Re Langley
[2018] VSC 623
•19 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2017 11347
IN THE MATTER of the Estate of MARIE LANGLEY, deceased
| RAYMOND CULLEN | Plaintiff |
| v | |
| CANCER COUNCIL OF VICTORIA | First Defendant |
| and | |
| CBM AUSTRALIA | Second Defendant |
| and | |
| FRED HOLLOWS FOUNDATION | Third Defendant |
| and | |
| WORLD VISION OF AUSTRALIA | Fourth Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 July 2018 |
DATE OF JUDGMENT: | 19 October 2018 |
CASE MAY BE CITED AS: | Re Langley |
MEDIUM NEUTRAL CITATION: | [2018] VSC 623 |
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WILLS AND ESTATES —Application to admit informal will to probate — Where deceased had executed formal will —Whether deceased intended the informal will to be her final will — Whether the deceased had testamentary capacity — Incomplete will — Application refused — Briginshaw v Briginshaw (1938) 60 CLR 336 — Burden of Proof — Wills Act 1997, ss 7 and 9.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S F McNab | White Cleland Lawyers & Consultants |
| For the Defendants | Ms U Stanisich | Moores Lawyers |
HIS HONOUR:
Introduction
Mrs Marie Langley (‘the deceased’), died on 2 January 2016 at the age of 70. She was a widow and had no children. Her husband, Mr Arthur Langley, died on 10 June 2010. She is survived by her brother, Mr Raymond Cullen, who is the plaintiff in this proceeding.
On 28 November 1994, the deceased signed a will (‘the formal will’) executed in accordance with the Wills Act 1958. Shortly after her death some sixteen years later, Mr Cullen and his wife, Mrs Margaret Cullen, found a single page handwritten note dated 5 August 2014 bearing the deceased’s signature which, in its first line, was styled as ‘the last will and testament of Marie Langley’ (‘the 2014 document’). The 2014 document was found in the kitchen of the deceased’s home.
Mr Cullen has made application to administer the deceased’s estate and seeks that both the formal will and the 2014 document be admitted to probate. There is no controversy that the formal will should be admitted to probate. The question in the proceeding is whether the 2014 document should be regarded as an informal will and also admitted to probate to be read together with the formal will.
At the time of her death, the assets of the deceased’s estate comprised a house and land in Eltham in the State of Victoria, an annuity pension account, a motor vehicle and funds in various bank accounts. The most recent estimate of the value of the estate is $980,493.57, principally constituted by the property in Eltham (valued at approximately $700,000) and the pension annuity account (valued at $233,831.79).
In the event that only the formal will is admitted to probate, no portion of the deceased’s estate will pass to Mr Cullen and nearly all of the estate will be divided between four named charities who are the defendants in the proceeding. If, however, the 2014 document is also admitted to probate, it is common ground that the deceased’s property at Eltham will pass to Mr Cullen and his wife.
As will be explained, the disposition of this proceeding requires the resolution of the following two interrelated issues:
(1)whether the deceased had testamentary capacity at the time of the making of the 2014 document; and
(2)whether the deceased intended that the 2014 document be her will.
I consider the facts and relevant legal principles before addressing each of these issues in turn.
Factual background
The formal will
The formal will appointed the deceased’s husband as the executor of her estate. That appointment fails as the deceased was predeceased by her husband.
The formal will appointed Mrs Judith Barnard, Mr Roger Barnard and Ms Gloria Chadwick as substitute executors. Mrs Barnard and Mr Barnard have formally renounced their rights, titles and interests in or to probate and execution of the formal will (and the 2014 document) and the administration of the deceased’s estate.
As to the third substitute executor, Ms Chadwick, Mr Cullen deposes that Ms Chadwick no longer resides at the address referred to in the formal will and cannot now be located. There is no other evidence on that matter before the Court.
The formal will distributes the deceased’s assets by giving a joint legacy of $2,000 to Mr and Mrs Barnard and a legacy of $2,000 to Ms Chadwick. The residuary estate is divided into six parts gifted as follows:
(a) two parts to the first defendant, the Cancer Council of Victoria;
(b) one part to the second defendant, CBM Australia;
(c) one part to the third defendant, the Fred Hollows Foundation; and
(d) two parts to the fourth defendant, World Vision Australia.
The 2014 document
The 2014 document is handwritten and appears in the top half of an A4 page. The second half of the page is blank, save for the deceased’s signature and the date, 5 August 2014, at the bottom of the page.
The text of the 2014 document is as follows:
This is the last will & testament of MARIE LANGLEY of 46 Malabar Cres., Eltham, Victoria, 3095. I give devise & bequest all my estate comprising my house and land at 46 Malabar Crescent, Eltham including furniture and fittings to my brother, RAY CULLEN and sister-in-law MARGARET CULLEN of 8 Scoble Street, Frankston, Victoria, 3199 to keep or dispose of. The motor vehicle a Suzuki Swift WAB 366 can also be kept or disposed of.
Any items of precious gold and pearl jewellery can be distributed between my dear friends JUDITH BARNARD, of 55 Glenister Drive, Eltham, Victoria, 3095, DAWN PETTINGILL, of 121 Page Street, Albert Park, Victoria, 3206 and FRANCES FORTOMANOS, of 119 Springvale Road, Nunawading, Vic 3131.
The annuity account with [incomplete]
There is no evidence before the Court about the circumstances in which the 2014 document was made.
The 2014 document does not contain the signatures of any witnesses. Nor does it purport to revoke any prior will and it does not contain a residuary clause (and therefore cannot be said to deal with the whole of the deceased’s estate).
The 2014 document also does not appoint an executor. As such, the appointments made under the formal will would remain if the 2014 document were to be admitted to probate. However, as has been noted, two of the named executors have renounced probate and the third has not been located. It is on that basis that Mr Cullen seeks to administer the deceased’s estate.
Legal principles
The legal principles applicable to the claims in this proceeding are not in dispute.
The formal requirements for the valid execution of a will are set out in s 7 of the Wills Act 1997 (‘the Act’). If a document does not satisfy the formal requirements there prescribed, it may nonetheless be admitted to probate pursuant to s 9 of the Act which relevantly provides as follows:
(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.
(4)This section applies to a document whether it came into existence within or outside the State.
…
(6)In this section document has the same meaning as in the Interpretation of Legislation Act 1984.
Section 9 is a remedial provision which enables the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. As such, consistent with ordinary principles of statutory construction, it should be given a broad construction. However, its remedial nature must be tempered by an acknowledgment that the legislature is not to be taken to have unduly relegated the importance of the formalities of execution.[1]
[1]ReEstate of Peter Brock [2007] VSC 415 [19]-[20]; Re Sanders [2016] VSC 694 [14]; Belcastro v Belcastro [2004] WASC 111 [6].
It was not in contest in this proceeding that, in order to admit an informal document to probate under s 9 of the Act, the Court must be satisfied that the following three requirements are established on the balance of probabilities:
(i) There must be a ‘document’;
(ii)The document must express or record the testamentary intentions of the deceased; and
(iii)That document must have been intended by the deceased to be his or her will.[2]
[2]Re Kelsall [2016] VSC 724 [14]; Fast v Rockman [2013] VSC 18 [46]; Rowe v Storer [2013] VSC 385 [54]; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408 [56]; Oreski v Ikac [2008] WASCA 220 [52]–[53]; Re Trethewey (2002) 4 VR 406, 408; Equity Trustees v Levin [2004] VSC 203 [15]; Prucha v Standing [2011] VSC 90 [6]; In the Will and Estate of Brian Bateman [2011] VSC 277 [42].
It was uncontroversial that the 2014 document satisfies the first two of the above requirements. The defendants contend, however, that the Court cannot be satisfied that the third requirement is met in the circumstances of this case. Relatedly, they also submit that Mr Cullen has failed to meet the burden of proof placed on him to establish the deceased’s testamentary capacity at the time that the 2014 document was made. These are the two issues for determination in this proceeding.
The principles central to the third requirement were recently summarised by McMillan J in Re White; Montgomery & Anor v Taylor as follows:[3]
[3][2018] VSC 16 [53]-[55], citations omitted.
The third requirement is that the deceased intended ’that particular document to be his or her final will and did not want to make changes to it’. As stated by Whelan J (as his Honour then was) in Equity Trustees Ltd v Levin, ’it cannot be a document intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a ”trial run”’. The relevant intention must be possessed ’either, at the time of the subject document being brought into being, or, at some later time’.
Satisfying the third requirement depends upon the facts and circumstances of each case. The Court may consider evidence regarding the making of the will, as well as direct evidence of testamentary intent. Ultimately, the inquiry remains:
whether the document itself, the circumstances regarding its contents … and other relevant circumstances … lead to the conclusion that the relevant deceased intended the subject document to constitute his will;
that, while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
A relevant consideration under the third requirement is the deceased’s testamentary capacity. Where a deceased lacked the capacity to make a will, then the Court cannot be satisfied that he or she intended the document to be his or her will.[4] In the context of an informal will, the usual presumptions as to testamentary capacity do not apply. While the Court considers the evidence as a whole, the onus of proving testamentary capacity rests upon the party seeking to propound the informal will.
[4]Jageursv Downing [2015] VSC 432 [19].
The test for determining whether a person possesses testamentary capacity is well established and was set out by Cockburn CJ in Banks v Goodfellow.[5] 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 as follows:
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.[6]
[5](1870) LR 5 QB 549 (‘Banks’).
[6]Ibid 566.
In Re Kelsall, McMillan J observed that 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.’[7] Her Honour also referred to the following summary of the law in respect of testamentary capacity provided by Dixon J in Timbury v Coffee:[8]
[7][2016] VSC 724 [28].
[8]Ibid [31], quoting Timbury v Coffee (1941) 66 CLR 277
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.[9]
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.[10]
McMillan J further observed that:
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. 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.[11]
[9]Timbury v Coffee (1941) 66 CLR 277, 283, quoting In the Will of Wilson (1897) 23 VLR 197, 199.
[10]Timbury v Coffee (1941) 66 CLR 277, 283, quoting Symes v Green (1859) 1 Sw. & Tr. 401, 402.
[11]Re Kelsall [2016] VSC 724 [34].
In Worth v Clasohm,[12] the High Court identified that, where a doubt is raised as to the existence of testamentary capacity:
…there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.[13]
[12](1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).
[13]Ibid 453.
The Evidence
The evidence before the Court was not in dispute and no witness was required for cross-examination.
Mr Cullen gave evidence about his and the deceased’s family background. Their parents migrated to Australia as Polish refugees following the Second World War. He was the only sibling of the deceased. Following the death of their father and mother, the deceased and Mr Cullen were the only known living relatives of each other, other than the deceased’s husband, and Mr Cullen’s wife and children.
The deceased and her husband married in about 1971 and remained as a couple until Mr Langley’s death in June 2010. They had no children. At the time of her death, the deceased had no spouse or domestic partner.
Mr Cullen gave evidence that Mr Langley was a domineering personality who did not ‘get on’ with him, his wife or the deceased’s friends. It was only after Mr Langley’s death in 2010 that the deceased re-established a close relationship with Mr Cullen, his family and her friends. From that time onwards, Mr Cullen spoke with the deceased by telephone three to five times a week and they regularly visited each other.
The deceased was diagnosed with breast cancer in about 2010. She was in remission when Mr Langley died in June 2010. She continued to travel extensively overseas, but during one trip was diagnosed with leukaemia. On her return to Australia she commenced regular treatment at the Olivia Newton-John Cancer Wellness and Research Centre (‘the hospital’). From that time onwards, the deceased spent periods at the hospital ranging from several days to several months at a time.
The cause of death of the deceased and the duration of her last illness was recorded in her death certificate as follows:
Diffuse large b cell lymphoma – 2 years
Pulmonary embolism – 14 days;
Given that the deceased died on 2 January 2016, this suggests that she was suffering lymphoma from at least early 2014.
Mr Cullen’s belief was that the deceased wrote the 2014 document during one of her stays at the hospital.
Mr Cullen and his wife found the 2014 document in the kitchen of the deceased’s home shortly after her death. It was found amongst a number of accounts and personal papers. Mr Cullen’s evidence was that he was familiar with the deceased’s handwriting. He was in no doubt that the deceased wrote the 2014 document in her handwriting and that no third person was involved in the writing of it. He deposed that, from his own personal knowledge, the signature on the 2014 document was the deceased’s signature.
Mr Cullen recalled one telephone conversation he had with the deceased in which she said to him words to the effect of, ‘Look Ray, I’m going to change my will and leave the house and the car to you and Margaret.’ He also said that the deceased said words to the effect that, ‘I would like you to look after the boys,’ meaning Mr Cullen’s and his wife’s children. Mr Cullen could not say whether this conversation occurred before or after the date of the 2014 document. He could not recall any further discussions with the deceased about a will.
Based on a conversation he had with the deceased’s solicitor, Ms Lorraine Jones, after the deceased’s death, Mr Cullen gave evidence of his understanding that, after her husband’s death, the deceased had met with Ms Jones and discussed the preparation of a new will or codicil. When informed by Ms Jones that it would cost $175, the deceased had apparently indicated that she would consider it, but then took the matter no further. This was consistent with the evidence given by Ms Jones. According to Mr Cullen, the deceased ‘was very tight with her money’ and would not lightly pay for any goods or services without looking for the cheapest option available.
Ms Jones in her evidence also referred to a meeting with the deceased on 19 July 2010 at which time the deceased instructed her to prepare a survivorship application and power of attorney appointing Mr Cullen. Ms Jones’ file notes record that on 26 July 2010 an application by surviving proprietor was registered on the title to the Eltham property – which title is still held by Ms Jones’ law firm. She also gave evidence that her firm held the original copy of an enduring financial power of attorney signed by the deceased on 9 August 2010 and by Mr Cullen on 20 August 2010.
Other than the above matters, Ms Jones did not recall any other discussions or instructions concerning the preparation of a new will or codicil for the deceased.
Evidence was also given by Ms Dawn Pettingill and Ms Barbara Bowman, close friends of the deceased for more than 40 years until her death. Ms Pettingill deposed to a conversation she had with the deceased on 11 November 2015 in which the deceased informed her that, upon her death, she was leaving her house to Mr Cullen. In the same conversation, the deceased told Ms Pettingill that, because Ms Pettingill did not wear gold, she would not be leaving her gold jewellery to her, but instead she would leave her ‘$10,000 or so.’
Ms Bowman gave evidence that, in the months prior to the deceased’s death, she visited and assisted the deceased in her home twice a week and continued to do so after she entered hospital in September - October 2015. She said that, during these visits, she found the deceased to be lucid and able to hold a conversation about everyday affairs.
Ms Bowman also referred to a conversation she had with the deceased in late October 2015 in which she asked the deceased whether she had her will, house title and ‘the like’ in order. The deceased said that everything was in order and words to the effect that, ‘I intend to leave my house to my brother and his sons and would like his great-grandsons to receive a small share of my estate.’ She also said that she would like to leave something to Ms Bowman and ‘Dawn and Judith.’ According to Ms Bowman, at the time of this discussion, the deceased was lucid and confident in her statements.
Whether the deceased had testamentary capacity at the time of the making of the 2014 document
Submissions
Mr Cullen did not dispute the defendants’ submission that his belief that the 2014 document was made when the deceased was at the hospital receiving treatment for leukaemia raised a doubt as to the deceased’s testamentary capacity. The Court must therefore be affirmatively satisfied on the balance of probabilities and applying the principle in Briginshaw v Briginshaw[14] that, when the deceased made the 2014 document, she had testamentary capacity.
[14](1938) 60 CLR 336 (‘Briginshaw’).
Counsel for Mr Cullen sought to establish that the deceased had testamentary capacity when she made the 2014 document by pointing to the absence of any indication in the death certificate that she was suffering from dementia, or any other medical condition which may have affected her capacity. Blood disorder lymphoma was said not to be a disease which affected the deceased’s mental capacity.
Counsel for Mr Cullen also emphasised what was said to be the rational and logical scheme envisaged by the 2014 document. Having re-established her relationship with Mr Cullen, his wife and their children after the death of her husband, it was explicable, logical and unsurprising that the deceased had sought to alter the provision made for her estate upon her death, by making provision for her remaining family members to whom she had become close.
Reliance was also placed by Mr Cullen on the evidence given by the deceased’s long-term friends. It was said to be significant that neither Ms Bowman nor Ms Pettingill had given any evidence questioning the deceased’s capacity prior to her death. Instead, according to Ms Bowman, in 2015, about a year after the 2014 document was made, the deceased appeared lucid.
Counsel for the defendants emphasised that there were no witnesses to the preparation of the 2014 document and no one able to give evidence as to the deceased’s mental capacity at the time she made it. Mr Cullen’s reliance on Ms Bowman’s evidence was criticised on the basis that her observations as to the deceased’s lucidity and confidence were not contemporaneous with the making of the 2014 document. The defendants also contrasted the deceased’s apparent wishes as set out in the 2014 document against what the deceased said of her intentions to Ms Bowman in October 2015. Notwithstanding that she told Ms Bowman that her intention was to leave her house to Mr Cullen and his sons, with his great-grandsons to receive a share of the estate and also that she would like to provide for Ms Bowman, the 2014 document made no provision for Mr Cullen’s sons, great-grandsons or for Ms Bowman.
The absence of any evidence about the circumstances in which the deceased wrote the 2014 document and her capacity at that time was said by the defendants to be of particular significance given the incomplete nature of the document and the fact that it ended halfway through a sentence, in circumstances when Mr Cullen believed that it was written by the deceased when she was hospitalised and receiving treatment for leukaemia. There was however no evidence as to the treatment or medications the deceased was receiving when she wrote the 2014 document.
Consideration
The evidence before the Court is sufficient to establish that the deceased signed the 2014 document on the date that it bears, 5 August 2014. The defendants did not submit to the contrary. The task for Mr Cullen is therefore to establish on the balance of probabilities that, at that time, the deceased had testamentary capacity. The serious nature of a grant of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased necessarily means however that the Court must evaluate the evidence said to establish the deceased’s testamentary capacity with great care and in accordance with the Briginshaw principle.[15] Reasonable satisfaction of the deceased’s testamentary capacity is not to be attained by ‘inexact proofs, indefinite testimony or indirect inferences.’[16]
[15]As that standard is applied under s 140 of the Evidence Act 2008. See Fast v Rockman [2013] VSC 18 [48].
[16]Re Kelsall [2016] VSC 724 [28].
Applying this approach, I consider that the deceased’s testamentary capacity when she made the 2014 document is established principally by the contents of the document itself.[17] As Mr Cullen argued, the scheme that the 2014 document establishes is, on its face, rational and logical and it purports to benefit those with whom the deceased was close at the end of her life. It was signed and dated by the deceased, was styled as a ‘last will and testament,’ and referred to the principal elements of the deceased’s estate, including by gifting property to the deceased’s surviving close family member, Mr Cullen. These features indicate that, in making the 2014 document, the deceased understood the nature and effect of a testator’s power to dispose of their property as they see fit, understood the extent of the property of which she was purporting to dispose, and understood the claims which others may have to her property.
[17]See analogously Re Estate of Robertson [2018] VSC 373 [97].
I do not consider that this conclusion is altered by the fact that the 2014 document is incomplete and ends mid-sentence. Although one possible explanation for this is that the deceased lost consciousness or the ability to continue to express her wishes at that point in writing the document, as counsel for the defendants accepted, such an explanation is entirely speculative. It is not to be overlooked that, beyond Mr Cullen’s belief that the 2014 document was written by the deceased when she was in hospital, there is in fact no evidence which confirms that she was hospitalised when she wrote the document However, even if Mr Cullen’s belief is assumed to be correct, there is no evidence about what, if any, medication was administered to the deceased when she was hospitalised and the effect of any such medication on her mental state. Mr Cullen is not required to answer the doubt about the deceased’s capacity to the ‘point of complete demonstration, or by proof beyond a reasonable doubt.’[18]
[18]Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ). See paragraph 24 above.
In finding that the deceased had testamentary capacity on the basis of the contents of the 2014 document itself, I draw support from the absence of any evidence that, when she made the document, the deceased was suffering from any medical condition which may have affected her capacity. There is no evidence that the deceased’s testamentary capacity was impaired or affected by lymphoma which she appeared to have been afflicted with when she made the 2014 document.
The parties’ reliance on the evidence given by Ms Bowman is of limited assistance in considering whether Mr Cullen has established to the requisite standard that the deceased had testamentary capacity when the 2014 document was written. Ms Bowman’s observations about the deceased’s lucidity and confidence in September – October 2015 does not assist me in determining whether she had capacity some 14 months earlier when she signed the 2014 document. Likewise, I am unpersuaded by the defendants’ reliance on Ms Bowman’s evidence to show a divergence between the deceased’s statements about her testamentary intentions in 2015 and the actual provision made by the 2014 document. It is unclear to me how this difference necessarily raises doubt about the deceased’s capacity. All it would appear to show is that the deceased had a change of mind in relation to her testamentary intentions.
For these reasons, I find that Mr Cullen has discharged the onus upon him to prove that the deceased had testamentary capacity when she signed the 2014 document.
Whether the deceased intended that the 2014 document be her will
Plaintiff’s submissions
Mr Cullen advanced three principal arguments as to why the Court should find that the deceased intended the 2014 document to be her final will. First, he contended that, on its face, the 2014 document made plain that the deceased did intend that document to be her last will. This conclusion was said to follow from three key features of the document:
(a)its commencing words - ‘This is the last will and testament’ of the deceased;
(b)the inclusion of the words ‘I give devise & bequest all my estate’ – said to signify that the deceased wished to deal formally with all of her estate; and
(c)the fact that the document was signed and dated by the deceased and not marked in draft.
Secondly, Mr Cullen emphasised the deceased’s statements to Mr Cullen, Ms Pettingill and Ms Bowman referred to in paragraphs 37-39 above. These statements were submitted to be consistent with the conclusion that the deceased intended the 2014 document to be her last will without any further action by her.
Thirdly, Mr Cullen contended that a conclusion that the deceased intended the 2014 document to be her last will, without more, was supported by the fact that the will was ultimately found by him in a place where it could be found, namely, the kitchen of her home.
Consideration
The burden on Mr Cullen is to prove on the balance of probabilities that the deceased wanted the 2014 document to be her final will and that she did not want to make any changes to that document.[19]
[19]Rowe v Storer [2013] VSC 385 [42].
Mr Cullen’s strongest argument centres on the fact that the deceased signed and dated the 2014 document, which was expressed to be her ‘last will and testament’. However, these features are not determinative. There are a number of authorities in which documents have not been admitted to probate, notwithstanding that they have been signed and dated by the deceased.[20] Each case must turn upon its own facts and circumstances.
[20]See for example: Application of Russell-Smith; Estate of Plumwood (2010) 3 ASTLR 142 [22]; Re Hancock; Rennie v The Whippet Association of Victoria Inc [2016] VSC 496.
The principal difficulty for Mr Cullen in respect of the third element is the fact that the 2014 document ends abruptly in mid-sentence with the words ‘the annuity account with.’ Although the annuity account is not specifically identified in the document itself, the inventory of assets and liabilities of the deceased revealed only one account apparently of this type, being a OnePath pension – policy No 6169229. Even if it be accepted that the reference in the 2014 document to ‘the annuity account’ can only be taken to be a reference to this named pension policy account, the 2014 document does not contain any statement of the deceased’s testamentary wishes in respect of this account which, being an amount in excess of $230,000, represents around a quarter of the deceased’s estate.
In the face of this, it is difficult to see how it can be said that the deceased intended the 2014 document to be her final will without making any changes to it. It contained a large gap which remained to be filled.
Counsel for Mr Cullen sought to overcome this difficulty in two ways. First, emphasis was placed on the second sentence in the 2014 document which commenced, ‘I give, devise & bequest all my estate’ (emphasis added) to Mr Cullen and Mrs Cullen. It was therefore contended that the deceased clearly intended the annuity account, forming part of her estate, to pass to Mr Cullen.
The difficulty with this argument is that it ignores the immediately succeeding words of the 2014 document; namely, ‘comprising my house and land at 46 Malabar Crescent, Eltham including furniture and fittings.’ On its natural reading then, the reference in this sentence to ‘all’ my estate must be taken to mean those specific assets she identified, viz, her house, land, furniture and fittings.
Alternatively, Mr Cullen contended that the reference to the annuity account in the 2014 document simply indicated that the deceased may have left her affairs in a ‘mess,’ but that this did not detract from or alter her intention to leave a will.
I have already found that the deceased had testamentary capacity when she made the 2014 document. This submission does not assist in demonstrating to the requisite standard that the deceased wanted the 2014 document to be her final will, ‘without more.’ I cannot be so satisfied because the 2014 document comes to an abrupt end when it addresses a significant element of the deceased’s estate and makes no provision in respect of it.
Mr Cullen’s reliance upon evidence about the deceased’s statements to establish her testamentary intention in respect of the 2014 document is also problematic and unconvincing. First, the submission that, around the time that the 2014 document was created, the deceased told Mr Cullen that she had ‘done’ a new will is not borne out by the evidence. The evidence is that the deceased said to Mr Cullen, ‘Look Ray, I’m going to change my will and leave the house and the car to you and Margaret.’ Mr Cullen could not recall whether this was said before or after the date upon which the 2014 document was made.
Secondly, there is force in the defendants’ submissions that the terms of the 2014 document are contradicted by conversations that the deceased had after it was made. As has been noted, the 2014 document contains no provision for Mr Cullen’s sons or great-grandsons, despite the fact that 14 months after it was made, the deceased said to Ms Bowman that she intended to leave her house to her brother and his sons and would like his great-grandsons to receive a small share of the estate. At around the same time, the deceased told Ms Bowman that she would like to leave something to her, as well as to Ms Barnard and Ms Pettingill. Although the 2014 document does make provision for the latter two women, it makes no provision for Ms Bowman. The 2014 document also purports to give Ms Pettingill a share of the deceased’s gold and pearl jewellery. However, the evidence is that the deceased told Ms Pettingill that she would not be leaving Ms Pettingill her gold jewellery and would instead be leaving her ‘$10,000 or so.’
These inconsistencies between the contents of the 2014 document and the conversations the deceased had with her friends after the document was made support the conclusion that the deceased had not reached a concluded view as to her testamentary intentions at the time that she made the 2014 document.
I am also unpersuaded that the fact that the 2014 document was found in the deceased’s kitchen provides any support for a conclusion that the deceased intended the 2014 document to be her will without more. There is no evidence that it was found amongst other important documents. The better view is that the fact that the 2014 document was found in the kitchen amongst other papers and accounts suggests that it was not stored as an important document. It is to be contrasted with the fact that the deceased kept her important legal documents with a solicitor, including the title to her property and the original enduring financial power of attorney. This evidence also establishes that the deceased attended a solicitor for the preparation of legal documents including the formal will, a financial power of attorney and an application by a surviving proprietor following the death of her husband.
For these reasons, I am not satisfied that the deceased intended the 2014 document to be her final will.
Conclusion & disposition
I have concluded that the deceased had testamentary capacity when she made the 2014 document. However, I am not satisfied that the deceased intended that document to be her will. It follows that the 2014 document should not be regarded as an informal will to be admitted to probate.
Within 7 days, the parties are to submit to the Court orders giving effect to these reasons for judgment and, in the absence of any agreement, any short submissions on costs.
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