Stevens v Turner
[2018] SASC 7
•7 February 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
STEVENS v TURNER & ORS
[2018] SASC 7
Judgment of Judge Bochner a Master of the Supreme Court
7 February 2018
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - EFFECT OF CODICIL
Application for the determination, without administration, in regard to the construction of a codicil.
Whether the third defendant has satisfied the condition of the codicil.
Held:
1. The condition of the codicil has been met.
2. The third defendant is entitled to the legacy described in the codicil.
Carer Recognition Act 2010 (Cth); Carers Recognition Act 2005 (SA), referred to.
Phillips v McCabe [2016] SASC 27; Allgood v Blake (1873) LR 8 Ex 160, considered.
STEVENS v TURNER & ORS
[2018] SASC 7Introduction
This is an application by the executor of a deceased estate pursuant to Rule 206 of the Supreme Court Civil Rules 2006 seeking a determination, without administration, in regard to the construction of a codicil.
Vincent Alan Murn died on 22 June 2013 (“the deceased”). The deceased made a will using a pre-printed will form that was signed by him on 10 April 2007 (“the will”). Pursuant to the terms of the will, the deceased appointed Ms Gillian Ruth Stevens as his executor. He gave a legacy of $50,000 to his niece and the residue of the estate to be divided equally between his daughter Ms Nancy Jennifer Turner (“Ms Turner”) and his son-in-law Mr Stephen Nation.
On 15 August 2011, the deceased executed a further document (“the codicil”). Pursuant to its terms, the deceased revoked the legacy of $50,000 to his niece and made the following provision:
“I now want my carer Violetta Del Campo of 10 Gabriel Street, Christie Downs to receive $50,000 provided that she has remained my carer until my death.
If Violetta De Campo is not my carer, then the moneys will be spilt in accordance with the principles of my will being shared between my daughter and son-in-law.”
On 4 September 2013 this Court in its Testamentary Causes Jurisdiction issued a grant of probate of the deceased’s will to Ms Stevens. The codicil was not discovered until after the grant of probate had been issued and accordingly probate of the codicil was granted to Ms Stevens on 26 August 2014.
The question that has come before this Court is whether Ms Del Campo has satisfied the condition that she remained the deceased’s carer until the time of the deceased’s death in order for her to receive the legacy of $50,000.
It is Ms Turner’s position that because of the change in the deceased’s circumstances in the period immediately prior to his death, Ms Del Campo was not his carer at the date of his death, as a result of which the condition has not been satisfied. I note that Mr Nation has not appeared in this action and I assume that he is prepared to abide by the decision of the Court.
Background
Ms Stevens deposed that from about 2004 the deceased required help around his home. He engaged the services of Ms Del Campo to clean his house, for which he paid her $50.00 per week. As time went by the deceased required greater assistance with his home duties and in addition to cleaning his house, Ms Del Campo started to attend to his shopping, laundry and cooking. She also began to help with maintaining his garden, driving him to medical appointments and helping bathe him. Ms Del Campo would take the deceased on regular outings and would generally provide companionship. At some point, her pay increased to $500.00 per fortnight.
The regular assistance of Ms Del Campo enabled the deceased to live in his own home rather than needing to relocate to residential care. However, as his health declined, Ms Del Campo required additional assistance to care for the deceased in his home. She suggested to Ms Stevens that extra help should be arranged and, accordingly, Ms Stevens engaged the services of S.A. Family Home Care.
Ms Stevens further deposed in her affidavit that the deceased had frequently expressed a desire to purchase a car for Ms Del Campo. Ms Stevens suggested that he may rather want to leave a gift to Ms Del Campo at the time of his death.
In about June 2011, on the deceased’s instructions, Ms Stevens prepared a codicil to the deceased’s will. Ms Stevens typed the codicil at her home and then left the typed codicil with the deceased. The deceased then asked Ms Del Campo to find someone to witness his signing the codicil, which she did.
On 12 July 2012, the South Australian Guardianship Board made an order that Ms Stevens and Mr Terrance Turner (Ms Turner’s husband) (“Mr Turner”) be appointed as the guardians and administrators of the deceased.
In mid-2012, Ms Del Campo arrived at the deceased’s home to find his condition had deteriorated. Ms Del Campo called an ambulance and the deceased was admitted to Ashford Hospital. He remained in hospital for a number of weeks and on 17 July 2012 he was admitted to a nursing home, Bupa Morphettville. It was accepted that the deceased could no longer live at his home alone because his cognitive capacity had declined significantly.
After his admission to Bupa Morphettville, Ms Del Campo continued to visit the deceased, usually daily and often more than once a day. At some point, her pay was decreased to $300.00 per fortnight. Ms Del Compo deposed in her affidavit sworn on 1 February 2017 that:
“I would try to be with Vincent for his meals as he had great difficulty feeding himself and was not always given assistance by the nursing home staff. On a few occasions I arrived after breakfast had been served to find that Vincent had not been able to eat much of it and had spilled it over himself (with no one having cleaned it up) – I then fed him and cleaned him up. I tried to arrange with Gillian so that one of us was there for each meal if possible. Breakfast was particularly important as this was when he took his medication (and he was more likely to be co-operative in taking his medication if I was there with him). I think Nancy also visited him weekly while he was at the nursing home.
Vincent rarely left the nursing home (or his room) but I would try and take him for a walk around the grounds on occasion when he was feeling able.
Usually when I visited Vincent I would just sit with him and talk to him. He also liked it when I read the paper the newspaper to him; his favourite newspaper was The Australian.
Vincent did not like being in the nursing home. There were some nice girls who worked there but there seemed to be a high staff turnover. At times I worried about whether he was getting enough individual attention. I would sometimes complain to the staff and try to help out where possible with meals (including bringing him extra food) and tidying his room. I often made requests to the staff for more linen and for Vincent’s room to be cleaned more frequently.
Vincent’s condition continued to deteriorate while he was at the nursing home. Eventually he became very ill and stopped eating. I continued to visit him as much as possible but knew that he would die soon.”
The question that requires determination by this Court is whether Ms Del Campo remained the deceased’s carer until his death in accordance with the condition specified in the codicil.
The principles to be applied
Justice Gray, in Phillips v McCabe,[1] summarised the principles to be applied in construction of a will in the following way:
[1] [2016] SASC 27.
[14] When construing the will, the object of the court is to ascertain the intention of the testator, as expressed in the will. The will must be read as a whole and in the light of the surrounding circumstances. The “armchair principle” permits the court to receive evidence of the state of the testator’s family, property, friends and acquaintances so that the court may read the will from the position of the testator when making it, as if sitting in the testator’s armchair. Prima facie, the words and phrases used in the will are to be given their ordinary meaning, unless doing so would give rise to a capricious result having regard to the obvious intention of the testator.
[15] In Nicol v Chant, Griffiths CJ set out the process of construing a will in the following terms:
The question to be determined is purely one of construction. In construing a will the first duty of the Court is to examine it, and to discover the meaning of the language of the testator as applied to the circumstances existing at the date of the will, and to give effect to the intention so discovered unless some authoritative rule of law or construction requires a different conclusion. The inverse process, of first taking up a supposed rule assumed to be primâ facie applicable, and then inquiring whether the words of the will exclude the operation of the rule, is, as has often been said, likely to lead to erroneous conclusions.…
[16] In Sammut v Manzi, the Privy Council considered whether regard should be had to cases which considered similar wording to the clause before the court and said:
… Little assistance in construing a will is likely to be gained by consideration of how other judges have interpreted similar wording in other cases. Counsel rightly recognised that the starting point must be to look at the natural meaning of the wording of the will to be construed without reference to other decisions or to prima facie principles of construction.
[17] In Hill v Crook, Lord Cairns addressed the testator’s knowledge of his family and said:
… in order to interpret the words of the will, it is always not only allowable, but it is the duty of the Court to obtain, the knowledge which the testator had of the state of his family.…
[18] The New South Wales Court of Appeal has described the task of the Court in the following terms:
As Powell J said in Coorey v George (Powell J, 27 February 1986, unreported) at 14, in a passage approved by Bryson J in Perpetual Trustee Co Ltd v Wright(1987) 9 NSWLR 18 at 33, in construing a will: “[O]ne’s task is, first, if it be possible, to ascertain, what was the basic scheme which the deceased had conceived for dealing with his estate, and, then, so to construe the will as, if it be possible, to give effect to the scheme so revealed.”
(citations omitted)
The principles to be applied were not in dispute between the parties. Both agreed that the “armchair principle” applied. The “armchair principle” has been described in the following way:
The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. As is said in Wigram on Extrinsic Evidence, p. 9: “The question in expounding a will is not what the testator meant, as distinguished from what his words express, but simply what is the meaning of his words.” But we think that the meaning of words varies according to the circumstances of and concerning which they are used.[2]
[2] Allgood v Blake (1873) LR 8 Ex 160 per Blackburn J.
In determining whether Ms Del Campo has fulfilled the condition in the codicil, it will be necessary to ascertain the intention of the deceased at the time he made the codicil. In this regard, it is permissible to take into consideration the personal circumstances of the deceased, in order to determine the facts and circumstances which informed his use of the word “carer”. It is necessary to ascertain how he understood the word “carer” at the time that he made the codicil, and then to consider whether the assistance and support provided by Ms Del Campo at the time of his death was of a comparable quality and nature.
Meaning of the word “carer”
The Macquarie Dictionary defines a carer as:
a person who, in a voluntary or professional capacity, has the care of someone else, as a patient, child, etc.
The Oxford English Dictionary defines carer as:
a. One who cares.
b. Spec. A person whose occupation is the care of the sick, aged, disabled, etc.; one who looks after a disabled or elderly relative at home, esp. one who is therefore unable to work.
The word carer is defined in s 5 of the Carer Recognition Act 2010 (Cth), as follows:
5 Meaning of carer
(1) For the purpose of this Act, a carer is an individual who provides personal care, support and assistance to another individual who needs it because that other individual:
(a) has a disability; or
(b) has a medical condition (including a terminal or chronic illness); or
(c) has a mental illness; or
(d) is frail and aged.
The Carers Recognition Act 2005 (SA) defines a carer as:
5 Meaning of carer
Subject to this section, a person is a “carer” for the purposes of this Act if he or she is a natural person who provides ongoing care or assistance to-
A person who has a disability within the meaning of the Disability Services Act 1993; or
A person who has a chronic illness, including a mental illness within the meaning of the Mental Health Act 1993; or
A person who, because of frailty, requires assistance with the carrying out of everyday tasks; or
A person of a class of persons prescribed by regulation.
The word “carer”, in its ordinary meaning, carries a broad and liberal definition that goes beyond a person providing personal care. It incorporates other forms of support and assistance that can be offered to the person being cared for, including companionship.
What did the deceased intend by the term “my carer” in the codicil?
At the time that the deceased executed the codicil he was residing at his home. In addition to the care provided by Ms Del Campo, S.A. Family Home Care was also providing assistance to care for the deceased. No evidence has been given of the assistance provided by them, other than that they assisted with bathing the deceased.[3] Ms Del Campo has deposed that even after their assistance was obtained, she continued to provide significant care to the deceased, including housework and shopping, bathing, supervising his medication, and driving him to appointments.[4] This evidence has not been disputed by any of the parties.
[3] FDN 3 at [17].
[4] FDN 3 at [17].
The combined evidence of Ms Stevens and Ms Del Campo establishes, in my view, that at and around the time that the deceased made the codicil, Ms Del Campo was providing assistance with the following:
·bathing;[5]
·housework and shopping;[6]
·cooking;[7]
·supervising medication;[8]
·accompanying him to medical appointments;[9]
·wound dressing;[10] and
·companionship and support.[11]
[5] FDN 3 at [17].
[6] FDN 3 at [17] and FDN8 at [12].
[7] FDN 3 at [12] and FDN 8 at [12].
[8] FDN 3 at [17].
[9] FDN 3 at [17].
[10] FDN 3 at [17].
[11] FDN 3 at [21] - [23] and FDN 8 at [13].
It is this collection of duties that informed the deceased when he referred to Ms Del Campo as his carer at the time that he made the codicil.
It goes without saying that once the deceased was no longer living at home, the nature and extent of the assistance provided by Ms Del Campo changed. The question is whether it changed enough so that she could no longer be regarded as his carer within the meaning that he attributed to that term.
What assistance did Ms Del Campo continue to provide to the deceased after he moved to Bupa Morphettville?
Ms Del Campo and Ms Stevens both describe the assistance provided by Ms Del Campo after the deceased moved to Bupa Morphettville. In addition, the nursing home case notes contain a number of references to Ms Del Campo, which assist in ascertaining her role.
The affidavit material establishes that she carried out the following tasks:
·regular visiting (almost every day);[12]
·assisting with meals and providing home cooked food;[13]
·cleaning the deceased after meals;[14]
·liaising with Ms Stevens in relation to the care of the deceased;[15]
·taking the deceased for walks;[16]
·providing company;[17]
·tidying his room;[18] and
·liaising with staff about his care.[19]
[12] FDN 3 at [28] and FDN 8 at [22].
[13] FDN 3 at [29] and [32] and FDN 8 at [22].
[14] FDN 3 at [29].
[15] FDN 3 at [29] and FDN 8 at [24].
[16] FDN 3 at [30].
[17] FDN 3 at [31] and FDN 8 at [22].
[18] FDN 3 at [32] and FDN 8 at [22].
[19] FDN 3 at [32] and FDN 8 at [24].
The following entries in the case notes for the deceased generally support this affidavit evidence:
Date
Comment
17.07.12
Received resident via ambulance from Ashford Hospital @ around 1230 with his carer (Violeta) where most data were obtained from
18.07.12
Spoken to daughter today. Inquired on the attempts of suicide. Daughter stated they are not aware of it and suggested to talk to carer.
10.09.12
Residents private carer reported that resident is sleep and she could not give him his lunch…Before the carer left, she reported resident took all his lunch.
16.11.12
Received a phone call from carer regarding V. Murn, health status. I stated will return a call after discuss with nursing staff. Discussed with staff and progress notes, returned call back to carer on … not answering left message stating he is comfortable
28.03.13
Received phone call from Gilliam (NOK) stating that carer reported to her that, Vincent is not being attended for hygienic care while carer visits, and flies in his room…
The notes contain a number of other entries which refer to “the carer” or “a carer” and “female visitor”, although it is not clear to me whether these notes refer to Ms Del Campo. Nonetheless, the notes make it clear that Ms Del Campo was a regular visitor and was involved in the deceased’s day to day care.
I note that the Director of Nursing of Bupa Morphettville deposed in her affidavit that “carer-type functions” were performed by staff at Bupa Morphettville. While this is no doubt the case, it is not clear to me that all of the entries which refer to a “carer” are referring to a paid employee of Bupa Morphettville, rather than Ms Del Campo. I further note that she deposed to the following:
“Bupa Morphettville is a full service care facility for residents such as Mr Murn and there is no need or requirement for any private carer. Mr Murn’s care was fully provided by Bupa Morphettville.”
While it may indeed be the case there is “no need or requirement for any private carer”, that it not to say a resident’s care might not be supplemented by a family member or private carer. The fact that Bupa Morphettville provides full care to its residents does not of itself mean that Ms Del Campo cannot be characterised as the deceased’s carer.
Consideration
In determining whether Ms Del Campo remained the deceased’s carer after he moved to Bupa Morphettville, it is important to note that the deceased was not precluded from having more than one carer. When he was living independently, he had more than one carer, namely Ms Del Campo and the person provided by S.A. Family Home Care. Thus while it is clear that a significant amount of day to day care would have been provided by staff of Bupa Morphettville, I am of the view that Ms Del Campo would still be characterised as his carer if her duties remained similar to those, both in nature and duration, carried out while he lived in his own home.
It is clear that a number of duties carried out by Ms Del Campo were no longer required once the deceased moved to Bupa Morphettville. These include laundry, shopping, gardening and driving to appointments. It is clear that certain other duties continued, such as assisting with meals and medication, daily hygiene, providing home cooked meals, taking the deceased out in the garden and generally providing companionship. In addition, she continued to liaise with Ms Stevens about the deceased’s care on a regular basis.
The duties that Ms Del Campo provided to the deceased at Bupa Morphettville were akin to the duties that she provided to him while living at home.
I note the Mr Turner says the following in his affidavit:
9. The deceased was very unhappy about his placement in the aged care facility. I therefore agreed with Gillian Stevens to continue to pay Violetta to visit the deceased. Those visits had a calming effect on the deceased and helped him settle in.
10. During my discussion with Gillian Stevens I stated that as Violetta was to be paid to visit the deceased and not act as his carer, I felt $500 per fortnight was too much. We agreed to pay a reduced amount of $300.00 per fortnight to pay for her time and cover out of pocket expenses.[20]
[20] FDN 5 at [9] – [10].
Similarly, Ms Turner has deposed:
8. Prior to this, Gillian Stevens had arranged for Violetta to provide cleaning services to the deceased. She had arranged for Violetta to be paid $500.00 per fortnight for this.
9. The deceased was very unhappy with the move to the Bupa nursing home. Staff at Bupa advised it would be more settling for the deceased if he saw people and objects he knew. I was hopeful that Violetta’s visits would help him to adjust to his new environment and provide a familiar face that he could talk to and put him at ease. I was aware that my husband agreed to pay Violetta $300.00 per fortnight to continue her visits to cover her petrol costs and incidental and for her going out of her way to visit the deceased.[21]
[21] FDN 4 at [8] – [9].
It is clear from their affidavits that Mr and Ms Turner considered the third plaintiff to be more akin to a paid companion, rather than a carer. Nonetheless, I am of the view that their beliefs or intentions in retaining Ms Del Campo are not relevant. What is relevant is the intention of the deceased when he used the word “carer” and “has remained my carer until my death.”
I am of the view that Ms Del Campo has satisfied the condition in the codicil. It is clear that the assistance provided by Ms Del Campo to the deceased changed over time, from when she commenced assisting him in 2004, to the time of his death. At times others were involved in his care, whether they were carers employed by S.A. Family Home Care or by Bupa Morphettville. On the affidavit evidence before me, it is clear that the care that Ms Del Campo was providing at the time of the deceased’s death was of such a similar nature and degree as that which she was providing at the time that the codicil was made, so as to mean that she remained his carer until his death. At the time of his death, she was providing him with physical care and companionship not significantly different to that provided by her in 2011.
Ms Del Campo is entitled to the legacy described in the codicil.
I will hear the parties on the question of costs.
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