Re O'Day
[2023] VSC 169
•5 April 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2020 32216
IN THE MATTER of the Estate of Tania O’Day, deceased
| TERRENCE O' DAY | Plaintiff |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 5 April 2023 |
CASE MAY BE CITED AS: | Re O'Day |
MEDIUM NEUTRAL CITATION: | [2023] VSC 169 |
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WILLS AND ESTATES – Application to admit informal will to probate – Where non-compliance with remote execution procedure – Where execution occurred shortly before the death of the deceased – Whether the deceased had testamentary capacity – Whether the deceased had testamentary capacity at the time of giving instructions – Wills Act 1997 s 9 – Parker v Felgate (1883) LR 8 PD 171 – Le Bon v Lili [2013] VSC 431.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | D K R Kinsey | Partners Legal |
HIS HONOUR:
Introduction
Tania O’Day died on 21 October 2020 aged 48 years. The cause of death recorded on her death certificate was ‘Metastatic breast cancer 30 Months’ and ‘Hereditary brca1 mutation 48 years’.
The deceased was survived by her husband, Carl Anthony Long. She was not survived by any children.
This proceeding is an application for a grant of probate of a document described as a will of the deceased and which is dated 15 October 2020 (the Document).
By its terms the Document purports to:
(a) revoke all former wills of the deceased;
(b) appoint the deceased’s father, Terrence O’Day (the plaintiff), as the executor and trustee of the estate in the first instance;
(c) make thirteen pecuniary legacies of varying amounts; and
(d) give the deceased’s personal items and the residue of the estate to Mr Long.
The Document was prepared during the COVID-19 pandemic, during which time the Covid-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) were in place. Consistent with the provision made by ss 41(5)(a)-(e) of the Regulations and s 7(1) of the Wills Act 1997 (the Act), the Document was electronically signed by Peter Gandolfo on the deceased’s behalf at her direction, and electronically signed by both witnesses.[1] Mr Gandolfo is a principal lawyer of Partners Legal, the firm of solicitors engaged by the deceased to prepare her will.
[1]Patrick Robertson, a solicitor, and Dalton Kealey, a legal assistant.
The Document was not, however, executed in conformity with reg 41(5)(f) of the Regulations which requires that, after a will is executed and witnessed electronically, it must be sent to the testator, who is to sign and date a final certification that the entire document is a true copy of the will which has been executed, in conformity with reg 41(5)(f). After the Document was executed by Mr Gandolfo and the witnesses, Mr Gandolfo did not write and sign a statement on the Document to the effect that it was a true copy of the will which had been executed.
After the plaintiff lodged an application for a grant of probate of the Document on 4 December 2020, the Registrar of Probates requisitioned the plaintiff’s application noting that, due to the non-conformity with reg 41(5)(f) of the Regulations, the Document could not be probated in the usual way, but could be admitted to probate pursuant to s 9 of the Act as an informal will. The Registrar further advised that, because the deceased’s estate was valued at over $1,000,000, the consent of all affected persons would be required in order for a grant of probate to be made through the Probate Registry. Consents of twelve of the thirteen affected persons were later filed, with the remaining beneficiary, Chloe O’Day (Chloe), unable to give consent as she was a minor.
On 30 March 2021, the Registrar of Probates notified the plaintiff that: (a) because Chloe O’Day’s consent to the Registrar exercising the power of the Court pursuant to s 9(5)(b)(i) of the Act had not been filed and, in the event Chloe was unable to provide consent; and (b) she was not satisfied that the plaintiff had established that the deceased had capacity at the time of executing the will, it was necessary for the matter to be referred to the Court for determination.
On 9 December 2021, orders were made for the plaintiff to give notice of this application to Chloe and for leave to be granted to Chloe, by a litigation guardian, to file a summons by 28 January 2022 to be joined as a party to the proceeding. No summons for joinder was subsequently filed.
Legal principles
Section 9(1) of the Act, provides that:
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.
It is well established that there are three requirements for an informal will to be admitted to probate under s 9 of the Act:[2]
[2]Sultanova v Bolgarow [2019] VSCA 245, [28] (Beach and Niall JJA and Kennedy AJA).
(a) there must be a document;
(b) that document must express or record the deceased’s testamentary intentions; and
(c) that document must have been intended by the deceased person to be their will.
The propounder of an informal will must establish these elements on the balance of probabilities, with the evidence to be evaluated in accordance with the Briginshaw[3] principles reflected in s 140 of the Evidence Act 2008.
[3](1938) 60 CLR 336. See Fast v Rockman [2013] VSC 18, [48].
The first two of these requirements are clearly satisfied in this case.
An informal will does not benefit from the same rebuttable presumptions that apply to duly executed wills.[4] Accordingly, the plaintiff, as the propounder of the informal will, also bears the onus of satisfying the Court on the balance of probabilities that the deceased had testamentary capacity and knew and approved of the contents of the informal will.[5]
[4]Ackerley v Felton [2012] NSWSC 1468, [30] (Young AJ); Fielder v Burgess [2014] SASC 98, [25] (Kourakis CJ); Jageurs v Downing [2015] VSC 432, [19] (McMillan J); Re Kelsall [2016] VSC 724, [22] (McMillan J). See Veall v Veall (2015) 46 VR 123, 174–5 [168]–[171] (Santamaria JA), regarding the usual presumptions.
[5]Fielder v Burgess [2014] SASC 98, [25] (Kourakis CJ); Jageurs v Downing [2015] VSC 432, [19] (McMillan J); Re Kelsall [2016] VSC 724, [22] (McMillan J). See Veall v Veall (2015) 46 VR 123, 174–5 [168]–[171] (Santamaria JA), regarding the usual presumptions. See also Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107, [18]–[24] (Lindsay J).
As explained by McMillan J in Re Martin, determining whether a deceased person knew and approved of the contents of an informal will :[6]
… involves consideration of whether the deceased actually understood the document and its effect, such that it can be said that the document represents the deceased’s testamentary intentions. The sufficiency of evidence will depend upon the circumstances of each case. While evidence that the document was read by the deceased is relevant, and should be given due weight, it will not be conclusive. Other considerations include the mental acuity and sophistication of the testator, the complexity of the contents of the document and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon an estate, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice.
[6](2019) 59 VR 584, [61] citations omitted.
In order to establish a testator’s testamentary capacity, the principles in Banks v Goodfellow[7] require the propounder of a will to show that the testator:
[7](1870) LR 5 QB 549, 567 (Cockburn CJ).
(a) understood the nature and effect of making their will;
(b) was aware of the general nature and value of their estate;
(c) was aware of those with a natural claim on their estate; and
(d) was able to evaluate and discriminate between such claims.
In the usual case, consideration of whether these requirements are satisfied is to be determined as at the time a testator signs their will. However, as described by the authors of Theobald on Wills,[8] an exception to this approach, based on the rule in Parker v Felgate, is that a testator who lacks testamentary capacity at the time of execution of their will may nonetheless make a valid will if:
[8]Alexander Learmonth et al, Theobald on Wills (Thomson Reuters, 19th ed, 2021) 111.
(a) the testator has testamentary capacity at the time when they give instructions to a solicitor for the preparation of the will;
(b) the will is prepared so as to give effect to the instructions;
(c) the will continues to reflect the testator’s intention; and
(d) at the time of execution, the testator is capable of understanding, and does understand, that they are executing a will for which they have given instructions.
This formulation of principle reflects the contemporary paraphrasing of the rule in Parker v Felgate by the Court of Appeal of England and Wales in Perrins v Holland[9] in which the Court dismissed a challenge to the rule. This Court has continued to apply those principles.[10]
[9]Perrins v Holland [2011] Ch 270.
[10]See Le Bon v Lili [2013] VSC 431, [24] (Macaulay J); Vukotic v Vukotic (2013) ASTLR 238; [2013] VSC 718, [19] (McMillan J).
Knowledge and approval: circumstances in which will executed
The deceased received a terminal diagnosis from her treating medical practitioners on about 2 September 2020.
On 17 September 2020, the deceased gave instructions by telephone to her solicitor, Mr Robertson, to update her will. The deceased’s previous will made in 2012 predated her marriage to Mr Long in 2016. She told Mr Robertson that it did not accurately reflect her wishes.
The deceased provided further detailed instructions regarding her will to Mr Gandolfo and Mr Robertson in a videoconference on 24 September 2020. She confirmed the gifts about which she had previously given instructions to Mr Robertson, and raised questions about potential tax liabilities concerning certain assets. On 28 September 2020, the deceased modified her testamentary instructions by e-mail to Mr Robertson by adding a gift of $25,000 to each of her mother and the plaintiff.
On 12 October 2020, the deceased told the plaintiff that she felt as if she was getting closer to the end of her life, and that it was urgent that her will be finalised. Later that day, the deceased telephoned Partners Legal to arrange to deposit funds into their trust account for the final preparation of her will and powers of attorney.
On 15 October 2020, the plaintiff informed Mr Robertson by telephone that the deceased would likely move to palliative care in the coming days, and that the documents should be executed while the deceased was at home. A few hours later at 12.30pm, the plaintiff called again to inform Mr Robertson that the deceased was awake and alert, and that, if possible, the documents should be signed in the coming hours. At 1.15pm on the same day, Mr Robertson, Mr Gandolfo and Mr Kealey attended on the deceased by videoconference. The plaintiff was in the same room as the deceased during the videoconference.
During the video conference, Mr Gandolfo noted that the deceased appeared to be awake and alert, and responded to the questions put to her. The deceased confirmed that the purpose of the meeting was to sign a will and other documents, such as an enduring power of attorney. In view of the deceased’s apparent discomfort from her illness, Mr Gandolfo stated that he kept the meeting brief and dealt with the salient points of the will. He read out the beneficiaries’ entitlements to the deceased, which she confirmed, and she corrected the name of a beneficiary. At the end of Mr Gandolfo’s explanation of the effect of the will, the deceased authorised him to sign the document on her behalf.
The above facts and matters enable me to be readily satisfied that the deceased knew and approved of the contents of the Document.
Evidence of testamentary capacity
To establish that the deceased had testamentary capacity at the time the Document was signed, or alternatively when she gave instructions for its preparation, the plaintiff relied on an affidavit of Associate Professor Yoland Antill, a letter from the deceased’s general practitioner Dr Nikolaos Katelis, as well as his own observations of the deceased in her final weeks as her carer.
Associate Professor Yoland Antill is a medical oncologist and genetics specialist. She reviewed the deceased on 25 September 2020, 2 October 2020 and 16 October 2020.
At the review on 25 September 2020, being the day after the deceased gave further detailed instructions about her will to Mr Gandolfo and Mr Robertson, Associate Professor Antill considered that the deceased ‘had sufficient mental capacity to arrange her own affairs and understand legal documents such as a will‘. On 2 October 2020, Associate Professor Antill considered that the deceased ‘was of sufficient mental capacity to discuss the option of her participation in a tissue donor programme’.
On 16 October 2020, being the day after the Document was signed Associate Professor Antill recorded that the deceased was confused and that she ‘would not have had sufficient cognitive, either receptive or expressive capacity, to complete and understand complex legal tasks’. In her opinion, at some point between 2 October 2020 and 16 October 2020, the deceased’s mental state deteriorated to a point where she would not have had the mental capacity required to understand the making and execution of a will.
Dr Katelis visited the deceased on 7 October 2020. In his assessment, at that time the deceased did not appear impaired from medication or disease and would have understood the purpose of a will and a broad outline of her assets and family situation.
The plaintiff, who was the deceased’s father and carer, deposed that he began assisting the deceased with her daily care on or around 23 September 2020 and that this continued until 16 October 2020 when she was moved to palliative care. He deposed that, although the deceased had been prescribed pain medication and spent significant portions of the day resting or asleep, she was usually awake and active for several hours per day, and was the most lucid between 12:00pm and 3:00pm. It was during this window of time that the Document was executed.
The plaintiff’s submissions on testamentary capacity
The plaintiff submitted that, if the Court was not satisfied that the deceased had testamentary capacity when the Document was signed, the Court should be satisfied that the Document should be admitted to probate as an informal will by application of the rule in Parker v Felgate.
The plaintiff submitted that the deceased clearly had testamentary capacity when she gave instructions for her will to her solicitors by videoconference on 17 September 2020 and on 24 September 2020, and by the further instructions provided by e-mail on 28 September 2022. The instructions were given in light of her terminal diagnosis, and the solicitors’ observations about the deceased’s behaviour belie any suggestion that she was suffering delusions. That she had testamentary capacity at this point in time is also supported by the evidence of Associate Professor Antill and Dr Katelis.
The plaintiff submitted that the deceased had sufficient knowledge of the contents of the Document and, although it was not read out verbatim, its provisions were summarised to her in sufficient detail. The deceased’s approval was manifested by her repeated assents in response to Mr Gandolfo’s questions, and by the signing of the will on her behalf at the conference on 15 October 2020.
Consideration
The evidence reveals some uncertainty as to whether the deceased had testamentary capacity when the Document was signed. It is, however, unnecessary to resolve that issue, because, for the reasons which follow, I consider that testamentary capacity is established in respect of the deceased by application of the principles in Parker v Felgate.
In summary, those principles mean that the requirement to prove that a testator had capacity in making a testamentary instrument is able to be satisfied at an earlier time – when instructions for the making of the instrument are given – if the following conditions are met:[11]
[11]See the formulation by Macaulay J (as he then was) in Le Bon v Lili [2013] VSC 431, [24].
(a) At the time of giving instructions, the testator:
(i) was aware of and appreciated the significance of giving instructions for the execution of their will;
(ii) was aware, in general terms, of the character, extent and value of their estate;
(iii) was aware of those with a claim on their bounty and the basis and nature of those claims; and
(iv) had the ability to evaluate and discriminate between the respective strengths of those claims;
(b) The document executed faithfully reflects the testator’s instructions as they were given; and
(c) Upon the signing of the document, the testator was able to understand, and believed that they were executing a will that had been prepared by their solicitors in accordance with their instructions.
The plaintiff’s submissions regarding the application of the rule in Parker v Felgate to the circumstances surrounding the preparation and execution of the Document are persuasive, and the evidence concerning the deceased’s involvement in her estate planning in the final weeks of her life provides a comprehensive picture of the level of understanding she had of her estate. The following matters of significance may be noted.
First, over the course of September 2020, the deceased was aware of and appreciated the significance of giving instructions for the preparation of a will. The file notes of the deceased’s solicitor are comprehensive and reveal that the deceased was able to convey the extent and value of her estate, the persons to whom she owed moral consideration, and that she was able to weigh those considerations.
Secondly, the affidavit material relied on by the plaintiff exhibits both the instructions given by the deceased, and the Document. A comparison of those materials confirms that the dispositions and appointments recorded in the instructions are accurately reflected in the Document.
Thirdly, as set out in [18]–[23] above, the evidence of Mr Gandolfo, Mr Robertson and the plaintiff establishes that the purpose of the meeting on 15 October 2020 was to sign the will of the deceased; all attendees at the meeting, including the deceased, believed that was what was occurring.
Fourthly, the evidence of Associate Professor Antill, together with the observations of the plaintiff, and Dr Katelis, all support the conclusion that the deceased had testamentary capacity when she provided instructions in late September 2020.
The evidence of the plaintiff that the signing of the Document occurred during the window in which the deceased was the most lucid, together with her solicitors’ observations that she was awake and alert, and assented to Mr Gandolfo’s description of the Document, satisfy me that, on 15 October 2020, the deceased had sufficient capacity to appreciate that she was signing a will that had been prepared in accordance with her instructions.
The present case is one of minimal departure from the formal requirements imposed by s 7 of the Act. But for the inadvertent non-compliance with reg 41(5)(f) of the Covid-19 Regulations, the Document would have been validly executed in accordance with s 7 of the Act. In such circumstances, the Court can more easily be satisfied that the deceased intended the Document to be her last will.[12]
[12]Robinson v Jones [2015] VSC 222 at [19], quoting Re Springfield (1991) 23 NSWLR 535 (‘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’).
For the above reasons, I have concluded that, upon executing the Document, the deceased believed and intended the Document to be her will, and that at the time of giving instructions for its preparation, she had testamentary capacity to do so. Accordingly, the Document will be admitted to probate as an informal will.
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