Smith v. Sahner

[2007] QSC 102

SUPREME COURT OF QUEENSLAND

CITATION:

Smith v Sahner [2007] QSC 102

PARTIES:

Myriam Therese Smith

(Plaintiff)

Chantal Myriam Sahner

(Defendant)

FILE NO/S:

S215/2005

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

10 May 2007

DELIVERED AT:

Townsville

HEARING DATE:

3,4 May 2007.

JUDGE:

Cullinane J

ORDER:

Subject to the formal requirements of the Registrar, a grant of probate of the will of Josef Lux dated 15^th April 2002, be issued in solemn form.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - UNDUE INFLUENCE – FRAUD - where plaintiff sought grant of probate in solemn form – whether the testator had testamentary capacity at the time of giving instructions or executing the will – whether the testator was subject to undue influence and fraud – whether the testator knew of the contents of his will.

Bull v Fulton (1942) 66 CLR 295, cited.
Worth v Clasohn (1952) 86 CLR 439, cited.
Banks v Goodfellow (1870) LR 5QB 549, cited.

COUNSEL:

Mr. R D Peterson for the Plaintiff

Mr. C White for the Defendant

SOLICITORS:

Wilson, Ryan & Grose for the Plaintiff

Roberts, Nehmer McKee for the Defendant

1. In this action the plaintiff as executrix has instituted proceedings seeking a grant in solemn form of what is said to be the last will of the deceased dated 15 April 2002.

1. The deceased died on 8^th September 2002. 

1. A grant of probate in the plaintiff's favour was made on 6^th May 2003 but subsequently an application was made to revoke the grant of probate and an application was made seeking a grant of probate of an earlier will dated 2^nd June 1998. The plaintiff was ordered to return the grant of probate to the registry and these proceedings were commenced. The defendant has counterclaimed seeking probate of the earlier will. She has also instituted proceedings under the Succession Act seeking provision out of the estate.

1. The deceased died on 8^th September 2002.

1. The defendant is the daughter of the deceased and the plaintiff.  The defendant was born during the currency of the plaintiff's marriage to another person.  The plaintiff and the deceased had a relationship whilst living in Sydney and the defendant is the child of it.

1. There is some dispute as to just when the defendant became aware she was the deceased's child.  She says that although she had treated the plaintiff's husband as her father the plaintiff told her when she was thirteen, that the deceased was her father or that the plaintiff thought that the deceased was her father.  Certainly the relationship between the deceased and the plaintiff and the defendant had been a close one while the defendant was growing up and during her adult life.  On three occasions she travelled to Germany with the deceased and the deceased when he came to Townsville in the second part of 1999 lived with her and her husband.  Thereafter when the deceased bought his own home the defendant and the deceased conducted themselves in a way similar to what might be expected of a close father and daughter relationship. The defendant provided considerable assistance to her father during his ill health.

1. The plaintiff claims that she only became aware that the deceased was the father of the defendant when after his death the defendant instituted proceedings seeking a declaration of paternity, which the plaintiff contested until DNA testing established that the deceased was the father.  She says that prior to that the deceased had led her to believe that he was not the father because of reasons associated with his belief as to his capacity to father a child.  I think it is more likely that what the defendant says on this subject is correct having seen and heard both of them.  Certainly the claim advanced in Exhibit 5 which was a letter written on behalf of the plaintiff to the defendant's solicitors during the currency of that litigation claiming that she had never had a sexual relationship with the deceased is not credible.

1. In the earlier will, the deceased appointed the defendant his executrix and sole beneficiary provided she survived him. She is his only child. 

1. In the will, which is the subject of these proceedings the deceased appointed the plaintiff his executrix and sole beneficiary, again provided she survived him.  In the event that she did not the deceased's estate was to go to the defendant.

1. The plaintiff has married again and lives with her husband here in Townsville and has for many years.  She and her husband had been on good terms with the deceased since he moved to Townsville.  When he came to Townsville he resided with the defendant and her husband for a few months, when following a disagreement with the defendant's husband he lived with the plaintiff and her husband for about the same time as he had lived with the defendant and her husband. He then purchased a house at Cape Cleveland.  The deceased was dependant in a number of ways upon the defendant and also upon the plaintiff and her husband.  On virtually every day at least in the latter part of his life he was visited by one or other of them. 

1. The plaintiff says that in early 2003 she was spoken to by the deceased about his will. He told her that moneys he intended for her (the plaintiff) were going to be used by him to discharge the mortgage of the defendant and her husband so that they would be debt free. He told the plaintiff he intended to leave his property (which is essentially what the estate consists of) to her and asked her to make an appointment with a solicitor on his behalf.

1. The deceased was diagnosed with motor neurone disease in 2001.  This condition progressively worsened until his death and he required the assistance of others in a number of ways.

1. The plaintiff after making a number of phone calls arranged an appointment for the deceased at the office of Arthur Browne and Associates.  Neither the plaintiff nor the deceased had had any previous contact with Mr Browne although Mr Browne thought he had some recollection of the plaintiff at some time being in the office.

1. Mr Browne gave evidence of the plaintiff and the deceased coming to his office.  I am satisfied that he spoke to the deceased alone and that the substance of what the deceased informed him is found in Exhibit 5.  This exhibit is constituted by handwritten notes and a typed copy.  There are some differences between the two. 

1. The typed copy contains the following:

"I attended Mr Josef Lux and his friend Miriam Therese Smith.

Joseph Lux previously lived with Myriam Therese Smith and as result of that relationship a child Chantel Myriam Sahner was born.  Her maiden name was Chantel Kahr.

The position is that Mr Lux has suffered a stroke.  He is disabled in his right hand but was still able to sign with his right.

I gained the impression that although he was 66 years of age his mental capacity was excellent and he was able to properly communicate with me and had total recall of names, events etc when giving me instructions.

He said that he wanted to benefit Miriam because Miriam and her husband had been very supportive of him and have cared for him during his illness.  He said that he did not wish to benefit Chantal directly because he has in recent times given financial benefit to Chantal and her husband in assisting them to pay for their house and he is somewhat distrustful of Chantal’s husband in handling money as he is likely to waste any money which Chantal might receive from his Will.  He is confident that by benefiting Myriam that upon her death Myriam will benefit Chantal."

1. In the handwritten notes the last note is as follows:

"Myriam will benefit Chantal when she dies."

1. Mr Browne’s notes provide some support for the account given by the deceased to the Plaintiff for wanting to change his will. The defendant gave evidence that the deceased paid $105,000.00 in early 2002 to the mortgagee to discharge the mortgage.

1. The plaintiff also gave evidence that the deceased had spoken disparagingly of the defendant’s husband’s financial responsibility. Again Mr Browne’s notes of his conversation with the deceased provide some support for what she says.

1. According to Mr Browne, although the deceased had some slurring of his speech and was somewhat physically disabled because of the motor neurone disease which he was suffering from, he was mentally alert and made clear what his testamentary wishes were.

1. According to Mr Browne the deceased read the will and he read the will to the deceased before the deceased executed the will before two witnesses.

1. In my view Mr Browne provides cogent evidence that the will contained the wishes of the deceased and that he understood what was in the will that Mr Browne read to him and that it contains his testamentary wishes.

1. There is no question about the due execution and witnessing of the will.

1. Dr Cairns, who is a palliative specialist, had the care of the deceased from late 2001.  The deceased had developed motor neurone disease which affected his dexterity and came to affect the motor functions of his lower limbs. 

1. The deceased’s situation was deteriorating and in March 2002 the question of whether he could continue to cope in his own home was raised.  The deceased was described by Dr Cairns as being reluctant to depend on others and he assessed him as being “stubbornly independent”.  There was a discussion about the options open for his future care as his condition deteriorated.  Although he was at that time on a drug regime Dr Cairns thought that he had a good understanding of these matters.

1. Dr Cairns again saw him on 5^th April 2002.  There was a discussion about placement options.  He had no recollection of any change in the deceased’s condition generally.  His notes of a meeting on 10^th May 2002 show the deceased in status quo.

1. It was Dr Cairns’ view that the deceased had testamentary capacity during this time, that there was no evidence to suggest he lacked the ability to understand what his property was, and who he should benefit.  He was not delusional in any way.

1. Subject to some specific matters which I will refer to in a moment the case for the defendant was conducted in large part upon the basis that the defendant's claim upon the deceased's bounty was so manifest and overwhelming that the only explanation for his having changed his will could be the exercise of undue influence by the plaintiff or a lack of capacity to make a will on his part.

1. A good deal of the evidence was concerned with the assistance provided by the defendant to the plaintiff and a comparison of that with the assistance provided by the plaintiff and her husband.  There were a number of disputes about events which had occurred but I do not think in the end result these are of any critical importance.  A number of specific arguments were advanced in support of the defendant's claims pleaded in the defence.

1. It was contended that the remarks recorded by Mr Browne in Exhibit 5 (in the typed notes "He is confident that by benefiting Myriam that upon her death Myriam will benefit Chantal", and in the handwritten notes "Myriam will benefit Chantal when she dies") exhibited a desire on the part of the deceased to benefit the defendant and this should have been given effect to in the will by Mr Browne by providing for a life interest to the plaintiff with the defendant to succeed upon the plaintiff's death.  This proposition cannot be accepted.  Indeed it is not relevant since the action is concerned with the validity of the will as executed.  In any case it is clear in my view that the deceased, who had told Mr Browne that he did not wish to benefit the defendant directly, was expressing an expectation and presumably a hope that the plaintiff would provide for the defendant in her will. 

1. When the deceased told the defendant he had changed his will (this occurred only a few days before he entered hospital shortly before his death) he told her, according to the defendant, that nothing had changed and the plaintiff was the caretaker of the property for her.  He suggested that they go and see a solicitor and confirm this.  If the deceased spoke in this way to the plaintiff it may have been in an attempt to soften the blow or he may have wished to avoid giving what might have been a hurtful explanation of the reasons why he had changed his will.  I do not rule out the possibility that at this time he may also have been confused.  There is some evidence of abuse of the drugs he was prescribed and an abuse of alcohol as the end approached.  None of these things however can affect the validity of the will which has to be determined at the time of its execution. 

1. There was some evidence that the deceased told the defendant that the plaintiff had made a number of statements critical of the defendant and her husband.  To some extent these are matters which are reflected in the instructions to Mr Browne.  Assuming that the deceased told the defendant this there is no evidence whatsoever that the deceased did not generally hold the views that he expressed to Mr Browne or that his will was in some way overborne or that he was subject to undue influence or that the execution of the will had been in some way fraudulently induced.  The evidence suggests that the deceased was an independent man who exercised his own judgment about his affairs. I am inclined to accept the plaintiff’s evidence that it was the deceased who said these things to her.

1. Nothing about the circumstances surrounding the making or the execution of the will, grounds any suspicion about the capacity of the deceased nor any suspicion that the will was executed as the result of undue influence.

1. Whilst there was a significant change of testamentary direction, an explanation for this has been provided in the moneys advanced to the defendant and the deceased's reservations expressed to Mr Browne.

1. Here there is evidence of a properly executed will in a form which expressed the deceased's testamentary wishes by a man not suffering from a mental disease or illness and not suffering from any delusions or cognitive defect.  Evidence in support of these matters comes partly from Mr Browne and partly from Dr Cairns.

1. It hardly needs to be emphasised that these proceedings are not concerned with the respective merits of the claims of the plaintiff and the defendant upon the bounty of the deceased.

1. I take the relevant principles relating to the onus of proof as being found in cases such as Bull v Fulton (1942) 66 CLR 295 and Worth v Clasohn (1952) 86 CLR 439 and the relevant test of testamentary capacity the principles expressed in the leading case of Banks v Goodfellow (1870) LR 5QB 549.

1. The plaintiff has satisfied me that the will of the deceased dated 15^th April 2002 is the last will of the deceased made while he was of sound mind, memory and understanding and is not affected by fraud or undue influence.

1. I order that, subject to the formal requirements of the Registrar, a grant of probate of the will of Josef Lux dated 15^th April 2002, be issued in solemn form.