Saunders v Pedemont
[2012] VSC 574
•19 SEPTEMBER 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PROBATE LIST
S CI 2012 04212
| GARRY NORMAN SAUNDERS | Plaintiff |
| v | |
| NICOLE MARIE PEDEMONT | Defendant |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 17-18 SEPTEMBER 2012 | |
DATE OF JUDGMENT: | 19 SEPTEMBER 2012 | |
DATE OF PUBLICATION OF REASONS: | 28 NOVEMBER 2012 | |
CASE MAY BE CITED AS: | SAUNDERS v PEDEMONT | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 574 | |
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Wills – Statutory will – Application for leave to apply for order – Testator lacking testamentary capacity – Testator’s last will leaving whole estate to wife and then son but both predeceased him – Granddaughter would therefore take under provisions of wills legislation – Relationship between grandparents and granddaughter limited as they did not meet until 1995 and lived in different cities – Plaintiff the nephew-in-law of testator – First proposed will would leave whole estate to plaintiff and his brother and their wives – Close and caring relationship between families of two nephews and testator and his wife – Different wills proposed by plaintiff – Final proposed will would leave one third to granddaughter – Whether final proposed will satisfied test for making a statutory will – Wills Act 1958, s 31, Wills Act 1997, ss 21, 22, 26, 27, 28, 29, 52(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms CH Sparke | Professor Phillip Hamilton |
| For the Defendant | Ms U Stanisich | Moores Legal |
HIS HONOUR:
Introduction
After a contested hearing on 17 and 18 September 2012, I announced on 19 September 2012 that I was refusing the plaintiff’s application under s 21 of the Wills Act 1997 that the Court make a “statutory will” for Ronald Ernest Macquire, and that I would subsequently publish my written reasons for reaching that decision. I followed that course because Mr Macquarie was elderly and frail and I wanted to avoid a situation where he might die before I ruled on the application. What follows are my reasons for refusing the application.
The Legislation
Division 2 of Part 3 of the Wills Act 1997 deals with the topic of “Court authorised wills for persons who do not have testamentary capacity”. The sections relevant to this application are as follows:
21Wills for persons who do not have testamentary capacity authorised by the Court
(1)The Court may make an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity.
(2)Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application.
(3)The Court … must not make an order under this section on behalf of a person who is deceased at the time the order is made.
22 Hearing an application for an order
(1) In considering an application for an order under section 21—
(a)the Court may have regard to any information given to the Court in support of an application for leave under section 28; and
(b)the Court may inform itself of any other matter in any manner it sees fit; and
(c) the Court is not bound by the rules of evidence.
(2)Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21.
26Matters of which Court must be satisfied before application for leave to make an application may be granted
Before granting leave to apply for an order under section 21, the Court must be satisfied that—
(a)the person on whose behalf the will is to be made or revoked does not have testamentary capacity; and
(b)the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity; and
(c)it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will or the revocation of the will for the person.
27 Hearing an application for leave
(1)In considering an application for leave to make an order under section 21—
(a)in addition to any matter which the Court may take into account under section 28, the Court may inform itself in any manner it sees fit; and
(b) the Court is not bound by the rules of evidence.
(1A)Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21.
(2)If the Court is satisfied, on the evidence tendered under subsection (1) of the matters set out in section 26(a) to (c), the Court may determine that the application for leave to apply for an order under section 21 proceed as an application for such an order.
28Information which the Court may require in support of an application for leave
In proceedings for the hearing of an application for leave to apply for an order under section 21, the applicant must, if so required by the Court, give—
(a)a written statement of the general nature of the application and the reasons for making it;
(b)a reasonable estimate, formed from any evidence available to the applicant, of the size and character of the estate of the person on whose behalf the will is to be made;
(c)a draft of the proposed will for which the applicant is seeking the Court's approval;
(d)any evidence available to the applicant of the wishes of the person;
(e)any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity;
(f)any evidence available to the applicant of the terms of any will previously made by the person;
(g)any evidence available to the applicant of the likelihood of an application being made under Part IV of the Administration and Probate Act 1958 in respect of property of the person;
(h)any evidence available to the applicant of the circumstances of any person for whom provision might reasonably be expected to be made under the will;
(i)any evidence available to the applicant of any persons who might be entitled to claim on intestacy;
(j)any evidence available to the applicant of any gift for a charitable or other purpose that the person might reasonably be expected to give or make by will;
(k)any other evidence available to the applicant and which is relevant to the application.
29 Persons who are entitled to appear at an application for leave
Each of the following persons is entitled to appear and be heard in any proceedings for the hearing of an application for leave to apply for an order under section 21—
(a) the person on whose behalf the will is to be made;
(b)an Australian legal practitioner (within the meaning of the Legal Profession Act 2004) representing that person;
(c)an attorney appointed by that person under an enduring power of attorney;
(d)any guardian or administrator of the person within the meaning of the Guardianship and Administration Act 1986;
(e)any other person who has, in the opinion of the Court, a genuine interest in the matter.
It should be noted that prior to an amendment in August 2007, s 26(b) read as follows:
(b)the proposed will or revocation accurately reflects the likely intentions of the person, if he or she had testamentary capacity; …
The Proceeding
By an originating motion filed on 24 July 2012, the plaintiff, Garry Norman Saunders, applied for leave pursuant to s 21(2) of the Wills Act 1997 to make an application for an order, pursuant to s 21(1) of the Wills Act 1997, authorising a will to be made for Ronald Ernest Macquire, being a person who did not have testamentary capacity.
The proposed will provided that Garry Norman Saunders and Brian Jeffrey Saunders be appointed executors and trustees. The net residue of the estate was:
to be divided as to half, to my nephew Garry Norman Saunders and his wife Vilma Joy Saunders jointly, and as to half to my nephew Brian Jeffrey Saunders and his wife Heather Mary Saunders.[jointly?]
The application was supported by an affidavit sworn by each of the four proposed beneficiaries on 23 July 2012 (“first affidavit”).
The proposed will was to replace a will made by Mr Macquire on 28 February 1973, under which he left his whole estate to his wife or if she predeceased him to his son, Graeme. A matching will was made on the same day by Mrs Macquire. Mr Macquire’s son had died in December 2007 and his wife in May 2012.
An affidavit by the plaintiff’s solicitor sworn on 9 August 2012 exhibited a medical report dated 6 August 2012 from Dr William McNeil, Mr Macquire’s general practitioner. Part of that report stated:
Mr Macquire is a 91yo resident of the above aged care facility. He was admitted there in July 2008. He suffers from advanced dementia of Alzheimer’s type with profound cognitive loss. He requires medication for periods of confusion/aggression related to his dementing illness. He is totally dependent and requires 24hr attention from nursing staff to fulfil his activities of daily living. He is not testatory and will not be in the future.
There was no dispute that the requirement of s 26(a) was met and I was so satisfied.
When the proceeding first came before me in the Probate List on 10 August 2012, there were appearances on behalf of two other parties who had been served with the application. One was State Trustees Limited, the administrator of Mr Macquire by order of the Victorian Civil and Administrative Tribunal (“VCAT”) made on 4 June 2008. State Trustees indicated that it adopted a neutral position concerning the application. The other person who appeared by counsel was Nicole Marie Pedemont, the granddaughter of Mr Macquire. Ms Pedemont was added as a defendant to the proceeding. Directions were given for the filing of further affidavits on behalf of both the plaintiff and the defendant and, given that Mr Macquire was elderly and frail, the hearing was fixed for 17 September 2012. In accordance with s 27(2) of the Wills Act 1997 and current practice, I proposed to consider the application for leave at the same time as the application for an order.[1]
[1]Monger v Taylor [2000] VSC 304, [23] (Gillard J); Boulton v Sanders (2004) 9 VR 495, [11] (Dodds-Streeton AJA, with whom Ormiston and Charles JJA agreed).
In Boulton v Sanders, Dodds-Streeton AJA (as her Honour then was) said, with the agreement of Ormiston and Charles JJA:
The requirement for leave permits baseless or unmeritorious applications to be screened out at an early stage.[2]
With the greatest respect, I doubt that this observation is accurate. In order to obtain leave an applicant must satisfy the Court of the three critical requirements in s 26 and, if required by the Court, give the information set out in s 28, which means putting all relevant evidence before the Court. Leave should only be refused after all of these matters have been taken into account. On the other hand, once leave has been given, it is extremely unlikely, in my opinion, that an order authorising a will to be made would be refused by the Court. It is, therefore, very hard to see why the second step was thought to be necessary as it seems to me that it serves no useful purpose.
[2](2004) 9 VR 495, [11].
I was not informed at the directions hearing that the application had not been served on Max Goldstein, the son of Mr Macquire’s sister. Mr Goldstein was an actual nephew of Mr Macquire, compared with the plaintiff and his brother, who were the nephews of Mr Macquire’s wife. Yet, his existence was not mentioned at that hearing. This omission came to light during the cross-examination of the plaintiff when he was asked whether he had spoken to Mr Goldstein before making the application. He said that he had but Mr Goldstein did not “want to be involved in it”.
In my opinion, Mr Goldstein was a person who may have had “a genuine interest in the matter” within the meaning of s 29(e) and, as I said during the hearing, I am quite sure that if I had known about him I would have ordered that he be served with the application material. I do not accept that the fact that he declined to be “involved” in Mr Garry Saunders’ proposed application meant that he would not have wanted to be heard once he knew that the application had been issued and what was being sought by way of the proposed will. He was certainly interested enough about his uncle’s affairs to appear at the VCAT hearing. His view of Mr Macquire’s testamentary intentions might have been of some assistance and, if I had otherwise been prepared to make an order, I consider that I would have had to delay doing so until Mr Goldstein had been given the opportunity to be heard.
In response to some queries raised by me at the directions hearing, each of the four proposed beneficiaries swore a further affidavit on 16 August 2012 (“second affidavit”), and the plaintiff’s solicitor filed a further affidavit sworn on 13 September 2012 deposing to his unsuccessful attempts to locate a later will of Mr Macquire. Also, the two daughters of Mr and Mrs Garry Saunders, Erin Louise Saunders and Narelle Jane Saunders, both swore an affidavit on 16 August 2012. These affidavits sworn by the members of the Saunders families dealt in a general way with the financial position of the deponents. No such affidavits were sworn by either of the two adult sons of Mr and Mrs Brian Saunders as they wished “to keep their financial affairs private”.
Ms Pedemont swore an affidavit in opposition to the application on 5 September 2012. Her mother, Morelle Pedemont, also swore an affidavit on 3 September 2012.
The material disclosed in Ms Pedemont’s affidavit led to each of the four proposed beneficiaries swearing a further affidavit on 12 September 2012 (“third affidavit”), in support of an amended application in respect of a different proposed will. The second proposed will provided that the whole of the residue of Mr Macquire’s estate be divided into five equal parts, one each to Ms Pedemont, Mr Garry Saunders, Mrs Vilma Saunders, Mr Brian Saunders and Mrs Heather Saunders. (Without intending any disrespect, in order to avoid confusion and/or repetition I will refer hereafter to the various family members by only their first name. On the other hand, I will refer to Mr Macquire as either Mr Macquire, Ronald, Uncle or “the propositus”, which was a term often used in the plaintiff’s supporting material. I will refer to his late wife as either Mrs Macquire, Ethel or Aunty.)
An affidavit sworn on 3 September 2012 by Peter Misale, a Senior Personal Financial Consultant for State Trustees, revealed that Mr Macquire then had assets totalling approximately $515,000, being $338,000 invested with State Trustees and $177,000 deposited with Domain Aged Care on account of his accommodation bond. His fortnightly expenses were approximately $1,400 and his income only $1,200. Mr Macquire was also the sole beneficiary of his wife’s estate. Probate of her will had been granted to State Trustees on 2 August 2012. It was anticipated that Mr Macquire would receive a net amount of about $410,000 from his wife’s estate. This should mean that his income will then exceed his expenses.
At the start of the hearing, counsel for the plaintiff put forward a third proposed will. The only difference from the second proposed will was that Nicole’s share was to be held on trust until she came out of bankruptcy.
Each of Garry, Vilma, Brian, Heather and Nicole were cross-examined on their affidavit evidence.
During final submissions counsel for the plaintiff sought leave to amend the application to rely on a fourth proposed will. This will divided the estate into three – one third to Garry and Vilma jointly, one third to Brian and Heather jointly and one third to Nicole. Again, Nicole’s share was to be held on trust until she was discharged from bankruptcy. Counsel for the defendant opposed the late application to amend the application. She submitted that it was simply the plaintiff and his relatives “scrambling” to get something from the application, recognising that one fifth to Nicole was not sufficient. She submitted that it had nothing to do with Mr Macquire’s likely testamentary intention. I indicated to the parties that I would consider, and rule on, the application to amend in my written reasons.
Before refusing the application under s 21, I decided that I would allow the plaintiff’s application to amend to include as the proposed will what I have referred to as the fourth proposed will. I did so because, although the application to amend was made extremely late in the hearing, it did not mean that there would have been any change in the evidence that was called on behalf of the defendant. Whilst late amendments are not to be encouraged and, as will be discussed below, multiple amendments run the risk of possibly being detrimental to a party’s case, I could not see any reason to deny the plaintiff the opportunity to rely on the case that he finally sought to advance.
Mr Macquire’s Relationship with the Saunders Families
Mr Macquire was born on 13 May 1921. He married Ethel and they had one son, Graeme. Ethel had a sister, Elsie, who had two children, Garry and Brian.
Garry was born in 1941. His brother Brian was younger, about the same age as his cousin, Graeme. According to Garry, he and his brother had:
had a close and loving relationship with the propositus all our lives, as have our wives and children. Because our own father died in 1965, our children came to see the propositus as their grandfather figure.
He said that Ethel and his mother Elsie were “extremely close”, to the extent that when their father had a heart attack, Brian “went to live with Aunty Ethel and Uncle Ronald”. When Garry’s family were building a new house they lived in the Macquires’ garage for six months.
Garry described the close family relationship as filling their lives with “love and affection”. He continued
It encompassed numerous family occasions, from Christmas celebrations, Mothers’ Days, picnics, motor bike riding days, the propositus’s and Ethel’s 40th wedding anniversary, birthdays of every member of the family, and many other impromptu get-togethers. For a few days the propositus hired a house at Rosebud over Christmas and we would all enjoy a few days with them there.
According to Garry, his two daughters and the two sons of Brian and Heather, Ryan and Ashley, had “regularly maintained contact with the propositus and his wife throughout their lives”.
Vilma said that she was so close to Aunt Ethel that the latter said to her that Vilma was “the daughter she never had”. Vilma also said that her daughters “were virtually clothed completely by Aunt Ethel when they were young children”.
Heather said that she “had a very close relationship” with Uncle Ronald and Aunt Ethel. She said that for many years they and her family had been “part of each other’s lives”.
Both Erin and Narelle said in their affidavits that they had a close and loving relationship with Aunty and Uncle. Narelle said that she considered them to be her grandparents because that was how they referred to her and her sister. She gave two examples of Aunty referring to the sisters as “the grandkids”. Both Garry and Vilma said in evidence that Aunty and Uncle looked upon the girls as their grandchildren.
In more recent years, Garry said, Vilma and Heather had provided support to Ethel and Ronald “by way of meals, house cleaning, washing, gardening and attempting to intervene to assist them to cope with their illness”. They had responded to calls for help in health crises and assisted in finding aged care for them when they could no longer stay in their own home. After both of the Macquires had moved into care, Garry and Vilma and Brian and Heather “spent a lot of time clearing out rubbish and sorting the effects of the propositus and his late wife“ at their former residence in Balwyn. Garry also mowed the lawn and kept the house looking “lived-in”. It was later sold. After Mrs Macquire’s death, Vilma and Heather had continued weekly visits to Mr Macquire.
According to Vilma, she and Heather started to provide more intensive care for Mr and Mrs Macquire in about 2004. Heather would go over most Saturdays to help Aunt Ethel shower. Vilma would call in every Wednesday. Heather would often drive them to doctors’ appointments.
Heather said in evidence that she was involved in Aunty and Uncle’s care “nigh on nearly five years”. She said that she visited them for about 40-45 weeks each year, initially on a Saturday afternoon, for four to five hours. In her first affidavit, Heather said:
I took Uncle to doctors’ appointments of various types, took them both shopping every week, stripped the bedlinen each week, showered them, washed Aunty’s hair, gave Aunty haircuts and trimmed her nails, sorted out and paid their bills and so on.
Heather said in her first affidavit that when she and Mr Macquire were on the front lawn of the Macquires’ house after Graeme’s funeral in December 2007, waiting for people to alight from their vehicles, Uncle said to her: “I would like to leave the house to you, dear”. She said that he repeated this on a Saturday in late February 2008 while they were having a cup of tea, and again on 14 March 2008 whilst Uncle was making the sustagen drink for himself and Ethel.
In May 2008, Mr and Mrs Macquire were admitted to St George’s Hospital. They then moved into residential care, at Domain Gracedale in Ringwood North in July 2008.
Mr Macquire’s Relationship with Ms Pedemont
According to Garry, Nicole’s existence did not become known to him until about the late 1990s, and no family member had met her until Graeme’s funeral in 2007. In his first affidavit, he described Nicole’s relationship with her father as “at best strained and often unpleasant”. More relevantly, he said that:
The propositus and his wife had no close relationship with the child Nicole and neither saw her regularly nor sought to communicate with her on a regular basis. … They would never mention Nicole and only regarded her as Graeme’s daughter.
In her first affidavit, Vilma agreed with what Garry had said about the relationship between “Uncle Ronald and Aunt Ethel and Nicole”. She continued:
The only times I heard Aunt Ethel talk about Nicole, she referred to her as “Graeme’s daughter”. I never heard her call Nicole “my granddaughter”.
In her second affidavit, she made the following assertion:
I have heard Uncle and Aunt mention Graeme’s daughter Nicole on rare occasions. Any time they did, Uncle had a stern voice and folded his arms. I can recall once mentioning whether Nicole should be included in some family function. Uncle just folded his arms and said “hmph”.
In her first affidavit, Heather referred to a visit by Nicole to her grandparents “on a Saturday early in the New Year of 2008”. She continued:
Aunty had to be constantly reminded of who Nicole was; Uncle stood with his arms crossed and said very little. Her visit lasted two hours, and I was present throughout. There was not a sign of affection or even interest on the part of Uncle and Aunty. They just put up with her.
In the same affidavit, Heather said that the occasion in late February 2008 when Uncle Ronald mentioned leaving the house to her, she mentioned to him that Graeme had a daughter and perhaps he should leave something for her. Heather said that his response was:
Oh yes, that fly-by night.
However, the Saunders witnesses did acknowledge that there were photographs of Nicole in the Macquires’ home.
The affidavits by Nicole and her mother painted a rather different picture of the relationship between Nicole and her grandparents and Nicole and her father.
In 1972, Graeme was working as a car salesman in Sydney. He formed a relationship with a nurse, Morelle Pedemont. He was then aged 28 and she was 22. In April 1972 Graeme drove Morelle to Melbourne to introduce her to his parents. They spent four days together. Morelle told Graeme in late 1972 that she was pregnant. He said that he did not want “to get tied down” and did not want his name on the child’s birth certificate.
Nicole was born on 28 June 1973. The father was not present at the birth but visited the mother and child at the hospital in the following days. However, he said that he was not interested in being involved in Nicole’s life. He provided little, or no, support for his daughter. Graeme moved interstate and Morelle’s attempts to find Graeme to obtain maintenance failed.
Morelle said that in 1978 she became aware that Graeme was living with his parents. She attempted to contact him by telephone to seek assistance as her circumstances were then very difficult. By then she had a son as well as Nicole and the family was often moving to escape unsuitable living conditions or to find work. Nicole suffered from acute asthma and was constantly ill. Morelle spoke to Ethel and told her about Nicole. Ethel said that Graeme had never informed her or Ron about Nicole. She became very apologetic about the fact that she was unaware. Graeme called Morelle that afternoon. He was furious that she had involved his parents.
In 1980, Graeme contacted Morelle and asked to see Nicole. This followed a short period of imprisonment for drink driving offences. Later in the year he attended Nicole’s school. Nicole said that she and her father had regular contact from that point on. He started sending gifts, cards and letters. He transferred money into her bank account and sent her the receipts. They spoke on the telephone approximately weekly. When Graeme came to Sydney he would often visit Nicole. In September 1988, when Nicole was 15 years old, she wrote to her father expressing a desire to meet his “mum & dad as I have been wondering what they look like & what they are like”. At Christmas time in 1988, Nicole received a card from Graeme signed “Dad”. This was only the second time in which he had termed himself “Dad” in correspondence, the first being the card she received on her first birthday.
In 1991, Nicole moved to Sydney and lived in a share house with friends so that she could complete her High School Certificate. She then moved to Port Macquarie to live with her mother.
In 1992 she received a card from her grandparents. This was her first contact from them. Since then they had sent birthday, Christmas and Easter cards. They also sent small gifts of money ($100) with the cards. Nicole said that “given their significance to me, I endeavoured to keep every card and letter that my grandparents sent me”. Initially Mr and Mrs Macquire described themselves as “Graeme’s parents Ethel & Ron”. But by Christmas 1993 they were describing themselves as “your grandparents Ron & Ethel”. Thereafter the cards were usually signed “Ethel & Ron”. Occasionally they were signed just “Ron”. Generally the cards were addressed to “Dear Nicky” and the messages sometimes mentioned the word “granddaughter” or “special granddaughter” or even “sweet granddaughter”.
Nicole said she and her father would usually speak on the telephone approximately once a week. If the call was on the landline at his home, she would also speak to her grandparents.
In 1993, Nicole returned to Sydney where she worked full time as a Sales Assistant at Coles. She has continued to be employed there in varying capacities.
In April 1995, Graeme drove to Sydney and took Nicole back to Melbourne. She stayed at the grandparents’ house in Balwyn. According to Nicole, this first meeting with her grandparents was a joyful occasion. Everyone was “crying and hugging each other”. A lot of time was spent chatting and talking about the past, including Mr Macquire’s time in the Army. One evening was spent looking at family slides. Two cards were sent after that visit. One read in part:
Dear Nicole
Hello, just a few lines to say how much we enjoyed having you with us … We look forward to seeing you again in near future … All our love
Ethel & Ron xxxx
A second read:
Dear Nicky,
We did love having you with us and being able to spend 2 days out with you & Graeme. Just a small gift for you which will be useful for you.
All our love.
Ethel & Ron
xx xx
Nicole said that after that visit she and her grandparents kept in regular contact by telephone and letters in order to exchange news.
Nicole visited her grandparents for a second time in February 1998. She flew to Melbourne. The family went on various day trips. Nicole’s grandfather later sent her photographs taken during her visit, with notes he wrote on the back.
In August 2000, Nicole stayed with her father and grandparents for five days. Again there were family outings and family discussions. Two cards were sent following that visit. One read in part:
Dear Nicky,
It was lovely having you with us for the last 5 days … Lots of love to you.
Ethel & Ron xxxxxx
A second contained the following:
We loved having you here for your short break. … all our love we loved having you here for your short break.
In May 2002, Nicole visited again. She stayed for a week. Nicole said that at this time her grandmother began showing signs of dementia. A card sent following this visit read in part:
It was nice having you here for the week and also hope you enjoyed yourself … Ethel seen [sic] this bag and thought you would like it for when you go out in the evening. All our love.
Ron & Ethel xxx
Nicole continued to keep in contact with her father and grandparents. She said that each time she received a gift she would telephone to thank her father or grandparents and to let them know how their gift of money was spent. She said that it was difficult to visit more often, which she wished to do, because she was working multiple jobs “to make ends meet”. They remained in contact by telephone at least every two months.
Graeme died on 3 December 2007. Nicole was only informed by Brian of her father’s illness three hours before he died. According to Garry, Graeme did not allow anyone to tell Nicole when he became terminally ill with cancer. She flew to Melbourne for the funeral but felt excluded from the arrangements which Brian had already organised. Although Nicole had prepared a eulogy she did not have an opportunity to speak. She found the brief reference to her at the funeral insulting and upsetting. Graeme’s parents did not attend the funeral.
When Nicole visited her grandparents after the funeral, her grandmother did not recognise her at all but her grandfather “appeared to know who I was”. She was concerned about their welfare. Brian told her that he and Heather were looking after them.
Nicole visited her grandparents again in April 2008. She noted that there were many photographs of her in their home. Nicole said that she expressed her concerns about her grandparents’ welfare to Heather and told her that if anything happened to either of them she wanted to be informed. She left her telephone number with Brian and Heather.
On 2 May 2008, Mrs Macquire had a fall and had to be hospitalised. Nicole said that she was not informed of this until 8 May 2008.
In June 2008, there was a hearing at VCAT of an application by Garry and Brian that they be appointed administrators and guardians of the Macquires. Nicole said that she found out about it from a social worker at the hospital where her grandmother was. Nicole attended the hearing, as did Garry and Brian and Heather. During the hearing, Garry said that there was only a 50% chance that Nicole was Graeme’s daughter. State Trustees was appointed the administrator, and the Public Advocate the guardian, of Mr and Mrs Macquire.
Nicole said that as a result of Graeme’s name not appearing on her birth certificate, she encountered some difficulty in her application for letters of administration of her father’s estate. She was informed that she required statutory declarations from her mother’s and her father’s families She said that she spoke to Brian about signing a statutory declaration but he declined to sign one. This meant that she had to apply to VCAT for an order that samples be obtained from her grandparents so that there could be a DNA test. Samples were also obtained from Nicole and her mother. The result was that there was a 99.99999% chance that Graeme was her father. Put another way, the result was that “a son of both Ethel May Macquire and Ronald Ernest Macquire is 9 million times more likely to be the biological father of Nicole Marie Pedemont than a man chosen at random from the Australian Caucasian population”.
In October 2008, Nicole attended her grandparents’ property in order to assist State Trustees to clean out the house in preparation for sale. Brian and Heather and Garry and Vilma were also present.
Nicole said that in the following years she “attempted to keep abreast” of her grandparents’ health but it proved difficult because she was isolated in Sydney and was rarely informed of matters concerning them. She was also working three jobs and caring for her mother who was “very unwell” in 2011.
Nicole said that she was informed that her grandmother was unwell only days before she died. She arrived in Melbourne on 17 May 2012 only to find that she had died 20 minutes earlier. Nicole said that she arranged her grandmother’s funeral service.
Nicole went bankrupt in April 2012 owing about $160,000. Some of the debts had been incurred for legal fees and flights to Melbourne for the VCAT hearings, the paternity tests and the application for administration of her father’s estate. She inherited nothing from her father because his estate was insolvent. Nicole said that when she lost one of her three jobs due to a downturn in sales, she was forced to apply for bankruptcy. She was continuing to work 60 hours per week in her two remaining jobs.
Mr Macquire’s Testamentary Intentions
As previously stated, Mr Macquire had made a will on 28 February 1973, under which he left his whole estate to his wife or if she predeceased him to his son, Graeme. If that will is admitted to probate following the death of Mr Macquire, pursuant to the provisions of s 31(1) of the Wills Act 1958, the issue of Graeme would take his share if he, she or they are living at the death of the testator and attain the age of 21 years. That section would apply because no contrary intention appeared by the will (s 31(2) of the Wills Act 1958) and it would continue to apply to the 1973 will despite the passing of the Wills Act 1997 (s 52(2) of the Wills Act 1997). As both Mr Macquire’s wife and son have predeceased him, Nicole would inherit the whole of her grandfather’s estate. It seems that the Saunders families and their legal advisers mistakenly thought that there would be an intestacy on Mr Macquire’s death. Either way, the result would be the same, namely, that Nicole would receive the whole of Mr Macquire’s estate.
It seems to me that it is probable that as the 1973 wills were drawn by a solicitor the effect of s 31(1) of the Wills Act 1958 would have been explained to, and understood by, Mr and Mrs Macquire. Although the idea that Graeme might predecease one or both of his parents would have been thought to be unlikely, I consider that Mr and Mrs Macquire would have been content with the outcome that his issue take under their wills in that unlikely event, as they would have considered that Graeme was still of an age when marriage and children were distinct possibilities.
In his first affidavit, Garry said that Nicole being Uncle Ronald’s beneficiary on intestacy did not “match Uncle Ronald’s testamentary intention”. Referring to the first proposed will, which left the whole of the residuary estate as to half to Garry and Vilma jointly and as to half to Brian and Heather jointly, Garry said:
I believe that, if my Uncle now had capacity, he would want us, the people who have been his closest family for decades, and who have provided benefits to him and to his late wife Ethel, to have the benefit of his estate. I believe this based on the closeness of our relationships and also upon the statements that he wished to leave his house to Heather. We have always been a very close family and had close marriage relationships It would have been apparent to Ronald and Ethel that a gift by will to either my brother or me would have the effect of benefiting our families.
In his third affidavit, sworn after Nicole had served her affidavit, Garry said:
My family members and I were very surprised to read the affidavit of the defendant. The matters described by her were unknown to me and to my family members. Many of them are quite different from the way Uncle Ron and Aunt Ethel spoke about Nicole.
… it seems that Nicole had more of a relationship with Uncle and Aunt than I had realised. I concede that Nicole ought to be recognised in the will of Uncle.
Referring to the second proposed will, which divided the whole of the residuary estate into five equal parts, one each to Nicole, Garry, Vilma, Brian and Heather, Garry said:
In my first affidavit I proposed a form of will which I believe Uncle would intend to make if he were capable of doing so. Taking into account the strengths of our own relationships with him and Ethel, the care we have provided to them as a family, the comments they made, but also now taking into account his apparent recognition of a relationship with Nicole, I still believe that Uncle will have wanted to provide for me, my brother Brian and our families, but taking Nicole into account. I had previously proposed that Uncle’s likely intentions would be reflected by a will which divided his estate, in essence, between myself and my wife and Brian and his wife.
Garry described his brother and himself in his first affidavit as Mr Macquire’s “nephews” and his “closest living relatives”. When it was pointed out to Garry in cross-examination that he was not a blood relative and that Mr Macquire had actual blood relatives (his granddaughter, Nicole, and his nephew, Max Goldstein), he maintained that the descriptions were accurate. When he was asked whether he was using “closest relatives” to mean closest in terms of blood ties or closest in terms of the day to day relationship with Mr Macquire, Garry said that it was “a bit of both”.
Garry said that prior to reading Nicole’s affidavit he “knew nothing” about the actual relationship between Nicole and her grandparents because “Uncle and Auntie never spoke about it”. However, he agreed that Nicole had brought correspondence between her and her grandparents and photographs to the VCAT hearing.
Garry agreed in cross-examination that there was a part of Mr Macquire’s life, his relationship with Nicole, that he did not know about or understand. When he was asked whether he was suggesting that Mr Macquire did not accept Nicole as his granddaughter, Garry replied:
I can’t talk for Uncle but … that’s’ the impression I got. … That’s what I believe his wishes would have been.
When pressed as to what he was saying about Mr Macquire’s wishes, Garry said that Uncle might have accepted Nicole as his granddaughter. He continued:
I don’t know. I can’t speak for him. As I said, it’s only a guess, that I would believe that to be his wishes.
Garry agreed that he had never talked to Ronald about his will, and that he did not speak to Nicole before making the application.
In re-examination, Garry was asked whether he believed he could speak for Uncle with respect to Uncle’s relationship with him and his family. He said that he did believe that “up to a certain point”. He was then asked what Uncle would want for his will. Garry replied:
To go to all his grandkids – all his so-called [grandkids] … One grandchild and four other children … Narelle, Erin, Ashley, Ryan and Nicole.
Such a disposition was never contained in any of the proposed wills.
In her first affidavit, Vilma said that Garry’s affidavit was true and correct and that she “consented” to the application. Referring to the first proposed will, Vilma said:
I understand that I may have a basis for saying that, because I had a good relationship with Ronald and his late wife Ethel, they may have wished to benefit me directly under their will. I believe they would have wished to benefit their nephews, knowing that the benefit which flowed to their nephews would pass also to their nephews’ wives.
In her third affidavit, Vilma said:
I agree with the comments made by Garry that the affidavit filed for Nicole was surprising as Aunt and Uncle had not spoken about Nicole in a way which would reflect what Nicole has said. I was surprised to see her descriptions of her cards and contact with Uncle and Aunt. I knew that she had some contact but did not know the extent.
Referring to the second proposed will, Vilma said:
I have seen the proposal by Garry that a will be made which divides the estate five ways, one fifth to Nicole. I agree that the proposal appropriately takes account of the relationships in Uncle Ron’s life, including his relationship with Nicole.
In her evidence in chief, Vilma said that she thought that Ronald would have wanted his estate to be shared “amongst our side of the family, as well as making some provision for Nicole”. When asked between whom it would be shared, she replied:
Either between Garry and Brian and Nicole, or the four children she considered to be her grandchildren and Nicole.
She later said that she was meaning equal shares between the three or the five.
In cross-examination, Vilma said that she was totally unable to recall what was in the first proposed will or that it totally excluded Nicole.
She agreed that she probably did not have any real understanding of what the relationship between Mr and Mrs Macquire and Nicole was like. It was then put to her that therefore any comments by her about Mr Macquire’s likely wishes in relation to a will could only be guesses. She replied:
To some extent probably … How he placed the four children or five children is not really for me to comment on because I don’t know, but I do know that these four children on this side were very, very close to both of them, very close.
She later said, when asked why Uncle would not have wanted to leave everything to his granddaughter:
I don’t know that he thought any more of Nicole than he did of the other four children.
In his first affidavit, Brian verified Garry’s affidavit as true and correct and said that he “consented” to the application. Referring to the first proposed will, Brian said:
I believe Uncle Ronald (and Aunt Ethel) would have wished to benefit us, their nephews, knowing that the benefit which flowed to their nephews would pass also to their families.
He also described his brother and himself as Mr Macquire’s “nephews” and his “closest living relatives”.
In his third affidavit, Brian said that Nicole’s affidavit was “surprising”, as Aunt and Uncle had not spoken about Nicole in a way which would reflect what Nicole had said. Referring to the second proposed will, Brian said:
I agree that the proposal appropriately takes account of the relationships in Uncle Ron’s life.
In his evidence in chief, Brian said that he thought that Uncle would have wanted to divide his estate “between the Saunders and Nicole” – 70 percent to him and his brother leaving it up to them how they shared it amongst their families, and 30 percent to Nicole. He said that the Saunders were the only family Uncle had left besides Nicole. He later agreed that he had forgotten about Max Goldstein.
In cross-examination, Brian said that with hindsight the first proposed will was “not right” and that some provision should “definitely” be made for Nicole. He thought that the next proposal was that Nicole would receive a ninth, with the other eight shares going to the four members of his and his brother’s families. Another proposal was that Nicole receive a fifth, along with Brian and his wife and Garry and his wife.
When asked to justify or explain the 70:30 split, Brian said:
We’ve got 70 years of relationship. OK. Nicole had probably four visits.
He agreed that Nicole had a relationship with “Auntie and Uncle, but I don’t feel it was as intense as our family”.
In her first affidavit, Heather verified that Garry’s affidavit was true and correct. Referring to the first proposed will, Heather said:
I understand that I may have a basis for saying that, for the reasons set out in this affidavit, Ronald and his late wife Ethel may have wished to benefit me directly under their will.
I believe they would have wished to benefit their nephews, knowing that the benefit which flowed to their nephews would pass also to their wives. We have always been a close and happy family. I saw uncle and aunt very often, as if I was their blood family. Brian and I are very close and it was apparent to Uncle Ronald that we shared our lives.
In her third affidavit, Heather said that she agreed with the comments by Garry that the affidavit filed by Nicole was surprising because:
Aunt and Uncle had not spoken about Nicole in a way which would reflect what Nicole has said. I was surprised to see her descriptions of her level of contact with Uncle and Aunt.
In her evidence in chief, Heather said that she thought that Uncle would wish to leave everything to Garry and Brian “seeing that Graeme has already passed, so there’s no direct beneficiary within his family”. She said that she based that opinion on the couple of derogatory references made by Uncle to Nicole. She said that in her discussions with Uncle “Nicole was never uppermost in his mind”.
In cross-examination, Heather said that she thought Uncle would have left something to Nicole “on legal advice”. She did not think that he would have “consciously left Nicole anything”. She based that opinion on the fact that he never discussed Nicole with her and her family. Heather did not agree that the wording of the correspondence between Nicole and her grandfather indicated either a “close” or a “loving” relationship.
Heather thought that the first proposed will left everything to Brian and Garry, the second one was split between nine beneficiaries each receiving one ninth, and the third a fifth to Nicole. She said that she thought the first proposal was correct because she was “a firm believer” that Nicole would not have received anything had Uncle been competent to make a new will after Graeme’s death.
Relevant Decisions
Both counsel referred in their submissions to the decision of Sir Robert Megarry V-C in In re D(J)[3] in which he set out the following five propositions concerning the approach to statutory will cases:
(a)It is to be assumed that the patient is having a brief lucid interval at the time when the will is made;
(b)It is to be assumed that during the lucid interval the patient has a full knowledge of the past, and a full realisation that as soon as the will is executed he or she will relapse into the actual mental state that previously existed, with the prognosis as it actually is;
(c)It is the actual patient who has to be considered and not a hypothetical patient;
(d)During the hypothetical lucid interval, the patient is to be envisaged as being advised by competent solicitors; and
(e)In all normal cases, the patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant's pen.
[3][1982] 1 Ch 237.
However, it was also recognised by both counsel that, although some early Victorian decisions referred to the approach of the courts in the United Kingdom to the applicable legislation in that country, a clear warning was given by the Court of Appeal in Boulton v Sanders[4] that care should be taken in applying decisions under the United Kingdom legislation. Dodds-Streeton AJA highlighted the “crucial differences” between the United Kingdom legislation, which permitted a court to conduct “a wide-ranging assessment of relevant factors” and to decide “what provisions to insert in the will in accordance with the statutory purposes”,[5] and the Victorian legislation, where there was an “insistence on an accurate reflection of the likely intentions of the testator”,[6] and concluded that they dictated “a cautious approach to principles derived from the English cases”.[7] Ormiston and Charles JJA agreed with her Honour’s reasons. The former specifically mentioned his agreement with this particular point.[8]
[4](2004) 9 VR 495.
[5](2004) 9 VR 495, [22].
[6](2004) 9 VR 495, [110].
[7](2004) 9 VR 495, [54].
[8](2004) 9 VR 495, [1].
Her Honour’s construction of the then Victorian legislation is to be found in the following passages from her judgment:
While not excluding flexibility in matters of “detail”, s 26(b) requires satisfaction on the balance of probabilities that the proposed will accurately reflects the testator’s likely intentions. The question is not whether the testator would probably have preferred the proposed will to intestacy; nor whether the proposed will is one of a number of possible proposed wills, all of which might be equally likely to reflect the testator’s likely intentions. If the proposed will no more probably reflects “likely intentions” than a number of other possible dispositions, in my view the requirements of s 26(b) will not be satisfied.
Section 26(b) does not demand certainty, but probability. However, as Mandie J recognised, the requirement of accurate reflection demands a substantial degree of precision and exactitude about the “likely intentions”.[9]
[9](2004) 9 VR 495, [111]-[112].
As previously noted, the wording of s 26(b) has since been amended to delete the requirement of accurate reflection. Nevertheless, subject to that weakening of the degree of reflection, her Honour’s construction is, in my opinion, still applicable.
The best guidance to how I should approach my task is to be found, I believe, in the illuminating judgment by Palmer J of the Supreme Court of New South Wales in Fenwick, Re; Application of JR Fenwick & Re Charles.[10] His Honour exhaustively reviewed earlier cases and highlighted the problems with these decisions. His Honour also analysed the different categories of cases which arose from a lack of testamentary capacity, which he divided into the “lost capacity” cases, the “nil capacity” cases and the “pre-empted capacity” cases.[11] Obviously, the present case is a “lost capacity” case.
[10][2009] NSWSC 530.
[11][2009] NSWSC 530, [24]-[28].
After considering a number of United Kingdom and Victorian decisions, Palmer J drew attention to the change in the wording of s 26(b) of the Victorian Act as a result of the amendment in August 2007 referred to above. His Honour commented as follows:
These words clearly give the Court far more latitude in applying an objectively reasonable approach to identification of testamentary intention than did the words of the previous section. Indeed, the words of the new s 26(b) are very close in substance to the words of s 22(b) in the New South Wales Act.
My somewhat elaborate review of the UK decisions and the Victorian cases will show, I hope, that in interpreting and applying s 22(b) of the New South Wales Act, this Court should not attempt to seek guidance from earlier authority. In interpreting s 22(b) this Court should start ‘with a clean slate’; it must interpret the words of the section in the light of the problems and difficulties which the legislation seeks to remedy, bearing in mind that legislation of this kind should receive a benevolent construction: …[12]
[12][2009] NSWSC 530, [147]-[148].
Palmer J then discussed the meaning of “reasonably likely” in s 22(b) of the Succession Act 2006 (NSW), which requires the Court to be satisfied that “the proposed will … is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity”. His Honour said:
I should begin with some observations on the various meanings of “reasonably likely”, because those words in s 22(b) will have to be applied in widely different types of case.
“Reasonably” can, of course, mean “in accordance with reason”, as in the phrase “acting reasonably in all the circumstances”. It can also be used to lessen the intensity of an adjective. For example, if I were asked: “Is this action necessary”, the answer “it is necessary” would be stronger than “it is reasonably necessary”. The second answer conveys that there is some latitude, or margin of judgment, available whereas the first answer does not.
In the same way, if the Court were required to find whether a certain result is “likely” for the purposes of s 22(b), it would have to make its judgment in a ‘yes or no’ or ‘black or white’ fashion. However, if the Court were asked whether the result is “reasonably likely”, it does not have to be persuaded of likelihood to the same degree. It may answer ‘yes’ if it considers that there is a fairly good chance that the result is likely. Alternatively, it may answer ‘yes’ if it recognises that other reasonable people could regard the result as likely, even if the Court itself would differ. Thus “reasonably likely” can mean “a fairly good chance that it is likely” or “some reasonable people could think that it is likely” or “some reasonable people could think that there is a fairly good chance that it is likely”. Such are the nuances of the English language.
As I have observed, I think that “reasonably likely” must be understood in one or other of its nuances in different applications of s 22(b), as I shall show. [13]
[13][2009] NSWSC 530, [150]-[153].
His Honour then turned his attention to considering what was involved in a “lost capacity” case:
The easiest case is a lost capacity case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for a statutory codicil or new will.
The Court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do. The task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?
The evidence is likely to be on affidavit, at least in the first instance. There will be some cases in which the affidavit evidence is so clear and convincing that the Court will be satisfied at once that the incapacitated person has indeed expressed the intention reflected in the proposed will or codicil. In other cases, the Court will bear in mind that evidence on affidavit is easily moulded by the drafter and may give an impression which the Court would not receive if it saw and heard the deponent in person. Accordingly, where the affidavit evidence taken as a whole is not clear and convincing that the incapacitated person has actually expressed the testamentary wish contained in the proposed will or codicil, the Court should avail itself of the power under s 21(b) and (c) to see and hear the incapacitated person to verify the wish ascribed in the affidavit evidence.
If the Court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person “if he or she had testamentary capacity”? This question may pose little difficulty if the person’s testamentary capacity is borderline, i.e., the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty – a not infrequent symptom of testamentary incapacity.
In short, the Court should be conscious that there are two questions involved in a case of alleged actual intention under s 22(b): has the incapacitated person actually expressed the intention attributed; would the person have held that intention if possessed of testamentary capacity?
There is another question also: is the expressed intention the product of the incapacitated person’s free choice, or has some undue pressure or influence been applied? However, this question is better considered, I think, under s 22(c), to which I will come shortly.
Next is the lost capacity case in which an adult with established family or other personal relationships has made a valid will but, since losing testamentary capacity, has not expressed, or is incapable of expressing, any testamentary intention to deal with changed circumstances, such as, the birth of a child or the death of a beneficiary under the existing will.
In such a case the Court may be satisfied as to what the incapacitated person is “reasonably likely” to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person’s testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances.
For example, the will, coupled with family history, may show that it would be highly unlikely that the incapacitated person would have intended failure of a residuary bequest to create an intestacy because intestacy would benefit relatives with whom the person was not on good terms. In such a case, the Court would be satisfied that the incapacitated person would likely have made another residuary bequest; the question then is: does the proposed codicil confer the bequest on a person or charity whom or which the incapacitated person is reasonably likely to have chosen?[14] [My underlining]
[14][2009] NSWSC 530, [154]-[162].
His Honour concluded his analysis:
In summary, in a lost capacity case, the Court’s concern under s 22(b) is with the actual, or reasonably likely, subjective intention of the incapacitated person.[15]
[15][2009] NSWSC 530, [170].
Consideration of the Issue
In the only reported decision concerning a statutory will application since the 2007 amendment to the Wills Act 1997, Bell J granted the application.[16] Relevantly, his Honour referred to the 2007 amendment and said:
The significance of the amendment is that the court is no longer required to be satisfied that the proposed will would ‘accurately’ reflect the person’s likely intentions. It is sufficient for the court to be satisfied that it would reflect their ‘likely’ or ‘reasonably … expected’ intentions. In that regard, the nature of the specified information[17] illuminates the scope of the court’s function. A broad-brush approach is required, for otherwise the beneficial purpose of the function might be defeated.[18]
[16]State Trustees Limited v Do [2011] VSC 45.
[17]See s 28(a)-(k).
[18][2011] VSC 45, [11].
Whilst the phrases now used in the Victorian Act require the proposed will to reflect “what the intentions of the person would be likely to be” or “what the intentions of the person might reasonably be expected to be”, and are therefore different to the “reasonably likely” wording of the New South Wales Act, I consider Palmer J’s analysis of that wording to be of assistance in construing the alternative phrase in s 26(b). To adopt his Honour’s language, the phrase can mean “a fairly good chance that the proposed will reflects what might be the testator’s intentions”, or “some reasonable people could think that the proposed will reflects what might be the testator’s intentions”, or “some reasonable people could think that there is a fairly good chance that the proposed will reflects what might be the testator’s intentions”.
In terms of Palmer J’s first example of a “lost capacity” case, counsel for the plaintiff submitted that there was some evidence of Mr Macquire’s actual intentions about how he wanted to leave his estate after the death of Graeme. She referred to Heather’s evidence that Mr Macquire said that he wanted to leave the house to her.
However, this alleged intention was not given effect to in any of the proposed wills. The two Saunders families were always treated equally in their suggested divisions in the wills. Leaving the house to Heather would not have been an equal result for the two Saunders families as well over $800,000 of the joint assets of Mr and Mrs Macquire totalling about $950,000 appears to have come from the sale of their house.
One possible explanation for this inconsistency was Heather’s statement that:
I felt at the time that Uncle Ronald would have made the same offer to Garry, Vilma or Brian if, like me, they had been so closely involved in the lives of Ronald and Ethel as I was.
But the offer of the house was allegedly made to Heather alone, not to her to share with her brother-in-law’s family.
Another, more credible explanation, was Heather’s concession in her first affidavit that at the time Mr Macquire made these statements about leaving the house to her his “mental state was not completely intact”. She further said in her first affidavit that she believed he understood what he was saying and that Mr and Mrs Macquire relied on her and she thought he was “keen to keep me involved in their lives”. However, Heather later agreed that at the time he made the first of these statements Mr Macquire probably did not have proper testamentary capacity because his score on the mental test was 12 out of 30. She said that he “didn’t really have full capacity” at that time, “the dementia may have taken hold”. She said that after he received B12 injections his mental wellbeing improved, to about 18 when he made the other offers. But she agreed that after this Mr Macquire never mentioned making a will leaving the house to her.
I consider that, overall, the evidence points to the fact that Mr Macquire lacked testamentary capacity by the time of his son’s death. Garry said that he thought Ronald probably lost testamentary capacity about three or four years before Graeme died in 2007.
Vilma said in her second affidavit that by the time Graeme was diagnosed with terminal cancer, about 12 weeks before his death:
Ethel had lost capacity. Ronald was probably borderline in his ability to consider making a new will.
Later, Vilma said in evidence that by the time of Graeme’s death, “Aunty was well on the way with dementia and Uncle was having memory tests as well so he was not capable” and she thought that any will made at that time would not have withstood a challenge.
Brian said that he did not think that either Mr or Mrs Macquire was competent at the time of Graeme’s death. He said that “they were definitely into the phase of Alzheimer’s and dementia, how far in, I don’t know”. He said that he spoke to a solicitor about the position, but was told that new wills could not be signed unless there was proof that they were competent to make new wills.
Therefore, I consider that I cannot rely on the alleged statements by Mr Macquire that he wanted to leave the house to Heather as being a valid indication of his testamentary intention rather than the result of irrational and deluded thinking by a person lacking testamentary capacity. As Heather indicated the offer may possibly have been brought about by an unwarranted fear of losing her care and support.
Of course, if Mr Macquire did have proper testamentary capacity after his son’s death, then it does not assist the plaintiff’s case that he did nothing to change his will to leave the house to Heather, or to leave some or all of his assets to the Saunders or to indicate in any way that he was unhappy with his current situation, namely, that all of his assets would go to his granddaughter either under his 1973 will or under an intestacy.
However that may be, none of the wills proposed by the plaintiff “truly implements” what the plaintiff relies on as evidence of Mr Macquire’s likely intentions, that is, that he wanted Heather to inherit the house or the capital sum realised by its sale.
In terms of Palmer J’s second example of a “lost capacity” case, counsel for the plaintiff submitted that the evidence supported the conclusion that Mr Macquire’s “likely intentions” were that he would have wanted to leave his estate substantially to the Saunders after the death of his son and beneficiary, Graeme. She submitted that the Saunders families were the Macquires’ “family in every practical way”. I accept her submission that the affidavits describe a long-term close, loving and supportive relationship between Mr and Mrs Macquire (before she died) and the nephews and their families. I also accept her submission that it can be inferred that Mr Macquire would consider his wife’s likely wishes in reaching his own wishes.
However, even accepting that this relationship was as close as the Saunders witnesses maintained, it is clear that they had little, or no, understanding of the relationship between the Macquires and their granddaughter. This became clear once Nicole’s affidavit and its exhibits were served. At best for the Saunders witnesses, they misread the Macquires’ feelings for their granddaughter. At worst, they presented a completely distorted picture of that relationship.
In the circumstances, it is not necessary for me to make any finding on that issue because, even on the most favourable view of the evidence for the Saunders families, I am not satisfied on the balance of probabilities that the fourth proposed will reflects what Mr Macquire’s intentions would be likely to be, or what his intentions might reasonably be expected to be, or that there is a fairly good chance that it reflects what his intentions might be, or that some reasonable people could think that it reflects what might be his intentions, or that some reasonable people could think that there is a fairly good chance that it reflects what might be his intentions, if he had testamentary capacity after the death of his son and wife. I am not satisfied that he would want to change his will to prevent his granddaughter from inheriting the whole of his estate.
I accept that the relationship between the Macquires and Nicole was not as close as many relationships between grandparents and grandchild. However, this is readily understandable given the difficulties imposed on that relationship as a result of the late start to the contact between them, and the distance between their homes once contact was made. Nevertheless, I consider that the evidence shows that Mr and (the late) Mrs Macquire loved their granddaughter and that they, and in particular he, would have wanted her to benefit after the death of both of them.
The plaintiff’s counsel also submitted that the Court should take into account the fact that the propositus chose to downplay his contact with Nicole, and that for some reason he was unwilling to acknowledge her to the rest of the family. I do not find this reticence, if in fact it existed, so strange. Mr and Mrs Macquire were of an age that they would have grown up in a society where a child born out of wedlock was frequently described as “illegitimate”, with all the connotations that that word conveyed. They may have been concerned about how the Saunders families would react to their joy at the establishment of a relationship with their only grandchild.
Counsel for the plaintiff further submitted that the putative willmaker would have been advised by a competent solicitor of the ability of the Saunders family members to bring a claim seeking provisions under Part IV of the Administration and Probate Act 1958. On the other hand, counsel for the defendant submitted that they would have no proper basis for making such an application. She pointed out that both Garry and Vilma and Brian and Heather owned their own homes with no mortgage, they had secure income, some modest investments and no debts. Counsel contrasted this with Nicole’s poor financial position and submitted that if the terms of Mr Macquire’s current will were altered by the Court in the terms sought by the plaintiff, Nicole would have a clear claim for further provision under Part IV upon Mr Macquire’s death.
Whilst one of the matters the Court may take into account when considering an application such as this is “the likelihood of an application being made under Part IV of the Administration and Probate Act 1958”,[19] this is an application for a statutory will not a family provision application. The task of the Court in the two applications is quite different.[20]
[19]Wills Act 1997, s 28(g).
[20]Hill v Hill [2001] VSC 83, [14] (Byrne J).
In my opinion, it is sufficient for present purposes if I simply say that, after considering the likelihood of family provision applications being made, I have not altered my view that the plaintiff’s application should be refused.
Counsel for the defendant submitted that there was no basis for making a statutory will extinguishing or reducing the benefit that the granddaughter would receive under Mr Macquire’s 1973 will. Mr Macquire had known that he had a granddaughter since at least 1978, but had no real relationship with her until 1992. In the ensuing period between the start of the relationship and losing his testamentary capacity, he apparently saw no reason to change his will to exclude his granddaughter from benefiting from his estate or to include the members of the Saunders families as beneficiaries of all or part of his estate.
Counsel for the plaintiff submitted that there was no reason for Mr Macquire to do any such thing whilst Graeme was alive and well. The period of his terminal illness was short and in any event Mr Macquire was probably not of full capacity then. I agree with those submissions. Counsel also pointed out that the evidence also disclosed that when his brother-in-law died, it took Mr Macquire eight years before he got around to making a new will replacing the brother-in-law as his executor.
Nevertheless, in my opinion, where there is a valid and operative will, an applicant for a statutory will has to make out a case for the Court interfering with the existing arrangements. I agree with the statement of Byrne J in Re Fletcher, ex parte Papaleo,[21] that “it is a serious step to make or to modify a will”. As I have said, I am not persuaded that I should do so. I agree with the submission by the defendant’s counsel that the fact the proposed beneficiaries had a good relationship with Mr Macquire and provided him with some level of care, particularly after Graeme’s death, does not mean that Mr Macquire is reasonably likely to have provided for them in his will in preference to his only grandchild receiving the share her father would have taken had he not predeceased his parents.
[21][2001] VSC 109, [22]. See also Hill v Hill [2001] VSC 83, [8] (Byrne J).
Moreover, even if I had decided that following the death of his wife and son, Mr Macquire, if he had testamentary capacity, would have wanted to make some provision for the Saunders families in his will, I am not satisfied on the balance of probabilities that the fourth proposed will reflects what the intentions of Mr Macquire would be likely to be, or what his intentions might reasonably be expected to be, or that there is a fairly good chance that it reflects what his intentions might be, or that some reasonable people could think that it reflects what might be his intentions, or that some reasonable people could think that there is a fairly good chance that it reflects what might be his intentions, concerning the division of his estate if he had testamentary capacity. According to the Saunders witnesses, they were the persons best placed to give evidence of what those intentions might be. But they seemed rather uncertain about what division of the estate would reflect Mr Macquire’s likely intentions or what his intentions might reasonably be expected to be.
Thus, during the hearing, various divisions of Mr Macquire’s estate were referred to by the four Saunders witnesses. Surprisingly despite having sworn affidavits deposing to how Mr Macquire would have wanted to deal with his estate if he had testamentary capacity and then swearing further affidavits agreeing with the first change made to the proposed will, they all seemed very vague about what the plaintiff was actually seeking on their behalf. In the end, the following divisions were mentioned as being what was being, or had been, sought:
(a) half to each of Garry and Brian and nothing to Nicole;
(b)half to Garry and Vilma jointly and half to Brian and Heather jointly and nothing to Nicole (the first proposed will);
(c)one ninth to each of the four Saunders parents, the four Saunders children and Nicole;
(d)one fifth to each of the four Saunders children and Nicole;
(e)one fifth to each of Garry, Vilma, Brian, Heather and Nicole (the second proposed will);
(f) 70% to Garry and Brian and 30% to Nicole;
(g) one third to each of Garry, Brian and Nicole; and
(h)one third to Garry and Vilma jointly, one third to Brian and Heather jointly and one third to Nicole (the fourth proposed will).
In the light of these frequent and continuing changes it seems to me that I can place little, or no, weight on the evidence from the four Saunders witnesses as to what Mr Macquire’s likely intentions were because they really had no idea themselves other than that their families, in one form or other, should receive the major share of the estate.
In my opinion, the task of a Judge under s 26 of the Wills Act 1997 is to assess the terms of the proposed will not to approve a completely different will drafted by him or her. In Boulton v Sanders, Dodds-Streeton AJA said that:
where the court is satisfied that a proposed will fundamentally fulfils the condition in s.26(b) but requires adjustments, it can modify, alter or redraft the terms of the proposed will in order to perfect its conformity to the testator's likely intentions.
It will be obvious from what I have said above that I do not consider that the fourth proposed will “fundamentally fulfils the condition in s 26(b)” and that even allowing for some “flexibility in matters of ‘detail’ ”,[22] it can never do so.
[22]Boulton v Sanders (2004) 9 VR 495, [111] (Dodds-Streeton AJA).
There is also the issue of whether Mr Macquire would have wanted to include the trust relationship in his will in order to protect Nicole’s inheritance from the consequences of her bankruptcy. Counsel for the plaintiff submitted that a competent solicitor would have advised that this was a sensible and lawful step to take. I am not so sure. Mr Macquire may well have taken the view that the best outcome for Nicole was to enable her to bring her bankruptcy to an end by paying her creditors and to start afresh with what remained from his estate. It would seem that there would still have been enough to enable Nicole to obtain secure accommodation which was something which had been lacking in her life to date.
Finally, for all of the above reasons, I am not satisfied, as required by s 26(c) of the Wills Act 1997, that it is reasonable in all the circumstances for the Court, by order, to authorise the making of the fourth proposed will.
Conclusion
Accordingly, there will be an order that the plaintiff’s application for leave to apply to the Court for an order authorising a will to be made on behalf of Ronald Ernest Macquire be refused. I will hear from the parties on the question of costs.
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