Seale v Cross
[2003] WASC 237
SEALE & ANOR -v- CROSS & ORS [2003] WASC 237
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 237 | |
| Case No: | CIV:2256/1998 | 25 SEPTEMBER 2003 | |
| Coram: | JOHNSON J | 25/11/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Pronounce for the force and validity of the Will of Jane Ellen Murray dated 17 July 1993 in solemn form | ||
| B | |||
| PDF Version |
| Parties: | ROSEMARY ANN SEALE MAXINE MARGARET CROSS JOHN CAMPBELL CROSS JANE MARGARET CROSS ANDREW FERGUSON SEALE ROBERT MATTHEW SEALE PHILLIP AMBROSE DEPIAZZI BERNARD JOHN DEPIAZZI FRANK SHINE WILLIAM BARRIE SHINE BISHOP PETER QUINN, THE ROMAN CATHOLIC BISHOP OF BUNBURY |
Catchwords: | Wills Validity Testamentary capacity Whether testator had mental capacity Turns on own facts |
Legislation: | Nil |
Case References: | Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Collins by her next friend Poletti v May [2000] WASC 29 Crago v McIntyre (1976) 1 NSWLR 729 Du Maurier v Weschler [2001] NSWSC 4 Shaw v Crichton, unreported; SCt of NSW (Bryson J); No 113127 of 92; 22 July 1994 Worth v Clasohm (1942) 86 CLR 439 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SEALE & ANOR -v- CROSS & ORS [2003] WASC 237 CORAM : JOHNSON J HEARD : 25 SEPTEMBER 2003 DELIVERED : 25 NOVEMBER 2003 FILE NO/S : CIV 2256 of 1998 BETWEEN : ROSEMARY ANN SEALE
- MAXINE MARGARET CROSS
Plaintiffs
AND
JOHN CAMPBELL CROSS
First Defendant
JANE MARGARET CROSS
Second Defendant
ANDREW FERGUSON SEALE
Third Defendant
ROBERT MATTHEW SEALE
Fourth Defendant
PHILLIP AMBROSE DEPIAZZI
Fifth Defendant
BERNARD JOHN DEPIAZZI
Sixth Defendant
FRANK SHINE
Seventh Defendant
(Page 2)
- WILLIAM BARRIE SHINE
Eighth Defendant
BISHOP PETER QUINN, THE ROMAN CATHOLIC BISHOP OF BUNBURY
Ninth Defendant
Catchwords:
Wills - Validity - Testamentary capacity - Whether testator had mental capacity - Turns on own facts
Legislation:
Nil
Result:
Pronounce for the force and validity of the Will of Jane Ellen Murray dated 17 July 1993 in solemn form
Category: B
Representation:
Counsel:
Plaintiffs : Mr D L Jones
First Defendant : No appearance
Second Defendant : Ms K A Gorski
Third Defendant : Ms K A Gorski
Fourth Defendant : Ms K A Gorski
Fifth Defendant : In person
Sixth Defendant : No appearance
Seventh Defendant : Mr S P Eley
Eighth Defendant : No appearance
Ninth Defendant : No appearance
(Page 3)
Solicitors:
Plaintiffs : Fiocco's Lawyers
First Defendant : No appearance
Second Defendant : Feinauer & Associates
Third Defendant : Feinauer & Associates
Fourth Defendant : Feinauer & Associates
Fifth Defendant : In person
Sixth Defendant : No appearance
Seventh Defendant : Clayton Utz
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Collins by her next friend Poletti v May [2000] WASC 29
Crago v McIntyre (1976) 1 NSWLR 729
Du Maurier v Weschler [2001] NSWSC 4
Shaw v Crichton, unreported; SCt of NSW (Bryson J); No 113127 of 92; 22 July 1994
Worth v Clasohm (1952) 86 CLR 439
Case(s) also cited:
Nil
(Page 4)
1 JOHNSON J: The plaintiffs are named as executors and trustees in the Will of Jane Ellen Murray ("the deceased") executed on 17 July 1993 ("the 1993 Will"). The deceased had previously executed a Will on 21 November 1986 ("the 1986 Will"). The deceased died on 28 July 1997.
2 The death certificate issued on 11 August 1997 identified the contributory causes of the death of the deceased as congestive cardiac failure and Alzheimer's disease. The death certificate did not state the duration of the Alzheimer's disease.
3 In view of the question of testamentary capacity raised by the reference in the death certificate to Alzheimer's disease, the plaintiffs' solicitor wrote to the deceased's doctor, Dr Sheerin. Dr Sheerin was asked for his opinion as to whether the deceased, because of the effects of her alleged Alzheimer's disease, would have known and approved its contents when the 1993 Will was executed by her. The solicitor's letter did not set out what is required, in a legal sense, to establish testamentary capacity. On 13 October 1997 Dr Sheerin wrote to the plaintiffs' solicitors that he had perused his records and, in his opinion, the deceased did not have testamentary capacity on 17 July 1993. On 16 October 1997 the plaintiffs' solicitors again wrote to Dr Sheerin asking him to explain why the deceased lacked testamentary capacity as the nursing home had advised that there was no indication in the notes of the home that this was in fact evident. Dr Sheerin responded by letter dated 5 November 1997. It is apparent from the tone of that letter that Dr Sheerin considered that the request for further information constituted an unwelcome questioning of his opinion. He states:
"Mrs Murray (D) was assessed by a Consultant Geriatrician on the 23rd February 1993 who found she had emerging dementia of presumed Alzheimers type. This condition is progressive and she required to be transferred to a nursing home in October 1993.
As you have questioned my opinion as to Mrs Murray’s (D) legal capacity I have read the hostel records of Mrs Murray's (D) behaviour as written by staff members from January 93 to October 93 which in my opinion corroborates increasing cognitive impairment."
4 In view of the information received from Dr Sheerin, the Registrar refused to make a grant of probate of the 1993 Will under the Non-Contentious Probate Rules.
(Page 5)
5 The plaintiffs contend that the deceased did have testamentary capacity at the time the 1993 Will was executed and did know and approve its contents. They contend that the deceased only entered a nursing home in October 1993 because of urinary incontinence and lack of mobility and not because of any problems associated with dementia and, further, that at no time during her residence in the nursing home prior to her death was any reference ever made to the plaintiffs by doctors or nursing staff that the deceased, their aunt, was suffering from Alzheimer's Disease.
6 In their claim, the plaintiffs seek to propound the 1993 Will as the last validly executed Will of the deceased and the plaintiffs claim that the Court pronounces the force and validity of the Will executed by the deceased on 17 July 1993 in solemn form of law.
7 By counterclaim, the defendants seek to propound the 1986 Will on the basis that it was the last valid Will of the deceased prior to her death. The defendants seek orders that the Court pronounce the force and validity of the 1986 Will and pronounce against the force and validity of the 1993 Will.
8 Following commencement of the proceedings, the parties reached a settlement of the action. Pursuant to O 43 r 16, on 23 November 2001 Master Sanderson ordered that the undated Deed of Settlement signed by the parties to the action stamped by the State Revenue Department on 27 September 2001 be sanctioned by the Court and that the terms of the Deed of Settlement stand in substitution for the terms of the Will of Jane Ellen Murray, deceased, executed on the 17 July 1993.
9 At the hearing of this action counsel for the plaintiffs advised that the plaintiffs would not pursue their claim for a grant of probate of the 1993 Will. They do not oppose the application for a grant of probate of the Will of 21 November 1986. It is noted that there has been compliance with the formal requirements for the proof of both the 1993 Will and the 1986 Will. The issue of the deceased's testamentary capacity as at 21 November 1986 has not been raised by any of the parties. The only live issue in this action is whether the deceased lacked testamentary capacity at the time of the execution of the 1993 Will.
10 The legal principles to be applied when determining testamentary capacity are well settled. A duly executed Will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding: see Bull v Fulton (1942) 66 CLR
(Page 6)
- 295 at 343; Worth v Clasohm (1952) 86 CLR 439 at 453. Where the onus is displaced, the onus falls on the proponent of the Will to demonstrate that the testator has testamentary capacity: Bull v Fulton at 343. The standard of proof required of the proponent of a Will is the ordinary civil standard of proof: see Bailey v Bailey (1924) 34 CLR 558, per Isaacs J, at 570 - 571.
11 In circumstances where the Court is often confronted with competing affidavit material on the issue of capacity, it is important to recognise that a residual doubt about testamentary capacity is not sufficient to displace the presumption of testamentary capacity. In Worth v Clasohm the High Court held at 453:
"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."
12 The classic statement of testamentary capacity can be found in Banks v Goodfellow (1870) LR 5 QB 549 where Cockburn CJ set out at 565 the factors which are essential to the exercise of testamentary power:
"It is essential to the exercise of such a power [disposition by the execution of a Will] 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 delusions 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."
13 See also Du Maurier v Weschler [2001] NSWSC 4 at 39.
14 In relation to understanding the nature of the act and its effect, as Knox CJ and Starke J observed in Bailey v Bailey at 567, all that is required at the time of the signing of the Will is that the testator's mind
(Page 7)
- and memory is sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his Will.
15 Further, in applying the factors identified in Banks v Goodfellow, it must be kept in mind that it is not enough for the testator to know and understand how he is leaving his property when he executed his Will. He must also possess sufficient capacity to appreciate what his property is and recognise the persons who have a moral claim upon him and, more importantly for present purposes, a capacity to exercise a balanced judgment as to such claims: Crago v McIntyre (1976) 1 NSWLR 729 at 740; cited with approval by Owen J in Collins by her next friend Poletti v May [2000] WASC 29 at [61].
16 To comply with the requirement that the testator understands the extent of the property of which he is disposing, it is not necessary to establish that the testator recollected each and every item of property he or she possessed: Shaw v Crichton, unreported; SCt of NSW (Bryson J); No 113127 of 92; 22 July 1994.
17 In determining testamentary capacity, consideration should also be given to the nature of the Will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries: Bailey v Bailey, above, at 571, per Isaacs J.
18 As to this latter aspect, there is nothing about the terms of the 1993 Will which would raise concerns as to capacity. The primary beneficiaries under the 1993 Will are the plaintiffs, the deceased's nieces with whom she had considerable contact. The remaining beneficiaries are the first, second, third and fourth defendants, the children of the plaintiffs. Subject to specific bequests of jewellery and personal effects, the 1993 Will directs that half the remainder of the deceased's estate be given to the plaintiffs and the other half be equally divided between the first second, third and fourth defendants in equal shares. The sixth defendant, the deceased's nephew, is a beneficiary under the 1993 Will, but only to the extent that his debts owing to the deceased are to be cancelled. It is also clear from the terms of this Will that the deceased was able to call to mind items of jewellery the subject of specific bequests.
19 The plaintiffs, the deceased's nephews, being the fifth, sixth, seventh, eighth defendants, and the Roman Catholic Bishop of Bunbury are named as beneficiaries in the 1986 Will. The 1986 Will made
(Page 8)
- specific bequests to the plaintiffs and to the sixth defendant in the sum of $20,000. Further bequests in the sum of $10,000 were made to the fifth, seventh and eighth defendants. Further bequests of $10,000 were made to the first, second, third and fourth defendants subject to them attaining 21 years of age. Subject to certain bequests of furniture and personal items and jewellery, the remainder of the estate was devised by giving the deceased's home unit at 2 Stevenson Street, Mandurah to the Roman Catholic Bishop of Bunbury, with the balance of the estate to be equally divided between the plaintiffs and the fifth, sixth, seventh and eighth defendants.
20 Whilst there have been changes to the dispositions under the Will, a comparison of the 1986 Will and the 1993 Will raises no concerns as to an alteration in testamentary capacity. Of course, that factor alone is not sufficient to discount the issue as to capacity raised by Dr Sheerin.
21 Other evidence as to capacity comes from an affidavit filed by the second-named plaintiff, Maxine Margaret Cross, who is also a registered nurse. Ms Cross deposes to the fact that the deceased was the younger sister of Ms Cross's mother. Throughout her life Ms Cross has had a great deal of contact with the deceased, especially during the latter part of her life. The deceased lived independently in Mandurah for many years and often travelled to Perth to visit Ms Cross and her mother. During the period 1986 to 1992 the deceased maintained good health. Although during this period Ms Cross was working full-time, she visited the deceased every six to eight weeks. Also during this period the deceased would come to Perth during the Christmas holidays and stay with Ms Cross. In 1992 the deceased started to have problems with her legs and had difficulty in moving around and looking after herself. Accordingly, she decided to sell the unit in Mandurah and move to a hostel in West Leederville, a minimally supervised hostel for elderly persons. For this purpose it was required that a medical certificate be obtained from the deceased's treating general practitioner, Dr Nathan Francis. The certificate dated 13 February 1992 indicated that she did not suffer from any mental illness, that she was not liable to mental confusion or disorientation, nor was she apt to wander. Further, on admittance to the hostel, the deceased was assessed by a representative of the hostel. There is no suggestion in that assessment that the deceased was suffering from any mental confusion. To the contrary, the responses which are directly quoted are consistent with normal mental faculties.
22 According to Ms Cross, the deceased remained at the hostel in West Leederville until January 1993. During this period Ms Cross
(Page 9)
- visited the deceased at least four to five times per week. As a result of the deceased's inability to move around freely, she requested Ms Cross to assist her with her financial affairs. Ms Cross states that the deceased would provide her with instructions in regard to her banking and her other investments and, after completing her instructions, on her next visit Ms Cross would show the deceased the bank deposit slips and any other receipts which she had received when completing her instructions.
23 Ms Cross states that in January 1993 the deceased's condition with her legs became worse. She had one or two falls and it was necessary to move her from the West Leederville Hostel to a more supervised hostel for elderly people. In January 1993 the deceased moved to Joseph Cooke Hostel where she remained until October 1993. In October there was a further deterioration in the deceased's mobility and she was also suffering from incontinence. In October 1993 the authorities at Joseph Cooke Hostel requested that arrangements be made to move the deceased from the hostel because she would not cooperate with nursing staff in that she refused to wear incontinence pads. As a result, when she suffered incontinence, the carpets in her room became soiled and had to be cleaned frequently. The authorities at the Joseph Cooke Hostel, therefore, suggested that the deceased be moved to another organisation where the floors were vinyl covered. Accordingly, arrangements were made for the deceased to be moved to the Two Pines Nursing Home where she remained until her death. It is apparent from this account that whatever the views of the deceased's carers as to her lack of capacity, no one communicated such a view to Ms Cross.
24 It would seem from the evidence that it was at the Joseph Cook Hostel that Dr Sheerin commenced treating the deceased. The material before me does not identify the number of occasions on which Dr Sheerin met with the deceased. In his report, Dr Sheerin refers to the fact that a consultant geriatrician saw the deceased on 23 February 1993 and found her to have "emerging dementia of presumed Alzheimers type". A copy of that report or a statement from this doctor does not form part of the materials before me. Dr Sheerin's evidence on the point is hearsay and I am unable to analyse the impact of "emerging dementia" on the deceased's capacity at the relevant time.
25 Dr Sheerin also asserts that the integrated progress notes written by staff members between January 1993 and October 1993 corroborates his conclusions on the deceased's capacity. Those notes were available to the Court and contain one reference to "altered mental state". There is also reference to an occasion on which the deceased went to bed and then got up at midnight thinking it was morning and got dressed. When
(Page 10)
- she realised her error, she returned to bed. I note in passing that the deceased would not be the first person who has become disorientated on awaking from sleep and acted in such a way. There is no reference in the notes to Alzheimer's disease or to dementia. Indeed, if that was her diagnosis, the staff were less than patient with the deceased. In the notes the deceased is variously described as irritable and cranky, stubborn, uncooperative and depressed. The complaints from the nursing staff principally relate to her personal hygiene arising from her incontinence, her refusal to wear incontinence pads and a reluctance to bathe. It is also apparent that the deceased would deny to Dr Sheerin that she was incontinent. Another cause of the staff's complaints was the deceased's refusal to get out of bed on some days to attend meals or to participate in exercise programmes. This conduct, which is so harshly judged in the notes by the staff, should be considered in light of the deceased's physical problems and what is described in the notes as "extreme difficulties with mobility".
26 It is clear from the integrated progress notes that the deceased was a difficult and irascible patient whose refusal to acknowledge her incontinence caused great inconvenience to the staff. Whilst such conduct may be consistent with "emerging dementia", it may be equally consistent with a physically disabled, strong-willed woman having difficulty in coping with her situation.
27 Ms Cross describes the deceased as having always been an independent woman who was still determined to look after her affairs. However, because of her increasing mobility problems, she was unable to travel by motor vehicle from the hostel to attend to her business affairs. As a result, in July 1993 the deceased gave Ms Cross a Power of Attorney to enable her to attend to her financial and other affairs. Although the deceased conferred on Ms Cross a Power of Attorney, she still discussed with Ms Cross what was required with respect to her financial affairs. From her association with the deceased Ms Cross states that during the period March 1992 to October 1993 the deceased was unable to look after herself physically. However, according to Ms Cross, the deceased was still able to provide Ms Cross with instructions as to what matters she required to be attended to regarding her financial affairs.
28 Ms Cross’s affidavit evidence contradicts the picture presented by Dr Sheerin. Ms Cross is a nurse and had extremely regular contact with the deceased over many years and at the relevant time. She engaged with the deceased in conversations with respect to the deceased's financial affairs consistent with a person who has mental capacity.
(Page 11)
- Ms Cross is clear in her view that at the time of the execution of the 1993 Will, interestingly enough at the same time that the Power of Attorney was executed, the deceased was capable of providing instructions and understanding the effect of her actions.
29 In his report, Dr Sheerin appears to have accepted someone else's diagnosis of emerging Alzheimer's in light of his observations of the deceased and assumed that such a diagnosis is inconsistent with testamentary capacity. Whilst in many cases such a conclusion might be valid, it is, in my view, essential that medical practitioners are provided with some understanding of the legal test for testamentary capacity before providing an opinion.
30 The effect of the evidence of Dr Sheerin is to raise a doubt about capacity requiring a close analysis of the evidence of a whole. Ms Cross, a close relative with regular contact, deposes to the fact that at the relevant time the deceased was able to deal with her financial affairs by providing appropriate instructions to Ms Cross on whom she had conferred a Power of Attorney. Further, there is nothing in the 1993 Will itself which raises concerns as to the testator's capacity.
31 In my view, having considered the balance of the evidence, the doubt raised by the comments of Dr Sheerin is not substantial enough to preclude a belief that the 1993 Will is the Will of a testator who possessed sound mind, memory and understanding at the time of its execution: Worth v Clasohm at 453.
32 For these reasons, notwithstanding the advice by counsel for the plaintiffs that they do not pursue their claim to a grant of probate for the 1993 Will and do not oppose a grant of probate of the 1986 Will, I must pronounce for the force and validity of the Will of Jane Ellen Murray dated 17 July 1993 in solemn form.
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