
[22]Wrigley v Buxton (1893) 19 VLR 37, 44 (A’Beckett J).
Such a process is consistent with case management principles and the overarching obligations in the Civil Procedure Act 2010[23] to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[24] In administering its probate jurisdiction, the Court must seek to give effect to that purpose.[25] There is also the express power of the Court to order summary judgment, including on its own motion,[26] where, for example, the Court is satisfied that an application for revocation has no real prospect of success.[27]
[23]Civil Procedure Act 2010, ss 16–27; see especially s 18. See also Aon Risk Services v Australian National University (2009) 239 CLR 175, 217 [113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[24]Civil Procedure Act 2010, s 7(1).
[25]See ibid ss 8–9; Gardiner v Hughes [2017] VSCA 167 (29 June 2017) [93].
[26]Civil Procedure Act 2010, s 63(2)(c).
[27]Ibid Pt 4.4; Supreme Court (General Civil Procedure) Rules 2015, O 22.
In order to establish a prima facie case, an applicant must provide a sufficient factual basis for his or her grounds of revocation.[28] Mere assertion of facts are insufficient — a causal connection must be shown between the facts asserted and the grounds of revocation. The provision of a sufficient factual basis will define the questions for trial, provide an opposing side with a precise understanding of an applicant’s case and avoid surprise at the trial. Particulars based on mere inference, rather than direct evidence or circumstantial facts that are sufficiently particularised, will be insufficient to support a prima facie case for revocation of a grant of probate.[29]
[28]Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242]; Montalto v Sala [2016] VSCA 240 (7 October 2016) [29]–[30]; Re Watson [2017] VSC 322 (8 June 2017) [16]–[17].
[29]See, eg, Re Smith [1951] VLR 368, 377; Re Watson [2017] VSC 322 (8 June 2017) [38].
The provision by an applicant of a prima facie case does not require findings about conflicting facts or evidence, nor does it require the determination of conflicting evidence or the credibility of any witnesses. The issues addressed in the prima facie case will depend on the adequacy of the particulars of the grounds and be determined in accordance with established probate principles.
Where the particulars of the grounds of revocation are imprecise, vague or inadequate, the Court may order that further particulars be provided within a certain time. Where the particulars are ambiguous, obscure or inadequate the particulars may be struck out.[30] In default of particulars that provide a sufficient factual basis for the grounds of revocation, the Court will dismiss the application. If there is a proper basis for the application, directions will be made for the further interlocutory steps to be undertaken and for the trial of the proceeding.
[30]Re Smith [1951] VLR 368, 377.
Testamentary capacity principles
The applicants’ ground for revocation of the grant of probate is that the deceased lacked testamentary capacity. The test for testamentary capacity is uncontroversial and the principles have been applied by the High Court[31] and at intermediate appellate levels across Australia.[32] The test is set out by Cockburn CJ in the oft quoted case of Banks v Goodfellow as follows:
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.[33]
[31]See, eg, Bailey v Bailey (1924) 34 CLR 558, 566 (Knox CJ and Starke J); Timbury v Coffee (1941) 66 CLR 277.
[32]See, eg, Kantor v Vosahlo [2004] VSCA 235 (16 December 2004); Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (10 July 2009); Frizzo v Frizzo [2011] QCA 308 (1 November 2011) [24]; Tobin v Ezekiel (2012) 83 NSWLR 757.
[33]Banks v Goodfellow (1870) LR 5 QB 549, 565.
Onus of establishing prima facie case
The applicants submitted that the requirement to establish a prima facie case is fulfilled if a doubt is raised as to the validity of the grant on the ‘whole of the evidence’ or if it is ‘show[n] that there is a case for investigation’. The applicants also submitted that it makes no difference to the threshold to be met for establishing a prima facie case whether the application is a revocation application or initiated through the caveat process. They submitted that if a doubt is raised requiring investigation, the plaintiffs, as the propounders of the last will, bear the burden of proving through the trial process that the deceased had testamentary capacity to make the last will.
In support of their submissions, the applicants cited the judgment of Garde AJA (with Beach JA agreeing) in Giarrusso v Veca,[34] who cited the earlier Court of Appeal judgment in Kantor v Vosahlo.[35] In Kantor v Vosahlo, the Court was not considering the issue of onus in a prima facie case; it was considering the onus at the trial of a contested testamentary capacity case, that is, where the applicants had already established a prima facie case. Giarrusso v Veca was an appeal on the costs of a proceeding where a caveator had withdrawn the caveat and thus was not joined as a defendant in the proceeding. In the course of dealing with a one of the grounds of appeal, Garde AJA referred to the onus of proof as stated in Kantor v Vosahlo. These decisions did not consider the issue of the onus to establish a prime facie case, whether it be by the caveat process or by a revocation application and simply stated principles that address the onus of proof in a contested probate proceeding at trial, which are not in dispute.
[34]Giarrusso v Veca (2015) 13 ASTLR 132, 137–8 [22]–[27].
[35]Kantor v Vosahlo [2004] VSCA 235 (16 December 2004) [3] (Ormiston JA), [56] (Buchanan and Phillips JJA).
The plaintiffs’ submissions were premised on the applicants bearing the onus to establish the prima facie case. The fourth defendant submitted that it was the applicants who bore the onus of establishing the prima facie case, consistent with the orders made on 8 December 2017.
In Nicholson v Knaggs, Vickery J considered the issue of the onus of proof on an application for revocation of a grant of probate.[36] His Honour held that the party seeking revocation of the grant of probate bears the initial onus of proof, stating as follows:
[The application] is made by the Plaintiffs for revocation of the grant of probate in respect of the 2001 Will. As such, the Plaintiffs, in their capacity as challengers to the grant, are required to explain their failure to caveat and to demonstrate that there is a question about the validity of the relevant will.
The Defendants accepted, as is the case, that once that has occurred, the Defendants (as propounders) are in the same position as they would have been in had the grant been contested in the normal way.
However, the initial onus rests with the Plaintiffs to move through the first gateway by explaining their failure to prevent the grant by caveat and to establish a prima facie case in opposition to the validity of the Will. To achieve this they must establish that there is at least a prima facie case, demonstrating that there is “something to go on” in opposition to the issue of probate, and that their opposition is “not merely frivolous and vexatious, not merely dilatory, but that there is a case for investigation”.[37]
[36][2009] VSC 64 (27 February 2009) [76]–[80]
[37]Ibid [76]–[78] (emphasis added).
Even where the Court finds that the applicant has established a prima facie case, the Court may nevertheless decline to order a full hearing of the application for revocation.[38] The power to revoke a grant of probate is a discretionary power[39] and consideration of all the circumstances may result in the Court declining to exercise its discretion, such as where an applicant does not have standing or has failed to adequately explain the delay.[40]
[38]Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [79]; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [292]–[293]; Re Goode (1890) 11 NSWR (Equity) 281, 285–7 (Darley CJ), 287–8 (Innes and Stephen JJ); Stanley v Stanley [2000] NSWSC 1133 (8 December 2000) [5]–[8], [33]–[34]; Richardson v Rearden [2006] NSWSC 1252 (17 November 2006) [16]–[21]; Tobin v Ezekiel (2012) 83 NSWLR 757, 761–2 [5]–[9] (Campbell JA).
[39]Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [79], citing Bramston v Morris (Unreported, Supreme Court of New South Wales, Powell J, 20 August 1993) 20; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [292]–[293].
[40]Rasheed v Rasheed (1999) 73 SASR 346, 354–5 [49]–[51] (Prior J), 355–7 [55]–[63] (Duggan J).
If the Court decides to exercise its discretion in favour of an application for revocation, the propounder of the will is then treated, ‘as if he were propounding the will de novo’,[41] that is, ‘the propounders of the will bear the same onus as they would otherwise have had in propounding the will and seeking a grant of probate’.[42] The propounder will bear this ultimate burden of proof on balance of probabilities,[43] although where relevant, will be subject to the ‘shifting evidentiary burden in the context of testamentary capacity’.[44]
[41]Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [51], citing Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [284]–[291].
[42]Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [80], citing Re Egan [1963] VR 318; Kantor v Vosahlo [2004] VSCA 235 (16 December 2004) [3] (Ormiston JA).
[43]Kantor v Vosahlo [2004] VSCA 235 (16 December 2004) [15] (Ormiston JA).
[44]Veall v Veall (2015) 46 VR 123, 175 [170].
Applying these principles, the applicants, as the parties seeking to impugn the grant of probate of the last will, bear the initial onus of proof to establish their prima facie case.[45] They are not required to prove their application will be successful upon its merits after a full hearing. They nonetheless bear the initial ‘evidentiary burden to point to circumstances that … require an investigation as to whether or not there are sufficient grounds to revoke the grant of probate’.[46]
[45]Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [80]; Re Egan [1963] VR 318, 320.
[46]Re Watson [2017] VSC 322 (8 June 2017) [41].
The applicants’ amended particulars of grounds of revocation
The applicants’ amended particulars of grounds of revocation comprise ten pages with paragraphs numbered from 1 through to 27. The first eight pages set out what is described as the ‘Deceased’s circumstances and history’. The remaining two pages set out their ‘Grounds for revocation of the grant of probate made 25 January 2016’ as follows:
(24)At the time of the deceased’s law Will made 6 May 2015 (2015 Will) the deceased:
(a) Did not know and understand the nature and extent of his assets;
(b) Was unable to apprehend, weigh and judge the claims upon his bounty; and/or
(c) Suffered from a condition that interfered with the exercise of his natural faculties in will making.
(25) The first to third [applicants] rely upon the:
(a) Matters particularised in paragraphs 1 to 12, 15, 16, 17,
18(b)and19-2120-23;(b) Fact that at the date of his death, the deceased retained over $5 million in a savings account;
(c) Terms of the 2015 Will which in those circumstances retained the second plaintiff as executrix and but for an annuity of $100,000 to Patrick Gadsby and forgiveness of a debt of $420,000 owed by Gadsby, left her the deceased’s residuary estate subject only to a power of appointment in favour of her children; and
(d) Fact that the 2015 Will represented a continuation of the pattern of making the second plaintiff the major beneficiary established by the 2008 and 2012 Wills.
As stated in paragraph 25(a) of their particulars, the applicants do not rely on paragraphs 13, 14, 18, 19, 26 and 27 of their amended particulars. Paragraphs 13, 14, 18 and 19 set out grounds of objection for a grant of probate of the 2008 will and the 2012 will respectively, however, no grant has been made in respect of those wills as there is a grant of the last will. Paragraph 26 addresses the circumstances and reasons for the applicants not using the caveat procedure effectively. As stated at [9], this issue has been addressed by the applicants. Paragraph 27 is simply a rhetorical statement at the end of the particulars that ‘[i]n the circumstances the grant of probate in respect of the 2015 Will should be revoked.’
Applicants’ particulars of the deceased’s circumstances and history
Paragraphs 1 to 5 of the particulars provide some background concerning the deceased’s employment history, personality, marital status, residential history and behaviour ‘over many years’ that was at times, ‘disinhibited, abusive, violent, lacking in insight and strange.’
Paragraph 6 summarises some provisions of the will of the deceased’s mother made on 18 January 2001. The applicants then allege that the mother’s will treated the deceased differently to his two brothers. A copy of the mother’s will is not before the Court. The applicants ascribe the different treatment of the deceased by his mother to the deceased’s ‘behaviour and demeanour’ around the time that she made her will. The clause of the mother’s will relied on by the applicants reads:
I declare that it is my wish (but without imposing any trust or obligation legally binding upon by Special Trustee) that in the exercise of its powers and discretions in respect of the [Discretionary Trust] my Special Trustee shall have primary regard to the interests of [the deceased] it being my wish that he shall at all times after my death insofar as it is in his best interests be of completely independent means and I further declare that it is my wish that if and when my Special Trustee considers it necessary or desirable in order to provide a companion housekeeper and/or other necessary assistance to manage the household in which [the deceased] resides and to provide him with guidance and companionship.
Paragraphs 7 and 8 set out details concerning the deceased’s medical history, including that he suffered from congestive heart failure from in or around 2005, that in around 2013 he required the insertion of a pacemaker and due to ‘symptoms’ he displayed in May 2006 while in hospital, he was subject to a psychiatric assessment.
Paragraphs 9, 10 and 11 primarily address the deceased’s relationship and behaviour towards his mother between September and October 2007 shortly before and after her death. These paragraphs include that the deceased displayed an ‘inability to properly care for her’ towards the end of her life, in September 2007 he left her unattended for three days and he did not attend her funeral ‘although they maintained a good relationship until her death’. The applicants’ particulars also state that the deceased commenced living on his own for the first time after the death of his mother. Paragraph 11(d) sets out that on the death of the deceased’s mother, the deceased:
Inherited and controlled a large amount of money for the first time in his life as a result of the vesting of his maternal grandfather’s trust settled when he was a young boy, he previously having had limited experience with money and having been financially supported by his mother.
Paragraph 12 states that the second plaintiff was an employee of Equity Trustees since at least early 2005 when she assisted the relationship manager in managing the Gardiner family’s relationship with Equity Trustees, which included a trust created by the deceased’s maternal grandfather in 1954, as well as the deceased’s mother’s personal financial affairs. It is alleged that shortly after the death of the deceased’s mother in October 2007, the second plaintiff undertook the role of relationship manager to the deceased in relation to the ‘protective’ testamentary trust established for the deceased under the mother’s will. It is also alleged that ‘shortly thereafter the deceased’s relationship with the second plaintiff changed from being purely professional, included occasions of inappropriate socialising and became emotionally intense’.
Paragraphs 15 and 16 set out the deceased’s behaviour in connection with his congestive cardiac failure, including discharging himself from hospital and displaying ‘difficult and uncooperative behaviour to medical professionals attempting to assist him’. No date is particularised as to when this behaviour occurred. Paragraphs 17 and 20 set out the deceased’s reduced heart function in 2012 and repeat part of paragraph 7 by stating that in around 2013, the deceased’s congestive cardiac failure deteriorated so that he required a pacemaker to be inserted.
Although the applicants’ disavowed reliance on paragraph 19 of their particulars in support of their prima facie case, they made submissions in respect of paragraph 19(b) where it is alleged that ‘in April 2012 the deceased purchased a property prior to auction for a price in excess of its value and did not live there’. In oral submissions, this property was described as ‘Viewbank’.
Paragraphs 21 and 22 set out the symptoms suffered by the deceased as a result of his congestive cardiac failure, the treatment he received, his attitude to receiving medical treatment and his behaviour towards medical staff. Paragraph 23 alleges that the deceased was suffering cardiovascular impairment of several years standing and his behaviour ‘demonstrated lack of insight and impaired judgment’.
Written submissions of the applicants
The applicants submitted there was a prima facie case for revocation of the grant of probate of the last will on the ground of testamentary incapacity, relying on the totality of the facts outlined in their particulars as raising a doubt or demonstrating ‘a case for investigation’ as to whether the deceased possessed testamentary capacity ‘at any time but including the time of the last Will’.
Relying on Re Tang,[47] the applicants submitted that the standard of proof to be applied in this case where testamentary incapacity is alleged is the balance of probabilities, not the Briginshaw basis.
[47][2017] VSCA 171 (30 June 2017) [85], citing Giarrusso [2015] VSCA 214 (21 August 2015) [27].
The applicants submitted that there is ‘significant continuity’ between the three wills of the deceased, with the last will ‘the third in a chain’. The applicants also submitted that, ‘the 2008 Will is foundational and the circumstances under which it was made are relevant to the making of the subsequent wills including the last will … because of the substantial continuity between them.’ The applicants highlighted the ‘very large benefits’ the second plaintiff receives under all three wills. The applicants reiterated their particulars that after the second plaintiff became the relationship manager of the testamentary trust established under the mother’s will, her relationship with the deceased ‘changed from being purely professional, included occasions of inappropriate socialising and became emotionally intense.’ The applicants concluded that ‘given the nature of the second plaintiff’s role in the deceased’s affairs and the length of relationship at [the time of the making of the 2008 will], she would not be considered a natural object of the deceased’s bounty’.
The applicants referred to Dickman v Holley[48] in which, ‘White J found that pressure placed upon even an otherwise capable testator prevented her from being able to weigh and judge the claims on her bounty.’ The applicants conceded that they were not alleging the kind of pressure that White J was referring to in Dickman v Holley that founded a claim in undue influence, however, they submitted that ‘relational and emotional circumstances can likewise inhibit a testator from being able to weigh and judge the claims on his bounty [and that] this was particularly so in the case of the deceased’s prior history of functioning described in the particulars.’
[48]Dickman v Holley; Re Simpson [2013] NSWSC 18 (31 January 2013) [160].
In addition to their written submissions on a prima facie case, the applicants submitted that:
to date [they] been frustrated in their attempts to obtain information as to how the chain of Wills came to be made in accordance with Larke v Nugus. All requests for information concerning the will making process including copies of the Will files have been refused. The plaintiffs should be required to discharge their burden and satisfy the conscience of the Court that the wills were validly made.
In the absence of any reliance on their affidavits filed in support of the revocation of the grant of probate of the last will, the applicants rely on inferences to be drawn from the circumstantial facts alleged in their particulars to establish their prima facie case.
Written submissions of the plaintiffs and fourth defendant
The plaintiffs and the fourth defendant focused on three main arguments and submitted that the applicants’ grounds of revocation as particularised had not established a prima facie case for testamentary incapacity.
First, they submitted that the applicants failed to provide a sufficient evidentiary basis for the inference of testamentary incapacity as there was no affidavit evidence before the Court and ‘the majority of the [applicants’ particulars] constitutes mere background’ that had ‘no evidentiary foundation’. The plaintiffs also noted that it was ‘striking that there is no evidence from any independent person; the only evidence is from lay persons who have an interest in the proceeding’.
Secondly, the plaintiffs and fourth defendant relied on the established principle that the relevant time at which testamentary capacity must be assessed is at the execution of the last will,[49] whereas the a majority of the applicants’ facts were ‘long before the time of execution of the [last will]’ and by implication of marginal relevance.
[49]Re Montalto [2016] VSC 266 (23 May 2016) [31], [34]; Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016).
Thirdly, the applicants’ particulars were said to be ‘imprecise, vague, ambiguous, obscure or inadequate’ and, accordingly, should be accorded no weight.
Relying on these three main arguments, the plaintiffs and the fourth defendant submitted that:
(a) mere reliance by the deceased on others to assist him with his financial affairs was insufficient to establish an inference of testamentary incapacity;
(b) any eccentricity or strangeness in the deceased’s behaviour was insufficient, without more, to support an inference of testamentary incapacity;
(c) the will of the deceased’s mother was made well before the deceased’s death and any inference to be drawn about the capacity of the deceased at that time, on the basis of the paternalistic measures in her will, was not temporally connected to the capacity of the deceased at the time of making the last will;
(d) the relevant assertions surrounding the deceased’s physical and mental conditions were mere assertions without sufficient evidentiary basis, and even if the facts could be proven, the applicants had failed to identify how these conditions affected the deceased’s testamentary capacity at the time he made the last will;
(e) the references to ‘inappropriate socialising’ and the ‘emotionally intense’ nature of the relationship between the deceased and the second plaintiff were merely ‘tabloid phrases’ that could not give rise to the requisite inference;
(f) the location of the Viewbank property purchased in 2012 had ‘special value to the deceased’; and
(g) the size of the deceased’s savings account at the date of his death merely demonstrated, ‘a measure of judgment and resourcefulness on the part of the deceased’.
Consideration of the applicants’ prima facie case
Consistent with established probate principles, the relevant time for consideration where testamentary capacity of a deceased is impugned is shortly before and at the time of the making of the will under challenge.[50] The deceased’s last will is dated 6 May 2015 so that the relevant time on this application is shortly before and on 6 May 2015 (‘the relevant time’).
[50]Re Montalto [2016] VSC 266 (23 May 2016) [31], [34]; Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016).
The substance of the particulars relied upon by the applicants has been set out, however, further details of the particulars will be referred to and some will be repeated in the consideration of the applicants’ prima facie case.
Behaviour of the deceased
The applicants allege that the deceased displayed behaviour which was at times, ‘disinhibited, abusive, violent, lacking in insight and strange.’ In oral submissions, the applicants submitted that ‘these [first three] characteristics … are not normal behaviour of a normal person’, that lacking in insight ‘is not an ordinary state of human existence’ and strange behaviour may mean the deceased’s mind was not ‘free to act in a natural and ordinary manner’. The applicants made no oral submissions about the alleged ‘violent’ behaviour of the deceased. These allegations of the deceased’s behaviour are vague, obscure and imprecise, taking on the character of conclusions without any supporting facts, and can be given little weight.
Employment of the deceased
The applicants contend that the deceased ‘was not capable of maintaining paid employment and had not been in such employment since the 1980s even though he suffered no physical disability for much of that time’. This particular may be referring to a mental health issue or an issue of capacity for the deceased.
At the hearing, the applicants conceded that this fact ‘of itself, does not amount to much, probably not’, however, submitted that it was a ‘relevant matter [when] all of the particulars [are] taken as a whole’. As a matter of principle, the applicants’ particulars are considered as a whole in order to determine whether there is a prima facie case. The applicants’ assertion that the deceased was ‘not capable’ cannot be given much weight, in isolation or as part of the entirety of the particulars. A person may be ‘not capable’ of maintaining employment for a multitude of reasons, other than mental incapacity, such as being unskilled, there being a poor job market, being unwilling to work, possessing a difficult personality, having caring responsibilities, or being wealthy enough so that it is unnecessary to be in paid employment. When considered in the context of the other particulars, there is no detail or any causal connection to other particulars that may provide support for the allegation.
Other particulars relied on by the applicants weaken the inference sought to be drawn from the deceased’s working history. In the last 10 years of the deceased’s life, several reasons may be inferred for the deceased not being in paid employment, such as his heart condition from 2005 onwards, the responsibility of caring for his mother prior to her death in 2007 and his inheritance of a ‘large sum of money’ in 2007. While the applicants allege the deceased was financially dependent on his mother, they also allege that since a young child, he was the beneficiary of a trust settled by his maternal grandfather, which was the same trust that vested a ‘large sum of money’ in him in 2007.
Will of the mother of the deceased
Paragraph 6 of the particulars focuses on the desire expressed by the deceased’s mother in her will made 18 January 2001 for the deceased to receive a level of financial oversight not imposed on the deceased’s siblings, as well as domestic help. The applicants allege that the mother’s will was drafted in this way because of ‘the deceased’s behaviour and demeanour.’
In oral submissions, the applicants submitted that ‘it is logical and flows naturally that there was concern about whether the deceased could manage those funds himself … [and] goes to an issue about the capacity of the deceased to understand the extent of the assets he had’. The applicants also rely on the provisions of the deceased’s mother’s will to support the contention that the deceased ‘suffered from a condition that interfered with the exercise of his natural faculties in will making.’
On its face, it is unclear why the manner in which the deceased’s mother decided to exercise her testamentary freedom is reflective of a mental condition or incapacity of the deceased at the time she made her will in 2001 or its relevance to the deceased’s capacity at the time he made his last will in 2015. Testamentary trusts are employed by testators for a wide variety of reasons. The applicants provided no further particulars, nor made any submissions, concerning the deceased’s behaviour and demeanour at the time of the mother making her will, or to support their contention that this was a factor that influenced the mother’s decision to create a testamentary trust in his favour.
There are no facts concerning the mother’s motivations for drafting her will in the manner that she did and, in the absence of facts, no motivations can be imputed. In oral submissions, the applicants submitted that ‘it may be demonstrated in the medical records that there was a reason why [the mother] did something special in relation to the deceased’. Assuming this is a reference to the deceased’s medical records, this submission does not advance the applicants’ case. The Court determines whether the applicants have established a prima facie case on the particulars filed by them, not on conjecture as to medical records of the deceased. In addition, any medical evidence of the deceased suffering a mental condition in 2001 is not relevant to the time of the making of the last will without a demonstrable causal link across the 14 intervening years.
Even if the facts showed that the mother’s testamentary dispositions were influenced by the deceased’s ‘behaviour and demeanour’, it does not follow that this behaviour was indicative of mental incapacity. As stated, many reasons exist for the creation of testamentary trusts in favour of adult children, such as protection from creditors, gambling addictions, substance abuse and asset protection. There is also no allegation that the deceased’s mother was a medical professional and any opinion she formed concerning the deceased’s capacity can be given little weight.
The extract of the mother’s will relied on by the applicants shows that the mother’s wishes included that ‘at all times after my death insofar as it is in [the deceased’s] best interests [he] be of completely independent means’. At the hearing, the applicants submitted that this wish, as expressed, was ‘taking that out of the hands of the deceased… so [that] suggests that there’s a difficulty in managing the household’. The applicants conceded in oral submissions that a difficulty in managing a household ‘may not be here or there. Plenty of people have problem with that, probably.’ However, the applicants also submitted that the issue of the companion housekeeper, together with the mother’s wish concerning ‘guidance’ and the creation of the trust, ‘calls into question why the deceased would be treated specially, as opposed to the other siblings.’
The mother’s wish concerning domestic support for the deceased was qualified by the statement that it be provided to the deceased ‘if and when my Special Trustee considers it necessary or desirable’. The conditional and qualifying nature of the phrases ‘of completely independent means’ and ‘if and when … necessary or desirable’ indicate that at the time the mother made her will, the deceased was both independent and not currently in need of any domestic support. The interpretation of the mother’s will advanced by the applicants and its relevance to the deceased’s capacity is not supported by the terms of the mother’s will.
Had the terms of the mother’s will been shown to be relevant to the deceased’s capacity at the time her will was made, the applicants’ particulars do not provide support for why the will or the deceased’s capacity in 2001 are relevant to his capacity in 2015 when he made his last will. The weight and relevance of these particulars are marginal in establishing the applicants’ prima facie case. Notably, the deceased had autonomy over his substantial inheritance from 2007 onwards and his autonomy was not interfered with by any family members during his lifetime.
Physical health of the deceased from 2005 onwards
The applicants allege that the deceased experienced a troubling decline in physical health from in or around 2005 when he began suffering from congestive cardiac failure. This condition progressively deteriorated over subsequent years and the deceased had a pacemaker inserted in or around 2013. None of these facts are temporally proximate to the time the deceased made his last will and are of marginal relevance and weight to the applicants’ challenge to the deceased’s testamentary capacity in May 2015.
While the applicants also advanced the argument that the deceased never had capacity, and these facts may be prima facie of more relevance to that argument, the particulars do not demonstrate any causal connection between the deceased’s physical health from 2005 to 2013 and his mental health. These additional particulars concerning the deceased’s physical health between 2005 and 2013 do not provide support for the ground of testamentary incapacity and the deceased’s physical ailments would not have diminished his testamentary capacity if he did not possess it at any time.
Of greater relevance are the applicants’ particulars that address the deceased’s physical ailments and behaviour in the months leading up to the making of the last will. The applicants’ allege that:
In January 2015 the deceased tired easily, was unable to continue conversations, suffered severe fluid retention, was non-compliant with prescribed medication (such as Lasix and beta blockers) in relation to his physical conditions and required defibrillator shock treatment, in one week requiring up to 14 such treatments.
These particulars outline physical symptoms suffered by the deceased as a result of his heart condition, his attitude towards taking prescribed medication for his physical conditions, and the treatment he received for his physical conditions. However, in oral submissions, the applicants submitted that ‘the inability to continue conversations speaks of an impairment of the deceased’s mental capacity’. The applicants made no further oral submissions about why this inference could or should be drawn, nor did they point to surrounding facts that would support this inference. The surrounding facts in the particulars address only the deceased’s physical health and associated treatment. Breathlessness is a common symptom of congestive heart failure. The applicants’ particulars lack specificity and context to support an inference that the deceased’s inability to continue conversations had its cause in a mental, rather than physical, condition.
The applicants also made oral submissions that the defibrillator shock treatment required by the deceased ‘is not normal and may indicate an impairment of health, which may impact upon his mental capacity.’ The defibrillator treatment was related to the deceased’s heart condition and, in this regard, indicates that the deceased was suffering from ‘an impairment of health’, as submitted by the applicants. The applicants did not make any other submissions to support the contention that there ‘may’ be a causal link between the physical impairment that necessitated the defibrillator treatment and a negative impact on the deceased’s mental capacity. As stated, mere proof that the deceased suffered a serious physical illness is insufficient to establish a prima facie case for testamentary incapacity. If the applicants maintain that the deceased never had capacity, then defibrillator shock treatment administered when the deceased was middle-aged is irrelevant. The particulars fail to establish any causal connection between the deceased’s physical condition and his mental capacities.
Psychiatric assessment of the deceased in 2006
The applicants allege that ‘[i]n May 2006 while in St Vincent’s Hospital the deceased displayed symptoms such that he was subject to a psychiatric assessment’. This particular is not contextualised by other contemporaneous or subsequent facts concerning any professional assessments of the deceased’s mental health or associated treatment.
The applicants do not allege any other supporting facts that demonstrate a causal link between this event and the deceased’s capacity at the relevant time of making the last will. The applicants submitted that the psychiatric assessment ‘wouldn’t have been done frivolously. It would have been done because there would have sought [sic] to be a need to do so. Or a need to investigate something in relation to the mental state of the deceased.’ While this submission may be correct, if the psychiatric assessment did in fact occur, it does not materially advance the applicants’ prima facie case as it does not assist in understanding why a psychiatric assessment conducted in 2006 is relevant to the testamentary capacity of the deceased in 2015. In oral submissions, the applicants submitted that the deceased’s mental health could have ‘improved, got worse, [or] there was never any issue in the first place.’ One in five Australians experience a mental illness of varying degrees in any year.[51] In the absence of any further particulars concerning the psychiatric assessment and its outcome, and without supporting circumstances in the intervening years between 2006 and 2015, one psychiatric assessment must be considered of marginal relevance and weight in determining whether a prima facie case has been established by the applicants.
[51]Australia Bureau of Statistics, National Survey of Mental Health and Wellbeing: Summary of Results (2007).
Deceased’s behaviour towards his mother in September/October 2007
Paragraph 9 of the applicants’ particulars alleges that:
Towards the end of his mother’s life, the deceased displayed an inability to properly care for her, left her unattended on one occasion for up to 3 days (in September 2007) shortly prior to her death and interfered with the attempts of others to provide appropriate care for her.
In oral submissions, the applicants conceded that paragraph 9, and paragraph 10 considered below, ‘in isolation, may not amount to much.’ However, the applicants also submitted, relying on the judgment of Dixon J in Timbury v Coffee[52] that ‘when your Honour looks in the whole, at all of the matters, we say it exhibits behaviour which is not natural, and not ordinary… [or] regular’.
[52](1941) 66 CLR 277, 283.
The first fact relied upon is that the deceased was unable to care for his mother, however, no facts set out the cause of this inability and as particularised it is ambiguous and vague. While this kind of behaviour could be symptomatic of some kind of mental condition, the applicants provide no facts to support such an interpretation. Chronologically, the most recent fact is the psychiatric assessment of the deceased in May 2006, approximately 16 months earlier. As particularised, there is no causal relevance between the deceased’s ‘inability to properly care’ for his mother in late 2007, the psychiatric assessment in 2006 and his testamentary capacity in 2015. Looking at the applicants’ particulars as a whole, the deceased began suffering from congestive heart failure in or around 2005. By the time his mother was dying in late 2007, the deceased would have been suffering from this condition for more than two years. Whether the deceased’s physical ailments contributed to the cause or causes of his inability to care for his mother is not addressed by the applicants.
The second fact relied upon is that the deceased left his mother unattended for several days shortly prior to her death. Similar to the above fact, the applicants do not provide any facts concerning the cause of this absence, rendering this particular vague. The applicants did not address why or where the deceased went, whether the deceased was his mother’s primary carer, the level of support provided by other family members, community organisations or the council, or whether the mother was able to live independently up until her death. Leaving an elderly mother unattended could be symptomatic of some kind of mental condition but in the absence of any relevant surrounding circumstances, it is difficult to assess the seriousness of this behaviour or whether it is indicative of the deceased’s mind not acting ‘in a natural, regular and ordinary manner’, as submitted by the applicants.
The third fact relied upon is that the deceased interfered with attempts by others to provide appropriate care for his mother. This could be indicative of the ‘deceased’s mind not acting in a natural, regular or ordinary manner’, as submitted by the applicants. Assessing whether this is the case is made difficult by the absence of any supporting factual basis and as particularised, it is ambiguous and vague. The applicants’ particulars to not address why the deceased interfered with such attempts, what this interference constituted, whether it had a negative impact on the health of the mother, or if family members or medical professionals needed to intervene to ensure care for the mother. As particularised, only minimal weight can be given to it as supporting an inference that in September/October 2007, the deceased’s lacked testamentary capacity. The weight that this fact can be accorded as supporting an inference that the deceased lacked testamentary capacity at the relevant time in May 2015 is negligible.
Considering the three facts, together with the applicants’ particulars as a whole, their probative value is not significantly increased given the paucity of surrounding facts to support an inference that this behaviour is symptomatic of a mental condition suffered by the deceased in late 2007. In addition, the remoteness in time from the making of the last will in 2015 and the contradictory fact of the deceased’s autonomy over the money vested in him absolutely on his mother’s death, renders these facts of negligible weight to the applicants’ prima facie case.
Paragraph 10 of the particulars states that the deceased did not attend his mother’s funeral, despite having a good relationship with her. As particularised, this allegation is somewhat obscure. However, the facts in paragraph 9 are broadly contemporaneous and the applicants grouped consideration of these two paragraphs together in their oral submissions to support the submission that the deceased’s mind was not acting in a ‘natural, regular and ordinary’ manner.
The background and history of the deceased, as particularised by the applicants, emphasises the close relationship the deceased had with his mother and their
co-habitation until her death. In such circumstances, it is uncontroversial to infer that the deceased is likely to have experienced grief on the death of his mother. The applicants’ particulars and submissions do not address the cause or reason why the deceased did not attend his mother funeral, whether grief should be discounted as a contributor to the deceased’s behaviour at this time, or crucially, why a mental condition should be preferred as the explanation. Consideration of the facts in paragraph 9 do not advance the applicants’ case in this regard, as those facts also fail to demonstrate that the deceased’s behaviour is attributable to a mental condition or incapacity. Without more, the deceased’s failure to attend his mother’s funeral cannot support an inference that the deceased’s mind was not acting in a ‘natural, regular, and ordinary manner’ in October 2007 and it cannot support an inference that the deceased did not have testamentary capacity in May 2015.
The surrounding facts particularised by the applicants undermine their assertion that the deceased lacked capacity in 2007 and that this incapacity continued through to the time of the making of the last will in 2015. The applicants allege that on the death of his mother, the deceased began living alone and gained control of a large amount of money for the first time in his life due to the vesting of his maternal grandfather’s trust. They also allege that the deceased had limited experience with money and previously had been financially supported by his mother. However, it is apparent from the whole of the applicants’ particulars that the deceased continued to live independently for the next eight years of his life before his death and managed this ‘large amount of money’ independently without any intervention by, or support from, his family.
In written submissions, the applicants submitted that when the 2008 will was made, the 80 per cent share of the deceased’s estate bequeathed to the second plaintiff was valued at approximately $36 million, making his entire estate approximately $45 million. When considered together, it appears incongruous that the applicants allege the deceased never had capacity when the deceased managed his own financial affairs, particularly in the context of his wealth.
Deceased’s personality and behaviour
In addition to paragraph 1 of the particulars, where the applicants allege in general terms that the deceased displayed behaviour that was disinhibited, abusive, violent, lacking in insight and strange, the applicants particulars also include several other general assertions of this kind and that are temporally non-specific, including the following:
3The deceased was socially awkward and isolated with few, if any, friends and was a lonely man.
…
15The deceased lacked insight into his medical condition and had checked himself out of hospital on multiple occasions against medical advice.
16The deceased displayed difficult and uncooperative behaviour to medical professionals attempting to assist him including:
(a)Paramedic staff;
(b)Doctors; and
(c) Hospital staff (including nursing staff upon admission to Mornington Private Hospital).
A history of unusual or anti-social behaviour does not, of itself, speak sufficiently to whether the deceased had testamentary capacity at the time of making the last will. A testator may behave in an eccentric manner, indeed intolerably so to those around them, in the years and moments leading up to the making of his or her will. The eccentric behaviour of the deceased will not, of itself, deprive the deceased of testamentary capacity.[53] The task to be addressed is to distinguish between ‘evidence of eccentric living habits from evidence of cognitive decline’.[54]
[53]Pilkington v Gray [1899] AC 401, 407; Re Griffith; Easter v Griffith (1995) 217 ALR 284, 295 (Kirby P), citing Banks v Goodfellow (1870) LR 5 QB 549, 560; Nicholson v Knaggs [2009] VSC 64 (27 February 2009)
[316]–[318]; Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [72].
[54]Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [316].
A testator has testamentary capacity if he or she was able to ‘comprehend the nature of what he was doing, and its effects; … realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him’.[55] For the validity of a will to be impugned, any evidence or assertion of the oddity or eccentricity of a testator must be shown to symptomise a deeper incapacity of the mind before that behaviour will relevantly assail the testamentary capacity of a will-maker.
[55]Timbury v Coffee (1941) 66 CLR 277, 283 (Dixon J), quoting Re Wilson (1897) 23 VLR 197, 199 (Hood J).
The deceased’s resistance to medical treatment, whether this was indicative of irrational behaviour by the deceased, and if so, whether it was of such magnitude as to be symptomatic of an underlying mental illness or lack of capacity, is considered further below in relation to paragraphs 22 and 23 of the particulars. In paragraph 15, the applicants allege, inter alia, the deceased ‘lacked insight’ into his medical condition. This allegation is repeated in paragraph 23 and in paragraph 1 as a more general statement. In oral submissions, the applicants submitted that the deceased checking himself out of hospital against medical advice ‘would go to irrational behaviour and that indicates that there may be an issue to be investigated about your mental health and capacity. Particularly in light of the fact that there’s a 2006 psychiatric assessment.’
Paragraph 15 and the applicants’ submissions addressing this paragraph add only minor additional support to their prima facie case by expanding the already particularised instance in May/June 2015 of the deceased checking himself out of hospital against medical advice, to multiple occasions at an unknown time. If the applicants followed the pattern of their particulars being largely chronological with respect to paragraphs 15 and 16, the events described in these paragraphs occurred sometime after the making of the 2008 will and up to 2012. While the applicants submitted the 2006 psychiatric assessment was relevant to the deceased’s behaviour as particularised in paragraphs 15 and 16, and by implication the inference of testamentary incapacity, the applicants particulars do not support this inference. The applicants do not show a causal link between the deceased’s mental state and behaviour, such that the latter would be symptomatic of the former, or any continuity between the episode that precipitated the psychiatric assessment of the deceased in 2006 and the deceased’s behaviour as alleged in paragraphs 15 and 16.
Paragraph 16 also adds little to the applicants’ prima facie case, considering the facts already particularised concerning the deceased’s resistance to medical treatment,
non-compliance with prescribed medication, and behaviour towards medical staff at Mornington Private Hospital in May/June 2015 and at an unspecified hospital in January 2015.
Even if findings were made to the contrary with respect to paragraphs 15 and 16, the applicants do not address how the alleged irrational behaviour by the deceased that may be symptomatic of a mental illness suffered by him between 2008 and 2012 is relevant to his testamentary capacity in 2015.
The applicants do not particularise with any sufficiency or place the impugned behaviour in the above paragraphs in any relevant context, and they do not establish any causal connection between the impugned behaviour and the mental capacity of the deceased. As drawn, the applicants’ particulars are not capable of supporting the inference that the impugned behaviour was symptomatic of mental impairment of a kind that vitiated the deceased’s testamentary capacity.
Hospital admission of the deceased in May or June 2015
The applicants’ particulars set out the deceased’s heart condition of several years standing and his admission to hospital for this condition in or around May or June 2015. The admission to hospital is closely contemporaneous with date of the making of the last will and the applicants’ allege that the deceased:
22 …
(a) Was suffering from an acute cardiac arrhythmia (irregular heartbeat) requiring Lasix;
(b) Had been in hospital that morning but had discharged himself from hospital in Melbourne or alternatively, been discharged due to his behaviour without his cardiac condition being resolved;
(c) Required re-hospitalisation later the same day at Mornington Private Hospital;
(d) Was abusive, belittling and demeaning to medical professionals attempting to help him;
(e) Stated that he was “allergic to oxygen”; and
(f) Resisted professional medical treatment by stating that he did not need a medication (oral Lasix) for fluid build-up which had been recommended by a cardiologist.
Mere proof that the deceased suffered a serious physical illness is insufficient to establish a prima facie case for testamentary incapacity: there must be a factual basis to establish that ‘the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property’.[56] Based on the particulars, the deceased’s admission to hospital was precipitated by physical symptoms and complications associated with his heart condition. Admission to hospital for a physical condition of itself does not support an inference that the deceased lacked testamentary capacity or was suffering from a mental condition.
[56]Bailey v Bailey (1924) 34 CLR 558, 571–2 (Isaacs J), citing Bur Singh v Uttam Singh (1910) 38 Calc 367 (Lord Robson), Wingrove v Wingrove (1885) 11 PD 81, 83.
In oral submissions, the applicants submitted that the deceased’s actions in discharging himself from hospital was ‘irrational behaviour and calls into question his state of mind, and raises the issue whether there was some mental illness, or lack of capacity. It's not a normal thing to do, to discharge yourself from hospital, prior to treatment.’ They also submitted that the deceased’s behaviour towards medical professionals and his resistance to receiving medical treatment by saying he did not need medication for fluid build-up was ‘abnormal’ and ‘goes to the deceased not being in control.’ They further submitted that the deceased’s statement he was allergic to oxygen was ‘wholly irrational’ and that:
If he was irrational in relation to that matter, what else was he irrational in, and how could the court have any confidence that the last will and the other two wills at the time they were executed were executed by a person who had testamentary capacity.’
In some circumstances, the refusal of medical treatment by a person may be part of a pattern of irrational behaviour that may call into question that person’s state of mind and, by inference, their capacity, as submitted by the applicants. In other circumstances, refusal to take medication or undergo other treatment may be a deliberate, conscious and rational choice by that person. Within a medical setting, a patient retains autonomy to refuse treatment, to discharge themselves from hospital against the recommendation of doctors, to provide ‘do not resuscitate’ instructions, advanced care directives, and other actions that limit the level of medical intervention they receive.[57] While a decision by a patient to limit or refuse medical treatment may be distressing for family members, in many circumstances, the patient has a right to do so. An inference of testamentary incapacity cannot be drawn simply because a person makes a decision that seems unwise to others. An unwise decision in this context can still have been made by a person who has fully understood, retained and weighed the relevant information before them.
[57]See, eg, Medical Treatment Act 1988; Medical Treatment and Planning Decisions Act 2016.
On the applicants’ particulars, the deceased resisted medical treatment by either discharging himself from hospital or behaving in a manner the resulted in him being discharged by the hospital, stated he was ‘allergic’ to oxygen and that he did not require the medication ‘Lasix’. None of these actions, bar the statement by the deceased that he was ‘allergic to oxygen’, demonstrate any irrationality on the part of the deceased. These actions fall well within the options available to a patient to refuse medical treatment. Further, abusive, belittling and demeaning behaviour towards medical professionals, of itself, is neither irrational nor indicative of testamentary incapacity. Taken together, these particulars are not sufficient to support an inference that the deceased lacked testamentary capacity. At their highest, they show the deceased was a difficult patient on his admission and re-admission and engaged in challenging behaviour that included resisting medical treatment.
The deceased’s statement that he was ‘allergic to oxygen’ may be irrational, however, the applicants’ submissions, in the form of rhetorical questions, that this could indicate the deceased was irrational in other matters and that the Court could not have confidence that the 2008 and 2012 wills were executed by a person who had testamentary capacity, cannot be accepted. Such submissions are broader than can be reasonably supported by the particulars: a single irrational statement is not sufficient as a basis to impugn the deceased’s testamentary capacity at the time it was said, and has no bearing on the deceased’s capacity three to seven years earlier when the 2008 and 2012 wills were made. When considered in the context of the deceased’s consistent resistance to medical treatment, the statement that he was ‘allergic to oxygen’ suggests another example of his resistance to treatment and, without more, does not establish an inference of irrationality of the kind that would cast doubt on the testamentary incapacity of the deceased.
Deceased’s relationship with the second plaintiff
The applicants disavowed any allegation of coercion of the kind that would found a claim of undue influence by the second plaintiff against the deceased. Relying on the comments of White J in Dickman v Holley[58] in which undue influence was found, however, the applicants submitted that, ‘relational and emotional circumstances can likewise inhibit a testator from being able to weigh and judge the claims on his bounty.’ The applicants further submitted that ‘this was particularly so in the case of the deceased’s prior history of functioning described in the particulars.’ The inference seemingly being drawn by the applicants is that the deceased’s relationship with the second plaintiff inhibited his capacity to weigh and judge the claims on his bounty. This submission and the applicants’ reliance on judicial comments made in the context of a finding of undue influence are rejected for the reasons now set out.
[58][2013] NSWSC 18 (31 January 2013) [160].
First, the applicants rely on principles of law relevant to coercion in an undue influence case and purportedly ‘adapt’ them to the ground of testamentary incapacity, specifically the limb of whether a testator was able to weigh and judge claims on their bounty. Any allegations that emotional or relational circumstances inhibited a deceased’s capacity to weigh and judge the claims on his or her bounty are relevant in a claim of undue influence or suspicious circumstances, neither of which are grounds relied on by the applicants. In Dickman v Holley, White J found that the deceased ‘was capable of assessing what persons or institutions had a claim on her testamentary bounty, of evaluating the strength of those claims and discriminating between them’.[59] Crucial to the claim of undue influence, however, was the finding that the deceased, ‘owing to her extreme age, her physical weaknesses and … her emotional liability, I do not think that she was capable of standing up to pressure imposed by others.’
[59]Dickman v Holley; Re Simpson [2013] NSWSC 18 (31 January 2013) [160] (emphasis added).
Second, any emotional or relational circumstances between the deceased and the second plaintiff are irrelevant to the deceased’s testamentary capacity, which the applicants submitted was vitiated by a mental condition or disability. It is the applicants’ case that the deceased did not have testamentary incapacity at any time. Therefore, the deceased’s capacity to weigh and judge claims on his bounty could not be inhibited as, on the applicants’ case, he did not possess that capacity in the first place. If the applicants’ alternative positions that the deceased did not have capacity from in an around 2001, at the time of the making of the mother’s will, or in and around the making of his 2008 will are accepted, the conclusion concerning the inhibiting of his testamentary capacity still holds firm.
In the context of these findings, the relevance of the applicants’ particulars concerning the relationship between the deceased and the second plaintiff to their ground of testamentary incapacity is doubtful. As stated, the facts relied on by the applicants include that from around early 2005, the second plaintiff, in her capacity as an employee at Equity Trustees, assisted another colleague who was the relationship manager to the Gardiner family concerning various trusts and the deceased’s mother personal financial affairs. The applicants state that the second plaintiff became the relationship manager of the testamentary trust created by the mother’s will on her death in October 2007. Shortly after this time, the applicants allege that the relationship between the second plaintiff and the deceased ‘changed from being purely professional, included occasions of inappropriate socialising and became emotionally intense.’ It is not clear from the applicants’ particulars how long the alleged relationship lasted, other than to infer that a relationship of some sort continued as the second plaintiff is the major beneficiary under the deceased’s last will.
These particulars are not relevant to the deceased’s testamentary capacity, either between 2007 and 2015, or at the relevant time in May 2015. Even if relevant, they undermine the applicants’ particulars that the deceased was ‘socially awkward and isolated … [and] lonely’.
Continuity between the deceased’s 2008 will, 2012 will and last will
The applicants also rely on the continuity of the substantial bequests to the second plaintiff in the 2008 will, the 2012 will and last will as indicia of the deceased’s testamentary incapacity at the time of the making of the last will. As stated, the applicants do not rely on paragraphs 13, 14, 18 and 19 in their particulars that outlined the terms of the 2008 will and 2012 will for their ground of revocation in respect of the last will. Despite this, the applicants made written and oral submissions about the 2008 will and the 2012 will.
Under the 2008 will, the 2012 will and the last will the second plaintiff is the major beneficiary of the deceased’s estate. In their written submissions, the plaintiffs submitted that the ‘2008 Will is foundational and the circumstances under which it was made are relevant to the making of the subsequent Wills including the last Will (2015 Will) because of the substantial continuity between them.’ This submission immediately succeeds the paragraph in which the applicants allege that the relational and emotional circumstances between the deceased and second plaintiff inhibited the deceased’s ability to judge and weigh claims on his bounty. In this context, it is assumed that the ‘circumstances’ referred to in relation to the making of the 2008 will means those emotional and relational circumstances. As stated, those circumstances have no relevance to the applicants’ case in the absence of any pleaded grounds of undue influence or suspicious circumstances.
The applicants do not particularise any other facts that are temporally proximate to the making of the 2008 will. There are, therefore, no relevant facts to support an allegation that the deceased lacked testamentary capacity at the time of making the 2008 will. The identifiable facts that are closest in time[60] to the making of the 2008 will include the alleged ‘emotionally intense’ relationship between the deceased and the second plaintiff and that the deceased inherited and controlled a large amount of money from October 2007 on the death of his mother. Neither fact supports the applicants’ submissions that the deceased lacked testamentary capacity and that the second plaintiff was not a natural object of the deceased’s bounty. Those facts, when considered with the whole of the applicants’ particulars, show that the deceased’s financial autonomy over a large sum of money was not interfered with at any point in the intervening eight years.
[60]See paragraphs [79]–[86] for consideration of the applicants’ particulars that are assumed to describe events occurring between 2008 and 2012.
In impugning the validity of the 2012 will, the applicants rely on their prior particulars that address the events in the deceased’s life leading up to the making of the will and the various general statements concerning the deceased’s personality and behaviour. The applicants also rely on the fact that in April 2012, ‘the deceased purchased a property prior to auction for a price in excess of its value and did not live there’. In addition, the applicants rely on the fact that the 2012 will represents a ‘continuation of the pattern’ established by the 2008 will of the deceased leaving most of his estate to the second plaintiff. A single instance, being the 2008 will, does not establish a pattern. Similarly, two instances do not establish a pattern. Even if there might be said to be a pattern, the applicants do not establish why this ‘pattern’ is indicative of testamentary incapacity on the part of the deceased.
Natural objects of the deceased’s bounty
The applicants submitted that because the second plaintiff was acquainted with the deceased through her professional capacity at Equity Trustees, this may raise a prima facie concern that she is not a natural object of the bounty of the deceased. The factual background particularised by the applicants is that the deceased was not married, had no children and his parents predeceased him. In the circumstances, the deceased had no family members or dependants who would be considered the natural objects of his bounty. While the deceased had two brothers, both of them had benefited from the estate of their mother and were adults with families and children of their own.
The applicants do not identify who the deceased should have considered when weighing and judging the claims on his bounty. By inference, it is the applicants, who are the deceased’s niece and nephews, however without more, they would not be considered natural objects of the deceased’s bounty nor are they ‘eligible persons’ under the family provision legislation.[61]
[61]Administration and Probate Act 1958, s 90.
Financial decisions of the deceased
The applicants allege that ‘in April 2012 the deceased purchased a property prior to auction for a price in excess of its value and did not live there,’ referred to in the oral submissions as ‘Viewbank’. Despite this allegation, contained in paragraph 19(b) of their particulars, specifically not relied on by the applicants in support of their ground in respect of the last will, the applicants submitted that this particular supports their claim that the deceased lacked testamentary capacity when he made the 2012 will.
In oral submissions, the applicants submitted that ‘most people would strive to get the best deal possible, or to pay the market rate, not pay in excess of value … [This] is prima facie evidence of irrational behaviour and that may be because of a lack of or difficulty with mental capacity or mental health.’ In some circumstances, irrational financial and living choices may support an inference of testamentary incapacity. Conversely, financial choices that are simply inadvisable do not, of themselves, provide a reliable basis for inferring testamentary incapacity. There are many reasons and circumstances in which a person might pay in excess of the market rate for a property, such as sentimental value, strategic acquisition, investment or inexperience in the property market. At least two of those reasons would result in the purchaser not living at the property. In the case of the deceased, he had a residence in which to live prior to his purchase of Viewbank in April 2012.
An allegation of irrational behaviour symptomatic of a mental condition that vitiates a person’s testamentary capacity needs to be properly particularised. As a minimum, sufficient facts must be particularised to enable the Court to assess whether the scale of the improvident behaviour is such that it supports an inference of irrationality of a kind that casts doubt on the testamentary capacity of a deceased. The bare facts of the purchase of Viewbank and the deceased’s decision not to live there do not support an inference that the deceased lacked testamentary capacity at the time of making the 2012 will. The relevance of these facts, which occurred approximately three years before the deceased made his last will, is marginal given the passage of time between the purchase and the relevant time at which testamentary capacity is to be assessed. As a consequence, this particular does not support the applicants’ ground of testamentary incapacity in relation to the last will.
The applicants also relied on the fact that the deceased had over $5 million in his bank account at the date of his death as supporting an inference that the deceased did not have testamentary capacity at the time of making the last will. It is not clear from the particulars how this fact supports their ground of testamentary incapacity at the time of the making of the last will. The applicants made no written or oral submissions that elucidated any causal connection between the fact and their ground of testamentary incapacity. The amount of the deceased’s savings in his bank account at his death, particularly in the context of the overall value of the deceased’s estate, has no logical nexus with the ground of testamentary incapacity at the date of the last will.
Applicants’ submissions relying on Larke v Nugus
The applicants submitted that their attempts to obtain information about how the ‘chain of wills’ came to be made, including requests for copies of the will files, have been refused, which is not in accordance with the English decision of Larke v Nugus.[62] They submitted that ‘[t]he plaintiffs should be required to discharge their burden and satisfy the conscience of the Court that the wills were validly made.’ This submission is directed towards the deceased’s three wills, not just the last will. As the applicants seek to revoke the grant of probate of the deceased’s last will, it is unclear why these submissions were made when the issue for determination is whether the applicants are able to establish a prima facie case for revocation of the last will.
[62](1979) 123 SJ 327 (21 February 1979).
Although these submissions do not relate to the issue of the prima facie case put by the applicants, the Court will address them. Unusually the decision in Larke v Nugus was not reported until 21 years after it was delivered.[63] Any cases considering the decision are relatively recent, delivered within the last 12 years.[64] This Court has not found any reported decisions where Larke v Nugus has been applied in Australia. Further, upon a proper consideration of the decision, it does not stand for the proposition that the applicants have a right to issue a Larke v Nugus letter to the plaintiffs requesting information concerning the making of the ‘chain of wills’ and the relevant will files, or that such an application creates a corresponding obligation on the plaintiffs to respond to such an application.[65]
[63]Larke v Nugus [2000] WTLR 1033.
[64]See Mausner v Mincher [2006] EWHC 1283 (26 April 2006); Jarrom v Sellars [2007] EWHC 1366 (Ch) (24 April 2007) [11], [17]; Perrins v Holland [2009] EWHC 2558 (Ch) (21 October 2009); [2010] WTLR 95, [4], [9] (Lewison J); Yuen v Fung [2013] HKCFI 2064 (5 December 2013); Yuen v Fung [2014] HKCFI 1471 (10 January 2014); McKenzie v McKenzie [2016] NICh 10 (3 March 2016).
[65]Ibid.
The decision in Larke v Nugus was a decision by the Court of Appeal of England and Wales and concerned an appeal on costs from a proceeding seeking a grant of probate of a will in solemn form where the trial judge, Browne-Wilkinson J, made no order as to costs.[66]
[66]Larke v Nugus (Unreported, High Court of Justice, Chancery Division, Browne-Wilkinson J, 12 December 1977).
At first instance, the salient facts were that one of the plaintiff executors, Mr Larke, was also the solicitor who prepared the testatrix’s will. Soon after the death of the testatrix and prior to an application for a grant of probate being made, the first defendant, who was a beneficiary under the deceased’s will, asked Mr Larke for a copy of the will, which was refused. Several other requests for a copy of the will were also refused by Mr Larke in the intervening months ‘not for any reason that is at all apparent, other than an unwillingness to allow one beneficiary under the will to know what other beneficiaries there were.’[67]
[67]Larke v Nugus [2000] WTLR 1033, 1036–7.
Over the course of the following three years, the plaintiffs made an application for a grant of probate in solemn form and the defendants objected on the grounds of undue influence and lack of knowledge and approval. The defendants also made requests that Mr Larke provide ‘a statement of his evidence regarding the execution of the will and the circumstances surround it’. The request for the statement was supported by a reference to passage from Halsbury’s Laws, which was based on a recommendation from the Law Society of England and Wales that:
Where a serious dispute arises as to the validity of a will, beyond the mere entering of a caveat, and the solicitor’s knowledge makes him a material witness, then the solicitor should make available a statement of his evidence regarding the execution of the will and the circumstances surrounding it to anyone concerned in the proving or challenging of that will, whether or not the solicitor acted for those who were propounding the will.[68]
[68]Ibid 1036.
Mr Larke failed to provide such a statement prior to the trial. At trial on 21 July 1977, the Court heard evidence from one of the attesting witnesses to the will and Mr Larke. In response to several ‘grave’ concerns raised by the trial judge, the defendants withdrew their ground of undue influence. On resumption of the hearing on 12 December 1977, the defendants withdrew their final ground of lack of knowledge and approval, having heard the evidence of 21 July 1977. On hearing evidence from the other attesting witness, the trial judge pronounced in favour of the will by granting probate in solemn form.
In the exercise of discretion as to costs, his Honour considered that the defendants would in the ordinary course pay the costs of the proceeding insofar as the costs related to the undue influence claim.[69] His Honour weighed this against the consideration that the defendants would have their costs from the estate for the ground of lack of knowledge and approval. His Honour considered the defendants acted reasonably in pursuing the ground of lack of knowledge and approval because the circumstances surrounding the execution of the will raised a suspicion about the will, and Mr Larke’s failure to dispel that suspicion by provision of the will and statement of circumstances justified their pursuing the matter to trial.[70] His Honour further considered that costs associated with each ground could not be disentangled given the largely common factual bases, and so the proper order was no order as to costs. [71]
[69]Ibid 1041–2.
[70]Ibid 1043.
[71]Ibid.
On appeal, Brandon LJ, Shaw and Buckley LJJ agreeing, dismissed the appeal finding that:
in all the circumstances of this case, including the unwillingness of the first plaintiff first to provide a copy of the will and secondly to provide any statement of his evidence when asked so to do, the defendants were fully entitled to insist upon the matter being tried out.[72]
[72]Ibid 1045.
In obiter, Brandon LJ, when considering the recommendation of the Law Society said:
I would draw attention to the fact that this recommendation relates to a case where the solicitor’s knowledge makes him a material witness, and deals with his duty to make available a statement of his evidence; that means the evidence which he would give as a material witness.[73]
[73]Ibid 1036.
After considering the recommendation of the Law Society, his Honour also made the following comments:
it is necessary to consider, not only the recommendation itself, but the principle upon which the recommendation is based, and the duty of a solicitor when faced with matters of this kind … in my judgment, the principle which applied is that, when there is litigation about a will, every effort should be made by the executors to avoid costly litigation that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will as to how the will came to be made.[74]
[74]Ibid 1044.
The circumstances of suspicion in Larke v Nugus relevantly included two of the beneficiaries, who had become the deceased housekeepers only within a few months prior to her death and on whom the deceased was dependent for her care, taking a significant benefit of the deceased’s home under her will. The facts and circumstances in Larke v Nugus are substantially different from the applicants’ position. The applicants are seeking to establish a prima facie case on the ground of testamentary incapacity whereas the plaintiffs in Larke v Nugus were seeking a grant in solemn form against a challenge by the defendants on the grounds undue influence and lack of knowledge and approval.
Prima facie, the contents of the will files are of minimal or no relevance to the applicants’ ground of testamentary incapacity. As the 2008 will and the 2012 will cannot be challenged unless the applicants succeed in revoking the grant of probate of the last will, those files are of no relevance to the applicants’ case. As particularised, the applicants case primarily relies on the deceased’s poor physical health, his behaviour and a psychiatric assessment nine years prior to the execution of the last will to support the drawing of an inference of testamentary incapacity.
Further, the recommendation by the Law Society was for a statement of evidence to be provided by the solicitor executor concerning the execution of the will, not for copies of the entire will files. Considerations of client confidentiality still apply after a client’s death, as recognised in the recommendation of the Law Society. The current version of the Law Society’s Practice Note: Disputed Wills also refers practitioners to the confidentiality and disclosure provisions of the relevant solicitors’ code of conduct applicable in England and Wales.[75] In Australia, confidentiality to a client also continues after the client’s death.
[75]Law Society, ‘Legal Status’ in Practice Note: Disputed Wills (6 October 2011) < submission as to satisfying the conscience of the Court
A further submission, also extraneous to the issue of the applicants’ prima facie case, was raised by the applicants. They submitted the plaintiffs have a burden to discharge, which if so discharged would satisfy the conscience of the Court that the wills were validly made.
As with the submissions concerning Larke v Nugus, this submission also appears to be directed towards the last three wills of the deceased. There are no applications for a grant of probate in respect of the 2008 will or the 2012 will as there is a grant of probate of the last will made by the Court on 25 January 2016. A grant of probate is more than just a court order: it is a judicial act and proof of the validity of the will that the plaintiffs sought to propound and an instrument of title that binds parties and non-parties.[76] As stated by Campbell JA in Tobin v Ezekiel, a ‘person who seeks to set aside a judicial act must show that there is good reason why the judicial act should be set aside.’[77]
[76]See, eg, Osborne v Smith (1960) 105 CLR 153; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [228]–[233].
[77](2012) 83 NSWLR 757, [4]–[5].
At this stage of the applicants’ application to revoke the grant of probate of the last will, the onus rests on them to establish a prima facie case for revocation and, until established, there is no basis to contend that the plaintiffs bear a burden to satisfy the Court’s conscience as to the validly of the last will or any other will.
Conclusions
This is the applicants’ second attempt at providing particulars of their grounds of revocation of the grant of probate of the deceased last will. The applicants bear the onus to show a prima facie case to challenge the grant on the ground of testamentary incapacity. The particulars set out a largely chronological history said to be relevant as factual background. These include the deceased’s residential history since birth, his marital status, his lack of work history since the 1980s, the contents of part of his mother’s will made in 2001, a psychiatric assessment in 2006, two previous wills made in 2008 and 2012, his physical health from 2005 up to and after the making of the last will and general statements about his behaviour over the years, such as an alleged relationship with the major beneficiary under his last will.
The particulars are discursive, wide ranging, contain many generalities, are often vague, ambiguous and obscure and include irrelevant facts that hinder, rather than assist, in understanding the applicants’ prima facie case. The applicants’ particulars do not provide a causal connection between the circumstantial facts relied upon and the ground of testamentary incapacity and do not support an inference that the deceased lacked testamentary capacity at the time he executed his last will. When the particulars of grounds of testamentary incapacity are considered in their totality, the applicants have not established a prima facie case for revocation of the deceased’s last will.
Orders
The Court will make the following orders:
(a) The applicants’ summons filed 28 January 2016 for revocation of the grant of probate made 25 January 2016 of the will of the deceased dated 6 May 2015 be dismissed;
(b) In default of agreement concerning costs:
(i) the applicants file and serve written submissions on or before 14 August 2018; and
(ii) the plaintiffs and fourth defendant file and serve written submissions in reply on or before 28 August 2018.
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Re Gardiner (No 3) [2018] VSC 414
Re Theodoulou [2018] VSC 601
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