Re Parr; State Trustees Limited v Nicholson
[2018] VSC 359
•28 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 01740
IN THE MATTER of the Will of Shirley Patricia Parr (deceased)
| STATE TRUSTEES LTD (ACN 064 593 148) | Plaintiff |
| v | |
| RODNEY NICHOLSON | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16, 20 & 28 November 2017 |
DATE OF JUDGMENT: | 28 June 2018 |
CASE MAY BE CITED AS: | Re Parr; State Trustees Limited v Nicholson |
MEDIUM NEUTRAL CITATION: | [2018] VSC 359 |
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PROBATE — Where plaintiff seeks to prove will in solemn form — Whether deceased lacked testamentary capacity — Whether deceased knew and approved of the contents of the will —Application dismissed — Banks v Goodfellow (1870) LR5QB 549 — Veall v Veall (2015) 46 VR 123
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Mah | State Trustees Ltd |
| For the Defendant | Mr J Rizzi | Yarra Ranges Lawyers Pty Ltd |
HER HONOUR:
Introduction
Shirley Patricia Parr died on 26 August 2016, aged 85 years (‘the deceased’). Her husband, Clement Lawrence Parr (‘Mr Parr’) predeceased her, having died on 28 June 2010, aged 82 years. Her estate is valued at approximately $770,000.
The deceased and Mr Parr married in 1980. At the time of their marriage, the deceased had three children from her earlier marriage, Rodney Nicholson (‘the defendant’), Deborah Miles and Lucinda Tognarini, and Mr Parr had two children from his earlier marriage, Craig Parr and Paul Parr.
Plaintiff’s application
The plaintiff seeks to prove the last will of the deceased dated 25 June 2010 will (‘the June 2010 will’) in solemn form. The plaintiff acknowledges there are concerns about the testamentary capacity of the deceased at the time of the execution of the June 2010 will and accepts that it needs to satisfy the Court that the deceased knew and approved of the contents of the June 2010 will.
Applicable principles
An executor has an absolute right to seek to prove a will in solemn form.[1] The practice of seeking proof in solemn form may be used where an executor had some reason to question the validity of a will and he or she desires the protection of a grant in solemn form. For a grant in solemn form, the Court must be satisfied on the evidence adduced by the party propounding the will of the formal validity of the will and that the testator had the capacity to make the will at the relevant time.[2]
Testamentary capacity
[1]Re Levy (deceased) [1953] VLR 652, 657.
[2]Barry v Butlin (1838) 2 Moo PC 480; (1838) 12 ER 1089; Re Levy (deceased) [1953] VLR 652, 665; Wheatley v Edgar [2003] WASC 118 (17 June 2003) [20]-[24].
The classic statement as to the legal test for testamentary capacity is stated by Cockburn CJ (on behalf of the Court) 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 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. [3]
[3]Banks v Goodfellow (1870) LR 5 QB 549, 565.
In Veall v Veall, Santamaria JA (with Beach and Kyrou JJA agreeing) outlined the principles applicable to a determination of testamentary capacity as follows:
The onus is upon the propounder to establish testamentary capacity. Where a will is rational on its face and is proved to have been duly executed, it is presumed that the testator was mentally competent. That presumption is displaced where there are circumstances that raise a suspicion about the testator’s capacity. Where there is a doubt that the testator was of ‘sound and disposing mind’, ‘[t]hat requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator’.[4]
[4]Veall v Veall (2015) 46 VR 123, 188, quoting Tobin v Ezekiel (2012) 83 NSWLR 757, 771 (Meagher JA).
Thus, in order to prove testamentary capacity, the Court must be satisfied 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 to the estate; and
(d) was able to evaluate and discriminate between such claims.[5]
Knowledge and approval
[5]Banks v Goodfellow (1870) LR 5 QB 549; Bailey v Bailey (1924) 34 CLR 558, 566-7 (Knox CJ and Starke J).
Testamentary capacity and knowledge and approval are separate and distinct concepts. An assertion that a will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval, which goes beyond lack of testamentary capacity.[6] It is the testatrix’s understanding that is decisive in determining whether she knew and approved the contents of her will.
[6]Veall v Veall (2015) 46 VR 123, 124 (Santamaria JA), citing Hoff v Atherton [2005] WTLR 99.
In Bailey v Bailey, Isaacs J (with whom Gavan Duffy and Rich JJ concurred) provided a summary of the principles to be drawn from the leading cases on the question of knowledge and approval as follows:
(1)In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.
(2)Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3)If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.
(4)The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will.
(5)But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.
(6)Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.
(7)The doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud or dishonesty may be relied on without distinctly charging it.[7]
[7] Bailey v Bailey (1924) 34 CLR 558, 570–2 (citations omitted).
More recently, in Tobin v Ezekiel, Meagher JA stated:
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be ‘the most satisfactory evidence’ of actual knowledge of the contents of the will ... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye ... the relevant circumstances were described ... as being such as to impose ‘as heavy a burden as can be imagined’. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator ...[8]
[8]Tobin v Ezekiel (2012) 83 NSWLR 757, 771 (Meagher JA) (citations omitted).
The deceased’s wills
As stated above, the deceased married Mr Parr in 1980. From 1985 onwards, the deceased and Mr Parr made a number of wills prepared by the plaintiff. Before 1998, the couple’s wills were mirror wills. Their 1998 wills, however, provided for the estate of the surviving spouse to be divided into two equal parts, with one part to be divided between the deceased’s three children and the other part to be divided between Mr Parr’s two children. Their 2001 wills made no relevantly substantial change. Their 2002 wills provided that the deceased’s three children and Mr Craig Parr would each receive one fifth of the surviving spouse’s estate and the remaining one fifth would be divided between the children of Mr Paul Parr.
In her penultimate will dated 12 February 2007, the deceased left her estate to Mr Parr and, if he predeceased her, her estate was left equally between her three children and Mr Parr’s two children. Mr Parr’s will of the same date left his estate to the deceased and, if she predeceased him, he bequeathed $100,000 each to his two children and the residue of the estate was left equally between his two children and the deceased’s three children.
A handwritten note on the plaintiff’s file differed significantly from the 2007 wills in terms of the disposition of the estate of the deceased and Mr Parr. The handwritten note, seemingly written by Mr Parr and in which names are crossed out and initialled only by Mr Parr, provides as follows:
My sons’ Paul Eugene & Craig Parr are to receive $100,000 each before any money’s are divided. This money is a [sic] inheritance from my parents to their grandchildren when I or both Shirley & myself pass on. The balance is to be divided into 5 parts one to Paul & Craig Parr each & one each to Deborah Miles, Rodney Nicholson & Lucinda Tognarini.
[signed C L Parr]
After Paul Eugene and Craig Lawrence Parr receive their inheritance of $100,000 each the balance is to be divided into 5 parts, one to Paul Eugene & Craig Lawrence Parr each, one to Deborah,
Rodney & LucindaMiles, one to Rodney Nicholson, and one to Lucinda Tognarini.[signed S P Parr]
The last wills of the deceased and Mr Parr were signed on 25 June 2010. Pursuant to the June 2010 will, the deceased left her estate to Mr Parr, but if he predeceased her, she bequeathed $100,000 each to Mr Parr’s children and the residue of her estate was left equally between Mr Parr’s children and her daughter, Lucinda Tognarini. The June 2010 will made no provision for the deceased’s other two children, being the defendant and Deborah Miles.
Evidence of the plaintiff’s procedures for making wills
Ms Priamvada Nandan was employed as a solicitor by the plaintiff from 2007 until 2013. She prepared the June 2010 will and witnessed the deceased signing it. Ms Nandan also prepared the 2007 wills of the deceased and Mr Parr. For the four years prior to her employment with the plaintiff, Ms Nandan had some limited experience in estate planning. Ms Nandan’s evidence was her recollection of her ordinary practice when working for the plaintiff. She was unable to recall the deceased or Mr Parr, or any of the circumstances surrounding the making of their wills.
Ms Nandan deposed that, in 2007, the plaintiff’s approach to preparing wills involved taking instructions directly from clients at an initial meeting usually conducted at the plaintiff’s offices. At this meeting, the client’s instructions would be handwritten on a form in their presence. The information obtained during this process included personal details, asset information, how assets were held, family background and details of any disputes. Instructions would also be taken for their wills and their enduring powers of attorney. The plaintiff used a precedent database called ‘Law Perfect’ to create a draft will on the basis of numbered clauses in a manual. This was the system database that was used to create the deceased’s 2007 will, which did not include any specific gift to Mr Parr’s two children, and Mr Parr’s relatively similar 2007 will, which did include a specific gift to his two children.
In the period in which the June 2010 will was drafted, the plaintiff’s approach to drafting wills differed from the 2007 procedure. The plaintiff had changed to a new computerised precedent system called ‘Chameleon’ which differed in the way that the instructions obtained from the client would be entered into the database. Ms Nandan deposed that ‘if we were meeting the client within the office, we would input their instructions straight into the database’. When asked at what point the information was entered, she said:
… if the client was coming into the office, it would be done after the instruction appointment. If the client liaison manager had given instructions, initially we’d draft that immediately after we received those instructions’.[9]
[9]Transcript of proceedings; Re Parr; State Trustees Limited v Nicholson (Supreme Court of Victoria, S PRB 2017 01740, McMillan J, 16 November 2017) 11 (P Nandan) (emphasis added).
Ms Nandan deposed that, based on questions put to the client, the data would be entered and used to populate a will. In addition to the Chameleon system, the procedure associated with obtaining client instructions also changed, as outlined in the following exchange:
Counsel: With this new program, did [the plaintiff] have a new procedure in terms of meeting with the clients?
Ms Nandan: Yes, they did. That is when they thought it would be best to restrict the time for the solicitor to engage in those preliminary meetings — not meetings, telephone discussions and appointments, so they had a client liaison manager, who would take those first calls and possibly meet with the client and take down some instructions for the will.
Counsel: After those instructions were taken by the liaison officer, what happens to those instructions?
Ms Nandan: They would then provide them to the solicitor, who would then draft the document based on those, obviously with the intention that when they met the client, they would reconfirm the instructions as well.
Counsel: If there were issues with those instructions taken by the liaison officer, what was the standard practice then?
Ms Nandan: The client liaison manager, if they felt that they were out of their depth and they couldn’t answer any legal questions from the client, they would ask us then to meet with the client or contact the client by phone to discuss those matters. [10]
[10]Ibid 9-10.
Ms Nandan confirmed that the client liaison manager was not legally qualified. A draft will would then be sent to the client for approval and, if required, amendments would be made, following which ‘we would go out to meet them or they would come into the office or [sic] the signing meeting’. When asked what happened during such meetings, she said:
In this particular meeting, I would have treated it as an instruction and signing meeting, which meant that because I hadn’t been able to ascertain their assets and all of that until that signing meeting, I would have gone through all of those again, I would have made sure they knew what they had and gone through all of their instructions open-ended, asking them what they think their will does, and if I was comfortable that that is exactly what that did, then I would execute that will.[11]
[11]Ibid 10-11.
By her use of the term ‘we’, Ms Nandan clarified she was referring to herself and the client liaison manager who had taken the initial instructions.
At such meetings, Ms Nandan would take shorthand notes, which would then be converted into a computer file note ‘directly after’ the meeting. Her usual practice, at that time, was not to keep the shorthand notes and that the file note created from the shorthand notes would be kept for about a year and then destroyed. All file notes were kept on the client file.
In relation to married couples, Ms Nandan deposed that the usual practice was to see them together, however, she stated:
I make sure that I speak to them independently and ensure that that is the instructions they wish to give me and that they’re not pressured in any way by their spouse in giving those instructions.[12]
[12]Ibid 12.
As to the presence of others during such an interview, Ms Nandan deposed that she would permit someone to remain during the instructions appointment at the insistence of her client, but would ask them to leave at ‘the point where I need to reconfirm the instructions of the client’. Ms Nandan deposed that she would do the same at the signing meeting, at the point where the will was going to be executed.
The 2007 will
Ms Nandan was taken to the ‘Will Instruction and Information’ form relating to the 2007 wills of the deceased and Mr Parr, which Ms Nandan had prepared (‘the 2007 instruction form’). When asked whether the document reminded her of having met with the deceased and Mr Parr, Ms Nandan was unable to recall the meeting.
On part of the 2007 instruction form, Ms Nandan had recorded that ‘general TFM advice’ had been provided to the deceased and Mr Parr. When asked about the usual practice regarding such advice, Ms Nandan stated that she would always provide it, even if the distribution reflected equal shares. In this instance, Ms Nandan had also noted that ‘[Mr Parr] has provided us with handwritten reasons as to why he is leaving [his two children] a sum of $100,000 each’. When taken to the handwritten reasons on the form that appear to have been counter-signed by the deceased and the fact that the deceased’s will contained no such provision, Ms Nandan was unable to recall why no such provision had been made in the deceased’s will and no reasons for this are on the will file.
Meeting with the plaintiff in 2008
On 8 February 2008, Mr Parr and the deceased met with another lawyer employed by the plaintiff, Ms Manuela Gonzales, to review their 2007 wills. They instructed Ms Gonzales that they did not wish to make any changes to their wills.
The June 2010 will
In early 2010, Mr Parr was diagnosed with cancer. In March 2010, Mr Paul Parr left Ireland where he had been living and moved in with the deceased and Mr Parr. Mr Craig Parr also visited from Queensland.
On 9 April 2010, Mr Parr and the deceased collected copies of their wills and powers of attorney from the plaintiff’s Glen Waverley office.
On 15 April 2010, Mr Craig Parr contacted Ms Maureen Smith, a client liaison manager employed by the plaintiff, to arrange for her to visit Mr Parr and the deceased at their home in Kallista on 19 April 2010. On 20 April 2010, there was a telephone conversation between Ms Smith and Mr Parr. Shortly thereafter, Ms Smith sent an email to Ms Nandan that relevantly stated:
I have just spoken with Mr Parr and he has confirmed that Clause 2 of the Will should reflect $100k each to his son’s Craig and Paul.
… I also suggested that for the sake of consistency that [the deceased’s] Will should be prepared as well in the new format — even though her Will does not contain the same clause (as per our conversation today).
There are no other changes to the documents.
Ms Nandan agreed that this email concerned amending clause 2 of Mr Parr’s will to reflect that Mr Parr’s sons would receive $100,000 each and that a will for the deceased would be prepared using the Chameleon system. Ms Nandan agreed that the email did not mention amending the residue clause to exclude two of the deceased’s children, being the defendant and Ms Miles.
For the purpose of preparing the June 2010 wills, Ms Nandan sent an email dated 3 May 2010 to Mr Paul Mayer, the auditor/manager of the estate planning team, as follows:
I signed [Mr Parr and the deceased’s] Will [sic] in 2007. Maureen visited them recently to discuss the provisions of their Will and ensure the provision still reflect their current circumstances.
In [Mr Parr’s] Will there is a gift to his two sons equally for the amount of $100,000. Maureen clarified this provision with me after [Mr Parr] indicated that he wishes to gift $100,000 to each son. His Will needs to be amended. If we are producing a Chameleon Will for [Mr Parr] I think it would be prudent to draft one for his wife as well.
When queried as to why Ms Nandan believed a new will should be provided for the deceased, Ms Nandan said that the introduction of the Chameleon system had resulted in provisions and clauses being ‘updated or re-looked at’, so she thought that ‘it would be best practice to also update [the deceased’s] will at the same time, in the same format as the original one, but with any new clauses’.
In an email dated 4 May 2010 to Ms Smith, Ms Nandan confirmed that she had prepared drafts of the replacement wills, but would need further information before the documents could be completed. She offered to obtain this information from the clients directly at the meeting to sign the wills, rather than Ms Smith obtaining it. Ms Smith accepted this proposal.
Her file note does not suggest that she spoke with the deceased on this occasion but records that she ‘confirmed that their assets had not changed from the instructions previously provided by them’. In confirming their assets, Ms Nandan deposed that she would have referred to the 2007 instruction form, but would have been careful to obtain the instructions from her clients, rather than merely outlining the contents of the previous will. In respect of the family provision advice provided to Mr Parr during this call, Ms Nandan confirmed that it concerned the extra provision being made for his ‘natural children’. She added that, in this respect, the advice would have been that Mr Parr was not making an equal distribution. Ms Nandan explained that she would ask her clients to provide reasons for the unequal distribution, firstly in the oral conference, where she would make a note of such, and then ask that they substantiate their reasons with a letter, if possible. Ms Nandan agreed that, if reasons had been provided for the unequal distribution, they would have been recorded in the file note. She initially agreed that, as no reasons were outlined in the file note, it could be assumed that Mr Parr did not provide any reasons but qualified this by noting that Mr Parr ‘had reasons that he had written down’, although ‘[n]ot at this time’.
Following the telephone call, Ms Nandan started preparing the wills by inputting the instructions into the Chameleon system. On 13 May 2010, the draft wills were posted to Mr Parr and the deceased for their review. Ms Nandan agreed that the draft wills reflected that the deceased’s will ‘[did] not contain the $100,000 clause but [Mr Parr’s] will [did]’ and Mr Parr’s will, like the deceased’s, still contained the five-way split of the residuary estate.
On 18 May 2010, Ms Nandan telephoned Mr Parr. Her file note records that one of Mr Parr’s sons answered the phone, but does not specify which one, and told her that his father was resting and that amendments may need to be made. Ms Nandan noted that she would try to make contact later in the week or the week after.
On 28 May 2010, Ms Nandan returned a call made by Mr Paul Parr. In her file note of the conversation with Mr Paul Parr, she records that ‘he asked that I contact Mr and Mrs Parr on Monday morning to confirm changes that they require to their wills’.
After a number of missed calls from Mr Paul Parr or unanswered calls from Ms Nandan to Mr Parr, on 1 June 2010, Ms Nandan spoke with Mr Parr by telephone. Her file note records that Mr Parr had misplaced his notes, had not been feeling well, asked for someone visit him and wished to make changes to the draft wills. Ms Nandan advised that the wills needed to be finalised and she would contact him on Friday to discuss the amendments.
Shortly after the telephone call, Ms Nandan sent an email to Ms Smith recording that Mr Parr had stated that two alterations would need to be made to the wills, although the email does not state the detail of the two alterations. In the email, Ms Nandan said she subsequently received a call from Mr Paul Parr advising that Mr Parr was too unwell to travel to the plaintiff’s office, that Mr Paul Parr was concerned that Mr Parr was not well and that ‘these matters need to be finalised’. Ms Nandan concluded her email as follows:
Maureen, I am concerned that Mr Parr’s health may deteriorate further and the documents may not be finalised.
What are your thoughts?
On 4 June 2010, Ms Nandan again posted the draft wills to Mr Parr and the deceased. A handwritten note on the copy of that letter in the plaintiff’s file says:
Clients misplaced drafts so I resent them. PN.
The draft wills sent on this occasion were identical to the drafts sent on 13 May 2010, that is, in respect of the deceased’s will there were no specific gifts to Mr Parr’s children and her estate was divided equally between her three children and Mr Parr’s two children.
The 11 June 2010 telephone call
On 11 June 2010, Ms Nandan telephoned Mr Parr and the deceased. She was unable to remember preparing the file note of her call, but said that her usual practice would have been to speak with them separately; however she was unable to recall whether that occurred in this instance. Her file note records that the time of the phone call was 2:30 pm and that:
They both gave instructions that they no longer wish to provide any share of their estate to [Ms Miles] or [the defendant] as they have had differences with them.
I provided general TFM advice. They understood this advice but these are their instructions anyway.
When asked whether she would have enquired about the ‘differences’, Ms Nandan responded that she would have asked, but clients often do not want to provide details regarding family issues. Ms Nandan also stated that she believed it was ‘something around having a falling out and I would have left it at that’.
When asked how she would have provided ‘general TFM advice’, Ms Nandan said that her practice would have been to say:
… a similar thing that now ‘you were previously providing for in your initial instructions and then the first discussion for the children equally and now you’ve changed those, and that can potentially mean there will be a claim against your estate’ and they have said that that was their instructions anyway. So I would have given that advice and they would have said, ‘This is still our instructions’.[13]
[13]Ibid 19.
Ms Nandan then sent an email to Ms Smith eight minutes later at 2:38 pm. Ms Nandan accepted that her telephone call with Mr Parr and the deceased would have lasted about five to seven minutes. In cross-examination, it was suggested that within this timeframe, it would also have been necessary to draft the email to Ms Smith, as well as possibly draft her file note. It was suggested to Ms Nandan that this provided a short time period within which to take instructions from her clients. Ms Nandan’s response was that she had ‘already taken instructions, the full length of instructions, beforehand and this was talking about a change to the residuary beneficiaries, so it wasn’t reconfirming their entire instructions all over again, it was confirming their change’.
Ms Nandan agreed that the 11 June 2010 telephone call was the first time that she had spoken with the deceased since 2007. At this point, the following exchange occurred:
Counsel: And these instructions that are recorded in the file note, they’re pretty — would you say that they’re pretty serious instructions, would you agree with that?
Ms Nandan: Yes.
…
Counsel: And within five to seven minutes you’ve spoken to them both separately about what are essentially a pretty significant change from longstanding five-way residuary clause wills, that you gave evidence you knew about and you’re familiar with the file and you’d read it, and you only spent five to seven minutes, so would you think that — it’s hard to say — would you have spent half that time with each of them? How do you think that conversation would have happened? You’re not sure?
Ms Nandan: I’m not sure. It would have been with the intention of reconfirming everything at the meeting when I met her and him face to face and him.
Counsel: With the intention of reconfirming at the meeting?
Ms Nandan: Going through everything properly, longer, going through all the questions, yes.
…
Counsel: What I’m saying is you’ve clearly taken some very serious instructions to write not Mr Parr’s children out but two of Mrs Parr’s children out of - - -?
Ms Nandan: I understand what you’re saying. I don’t have an answer. I don’t know.
Counsel: And you gave evidence before that you would always ask people what their reasons are for leaving someone out of a will?
Ms Nandan: (Witness nods.)
Counsel: And so there is no reason to think that you wouldn’t have asked in this case?
Ms Nandan: I would have asked. It’s said there they’ve had differences with them, so I clearly asked the question.
Counsel: You note here you gave TFM advice and you think you’ve asked them their reasons, you’ve given them TFM advice, you’ve done it both to them separately, you think, but you don’t know, all within five to seven minutes?
Ms Nandan: I can’t answer that. It may have been a line to say that that could cause issues, I’m not sure. I can’t recall the conversation.
Ms Nandan accepted that she would not have made her own assessment of testamentary capacity during this telephone call.
During cross-examination of Ms Nandan, counsel reiterated that the draft will sent to the deceased on 13 May 2010, and re-sent on 4 June 2010, did not contain the $100,000 gifts yet the will presented to the deceased for signing on 25 June 2010 did contain this clause, and that there were no instructions in the 11 June 2010 file note to suggest that the deceased wanted to make such provision. In response, Ms Nandan agreed that the file note did not reflect such provision and added:
[B]ut I would not have presented [the June 2010 will] before I asked her her instructions. I don’t go there and just present a draft and say this is what it is, I ask her what she wants to do, because I treated it like an initial meeting with her.
Counsel: But my question was, if this phone call on 11 June is sort of following up from the drafts you sent on 4 [sic] May and 4 June, and [the deceased’s] draft didn’t have a gift to Craig and Paul of 100,000, why then two weeks later are you turning up at her house with a will that has that clause drafted in it?
Ms Nandan: I can’t answer that. I don’t know.
Counsel: Would you agree you didn’t get those instructions from [the deceased]?
Ms Nandan: I can’t say that. I can’t recall.
Counsel: Would you agree that this file note is the only time you spoke to [the deceased] before that meeting?
Ms Nandan: Possibly, yes.
Counsel: So it stands to reason, doesn’t it, that you didn’t speak to [the deceased] between this meeting and turning up at her house?
Ms Nandan: I don’t know.[14]
[14]Ibid 68–9.
Ms Nandan accepted that the instructions to leave a gift of $100,000 to each of Mr Parr’s children were likely not to have been given in the conversation on 11 June 2010. It was unclear from Ms Nandan’s evidence when those instructions were received, or how that provision made its way into the final version of the June 2010 will. This is demonstrated by her evidence when asked how she would have obtained these instructions from the deceased, Ms Nandan said that ‘[t]hese were taken from the client liaison manager’, and ‘[t]hat would have been given initially, from the initial instructions that were taken’. As to who would have taken the initial instructions on this point, Ms Nandan said: ‘When [Mr Parr] would have indicated — I don’t know. I guess that that was [the deceased’s] intention as well. I don’t know. It is not there, so I don’t know’.
Chameleon questionnaire
Ms Nandan thought it likely that she would have updated the Chameleon system soon after the 11 June 2010 call. In the deceased’s Chameleon system questionnaire, with respect to Ms Miles, the ‘Reasons for exclusion from the Will’ field records:
Have had a difference with this child. Provided TFM advice. See filenote dated 11th June 2010. This is for Mr Parr’s file too.
With respect to the defendant, the equivalent questionnaire filed records:
Have had a difference with this child Provided TFM advice. See filenote dated 11th June 2010.
In Mr Parr’s questionnaire, the field for Ms Miles records:
Client does not wish to provide for stepdaughter as she is financially independent of client.
With respect to the defendant, the field records:
Client has no relationship with his stepson and has had a falling out. Therefore he does not wish to provide a share of his estate.
The actual time that these notes were added to the questionnaire do not appear to have been recorded by the system.
Signing of the wills on 25 June 2010
On 25 June 2010, Ms Nandan and Ms Smith attended the Kallista home of Mr Parr and the deceased. Mr Paul Parr was also present at this meeting. At that stage, taking computers to such a meeting was not usual practice and hard copies of the wills were provided to the deceased and Mr Parr. During the meeting, Mr Parr and the deceased each signed their amended wills, which included no provision for Ms Miles or the defendant.
Ms Nandan was questioned at length regarding the presence of Mr Paul Parr at the meeting on 25 June 2010. She said that it was her usual practice to advise against the presence of such persons, however, if the client insisted on their presence, then the person remained — except when the will was being executed. On the subject of a client’s insistence that such a person remain, the following exchanges occurred:
Counsel: What would you have said to [the clients]?
Ms Nandan: I would have said that it’s not my common practice to allow anyone in the room. If they still insisted, I would have said that this could cause problems later on, in terms of them being influenced by him in some way and that I suggest he leave.
Counsel: And he didn’t leave, so why would that be?
Ms Nandan: I can draw from that that they insisted, irrespective of that, that he remains.
…
Her Honour: Why wouldn’t you insist that he leave?
Ms Nandan: Your Honour, because some clients wouldn’t then proceed and the signing meeting wouldn’t be completed. [15]
[15]Ibid 22.
Ms Nandan’s file note dated 11:30am on 25 June 2010 records the following:
DETAILS:
Maureen Smith and I attended an appointment at Mr and Mrs Parr house on the 25th of June 2010 at 11:30 am.
Mr Parr’s son Paul Parr was present at the interview along with Mr Clement Parr and [the deceased], Maureen and I.
Wills
I confirmed Mr and Mrs Parr’s instructions in relation to the gift of $100,000 to each of Mr Parr’s sons Paul and Craig. I explained that as Mr and Mrs Parr have joint assets on the death of one of them all of the assets will pass to the survivor. Therefore the gifts to Mr Parr’s sons could be made effectively on the death of both of them. They understood this advice and agreed that the gifts would occur on both of their deaths.
Mrs Parr stated that she would make no alterations to this Will in the event Mr Parr predeceased her.
They both reiterated their instructions that both Deborah and [the defendant] would not receive a share of their estate due to a falling out. I provided the client with TFM advice, they understood this advice but these are their instructions anyway.
Capacity
Both Mr and Mrs Parr gave clear instructions as to their asset composition and how they would like their estates distributed on their respective deaths.
They clearly understood the wording of their Wills and we reviewed each clause thoroughly prior to the clients signing their documents. I have no question whatsoever that the clients had testamentary capacity to sign their Wills.
[signature]
Priam Nandan
Ms Nandan said that she treated the meeting as an ‘instruction and signing meeting’, and therefore spent more time with the deceased and Mr Parr to ‘assess that they knew what they were doing and knew what they owned and how they were distributing those assets on their death’.[16]
[16]Ibid 24.
In cross-examination, Ms Nandan was adamant that she would have followed her usual practice, and ‘gone through everything at the meeting’. If her clients had changed their instructions, Ms Nandan said that she would have returned to her office to redraft the will and then travelled back to the deceased’s home, due to the urgency of the matter.
With respect to confirming the instructions that Ms Miles and the defendant receive no provision under the wills, Ms Nandan stated, ‘I would have asked them if the will is drafted in accordance with their instructions, and then I would have gone through what could happen again and provide the same advice about potential claims …’.[17]
[17]Ibid 23.
Ms Nandan added that it was her practice to go through the will clause by clause, asking open questions of each client separately and testing the client’s understanding of the will, what it is designed to do and whether it matches their instructions. When asked how she would ‘test’ them, Ms Nandan stated:
I would have asked them to play back to me what they believe that will is designed to do, what are they doing with their assets. Sometimes with this legal terminology, the clients can’t — for one particular word, for example, so I’ll get them to explain to me what exactly it is — what is it doing. [18]
[18]Ibid 26.
However, Ms Nandan later said that after she would have asked Mr Paul Parr to leave the room, she would have presented the client with the draft will and ‘reconfirmed’ the instructions using closed questions such as ‘is this will drafted according to the instructions you have given me?’, ‘are you happy with its contents?’ and ‘do you approve of those contents?’. Ms Nandan stated that, if the client said ‘yes’ to those questions, the will would be signed.[19]
[19]Ibid 26–7.
In relation to the deceased, Ms Nandan stated, ‘even though they’re in the same room, I would have gone through every will separately and especially with her …’. Ms Nandan clarified that she would have taken special care in her conversation with the deceased because she had not seen the deceased to confirm her instructions until that date. When asked about this latter comment, Ms Nandan said: ‘Because I hadn’t got those from her yet, I haven’t been able to see her.’
Ms Smith made a note of the events of the meeting in an email sent to Ms Nandan on 29 June 2010 at 9:38 am:
Attended home visit Will signing appt with [the plaintiff] solicitor Priam Nandan. Also present with Mr and Mrs Parr, son Paul. Paul was not present for the whole meeting, leaving the room part way through the meeting to have a cigarette outside. After greetings, both Mr and Mrs Parr read their Will, indicated understanding of the contents and then signed the documents with Priam and MS as witnesses. Prior to signing both Mr and Mrs Parr engaged in conversation about the documents and confirmed the instructions.
Testamentary capacity
Ms Nandan was taken to her statement in her file note that she ‘[had] no question whatsoever that the clients had testamentary capacity to sign their wills’, and asked what steps she would have taken to form that view. In response, Ms Nandan stated:
Firstly, they needed to have a significant understanding of what they own, what their asset composition is and who owns it. Then I would have asked them what a will is and when it takes effect and then I would have gone on to make sure they understand the potential of a claim against their estate, that is what I would have done. That is my common practice.[20]
[20]Ibid 26.
In response to a question regarding what would cause her to have concerns regarding a client’s capacity, Ms Nandan said:
Just a confusion as to what they own or what they have, whether it is clear to me that someone is placing pressure on them, such as a spouse that is in the room at the same time. That would be it. And if they’re just confused about the order of things …[21]
[21]Ibid 27.
Ms Nandan was asked what she would say in response to a medical assessment that the deceased did not have capacity, to which she stated that she was not aware of such an assessment that the deceased had dementia and she performed her assessment based on her observations at the signing meeting.
Ms Nandan added that she had ‘followed the legal test at that time’. When asked to explain the test for testamentary capacity, she said:
That they need to know what their asset composition is, need to know what a will is, what it is designed to do, whether there is any beneficiaries that can make a claim against the estate and whether they have a delusion of their mind.[22]
[22]Ibid 77.
When questioned as to whether she would ask the deceased if she had a mental illness or disorder, Ms Nandan responded:
That is not something I generally ask my clients directly, I assess them at the signing meeting to whether they appear that way. Is there anything in their behaviour that may suggest that something — something that they do that is — I don’t know — out of the ordinary and then I would document that, that would be my usual practice. So I wouldn’t have seen that.[23]
[23]Ibid.
If not satisfied as to their capacity, Ms Nandan said that she ‘would have not signed at that point and requested a medical certificate from preferably not only a GP but a neuropsych as quickly as possible’. Ms Nandan also gave evidence that her usual practice was to use a ‘capacity checklist’, in which certain points would be marked off such as confirmation of assets and understanding of the effect of a will. As to the use of a checklist in respect of the deceased and Mr Parr, Ms Nandan deposed that there should have been one on the will file but there was not. Although, she did add that it was not usual practice for the checklist to be kept on the will file, as ‘it wasn’t directed by management to do so’.
Ms Nandan deposed that she saw up to four or five clients each day and that, if the client was seen in the office, she was expected to draft the documents immediately, in front of the client and sign them as well. She stated that there was not much time to deal with each client.
On 29 June 2010, Mr Paul Parr called the plaintiff to inform it that Mr Parr had died.
The lay evidence
The defendant’s evidence
The defendant stated that his relationship with the deceased was always very good and there was no falling out between them. When the deceased was living in Kallista, he would visit her and mow the lawns. The defendant also visited her for Christmas and birthdays. In her younger years, the deceased was a very independent woman. In about 2007 or 2008, she stopped driving the car as she became disoriented. She also stopped shopping, going swimming at the local pool and initiating telephone calls. The deceased had always been well presented, but by the time Mr Parr died, she was thin and undernourished. The defendant noticed that wet clothes were left in the shower recess and dirty clothes were put back into the wardrobe. The deceased had always been very proud of her garden, but over time she simply wandered around the garden, instead of weeding it. The deceased also wandered around the house at night, shining torches in people’s faces.
The deceased doted on Mr Parr but at his funeral in 2010, she was detached and not aware of what was happening.
The defendant stated that Mr Parr was estranged from his two children until about three months before his death. Mr Paul Parr moved into the home in Kallista when he returned from Ireland where he had lived for many years. When Mr Craig Parr travelled from Queensland, he also stayed with Mr Parr and the deceased and the defendant was made to feel uncomfortable if he visited the home in Kallista.
The defendant also said that Mr Parr had issues with him that related to Mr Parr’s ability to care for the deceased as his health deteriorated.
Mrs Tognarini’s evidence
Mrs Tognarini has lived in Italy since 1998. She recounted an occasion in October 2004 after the deceased and Mr Parr had stayed with her for three or four days, her mother asked where was the bathroom. It struck Mrs Tognarini as strange that the deceased would ask such a simple question.
In 2008, Mrs Tognarini stayed in Melbourne for about two months and Mr Parr celebrated his 80th birthday during her stay. She stated the deceased was not involved in the shopping or cooking for that event. She helped the deceased dress for the event and noted the house ‘wasn’t up to Mum’s usual standard’.
On another visit in September and October 2009, Mr Parr told her he had found the deceased crawling on the floor. There were also lots of empty bottles of alcohol, estimated as at least 200 bottles, hidden in the house. Mrs Tognarini thought this strange given that the deceased had been a teetotaller when Mrs Tognarini was growing up. Mrs Tognarini also noticed the shower base was full of clothes and there were many tubes of toothpaste and shampoo bottles in the bathroom. Mr Parr had acknowledged to Mrs Tognarini that the deceased bought a lot of unnecessary supplies. During her visit, the deceased could answer a question, yes or no, but seemed incapable of starting or continuing a conversation.
On a further visit in June 2010, just before Mr Parr’s death, Mrs Tognarini noted that the deceased was unable to assist with looking after Mr Parr and did not discuss his illness or the process of him dying. On this visit, the deceased wandered the house at night, opening doors.
Mrs Tognarini noted that Ms Miles made meals for the deceased and Mr Parr in 2010 and the deceased did not have a falling out with either Ms Miles or the defendant. Mrs Tognarini deposed that she could not think of any reason for not including them as beneficiaries in the June 2010 will.
Mrs Fricke’s evidence
Mrs Carol Fricke was a lifelong friend of the deceased and a relative, as Mrs Fricke’s father was the deceased’s cousin. Mrs Fricke is a trained nurse. She retired about 15 years ago after a career in welfare work, drug and alcohol services and a domestic violence programme. For a time, she acted under a medical power of attorney for Mr Parr and the deceased.
On 6 March 2007, Mrs Fricke attended the plaintiff’s offices to sign an appointment of enduring guardian and a medical power of attorney, accepting appointment as alternate attorney for each of Mr Parr and the deceased. The deceased had not spoken to Mrs Fricke regarding the appointments, but Mr Parr had asked her to sign them. She thought that it was probable that the deceased took no part in the decision as to who would be appointed, except to sign the document.
During her adult life, the deceased had been a milliner and dressmaker. She was always smartly dressed and looked elegant. She had an outgoing personality. Between the time she signed the powers of attorney and Mr Parr’s death in June 2010, Mrs Fricke observed that the deceased gradually lost her memory, no longer engaged in conversation and was unable to answer questions. Mrs Fricke thought that Mr Parr was protecting the deceased by answering questions for her. At a Christmas dinner in 2009, the deceased did not enter in to the spirit of Christmas, as she usually did, and it did not appear to be a festive occasion for her. Mrs Fricke found it difficult to make conversation with the deceased on that occasion. As soon as the meal was over, Mr Parr said, ‘I need to take [the deceased] home because she’s tired’. By this time, the deceased had been diagnosed with skin cancer, had undergone a number of operations on her nose and she had lost interest in preserving her appearance.
At Mr Parr’s funeral, it appeared to Mrs Fricke that the deceased was not aware of the nature of the occasion. As an example, Mrs Fricke said the deceased was more concerned about where the afternoon tea was taking place, rather than acknowledging any emotion of Mr Parr’s death.
Medical evidence
Dr Wadsley
Dr Marianne Wadsley is a consultant geriatrician. Dr Wadsley examined the deceased on 4 May 2010, about seven and a half weeks before the date of the June 2010 will. Although Dr Wadsley said it would be unusual to recall an examination so long ago, she did recall it because of the significant conflict involved in the family, and that she had been asked to assess whether the deceased needed a guardian and whether Mr Parr was fit to continue as her guardian.
Dr Wadsley stated that ‘[the deceased] was so anxious during the assessment that we would have someone sit with her while I would talk to the other person’.[24] The question during her assessment was whether Mr Parr should continue as her guardian. Dr Wadsley kept the assessment ‘quite low level’ because the deceased did not know the current date or month, and became quite stressed when questioned further. She concluded that it was likely the deceased had dementia, and although did not complete a full examination, ‘felt it was unlikely that she would have competency to manage her finances’ and that ‘it was clear that she wouldn’t manage without [Mr Parr]’.[25] She stated that Mr Parr was quite certain that the deceased would not manage without him. Mr Parr agreed that if something happened to him, the deceased would go into care.
[24]Ibid 85 (M C Wadsley).
[25]Ibid 88.
In her Comments for Care Providers in the Client Record form, Dr Wadsley noted:
Significant cognitive impairment noted which appears consistent with Alzheimer’s disease. Limited cognitive assessment performed due to client anxiety. Needs a supervised environment which is being currently provided at home.
In her oral evidence, Dr Wadsley elaborated on the use of the word ‘significant’ in this context:
So “significant” would normally mean that we thought she [had] moderate [cognitive impairment]. So that means that she definitely needs help, so she is not functioning independently anymore, but not to the level that she is needing, you know, prompting to eat.[26]
[26]Ibid 95.
Dr Gruner
Dr John Gruner was the deceased’s general practitioner. His recollection of her was that she was:
… deferential to her husband, very very well groomed, well presented, very pleasant, amiable, but often deferential to her husband in conversations.[27]
[27]Ibid 100 (J B Gruner).
Dr Gruner noted that the deceased used to nod and agree with Mr Parr. He clarified in cross-examination that her deferring to him and Mr Parr’s answering for the deceased did not appear aggressive, derogatory, overbearing or non-consensual.
On 7 July 2010, a senior attorneyship consultant employed by the plaintiff, Ms Dana Velyanovski, contacted Dr Gruner to request his opinion as to whether the deceased had capacity to manage her legal and financial affairs as she observed that the deceased did not seem to have any insight into what was going on. In mid-July 2010, Dr Gruner was uncertain about the deceased’s cognitive abilities and he referred the deceased to Dr Bernard Worsam, a consultant physician with expertise in assessing testamentary capacity, for assessment.
In his referral letter dated 12 July 2010, Dr Gruner noted that he had ‘always [consulted] her with her husband being the carer and she has gone along with him and agreed fully with him’. Further, he observed, ‘[i]t is consistant [sic] with my observations at all my consults that her husband has made choices for her and been responsible for her’.
Dr Worsam
On 16 July 2010, just three weeks after the deceased signed the June 2010 will, Dr Worsam assessed the deceased as having no testamentary capacity and no capacity to instruct regarding her legal and financial affairs. He recommended to the plaintiff that a guardian and attorney be appointed to manage the deceased’s financial and medical treatment decisions. By the time of the trial, Dr Worsam had died and his report, written on the day of his assessment of the deceased was tendered as evidence of his opinion without any challenge to his qualifications or expertise.
Mrs Fricke attended with the deceased for the appointment with Dr Worsam, which took approximately one and a half hours.
In his report, Dr Worsam acknowledged that ‘[m]ost past and social history was obtained from Deb [the defendant’s wife] and [Mrs Fricke]’ and that the defendant’s wife was present for his examination. Dr Worsam’s recitation of that history in his report is largely consistent with the evidence given at the trial by the lay witnesses. He reported that the deceased ‘co-operated in the examination, but was initially fearful’. He recorded that the deceased ‘scored 16/30 on her Mini-Mental State Examination. Her conversation was very limited, there was no initiative and she had little insight. Memory loss was indicated by repeated questions.’ He concluded as follows:
… she has established Alzheimer’s disease, exposed by the death of her husband. It seems clear from the history that he was covering for her deficiencies for years, and that her cognitive loss has included major changes in executive function. She is losing competence in basic self-care, but is still continent. She has lost capacity in basic instrumental activities of daily living.
With respect to her testamentary capacity and her capacity to instruct regarding legal and financial affairs, Dr Worsam said:
I consider there is very adequate information gained from the history and examination to declare her as not having such capacity.
In his letter of the same date to the plaintiff enclosing his report, Dr Worsam confirmed his opinion of established dementia due to Alzheimer’s disease, progressing over the last five years and confusion present for at least nine months and said:
… I explored [the deceased]’s appreciation of her assets and her understanding of those who might have some claim on them in the event of her death. She had no appreciation of her assets, and could not understand the changes produced by her husband’s death. She named her immediate family as likely to benefit through her will; she did not appreciate any responsibility to include her step-sons, dismissing them as participants. Her understanding of the process was that it would all ‘be done for her’. I consider she has no testamentary capacity.
Consideration
Testamentary capacity
The plaintiff bears the onus of establishing that the deceased had testamentary capacity at the time she executed the June 2010 will.
Dr Worsam assessed the deceased as not having testamentary capacity only three weeks after the execution of the June 2010 Will. Dr Worsam was a specialist in the area of assessing testamentary capacity and his assessment of the deceased was undertaken over a reasonable lengthy consultation with the deceased. Dr Worsam’s opinion was that the deceased’s capacity had been declining for the last five to six years, and through the support and ability of Mr Parr to cover for her increasing deficiencies, her decline had largely not been noticed save for those closest to her, such as her children and Mr Parr.
There were worrying signs concerning the deceased’s mental capacity from at least 2009 onwards, consistent with the lay evidence given by Mrs Fricke and the deceased’s two children. This gradual and steady decline over a longer period is supported by the observations of Dr Wadsley made on 4 May 2010 for the purposes of assessing whether Mr Parr should continue as the deceased’s guardian. Unusually, Dr Wadsley recalled the examination because of the significant family conflict. Although the examination was not completed due to the deceased becoming stressed, she concluded that it was likely that the deceased suffered from dementia and had significant cognitive impairment, meaning she no longer functioned independently. Dr Gruner noted that the deceased’s dependence on Mr Parr, describing it as the deceased going along with what he says and agreeing with him. On 7 July 2010, Ms Velyanovski of the plaintiff observed that the deceased seemed to have no insight into what was going on.
The medical evidence is supported by the observations of the lay witnesses, the defendant, Mrs Tognarini and Mrs Fricke, a trained nurse with many years’ experience, as well as being a close family member of the deceased. They observed Mr Parr cover for the deceased regularly over the years to hide the deceased’s declining capacity by his conversational strategies and caring demeanour and attitude.
Based on the medical evidence and the evidence of the family members, it is unlikely that the deceased gave instructions to Ms Nandan for her will or understood the contents of her will. It is more probable that she deferred to Mr Parr and went along with what he said to Ms Nandan.
The combination of the medical and lay evidence stands in stark contrast to Ms Nandan’s evidence. The probative weight of her evidence is limited by the fact that she has no recollection of the events, even when assisted by the file notes, and her reliance on what would have occurred or her recollection of her ordinary practice when working for the plaintiff. She could not recall the deceased, Mr Parr or any of the circumstances surrounding the making of their wills, either in 2007 or 2010.
Ms Nandan’s file notes record her telephone conversation with the deceased and Mr Parr on 11 June 2010 as being about five to seven minutes at most. In this conversation with them, Ms Nandan noted a fundamental change by the deceased in her testamentary dispositions with the exclusion of the defendant and Ms Miles. There was no note about any specific legacies to Mr Parr’s children and Ms Nandan did not know how the specific legacies were included in the deceased’s June 2010 will. Ms Nandan acknowledged that she would not have been able to assess the deceased’s testamentary capacity during this conversation.
Ms Nandan was unable to give any direct evidence of what occurred at the meeting on 25 June 2010 when the deceased signed the June 2010 will. Mr Parr was very ill and died three days later. Ms Smith also attended with Ms Nandan at that meeting. Mr Paul Parr was also present at the meeting, according to Ms Nandan’s notes. Ms Smith’s email four days later confirmed Mr Paul Parr was present at the meeting, save for when he went outside for a cigarette. Neither Ms Smith nor Mr Paul Parr were called as witnesses in the proceeding. Counsel for the plaintiff conceded that Mr Paul Parr’s evidence would not have assisted the plaintiff’s case and that a Jones v Dunkel[28] inference may be drawn from the fact that he was not called as a witness. The absence of Ms Smith as a witness for the plaintiff was not explained by the plaintiff. The Court accepts the defendant’s submission that it could also be inferred that Ms Smith’s evidence would not have assisted the plaintiff’s case as it would be likely that Ms Smith would also be unable to recall the meeting when the June 2010 will was signed by the deceased.
[28](1959) 101 CLR 298.
Ms Nandan’s file note of the meeting when the June 2010 will was executed by the deceased recorded that she assessed the testamentary capacity of the deceased and Mr Parr. Her file note seems to indicate that she assessed them together, rather than separately. The conclusion in her file note of 25 June 2010 that there was no issue as to the deceased’s testamentary capacity on that date is not borne out by the medical and lay evidence. Ms Nandan’s file note simply records bald conclusions that the deceased and her husband ‘clearly’ understood their wills and gave ‘clear instructions as to their assets composition and how they would like their estates distributed on their respective deaths’. The file note does not contain any particulars or reasons for making such an assessment and it treats the deceased and Mr Parr as the client, rather than separate clients. At the same time, Mr Paul Parr, a substantial beneficiary under both June 2010 wills, was present at the meeting. Overall, Ms Nandan’s file note of the meeting simply states conclusions about the meeting without setting out the underlying basis for those conclusions.
Little weight can be given to Ms Nandan’s ordinary practice in 2010 as she had limited training in assessing testamentary capacity at that stage of her working career. In addition, her evidence was given more than seven years after the June 2010 will was signed. This makes it difficult to assess whether she was recollecting her ordinary practice in 2010 or her present day ordinary practice. Despite Ms Nandan’s evidence of her usual practice being that if a client were only to answer ‘yes’ or ‘no’, she would ‘delve in a bit more’ to satisfy herself of the client’s testamentary capacity, the file notes do not show that Ms Nandan followed what she stated to have been her usual practice at the meeting of 25 June 2010.
The Court is not satisfied that the deceased had testamentary capacity at the time instructions were given for the June 2010 will and when she executed the June 2010 will.
Knowledge and approval
Where there is a just ground for suspicion, the plaintiff bears the onus of establishing that the deceased knew and approved of the June 2010 will.
There are a number of circumstances around the creation of the June 2010 will that excite the Court’s suspicion that the deceased did not know and approve of the June 2010 will.
First, the provisions of the deceased’s June 2010 will are a substantial departure from her previous testamentary dispositions. Previously, the deceased did not provide for legacies to Mr Parr’s children and she included all of her children as beneficiaries. In her 2007 will, the deceased left her estate to Mr Parr and, if he predeceased her, her estate was left equally between her three children and Mr Parr’s two children. Mr Parr’s 2007 will did bequeath $100,000 each to his two children and he left the residue of his estate equally between his two children and the deceased’s three children.
In the June 2010 will, two of the deceased’s children are excluded. Ms Nandan’s file notes as to the person giving instructions for the specific legacies and the removal of the defendant and Ms Miles as residuary beneficiaries are not clear. In light of the medical and the lay evidence as to the deceased’s failing capacity and her deference to Mr Parr, it is unlikely that she gave these instructions. The evidence does not show any rational reasons for the deceased to exclude the defendant and Ms Miles from her will, with the evidence of the defendant and Mrs Tognarini being that he and Ms Miles did not have a falling out with the deceased. This is confirmed in part by Dr Worsam when he saw the deceased only three weeks after executing the June 2010 will. In his report, Dr Worsam said the deceased named her immediate family as likely to benefit from the June 2010 will. At the time the instructions for the June 2010 wills were given, Mr Parr was very ill. Mr Paul Parr was living with the deceased and Mr Parr. Under the June 2010 will, he and Mr Craig Parr would receive a far greater share of her estate than the deceased’s children. This and Mr Paul Parr’s presence when the June 2010 wills were executed is not explained by Ms Nandan’s file notes or the notes recorded in the plaintiff’s Chameleon system.
Leading up to the June 2010 will, there is a reference in Ms Nandan’s email to Ms Smith that Mr Parr told her that ‘two alterations’ were required to their wills yet this is not referred to in Ms Nandan’s file note dated the same date. Draft wills were then sent to the deceased and Mr Parr with the deceased’s will remaining substantially the same as her 2007 will. There is no evidence as to what were the two alterations as the changes to the deceased’s June 2010 will include more than two alterations.
Ms Nandan’s file notes of the meeting on 25 June 2010 when the will was signed do not support that the deceased knew and approved of her June 2010 will. As stated, Ms Nandan’s file notes suggest that the deceased and Mr Parr were seen together and, although Ms Nandan deposes that Mr Paul Parr would have been asked to leave the room prior to signing the will, she conceded that her usual practice of ‘reconfirming’ instructions immediately prior to signing involved presenting the draft will to the client and asking the client a series of closed questions. Closed questions, in which the client is expected only to answer either ‘yes’ or ‘no’, may mask the presence of dementia in elderly clients. This would be particularly so in this instance where the deceased was not able to initiate or carry on an extended conversation as a result of her dementia around the time of execution of the June 2010 will. The deceased’s responses to Ms Nandan’s ‘reconfirming’ questions are not an accurate basis on which to assert that the deceased had properly confirmed her instructions and understood the content and effect of her will. Ms Nandan agreed that the first time she actually spoke to the deceased since 2007 was during the five to seven minute phone call of 11 June 2010, although it was not clear that she actually spoke to the deceased. Any instructions given to the plaintiff’s representatives prior to that date appear to have been given by Mr Parr. Further, Ms Nandan’s evidence is unclear as to how or when the deceased provided her instructions for the gifts of $100,000 in the June 2010 will. In circumstances where the deceased’s instructions were not independently provided by her or confirmed by her prior to the day of signing, and where Ms Nandan intended to confirm those instructions at the signing meeting, her file notes should have contained greater detail as to the deceased’s knowledge and approval of the June 2010 will.
The Court is not satisfied that the deceased knew and approved of the June 2010 will.
Orders
Accordingly, the plaintiff’s application for a grant of probate of the deceased’s June 2010 will is dismissed.
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