Re Sebasio

Case [2020] QSC 247

SUPREME COURT OF QUEENSLAND

CITATION:

Re Sebasio [2020] QSC247

PARTIES:

GLEN THOMAS SEBASIO
(applicant)
v
CHELLA GOLDWIN
(respondent)

FILE NO/S:

BS No 10388 of 2019

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20, 21 and 22 July 2020

JUDGE:

Callaghan J

ORDERS:

Subject to the formal requirements of the Registrar, a grant of probate in solemn form of law of the will dated 21 March 2011 be made to Glen Thomas Sebasio.

The parties are directed to file and serve written submissions (not to exceed four pages in length) as to costs by 4.00pm on 19 August 2020, and that question will be determined on the papers.

CATCHWORDS:

SUCCESSION – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where testator purported to revoke all previous wills in 2018 – where testator purported to make will in 2018 that was very different from previous wills – where applicant applies for a grant of probate of earlier will made in 2011 – where applicant submits testator lacked testamentary capacity at time of 2018 revocation of former wills and 2018 will – where applicant submits suspicious circumstances exist around making of 2018 revocation and 2018 will - whether testator had testamentary capacity

Succession Act 1981 (Qld), Schedule 2

Banks v Goodfellow (1870) LR 5 QB 549, applied
Black & Anor v Scotston [2019] QSC 27, cited
Frizzo & Anor v Frizzo & Ors [2011] QSC 107, applied
Nicholson v Knaggs [2009] VSC 64, cited
Kerr v Badran [2004] NSWSC 735, cited
Re Griffith; Easter v Griffith (1995) 217 ALR 284, cited
Tobin v Ezekiel [2012] NSWCA 285, cited
Trust Company of Australia Ltd v Daulizio [2003] VSC 358, cited
Worth v Clashom (1952) 86 CLR 439, cited
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, cited
COUNSEL:

AB Fraser for the applicant
The respondent represented herself
SOLICITORS:

McCullough Robertson for the applicant
The respondent represented herself

Introduction

  1. Mr Thomas Sebasio (“Thomas”)[1] was a proud Torres Strait Islander who was regarded as a leader and statesman within that community.[2]  Upon his death, the Premier of Queensland was moved to write to the respondent, in a letter of condolence, that he had “lived an extraordinary and inspirational life… and his legacy will continue through his work with the Aboriginal and Torres Strait Islander people”.[3]

    [1]I shall, after consulting with the parties, refer to Mr Sebasio as Thomas. He had a grandson, Thomas Jr,  who will be referred to as such.

    [2]T2-18 lines 16-17.

    [3]Affidavit of Chella Goldwin 20 April 2020 exhibit X.

  2. Thomas had three children: the applicant, Glen Sebasio (“Glen”); a daughter, Kristine  Vicca (“Kristine”)[4] and the respondent, Chella Goldwin (“Chella”).

    [4]Name spelt as per the affidavit of Glen Sebasio 19 September 2019.

  3. Thomas passed away on 21 June 2019.[5]  Glen applies for a grant of probate of a will dated 21 March 2011 (“2011 will”).  This…

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Details
AGLC
Re Sebasio [2020] QSC 247
Case
[2020] QSC 247
Decision Date

CaseChat Overview and Summary

In the case of Re Sebasio, the deceased, Thomas Sebasio, passed away in April 2020. The applicant, Glen Sebasio, sought a grant of probate for a will dated 21 March 2011, while the respondent, Kristine Sebasio, contested the application on the basis that the deceased lacked testamentary capacity at the time he executed a 2018 revocation and will. The court was required to determine whether the deceased had the necessary testamentary capacity at the time of executing the 2018 revocation and will. This involved examining the evidence presented by both parties and assessing the credibility of witnesses, including the Schedings, who witnessed the 2018 revocation and will, and who attested to the deceased's capacity at that time.

The court found that the deceased had testamentary capacity at the time he executed the 2018 revocation and will. The evidence presented by the Schedings, who witnessed the documents, indicated that the deceased was fully engaged and capable of understanding the implications of the documents. The court also found that the applicant's evidence, which suggested that the deceased lacked capacity, was not persuasive. The court accepted that the deceased had some awareness of his family and could make evaluations as to how his estate should be distributed, but found that his preferred method of distribution was through a formal will prepared by a solicitor, which was consistent with the 2011 will.

The court granted a grant of probate in solemn form of law of the will dated 21 March 2011 to Glen Thomas Sebasio. The parties were directed to file and serve written submissions as to costs by 4.00pm on 19 August 2020, and the question of costs would be determined on the papers.

Orders

Orders of the court

Subject to the formal requirements of the Registrar, a grant of probate in solemn form of law of the will dated 21 March 2011 be made to Glen Thomas Sebasio.

The parties are directed to file and serve written submissions (not to exceed four pages in length) as to costs by 4.00pm on 19 August 2020, and that question will be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In those circumstances I can accept that the sentiments expressed in the 2011 revocation did not persist. I cannot determine with precision the point at which they were abandoned, but it was clearly at some point prior to the execution of the 2018 revocation and will. Evidence suggesting Thomas did have capacity Whilst he was still able to do so, Thomas spent some time with the respondent and Caleb in Canberra. This much is confirmed by two witnesses - Hasnah Hariri–Scheding, who gave evidence, and her husband John Scheding, whose statement was admitted into evidence without the need for cross examination.[39] This couple saw Thomas frequently when he was in Canberra;[40] they were the witnesses to the 2018 revocation and the 2018 will.[39]When referred to as a couple: “the Schedings”. The respondent addressed Hasna as “Mrs Scheding”.[40]See generally affidavit of Hasnah Hariri-Scheding 4 April 2020 and the affidavit of John Corbin Scheding 4 April 2020. They gave examples of social interaction with Thomas in early 2018, and speak of the joy that he took in these social gatherings. They describe his full participation in discussions and record his ability, at this time, to impart wise advice. It is therefore unsurprising that they expressed no concern about his capacity to sign the 2018 revocation and will. Mrs Hariri–Scheding gave evidence that the revocation was witnessed at the specific request of Thomas.[41] She also was present as at the time the 2018 will was completed – she saw the respondent “taking notes”.[42] Although she was not really listening to the conversation, she registered that Thomas said that he wanted to change his last will in order to make sure “everyone is included”.[43] [41]T2-57 line 45. [42]T2-58 line 16.[43]T2-61 lines 4-9. Mrs Hariri–Scheding said that Thomas specifically requested her (and her husband) to witness the will and that she did not see any confusion. On the contrary, she thought him to be “quite engaged”.[44] She spoke also of an occasion after 5 March 2018 when Thomas was in hospital. A specialist told those present that he needed to discuss Thomas’s care and inquired as to who had power of attorney. Mrs Hariri–Scheding intoned a clear and authoritative manner when she related the way in which Thomas insisted: “I am here. You speak to me.”[45][44]T2-58 lines 30-32.[45]T2-59 line 36. Further, and although the evidence on the point is spare, I am prepared to accept that until June 2018 Thomas held a position at Griffith University. It is variously described as “lecturer”[46] or “elder in residence”[47] and it is pointed to as something which supports the proposition that, as at March 2018, his mental condition was at least sufficient for him to have testamentary capacity.[48] [46]Affidavit of Chella Goldwin 20 April 2020 at [129]. [47]Affidavit of Dr David Fonda 15 July 202 at 19.[48]Written closing submissions of the respondent at [29]-[33]. However, in the absence of any evidence about the nature of his duties, or as to the manner in which he was performing them, I am unable to give much weight to this proposition for the purposes of these proceedings.

Decision

Reasons for decision

The applicant gave evidence and was cross-examined by the respondent at some length. Many of the issues canvassed were of only marginal relevance. However, I am able to make some specific findings of fact. I identify as important and accept Glen’s evidence when he:(a)rejected the proposition that he had refused to provide his father with a copy of the 2011 will. I accept that, as Glen said, he had actually received a copy of that will from his father, and therefore assumed that Thomas had retained either the original or a copy for himself;[85](b)rejected the proposition that he was planning, at any stage, to put his father into a home;[86](c)explained that the reason for the 2011 will was because he insisted to his father that Kristine should be added. He did that because if anything happened to him, (Glen) there would at least be someone else who could carry out his father’s wishes;[87](d)recalled that those wishes, as expressed to Glen by Thomas, were that the property should devolve first to him and Kristine, albeit on the basis that he wanted them to distribute it to other members of the family as they saw fit - or, as Glen put it, it was their responsibility to “divvy it up”;[88] and(e)informed that Thomas had a “loving relationship” with his granddaughter Jenna, who has cerebral palsy and is unable to speak or walk. [85]T1-41 lines 44-45; T1-54. [86]T1-97 lines 1-5. [87]T1-51 lines 25-33. [88]T1-104 line 39. Conclusions The respondent insists that the 2018 revocation is a reason why this application should not be allowed.[89] My attention is drawn to medical evidence which allows that dementia does not necessarily obscure testamentary capacity, and to the fact that in February it was Dr Fonda’s view that Thomas had capacity to make an enduring power of attorney. It is emphasised that Thomas was clearly functional in many social (and perhaps even professional) settings.[90] It is said to be likely that Thomas wished to revoke the earlier will because it did not provide sufficiently for distribution of benefits to the wider family. [89]Written closing submissions of the respondent at [12]. [90]See the evidence of the Schedings at [29]-[33]. The respondent also emphasised that she was not advancing the cause of the 2018 will,[91] under which she was a beneficiary. And as already noted,[92] I am prepared to proceed on the basis of her statement from the Bar table that she was not aware that the effect of the intestacy provisions was that the revocation did in fact make her a beneficiary of the estate.[91]Written closing submissions of the respondent at [79].[92]At [17]. I accept some of that which the respondent put to me. It may well be that, as at March 2018, Thomas had some awareness, in general terms of those who had a claim on his estate (to the extent that he knew he had a family), and could make some evaluation as to the manner in which that should be addressed. Allowing that to be so, the evidence establishes that his unmistakeably preferred “manner” always involved the estate devolving, by means of a formal will prepared by a solicitor,[93] to at least one of his children, albeit on the understanding that they would distribute some of it to other members of the family. The statements made to Dr Fonda in May 2018 were clear, and consistent with all that had gone before. It was a simple plan, simply expressed in two wills, and then plainly expressed to the doctor. The only variations to that plan concerned the number of children who might be involved (one in 2010, two in 2011, and three in May 2018) in the process. [93]As opposed to by way of intestacy.

Ratio Decidendi

Legal Principle Established

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