Re Wordsworth (Dec'd)

[1995] QSC 290

IN THE SUPREME COURT
OF QUEENSLAND

O.S. No. 689 of 1995

Brisbane

Before the Hon. Mr. Justice Mackenzie

[Re Wordsworth (dec’d)]

IN THE MATTER of the Supreme Court Rules, Order 64, Rule1A

-and-

IN THE MATTER OF THE WILL OF CHARLES WALLACE ALSON
  WORDSWORTH (deceased)  

REASONS FOR COSTS  ORDER - MACKENZIE J

Judgment delivered  14/11/1995

CATCHWORDS: COSTS - summons dismissed - summons sought declaration that applicant be appointed executrix and sole beneficiary of will - dispute as to applicant's mental capacity - whether application should have proceeded - whether applicant's solicitor should personally pay costs thrown away.

Counsel:P. Hackett for applicant

D Mullins for respondents

Solicitors:Creedon Lawyers for applicant

McCullough Robertson for respondents  

Hearing date: 7 November 1995
IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  0.S. No. 689  of 1995

Before the Hon. Mr Justice Mackenzie

[In the matter of the Will of WORDSWORTH (deceased)]

IN THE MATTER of the Supreme Court Rules, Order 64, Rule 1A

-and-

THE MATTER OF THE WILL OF CHARLES WALLACE ALSON
  WORDSWORTH (deceased)

REASONS FOR COSTS  ORDER - MACKENZIE J

Judgment Delivered 14/11/1995

When this matter was before me on 7 November 1995 on a summons under Order 64 Rule 1A, I dismissed the summons.  What had been asked for was a declaration that Claire Keys Wordsworth was the duly appointed executrix and sole beneficiary of the last Will of Charles Wallace Alson Wordsworth who died on 24 June 1995.  The clause of the Will which was the subject of the summons is as follows:-

"I APPOINT my wife CLAIRE KEYS WORDSWORTH the executrix and trustee of this will PROVIDED THAT if she shall predecease me renounce or otherwise not act or continue to act or shall die before my estate is completely administered THEN I APPOINT DIANNE LESLEY COXHEAD and STEVEN LOUIS COXHEAD or the survivor of them the executor and trustee hereof and the expression 'my trustees' shall include the trustee or trustees for the time being hereof - "

The persons named who have, since the Will was executed, changed their surname to Henderson, had on the basis of a medical report that Mrs Wordsworth was incapable of executing her husband's Will  and legal advice that such diagnosis brought the proviso in clause 1 into operation, acted as executors.  The assets of the estate consisted of a house at Springwood, personal effects and one small bank account the balance of which was used to partly pay the funeral account.  There were other assets held jointly with Mrs Wordsworth which did not, for that reason, form part of his estate.  On 25 September 1995 a Certificate of Title in the name of Mr and Mrs Henderson as personal representatives of the deceased's estate was issued.  They hold the property in trust for Mrs Wordsworth.  The intention is that at some future time the house will be sold as Mrs Wordsworth will never be well enough to return to it. In the meantime the evidence is that she is not in need of money to fund her daily needs.  She is a resident of a nursing home.  The estate has therefore in practical terms been fully administered and the executorial duties completed.
          In consequence of  the dismissal of the summons Mr Mullens for the executors asked for an order that the applicant's solicitor pay personally the costs thrown away.  The basis of this was a very detailed letter of 29 August 1995 which, it was submitted, made it abundantly clear that there was a dispute as to Mrs Wordsworth's capacity.  It was submitted that as that was the case it was inappropriate that the estate should have to bear the costs thrown away by a misconceived application, and that the costs order should be made against the solicitor personally. 
          The evidence which contradicted the diagnosis of dementia previously referred to was a psychological report by Ira T Smith, a clinical psychologist.  He concluded that the deterioration in Mrs Wordsworth's cerebral processes was memory specific and that it had not yet disrupted her higher thought processes.  So far as her memory was concerned he concluded that it was impaired to the extent that information processed could not be carried over to a later time and each time she considered a set of facts those facts had to be reprocessed.  There is a good deal of anecdotal evidence  that Mrs Wordsworth, almost invariably, did not remember previous visits by people and recent events and from the material before me it seems plain that her behaviour is erratic.  The report of Mr Smith was specifically commented on by another doctor who had attended her since her admission to the nursing home.  The doctor's opinion was that  her memory was defective to the extent that she was not able to retain and recall  information or matters discussed  at an earlier date.  As a consequence she had not been able to adequately take responsibility for her affairs over the period he had known her.  There was also another medical opinion at about the time of her admission to the nursing home which described her  mental status as "dementia - disorientation in place and time".
          The letter upon which the application for costs is based discloses a  quite sad story.  Putting the matter as neutrally as possible, Mrs Wordsworth has changed her mind on  a number of occasions about matters concerning  administration of her affairs.  While the medical evidence and other events should have given the solicitor against whom costs are sought reason to give anxious consideration to whether the application should  have proceeded, I am not satisfied that in all of the circumstances it is he who should bear the costs.  There is insufficient material before me to justify any other order than that the respondent executors be paid their costs by the applicant on the record.  The order is that the costs of and incidental to the application be paid by the applicant to the respondents, to be taxed.