Roche v Roche

Case [2017] SASC 8

Supreme Court of South Australia

(Testamentary Causes Jurisdiction)

ROCHE v ROCHE & ANOR

[2017] SASC 8

Judgment of The Honourable Chief Justice Kourakis

8 February 2017

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - FORMS OF UNSOUNDNESS OF MIND

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - EVIDENCE - GENERALLY

The plaintiff (Shauna) seeks an order revoking a grant of probate in relation to a will made by her father (John) in 2006 and a grant of probate in solemn form in respect of a will made in 1997. That order is sought on the basis that John lacked testamentary capacity and did not know or approve of the contents of the 2006 Will. The defendants (Fiona and Deborah) are Shauna’s sisters and the executors of the 2006 Will who have obtained a grant of probate in common form. Fiona and Deborah bring a cross-action seeking a grant of probate in solemn form in relation to the 2006 Will.

The 2006 Will was made in the context of a disagreement between Shauna and the rest of the family as to how Shauna would remain involved in the family business. At the time, the family business was also going through a significant restructure. Shauna eventually asked to be bought out of the business. The effect of the 2006 Will was that Shauna was no longer an executor of the Will or trustee of the relevant controlling trusts but could receive distributions at Fiona and Deborah’s discretion.

It is common ground that at the time the 2006 Will was executed, John was either suffering from or in the prodromal phase of frontotemporal dementia. The parties dispute whether this compromised his testamentary capacity. The evidence of the lay witnesses, in particular John’s daughters, was affected by the familial dispute and attempts to advance their respective cases. This affected, to varying degrees, their credibility and reliability.

Around the time of executing the 2006 Will, John wrote two documents recording his instructions in relation to the will, one addressed to his solicitors and one to his trustees. These documents are strong evidence that John had an understanding of the nature and extent of his estate as well as his daughter’s competing claims on that estate.  Other documentary evidence generally supports this conclusion.

The testimony of John’s solicitors who witnessed the execution of the 2006 Will and other related documents as well as their contemporaneous notes record descriptions of John’s behaviour at the relevant times.  According to that evidence, John was relatively lucid, organised and knowledgeable in his understanding of the complex family business, the range of transactions made necessary by the restructure and the making of the 2006 Will.

The experts briefed by the parties disagreed as to whether John had testamentary capacity when the 2006 Will was executed. In general, the evidence was that John’s frontotemporal dementia…

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AGLC
Roche v Roche [2017] SASC 8
Case
[2017] SASC 8
Decision Date

CaseChat Overview and Summary

The case of Roche v Roche involved a dispute regarding the validity of a will made by the deceased, John. The primary issue was whether John had the testamentary capacity to make the will in question. The matter was heard in the Supreme Court of South Australia. The court was required to determine if John had the soundness of mind, memory, and understanding necessary to make a valid will. This involved examining the evidence presented regarding John’s cognitive abilities and behaviour at the time the will was executed.

The court considered the evidence provided by Mr Huw Evans, the farm manager, who testified about John’s declining memory and concentration over the years, particularly from 1998 onwards. Mr Evans noted that John would repeat stories, forget where he had been, and exhibit lapses in concentration while driving. These observations indicated a progressive deterioration in John’s cognitive faculties. The court also assessed John’s ability to make informed decisions about the farm and his interactions with Mr Evans, which suggested that while John’s contributions were reasonable, his memory and concentration issues were significant. The judge found Mr Evans’ testimony to be credible and reliable, leading to the conclusion that John’s testamentary capacity was compromised.

In light of the evidence presented, the court determined that John did not possess the necessary soundness of mind, memory, and understanding required to make a valid will. The court held that John’s cognitive decline, as evidenced by his repeated stories, forgetfulness, and dangerous driving behaviour, indicated that he lacked the capacity to understand the nature and effect of making a will. Consequently, the will in question was deemed invalid. The court’s decision was based on the substantial evidence of John’s deteriorating mental state and the impact it had on his ability to comprehend and execute a will.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Shauna moved from Adelaide to Sydney in about the year 2000, and as a result her contact with John became intermittent.Management of the farm – evidence of Mr Huw Evans Shauna called Mr Huw Evans, who was the manager of Southcote between 1998 and 2005. He also attended to general farm duties. He was responsible for the care of the herd, fencing and cropping. He prepared the cattle for show and sale. He lived on the property. He worked between 8.00 am and 5.00 pm generally, but naturally enough in the management of the farm his hours varied. Mr Evans testified that John was at Southcote three or four days a week. John did some physical work but what he did was restricted because of his age. Mr Evans undertook the bulk of the physical work and on occasion was assisted by casual labourers. John’s involvement in the work of the farm varied from several hours to a whole day. I was impressed with the way in which Mr Evans gave his evidence. He was a credible and reliable witness. I accept his account of events. Mr Evans described John as a jovial man who was a great storyteller particularly about past times but that he tended to repeat those stories. From as early as 1998 John might repeat the same story twice a week. Mr Evans never challenged John about that repetition. In addition to the Southcote property at Port Elliot, John had a farm at Richmond Downs at Mount Compass. Mr Evans noticed that on some occasions when he worked on Richmond Downs John would ask him on his return at the end of the day where he had been, even though Mr Evans had told him the night before where he would be. Mr Evans noticed that level of forgetfulness on John’s part sometime in the 2000s but he could not specify a particular date. Mr Evans found it difficult to quantify how often John might forget information which Mr Evans had conveyed to him. Mr Evans testified that John’s memory deteriorated progressively between 1998 and 2005. When asked whether he had ever discussed his observations of John’s failing memory with John, he answered ‘No, I don’t think it was my place. I respected John and I didn’t think it was my place. I’d consider it to be rude’. Mr Evans also observed John’s lapses of concentration when driving as early as 1998. John became progressively worse. He would gesticulate whilst driving and swerve across the road. On occasions John failed to give way at the relevant signs. Mr Evans described one particular accident on an occasion between 2002 and 2004 when John drove his BMW across a T-junction and through a drain and returned to the other side of the road. On that occasion, John and Mr Evans were travelling to the South Australian Beef Field Days at Gulnare. On another rainy day when leaving the Adelaide Showgrounds and travelling north along Goodwood Road towards North Adelaide, John drove through red lights. After 2003, Mr Evans insisted on driving and John would allow him to drive for increasingly long parts of the journey. Mr Evans testified that he made most of the decisions with respect to the farm management, but he would speak to John about them. John expressed an opinion on most issues but almost always was happy with Mr Evans’ management. Mr Evans would discuss with John more significant management decisions, such as appraising bulls and making decisions about which bull to purchase and at what price. Mr Evans did not give evidence about the soundness of John’s contributions. I take from his failure to make specific mention about the nature of discussions that John’s opinions and comments appeared at least apposite and reasonable to him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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