Re Matthews
[2022] VSC 15
•25 January 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2020 07465
IN THE MATTER OF the will and estate of JAMES WILLIAM MATTHEWS, deceased
APPLICATION BY:
| ANDREW MARK ALEXANDER (in his capacity as executor of the will and trustee of the estate of the deceased | Plaintiff |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 August 2021 |
DATE OF JUDGMENT: | 25 January 2022 |
CASE MAY BE CITED AS: | Re Matthews |
MEDIUM NEUTRAL CITATION: | [2022] VSC 15 |
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PROBATE – Where caveat objecting to grant of probate lodged with Registrar of Probates – Where caveator filed grounds of objection and particulars – Whether caveator’s particulars establish a prima facie case – Alleged lack of testamentary capacity – Alleged undue influence – Where will rational on its face and duly executed – Insufficient factual basis – No case for investigation – Banks v Goodfellow (1870) LR 5 QB 549.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms R Grayson Morison | Martin Middleton Oates Lawyers |
| For the Caveator | Mr A Burnett | Petersen Westbrook Cameron Pty Ltd |
HER HONOUR:
Introduction
James William Matthews died on 18 May 2019, aged 34 years. Some months before the deceased made his will dated 17 May 2019, he was diagnosed with terminal cancer. At the date of his death, the deceased was not married and had no children.
Pursuant to his will, the deceased appointed the plaintiff as his executor, bequeathed certain chattels to his godson and the plaintiff, devised his interests in two Tasmanian properties to his grandparents and left the residue of his estate to the plaintiff. The deceased’s father, being the caveator, receives no provision under the terms of the will.
The deceased’s estate is valued at approximately $785,734 comprising personal estate in Victoria and New South Wales and the two properties in Tasmania.
Procedural history
On 15 May 2020, the plaintiff filed an application for a grant of probate of the will.
On 19 May 2020, the plaintiff’s solicitor received a requisition from the Registrar of Probates requesting that medical evidence on oath be filed to establish the testamentary capacity of the deceased at the time the will was executed.
On 16 October 2020, the plaintiff filed three affidavits in response to the Registrar’s requisition. The affidavits were sworn by the lawyer who took the instructions for the will, the lawyer who attended on the deceased to execute his will and the lawyer with the conduct of the application for the grant of probate. On 20 October 2020 copies of the sworn affidavits were provided to the solicitors for the caveator, Petersen Westbrook Cameron Pty Ltd (‘PWC’).
On 21 October 2020, the caveator filed a caveat in the probate proceeding.
On 16 November 2020, the caveator filed grounds of objection alleging that the deceased lacked testamentary capacity shortly before and at the time he executed the will, alternatively, the will was procured by the undue influence of the plaintiff.
On 2 March 2021 the plaintiff was served with the caveator’s summons:
to determine the questions that have arisen in the Estate of James William Matthews and seek directions to administer the Estate, in particular the question of undue influence of the deceased when executing his will and the question of the deceased’s testamentary capacity during the period shortly before and at the time of execution of his will.
The plaintiff’s lawyers sent a letter by email advising that they did not believe that the caveator’s grounds of objection established a prima facie case that the deceased lacked testamentary capacity or that the will was procured by the undue influence of the plaintiff.
On 23 March 2021, the caveator filed particulars to support his grounds of objection filed on 16 November 2020. The plaintiff informed the caveator that he did not believe the particulars established a prima facie case. By consent, the caveator’s summons was adjourned for the caveator to file further particulars of his grounds of objection.
On 7 April 2021, the caveator filed amended particulars in support of his grounds of objection. The plaintiff’s position is that these amended particulars also fail to establish a prima facie case of lack of testamentary capacity or undue influence.
On 21 April 2021, by consent, the plaintiff and caveator were ordered to serve submissions for the determination as to whether the caveator has established a prima facie case for investigation in respect of his grounds of objection supported by the amended particulars.
Factual background
The relevant factual background is largely found in three affidavits filed by the plaintiff. The facts set out in the affidavits are not in dispute, however, there are disputes as to the implications to be drawn from them.
Instructions for the will
The first affidavit is sworn by Nicola Elizabeth Thompson (‘Ms Thompson’), who was a legal practitioner employed with Martin Irwin & Richards Lawyers Pty Ltd (as it was then known) from May 2013 to June 2019.
Ms Thompson deposed to the circumstances in which the deceased gave instructions for his will. On 17 May 2019 Ms Thompson attended on the deceased at the Mildura Private Hospital with another solicitor, Ms Costa, to meet and obtain instructions from the deceased for a new will. When they arrived in the deceased’s room at the hospital, the deceased and the plaintiff were in the room. The deceased was in bed. Ms Thompson and Ms Costa introduced themselves. The deceased thanked them for coming to the hospital.
Ms Thompson asked the deceased if he wished to provide instructions regarding the preparation of a new will. He confirmed that he did. Ms Thompson then explained that she would ask the deceased a series of questions to obtain his instructions. She commenced by asking the deceased his full name, address, telephone number, email address, occupation and next of kin. The deceased provided these details and told her that his next of kin was his father.
The deceased told Ms Thompson that he wanted the plaintiff to be his executor. She explained the benefit of appointing an alternative executor to the deceased and he said he did not wish to nominate an alternative executor.
Ms Thompson asked the deceased whether he wished to specify any burial requirements in his will and explained that any minor beneficiaries of his will be a minimum age of 21 before inheriting. The deceased told Ms Thompson that he had no burial requirements and he wanted his beneficiaries to be a minimum age of 21 before inheriting.
Ms Thompson then questioned the deceased about his current assets and he handed her a handwritten note which listed his assets alongside their approximate value, and the name of each person whom he wished to benefit in his will.
Ms Thompson discussed the listed assets with the deceased. He told her who he would like to leave his assets to in his will.
Ms Thompson then asked the deceased if he held any other assets not listed on his handwritten note, such as property. He told her that he had a one-third interest in a property in Tasmania, located in Irishtown Road, St Mary’s and that he wished to leave his interest to his grandparents, Donald Bruce and Ruth Bernice Matthews, both of 149 Bassetts Road, Calder in Tasmania. He said both grandparents were retired. He also said that it was his intention to acquire the other two thirds interest in the properties then held by his grandparents and instructed Ms Thompson that if this transfer occurred prior to his death, then his 100 per cent interest was to be transferred back to his grandparents.
The deceased also told Ms Thompson that he had superannuation, cash in the bank and two life insurance policies and that he did not hold any other assets.
Ms Thompson asked the deceased what he would like to happen if any of his stated beneficiaries predeceased him. She asked him whether he would like his share in those assets to be transferred to any children of the beneficiary that predeceased him or to a different beneficiary. The deceased said he was happy for any assets to pass to any children of the intended beneficiary if the intended beneficiary died before him.
Ms Thompson noted the deceased had not made any provision for his father in the will and she asked him about this. The deceased told her in no uncertain terms that he did not wish his father to inherit anything from his estate.
Ms Thompson asked the deceased if he had any other instructions or questions regarding his will. He said that he did not and he also said that he was anxious for his will to be prepared as soon as possible so that his wishes could be carried out. Ms Thompson told the deceased that she would prepare the will and provide him with a draft for his approval, and, if in order, for signing as soon as possible.
Ms Thompson gave her business card with her contact details on it to the deceased and told him that if he had any other instructions or questions he could contact her at the office at any time. The deceased again thanked them for attending and Ms Thompson and Ms Costa then left the hospital and returned to the office.
Execution of the will
The second affidavit is sworn by Alix Emily O’Donnell (‘Ms O’Donnell’), one of the subscribing witnesses to the deceased’s will. Ms O’Donnell deposed to the circumstances surrounding the signing of the deceased’s will on 17 May 2019.
Ms O’Donnell deposed that she has been a lawyer for two and a half years, and that she has been taking instructions, signing and witnessing wills for that period of time.
Ms O’Donnell explained that her office received a call from the plaintiff on 17 May 2019 to say that in a conversation with the deceased and his doctor the day before, the deceased was told by his doctor that if he wanted to finalise any arrangements regarding his affairs, it would need to happen soon, as the doctor did not believe the deceased would survive the weekend. Ms O’Donnell took the message as Ms Thompson did not work on Fridays.
Ms O’Donnell deposed to calling the deceased and when he did not pick up, she left a voicemail requesting that he call her back. When the deceased called her back, Ms O’Donnell explained who she was, that Ms Thompson was not in the office that day, that therefore Ms O’Donnell would assist in finalising the will. The deceased stated that he was happy with the arrangement. He also asked if there was an enduring power of attorney and medical power of attorney on file for him to also sign.
While on the call, the deceased confirmed with Ms O’Donnell that he wished to appoint the plaintiff as the executor of his will. Ms O’Donnell and the deceased then discussed each clause of the will. For each specific gift the deceased confirmed the instructions that he had previously provided to Ms Thompson. Ms O’Donnell then asked what the deceased wished to occur with the residue of his estate. The deceased told her that he wished to leave the residue to the plaintiff, as he had looked after him while he had been sick and would be acting as executor. Ms O’Donnell then told the deceased that she would finalise his will and come to the hospital later in the morning, at which time he could review and sign the will.
At about 10.30am on 17 May 2019, Ms O’Donnell went to the Mildura Private Hospital with Jacquie Louise Brady, the other subscribing witness to the will. Ms O’Donnell introduced herself to the deceased and confirmed that they had talked earlier that morning on the telephone.
There was another man present in the deceased’s room. Ms O’Donnell asked the deceased who the person was, and the deceased told Ms O’Donnell that it was his father. When Ms O’Donnell asked the deceased if she should ask for the deceased’s father to step out of the room, the deceased said he was fine for him to stay.
Ms O’Donnell handed the prepared will to the deceased and took the deceased through his will, clause by clause. The deceased was feeling tired due to his terminal illness so Ms O’Donnell read the will to him while he had his eyes closed. Ms O’Donnell paused reading the will frequently and asked the deceased if he understood what she was saying and if he had any questions. On each occasion the deceased told Ms O’Donnell he understood and approved of the contents read out to him. When Ms O’Donnell reached the provision for the deceased’s interest held in the Tasmanian properties, the deceased interrupted to make sure that Ms O’Donnell was aware he only held a one third interest in the properties.
When Ms O’Donnell finished going through the will, the deceased told her that he was happy with it, that he did not want to make any further amendments, and that he would like to sign the will. The deceased then signed the will in the presence of Ms O’Donnell and the other subscribing witness.
Attempts to obtain medical evidence of testamentary capacity
Inga Dalla Santa (‘Ms Dalla Santa’) is the solicitor with the conduct of the plaintiff’s application for a grant of probate of the deceased’s will. She deposed that in response to the Registrar of Probates’ request for evidence of testamentary capacity, she wrote to the deceased’s treating oncologist, who informed her that he was not able to provide an affidavit establishing the testamentary capacity of the deceased at the time of signing his will.
Ms Dalla Santa attempted to obtain medical evidence of testamentary capacity from the deceased’s palliative care nurse, but she had changed her place of employment and did not leave any forwarding contact details.
Ms Dalla Santa also contacted the deceased’s general practitioner, but they had not seen the deceased in the time immediately preceding his death and were unable to provide evidence of testamentary capacity at the time of making his will.
Caveator’s submissions
The caveator submits that the fact that the deceased’s will contains no provision for him ‘strikes at the strong filial relationship that was shared between father and son’, and that he is shocked and perplexed as to why the will excluded him.
Testamentary capacity
The caveator notes there is no medical evidence of capacity as no medical records were sought or relied upon by the plaintiff. He submits the deceased could have been receiving a range of treatments at the time of giving instructions and executing his will and that medical evidence should be investigated by the Court.
The caveator also submits that the indistinct nature of the statement of the deceased’s treating oncologist warrants further investigation. The caveator asserts that the reason for the oncologist’s inability to provide an affidavit establishing the testamentary capacity of the deceased should be known by the Court.
The caveator submits the evidence provided by the two lawyers who attended on the deceased should not be relied upon to establish testamentary capacity as they did not follow the Law Institute of Victoria Guidelines and Toolkit for Taking Instructions When a Client’s Capacity is in Doubt (‘the Guidelines’) to establish testamentary capacity.
Specifically, the caveator notes that Ms Thompson’s file note when she took instructions was ‘woefully brief’ and that Ms O’Donnell did not take contemporaneous notes. The absence of detailed contemporaneous notes does not allow the Court to determine which questions were asked, how much time each solicitor spent with the deceased, and whether anyone else in the room spoke during the meetings. The caveator is particularly concerned by the fact that in Ms Thompson’s contemporaneous notes there is no reference to the deceased’s wish that the caveator not be included in the will and submits that Ms Thompson should have investigated further given that it is ‘irrational’ to not provide for one’s father.
The caveator notes that both lawyers who attended on the deceased in the preparation of his will were meeting him for the first time. They did not have the kind of ongoing relationship that would be necessary to assess whether the deceased had capacity, and they did not make enquiries of his treating doctors to determine whether he had capacity.
Finally, the caveator contends that the deceased having his eyes closed while the will was read to him prior to signing appears at odds with the notion that he had testamentary capacity.
Undue influence
The caveator submits that five elements, when taken together, provide a sufficient factual basis to sustain a prima facie case of undue influence.
First, the caveator relies on the presence of the plaintiff when the deceased was giving instructions and Ms Thompson’s lack of questioning as to his presence, as potentially being a sign of undue influence.
Secondly, the caveator contends that the provenance of the deceased’s handwritten list outlining his assets, their value, and their desired beneficiaries, is uncertain and Ms Thompson failed to properly question whether the handwritten note was written by the deceased.
Thirdly, the caveator contends that the two solicitors who attended on the deceased to take his instructions and to execute the will did not follow the Guidelines, which may have left space for undue influence from the plaintiff.
Fourthly, and relatedly, the caveator asserts that Ms Thompson did not take sufficient steps to ascertain whether she was talking to the plaintiff when she took instructions over the phone on 17 April 2019. The caveator considers that this is especially concerning considering it was the plaintiff who called the office to indicate that the deceased would like his will executed that day.
Fifthly, the caveator looks to the lack of medical evidence as to the deceased’s testamentary capacity, and his general weakened state due to being in the final stage of his life, to show that he might have been more susceptible to influence from the plaintiff. The caveator relies heavily on the following statement of Sir James Hannen P in Wingrove v Wingrove:[1]
a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.
[1](1885) LR 11 PD 81, 82-83 (Sir Hannen P) (‘Wingrove v Wingrove’).
Plaintiff’s submissions
The plaintiff submits the amended particulars filed by the caveator fails to establish a prima facie case that the deceased lacked testamentary capacity or that the will was procured by the undue influence of the plaintiff. The plaintiff contends that there is no case for investigation and submits that the grounds of objection and amended particulars ought to be struck out.
As to testamentary capacity, the plaintiff submits that the affidavits establish that the deceased satisfied the Banks v Goodfellow[2] test for testamentary capacity. The deceased at all times presented himself as aware of the nature and extent of his assets, his testamentary wishes, and the identity of persons who may have a claim on his estate.
[2](1870) LR 5 QB 549 (‘Banks v Goodfellow’).
The plaintiff submits that the fact that the deceased was very ill and suffering from terminal cancer at the time of providing his instructions on 7 May 2019 and on signing the will on 17 May 2019 does not support a prima facie case that the deceased lacked testamentary capacity on either occasion. Further, the fact that he had his eyes closed while listening to his will being read aloud does not lead to an inference that he lacked testamentary capacity.
The plaintiff submits that the lack of contemporaneous notes from Ms O’Donnell is not relevant to establishing capacity and the fact that a note was not taken regarding a particular question does not mean that the question was not asked by her.
Similarly, the lack of an ongoing relationship between the deceased and the solicitors does not indicate that the solicitors were incapable of assessing testamentary capacity. The plaintiff notes that the deceased was 34 years old at the time of his death, and that it is unsurprising that he had not had dealings with solicitors prior to making his will.
Finally, the fact that the treating oncologist was unable to provide an affidavit, does not mean that they were unwilling to do so, as the caveator asserts in their particulars.
The plaintiff notes that the deceased confirmed his instructions for his will on two separate occasions, and that the same instructions were confirmed by his handwritten notes that were pre-prepared by him.
In relation to the caveator’s allegations of undue influence, the plaintiff submits there is no evidence of actual coercion against the plaintiff. The mere presence of the plaintiff while the deceased was giving instructions in relation to his will does not establish a prima facie case that he was applying pressure to the deceased. The plaintiff also submits that the plaintiff’s telephone call to the solicitor’s offices is not relevant and does not show undue influence.
Applicable principles
Caveats in probate proceedings act as a mechanism for notice to the Court that a person objects to the continuation of the proceeding without notice to them and the grant of probate sought being made. The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of probate or letters of administration is made can be investigated and dealt with by the Court. This ensures that a grant gives effect to the final valid testamentary wishes of a deceased person or the intestacy provisions and title to any property owned by the deceased at the date of their death passes in accordance with these wishes or provisions.
If a caveator disputes the validity of the last will of a deceased, they must establish standing to object to the grant and file grounds of objection with particulars that provide a sufficient factual basis to raise at least a prima facie case of the grounds of objection relied on.[3] The onus rests with the caveator to raise a doubt as to the validity of the will.[4]
[3]Moran v Place [1896] P 214, 216–7 (Lindley LJ), cited in Re Kouvakas; Lucas v Konakas [2014] NSWSC 786, [242] (Lindsay J).
[4]Gardiner v Hughes [No 2] [2019] VSCA 198, [42] (Kyrou, McLeish and T Forrest JJA).
The purpose of the particulars and the grounds of objection is to define the questions for trial, to enable the propounder of the last will to understand the case put against making a grant with precision and particularity and so as to avoid surprise at the trial. Where the particulars of objection are imprecise, vague or inadequate, the Court may order that further particulars be provided within a certain time, as has happened once in this proceeding. Where the particulars are ambiguous, obscure or inadequate the particulars may be struck out.[5] In default of particulars that fail to provide a sufficient factual basis for the grounds of objection, the Court will order that the caveat cease to be of effect. If there is a proper basis for the caveat, orders would be made joining the caveator as a defendant in the proceeding and directions made for the trial of the proceeding.
Testamentary capacity
[5]Re Smith (dec’d) [1951] VLR 368.
The classic statement as to the legal test for testamentary capacity was stated in Banks v Goodfellow as follows:
It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he 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]
[6]Banks v Goodfellow (n 2) 565 (Cockburn CJ, with whom Blackburn, Mellor and Hannen JJ agreed).
The test for testamentary capacity is a legal test. Although in some circumstances medical evidence may be probative as to questions of capacity, it is not essential or determinative. Lay witnesses, including solicitors, are usually in a position to provide probative evidence for determining testamentary capacity.[7]
[7]Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, [65] (Hodgson JA).
Where a will is rational on its face and duly executed, there is a presumption that the deceased had testamentary capacity.[8] The caveator has the evidentiary burden to point to circumstances that raise a suspicion that the deceased lacked testamentary capacity so as to require an investigation of the will. In that event, the force of the presumption is reduced and shifts the evidentiary burden to the propounder of the will, such as to provide further or independent evidence of testamentary capacity.
[8]Gornall v Masen (1887) 12 PD 142; Palin v Ponting [1930] P 185, 188 (Bateson J).
The bar for testamentary capacity is ‘fairly low’, so as to allow for testamentary freedom, including into old age where some individuals ‘will display slowness, illness, feebleness and eccentricity to a greater extent than persons of a younger age’.[9] Extreme ill-health of itself, is not enough to establish a lack of testamentary capacity.[10] In Bailey v Bailey[11], Isaacs J, with whom Gavan Duffy and Rich JJ agreed, remarked:
[t]o displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that … the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.[12]
[9]Public Trustee v Alzheimer’s Australia WA Ltd (No 2) [2014] WASC 337, [37] (Pritchard J)
[10]Bailey v Bailey (1924) 34 CLR 558.
[11]Ibid.
[12]Ibid 571-2 (Isaacs J, with whom Gavan Duffy and Rich JJ agreed).
In Re Rushton,[13] the Court found that undergoing cancer treatments, including taking opiate medication, did not necessarily mean that someone lacked testamentary capacity, especially in light of other factors, such as the logical form and execution of the will.
[13][2015] ACTSC 342, [43]-[45] (Mossop AsJ).
Sometimes extreme ill health may require a propounder of a will to provide independent evidence of testamentary capacity of a deceased. For example, in West Australian Trustee Executor and Agency Co Ltd v Holmes, physical illness and pain so transformed the testator’s personality and character, in particular, in regard to his spouse, whom he delusionally believed had attempted to poison him to undermine a claim of mental capacity.[14]
Undue influence
[14]West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144.
Testamentary undue influence is a serious claim of an equitable species of fraud, an essential component of which is an allegation of fraudulent conduct.[15] Where undue influence is alleged, the onus of proof lies with the person who alleges such conduct.[16]
[15]Re Montalto [2016] VSC 266, [27] (McMillan J); Re Anderson [2017] VSC 338.
[16]Boyse v Rossborough (1857) 6 HL Cas 48, 49; 10 ER 1192, 1211 (Lord Cranworth); McKinnon v Voigt [1998] 3 VR 543, 562 (Ormiston JA); Re Montalto (n 15); Re Anderson (n 15).
In Hall v Hall,[17], Sir J P Wilde said:
To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, — these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.
[17](1865-69) LR 1 P & D 481, 482 (Sir J P Wilde).
The primary element of undue influence, in a probate context, is that the conduct overbears the will of the testator so that the will is made without intending or desiring the disposition made thereby. The act must be coerced, not voluntary.[18]
[18]Wingrove v Wingrove (n 1) 82-83 (Sir Hannen P).
When a person is more vulnerable or impressionable, it may be easier to influence them. As such, the degree or nature of pressure that may invalidate the will making process will depend according to the vulnerability and susceptibility of an individual testator.[19]
[19]Nicholson v Knaggs [2009] VSC 64, [149] (Vickery J).
Consideration
The plaintiff and the caveator agree that as the caveator is the father of the deceased, he has standing to object to the deceased’s will. If the will is not valid, the caveator is a beneficiary on intestacy.[20]
Testamentary capacity
[20]Administration and Probate Act 1958 (Vic) s 70ZH.
The principle of freedom of testation gives rise to a presumption that a will that is rational in its terms speaks, albeit not conclusively, as to capacity.[21] The deceased’s will was executed towards the end of his life while in palliative care suffering from oesophageal cancer. He had been suffering from the cancer for the past eight months. Although there are very few details regarding the deceased’s illness or his treatments, his illness is not usually the kind that would raise concerns as to testamentary capacity and, without anything further, the fact of being very ill does not in itself indicate a lack of testamentary capacity.
[21]Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17, [180] (EM Heenan J).
The fact that the deceased’s treating oncologist declined to give an assessment as to the deceased’s testamentary capacity is not unusual. The test for testamentary capacity is a legal test, not a medical test, and most medical professionals do not have the expertise to adduce testamentary capacity. No inference can be drawn from the fact that the treating oncologist declined to give such an assessment.
In ordinary circumstances, evidence from solicitors taking instructions and witnessing the will can be sufficient to establish whether a deceased has testamentary capacity. The caveator’s reliance on the Guidelines to suggest that insufficient steps were taken by the solicitors to ensure that the deceased had testamentary capacity is misplaced. Although the Guidelines set out the best practice to follow to determine testamentary capacity, they are primarily a tool to be used when a solicitor suspects that their client does not have capacity.
The affidavit evidence of the solicitors who took instructions and who witnessed the deceased’s will is that they did not detect any issues concerning the deceased’s testamentary capacity. On the contrary, the solicitors’ interactions with the deceased show clearly that the deceased had testamentary capacity.
First, Ms Thompson deposed that upon attending on the deceased in the hospital to take instructions for his will, she asked if he sought to make a will, and he responded in the affirmative. Accordingly, the deceased understood the nature and effect of making a will.
Secondly, the deceased showed a detailed and accurate knowledge of his assets in the list that he prepared and also in the instructions he provided to his solicitors. This was confirmed on 17 May 2019 when the will was being executed and the deceased interrupted Ms O’Donnell to ensure that she understood that he was not the sole registered proprietor of the property, his interest in which they were discussing. Further, the will is valid on its face, is detailed and includes gifts to various people, of which the plaintiff is only one. All of these factors indicate that the deceased was well aware of the extent and value of his estate.
Thirdly, the evidence of Ms Thompson suggests that the deceased understood that the caveator may have a claim on his estate and that he did not wish to provide for him. In particular, it is noteworthy that when she raised with the deceased the fact that he had made no provision for the caveator in his will, his response was that in no uncertain terms did he wish for the caveator to inherit anything from his estate.
Even in the context of a close filial relationship, it is not irrational on its face for a child not to provide for a parent in a will considering that a parent might normally be thought to have sufficient resources to provide for themselves. Accordingly, the evidence supports that the deceased was aware that the caveator may have a claim on his estate and was able to evaluate and discriminate against such a claim. The Court’s role is not to determine the reasons for that decision.
Undue influence
The caveator’s particulars of undue influence allege that (a) the plaintiff was in the room at the time that the deceased first gave instructions for his will; (b) that the plaintiff called the deceased’s law firm on the day before the will was signed to inform them that the deceased’s death was imminent; and (c) that the deceased may not have authored the handwritten note that he gave to Ms Thompson.
There is no evidence that suggests or implies that the deceased’s handwritten note may not have been authored by him. In any event, the deceased confirmed the same instructions as contained in the note over the telephone once and again when he signed his will, which was at a time when the caveator was in the same room as the deceased. Further, while the plaintiff is the residuary beneficiary of the deceased’s estate, the handwritten note does not contain any instructions as to the devolution of the residue of the estate. This information was given to Ms O’Donnell on the day that the will was signed by the deceased.
The caveator’s remaining particulars, namely, that the plaintiff was in the room at the time the deceased gave instructions for his will, and that the plaintiff called the solicitor’s office fail to satisfy the test for undue influence. In reality, the particulars do not allege influence, let alone undue influence at all, as there is no allegation that in the making of his will, the deceased was coerced or that his will was overborne.
Conclusion
The caveator’s amended particulars fail to establish a case for investigation.
Orders
The Court will order that:
(a) The caveat filed 21 October 2020 be struck out.
(b) In the event that the plaintiff and the caveator do not agree on costs, short written costs submissions be filed by 22 February 2022 with the issue to be determined on the papers.
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