Re Ray

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 11945

MICHAEL JOHN GASON & PETER JOHN HAMILTON-WATT	Plaintiffs
v
JOHN CHARLES STEPHEN RAY	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27–8 November, 6 December 2019 Final closing submissions: 11 March 2020
DATE OF JUDGMENT:	21 October 2020
CASE MAY BE CITED AS:	Re Ray
MEDIUM NEUTRAL CITATION:	[2020] VSC 699

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WILLS AND ESTATES – Informal wills – Where informal will was unsigned and undated – Where deceased asked to sign will shortly before dying – Where deceased was an alcoholic – Whether deceased had testamentary capacity – Whether deceased intended the informal will to be his will – Application granted – Wills Act 1997 (Vic) s 9 – Banks v Goodfellow (1870) LR 5 QB 549; Veall v Veall (2015) 46 VR 123.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr JS Smith	Natoli Howell
For the Defendant	Ms U Stanisich	Hicks Oakley Chessell Williams

HER HONOUR:

Charles (aka Charlie) John Arthur Ray (‘the deceased’) died on 29 March 2019 at the age of 49 years. The cause of death was a consequence of chronic liver disease flowing from a long history of alcohol dependence. He was survived by John Ray (‘John’), who is his father and the defendant in this proceeding, and his sister, Jane Ray (‘Jane’).[1] Jane has five children between the ages of 11 and 23 years. Jane’s partner, Stuart, died on 21 April 2019. The deceased’s mother, Lynette Ray (‘Lynette’), died on 14 December 2018.
[1]First names are used throughout to avoid confusion.

The plaintiffs, Michael John Gason and Peter John Hamilton-Watt (‘Michael’ and ‘Peter’), are long-standing friends of the deceased.

The inventory of assets and liabilities filed by the plaintiffs in support of their application lists the net value of the estate as $876,120, comprising primarily the deceased’s home in Wantirna. John is the beneficiary of the deceased’s estate upon intestacy.

On 2 August 2019, the plaintiffs filed an originating motion for a grant of probate pursuant to s 9 of the Wills Act 1997 to admit to probate an informal will (‘the draft will’). The draft will was prepared by Mark Black (‘Mark’), who is a barrister and close friend of the deceased, in March 2019. Mark had previously prepared a different draft will for the deceased in November 2018 (‘the November draft’), in which Mark himself was appointed executor of the deceased’s estate.

The draft will

The draft will comprises seven typed pages, including a cover page and a blank ‘distribution list’ at the end. It is unsigned and devoid of any handwritten marks. It is also undated, save for the cover page and final substantive page, which contain the typed words ‘March 2019’.

The draft will purports to revoke all prior wills and other testamentary acts and appoint the plaintiffs as executors and trustees. It then provides:

My executors hold my estate on trust:
(a)to firstly give all of the articles of personal property set out in the Distribution List signed by me and attached to this will (if any) to my executors absolutely, and I request them, without imposing any trust of binding obligation on them and without conferring any interest upon any other person, to distribute the articles in accordance with the Distribution List signed by me;
(b)(i) subject to subpara (ii), to divide the residue of my estate equally among those of the following who are living at my death and attain their respective majorities:
(A)JAMIE GREENE;
(B)KIRSTEN GREENE;
(C)NICHOLAS GREENE;
(D)SAMUEL GREENE;
(E)JASMINE GREENE;
(F)JAKE THOMAS LATTA BARKER;
(G)CAMERON JAMES BLACK;
(H)BRENDAN ANDREW BLACK

(ii)if any beneficiary named above has already died or dies before me or before attaining a bested interest leaving children alive at the death of the survivor of that child and me, those beneficiaries, on attaining their respective majorities, take, and if more than one equally, the share which their deceased parent would otherwise have taken.

The first five of the abovenamed beneficiaries are Jane’s five children, being the nieces and nephews of the deceased. The three remaining named beneficiaries are Mark’s two children with his wife, Janice Black (‘Janice’), and Janice’s son from a previous marriage.

The remaining terms of the draft will provide for the usual suite of executorial powers in a will drafted by a legal practitioner.

The evidence
Background

The deceased never married, never had children and never had a domestic partner.

The deceased was a computer programmer and an IT architect who worked for IBM for many years. In about 2014, he took a redundancy package from IBM and took about six months off work. He then worked intermittently until 2017, after which he did not work at all.

The deceased was close with Jane and his parents. John deposed that he spoke with the deceased three or four times a week, mainly by telephone. John describes the deceased as a ‘peace-keeper’ in the family, as he did not like disputes.

The deceased was a close friend of both Mark and Janice for approximately 25 years up until his death. For many years, Janice spoke with the deceased almost every day, either in person, on the telephone or via text message. The deceased had weekly dinners with Mark, Janice and their children for over 20 years, although those visits became less frequent from about February 2018. Over the years, Mark, Janice and the deceased also celebrated birthdays, Christmas and other occasions together. The deceased was a ‘bride’s man’ for Janice at their wedding in 2002. Mark and Janice considered the deceased to be a part of their family.

Health issues

During his lifetime, the deceased suffered from a number of health issues, primarily obesity and alcoholism.

In November 2017, he underwent gastric bypass surgery and lost around 100 kilograms over the following 18 months. In addition, the deceased’s mother was diagnosed with cancer in January 2018. His alcoholism worsened during this time.

John deposed that he knew the deceased enjoyed drinking but did not appreciate the extent of it until around January 2018. Mark deposed that he became concerned about the deceased’s drinking in around March 2018.

In May 2018, after Janice and Mark had not heard from the deceased for a couple of days, they went to the his house. The deceased was noticeably intoxicated and Mark noticed many empty bottles of spirits in the house. Mark and Janice took the deceased to Knox Hospital to ‘dry out’ and he was admitted. Shortly thereafter, the deceased was transferred to the Melbourne Clinic, a treatment centre for people suffering from alcoholism and other addictions, where he entered into a detoxification program. This was the first of many visits to hospital and the Melbourne Clinic for the deceased.

During June 2018, Janice visited the deceased several times at his home. Each time, he failed to answer the door and she let herself in. On each occasion, she found him passed out on the floor and sat with him until he woke up and became sober. On 21 June 2018, Janice again found the deceased on his floor. She called an ambulance and he was taken to Maroondah Hospital, where he stayed for 14 days.

On 29 July 2018, Jane and Janice met at the deceased’s house and together found the deceased on his floor. Janice remained with the deceased for two hours while he sobered up.

On 29 August 2018, Janice again found the deceased on his floor and took him to Maroondah Hospital, where he remained for six days. On each occasion that Janice took the deceased to hospital, she called his father John to inform him. On this occasion, John suggested that Janice convince the deceased to appoint Janice as his attorney under power of attorney.

On 10 September 2018, Jane visited John and Lynette’s house to print Stuart’s will. Stuart had been diagnosed with prostate cancer in June 2017 and informed that his life expectancy at that time was between six months to two years. The deceased was present at John and Lynette’s house. Jane said to John and the deceased that it might be a good time for everyone in the family to make a will. The deceased responded: ‘You know I won’t be making a will.’ He confirmed that he did not need to make a will as his assets would go to his next of kin, being ‘mum and dad’.

Notably, at the time of Stuart’s diagnosis in June 2017, the deceased said to Jane that she should not have to raise five children on her own and that he wanted her to turn to him if she needed help. The deceased also told Jane that he had thought about building a house on the back of his block for Jane and her children to move into after Stuart’s passing. Jane deposed that the deceased appeared to be hopeful that he would play a fatherly role in her children’s lives.

On 31 October 2018, the deceased called Janice to tell her that he had tripped over. Janice again took the deceased to Maroondah Hospital, where he remained for eight days. Dr Tilak Arunachalam, the deceased’s general practitioner, states in his letter that the deceased was diagnosed with hepatic encephalopathy during this admission.

During October and November 2018, the deceased decided to apply for a Centrelink sickness allowance and made Janice his nominee so that she could complete the relevant paperwork on his behalf. Janice continued to communicate with Centrelink on behalf of the deceased until his death.

The November draft and the draft will

On 13 November 2018, Mark telephoned the deceased and suggested that, given the number of visits he had made to the hospital recently, it might be a good idea if he made a will. Mark said that he would be happy to draw one up for him, explaining that the deceased would need to decide on an executor and to whom he would like to leave his assets. The deceased said that he wanted to divide his property eight ways, between Mark and Janice’s three children and Jane’s five children. He also had a number of smaller items that he wanted to leave to individual people, and so Mark suggested a distribution list. Regarding the executor, Mark told the deceased that it was an honorary position and that he could choose whoever he liked, but that it was usually a family member or close friend. He explained that the executor is responsible for collecting all the assets, either selling them off or dividing them up in accordance with the will, and also paying any liabilities. The deceased responded that John would probably want to be executor but that he did not want that, given past difficulties with John’s dealings with money. Upon the deceased’s request, Mark agreed to be appointed executor and John was to be appointed as an alternate. The deceased asked Mark to draw the will on this basis. Mark deposed that, throughout the telephone call, the deceased was ‘lucid and rational’, and that he ‘clearly expressed’ what he wanted to have happen with his estate.

At around the same date, Janice had a conversation with the deceased at his house about his plans to make a will. The deceased said that:

(a) He wanted to divide his estate into eight parts, one for each of Janice’s three children and Jane’s five children. He had had more to do with Janice’s children than with Jane’s children and he would prefer to leave his whole estate to Janice’s children, but that to do so would cause too much drama amongst his family.

(b) He would like to leave something to Mark and Janice but, if he did so, he would feel obliged to leave something to Jane, which he did not want to do.

(c) He did not want to leave any of his estate to Jane or John ‘as they would end up blowing the money and then his nieces and nephews would not benefit’.

(d) He wanted Mark to be the executor.

(e) He wanted Janice to be his attorney under a power of attorney, though it was not urgent.

(f) He had spoken with Mark and asked him to prepare the will for him.

On 16 November 2018, the deceased sent a text message to Jane, stating:

I’ve been thinking about [your] suggestion of a will … been talking to Mark and have some thoughts I’d like to talk to you about sometime.

Jane then called the deceased and they discussed his will on the telephone. The deceased confirmed that Mark had recommended he make a will, but he said he did not know to whom he should leave his estate. Jane deposed that his thoughts were ‘scattered’ and that he said he was not sure about his will or what he wanted it to say.

Mark drafted a will for the deceased on about 26 November 2018 (the aforementioned ‘November draft’) and gave it to Janice for her to take to the deceased the next time she visited him. By this stage, the deceased had stopped visiting Mark and Janice on a weekly basis. Mark provided Janice with a clean copy for signing, as well as a marked up copy with brief comments explaining the meaning and effect of various clauses. Janice gave the November draft to the deceased whilst taking him to a medical appointment. The deceased said that he was going to discuss its contents with John and Jane before he signed.

On 27 November 2018, the deceased showed Jane the two copies of the November draft. The deceased said to Jane that Mark was making some changes. When Jane asked why John was not the executor, the deceased replied that he was.

Immediately after this discussion, Jane and the deceased visited Dr Arunachalam, who said that the deceased was going to kill himself from excessive drinking. Later that day, Jane took the deceased to Box Hill Hospital, where he remained for six days. Janice deposed that, while he was in hospital, the deceased discussed the November draft together with Jane and herself, and that Jane said she was comfortable with the beneficiaries but unsure if Mark should be executor. Jane denies this conversation occurred.

In early December 2018, Jane and the deceased attended the National Australia Bank and the Box Hill Police Station together to complete and sign an enduring power of attorney appointing Jane as the deceased’s attorney.

On 6 December 2018, the deceased was admitted to the Melbourne Clinic for rehabilitation, where he remained for four weeks. Janice deposed that, during this time, the deceased told her that Jane had ‘got him to sign a document to make her Power of Attorney’.

On 14 December 2018, the deceased’s mother, Lynette, passed away. The deceased was in the Melbourne Clinic at the time.

On 28 December 2018, Jane and John attended a meeting at the Melbourne Clinic with the deceased and his medical team. During the meeting, the deceased asked Jane her thoughts on Mark preparing the November draft. Jane expressed her concern that she could be placed in a vulnerable position if Mark were executor.

On 7 January 2019, Jane deposes that the deceased said to her that he had thought about their conversation at the Melbourne Clinic, that he did not really want to make a will, and that the whole idea of the November draft prepared by Mark was becoming ‘really annoying’.

On 17 January 2019, the deceased drove to his parents’ house whilst intoxicated and collapsed in the gutter.

On 3 February 2019, the deceased attended the service for Lynette. Jane deposed that the deceased was distraught and from this point his drinking and mental health declined significantly.

On 4 February 2019, the deceased had a meeting with his addiction psychiatrist, Dr Sujeevan, after which he visited Jane. He admitted that he had been drinking again for around two and a half weeks in the lead up to Lynette’s funeral. He said he had not been taking his medication and that Dr Sujeevan explained to him that he would not know if his brain was working properly. According to Jane, the deceased said he thought this was already happening and asked if John and Jane were treating him like Lynette when she had delirium. He said that his memory had been fading for a while and he could not remember what he did the day before. He said that his memory was ‘not the same’, that he could not piece together what he had been doing, and it was ‘freaking [him] out’.

On 4 or 5 February 2019, the deceased returned to the Melbourne Clinic.

On 11 February 2019, the deceased and Jane met with Dr Sujeevan at the Melbourne Clinic. They discussed options for managing the deceased’s addiction and erratic behaviour. The deceased said that to protect himself he wanted Jane to hold his wallet, cash, bank cards and car, and he would send a text message to Jane every morning to confirm he was okay.

Given these events, Mark did not speak with the deceased about the November draft during this period. Janice spoke with the deceased about his will several times over the course of January and February 2019. She deposed that the deceased told her that John wanted to be executor and that the deceased did not know what to do. John denies ever telling the deceased that he wanted to be executor.

On 20 February 2019, Janice and Jane visited the deceased’s home together and found him intoxicated on the floor with a large graze and red bruise on his shoulder. The deceased refused to go to the hospital. Janice became distressed and made a comment about the deceased needing to sign a will. Jane heard the comment and said that it would not be a good time for him to sign the will.

Later that night, Jane sent a text message to Janice, saying:

My crack about him being unwell to do a Will was just a reaction. As such he was very clear at boxhill hospital that the 8 kids yours [and] mine are to receive equal shares if and when.

In cross-examination, Jane denied having had any conversation with the deceased regarding his will whilst he was in hospital, deposing that she sent the text to defuse the situation with Janice.

On 21 February 2019, Jane took the deceased to Box Hill Hospital, where he remained until 25 February 2019.

On 22 February 2019, Janice visited the deceased at Box Hill Hospital. She deposed that, during the course of their conversation, the deceased said that he had not signed the will because he was afraid to tell John that he would not be the executor. Janice suggested that perhaps he should, in fact, appoint John as executor. The deceased stated that he was unhappy with the manner in which John had administered Lynette’s estate. The deceased stated that, on the day he had left the Melbourne Clinic in January, John and Jane had taken him to a lawyer, where he was asked to sign a document paying over $5,000 from his inheritance to Jane’s partner, Stuart. He said he was not happy about that, but signed the document to ‘keep the peace’.

John and Jane deposed that the family agreed to make a gift from Lynette’s estate to Jane’s husband in recognition of their relationship. The gift totalled $2,350, of which the deceased ‘happily’ contributed $575. They depose that there were no lawyers involved and no documents were signed.

On the evening of 25 February 2019, the deceased told Janice that Jane had taken him home from Box Hill Hospital earlier that day. The deceased said that he had told Jane that he was going to sign the will, upon which Jane either told him that he should not sign, or should not sign if he did not understand it.

Early in the morning on 28 February 2019, the deceased sent an email to an employee at the NAB, saying:

I hereby give my authorisation to give my father, John Ray, any information about all my accounts that he needs to help him know my balances of all my accounts to help him paying them off for me.
I think he will come in early tomorrow, so I hope you’ve got this email first.

There had been some issues between Janice and the deceased following the incident on 20 February 2019. On 28 February 2019, Janice and the deceased exchanged text messages, including the deceased admitting that he had been lying to Janice ‘for the first time ever’ and that he needed to ‘fix that’.

Diana Angenent, a long-time friend of the deceased and wife of Peter, deposed that at some point in February 2019 she had a conversation with the deceased regarding his draft will. The conversation took place in the lounge room of the deceased’s home. The deceased told her that he had a draft will, saying word to the effect that he did not want John or Jane to get any of his assets. He said: ‘I want the kids who I love the most to get it.’ He also said that the three children of Janice and Mark were included and that he had a ‘much better relationship’ with them but that he felt he should not exclude Jane’s children.

On 1 March 2019, Jane and the deceased met with a liver transplant specialist, who said that if the deceased could avoid alcohol for six months then he could be placed on a liver transplant list. Following a telephone call with Janice on the way home, the deceased allegedly said to Jane that every time he spoke with Janice she would bring up the will and that this was annoying. He said that Janice and Mark had ‘heaps of money’.

On 3 March 2019, the deceased was sent home from the Melbourne Clinic as he was intoxicated upon arrival.

On 4 March 2019, Janice visited the deceased and again discussed his will. The deceased said that he would appoint his two long-standing friends, being the plaintiffs, and asked Janice to contact them. That evening, Peter and Michael confirmed to Janice that they would be happy to be executor for the deceased. Based on these discussions, Mark redrew the document to appoint the plaintiffs as executors (this is ‘the draft will’). No other changes were made. Mark provided a clean copy of the draft will to Janice for her to give to the deceased.

Diana also visited the deceased on 4 March 2019, in the early afternoon. At the time, he appeared to be ‘tired and perhaps hungover’.

Events following the will drafting

On 6 March 2019, the deceased was readmitted to Box Hill Hospital for about a week following heavy drinking.

On 12 March 2019, the deceased was discharged from Box Hill Hospital. The hospital notes record a conversation between Jane and hospital staff:

She has raised concerns about [the deceased] retuning home today. Concerned that he will just continue drinking when he is discharged … Advised her that [the deceased] is able to make his own decisions and we can not keep him here against his wishes unless there are concerns about his decision making or immediate concerns regarding risk to self. Whilst [the deceased] continues to make poor decisions, he appears to understand the risks of his decisions and the implications should he continue to drink alcohol.

Around a week after his call with Janice, Michael called the deceased and discussed the executorship. It is unclear, but this may have been whilst the deceased was in hospital. The deceased said that initially Mark was going to be appointed as executor, but that it would be better if it were Michael and Peter. Michael asked if he was ‘absolutely sure’ that it was what he wanted and the deceased confirmed, saying it was something he ‘needed to do’. Other than the executorship, they did not discuss the contents of the will.

Upon returning to his own home, the deceased said to Jane that he would not be spending his birthday at Janice’s house as, in Jane’s words, ‘he was sick of her talking about why he had to sign a will and he had no intention of doing anything to do with a will’.

During the week or so after the deceased’s discharge from Box Hill Hospital, Janice was ‘unsure whether he was drinking again, although on the telephone his words were sometimes slurred’.

On 14 March 2019, the deceased’s birthday, Peter spoke on the telephone with the deceased from around 9:30pm until around 6:30am the next morning. It was not unusual for them to have such lengthy telephone conversations, although Peter could not recall another time they had stayed awake so late talking. Diana joined the call from about 2:30am. At 5:15am, the deceased said he needed a toilet break. When Peter and Diana returned the call at around 5:30am, the deceased was slurring his words and did not respond as quickly. Peter and Diana believe that he had been drinking during the break between calls.

On 16 March 2019, Jane had a lengthy conversation with the deceased about his confusion. Jane deposed that the deceased said he was worried people were accusing him of drinking but he was sure he had not been drinking.

On 18 March 2019, Jane, Janice and Diana exchanged text messages regarding the deceased’s drinking and memory loss. In one message, Janice said to Jane:

Spoke to him this arvo. He’s pretty freaked he doesn't remember the events of Thurs Fri Sat. This sort of memory loss is one of the symptons [sic] of the cirrhosis.

In another text message, Jane said to Diana:

[The deceased] appears to be very confused about why [you, Peter and Janice] all think he has been drinking again as of Thursday. If I didn’t know better I would believe him? Just working out what to do to help him next have spoken to [Janice] this morning also. I just don’t want to accuse him of out and out lying as I remind myself his brain is also lying to him.

On 19 March 2019, the deceased attended the Melbourne Clinic, an addiction treatment clinic.

On 20 March 2019, Janice sent a text message to Jane, in which she said:

Dropped in to see [the deceased] and he looked ok. His tremors were pretty pronounced and he was looking yellow in the outside light. But he sounded good and made sense.

The same day, Diana spent time with the deceased, who did not appear to have been drinking.

On 21 March 2019, Dr Arunachalam provided the deceased with paperwork for two rehabilitation services. He also provided a referral letter for a gastroscopy.

On or around 21 March 2019, Jane had another discussion with the deceased about his will, during which she offered to take him to an independent lawyer and pay for it.

On 23 March 2019, Peter and Diana spoke with the deceased on the telephone for about half an hour, deposing that he seemed sober.

Alleged adoption of the draft will

On the afternoon of 27 March 2019, Janice visited the deceased and delivered him the draft will alongside an invitation to her 50^th birthday party. She deposed as follows:

I let myself into the house with my key. [The deceased] called out from his bedroom and told me to come in. He was in bed. There was no sign that he was intoxicated. I sat on the bed and gave him my party invitation. He appeared to be very excited to receive it. He asked me questions about what I had planned for my birthday celebration and said that he would have to get himself right so he could be there for the next big party at the Blacks’. I then gave [the deceased] the will which Mark had prepared and given to me some weeks earlier. He said that he was very relieved and thanked me. The light in the room was somewhat dim. [The deceased] took the will out of the envelope and asked me to turn on the light so he could read it. I turned on the light. [The deceased] then read the will. After he read the will, he asked me if [Peter] and [Michael] were comfortable with being the executors and I told him that they both said that they were honoured to be asked. [The deceased] started to cry and said that he was very lucky to have such wonderful friends. He asked me to witness his signature, but I said that perhaps that was not the best idea and that he should get someone independent to do that. He said he needed to go to the chemist the next day, so he would get the pharmacist to witness it. He put the will on his bedside table with the party invitation.
We then discussed other matters. …
In the course of my conversation with [the deceased] on 27 March 2019, he appeared to be alert and engaged. His eyes appeared to be clear, though his skin still had the yellow tinge that had been present for some time. He enunciated his words clearly and without hesitation. There was no sign of confusion or uncertainty. There was no sign of intoxication. When I left, [the deceased] had got out of bed and was sitting in his computer chair.

On the evening of 29 March 2019, Mark and Janice visited to check on the deceased and found him dead, lying in his bed.

On 30 March 2019, John and Jane attended the deceased’s home, where they noticed the envelope containing the draft will on the bedside table. Neither of them had seen the draft will before this.

Regarding the draft will, Janice deposed:

At some stage during the evening, I noted the envelope containing the Will on Charles’ bedside table. I remember picking it up and indicating to Mark that it was still there where he left it. I opened it and looked to see it Charlie had signed it and had it witnessed thinking it may give us an indication of when he had died.

Jane deposed that ‘on or around 3 April 2019’, she attended the deceased’s home and took the draft will and the envelope from his bedside table. She also took the marked up version of the November draft.

Janice deposed:

On 4 April 2019, I returned to Charles’ house to pick up memorabilia for his funeral service and noticed that the envelope containing the Will which I had given to Charles on the 27^th March 2019 was still on his bedside table. I took a photo of it.

On 21 May 2019, Jane and John made an application for a grant of letters of administration on intestacy. Despite the draft will being in Jane’s possession, no mention of it was made in the application.

Evidence of Dr Arunachalam and medical records

Dr Arunachalam provided a report dated 27 July 2019 as to the deceased’s mental state and decision-making abilities (‘the Arunachalam report’). In the report, Dr Arunachalam states:

(a) He was the deceased’s general practitioner since 1996.

(b) The deceased had ongoing problems with alcohol abuse and dependence for as long as he knew him.

(c) Since ceasing work in information technology in around May 2018, the deceased had multiple admissions to hospital for complications of alcohol abuse and detoxification.

(d) The deceased was diagnosed with hepatic encephalopathy on 1 November 2018. Hepatic encephalopathy is a brain disorder that develops in some individuals with liver disease. It is a complex disorder that encompasses a spectrum or continuum of disease that ranges from a subtle condition with no outward signs or symptoms to a severe form that can cause serious, life-threatening complications. Symptoms are related to progressive dysfunction of the brain and may include personality changes, intellectual impairment, impaired memory and loss of consciousness (coma).

(e) The deceased was commenced on treatment to reduce the impact of the condition on his functioning. He continued on this medication until his death.

(f) Hepatic encephalopathy is exacerbated by continued consumption of alcohol, as was the case with the deceased.

(g) At an admission to Box Hill Hospital on 22 February 2019, the principal diagnosis was mental and behavioural disorder due to alcohol abuse. The mental and behavioural disorder was almost certainly due to hepatic encephalopathy.

(h) Following the diagnosis of hepatic encephalopathy in November 2018, the deceased continued his heavy consumption of alcohol. This would certainly have had an impact on his mental state and therefore on his decision-making and his ability to see clearly the nature and consequence of his decisions.

On 16 October 2019, the solicitor for the defendant wrote to Dr Arunachalam, referring to the Arunachalam report and stating:

We are aware that you did not conduct a medical assessment of testamentary capacity at the relevant time and cannot comment with certainty on whether [the deceased] had, or did not have, testamentary capacity.
With that said, we should be pleased if you would advise by return letter whether, in your professional opinion, [the deceased] would have been able on 27 March 2019 to comprehend and make rational decisions in relation to the above matters and in particular whether he would have had testamentary capacity at that time. If we have your consent, we will exhibit your letter to an affidavit for you to swear or affirm.

On 29 October 2019, Dr Arunachalam responded that he had ‘nothing further to add’ to his report.

On 8 November 20019, the plaintiffs’ solicitor wrote to the defendant’s solicitor, advising of various issues arising from Arunachalam report, including that it did not comply with Order 44. The email advised that Dr Arunachalam should be available for cross examination. In due course, Dr Arunachalam’s affidavit was sworn, filed and served, and the defendant issued a subpoena.

On the afternoon of 26 November 2019, the day before the trial commenced, the defendant’s solicitor advised by letter that Dr Arunachalam had been released from the subpoena.

At trial, the plaintiffs sought to tender a bundle of 12 medical documents, including hospital records, which was opposed by the defendant. The defendant stated that, if the medical documents were admitted into evidence, then the defendant sought that the Dr Arunachalam’s evidence also be admitted. On 12 December 2019, the Court determined that the medical documents and the Dr Arunachalam’s evidence would be admitted into evidence.

Submissions
Plaintiffs’ submissions

The weight of the evidence establishes that, by November 2018, the deceased wished to make a will. There can be no doubt that the draft will expresses testamentary intentions; the question is whether the testamentary intentions expressed are truly those of the deceased.

Following the initial telephone conversation with Mark in November 2018, the identity of the executor was weighing heavily on the mind of the deceased. The deceased had a desire to consult with Jane on the terms of the will and, in turn, Jane had strong views about the executorship, which she expressed to the deceased in blunt terms. It was the deceased who initiated the suggestion of the plaintiffs being appointed executors. The deceased decided on this course and later affirmed his view directly with both Michael and Janice.

The deceased’s instructions to Mark regarding the residuary beneficiaries were clear and unambiguous. He later expressed the same wishes to Janice, Jane and Diana on separate occasions. It is unsurprising that the deceased would have wanted to dispose of his estate as in the draft will, given he was unmarried and childless. John and Jane’s evidence that the deceased wished to die intestate ignores the multiple discussions Jane had with the deceased regarding his will, and the fact that it was expected the deceased would outlive John, who was his sole beneficiary on intestacy.

The sole reason that the deceased did not sign the November draft was because he was dissatisfied with the identity of the executor, which had been a roadblock to its execution throughout December 2018 and January and February 2019. The nomination of the plaintiffs as executors removed that roadblock. When the November draft was redrawn as the draft will, that was the only amendment made.

Upon being delivered the draft will in late March 2019, the deceased was moved to tears upon hearing that the plaintiffs were honoured to be appointed executors. This is unsurprising, given the deceased had been deliberating on the will for some months, had recently been told his own life was at grave risk, had cause to consider his own mortality following the recent loss of multiple family members, and was undertaking the solemn act of making a will. The deceased immediately asked Janice to witness his signature, thereby unambiguously and unequivocally adopting the will as his own. That the deceased did not sign the will at that time was due only to the absence of suitable witnesses.

The plaintiffs witnesses were unshaken on any matter of substance in cross-examination. On the contrary, the Court should not accept the evidence of Jane on any matter in contest, unless corroborated, as she was generally aggressive, hostile, combative and reluctant to answer questions directly.

On the question of testamentary capacity, the lay evidence points to a man who, despite significant health problems and a destructive addiction to alcohol, was well capable of rational thought, careful deliberation and clear expression. Peter and Diana’s evidence of their lengthy telephone conversation with the deceased in mid-March 2019 shows that the friends of the deceased were able to distinguish when the deceased was impaired by alcohol and when he was not. On the day he adopted the draft will, he was alert, engaged and clear-eyed; there was no sign of intoxication. The deceased was acutely aware of his financial circumstances, and the dispositions in the draft will are rational and respond appropriately to his circumstances.

Regarding the medical evidence, there is not a single reference to cognitive impairment or confusion in the clinical progress notes or Glen Iris Private medical history. Given this, Dr Arunachalam’s references to such impairment in his letter of 27 July 2019 require careful scrutiny. The hospital notes provide no sufficient basis for Dr Arunachalam to conclude that a diagnoses of encephalopathy had in fact been made. Further, the defendant’s late release of Dr Arunachalam from the subpoena to give evidence should cause the Court to make a Jones v Dunkel inference that, had he been available for cross-examination, his evidence would not have assisted the defendant’s case.

Jane’s evidence is that on several occasions she impressed on the deceased that he could obtain independent legal advice and that she was prepared to facilitate such a consultation. The deceased chose not to do so because he was content with the terms of the November draft, save for the identity of the executor. Upon resolution of that single issue, the deceased was entirely content with the draft will.

Defendant’s submissions

The deceased had been unable to return to work since November 2017. Janice was applying for a disability support pension for him on the basis that he could not work. He had become more socially withdrawn, including giving up weekly visits to the Black household for dinner. By 4 March 2019, Janice described the deceased as ‘hibernating’.

The deceased was receiving assistance with paperwork from late 2018 until his death. In addition to Janice’s assistance regarding the disability pension, the deceased gave John full authorisation in relation to his NAB accounts, and he appointed Jane as his attorney under power of attorney.

The deceased was clearly a vulnerable person from at least 2018 onwards. He was a chronic alcoholic with numerous medical issues, including end stage liver disease, depression and anxiety. He had numerous admissions to hospital, detoxification centres and rehabilitation centres for his alcoholism. He had been emotionally affected by the illnesses of his mother (Lynette), his brother-in-law (Stuart) and aunt, and the subsequent death of his mother. He was reliant on others to assist him with his finances and household tasks. He was having difficulty with mobility and was receiving significant support through the medical system.

The deceased was averse to conflict, his father describing him as a ‘yes man’ who would rather agree than get into an argument or discussion. He was a peacemaker. It is likely that the deceased only said that he would sign the draft will in order to please Janice. It is also possible that he said this to give himself some peace.

Mark gave vague and conclusionary evidence of the deceased’s capacity on the date he took instructions from the deceased for his will. There is no evidence that he tested the deceased on his ability to weigh up different claims on his estate. He approached the task with an utter lack of objectivity and was unable to recognise that it was appropriate in the circumstances to obtain a medical certificate.

The deceased was reluctant to sign the draft will, much as he had been reluctant to sign the November draft the year before. Regarding John’s wishes to be executor, the deceased was either confused or was providing an excuse not to sign the November draft. Had he had real concerns about John’s dealing with finances, the deceased would not have authorised John to access his NAB accounts.

According to the discharge summary from Box Hill Hospital, the deceased was intoxicated on the day that Janice took instructions from him to amend the draft will. The records further indicate that he was drinking a bottle of bourbon and a bottle of wine on a daily basis at that time. Without speaking to the deceased or assessing his capacity, Mark proceeded to amend the draft will on Janice’s instructions.

When the deceased asked Janice to sign the amended draft will, he either had not understood or read it properly, or he knew it could not be signed then and there and had no intention of signing it. Further, he never completed the aforementioned ‘Distribution List’. In all the circumstances, the evidence is insufficient to satisfy the Court that the deceased intended the draft will to stand as his will without more.

The plaintiffs’ case relies on the Court accepting that, for many years, the deceased engaged in severe drinking bouts, during which time, his cognition was compromised, but that his sober mind was unaffected from the years of alcohol abuse that ultimately took his life. Compelling evidence of testamentary capacity is required to affirmatively prove capacity in the face of the chronology of events and the medical evidence, in particular, Dr Arunachalam’s evidence indicating that the deceased lacked capacity. It is insufficient to demonstrate that the deceased was able to engage in simple conversations.

Neither the evidence of Dr Arunachalam nor the medical records support the plaintiffs’ submission that the deceased retained testamentary capacity either during or between drinking bouts. Dr Arunachalam was an obvious witness for the plaintiffs to call, but they never approached him and his evidence only came before the Court because the defendant obtained a report from him. The Court should draw a Jones v Dunkel inference for the plaintiffs’ failure to call any expert medical witnesses.

There are suspicious circumstances surrounding the involvement of Mark and Janice in the making of the draft will, meaning that the Court cannot be satisfied that the deceased knew and approved of its contents. The deceased was a vulnerable person who needed an independent advisor to make a will if he retained testamentary capacity.

Applicable principles

Section 9 of the Wills Act 1997 empowers the Court to dispense with the requirements for execution that are set out in s 7 of that Act. It is a remedial provision, and consequently should be given a broad construction. Care must be taken, however, to ensure that the statutory formalities for execution are not unduly relegated in importance.[2]
[2]Re Estate of Brock [2007] VSC 415, [20] (Hollingworth J).

Three criteria must be established for the Court to admit a document to probate in accordance with s 9:

(a) there must be a ‘document’;

(b) the document must express or record the testamentary intentions of the deceased; and

(c) the document must have been intended by the deceased, without any alterations, to be her or his last will.[3]

[3]Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Equity Trustees Ltd v Levin [2004] VSC 203, [14] (Whelan J); Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Re Besanko [2020] VSC 170, [30] (McMillan J).

As to the third element, the relevant intention can be proven to exist either at the time of the subject document being brought into being, or at some later time.[4] The greater the departure from the formal requirements, the more difficult it is for the Court to be satisfied as to the second and third elements.[5] The Court may have regard to any evidence relating to the manner in which the document was executed and any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased.[6]
[4]Hatsatouris v Hatsatouris [2001] NSWCA 408, [59] (Powell JA, Priestley and Stein JJA agreeing).
[5]Re Estate of Graham (deceased) (1978) 20 SASR 198, 205 (Jacobs J).
[6]Wills Act 1997 (Vic) s 9(3).

An informal will does not benefit from the same rebuttable presumptions that apply to duly executed wills.[7] As such, the onus is on the propounder to satisfy the Court on the balance of probabilities that the deceased had testamentary capacity and knew and approved of the contents of the informal will.[8]

Testamentary capacity

[7]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.

[8]Ibid. See also Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107, [18]–[24] (Lindsay J).

The Court must be satisfied that the deceased:

(a) understood the nature and effect of making his will;

(b) was aware of the general nature and value of his estate;

(c) was aware of those who have a natural claim on his estate; and

(d) was able to evaluate and discriminate between such claims.[9]

[9]Banks v Goodfellow (1870) LR 5 QB 549, 567 (Cockburn CJ).

The inquiry is directed toward the deceased’s capacity to understand rather than actual understanding.[10] Further, it is not necessary to show that the deceased understood each and every clause with the ‘eye of a lawyer’.[11]
[10]Hoff v Atherton [2004] EWCA Civ 1554, [34] (Lord Gibson LJ, Lord Chadwick LJ and Lindsay J agreeing); Martyn et al, Theobald on Wills (London Sweet & Maxwell, 18^th ed, 2016) 3-002.
[11]Banks v Goodfellow (n 9) 567.

As to the estate, the deceased is only required to have a general knowledge of the state of her or his property and of what it consists.[12] Capacity is not a test of memory, rather, a test of disposition; it is the soundness of the testator’s ability to dispose that concerns the Court.[13] At times, however, a finding of lack of capacity may result if the deceased was mistaken or uncertain as to substantial assets.[14]
[12]Frizzo v Frizzo [2011] QCA 308, [66]–[68] (Muir JA, Margaret McMurdo P and White JA agreeing).
[13]Brown v Guss [2014] VSC 251, [345] (McMillan J).
[14]Re Prien [2019] VSC 47, [47] (McMillan J), citing Wood v Smith [1993] Ch 90.

In Worth v Clasohm, the High Court stated emphatically that the propounder is not required to prove capacity beyond a reasonable doubt:

The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.[15]

[15](1952) 86 CLR 439, 453 (Dixon CJ, Webb & Kitto JJ).

Lastly, it does not follow that a heavy drinker necessarily lacks testamentary capacity. In Forde v Lee, it was found in relation to an informal will application concerning an alcoholic:

It is reasonable to assume that he was a heavy drinker in 1996. It does not follow that a person who is a heavy drinker lacks testamentary capacity.
Assuming that there were many occasions when he was affected by alcohol, there is no evidence that he was affected by alcohol at the time the Will … was drafted or the time that it was executed. The evidence is to the contrary; that is, the evidence establishes that he was sober at each time.[16]

Knowledge and approval — suspicious circumstances

[16][2013] WASC 328, [157]–[158] (McKechnie J).

Counsel for the defendant directed the Court to several authorities regarding the effect of a finding of ‘suspicious circumstances’ surrounding the preparation or execution of a will. These authorities all concern proceedings where the will was duly executed but there was concern as to validity due to an alleged lack of knowledge and approval. In one such case, Robertson v Smith, the principle was conveniently stated as follows:

The essential feature of the principle, where it applies, is to cast the ultimate burden on the propounder to establish knowledge and approval of the will by doing more than merely establishing that the testator executed it in the presence of witnesses after it had been read to or by him.[17]

[17][1998] 4 VR 165, 174 (Tadgell JA, Phillips and Kenny JJA concurring).

In Veall v Veall, it was stated that ‘knowing and approving’ of the contents of one’s will is traditional language for saying that the will ‘represented one’s testamentary intentions’.[18] This is a necessary avenue of enquiry in validity cases, where testamentary intention is otherwise assumed from a duly executed will. It is unnecessary, however, to separately undertake this enquiry in an informal will proceeding, where the plaintiff is already required to prove testamentary intention.
[18](2015) 46 VR 123, 175 [173] (Santamaria JA), quoting Gill v Woodall [2011] Ch 380, 387 [14] (Lord Neuberger of Abbotsbury MR), quoting Fuller v Strum [2002] 1 WLR 1097, 1116 [59] (Chadwick LJ). See also Greaves v Stolkin [2013] EWCA 1140, [67]–[73] (Newey J); Tobin v Ezekiel [2011] NSWSC 81, [100]–[101] (Brereton J).

Did the deceased have testamentary capacity?

There is no doubt that the deceased suffered from severe alcoholism, a condition which ultimately led to his premature death. It is the plaintiff’s case that, notwithstanding his manifest health problems and destructive addiction, the deceased was well capable of rational thought, careful deliberation and clear expression at the time of his death. The defendant’s case is that the plaintiff has failed to prove that the deceased retained testamentary capacity.

Given the plaintiffs submit that the deceased adopted the draft will on 27 March 2019, that is the only relevant time for determining whether he retained testamentary capacity. The parties made submissions relating to capacity evidence at certain significant points in time — for example, when instructions were taken for the November draft and the discussion that led to the amendments for the draft will — but that evidence is relevant only insofar as it relates to the deceased’s capacity at the alleged time of adoption on 27 March 2019.

Lack of medical expert at trial

The plaintiffs did not call any expert to give evidence as to the capacity of the deceased. This is highly unusual, given the deceased’s history of health problems and addiction, and the serious question as to his testamentary capacity. However, the obvious candidate for medical expert evidence was Dr Arunachalam, the deceased’s treating doctor of 23 years, who had been subpoenaed by the defendant to give evidence but released from that subpoena the day before the trial. Up to that point, the plaintiffs were entitled to proceed on the basis that Dr Arunachalam would be giving evidence and would be available for cross-examination. At that stage, they submit, it was too late to make alternative arrangements.

The defendant submits that the plaintiffs could have contacted Dr Arunachalam to give evidence at trial, and could have sought an adjournment to ensure his availability, if need be. The defendant submits the reason for releasing the subpoena was to unburden the defendant of the cost of calling the doctor.

In the circumstances, the parties’ explanations for the lack of medical expert at the trial are reasonable. No Jones v Dunkel inference is drawn on either side. The Court will attribute the appropriate weight to the available evidence in determining whether the plaintiff has established that the deceased retained testamentary capacity.

The Arunachalam report

The Arunachalam report is dated 27 July 2019 and addressed ‘to whom it may concern’. It was produced upon the oral request of Jane and the defendant that, in the words of Dr Arunachalam, ‘I provide a letter giving my professional opinion on [the deceased’s] brain function and decision making ability since November 2018 and in the period immediately before [the deceased’s] death’. In his affidavit sworn 19 November 2019, he deposed to still holding the same view as in his report.

The most relevant parts of the Arunachalam report state that:

(a) The deceased was diagnosed with hepatic encephalopathy at the Maroondah Hospital on 1 November 2018.

(b) At an admission to Box Hill Hospital on 22 February 2019, the principal diagnosis was mental and behavioural disorder due to alcohol abuse. The mental and behavioural disorder was almost certainly due to hepatic encephalopathy.

(c) The deceased’s continued heavy consumption of alcohol would certainly have had an impact on his mental state and therefore on his decision-making and his ability to see clearly the nature and consequence of his decisions.

Some discrepancies are revealed when comparing Dr Arunachalam’s report to his own clinical notes, a referral letter he wrote, and the medical documents produced by the plaintiffs:

(a) The 31 pages of clinical progress notes extend from 1999 to after the deceased’s death. They appear to record consultations the deceased had with several doctors in Balwyn Doctors clinic. Despite making frequent reference to alcohol abuse and observations of alcohol-related symptoms, including tremor and jaundice, the clinical notes do not contain a single reference to confusion, memory loss, cognitive impairment or similar.

(b) The referral letter dated 21 March 2019 from Dr Arunachalam to Glen Iris Private contains a short medical history, which contains no reference to confusion, memory loss, cognitive impairment or similar.

(c) It is clear from the report that Dr Arunachalam did not make the diagnosis himself from his own observations or examination, but rather is relying on a diagnosis made at Maroondah Hospital. The Maroondah Hospital records dated 1 November 2018, the day the deceased is said to have been diagnosed with hepatic encephalopathy, do not appear to make an unambiguous diagnosis. The initial patient assessment refers to the primary reason for admission being ‘encephalopathy’. There is a further reference to encephalopathy in an emergency department summary addressed to Dr Arunachalam and dated 1 November 2018. However, the discharge summary dated 8 November 2018 states, under the heading ‘Inpatient progress’, the words ‘Jaundice, no encephalopathy’.

(d) The admission on 21 February 2019 followed the deceased’s fall at home the previous day. The principal diagnosis was: ‘Mental and behavioural disorder due to alcohol abuse with withdrawal state’. Further on, the discharge summary notes the words ‘No confusion’. Nowhere in that discharge summary does it refer to ‘encephalopathy’.

The Court draws two conclusions from the above. First, given the apparent discrepancy between the hospital records and the diagnosis noted in the Arunachalam report, it is not possible to conclude, absent any oral evidence or supporting documentation from Dr Arunachalam, that the deceased was suffering from hepatic encephalopathy. It is possible, for example, that there was a suspicion the deceased was suffering from the disorder upon his initial assessment at hospital on 1 November 2018, but was later determined not to be suffering from it.

Secondly, even if the deceased was suffering from hepatic encephalopathy, the medical evidence in its entirety does not indicate that the deceased was suffering from any resulting decline in cognitive ability. It is not known what is meant by the words ‘mental and behavioural disorder’, which, on their face, could have a wide range of meanings. The Arunachalam report defines hepatic encephalopathy as encompassing a spectrum or continuum of disease that ranges from a subtle condition with no outward signs or symptoms to a severe form with serious and life-threatening complications. The plaintiffs did not take issue with this definition. Given the wide definition, and the remarkable absence of reference to cognitive impairment in his clinical notes, it is unclear why Dr Arunachalam could say that the mental and behavioural disorder ‘was almost certainly due to hepatic encephalopathy’.

Whilst the overall burden of proving testamentary capacity falls on the plaintiffs, it was incumbent on the defendant to produce satisfactory evidence of the allegations he intended to make regarding the deceased’s health. Merely raising a doubt is not sufficient. In that regard, it was not of assistance to the Court that the deceased’s general practitioner, and author of the report upon which the defendant relied, was not made available for cross-examination. Whilst no Jones v Dunkel inference is made, Dr Arunachalam’s absence from the trial greatly diminishes the weight attributable to his report.

Hospital records and other medical documents

The hospital records and other medical documents tendered by the plaintiffs proved somewhat useful for analysis alongside the Arunachalam report, as they give further information for events and issues identified by Dr Arunachalam. In isolation, however, the plaintiffs’ medical documents offer very little on the question of whether the deceased had testamentary capacity.

The plaintiffs seek to rely, inter alia, on answers to pro forma questions in hospitals and clinics, and the deceased’s scores on various medical scales, without any evidence as to the surrounding circumstances or context in which these examinations were made.

In turn, the defendant pointed to a number of notes in the records in support of his own case. By way of example, this included a discharge summary following a brain scan on 27 November 2018, where it is noted: ‘48-year-old male confused alcoholic deranged INR recent head strike?’. Whilst several of these words raise a concern, their meaning in this context is entirely unclear — for example, whether the word ‘deranged’ takes on its lay meaning for the deceased’s mental state, or whether it relates to the ‘INR’. There is also noted to be a ‘degree of diffuse cerebral atrophy’. Absent explanation from a medical expert, these words do nothing more than raise a mere doubt.

As the defendant submits, the medical records also contain inconsistencies and unexplained entries that underscore the difficulty of relying on hearsay documents completed by unknown authors who are not available for cross-examination. The medical evidence does not indicate one way or another whether the deceased retained testamentary capacity on 27 March 2019.

Credit issues

Before turning to the lay evidence of testamentary capacity, it is necessary to make some observations about the credit of the respective witnesses.

All witnesses were subjected to vigorous cross-examination, but particularly Mark, Janice and Jane. In general, Mark and Janice responded to questions directly and in a straightforward manner. At one stage, Mark admitted that, in hindsight, he would have done things differently in relation to the preparation of the deceased’s will. This was an appropriate concession, given that Mark’s experience as a barrister should have caused him to advise the deceased to obtain independent advice. During his evidence, the defendant said of Janice: ‘I don’t believe [she] would be telling lies.’ The Court considers their evidence to be reliable and truthful.

On the other hand, Jane was often combative and reluctant to answer questions directly. At times, she was emotional and was given the opportunity to take a break, however this does not excuse her evasive responses to several questions. Of particular concern was her evidence in relation to the text message sent to Janice on 20 February 2019. It was put to Jane that the text message referenced a conversation between Jane, Janice and the deceased at Box Hill Hospital in November 2018. The text message clearly evidences that the deceased spoke to Jane and Janice about his will and confirmed that he wanted the eight children to take his estate. In her affidavit, Jane deposed that she sent the text message ‘in an effort to patch things up with Janice’. In cross-examination, she went further and denied that the text message meant what it said and that the conversation did not occur. Her explanation was convoluted and implausible. The issue was not addressed in the defendant’s closing submissions other than one sentence repeating the words in Jane’s affidavit. As a result, the Court does not accept Jane’s evidence on any matter in contest unless that evidence is corroborated.

Lay evidence

The plaintiffs rely on evidence of conversations between the deceased and the witnesses called by the plaintiffs in the months leading up to his death. In general, those witnesses deposed that the deceased was engaged, lucid, rational and coherent in conversation when he was not intoxicated, but that he showed signs of intoxication when he had been drinking — primarily, that he slurred his words. Mark deposed that the deceased was lucid and rational when giving instructions in November 2018 and, although he suffered ‘some decline’ in his abilities from 2018 onwards, Mark had ‘no concerns’ about his ability to understand.

Diana deposed that the deceased spoke more slowly after drinking. Otherwise, he spoke clearly and coherently, did not get confused, and was engaged in whatever topic they were discussing. Peter made similar observations. Their conversation with the deceased on 14 March 2019 indicates a distinct difference in the deceased’s manner between his sober and intoxicated states. Michael described the deceased’s manner during their conversation regarding the executorship in mid-March 2019 as ‘perfectly lucid’.

Janice deposed that, by early 2019, the deceased’s health situation was ‘extremely serious’ and that he had been diagnosed with End-stage Liver Disease. Nevertheless, she stated:

[S]ave when he was intoxicated, he expressed himself clearly and I had no concerns about his cognition. In the course of his hospital admissions and medical appointments, he asked questions of the doctors in a direct manner which suggested that he understood his situation and he often recited his various test results to me.

The plaintiff also points to the following:

(a) In December 2018, the deceased executed a power of attorney at a police station, appointing Jane as his attorney. Whilst Jane, in cross-examination, indicated that the deceased may not have understood the document, she should not be believed on this point.

(b) On 28 February 2019, the deceased wrote a ‘considered email’ to NAB authorising his father to operate his accounts on his behalf.

In her affidavit, Jane deposed to conversations with the deceased on 21 and 22 March 2019, only a week before he died, but made no reference to the deceased being confused or suffering from memory loss. In cross-examination, she stated that the deceased was ‘confused since November’, and that she did not depose to that in her affidavit for each conversation. Equally, Jane deposed to several conversations with the deceased about his will. It was put to her in cross-examination that the deceased was ‘thoughtful’ during these conversations, to which she responded that he was ‘drunk’, but agreeing that she had not put that in her affidavit.

The deceased and the defendant would answer questions to a television game show whilst on the telephone with each other. The defendant deposed that, in the last 12 months of the deceased’s life, he noticed that the deceased’s suggested answers to the questions were less coherent. This was the only example given by the defendant of the deceased’s impaired cognitive ability.

The defendant emphasised the deceased’s inability to return to work after November 2017 as an indication of his lack of capacity. It appears that this was initially due to complications flowing from the deceased’s gastric bypass surgery and later due, at least partly, to the deceased’s drinking problem. It is certainly not conceivable that the deceased could have attended a workplace during the final few months of his life due to the severity of his illness. It is not at all clear on the evidence whether this indicates the deceased was cognitively incapable of working, or whether the physical symptoms of his illnesses were the preventative factor, including that he was wearing adult diapers.

Mark deposed that the deceased’s weekly visits to his and Janice’s house became rare and had ceased altogether by November 2018. Diana deposed similarly regarding the deceased’s visits to her and Peter’s house. The defendant submits this forms part of a pattern of behaviour indicating that he had become socially withdrawn from around February 2018. By March 2019, Janice described the deceased as ‘hibernating’.

There are four points of reference for the deceased’s presentation on 21 March 2019, which is six days before the alleged date of adoption:

(a) Peter visited the deceased and saw him as he was leaving for the doctor. They greeted each other, Peter noting that the deceased’s eyes were clear and that he spoke without hesitation.

(b) There is a clinical record of the deceased’s attendance on Dr Arunachalam in which there is no record of confusion or cognitive impairment of any kind.

(c) Jane attended on Dr Arunachalam with the deceased. Her account of the attendance does not suggest confusion or cognitive impairment of any kind. The deceased was provided with information on alternative rehabilitation options, including Odyssey House.

(d) That evening, Janice exchanged a series of text messages with the deceased where they discussed treatment and rehabilitation, during which the deceased was articulate and responsive.

Janice’s evidence was that, on 27 March 2019, the deceased was alert, engaged and clear-eyed, though his skin still had a yellowish tinge. She deposed that he spoke clearly, without hesitation and with no sign of confusion or uncertainty. She states that there was no sign of intoxication. Janice was not challenged on this account in cross-examination.

Upon reading the will, the deceased identified the single change from the previous draft, being the identity of the executor and asked whether Michael and Peter were comfortable with being appointed. The plaintiffs submit that this suggests an appropriate level of comprehension and awareness. The defendant noted that this suggests forgetfulness on the part of the deceased, as Michael had already confirmed to him on the telephone that he was happy to be appointed executor. This is not a strong inference. It is possible that the deceased had not recalled the conversation, which is notable, but not surprising, given the conversation with Michael on the topic was short and occurred some two weeks earlier. It seems more likely, however, that the deceased did recall the conversation and nevertheless wished to know if Michael had confirmed his agreement separately to Janice. In addition, the evidence is that he asked if the plaintiffs were ‘comfortable’ with being executors, which is not inherently inconsistent with Michael being asked if he was ‘happy’ to accept the role. As the plaintiffs submitted, the question went to whether they were content to take on the burden, rather than merely prepared to do so.

Conclusion on testamentary capacity

The evidence demonstrates a clear decline in the deceased’s health from as early as November 2017, when he undertook gastric bypass surgery. From May 2018, he had numerous visits to hospitals and rehabilitation centres for treatment of his health issues and addiction. It is apparent that the deceased’s hopes regarding a new life, following surgery to address his obesity, were not realised and, coupled with his mother’s illness and death, lead to an exacerbation of a pre-existing addiction to alcohol. Evidence of the deceased’s social isolation and failure to return to work were a result of his condition. The plaintiffs allege that the deceased adopted the will on 27 March 2019, two days before he was found dead at home, having succumbed to illnesses directly related to his alcoholism.

Nevertheless, there is a remarkable consistency in the evidence given by the plaintiffs’ witnesses as to the deceased’s lucidity during his sober moments, up to and including in March 2019. The evidence of Peter and Diana’s lengthy telephone conversation with the deceased on 14 March 2019 supports the plaintiffs’ case that there was a stark difference between the deceased’s sober and intoxicated dispositions. It is noted that although Peter is a plaintiff, neither he nor Diana benefit under the draft will. The text messages between Janice and the deceased on 21 March 2019 also provide strong corroboration for the plaintiffs’ case.

In closing submissions, the defendant did not focus on the particular requirements of the Banks v Goodfellow test, but rather directed the Court to alleged defects in the deceased’s cognition which may have prevented him from having the requisite capacity. However, the defendant could point to only a few instances of alleged confusion or cognitive decline on the part of the deceased, and some of those were inferential or contested. Jane was an unreliable witness and her statement that the deceased was ‘confused since November [2018]’ is not borne out by the evidence.

On the day in question, the uncontested evidence is that the deceased was alert and engaged and without any sign of intoxication. He spoke with Janice, a close friend, about the draft will, of which he read each page. Upon confirming that his friends agreed to be executors, he cried, as is understandable in the circumstances. In terms of capacity, nothing should be read into the deceased’s request of Janice to witness the will. He had little experience in will-making and may not have been aware of the requirement that the two witnesses be present together.

Turning to the requirements of the Banks v Goodfellow test, the Court is satisfied that:

(a) The deceased understood the nature and effect of making a will. He had numerous conversations regarding the effect of a will and its acting as an alternative to the operation of the intestacy provisions. These conversations occurred with witnesses from both sides.

(b) The deceased was aware of the general nature and value of his estate, which consisted primarily of his home. The deceased’s assets were straightforward — he was certainly aware that he owned his home and that it was mortgaged. The defendant raised queries about the deceased’s knowledge of his superannuation entitlements. It is unclear whether these formed a part of his estate at the time of his death, but regardless, the issue is not determinative.

(c) The deceased was aware of those with a natural claim on his estate. For example, he appears to have been aware of the operation of the intestacy provisions as they would relate to his estate.

(d) The deceased was able to evaluate and discriminate between those claims. For example, given Stuart’s diagnosis, the deceased felt a moral obligation to make provision for Jane and Stuart’s children. Equally, due to his lengthy involvement in the lives of Janice and Mark’s children, he wished to make provision for them. Likewise, even the defendant conceded that both he and the deceased expected the deceased to outlive the defendant.

The Court is satisfied that deceased had testamentary capacity at the time he allegedly adopted the draft will on 27 March 2019.

Does the draft will express or record the testamentary intentions of the deceased?

There is no doubt that the draft will expresses testamentary intentions. The question is whether those were the testamentary intentions of the deceased.

The deceased’s numerous conversations with Mark, Janice and Jane, as well as his discussions with Diana, Peter and Michael, establish that, by November 2018, he wished to make a will and hence gave his instructions to Mark. Jane’s repeated and persistent evidence that the deceased remained uninterested in making a will and wished for his estate to pass on intestacy is inconsistent with the text message she received on 16 November 2018 and subsequent conversations. Her evidence on this point is rejected.

Regarding the deceased’s intentions as to beneficiaries:

(a) The deceased’s instructions to Mark on 13 November 2018 were clear and unambiguous.

(b) Shortly thereafter, the deceased said separately to Janice that he wanted the estate to go to the eight children.

(c) On 16 November 2018, the deceased asked Jane if he could leave his estate to her children and whether she would mind if he did so.

(d) The deceased again discussed his will with Janice and Jane while in Box Hill Hospital in late November 2018. Jane’s text on 20 February 2019 confirms her understanding of this conversation, that the eight children were to benefit equally.

(e) Diana deposed that, in early 2019, the deceased told her that he had a draft will and that he did not want John or Jane to be beneficiaries. He then said to her: ‘I want the kids who I love the most to get it.’ He specifically stated that Janice and Mark’s children were included and that he felt he should not exclude Jane’s children. This evidence was not challenged in cross-examination.

(f) The deceased was a single man without children. It is rational that he would have wanted his estate to pass to the next generation of family and close friends.

(g) Following Stuart’s diagnosis of terminal cancer in June 2017, the deceased considered it his responsibility to provide for Jane’s children. He suggested to Jane that, upon Stuart’s passing, she and her children build a house on his block in the hope that he would play a fatherly role in the children’s lives. Providing for one’s children in a will is an equally fatherly act.

(h) As stated, the deceased and the defendant both expected that the deceased would outlive the defendant. In those circumstances, it makes sense for his testamentary dispositions to omit the defendant and pass directly to the next generation.

Regarding the deceased’s intentions as to executor:

(a) Mark explained the role of executor to the deceased on 13 November 2018, telling the deceased that it was an honorary position and that he could choose whomever he liked, but that it was usually a family member or close friend. The deceased said that John would probably want to be executor but that he did not want that to happen. The deceased asked if Mark would be executor. Mark said that he could and suggested that John be alternate executor.

(b) The text to Jane on 16 November 2018 suggests that the deceased was considering these will terms and wanted to discuss them with Jane.

(c) On 26 November 2018, Janice delivered the clean and annotated November draft to the deceased, who said that he intended to discuss the matter with John and Jane. The deceased reiterated that he did not want his father to be executor. Janice was not cross-examined on this conversation.

(d) Subsequent discussions with Jane disclose that the identity of executor was weighing on the mind of the deceased. Jane endeavoured to dissuade him from having Mark as executor, as it would leave her ‘in a vulnerable position’ while Mark would be ‘in a powerful position over [her] children’s money’.

(e) In late November 2018, the deceased discussed the November draft with Jane and Janice at Box Hill Hospital. This is the conversation that Jane denies. On Janice’s evidence, which is preferred, Jane confirmed that she agreed on the identity of the beneficiaries, but was unsure as to whether Mark should be appointed executor.

(f) In early 2019, at the Melbourne Clinic, the deceased told Janice that John wanted to be executor but he did not know what to do.

(g) On 4 March 2019, the deceased told Janice that he had decided to appoint the plaintiffs as joint executors. His reasons were that neither of them had a vested interest in the outcome and he knew that they would both execute his will in accordance with his wishes. The deceased asked Janice to contact the plaintiffs and apologise to Mark.

(h) Janice spoke to both of the plaintiffs, who agreed to accept the executorship.

(i) The deceased also personally spoke to Michael, who confirmed that he would act as executor. The deceased said that it was ‘something he needed to do’ and confirmed that it was what he wanted.

(j) On 27 March 2019, when Janice delivered the draft will to the deceased, he reiterated his gratitude to the plaintiffs for accepting the position of executor.

The defendant submits that the deceased’s testamentary intentions fluctuated over time:

At first he did not want to make a will. He then considered making a will. His wishes as to any will changed. In the end, on 12 March 2019, [the deceased] told Jane that he was sick of Janice talking about why he had to sign a will and had no intention of doing go. Janice then appeared on his doorstop with [the draft will] in hand on 27 March 2019.

Contrary to this submission, it is clear that the deceased did far more than consider making a will. This is borne out in the evidence of conversations with his friends and family, including confirmation from both the plaintiffs that they would accept the role of executor. The draft will brought to the deceased on 27 March 2019 was the product of several months of consideration and discussion culminating in a settled intent.

The Court is satisfied that the draft will represents the testamentary intentions of the deceased.

Did the deceased intend the draft will to be his will?

The only remaining question is whether the deceased intended the draft will, being the specific document found on his bedside table, to be his will. In this regard, the plaintiff relies on the ‘unequivocal’ act of adoption on 27 March 2019, when the deceased asked if Janice would witness his signature. Importantly, it was not put to Janice in cross-examination that her conversation with the deceased, as deposed to in her affidavit, was inaccurate.

Janice deposed as follows:

[The deceased] asked me to witness his signature, but I said that perhaps that was not the best idea and that he should get someone independent to do that. He said he needed to go to the chemist the next day, so he would get the pharmacist to witness it. He put the will on his bedside table with the party invitation.

The issue of the identity of his executors having been resolved, and that being the only change between the November draft and the draft will, the plaintiff read the draft will and confirmed his intention. This is not a case where intention must be inferred from an equivocal gesture or statement. In expressing his wish to execute the document there and then, the deceased unambiguously adopted the will as his own. The only reason he did not sign the will at that moment was due to the absence of suitable witnesses. The deceased died within the next 48 hours, without talking to any other person.

The defendant submits that the deceased had an aversion to conflict, which is likely to have led the deceased to say he would sign the draft will to please Janice. General evidence of this nature does not carry much weight. As the defendant admitted in cross-examination, the deceased could be determined when he wanted to be. It is highly unlikely that the deceased would have asked Janice to witness his signature only in the knowledge that she would not accept. The far more likely explanation is that he wished to sign the draft will.

Orders

The Court orders that:

(a) Subject to any further requirements of the Registrar of Probates, the informal will of the deceased, which is marked as exhibit ‘P1’ in the trial of this proceeding, be admitted to probate.

(b) Subject to the receipt of any costs submissions within 14 days, the costs of the parties be paid from the estate of the deceased on an indemnity basis.

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Re Josipovic [2021] VSC 43

Re Phillipson [2020] VSC 857

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Re Estate of Brock [2007] VSC 415

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In the Estate of WILDEN (DECEASED) [2015] SASC 9

[2020] VSC 699

21 October 2020