JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2022
DATE OF JUDGMENT:	21 June 2022
CASE MAY BE CITED AS:	Re Maddock; Bailey v Maddock
MEDIUM NEUTRAL CITATION:	[2022] VSC 346

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PROBATE – Whether deceased lacked testamentary capacity – Whether deceased understood the extent of the property of which he was disposing – Whether the deceased was able to comprehend and appreciate the claims to which he ought to give effect – Whether the medical evidence was sufficient to demonstrate that the deceased had testamentary capacity – Application dismissed – Banks v Goodfellow (1870) LR 5 QB 549.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Smith	Maurice Blackburn
For the Defendant	Ms A Bartfeld	KCL Law

HER HONOUR:

Introduction

Norman William Maddock (‘the deceased’) died on 17 June 2020. The deceased was survived by his wife, Shirley Taylor Maddock (‘the defendant’) and two children: his son, Norman William Maddock, and step-daughter, Nellie Thelma O’Connor-Gunn.

The deceased first married in 1944. In 1955 the deceased purchased a property in Bentleigh East in which he commenced cohabitating with the defendant. They married in 1975.

Since 2013 the defendant suffered from dementia. Since 28 August 2018 she resided in an aged care facility, known as Warrawee Community (’Warrawee’). She died on 30 May 2022, aged 93 years.[1] Prior to her death, the defendant was represented by her administrator, Australian Unity Trustees Limited.
[1]The Court was notified of the defendant’s death on 31 May 2022, which had occurred the day prior.

After the defendant moved to Warrawee the deceased continued living in the Bentleigh East property until 1 October 2019, when he was admitted to Warrawee. He remained there until his death, aged 97 years.

Deceased’s recent wills

Anthony Naughton is a solicitor at Morley Naughton Pearn & Cook. He was admitted to practice in 1982 and practises in the area of wills and estates. In the 15 month period between October 2018 and January 2020, when the deceased was aged 95 or 96 years, Mr Naughton took instructions from the deceased, prepared and witnessed three wills, prepared and witnessed an enduring power of attorney and advised him in relation to an inter vivos transfer of the Bentleigh East property to Marcia Bailey (‘the plaintiff’).

The 2018 will

The deceased’s antepenultimate will was made on 24 October 2018 (‘the 2018 will’). Pursuant to the 2018 will, the deceased appointed his friends, Geoff Dixon, Jennifer Greenland and the plaintiff, as his executors. He left $25,000 to each of his executors, $180,000 to various charities, $600,000 to the defendant and the residue in the percentages of 20 per cent to his son, 20 per cent to his step…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Maddock; Bailey v Maddock

Details

AGLC: Re Maddock; Bailey v Maddock [2022] VSC 346
Case: [2022] VSC 346
Decision Date: 21 June 2022

CaseChat Overview and Summary

In the matter of the estate of Maddock, the dispute involves the validity of a will left by the deceased. Bailey, the applicant, contests the will on the grounds that Maddock lacked testamentary capacity at the time of making it. The matter was heard in the Supreme Court. The central legal issues before the court were whether Maddock understood the extent of his property, comprehended and appreciated the claims to which he ought to give effect, and ultimately, whether he possessed testamentary capacity at the time of executing the will.

The court examined the medical evidence presented to determine Maddock's mental state at the time of making the will. The evidence included assessments from various medical professionals, who provided differing opinions on Maddock's capacity. The court also considered the principles established in Banks v Goodfellow, which sets out the criteria for testamentary capacity. The court found that while Maddock had periods of clarity, there was insufficient evidence to conclusively demonstrate that he consistently possessed the required understanding and appreciation of his property and the claims to which he ought to give effect throughout the period of making the will.

Consequently, the court held that the medical evidence did not sufficiently demonstrate that Maddock had testamentary capacity at the time of executing the will. The application by Bailey to contest the will was dismissed. The court's reasoning was grounded in the need for a clear and convincing demonstration of testamentary capacity, which was not met in this case.

Orders