Re Williams; Duryea v Drew
[2019] VSC 314
•13 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2018 04837
IN THE MATTER of the will of JOHN WILLIAMS, deceased
| GARRY ALFRED DURYEA | Plaintiff |
| - and - | |
| LYNETTE DREW | First Defendant |
| - and - | |
| TERENCE DREW | Second Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 April 2019 |
DATE OF JUDGMENT: | 13 May 2019 |
CASE MAY BE CITED AS: | Re Williams; Duryea v Drew |
MEDIUM NEUTRAL CITATION: | [2019] VSC 314 |
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WILLS AND ESTATES — Application to admit informal will to probate as a codicil — Where deceased had executed formal will — Whether deceased intended the informal will to be his final will — Whether the deceased had testamentary capacity — Wills Act 1997 s 9 — Banks v Goodfellow (1870) LR 5 QB 549.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | S P Newton | Rotman & Morris |
| For the Defendants | S Wilmoth | The Law Professionals |
HIS HONOUR:
Introduction
John Williams (the deceased) died on 12 October 2017 at the age of 89. His last formally executed will is dated 20 May 2007 (the formal will). However, he also left a handwritten document dated 30 August 2017 headed ‘Change of Will of John Williams’ (the handwritten document) which purports to alter the bequests made under the formal will.
The deceased never married and had no children. Under the formal will he appointed his nephew, Garry Alfred Duryea, the plaintiff in the proceeding, to be his executor. The plaintiff is also a beneficiary under the formal will and the handwritten document. Another beneficiary identified under both documents is the deceased’s niece, Lynette Drew. She and her husband, Terence Drew (also a beneficiary under both documents), are the defendants in the proceeding.
The plaintiff seeks that only the formal will be admitted to probate. The defendants seek that the Court exercise its power under s 9 of the Wills Act 1997 to also admit the handwritten document to probate as a codicil to the formal will.
For the reasons which follow, I have determined that probate be granted to the handwritten document as a codicil to the formal will.
Facts
The parties provided the Court with a list of agreed facts. Those facts were supplemented by affidavit and oral evidence from the plaintiff, the first defendant and Jennifer Chalmers, another of the deceased’s nieces. Most of the facts relevant to the proceeding are not in dispute.
The deceased’s estate comprises $282,789.98 in cash and a unit in Croydon valued at $450,000.00 where he lived alone (the deceased’s home).
The formal will specifies gifts of $10,000 to be made to each of the following persons: the deceased’s doctor, Sam Soliman; the defendants (jointly); the deceased’s friends, Jill Stringer and Joan Stringer (jointly); and his niece Ms Chalmers.
The formal will provides that the residuary estate be divided into 20 parts and be distributed as follows:
(a) 13 parts to the plaintiff;
(b) 4 parts to Micah Demmet and Jodie Demmet (the daughter of his niece, Jennifer Chalmers); and
(c) 6 parts to Brent Chalmers (the son of his niece, Jennifer Chalmers).
The parties informed the Court that, due to an error in the calculation of the above parts, their agreed position was that the residue of the deceased’s estate should be distributed in the following proportions:
(a) 56.5% to the plaintiff;
(b) 17.4% to Micah Demmet and Jodie Demmet; and
(c) 26.1% to Brent Chalmers.
In the 10 years before his death, the deceased was hospitalised on a number of occasions due to various medical conditions and health complaints. It is uncontroversial that, over that period and particularly in 2017, the deceased’s physical condition deteriorated. It is also not in dispute that, by August 2017, the deceased was physically frail.
On 14 July 2017, the deceased was admitted to the Maroondah Hospital with complications related to heart failure, kidney failure and diabetes. He remained in the hospital for three weeks and was then transferred to the William Angliss Rehabilitation Hospital where he remained for a further two weeks.
While hospitalised in July-August 2017, the question of the deceased changing his will arose in a conversation between him and one of his nieces, Ms Chalmers. The deceased said that he was ‘going to write a letter.’ Ms Chalmers told the deceased that, if he did write a letter, it would ‘end up in court’ as had occurred in relation to the will of another family member. The deceased agreed that he would call his solicitor. Ms Chalmers later told the plaintiff about her conversation with the deceased.
The deceased returned home from the hospital on 18 August 2017. The plaintiff visited the deceased that day. When he arrived at the deceased’s home, the deceased did not initially recognise him.
The plaintiff stayed with the deceased for two nights. He was concerned about the condition of the home and, on one occasion, observed that the deceased had soiled himself. The plaintiff was concerned about the deceased’s capacity to care for himself. He attempted to persuade him to move into a nursing home. In a conversation about that matter on 20 August 2017, the deceased told the plaintiff that he was going to write a letter to change his will. The plaintiff advised the deceased that, if he wanted to change his will, he should contact his solicitor. He offered to arrange to do that on behalf of the deceased. The deceased responded, ‘No, it is too expensive.’ He also did not accept an offer from the plaintiff to pay for a solicitor’s services and said, ‘I will write a letter.’ The plaintiff said, ‘Well, make sure we know where it is.’
On 13 September 2017, the deceased had a fall at home and was again admitted to Maroondah Hospital. He never left the hospital and died on 12 October 2017 due to hospital acquired pneumonia.
The defendants visited the deceased in hospital on 14 September 2017. The deceased was very insistent that they return to his home after the visit because he had written a letter with changes to his will. The deceased said to the first defendant, ‘There is a letter on the dining table in the exercise book addressed to you both. You are to promise not to open it while I am alive.’ The first defendant made that promise to the deceased who then said, ‘Once I’ve passed away, promise me you will open it and get it to the solicitor.’ The first defendant agreed to this and the deceased then said, ‘These are the things I want and I need you to make sure they are done.’ The first defendant agreed.
The defendants went to the deceased’s home and located on the table an envelope addressed to them and marked ‘Private Matter.’ They subsequently kept possession of the envelope, but did not open it, until after the deceased’s death. They did however read the contents of a notebook also found on the table at the deceased’s home which contained a handwritten draft of the letter in the envelope.
There was some limited dispute in the evidence about when, from the perspective of the deceased’s nieces and nephews, the deceased’s mental capacity began to deteriorate. The plaintiff and Ms Chalmers gave evidence that the first defendant’s mental decline was evident from well before his fall which resulted in his admission to hospital on 13 September 2017. The first defendant considered that the deceased’s mental capacity only began to decline after that time. She did however accept that, before that time, he did occasionally become confused. Having regard to the general nature of these observations and the evidence of the plaintiff referred to in paragraph 13 above, I consider it likely that the plaintiff experienced occasional moments of confusion in at least August 2017.
The deceased’s condition deteriorated suddenly on 5 October 2017 and he was transferred to the Emergency Department of the Box Hill Hospital. When the defendants spoke to him at the Emergency Department, the deceased asked the first defendant whether she still had his letter in its envelope. The first defendant said she did, to which the deceased responded, ‘Good.’
The first defendant opened the envelope containing the handwritten document after the deceased died on 12 October 2017.
The handwritten document appears to be a single sheet taken from a lined exercise book which is folded in half resulting in four lined pages. The deceased’s handwriting appears on three of those four pages. On the third page, the deceased wrote his first name and some words of thanks to his nephews and nieces.
The deceased signed his name at the bottom of the second page of the handwritten document after the following handwritten text which appeared over the first two pages of the document:
August 30
2017
Change of Will of John Williams
Unit 32. 12 Cutts Avenue
Croydon 3136
Victoria Australia
Unit to be sold & shared among the following:
Mrs Jenny Chalmers many thanks
Mr Garry Duryea many thanks
Mr & Mrs Drew many thanks
Mrs Margaret Kenny many thanks
To receive a ¼ share each
Mr Darren Drew to receive $20,000 to do house renovations - house only
Jill & Joan Stringer have now passed away (England)
Dr Sam Soliman of Rowville $10,000 for looking after me many thanks
Mr & Mrs Danvers $5000, Unit 31
Any money left after funeral expenses is to be shared by Chloe Heath Xavier Heidi Sasha Tilly & Tiger Issac Jacob
Lynn & Terry 7[?] grandchildren.
I would like a private service to be held at the Fern Tree Gully Cemetry [sic] next to Mum & Dad
Brian is interred there
Funeral Directors
Mathews
Moolabark VIC
A [sic] oak coffin?
Grave sight [sic] to be done up plain please
Brian Williams B-D-
John Williams B.D
To all my Relations thanks for looking after me Greatly appreciated
Some wonderful people passed through my life including N. & NEP.
God Bless
John Williams
Some of the persons referred to in the handwritten document are also referred to in the formal will.[1] As to the persons not referred to in the formal will: Margaret Kenny was a friend of the deceased; Darren Drew is the son of the defendants; Mr and Mrs Danvers were the deceased’s neighbours; “Chloe Heath Xavier Heidi Sasha Tilly & Tiger Issac Jacob,” are the grandchildren of Ms Chalmers; and “Lynn & Terry 7 grandchildren” is a reference to the defendants’ seven grandchildren.
[1]See paragraphs 7-8 above.
The handwritten document is not witnessed, does not purport to revoke any prior will and does not appoint an executor.
In the event that it is admitted to probate, the handwritten document will significantly alter the distribution of the deceased’s estate compared to if only the formal will is admitted, including as follows:[2]
[2]This comparison is between the distribution of the deceased’s estate pursuant to the handwritten document and the distribution under the formal will in the event that the percentage distributions under the formal will proposed by the parties as set out in paragraph 9 above applied.
(a) whereas under the formal will a bequest of $10,000.00 is made to the defendants, under the handwritten document, they are entitled to a quarter share in the value of the deceased’s home;
(b) whereas under the formal will a bequest of $10,000.00 is made to Ms Chalmers, under the handwritten document, she is entitled to a quarter share in the value of the deceased’s home;
(c) Darren Drew, who is not mentioned in the formal will, is entitled to $20,000.00 under the handwritten document;
(d) whereas under the formal will the plaintiff is entitled to 56.5% of the residual estate (which includes the deceased’s home), under the handwritten document, he is entitled to a quarter share in the value of the deceased’s home;
(e) Micah and Jodie Demmet, who are entitled to 17.4% of the residual estate under the formal will, are not mentioned in the handwritten document;
(f) Brent Chalmers, who is entitled to 26.1% of the residual estate under the formal will, is not mentioned in the handwritten document;
(g) Margaret Kenny, who is not mentioned in the formal will, is entitled under the handwritten document to a quarter share in the value of the deceased’s home; and
(h) each of the seven grandchildren of Ms Chalmers and the seven grandchildren of the defendants, none of whom are mentioned in the formal will, are entitled to 1/14th of the residual estate under the handwritten document.
Issues to be determined & legal principles
The matter for determination is whether the handwritten document, together with the formal will, [3] should be admitted to probate as a will of the deceased. Section 9 of the Wills Act 1997 is a remedial provision which enables the Court to dispense with the formal requirements for the execution of a will when admitting a will to probate. It relevantly provides as follows:
[3]It was accepted by the parties at trial that, if the Court determined that probate be granted on the handwritten document, the features of that document referred to in paragraph 24 and in particular the fact that it does not identify an executor would also render it necessary for probate to be granted in relation to the formal will.
(1) The Supreme Court may admit to probate as the will of a deceased person—
(a) a document which has not been executed in the manner in which a will is required to be executed by this Act; or
(b) a document, an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by this Act—
if the Court is satisfied that that person intended the document to be his or her will.
…
(3)In making a decision under subsection (1) or (2) the Court may have regard to—
(a)any evidence relating to the manner in which the document was executed; and
(b)any evidence of the testamentary intentions of the testator, including evidence of statements made by the testator.
…
(6)In this section document has the same meaning as in the Interpretation of Legislation Act 1984.
It was not in contest that, in order to admit an informal document to probate under s 9 of the Wills Act 1997, the Court must be satisfied on the balance of probabilities that the following three requirements are established:
(i) there must be a ‘document’;
(ii)the document must express or record the testamentary intentions of the deceased; and
(iii)the document must have been intended by the deceased to be his or her will.[4]
[4]Re Kelsall [2016] VSC 724, [14]; Fast v Rockman [2013] VSC 18, [46]; Rowe v Storer [2013] VSC 385, [54]; Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Hatsatouris v Hatsatouris [2001] NSWCA 408, [56]; Oreski v Ikac [2008] WASCA 220, [52]–[53]; Re Trethewey (2002) 4 VR 406, 408; Equity Trustees v Levin [2004] VSC 203, [15]; Prucha v Standing [2011] VSC 90, [6]; In the Will and Estate of Brian Bateman [2011] VSC 277, [42].
It was uncontroversial that the handwritten document satisfies the first two of these requirements. The plaintiff contends, however, that the Court cannot be satisfied that the third requirement is met in the circumstances of this case. Relatedly, he also submits that the defendants have failed to meet the burden of proof on them to establish that the deceased had testamentary capacity when he wrote the handwritten document. These are the issues for determination in this proceeding. It is convenient to consider them together.
I recently summarised the legal principles relevant to these issues in Re Langley[5] which, for convenience, I re-state below:[6]
[5][2018] VSC 623.
[6]Ibid [21]-[24].
The principles central to the third requirement were recently summarised by McMillan J in Re White; Montgomery & Anor v Taylor as follows:[7]
[7][2018] VSC 16, [53]-[55], citations omitted.
The third requirement is that the deceased intended ’that particular document to be his or her final will and did not want to make changes to it’. As stated by Whelan J (as his Honour then was) in Equity Trustees Ltd v Levin, ’it cannot be a document intended as a personal memorandum or a note of intended instructions, it cannot be a draft or a ”trial run”’. The relevant intention must be possessed ’either, at the time of the subject document being brought into being, or, at some later time’.
Satisfying the third requirement depends upon the facts and circumstances of each case. The Court may consider evidence regarding the making of the will, as well as direct evidence of testamentary intent. Ultimately, the inquiry remains:
whether the document itself, the circumstances regarding its contents … and other relevant circumstances … lead to the conclusion that the relevant deceased intended the subject document to constitute his will;
that, while each case must depend upon its own facts, the greater the departure from compliance with the requirements of s 7 of the Act, the more difficult will it be for the court to be satisfied that the relevant deceased intended the subject document to be his will.
A relevant consideration under the third requirement is the deceased’s testamentary capacity. Where a deceased lacked the capacity to make a will, then the Court cannot be satisfied that he or she intended the document to be his or her will.[8] In the context of an informal will, the usual presumptions as to testamentary capacity do not apply. While the Court considers the evidence as a whole, the onus of proving testamentary capacity rests upon the party seeking to propound the informal will.
[8]Jageursv Downing [2015] VSC 432, [19].
The test for determining whether a person possesses testamentary capacity is well established and was set out by Cockburn CJ in Banks v Goodfellow.[9] His Lordship summarised the law with respect to testamentary capacity by reference to a testator’s power to dispose of their property as they see fit as follows:
[9](1870) LR 5 QB 549 (Banks v Goodfellow).
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[10]
[10]Ibid 566.
In Re Kelsall, McMillan J observed that the Banks test ‘is a question of degree, which underscores the importance of insisting on more than “inexact proofs, indefinite testimony, or indirect inferences” when making a finding as to testamentary capacity.’[11] Her Honour also referred to the following summary of the law in respect of testamentary capacity provided by Dixon J in Timbury v Coffee:[12]
[11][2016] VSC 724, [28].
[12]Ibid [31], quoting Timbury v Coffee (1941) 66 CLR 277.
Before a will can be upheld it must be shown that at the time of making it the testator had a sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner.[13]
[13]Timbury v Coffee (1941) 66 CLR 277, 283, quoting In the Will of Wilson (1897) 23 VLR 197, 199.
If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it.[14]
[14]Timbury v Coffee (1941) 66 CLR 277, 283, quoting Symes v Green (1859) 1 Sw. & Tr. 401, 402.
McMillan J further observed that:
In more recent times, the courts have not required a testator to know precisely the value of his or her assets or even certain classes of assets, particularly where an estate is on the larger side and complex in nature. In many cases, specificity in a testator’s wishes will not be as important to establishing testamentary capacity as will be the testator’s ability to comprehend the extent of their estate, the nature of the assets that comprise it and the various claims others may have to it.[15]
In Worth v Clasohm,[16] the High Court identified that, where a doubt is raised as to the existence of testamentary capacity:
…there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. 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.[17]
[15]Re Kelsall [2016] VSC 724, [34].
[16](1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).
[17]Ibid 453.
Did the deceased intend the handwritten document to be his final will?
Plaintiff’s Submissions
The plaintiff emphasised that, in order for an informal document to be admitted to probate under s 9 of the Wills Act 1997, it is insufficient that it records a testator’s testamentary intentions or instructions; it is necessary that the testator have intended the document be his or her final will. The plaintiff advanced two central arguments as to why the Court should not be satisfied that this was so in relation to the handwritten document.
First, it was contended that the form and appearance of the handwritten document did not support a conclusion that the deceased intended it to be his will. Rather, the document was submitted to have the form and appearance of a note of instruction for the preparation of a will, rather than a will itself. In support of this proposition, the plaintiff pointed to the fact that the handwritten document is headed ‘Change of Will’ rather than ‘Will’ and does not appoint an executor.
Secondly, the plaintiff placed particular reliance on the fact that the deceased had previously made the formal will. It therefore followed that the deceased must have known that a will needed to be executed in a formal way and, in particular, needed to be witnessed by two witnesses to ensure its validity. The plaintiff submitted that this was a very significant issue in circumstances where there was no evidence as to why the deceased did not ensure that the handwritten document was properly witnessed, as had occurred when he made the formal will some 10 years earlier. This suggested, so it was submitted, that the deceased did not intend the handwritten document to be a will. Instead, the plaintiff invited the Court to infer that the handwritten document was preparatory towards the making of a final will.
In support of this submission, the plaintiff relied on Habersberger J’s statement in Fast v Rockman that:[18]
… a deceased’s awareness of the formalities required for a will may bear on a court’s assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will…
[18][2013] VSC 18, [112] (citations omitted). Referred to with approval by McMillan J in Re Will of Rosaro (deceased) [2013] VSC 531, [39].
Consideration
Counsel for the plaintiff properly conceded that there are cases where informal documents have been admitted to probate notwithstanding that the testator knew of the formal requirements for a will but had not ensured that the document had been executed in accordance with them. Every case must turn on its own facts. In this matter, the fact that the deceased must be taken to have known of the formal requirements for validity of a will but did not ensure compliance with them is a matter which supports a conclusion that he did not intend the handwritten document to be his will. In my view however, it is the only matter of significance in the circumstances of the case which militates in favour of that conclusion. The contrary conclusion is supported by the considerations referred to below.
A characterisation of the handwritten document as a note of instructions for the preparation of a will, rather than a will itself, ignores a number of features of the document and the circumstances in which it was created.
First, the fact that the handwritten document was preceded by a draft, while not determinative, tends to undermine the suggestion that it was merely a note in preparation for a will.
Secondly, the text of the handwritten document itself contains a number of important features which underline a conclusion that the deceased intended it to be his will in final form. It is rational on its face and is legible. The deceased gave it the heading or title, ‘Change of will’, followed by his name and address. Contrary to the plaintiff’s submissions, I do not consider that any particular significance attaches to the fact that, it was entitled ‘Change of Will’ rather than ‘Will’. The finality of the deceased’s intentions expressed in the document is indicated by the fact that he signed and dated the document, expressed his ‘many thanks’ to various individuals, bade farewell to his family in the final paragraph and recognised that two beneficiaries under the formal will had since passed away. It is also of significance that the document does not contain within it any revisions, strike-throughs or alterations. Further, it is comprehensive and, by its terms, it is clear that the deceased sufficiently understood his assets. He did not leave unaddressed any of his assets and made provision for the disposition of the residue of his estate.
Thirdly, the deceased stated at least twice that he was going to write a letter to change his will.[19]
[19]See paragraphs [12] & [14] above.
Fourthly, the apparent resolve and clarity with which the deceased instructed the defendants on 14 September 2017 and then later on 5 October 2017[20] to secure possession of the handwritten document and to promise not to open it until after he had passed away and to then take it to a solicitor, are strong indications that the deceased intended the document to be his final will.
[20]See paragraphs [16] & [19] above.
For these reasons, I consider that the evidence establishes that the deceased intended the handwritten document to be his final will.
The Deceased’s testamentary capacity
Plaintiff’s Submissions
In support of the submission that the defendants had not proven that the deceased had testamentary capacity when he wrote the handwritten document, the plaintiff relied on the following matters which it was submitted raised ‘considerable doubt’ about the deceased’s capacity when he wrote the handwritten document:
(a) The plaintiff’s and Ms Chalmers’ evidence that, whereas the deceased had previously kept his home in immaculate condition, by the time that he returned home from the hospital on 18 August 2017, the deceased’s home was in an unhygienic state and he was living in squalid conditions, indicating that he was unable to care for himself.
(b) The failure of the deceased to understand that the conditions in which he was living were not suitable or appropriate for his condition, and evidence by the plaintiff of his refusal to go into an aged care facility.
(c) Ms Chalmers’ evidence of an incident in July 2017 in which the deceased nearly started a fire at his home by forgetting that he had left a frying pan on the stove.
(d) The plaintiff’s and Ms Chalmers’ evidence that, in the last months of his life, the deceased appeared to be in the final stage of a number of illnesses and was deteriorating and at times confused. The plaintiff refers to the occasion when the deceased failed to recognise him when he visited the deceased’s home referred to in paragraph [13] above.
(e) The circumstances surrounding the preparation of the handwritten document suggest that the deceased did not appear to have grasped the need to go to a solicitor to prepare a will.
The plaintiff also relied on aspects of the medical records from the deceased’s hospital admissions from 14 July and 13 September 2017 and records of an Aged Care Assessment of the deceased undertaken in October 2013. Those records were submitted to establish the following:
(a) That the deceased was not tested for capacity around the time of the making of the handwritten document and that he was last assessed in October 2013. At that time, although he presented as ‘orientated and cognitively alert,’[21] was able to converse in sentences, had full recall of events, and exhibited no confusion or short or long-term memory problems, the deceased was suffering from multiple medical conditions including heart disease, diabetes, having a urinary catheter, skin cancer and ‘malaise & fatigue.’[22] He was at that time willing to enter an aged care facility. He also had several admissions to hospital that year.
[21]ACAT National Comprehensive Assessment Form, 29 October 2013, pg. 15.
[22]Ibid pg. 9.
(b) The deceased had a stroke in April 2016.
(c) He suffered from recurrent falls, was ‘dozing off to sleep in between care’ and gave a ‘vague history.’
(d) Although on 14 July 2017 he told the hospital he would have been able to drive a month earlier, in the plaintiff’s submission, this seemed unlikely in light of the Aged Care Assessment in 2013.
Consideration
There is no reason to doubt that the deceased wrote the handwritten document on the date which it bears, 30 August 2017. This is some 12 days after he was discharged from a 5 week stay in hospital due to complications related to heart failure, kidney failure and diabetes and 14 days before he was again admitted to hospital after suffering a fall at home. It is clear that, at the time he wrote the handwritten document, the deceased was physically frail and suffered from a number of medical problems.
I consider that the evidence before the Court does raise a doubt about the deceased’s testamentary capacity when he made the handwritten document. That acceptance stems from the collective effect of the deceased’s advanced age in August 2017, the fact that he was physically frail and had been hospitalised for a reasonably lengthy period of time in relation to serious medical problems and the likelihood that he experienced occasional moments of confusion in at least August 2017. The moments of confusion experienced by the deceased are consistent with the evidence, which I accept, of a single incident in which the deceased nearly caused a fire in his home.
Contrary to the plaintiff’s submissions however, the evidence before the Court does not establish the existence of ‘considerable’ doubt about the deceased’s capacity. In my assessment and as explained below, this submission unduly exaggerates the totality of the evidence before the Court. I note the following matters:
(a) Although the deceased had in August 2017 been undertaking treatment for serious medical conditions, there is no evidence to suggest that complications relating to heart failure, kidney failure and diabetes are, of themselves, necessarily or likely to be associated with an impairment of a person’s mental capacity.
(b) It is also not to be overlooked that, when he wrote the handwritten document, the deceased had in fact been discharged from hospital. Further, although the medical records of the deceased’s hospital admissions in July-August and then September-October 2017 were in evidence, the plaintiff did not point to any aspect of them which recorded any matter which cast doubt on his mental capacity in particular.
(c) Although I accept that in the last months of his life the deceased was living in conditions which, at least at times, were unhygienic and squalid and which were inferior to the standards to which he had previously lived, these matters likewise do not necessarily reflect on the deceased’s mental capacity. Similarly, I do not consider that any inference about the deceased’s capacity can be drawn from his refusal to move into a nursing home. Further, the evidence of the deceased ‘dozing off to sleep in between care’ was of such a vague and general nature that it is not possible to conclude that this behaviour was consistent with someone whose capacity was impaired, as distinct, for example, from the ordinary range of behaviour by a patient recovering from medical treatment.
(d) I also do not accept the plaintiff’s contention that the fact that the deceased ‘does not appear to have grasped the need to go to a solicitor to prepare a will’ is a factor which raises doubt as to his capacity at the time when he wrote the handwritten document. The plaintiff and Ms Chalmers each gave evidence that the deceased chose not to go to a solicitor to change his will because it was ‘too expensive.’ A misguided and imprudent approach by a testator does not necessarily imply a lack of capacity.
(e) The fact that the deceased had not been assessed for capacity since an Aged Care Assessment conducted in October 2013 is of little assistance in considering the question of the deceased’s capacity. While a positive assessment in 2017 would plainly have assisted the defendants’ case, the fact that such an assessment was not undertaken may arguably suggest that the deceased’s behaviour did not raise doubts about his capacity.
Many of the above aspects of the deceased’s circumstances late in his life are consistent with his old age and associated infirmity. As stated by Kirby P in Easter v Griffith: [23]
In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will.
[23]Re Griffith; Easter v Griffith (1995) 217 ALR 284, 295.
It is also not to be overlooked that the test in Banks v Goodfellow ‘does not require perfect mental balance; rather, it is a question of degree.’[24] Further, the fact that the deceased may have been sad or in a state of despair at the relevant time – of which there is some evidence in this matter[25] – does not suggest that he was not capable of thinking rationally, or that he lacked capacity.[26]
[24]Ibid 295; Re White; Montgomery & Anor v Taylor [2018] VSC 16, [57].
[25]The plaintiff deposed that the deceased said to him on 20 August 2017, ‘I just want to die. I miss my brothers and sisters and I want to be with them soon,’ at which point the deceased became ‘teary.’
[26]Re White; Montgomery & Anor v Taylor [2018] VSC 16, [59].
Although I have identified a level of doubt about the deceased’s testamentary capacity when he made the handwritten document, that doubt is answered by the following matters which, applying the test in Banks v Goodfellow, satisfy me that the deceased was of sound mind, memory and understanding at the time of its execution:
(a) The fact that the handwritten document is signed and marked by the deceased, effectively disposes of the residue of this estate, and is written as a final document rather than as a list or instructions as I have explained earlier in this judgment, are strong indicators that the deceased understood the nature of the testamentary act and its effects.
(b) The fact that, in the handwritten document, the deceased detailed and disposed of the major assets in his estate, indicates that he understood the extent of the property of which he was disposing.
(c) The gratitude expressed by the deceased in the handwritten document for named beneficiaries suggests that he comprehended and appreciated the claims to which he ought to give effect. This is further supported by his omission of the Stringers from the handwritten document. The document records that the deceased knew that they had died since the execution of the formal will. I do not accept that the fact that several beneficiaries under the formal will were left out of the handwritten document without explanation,[27] provides a proper basis to draw an adverse inference about the deceased’s capacity.
(d) The distributions recorded in the handwritten document are rational and purport to benefit those with whom the deceased was close at the end of his life.
(e) As I have explained above, I am not satisfied that the deceased was suffering at the time of the creation of the handwritten document from any illness or condition which could ‘poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.’[28]
[27]Namely, Micah and Jodie Demmet and Brent Chalmers.
[28]Banks v Goodfellow (1870) LR 5 QB 549, 565.
Conclusion & Disposition
I have concluded that the deceased intended the handwritten document to be his will and that he had testamentary capacity when he made that document. It follows that the handwritten document should be regarded as a codicil to be admitted to probate together with the formal will.
Subject to hearing from the parties, my preliminary view is that the defendants are entitled to be paid their costs on an indemnity basis out of the deceased’s estate and the plaintiff is entitled to his costs out of the estate on a standard basis.
Within 7 days, the parties are to submit to the Court orders giving effect to these reasons for judgment and, in the absence of any agreement, any short submissions on costs.
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