Re Kelsall
[2016] VSC 724
•30 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2015 08852
| JOHN CHRISTOPHER KELSALL and MERRAN HORNE KELSALL | Plaintiffs |
| v | |
| ROBERT JOHN EVANS (as administrator of the estate of Margaret Anne Kelsall) | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12, 19 September 2016 |
DATE OF JUDGMENT: | 30 November 2016 |
CASE MAY BE CITED AS: | Re Kelsall |
MEDIUM NEUTRAL CITATION: | [2016] VSC 724 |
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WILLS AND ESTATES — Application for grant of probate — Informal codicil — Testamentary capacity — Onus of proving testamentary capacity — Burden of proof — Banks v Goodfellow (1870) LR 5 QB 549 — Briginshaw v Briginshaw (1938) 60 CLR 336 — Timbury v Coffee (1941) 66 CLR 277 — Wills Act 1997, s 9
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M N C Harvey | Taylor Stratmann |
| For the Defendant | Mr S T Pitt | Coulter Roache |
HER HONOUR:
Introduction
Richard Douglas McNaught Kelsall (‘the deceased’) died on 25 January 2015. He left a will dated 2 September 2010 (‘the will’) which was unrevoked at the time of his death. The plaintiffs, John Christopher Kelsall and Merran Horne Kelsall, are the deceased’s brother and sister and named as the executors of the will and trustees of his estate.
According to the inventory of assets and liabilities filed on 18 June 2015, the deceased’s estate was valued at $6,643,628.68, most of which comprised the deceased’s share portfolio valued in excess of $5.5 million.
By his will, the deceased left small legacies to the plaintiffs, certain friends and a number of organisations and groups with which he had an association. He left two properties and $1.5 million and the balance of his superannuation fund to his wife, Margaret Anne Kelsall (‘the defendant’)[1] and the residue of his estate, which included his share portfolio, to his five siblings as tenants in common in equal shares.
[1]By order of the Victorian Civil and Administrative Tribunal made 4 October 2012 and renewed 14 December 2015, Robert John Evans was appointed administrator of the estate of Margaret Anne Kelsall under the Guardianship and Administration Act 1986. Mr Evans, acting in his capacity as Mrs Kelsall’s administrator, was added as a defendant to this proceeding by orders made 26 May 2016. Whilst Mr Evans is the named defendant, I describe Mrs Kelsall as ‘the defendant’ in these reasons for ease of reference.
The deceased also left a handwritten document dated 24 February 2014 and described as an ‘insert to the current will’ (‘the informal codicil’). By the informal codicil, the deceased purports to alter the will by making three additional bequests: two relatively minor monetary bequests to friends, and the more substantial bequest of ‘my portfolio of personal shares’ to the defendant.
The informal codicil is an informal document in that it was not executed in the manner in which a will is required to be executed pursuant to s 7(1) of the Wills Act 1997 (‘the Act’),[2] specifically, the informal codicil was executed before, attested to and signed by only one witness when at least two are required.[3]
[2]Wills Act 1997, s 15(1).
[3]Ibid s 7(1)(c) and (d).
Background
By an originating motion filed on 18 June 2015, the plaintiffs seek probate of the deceased’s will but not the informal codicil. Upon making the application for probate, the plaintiffs stated that they were aware of the informal codicil, though they had only seen a copy of it and not the original. They contend that the informal codicil is not valid because the deceased lacked testamentary capacity when he made the informal codicil.
On 28 July 2015, the defendant lodged a caveat objecting to the plaintiffs’ application. This came after correspondence between the parties’ solicitors on the subject of the informal codicil, which had not been included in the plaintiffs’ application for probate. That line of correspondence was left unresolved and, in November 2015, the plaintiffs’ solicitors noted they were in the process of obtaining counsel’s advice with respect to the validity of the informal codicil as a testamentary document.
On 3 May 2016, the plaintiffs filed a notice to produce the file for a directions hearing in the Trusts, Equity and Probate List on 27 May 2016. The defendant’s solicitors were not aware of this hearing until 23 May, when the Court sent an email to the parties requesting proposed orders and submissions in advance of the hearing.
By this time it was clear that the parties had formed opposing views as to the validity of the informal codicil. The plaintiffs pressed their application for probate of the deceased’s will without the informal codicil, whilst the defendant maintained her position that the informal codicil is valid. In the circumstances, the parties were able to consent to orders listing the proceeding for trial, despite the defendant never filing grounds of objection in support of her caveat.[4]
[4]Cf Supreme Court (Administration and Probate) Rules 2014, r 8.03.
In essence, the defendant seeks to have the informal codicil executed by the deceased on 24 February 2014 admitted to probate as a document that alters the deceased’s last will dated 2 September 2010. As the defendant seeks to propound the informal codicil, she carries the burden of proof. In challenging the validity of the informal codicil, the plaintiffs have put the defendant to her proofs.
Applicable principles
Section 9 of the Act allows the Court to admit to probate a document that has not been executed in conformity with s 7 of the Act, including an alteration to an existing will.[5] Ordinarily, for there to be a valid will or codicil, it must be signed by the testator in the presence of two witnesses.
[5]Wills Act 1997, s 15(1).
However, s 9 of the Act allows a document that fails to satisfy the requisite formalities to be admitted to probate as long as certain conditions are met:
9When may the Court dispense with requirements for execution or revocation?
(1)The Supreme Court may admit to probate as the will of a deceased person—
(a)a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b)a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
…
(3)In making a decision under subsection (1) or (2) the Court may have regard to—
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
Section 9 of the Act enables the Court to dispense with the formal requirements for the execution of a will when admitting a will or codicil to probate. It is a remedial provision. Ordinary principles of statutory construction dictate that it should be given a broad construction.[6] However, as observed in Estate of Peter Brock, its remedial nature must be tempered by the acknowledgement that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[7]
[6]Khoury v Government Insurance Office (NSW) (1988) 165 CLR 622, 638 (Mason, Brennan, Deane and Dawson JJ).
[7]Estate of Peter Brock [2007] VSC 415 (24 October 2007) [19]–[20], [23] (Hollingworth J).
In order to admit an informal will or codicil to probate, the Court needs to be satisfied that the following criteria have been established on the balance of probabilities:
(a) there must be a ‘document’;
(b) the document must express or record the testamentary intentions of the deceased; and
(c) that document must have been intended by the deceased to be his or her will, or form part of his or her will.[8]
[8]Fast v Rockman [2013] VSC 18 (7 February 2013) [46] (Habersberger J); Rowe v Storer [2013] VSC 385 (2 August 2013) [54] (McMillan J). See also Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [56] (Powell JA, with whom Priestley and Stein JJA agreed); Oreski v Ikac [2008] WASCA 220 (31 October 2008) [52]–[53] (Newnes AJA, with whom Martin CJ and McLure JA agreed); Re Trethewey (2002) 4 VR 406, 408 (Beach J); Equity Trustees v Levin [2004] VSC 203 (26 May 2004) [15] (Whelan J); Prucha v Standing [2011] VSC 90 (22 March 2011) [6] (Beach J); In the Will and Estate of Brian Bateman [2011] VSC 277 (24 June 2011) [42] (J Forrest J).
In this case, it is clear the informal codicil is a document that records testamentary intentions of the deceased. The remaining question is whether the deceased intended the informal codicil to alter his will. If the Court can be satisfied that the deceased intended the informal codicil to alter his will, then it is clear that the testamentary intentions recorded in it are those of the deceased. In considering that question, the Court must be satisfied that the deceased, by some words or act, demonstrated an intention that, without any alteration or reservation, the informal codicil should have effect as part of his will.[9]
[9]Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001) [55] (Powell JA, with whom Priestley and Stein JJA agreed); Fast v Rockman [2013] VSC 18 (7 February 2013) [114] (Habersberger J); Re Rosaro [2013] VSC 531 (4 October 2013) [37]–[40] (McMillan J); Re Stuckey [2014] VSC 221 (23 May 2014) (McMillan J).
The relevant authorities on what is required to satisfy the third element are collected in Robinson v Jones.[10] Suffice to say that the intention of the deceased is a matter of fact and each case depends upon its own facts and circumstances. An application under s 9 of the Act is assessed by reference to the requisite document, with the inquiry directed at whether the deceased intended the document to have effect as a testamentary document.
[10]Robinson v Jones [2015] VSC 222 (1 June 2015) [13]–[22] (McMillan J).
In Hatsatouris v Hatsatouris,[11] the New South Wales Court of Appeal observed that it would be necessary for a court to be satisfied that the deceased possessed the relevant intention, ‘either at the time of the subject document being brought into being, or at some later time’.[12] A will or codicil that has not been validly executed will not satisfy the requirements of s 9 of the Act where the testator lacked testamentary capacity, did not know and approve of the will, or was affected by undue influence in making the will. If any of those circumstances apply, then the Court cannot be satisfied that the deceased intended the document to be his will.[13]
[11]Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001).
[12]Ibid [56] (Powell JA). See also National Australia Trustees Limited v Fazey [2011] NSWSC 559 (10 June 2011) [17] (Windeyer AJ).
[13]Re Stuckey [2014] VSC 221 (23 May 2014) [40]–[41] (McMillan J).
For these reasons, issues related to the capacity of the deceased, and the knowledge and approval of the deceased, are relevant factors in considering whether an informal document satisfies s 9 of the Act.
The standard of proof when propounding an informal will
The application of s 9 of the Act and the standard of proof required was set out by Habersberger J in Fast v Rockman:
The person seeking to propound an informal will must establish the requisite elements on a balance of probabilities. Furthermore, because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[14]
[14]Fast v Rockman [2013] VSC 18 (7 February 2013) [48] (citations omitted).
The judgment of Dixon J in Briginshaw states that reasonable satisfaction cannot be established independently of the nature of the issue and the facts to be proved. It does not introduce a third standard of persuasion: the standard of proof remains on the balance of probabilities.[15] This means that an informal testamentary document may still be admitted to probate despite there being a reasonable doubt as to its validity.[16]
[15]See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 450 (Mason CJ, Brennan, Deane and Gaudron JJ).
[16]Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ). See also Re Ludewig; Manning v Hughes [2010] NSWSC 226 (26 March 2010) [63]–[65] (White J); cf Re Griffith; Easter v Griffith (1995) 217 ALR 284, 289–90 (Gleeson CJ).
When an informal document is to be admitted to probate, Briginshaw dictates that reasonable satisfaction should not be attained by ‘inexact proofs, indefinite testimony, or indirect inferences’.[17]
The onus of proving testamentary capacity
[17]Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J) (‘Briginshaw’).
The onus of proving testamentary capacity where there is an informal document lies on the party seeking to convince the court that the deceased intended the informal document to constitute, or form part of, his or her will, with the evidence to be evaluated in accordance the Briginshaw principle.[18] In this case, the onus is borne by the defendant. Because the informal codicil was not formally executed by the deceased, the defendant does not receive the benefit of the presumption that would ordinarily arise in favour of testamentary capacity.[19]
[18] As that standard is applied under s 140 of the Evidence Act 2008.
[19]Veall v Veall (2015) 46 VR 123, 174–5 [168]–[171] (Santamaria JA).
The law of testamentary capacity is discrete. It is independent of other areas of law in which capacity may be an issue. The fact that a testator may not be capable of managing their financial affairs unassisted, and may therefore be subject to a guardianship and administration order, does not mean that they lack testamentary capacity.[20]
[20]Re Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [46] (Lindsay J), citing Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377.
The test for determining whether a person possesses testamentary capacity is well established and was set out by Cockburn CJ in Banks v Goodfellow.[21] In that case, the plaintiff was an intestacy beneficiary of the deceased’s estate. He brought an action to test the validity of a will executed by the deceased pursuant to which the whole estate was left to the deceased’s niece, who died before the administration of the estate and whose interest under the will thereby passed to the defendant.
[21]Banks v Goodfellow (1870) LR 5 QB 549 (‘Banks’).
The plaintiff challenged the validity of the will on the basis that the deceased lacked testamentary capacity at the time he made it. The evidence was that the deceased had been committed to a ‘lunatic asylum’ some years prior to making the will. He was released before making the will but nevertheless ‘remained subject to certain fixed delusions’. Indeed, there was a ‘body of evidence which, if believed, was strong to establish a case of general insanity’.[22] However, the evidence also showed that the deceased was capable of managing his own affairs, particularly his finances. The deceased appeared to be of sound mind on the days on which he gave instructions for and executed the will, there being four weeks between the initial instructions and the formal execution and attestation. The will was executed in the presence of two witnesses and was a formal will in every respect.
[22]Ibid 551–2.
At trial, the judge directed the jury to consider whether, both at the time he gave instructions for the will and when he executed the will:
… the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it.[23]
The judge also directed the jury that ‘the whole burden of showing that the testator was fit at the time was on the defendant.’ The jury found that it was a ‘good and valid will’ and returned a verdict for the defendant accordingly.[24]
[23]Ibid 554.
[24]Ibid.
On appeal, the jury’s verdict was upheld, as were the trial judge’s directions. In delivering the judgment of the Court, Cockburn CJ rejected the proposition put forward by the plaintiff that any unsoundness of mind, irrespective of whether it affects the testator’s ability to dispose of their estate, has the effect of taking away testamentary capacity.[25] His Lordship summarised the law with respect to testamentary capacity by reference to a testator’s power to dispose of their property as they see fit:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is 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.[26]
[25]Ibid 566.
[26]Ibid 565.
The Banks test is a question of degree, which underscores the importance of insisting on more than ‘inexact proofs, indefinite testimony, or indirect inferences’ when making a finding as to testamentary capacity. As Cockburn CJ said, ‘the mental power may be reduced below the ordinary standard’ but, provided a testator retains ‘sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains’.[27]
[27]Ibid 566.
In Timbury v Coffee,[28] the High Court considered the capacity of a testator known to suffer from alcoholism. The testator had executed a will approximately one year before his death in which he substantially reduced his wife’s interest in his estate. His wife was the sole beneficiary under his penultimate will, which had been executed only two months before. It appeared from the evidence that the testator suspected his wife had been unfaithful. In challenging the will, the wife submitted that there was no rational basis for the testator’s suspicions, which were the product of delusions created and inflamed by his alcohol addiction. She contended that the testator lacked testamentary capacity when he executed his final will.
[28]Timbury v Coffee (1941) 66 CLR 277 (‘Timbury’).
There was a dearth of evidence before the jury as to the effect of the testator’s alcoholism on his capacity. No medical evidence was led by either the wife or the executors seeking to probate the will. Nevertheless, the jury returned a verdict in favour of the wife, finding that the testator did not have the requisite capacity when he executed his final will, but that he did have capacity when he executed his penultimate will two months earlier.
The executors appealed to the High Court on the basis that the jury’s verdict was not justified on the evidence. Dixon J summarised the law on testamentary capacity by reference to earlier authorities:
Before a will can be upheld it must be shown that at the time of making it the testator had a sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner.[29]
If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it.[30]
[29]Ibid 283, quoting Re Wilson (1897) 23 VLR 197, 199 (Hood J).
[30]Ibid, quoting Symes v Green (1859) 1 Sw & Tr 401, 402; 164 ER 785, 785–6 (Cresswell J).
The critical point was whether the evidence led by the executors, who were seeking to prove the will, was strong enough to completely discount a finding of incapacity. The High Court held that it was not and dismissed the executors’ appeal. Dixon J stated that the verdict at trial ‘should be upheld upon the simple ground that the jury was right in not being reasonably satisfied, upon the proofs offered, that at the time when the testator made the will he was of testamentary capacity.’[31] His Honour concluded:
As the burden of proof of testamentary capacity lies finally upon the executors where the evidence leaves the matter doubtful, I think the finding against the will … ought to be supported.[32]
[31]Ibid (emphasis added).
[32]Ibid 284.
The apparent incongruity of the jury’s finding in favour of the penultimate will, in circumstances where the testator’s health was little changed between that will and his final will, was acknowledged by the Court. However, the case serves to highlight the transience of testamentary capacity in a person suffering from a slow degeneration of their faculties,[33] as the testator in Timbury suffered up to his death. In such cases, a testator might gain ‘a temporary freedom’ from their incapacity which ‘might give [them] sufficient judgment and sanity to enable [them] to make a valid will.’[34]
[33]See also Edwards v Edwards (2009) 25 VR 40 (‘Edwards’).
[34]Timbury (1941) 66 CLR 277, 284 (Dixon J).
In more recent times, the courts have not required a testator to know precisely the value of his or her assets or even certain classes of assets, particularly where an estate is on the larger side and complex in nature.[35] In many cases, specificity in a testator’s wishes will not be as important to establishing testamentary capacity as will be the testator’s ability to comprehend the extent of their estate, the nature of the assets that comprise it and the various claims others may have to it.[36]
[35] Kerr v Badran [2004] NSWSC 735 (17 August 2004) [49] (Windeyer J); Zorbas v Sidiropoulous [2009] NSWCA 197 (10 July 2009) [64] (Hodgson JA), [94] (Young JA); Frizzo v Frizzo [2011] QSC 107 (12 May 2011) [22] (Applegarth J).
[36]Simon v Byford [2014] EWCA Civ 280 (13 March 2014) [40]–[41] (Lewison LJ); Brown v Guss [2014] VSC 251 (2 June 2014) [344]–[345] (McMillan J).
The evidence
The testamentary intentions of the deceased
In June 2008, the deceased was involved in a car accident in Hamilton and was taken to hospital. He had driven his vehicle into a parked car. He was transferred to Royal Melbourne Hospital to undergo surgery on a brain tumour that had been discovered as a result of the accident. Shortly after the surgery, the deceased was diagnosed with an aggressive form of brain cancer and was given no more than 18 months to live.
On 29 July 2008, pursuant to an order of the Victorian Civil and Administrative Tribunal (‘the VCAT’), the plaintiffs were appointed the deceased’s guardians and administrators. The plaintiffs’ appointment in that capacity came about presumably as a result of the deceased’s diagnosis.
At the time of his diagnosis, the deceased had a will dated 20 June 1995. Between the time of his diagnosis and his death, the deceased executed a further four testamentary documents: a will dated 29 October 2008, a codicil dated 25 May 2010, a will dated 2 September 2010 and his final informal codicil dated 24 February 2014. In each of the wills, the deceased made a number of minor bequests but left his real estate and superannuation fund to the defendant.
The only significant differences between the wills affect the residue of the deceased’s estate. Under the 1995 will, the residue was left to the defendant. Under the 2008 will, the residue was left to the defendant as the primary beneficiary to a testamentary trust controlled by the plaintiffs as trustees, who were also two of a number of secondary beneficiaries. Under the 2010 will, the residue was left to the deceased’s siblings, including the plaintiffs, as tenants in common in equal shares, whilst the defendant received an additional gift of $1.5 million. The deceased’s share portfolio is not mentioned in any of the documents except the informal codicil, when it is taken out of the residue and bequeathed to the defendant.
The deceased executed each of the 1995, the 2008 and the 2010 wills in the presence of his solicitor, Geoffrey Neil Simpson of Taylor Stratmann Lawyers,[37] who had drawn each of those documents. Mr Simpson also prepared and witnessed the execution of the deceased’s 2010 codicil. He was not involved in the preparation of, or present at the execution of, the deceased’s informal codicil, the circumstances of which are discussed in more detail below.
[37]Mr Simpson has since left Taylor Stratmann and now works as a solicitor for HBH Legal.
Between July 2008 and his death on 25 January 2015, the deceased met with or spoke to Mr Simpson about his testamentary intentions on at least thirteen occasions. On seven of those occasions, the deceased was accompanied by the defendant. One such occasion was the meeting on 2 September 2010 when the deceased executed his last will, excluding the informal codicil.
Mr Simpson kept detailed file notes of his various discussions with the deceased in relation to the deceased’s testamentary intentions. Mr Simpson went to lengths to ensure that the deceased took into account all relevant considerations before making changes to his will. He repeatedly asked for the deceased’s instructions in respect of each of his major assets, including his share portfolio. He did everything he could to reassure himself that the deceased was fully informed of the effects of any changes to his testamentary intentions and that he was fully capable of understanding those effects. Mr Simpson followed this procedure for both the 2008 and the 2010 wills of the deceased.
A close examination of Mr Simpson’s file notes reveals, however, that the deceased may not have been aware that, by leaving his share portfolio out of the specific bequests in his will, he relegated it to his residuary estate. Certainly, he does not appear to have received advice to this effect. This is despite the fact that the deceased indicated to Mr Simpson at a meeting on 15 July 2010—also attended by the defendant—that he had not yet come to a decision as to how to deal with his share portfolio in his will, and that he intended to revisit that issue at a later date. Mr Simpson’s file notes do not record any discussion of the share portfolio with the deceased during any of his subsequent meetings or conversations with him before the execution of the 2 September 2010 will, suggesting that, in the deceased’s mind, the distribution of the share portfolio was not finally resolved by the 2010 will.
Mr Simpson’s file notes of his meetings and conversations with the deceased leading up to the execution of the last will on 2 September 2010 demonstrate that the deceased clearly understood the extent of his estate and the various assets that comprised it, the effect on the distribution of his estate by certain changes to his will and the persons for whom he had a responsibility to provide in his will. Accordingly, there was no dispute as to the deceased’s capacity at the time he executed that will.[38]
[38]However, see the discussion of the medical evidence below, which is equivocal on this point.
In the second half of 2011, the deceased again contacted the firm of solicitors for which Mr Simpson worked to discuss potential changes to his will.[39] However, he was advised that Mr Simpson had taken a leave of absence from the firm and was referred to another solicitor at the firm, Patrick Holt. The deceased, again accompanied by the defendant, met with Mr Holt on 6 October 2011 to discuss his will. It appears that the purpose for the meeting from the deceased’s point of view was to increase the amount of a number of relatively minor monetary bequests. However, he also asked Mr Holt about his share portfolio and the best way to deal with it in his will. Mr Holt suggested that the deceased take a copy of the will home and mark any changes he wanted to make by hand and then revert to him to execute the revised document, if necessary. The deceased appeared to agree with this course, however, he did not make any further contact with Mr Holt.
[39]The firm, now known as Taylor Stratmann Lawyers, was then known as Stratmann & Co.
The meeting with Mr Holt in October 2011 indicates that the deceased was still unsure about the proper distribution of his estate at that time, including his share portfolio. It is clear that he had considered making changes to the will he executed on 2 September 2010. In this vein, the defendant alleges that, in November 2013, the deceased again tried to make contact with Mr Simpson through the law firm to discuss his will. The defendant says that the deceased was informed that Mr Simpson was no longer working at the firm and chose not to take the matter any further. However, this is disputed by Mr Simpson, who says he was working at the firm in November 2013 and presumably would have received any enquiries made by the deceased.
There is undisputed evidence that the deceased contacted his accountant, Graeme Keith Struck, around this time to discuss his share portfolio, amongst other things. It may be that the defendant has mistaken the deceased’s accountant for his lawyer in her recollection of events. Whatever the case, the fact of the deceased contacting his accountant supports the proposition that his financial affairs, including his shares, were at the forefront of his mind around the time of the informal codicil. Indeed, in an affidavit sworn 9 September 2016, Mr Struck deposes that at a meeting in late 2013 the deceased asked him to make a new will, before the defendant intervened and reminded the deceased that Mr Struck was not his lawyer.
Mr Simpson’s last meeting with the deceased was on 14 January 2015, eleven days before the deceased’s death, and was again attended by the defendant (‘the 14 January meeting’). According to Mr Simpson’s recollection, the purpose of the meeting was to make an amendment to the deceased’s will. At the meeting, the defendant produced the handwritten informal codicil, which had been made eleven months earlier. It is likely that the meeting was arranged for the purpose of changing the deceased’s will to include the specific provisions of the informal codicil. Mr Simpson observed, however, that the deceased seemed unfamiliar with the terms of the informal codicil, although he confirmed that he wanted to change his will. For this reason, as well as the fact that the defendant was doing most of the talking on the deceased’s behalf, Mr Simpson became concerned about the deceased’s capacity to make changes to his will. He ended the meeting on the pretence of ‘making enquiries’ but had concluded that he could not be sure that the deceased had capacity and resolved to investigate the matter further.
After the 14 January meeting but on the same day, Mr Simpson called the deceased and told him that he did not think that he could make a new will. He asked the deceased whether he would like him to call his sister, Merran, one of the plaintiffs in this proceeding, to confirm that view and the deceased agreed to that. Mr Simpson then spoke to Merran who expressed her view that the deceased lacked capacity and that it was preferable that the deceased’s will remained unchanged. This conversation was made in circumstances where Mr Simpson knew that the deceased’s share portfolio would pass to the plaintiffs under the 2010 will and that the informal codicil produced at the 14 January meeting sought to alter that aspect of the deceased’s will. From Merran’s point of view, it was preferable if the deceased’s will remained unchanged.
Despite the deceased specifically authorising Mr Simpson to contact his doctors at the 14 January meeting, Mr Simpson did not seek the opinions of any medical professionals as to the deceased’s capacity at that time.
On 20 January 2015, the defendant called Mr Simpson and told him that she did not think he should discuss the deceased’s testamentary intentions with Merran. That was the last contact Mr Simpson had with either the deceased or the defendant before the deceased’s death on 25 January 2015.
The deceased’s capacity
As might be expected, up until his death the deceased underwent years of intensive treatment for his malignant brain tumour. In July 2008, just over a month after his initial diagnosis and surgery, the deceased commenced radiotherapy, followed by a course of chemotherapy ending in April 2009. He underwent two further courses of chemotherapy over a total of 24 months: from March 2012 to March 2013 and again from January 2014 to his death on 25 January 2015. The deceased ultimately died as a result of a heart attack.
It is likely that the deceased’s capacity fluctuated over time, particularly towards the end of his life. Such a scenario is not uncommon.[40] Typically in such cases, the parties will adduce expert medical evidence to assist the court in determining a testator’s capacity at the relevant time.
[40]See, eg, Banks (1870) LR 5 QB 549; Timbury (1941) 66 CLR 277; Edwards (2009) 25 VR 40.
In this case, the medical evidence adduced by the defendant is limited to the affidavit and testimony of Dr Robey Joyce and several ‘mini-mental state examinations’ (‘MMSEs’) conducted by various medical practitioners who saw the deceased in the course of his treatment. An MMSE is a 30 point questionnaire designed to measure cognitive impairment quickly and unobtrusively. For their part, the plaintiffs adduced notes compiled by the Western District Health Service recording the progress of the deceased whilst undergoing treatment for his malignant brain tumour between October 2008 and his death (‘the progress notes’). The progress notes appear to have been authored by various medical practitioners over the seven years of the deceased’s treatment.
Dr Joyce, who has been the defendant’s treating doctor since 2012, had limited experience of the deceased as a patient. He deposes to have only treated the deceased on ‘an irregular basis’. It is unclear when Dr Joyce first treated the deceased, though it is likely to have been sometime after he first saw the defendant in 2012. At each consultation Dr Joyce observed that the deceased was ‘alert and conversed clearly’.
On 15 July 2014, approximately five months after the date of the informal codicil, Dr Joyce met with the deceased and conducted an MMSE. This was in response to the defendant expressing some concern to Dr Joyce that she thought the deceased was suffering some short term memory loss. The deceased scored 22 out of a possible 30 points on the MMSE. According to Dr Joyce, this ‘revealed only mild cognitive impairment’. By letter to the defendant’s solicitors dated 11 August 2015, Dr Joyce stated that it was his opinion that the deceased met the threshold of testamentary capacity at the time of his examination on 15 July 2014. That letter was in response to a letter dated 31 July 2015 sent to Dr Joyce by the defendant’s solicitors in which the questions relevant to assessing testamentary capacity as identified in Banks and the later authorities were set out.
At the trial, Dr Joyce confirmed the opinion he gave to the defendant’s solicitors in the 11 August 2015 letter; that is, that the deceased had testamentary capacity on 15 July 2014. However, he admitted to having little experience in assessing patients for the purpose of determining whether they had testamentary capacity, stating that the deceased was ‘the first one’ he had examined. Dr Joyce said that he based his opinion on his observations of the deceased during the 20-minute consultation and the results of the MMSE. He did not appear to be familiar with the test for testamentary capacity as set out in Banks or any of the more recent authorities.
The progress notes tendered in evidence by the plaintiffs were recorded intermittently over the course of the deceased’s battle with cancer and provide only an incomplete picture of the deceased’s welfare during that period. They appear to be based on cursory observations of the deceased by medical practitioners when he presented for routine consultations. Moreover, they are not directed towards the deceased’s capacity and are of limited value in that regard.
The plaintiffs say that the progress notes demonstrate the deceased experienced a number of problems during his treatment that may have affected his capacity. Those problems included memory loss, varying levels of confusion, cognitive impairment and aggressive or argumentative behaviour. The specific notes that record these problems and referred to by the plaintiffs are dated between 2 October 2008 and 13 November 2013. At trial, counsel for the plaintiffs particularly emphasised a period ‘in the middle of 2010’ when the deceased had hydrocephalus as being a time when the deceased ‘had serious confusion and behavioural issues’. The plaintiffs’ reliance on the progress notes may thereby have the unintended effect of impugning the deceased’s testamentary capacity on 2 September 2010, the date of his final will. Counsel for the plaintiffs submitted that this potential impugnation is countered by Mr Simpson’s evidence of the making of that will.
The defendant also referred to several of the progress notes, contending that they support the view that the deceased had testamentary capacity when he made the informal codicil. Those notes do little more than state that the deceased appeared well at the time and provide no insight into the deceased’s mental capacity.
Reference was also made to a number of the MMSEs and other abbreviated mental examinations conducted by various medical practitioners during the course of the deceased’s treatment. The deceased’s scores varied, but none of the examinations were conducted so close to the date of the informal codicil as to be influential in determining the deceased’s testamentary capacity on 24 February 2014. The most proximate examination was an ‘abbreviated mental test’—an even more truncated mental examination than an MMSE—conducted on 20 November 2013 on which the deceased score nine out of a possible ten points. The next most proximate was the MMSE conducted by Dr Joyce on 15 July 2014.
As previously noted, and despite the ambiguity of the progress notes, it appears from Mr Simpson’s evidence that the deceased had testamentary capacity on 2 September 2010 when he executed his final will. However, at the 14 January meeting Mr Simpson formed the view, based on his observations of the deceased, that the deceased no longer had the capacity required to alter his will.
After the 14 January meeting, Mr Simpson reviewed his firm’s file on the deceased and concluded that the deceased did not have capacity to make changes to his will. In coming to this view, he appeared to rely primarily on the fact of the guardianship and administration orders made by the VCAT in respect of the deceased’s estate, as well as his own observations of the deceased during the meeting. Indeed, in a file note prepared by Mr Simpson after the 14 January meeting and his subsequent investigations, he specifically concluded that ‘it is clear that because the tribunal stated that he is unable by reason of a disability to make reasonable judgements about his person or circumstances and estate and needs a guardian that he should not be making a Will’.
That view is contradictory to Mr Simpson’s earlier work for the deceased, particularly with respect to the deceased’s will executed in September 2010. The guardianship and administration orders had been in place for over two years by that time, but Mr Simpson did not raise any concerns about the deceased’s capacity then. To the contrary, he gave evidence that he was ‘completely satisfied that [the deceased] had sufficient testamentary capacity to give me instructions, to know what he was doing and to make a Will’. In any case, it is well established that the making of a guardianship and administration order does not rob a testator of the ability to make a will independently of a guardian or administrator. It may be a factor weighed in a consideration of all of the evidence, but otherwise the principles of testamentary capacity are unaffected.[41]
[41]Edwards (2009) 25 VR 40, 56 (J Forrest J). See also Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377.
At trial, Mr Simpson attempted to clarify the reasons why he considered the deceased lacked testamentary capacity at the 14 January meeting. Again, he referred to the constant prompting of the defendant when he asked the deceased about his intentions. He also referred to the deceased’s apparent unfamiliarity with the contents of the informal codicil. He said that he did not seek a medical opinion in respect of the deceased’s capacity at that time because he had formed the view that it was ‘beyond the stage of having to obtain the medical assessment.’ Mr Simpson did not apply the Banks test when assessing the deceased’s testamentary capacity at the 14 January meeting, although some aspects of his reasoning appear to be consistent with it.
The making of the informal codicil
The deceased’s medical history and his ongoing concerns about his testamentary affairs provide the context within which the informal codicil was made on 24 February 2014. In her affidavit affirmed 23 August 2016, the defendant describes the background to the making of the informal codicil and the events that led up to 24 February 2014.
Put briefly, the defendant deposed that the deceased became anxious to change his will after meeting with his accountant, Mr Struck, in November 2013. The defendant also attended the meeting, during which it was likely that the deceased discussed the value of his share portfolio with Mr Struck.
The defendant says that the deceased then called the law firm at which his lawyer, Mr Simpson, worked, but was advised Mr Simpson no longer worked for that firm. This is disputed by Mr Simpson, who says he was working at the firm at the relevant time and did not receive a call from the deceased. In any case, the deceased did not see Mr Simpson or any other lawyer about changing his will at that time.
The defendant deposes that, some months later on 24 February 2014, after receiving medical advice that his brain tumour was exhibiting signs of enhancement, the deceased again became anxious to change his will. They contacted Peter John Tew, a registered justice of the peace who had assisted the deceased with a statutory declaration a couple of years earlier. According to the defendant, Mr Tew advised them that the deceased could write down the changes he wished to make to his will on a piece of paper and he would witness the deceased signing it as a codicil to his will.
The defendant then says the deceased instructed her of the changes he wished to make to his will and she wrote them down on a piece of paper. The deceased had a copy of his final will dated 2 September 2010 with him as he was instructing the defendant. After writing out the deceased’s wishes, the defendant gave the piece of paper to the deceased for him to read over. Later that day, Mr Tew attended on the deceased and the defendant at their home in Hamilton. According to the defendant, Mr Tew and the deceased sat together with a copy of the deceased’s will and the newly handwritten changes. The defendant was not present at the time and Mr Tew did not ask her to participate in his meeting with the deceased, a precaution exercised by Mr Tew to ensure the deceased acted independently of his wife.
Mr Tew gave evidence that the deceased confirmed the contents of the informal codicil to him and stated that it was his intention to change his will. Mr Tew then witnessed the deceased sign the informal codicil and attested to that fact by signing and fixing his stamp on several parts of the document. He says that at the time he advised the deceased to see his lawyer to ‘tidy it all up in one document’. Despite being a registered justice of the peace since 1984 and witnessing, on his own estimate, approximately 50 to 100 documents a month in that capacity, it is unclear whether Mr Tew was aware of the formal requirements for executing an alteration to a will under ss 7(1) and 15(1) of the Act.
Mr Tew says that, as a matter of practice, he does not witness a person’s signature on any document if he does not consider that the person has the capacity to understand what they are signing. If he ever had reason to doubt a person’s capacity, he would require a medical report from that person verifying their capacity before witnessing and attesting any document they sign in his presence. When he witnessed the deceased’s signature on the informal codicil on 24 February 2014, he did not observe anything that raised his suspicion regarding the deceased’s capacity. Accordingly, he did not need a medical report to give him comfort that the deceased had capacity to understand the informal codicil and its effect.
However, during the trial, counsel for the plaintiffs examined Mr Tew as to precisely what he had done to satisfy himself of the deceased’s testamentary capacity at the meeting on 24 February 2014. Mr Tew did not ask the deceased whether he knew what a will or a codicil was, he did not ask the deceased what the extent of his property was other than to ascertain that it was worth ‘a large amount of money’, he did not ask the deceased about his share portfolio despite it being specifically referred to in the informal codicil, and he did not ask the deceased for whom he ought to make provision under his will. It is clear on the basis of this evidence that Mr Tew did not assess the deceased’s testamentary capacity in accordance with the principles set down in Banks and affirmed in the later authorities.
Submissions
The parties are agreed as to the legal principles applicable to this case as set out above.[42] Consequently, the parties’ submissions were directed towards the application of those principles to the facts of this case.
Defendant’s submissions
[42]See [11]–[34] above.
The defendant submits that the background to the making of the informal codicil supports the view that the deceased intended it to form part of his will. In particular, the defendant refers to the fact that the deceased was anxious to change his will after being informed of the growth of his tumour in early 2014. This followed a meeting with his accountant, Mr Struck, in November 2013 where the deceased sought advice as to the value of his share portfolio and indicated that he wanted to make a new will. At about that time, the defendant says that the deceased also sought to contact his solicitor, Mr Simpson, about making changes to his will, although this is disputed by Mr Simpson and the plaintiffs. The defendant submits that, taken as a whole, this evidence demonstrates a clear intention on the part of the deceased to make changes to his will, the content of those changes being reflected in the informal codicil.
The informal codicil itself represents the wishes of a rational and coherent testator. The defendant contends that it is ‘perfectly natural’ for a testator to leave their portfolio of shares to their partner, whilst the two additional bequests made in the informal codicil are not unusual or remarkable in any way. Although the deceased had not referred to his share portfolio in his testamentary wishes previously, it is clear that he had considered including them in earlier wills. It follows that the contents of the informal codicil do not suggest an impairment in the deceased’s reasoning.
In respect of the deceased’s testamentary capacity on 24 February 2014, the defendant primarily relies on the evidence of Mr Tew, a justice of the peace with 32 years of experience witnessing documents. Mr Tew’s practice over that time has always been to refuse to witness a person’s signature on any document if he considers that person lacks the capacity to understand what they are signing. In the deceased’s case, Mr Tew was particularly cautious of capacity issues as he was aware of the deceased’s medical history. However, Mr Tew did not observe anything in the deceased’s behaviour that led him to believe the deceased lacked capacity to make changes to his will. The defendant submits that Mr Tew’s evidence establishes that the deceased was of testamentary capacity on 24 February 2014 when he made the informal codicil and that it is the best and most immediate evidence on that point. This is to be contrasted with the plaintiffs’ evidence, none of which was based on direct knowledge of the deceased at the relevant time.
The defendant also relies on the medical evidence which she says is, on balance, ‘very supportive’ of her case. In particular, the defendant refers to the mental examinations of the deceased conducted on 20 November 2013 and 15 July 2014, the latter by Dr Joyce. Those two examinations were the closest in time to the making of the informal codicil and reveal that the deceased was, at worst, only suffering from ‘mild cognitive impairment’, not enough to rob him of testamentary capacity.
As to Mr Simpson’s evidence that the deceased lacked testamentary capacity on 14 January 2015, the defendant submits that Mr Simpson based his conclusion on the fact that the deceased was subject to a guardianship and administration order. The defendant referred to Edwards and submitted that Mr Simpson’s reasoning is wrong in law and undermines his evidence as to the deceased’s testamentary capacity. Mr Simpson’s error is further compounded by his failure to obtain medical advice as to the deceased’s capacity, preferring to discuss the matter with one of the plaintiffs who stood to gain if the deceased’s final will remained unaltered.
The defendant ultimately contends that the ‘contemporary materials, objectively established facts and the apparent logic of events’[43] should reasonably satisfy the Court that the deceased had testamentary capacity at the time he made the informal codicil.
Plaintiffs’ submissions
[43]Fox v Percy (2003) 214 CLR 118, 129 (Gleeson CJ, Gummow and Kirby JJ).
The plaintiffs take a different view of the evidence. They contend that the defendant has failed to satisfy the burden of proving that the deceased was of testamentary capacity at the time he made the informal codicil.
The plaintiffs submit that the informal codicil was out of the ordinary in respect of the deceased’s testamentary intentions, not so much because of the contents of the informal codicil, but rather because of the circumstances in which it was made. The deceased executed three other documents with testamentary effect after his cancer diagnosis: a will in October 2008, a codicil in May 2010 and another will in September 2010. Each of those documents satisfied the relevant statutory requirements. Each was the product of several meetings and conversations between the deceased and his lawyer. Each was prepared by his lawyer and executed in the presence of his lawyer. The informal codicil does not possess any of those characteristics.
Furthermore, no explanation was offered by the defendant as to why the informal codicil was not taken to a lawyer to be formalised immediately, despite the advice of Mr Tew. The deceased’s attempt to contact Mr Simpson in November 2013, regardless of whether or not such attempt was actually made, provides no answer to this; nothing prevented the deceased from discussing his will with another lawyer, whether practising at the Mr Simpson’s firm or anywhere else. Nor is it answered by the fact that the deceased did eventually get in contact with Mr Simpson in January 2015, eleven months after he made the informal codicil and when he was in a much poorer state of health.
The plaintiffs submit that the medical evidence is, at best, ambivalent as to the deceased’s testamentary capacity. The Western District Health Service progress notes give no insight into the deceased’s ability to comprehend his estate, the nature and extent of the assets that comprise it, or the persons to whom the deceased may have had a responsibility to dispose of it. Moreover, the defendant did not adduce evidence from three of the deceased’s treating doctors, each of whom may have provided invaluable evidence as to the deceased’s capacity around the time of the making of the informal codicil. The one doctor that was called to give evidence, Dr Joyce, admitted to having no experience in assessing the testamentary capacity of his patients. The MMSE conducted by Dr Joyce in July 2014—the results of which indicated the deceased was suffering from some cognitive impairment—is no substitute for the application of the Banks test, of which Dr Joyce appeared to be wholly ignorant.
Finally, the plaintiffs contend that the evidence of Mr Tew should be given no weight. They submit that it is deficient for a number of reasons, including:
(a) Mr Tew did not take notes of his meeting with the deceased on 24 February 2014;
(b) Mr Tew relies only on his memory of the meeting, held two and a half years ago;
(c) by his own estimate, Mr Tew has witnessed thousands of documents since the meeting on 24 February 2014; and
(d) Mr Tew did not ask the questions consistent with the Banks test when assessing the testamentary capacity of the deceased.
The plaintiffs noted that the only other person who could have given evidence in respect of the deceased’s capacity on 24 February 2014 is the defendant. However, for whatever reason, she chose not to do so.
Consideration
This is a finely balanced case. The evidence is not overwhelming one way or the other. The parties agree on the applicable legal principles. They are largely agreed as to the facts of the case as well. However, the interpretation of those facts and their application to the law is hotly disputed.
As the propounder of the informal codicil, the onus of proving its validity, in accordance with s 9 of the Act and the relevant authorities, lies with the defendant. The only challenge to validity raised by the plaintiffs is that the deceased lacked testamentary capacity at the time he made the informal codicil. It follows, according to the plaintiffs, that the deceased did not intend the informal codicil to form part of his will and the plaintiffs were right to exclude it from their application for probate of the deceased’s will.[44]
[44]Re Stuckey [2014] VSC 221 (23 May 2014) [40]–[41] (McMillan J).
On the other hand, if the defendant can overcome the plaintiffs’ challenge to the validity of the informal codicil, it follows that the informal codicil should be admitted to probate—and given effect to by the plaintiffs as executors—as part of the deceased’s final will. To achieve this, the defendant must demonstrate to reasonable satisfaction that the deceased had testamentary capacity at the time he made the informal codicil on 24 February 2014.[45] This task is made all the more difficult by the informal execution of the document, which robs the defendant of the benefit of the presumption of capacity.[46]
[45]Briginshaw (1938) 60 CLR 336, 362 (Dixon J); Fast v Rockman [2013] VSC 18 (7 February 2013) [48] (Habersberger J).
[46]Veall v Veall (2015) 46 VR 123, 174–5 [168]–[171] (Santamaria JA).
It is accepted that the deceased suffered some cognitive impairment as a result of his brain tumour.[47] As in many cases of this kind, his capacity fluctuated over time;[48] there was no day on which he ceased to have capacity forevermore. Indeed, it is likely that the deceased was fully capable of changing his will on a number of days between executing his last will on 2 September 2010 and his death on 25 January 2015. However, the critical date is 24 February 2014, the date on which the informal codicil was made.[49] The question is: did the deceased have testamentary capacity on that day when he indicated by his signature that the informal codicil reflected his testamentary intentions?
[47]Dr Joyce concluded as much after conducting an MMSE of the deceased on 15 July 2014, the results of which were relied upon by the defendant.
[48]See, eg, Banks (1870) LR 5 QB 549; Timbury (1941) 66 CLR 277; Brown v Wade [2010] WASC 367 (9 December 2010).
[49]Hatsatouris v Hatsatouris [2001] NSWCA 408 (30 November 2001), [57]–[59] (Powell JA).
In answering that question, the Court must make an assessment based on the entirety of the evidence. The value of each piece of evidence may be assessed individually, but the outcome of the ultimate inquiry as to the deceased’s capacity depends upon the evidence taken as a whole.[50]
[50]Bailey v Bailey (1924) 34 CLR 558, 570 (Isaacs J) (‘Bailey’); Robinson v Jones (No 2) [2015] VSC 334 (17 July 2015) [16] (McMillan J).
Both the defendant and the plaintiffs led medical evidence as to the deceased’s testamentary capacity. The defendant relied on the evidence of Dr Joyce, who examined the deceased approximately five months after the making of the informal codicil and expressed the opinion that the deceased ‘met the threshold of testamentary capacity’, despite some cognitive impairment. The defendant also referred to several MMSEs and other mental examinations of the deceased conducted by various medical practitioners in the relevant period. For their part, the plaintiffs relied on the Western District Health Service progress notes and certain—admittedly ‘cherry-picked’—observations of the deceased recorded therein which tend against a finding of capacity.
Unfortunately, this evidence is of little value. Aside from being completely removed from the critical date of 24 February 2014, none of the medical evidence grapples with the questions that go to determining testamentary capacity set out in Banks. To illustrate the point, whilst giving evidence during the trial, Dr Joyce admitted to being wholly inexperienced in assessing testamentary capacity and appeared to be utterly ignorant of the relevant factors. This was despite the fact that the initial letter to him from the defendant’s solicitors clearly set out the Banks test according to which testamentary capacity must be assessed.
The progress notes are even less helpful. They are simply shorthand observations of the deceased taken by medical officers for whom the question of testamentary capacity would never have arisen. None of those medical officers gave evidence as to the deceased’s capacity, with the exception of Dr Joyce. Furthermore, none of the progress notes are directed towards the deceased’s ability to comprehend his estate and the assets that comprise it, or his responsibilities when disposing of it. Indeed, it would be very surprising if they were directed to those issues.
There is no contemporaneous medical evidence of the deceased’s capacity at the time he made the informal codicil. The best that can be said of the medical evidence is that it demonstrates that the effect of the deceased’s condition on his capacity fluctuated over time. It leaves open the possibility that the deceased did have testamentary capacity when he made the informal codicil, but, in my view, it does not make that possibility any more likely.
The evidence of the non-medical witnesses is also deficient in several respects. Mr Tew was in the best position to give evidence of the deceased’s testamentary capacity at the relevant time. When the deceased and the defendant contacted him to witness the informal codicil, he had been a registered justice of the peace for approximately 30 years. He would have witnessed thousands of documents in that capacity before 24 February 2014, including wills and codicils. One would expect him to be familiar with the test for testamentary capacity and to put the relevant questions to the deceased before witnessing his signature on the informal codicil.[51] Mr Tew clearly fell short of that expectation.
[51]Re Ludewig; Manning v Hughes [2010] NSWSC 226 (26 March 2010) [49] (White J).
In fairness to Mr Tew, he is not a lawyer, and it may be unrealistic to expect him to know the intricacies of probate law. However, his evidence is further undermined by the lack of any contemporaneous notes of his meeting with the deceased on 24 February 2014. To give affirmative evidence of a person’s testamentary capacity two and a half years after the event from memory alone is an exceptionally difficult undertaking and was beyond Mr Tew in this case.
Mr Simpson, on the other hand, is a solicitor and had been the deceased’s lawyer for many years. He was very familiar with the deceased’s testamentary affairs, having prepared his last three testamentary documents prior to the informal codicil. For the most part, I found his evidence persuasive, reinforced as it was by contemporaneous and detailed file notes of his meetings with the deceased between 2008 and 2015. He is also familiar with the Banks test for testamentary capacity, as demonstrated by his questioning of the deceased when discussing the latter’s testamentary intentions.
Having said that, I accept the defendant’s submission that Mr Simpson’s conclusion as to the deceased’s testamentary capacity at their final meeting on 14 January 2015 was unsound. In my view, the evidence suggests he concluded that the deceased lacked testamentary capacity primarily on the basis of the guardianship and administration order then in place. That conclusion was contrary to law.[52] However, that does not undermine Mr Simpson’s observations of the deceased at the 14 January meeting, which may well have given rise to a reasonable suspicion that the deceased lacked the capacity to change his will.
[52]Edwards (2009) 25 VR 40, 56 (J Forrest J).
Conclusions
The remarks of Isaacs J in Bailey are apposite to this case:
The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.
While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.[53]
[53]Bailey (1924) 34 CLR 558, 572.
The opinions of the various witnesses in this case do little to assist the Court in determining the question of whether the deceased had testamentary capacity when he made the informal codicil on 24 February 2014. Taken as a whole, I am satisfied that the evidence establishes the following propositions:
(a) the deceased was anxious to get his testamentary affairs in order after being diagnosed with cancer in mid-2008;
(b) the deceased suffered cognitive impairment from 2008 to his death, the severity of which fluctuated, gradually worsening in the last years of his life;
(c) the deceased was careful and considered when making changes to his will, and would regularly consult his lawyer, Mr Simpson, in this regard;
(d) at the time he executed his final will on 2 September 2010, the deceased intended to revisit his testamentary intentions on some later date to deal with his share portfolio, which formed part of his residuary estate in his final will. This does not undermine the 2010 will, but rather is recognition of the fact that the deceased regularly considered changes to his testamentary intentions after his cancer diagnosis and had not finally resolved how to dispose of his shares on that date; and
(e) the deceased intended to consult his lawyer about changing his will in November 2013, however, he was not able to contact Mr Simpson at this time, the precise reason for which is unknown.
The culmination of those propositions leads to a conclusion that the deceased’s testamentary affairs were still a ‘work in progress’ in his mind as at the date of his final will. The meetings with Mr Simpson leading up to the execution of that will reveal that the deceased was anxious to ensure that his wife, the defendant, was adequately provided for after his death. The combination of those facts suggests that the deceased considered changing his will to provide further for the defendant and may even have intended to do so.
However, that does not provide an answer to the question of the deceased’s capacity at the time he made the informal codicil. That question can only be answered by reference to the ‘three presences and one absence’ identified by Cockburn CJ in Banks, being the ability to understand and comprehend:
(a) the nature of a testamentary disposition and its effects;
(b) the extent and nature of the assets in the estate; and
(c) the claims to the estate which should be given effect to;
as well as being free of any ‘disorder of the mind’ which might prevent the exercise of natural faculties or affections or distort a sense of what is right.[54]
[54]Banks (1870) LR 5 QB 549, 565.
In a case such as this, there is no substitute for contemporaneous evidence of a testator’s capacity directed to those factors identified in Banks. In this case, Mr Tew did not test the deceased’s capacity against those factors when he witnessed the deceased sign the informal codicil on 24 February 2014. The only contemporaneous evidence of the deceased’s capacity comes from Mr Tew’s memory, unsupported by any notes or other records. That is not enough to be reasonably satisfied to the requisite standard that the deceased had testamentary capacity when he made the informal codicil.
There are several other features of the making of the informal codicil which raise doubts as to the deceased’s testamentary capacity at the relevant time. In the first place, the deceased had made a number of wills and codicils in the past and always consulted his lawyer, Mr Simpson, when he did so. In each case, he would meet or converse with Mr Simpson on several occasions before executing any changes to his testamentary intentions. His failure to follow that procedure in respect of the informal codicil was not properly explained by the defendant and leads to doubt over the deceased’s ability to fully comprehend the effect of the codicil when he made it. This is compounded by the deceased’s failure to contact Mr Simpson, or any other lawyer, for eleven months after making the informal codicil, despite Mr Tew’s advice that he do so. Again, this was not adequately explained by the defendant and suggests that the deceased did not understand the nature or effect of the informal codicil as a testamentary disposition.
Whilst I am satisfied that the deceased may have considered making changes to his final will, I am not satisfied that the informal codicil reflects the changes he intended to make. This is because I cannot be satisfied on the balance of probabilities to the Briginshaw standard that the deceased had testamentary capacity at the time he made the informal codicil. The evidence relied upon by the defendant on that point, when considered in light of the principles set out in Banks, is a prime example of the inexact proofs, indefinite testimony and indirect inferences warned against by Dixon J in Briginshaw.[55]
[55]Briginshaw (1938) 60 CLR 336, 362.
To paraphrase Dixon J in Timbury,[56] I am not satisfied upon the proofs offered that the deceased had testamentary capacity when he made the informal codicil on 24 February 2014.
[56]Timbury (1941) 66 CLR 277, 283.
Orders
I will order that the plaintiffs’ application for probate of the deceased’s will dated 2 September 2010 be referred to the Registrar of Probates without the informal codicil dated 24 February 2014.
If the parties are unable to agree as to the costs of the proceeding, written submissions are to be filed by 9 December 2016.
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