Re Menzies
[2019] VSC 179
•22 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2016 15563
| IN THE MATTER of the will of ROY EDWARD MENZIES, deceased | |
| BETWEEN: | |
| GRAEME ROYDEN MOORE | Plaintiff |
| -and- | |
| MELISSA ANNE KING and others (according to the attached schedule) | Defendants |
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S PRB 2017 20663
| IN THE MATTER of the will of ROY EDWARD MENZIES, deceased | |
| APPLICATION BY: | |
| GRAEME ROYDEN MOORE | Plaintiff |
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S PRB 2017 20664
| IN THE MATTER of the will of ROY EDWARD MENZIES, deceased | |
| APPLICATION BY: | |
| GRAEME ROYDEN MOORE | Plaintiff |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 December 2018 |
DATE OF JUDGMENT: | 22 March 2019 |
CASE MAY BE CITED AS: | Re Menzies |
MEDIUM NEUTRAL CITATION: | [2019] VSC 179 |
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PROBATE — Where deceased executed three wills shortly before death — Objection to grant of last will on grounds of lack of testamentary capacity, knowledge and approval and suspicious circumstances — Where plaintiff also made application for grant of other two will — Plaintiff and defendants compromised the three related proceedings — Application for grant continued on undefended basis — Validity of testamentary document to be determined by Court — Probate of penultimate will granted — Veall v Veall (2015) 46 VR 123.
COSTS — Where costs not reasonable and proportionate to issues or amount in dispute — Civil Procedure Act 2010, s 24.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Shepherd | Sladen Legal |
| For the Defendant | Armstrong Legal |
HER HONOUR:
Introduction
Roy Edward Menzies (‘the deceased’) died on 18 July 2016, aged 65 years. He was survived by his three daughters, Melissa King, Cindy Traves and Rachael Fox (‘the defendants’).
The deceased executed three wills shortly before his death. The wills are dated 11 July 2016, 7 July 2016 and 6 July 2016 respectively. The deceased named the plaintiff as his executor in each of the wills. The plaintiff is a long-standing friend of the deceased.
By originating motion filed 19 September 2016, the plaintiff seeks to propound the 11 July 2016 will. In the event that he is unsuccessful, by two other proceedings, he seeks to propound the 7 July 2016 will and, if necessary, the 6 July 2016 will.[1]
[1]S PRB 2017 20663 and S PRB 2017 20664 respectively.
At the date of death, the value of the deceased’s estate was approximately $682,650 consisting primarily of a leasehold interest and investment funds.
Procedural History
The defendants filed a caveat on 23 August 2016. After the plaintiff’s application was issued, the defendants filed grounds of objection on 4 October 2016 alleging that the deceased lacked testamentary capacity, did not know and approve of the contents of the 11 July 2016 will and that the 11 July 2016 will was made in suspicious circumstances. On 28 April 2017, the defendants, as caveators, filed particulars of the grounds of objection. Amongst other matters, the defendants alleged that the deceased was suffering from severe dementia in 2001.
By orders made 4 May 2017, the defendants were joined as parties to the proceeding.
On 21 September 2017 the parties emailed a trial summary to the Court. By email dated 26 September 2017, the Court noted that the trial summary contemplated findings in respect of three further wills and noted that no other will could be propounded until a determination was made in respect of the 11 July 2016 will. The Court required the parties to review and amend the issues said to be in dispute, the objections to the affidavits, the list of witnesses and the estimated timetable for the trial. An amended trial outline was sent to the Court on 12 October 2017 with little difference to the first document. Accordingly, at the directions hearing on 22 November 2017, the Court reminded the parties and practitioners of their obligations under the Civil Procedure Act 2010 (‘the CPA’), in particular the obligation to use reasonable endeavours to keep costs reasonable and proportionate to the issue and amount in dispute.
The proceeding was listed again for directions on 8 December 2017. On that day, the plaintiff filed two further proceedings seeking grants of probate of the 7 July 2016 will and the 6 July 2016 will respectively.
As the parties failed to provide an amended trial outline, the Court emailed the practitioners on 9 March 2018 and identified a number of issues with the then current trial outline and other issues identified at the directions hearing on 8 December 2017. The parties and practitioners were once again reminded of their obligations under the CPA, and required to forward a proper and meaningful trial outline to the Court. The parties responded that they hoped to provide the amended trial outline after the Easter break. This did not occur and on 11 April 2018 the Court again reminded them to forward a proper and meaningful case outline.
On 23 April 2018, the defendants’ solicitor informed the Court the parties were close to agreeing to a proper and meaningful trial summary and also made some enquiries as to certain matters relating to the trial outline.
On 31 May 2018, the Court was informed that an ‘in principle’ settlement agreement had been reached by the parties.
Terms of settlement were executed on 28 June 2018. On 18 July 2018, the defendants withdrew their caveat in this proceeding.
By email dated 14 August 2018, the Court raised its concerns with the quantum of costs identified in the terms of settlement, fixed at $80,000 for the plaintiff and $80,000 for the defendants, as being not reasonable or proportionate to the issues in dispute and required further details as to the quantum of the costs.
No meaningful response to the Court’s request was received and the Court, on its own motion, listed the proceeding for directions on 14 September 2018.
On 11 September 2018, the parties forwarded a joint letter to the Court regarding their costs with an annexure said to provide a detailed breakdown of the quantum of the costs.
At the directions hearing on 14 September 2018, the defendants provided an itemised list regarding their costs.
On 28 November 2018 the plaintiff’s solicitors wrote to the consultant physician responsible for the deceased’s care in the days prior to his death, Dr Martin Ebenezer, requesting a report ‘prepared in accordance with the Expert Witness Code’ and enclosing a copy of the Supreme Court of Victoria Expert Witness Code of Conduct Form 44A.
The trial was heard on 5 December 2018. At the trial, the Court again reminded counsel for the plaintiff of the need for the costs to be reasonable and proportionate to the issues in dispute.
By email of 18 December 2018, the plaintiff’s solicitors forwarded revised total costs of the plaintiff amounting to $55,304.54 and by further email dated 21 December 2018 was reduced to $54,845.18.
Factual background
The deceased made a number of wills prior to 2016. The last of these was dated 29 May 2012 and disposed of the deceased’s estate equally between the defendants.
The deceased had serious health issues, with a history of diabetes, alcoholism, jaundice and chronic liver disease. On 5 July 2016 the deceased was admitted to hospital with worsening jaundice, ascites and a grossly distended abdomen. Dr Ebenezer and Registrar Dr Kim Kuy Be were the admitting consultants.
On 6 July 2016, the deceased’s solicitor and friend, Mr Glenn Thompson, telephoned Ms Sabina Wakefield, a solicitor at the firm of Wakefield, Vogrig & Boote (‘WVB’). Mr Thompson told Ms Wakefield that the deceased was currently admitted to hospital and requesting a new will. Mr Thompson provided her with the contact details for the plaintiff.
On 6 July 2016, the plaintiff deposes that the deceased said to him ‘I don’t want you telling my daughters if I die’, or words to that effect. He also states that the deceased did not tell him that he intended to appoint him as executor.
Ms Wakefield telephoned the plaintiff, who passed on details of the deceased’s location in the hospital. The file note taken by Ms Wakefield at this time records, amongst other things, the words ‘[h]e has 3 daughters in will + wants to take them out. Urgently!’. Ms Wakefield then told Mr Andrew Patterson, a solicitor employed at WVB, to take instructions from the deceased at the hospital.
Mr Thompson emailed the deceased’s will dated 29 May 2012 to WVB at 4:27pm that day.
Mr Patterson attended upon the deceased at the hospital at approximately 4:50pm on 6 July 2016. He took with him a copy of the deceased’s 29 May 2012 will. Upon introducing himself, he said to the deceased that he had to be satisfied that the deceased had capacity to make a will. Mr Patterson deposes that he explained to the deceased in general terms what that meant.
The deceased was able to convey his name and address. He also referred to his assets, including a property interest worth $220,000 and cash and confirmed that the 29 May 2012 will was his last will. After providing the details of the plaintiff as executor, the deceased had a conversation with Mr Patterson in relation to the possible claims upon his estate. The deceased then described how he wished to dispose of his assets. In response to a further query by Mr Patterson in relation to his assets, the deceased is said to have stated: ‘[n]o super left, only about $8,000. It went into ANZ, St George $30,000, the savings account at ANZ Warragul of $18,000 and a pension. A 2 year old Camry. No furniture or family items to hand over. My estate can cover the gifts’.
Mr Patterson then wrote out the 6 July 2016 will, explaining to the deceased that he was doing so because the deceased was unwell. Mr Patterson approached Ms Sarah Ngu, a pharmacist employed at the hospital, to act as a second witness. Ms Ngu recalls Mr Patterson reading the will aloud to the deceased. According to Mr Patterson, he asked the deceased whether the deceased wanted to read it, but the deceased responded ‘no, you read it’. As Mr Patterson read each paragraph, he asked the deceased ‘are you happy with that?’. On each occasion the deceased nodded or replied ‘yes’. The 6 July 2016 will was signed by the deceased and witnessed by Mr Patterson and Ms Ngu.
Mr Patterson deposes that at some time during his attendance upon the deceased he attempted to clarify the surnames of Rachel and Melissa, enquiring as to whether it was ‘Moore’. The deceased replied ‘yes’ in an impatient tone, in a manner that Mr Patterson deposes communicated to him that the deceased did not want to talk about his daughters.
Mr Patterson states that he was satisfied that the deceased had testamentary capacity and knew and approved of the contents of the 6 July 2016 will. He intended to seek medical evidence in relation to testamentary capacity on account of the potential of Ms Fox and Ms King challenging the will.
After attending upon the deceased, Mr Patterson went home and made a file note. The note refers to the ‘Banks v Goodfellow 4 steps’, lists each step under separate headings, and describes how, in Mr Patterson’s view, the deceased satisfied each step.
The following morning, on 7 July 2016, Mr Patterson contacted the deceased’s treating doctor, Dr Andrew Cook. During the conversation, Mr Patterson referred to the deceased being ‘very alert’ the day before.
Mr Patterson also telephoned the plaintiff, asking for his full name and those of his family members.
Mr Patterson drafted a typed will, based upon the 6 July 2016 will. He returned to the hospital at approximately 1:45pm, accompanied by an employee of WVB, Ms Melinda Wells. A file note regarding the attendance records that the deceased was asleep when they arrived and ‘his presentation was not as good as yesterday’. The deceased appeared to be in pain and suffered several coughing fits during the attendance. He also stayed lying on his right side during the attendance and occasionally let out a sigh. Ms Wells deposes that Mr Patterson read the will aloud to the deceased and, when asked, the deceased acknowledged his approval of the contents of the will, although she is unable to recall the words used by the deceased. This is reflected in the file note, which states that the after reading each clause Mr Patterson paused and sought confirmation of the contents, to which the deceased nodded or replied ‘yes’. The file note also indicates that the deceased raised a question regarding the full name of the plaintiff’s son. The file note provides further that when asked if he was ‘alright to sign the will’ or if he needed a nurse, the deceased replied ‘I’m dying … no, I’m okay, but I’ve felt better’, with a wry smile.
The deceased executed the typed will, which was witnessed by Mr Patterson and Ms Wells. Mr Patterson deposes that he was satisfied that the deceased had testamentary capacity and knew and approved of the contents of the 7 July 2016 will at that time. The deceased requested that a copy of the 7 July 2016 will be sent to the plaintiff, rather than to his home address. In this context, he stated ‘I don’t think I’ll be going home this time’.
At 3:30pm, Mr Patterson spoke with Dr Ebenezer. Mr Patterson’s file note regarding this conversation provides, amongst other things, ‘quite clear rationale thinking … I gauged reasoning is fine. V/important re timing as he may deteriorate’. Dr Ebenezer agreed to ‘put something in writing’, and Mr Patterson then emailed him a document explaining the legal requirements for testamentary capacity.
Mr Patterson posted a copy of the 7 July 2016 will to the plaintiff.
On 11 July 2016, the plaintiff visited the deceased at the hospital. He also phoned Mr Patterson, to alert him to an error in the 7 July 2016 will. Namely, that the surnames of Ms Fox and Ms King were incorrectly inserted as ‘Moore’. Mr Patterson’s file note of the conversation provides: ‘[the deceased’s] children are not called Moore – [the deceased] must be confused’.
Mr Patterson then amended the will, and in the company of Ms Carol Badge, attended upon the deceased at the hospital at approximately 2.30pm. The deceased agreed with the amendment and executed the 11 July 2016 will, witnessed by Mr Patterson and Ms Badge. Mr Patterson deposes that he was satisfied that the deceased had testamentary capacity and knew and approved of the 11 July 2016 will at that time.
The contemporaneous file note provides that the 11 July 2016 will was read to the deceased prior to execution, and he again nodded his agreement to the clauses.
The deceased died on 18 July 2016 from decompensated liver cirrhosis.
On or about 14 March 2017 Dr Ebenezer forwarded to Mr Patterson a letter of the same date. That letter provides, amongst other things:
[the deceased] was completely lucid during the major part of his admission. I wish to confirm that on 7 July 2016 when you spoke to me, [the deceased] was completely lucid and was, in my opinion, completely competent to make the necessary decisions regarding his treatment whilst well aware of his surroundings etc. In the last 48 hours however, he required sedation with a morphine-like substance to relieve his pain …
The 11 July 2016 will
The 11 July 2016 will is a typed three page document, signed by the deceased on each page. The witnesses have also signed the attestation clause on the final page, in addition to signing or initialling pages one and two.
Clause 1 of the 11 July 2016 will appoints the plaintiff as executor and trustee of the deceased’s estate. Clause 2 bequeaths the following gifts: a gold ring to the plaintiff; a car and $50,000 to the plaintiff’s daughter, Melissa Bellu; $50,000 to the plaintiff’s daughter, Emily Moore; $20,000 to the plaintiff’s son, Daniel Moore; and $20,000 to Ms Traves. After the payment of debts, the residuary estate is divided equally between the plaintiff and the plaintiff’s wife. Clause 5 provides for burial directions. Clauses 6 and 7 set out reasons for ‘no further provision for Cindy’, and no provision for ‘Rachel (“my daughter Rachel”)’ and ‘Melissa (“my daughter Melissa”)’.
Dr Ebenezer’s evidence
Dr Ebenezer gave oral evidence at the trial. He confirmed the content of his letter dated 14 March 2017 and also noted that the liver failure that the deceased presented with on 6 July 2016 was fairly serious.
Dr Ebenezer saw the deceased on a number of occasions between 5 July 2016 and 13 July 2016. When asked whether in his opinion the deceased had testamentary capacity on 11 July 2016, Dr Ebenezer replied that the ‘inference about testamentary capacity … it’s not formally done’. There was no formal neurological assessment between 5 July and 13 July 2016. Rather, Dr Ebenezer’s assessments are based upon whether the patient understands what was ‘generally going on around’, how the patient understands the subject of the conversation, and whether the thoughts that he or she is expressing are rational and appropriate. Dr Ebenezer considered the deceased would have had testamentary capacity on 11 July 2016 on the basis that his thoughts were coherent during the admission and consistent with earlier conversations that Dr Ebenezer had had with the deceased prior to his admission to hospital. The deceased, for example, expressed that he had had no contact with his family members before his admission to hospital and this was reconfirmed during his admission.
Dr Ebenezer did not review the deceased on 11 July 2016. He did speak to the deceased on 7 July 2016. He agreed that at that time, the deceased was lucid, competent to make the necessary decisions regarding his treatment and was aware of his surrounds. On that basis, his opinion was that the deceased would have had testamentary capacity on 7 July 2016.
Dr Ebenezer also noted that generally, as a result of liver disease, patients can sometimes be more alert during the night and a bit sleepy during the day time.
On 6 July 2016, Dr Ebenezer had a very lengthy discussion with the deceased about his treatment plans. In Dr Ebenezer’s opinion, the deceased also had testamentary capacity on that occasion.
According to Dr Ebenezer, from 13 July 2016, it was ‘pretty clear … that [the deceased] was going to go downhill’. On that day, sedation and ‘comfort care’ were commenced.
When giving evidence, Dr Ebenezer referred to hospital medical records made by others during the deceased’s admission. These records provide limited insight into his testamentary capacity. They indicate that the deceased was quite unwell during his hospital admission, often reporting dizziness and requiring assistance to move. There is record of a history of dementia. At 10:00am on 7 July 2016, a medical note indicates that the deceased was ‘disorientated to time’.
Issues for determination
The issue for determination is whether the 11 July 2016 will is valid. If the Court is not satisfied of the validity of that will, then the issue will shift to the validity of the 7 July 2016 will, and, if necessary, the validity of the 6 July 2016 will.
Applicable principles
Despite the terms of settlement executed by the parties, the Court retains the power itself to determine the deceased’s valid testamentary dispositions.[2]
[2]Dowling v St Vincent De Paul Society [2003] VSC 454, [31]; Robinson v Jones (No 3) [2015] VSC 508, [29]; Goods of Watts (1837) 1 Curt 594, 595; Will of Podger [1957] VR 275, 278.
The formal requirements for execution as set out in s 7 of the Wills Act 1997 are established. The onus is on the propounder of a will to satisfy the Court, on the balance of probabilities, that the relevant will is valid, including that the deceased had testamentary capacity, and knew and approved of the contents of the will.[3]
[3]Veall v Veall (2015) 46 VR 123, 173; Re Tang [2017] 52 VR 786, [85]; Giarrusso v Veca (2015) 13 Australian Succession and Trusts Law Reports 132, [27].
In Veall v Veall, the Court of Appeal summarised the approach to testamentary capacity as follows:
[i]f the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity. The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent. If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity: that is that the testator was of ‘sound and disposing mind’.[4]
[4]Veall v Veall (n 4) 174 [168].
If the evidence as a whole raises a real doubt in relation to testamentary capacity, the Court must be satisfied affirmatively that the testator:
(a) understood the effect of making a will;
(b) was aware of the general nature and value of the estate;
(c) was aware of those who would have a natural claim on the estate; and
(d) was able to evaluate and discriminate between such claims.[5]
[5]Banks v Goodfellow (1870) LR 5 QB 549, 565; Bailey v Bailey (1924) 34 CLR 558, 566-67, cited in Re Parr; State Trustees Limited v Nicholson [2018] VSC 359, [7]; see also Veall v Veall (n 4) 174 [167], citing Kantor v Vosahlo [2004] VSCA 235, [37], Norris v Tuppen [1999] VSC 228, [330].
Where testamentary capacity and due execution are established, there is a presumption that the testator knew and approved of the contents of the will.[6] However, this presumption can be:
displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.[7]
[6]Veall v Veall (n 4).
[7]Veall v Veall, (n 4) 174 [169].
Plaintiff’s submissions
The plaintiff’s written submissions appeared to be directed towards negating the defendants’ objections rather than establishing the validity of each will. The plaintiff contends that the deceased had testamentary capacity and knew and approved the contents of the 11 July 2016 will.
On the issue of testamentary capacity, the plaintiff submits that there is nothing in the medical records or death certificate to suggest that the deceased suffered from Alzheimer’s disease. Further, the evidence of Dr Ebenezer establishes that the deceased had the requisite capacity on 11 July 2016. This is also supported by the evidence of Mr Patterson, who saw the deceased on three occasions, and the other witnesses to each will. Mr Patterson sought the opinion of a doctor in the event that a challenge was brought in relation to the 11 July 2016 will, not because he had concerns as to the deceased’s capacity.
There is nothing suspicious about the deceased himself not identifying the error in Ms Fox and Ms King’s names as described in the 7 July 2016 will. He had not seen them for years, and the deceased made it clear on 6 July 2016 that he did not intend for them to take under his will.
According to the plaintiff, while it can be accepted that the 11 July 2016 will departs significantly from the wills made by the deceased prior to 2016, there is nothing unusual in this. The testator explained his reasons for the changes when giving instructions to Mr Patterson. Additionally, the fact that Mr Thompson made the first contact with WVB in relation to a new will augurs against suspicious circumstances.
The plaintiff made the same submissions in relation to the 7 July will and 6 July will.
Is the 11 July 2016 will valid?
The 11 July 2016 will is rational on its face and the plaintiff has established that it was duly executed. However, it purports to dispose of the deceased’s estate in a manner that radically departs from that in the deceased’s will dated 29 May 2012. The 11 July 2016 will was also made when the deceased was very ill, two days prior to sedatives and ‘comfort care’ were initiated. Further, the evidence of Dr Ebenezer suggests that patients with liver disease can sometimes be sleepy during the day. In such circumstances, it is necessary for the Court to be satisfied affirmatively that the deceased had testamentary capacity on 11 July 2016.
Although Mr Patterson deposed that he was satisfied that the deceased had testamentary capacity on 11 July 2016, the basis for this opinion is not set out in his evidence. The evidence demonstrates that on 11 July 2016 the deceased agreed to the amendment to the 7 July 2016 will and nodded his head when the will was read to him.
While it may be inferred that, had Mr Patterson doubted the deceased’s testamentary capacity, he would have made further enquiries of the deceased, in circumstances where the deceased was quite ill and had serious health issues, the Court is not prepared to draw such an inference. An alternative explanation may be that, having taken a detailed file note on 6 July 2016 regarding the deceased’s testamentary capacity, and spoken to Dr Ebenezer on 7 July 2016, Mr Patterson was satisfied that testamentary capacity had already been established. In the context of the deceased’s hospital admission, however, the Court is not prepared to infer that his testamentary capacity remained unchanged over the four to five day period from 6 or 7 July 2016 to 11 July 2016.
Dr Ebenezer’s evidence provides that, in his opinion, the deceased would have had testamentary capacity on 11 July 2016, and that for the ‘major part of his admission’ the deceased was ‘completely lucid’. Dr Ebenezer, however, did not speak to the deceased on 11 July 2016. He also stated that ‘the inference about testamentary capacity’ is not ‘formally done’. While Dr Ebenezer’s evidence provides insight into the deceased’s general cognitive state during his admission, it provides limited assistance in relation to the deceased’s testamentary capacity on 11 July 2016. Specifically, the facts identified on that day to support Dr Ebenezer’s opinion are limited.
Accordingly, the Court is not satisfied affirmatively that the deceased had testamentary capacity on 11 July 2016.
Is the 7 July 2016 will valid?
The 7 July 2016 will is a typed, four-page document in the same style as the 11 July 2016 will, save that in the former the final page is blank. Again, each page bears the signature of the deceased, and has been signed or initialled by the witnesses.
It provides for the same dispositions as in the 11 July 2016 will, save that in clause 7 the 7 July 2016 refers to ‘Rachel Moore (“Rachel”)’ and ‘Melissa Moore (my daughter Melissa”)’.
The 7 July 2016 will is duly executed, and rational on its face. As with the 11 July 2016 will, however, its content and circumstances of execution require the plaintiff to satisfy the Court affirmatively that the deceased had testamentary capacity.
The deceased was sleeping just prior to the attendance of Mr Patterson and Ms Wells on 7 July 2016, and also had pain and coughing fits during the appointment. Moreover, his presentation was said to be ‘not as good’ as the day before. However, he was alert enough to request that his will be sent to the plaintiff, supporting the conclusion that he understood the circumstances at hand. He also queried an aspect of clause 2.
Mr Patterson was satisfied that the deceased had testamentary capacity at the time of executing the 7 July 2016 will, although he did not provide the facts upon which his opinion was based. It is relevant, however, that Mr Patterson considered in detail the deceased’s testamentary capacity less than 24 hours prior.
Mr Patterson’s file notes of 6 July 2016 weigh strongly in favour of the deceased having testamentary capacity at the time that he provided instructions. The first file note, written between 4:50pm and 6:00pm, indicates that the deceased was able to recognise his last will, generally describe his estate, discuss individuals who may have a claim on his estate and weigh up those claims in the sense of providing reasons for his intended change in disposition. The further file note, written at 8:00pm, provides extra detail regarding each of these points.
On the other hand, two factors point against the deceased having testamentary capacity when giving instructions. First, he accepted that the surnames of Ms Fox and Ms King were ‘Moore’, as queried by Mr Patterson. Secondly, when listing his assets, the deceased failed to specifically identify an investment account valued at $378,379.
In relation to the first factor, the deceased was said to have had an impatient tone when he responded affirmatively to Mr Patterson’s query. Mr Patterson attributed this to the deceased not wanting to discuss Ms King and Ms Fox. As stated by the deceased, he had not spoken to Ms King for four or five years, or Ms Fox for fifteen years. In such circumstances, and in light of the surrounding evidence, it can be accepted that it was either a mistake of the deceased, during an hour-long attendance when he was unwell, to confirm the proposed surname as ‘Moore’, or an indifference to the surnames specified in the clause.
In respect of the omission of the investment funds, in order for testamentary capacity to be established, the deceased had to have a ‘general knowledge of the state’ of his property.[8] Capacity is a test of disposition rather than memory.[9] The evidence discloses that the deceased knew that his estate ‘could cover’ the specific gifts that he intended to make, and consisted primarily of his interest in a residential unit and ‘cash’.
[8]Frizzo v Frizzo [2011] QCA 308, [66]–[68].
[9]Brown v Guss [2014] VSC 251, [345].
On balance, the Court accepts that on 7 July 2016 the deceased had testamentary capacity. While the deceased did not present as well as on 6 July 2016, the Court is prepared to accept that his testamentary capacity remained unchanged between the two attendances. This is consistent with his conduct during the attendance on 7 July 2016, Dr Ebenezer’s evidence and the opinion of Mr Patterson. Further, the medical records do not disclose that the deceased’s cognition had significantly changed in the period between giving instructions and executing the 7 July 2016 will. While they indicate that he was not ‘orientated to time’ and had a ‘flat affect’, there is no suggestion that he was suffering from delusions, confusion, or had commenced medication, such as sedatives.
Knowledge and Approval
Where a testator has testamentary capacity and a will is duly executed, a presumption applies that the testator knew and approved of the will.
In the current circumstances, in addition to the benefit of the presumption, the evidence demonstrates that the 7 July 2016 will was read to the deceased and that he acknowledged his approval of each clause.
While on one view, the use of ‘Moore’ in clause 7 may indicate that the deceased did not know and approve of the 7 July 2016 will, in the sense that it did not represent his broader testamentary intentions, knowledge and approval remains established on the facts.
It can be accepted that the evidence suggests that the deceased was perhaps mistaken in relation to, or otherwise displayed an indifference toward, the surnames of Ms Fox and Ms King specified in clause 7. That he confirmed the surnames as ‘Moore’ on 6 July 2016 and then approved clause 7 on 7 July 2016 perhaps weighs in favour of an indifference rather than a mistake. Although the deceased executed the 11 July 2016 will with the reference to ‘Moore’ in clause 7 removed, this does not necessarily negate a finding that he was indifferent to the exact surname, and the amendment was made subsequent to execution of the 7 July 2016 will, at a time when testamentary capacity was not established.
Ultimately, the evidence demonstrates that the deceased confirmed the surnames when giving instructions on 6 July 2016, and acknowledged that he approved clause 7 on 7 July 2016. In such circumstances, knowledge and approval is satisfied and it can be concluded that the 7 July 2016 will represented the deceased’s testamentary intentions. Even if the reference to ‘Moore’ was a mistake, in the sense that use of the surname was inconsistent with the deceased’s broader intention regarding Ms King and Ms Fox, prima facie it does not appear to be a mistake of the kind that justifies intervention by the Court.[10]
[10]See, eg, Re Provost [2004] VSC 537; Fry v Georges [2009] VSC 220.
Is the 6 July 2016 will valid?
For completeness, it is noted that if the Court is incorrect regarding the validity of the 7 July 2016 will, the evidence supports the conclusion that the 6 July 2016 will is valid. The 6 July 2016 will is a single handwritten page, signed by the deceased, Mr Patterson and Ms Ngu.
As has been determined, the deceased had testamentary capacity on 6 July 2016. Moreover, Mr Patterson read the 6 July 2016 will to the deceased and after each clause the deceased confirmed his approval.
Conclusions
The Court will make the following orders:
(a) proceeding S PRB 2016 15563 be dismissed;
(b) in proceeding S PRB 2017 20663, subject to any further requirements of the Registrar of Probates, probate of the will of Roy Edward Menzies dated 7 July 2016 be granted to the plaintiff;
(c) proceeding S PRB 2017 20664 be dismissed.
Costs
The plaintiff and the defendants provided further details of their costs of $80,000 each as contained in the terms of settlement. As at September 2018, the plaintiff’s costs were claimed at $73,306.35 and the total of the defendants’ costs were said to be $83,451.38 but were reduced to $80,000. Both amounts were said to be inclusive of any fee reductions proposed. The description of the work undertaken included the ‘will validity proceeding S PRB 2016 15563’, the foreshadowed claims by the defendants for family provision from the estate of the deceased, and an estate administration issue as to whether any part of the estate comprised funds received by the deceased in 2002 in respect of a disablement payment. Of these three categories of work, the latter two categories seem outside the issue of the validity of the deceased’s wills.
The practitioners for the parties were reminded regularly throughout the proceeding of their obligations under the CPA, in particular, that costs should be reasonable and proportionate to the issues in dispute. In respect of the validity of the wills, it is apparent from the detail of the claimed costs that the parties seek costs for working on the trial summary that was deficient from the outset. From September 2017 to April 2018 the trial summary was the subject of emails from the Court and directions hearings. Thereafter terms of settlement were executed and the Court raised queries as to the quantum of costs of the parties in the terms of settlement by way of emails and at directions hearings up to and including the trial of the proceeding. At trial, the plaintiff produced two lever arch files of medical records and statements of evidence of the witnesses. Very few pages of the medical records were tendered in evidence. The plaintiff also produced statements of evidence, which was unnecessary as the trial proceeded unopposed. Affidavits were subsequently filed after the trial that substantially duplicated the statements.
Assessing the costs for the work itemised by the practitioners ought identify the work that was unreasonable or done as a result of the failures by the practitioners to address the issues in dispute, being the validity of the 11 July 2016 will and, since 8 December 2017, the 7 July 2016 will and the 6 July 2016 will.
The parties are reminded that the net estate is relatively small at $682,650. Costs claimed in the amount of $134,845 for the issues in dispute in these proceedings are not reasonable and proportionate in the circumstances. Accordingly, the parties are to re-consider their costs and inform the Court of their positions.
SCHEDULE OF PARTIES
First Defendant Melissa Anne King Second Defendant Cindy Jane Traves Third Defendant Rachael Barbara Fox
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