Stevens v Turner - [2018] SASC 7

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 7
Introduction

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stevens v Turner

Details

AGLC: Stevens v Turner [2018] SASC 7
Case: [2018] SASC 7
Decision Date: 7 February 2018

CaseChat Overview and Summary

The case of Stevens v Turner involves a dispute regarding the interpretation and effect of testamentary dispositions in the context of a codicil to a will. The primary issue before the court was whether Violetta Del Campo continued to be the carer of the deceased, Vincent Stevens, after he moved into a nursing home, thereby satisfying a condition in his will. The case was heard in the Supreme Court of South Australia.

The legal issue the court had to decide was the interpretation of the testamentary disposition in the codicil, specifically whether the condition that Ms Del Campo remain the deceased's carer was fulfilled after he was admitted to Bupa Morphettville nursing home. The court needed to determine whether Ms Del Campo's role and responsibilities post-admission were sufficiently similar to those she performed while the deceased was at home to still qualify as his carer.

The court considered that while the deceased was not precluded from having more than one carer, and the nursing home provided substantial care, Ms Del Campo's continued involvement in assisting with meals, medication, hygiene, and providing companionship was akin to her role at home. The court held that the nature and duration of Ms Del Campo's duties did not significantly change post-admission, thus she could still be considered the deceased's carer. The court concluded that the condition in the codicil was satisfied because Ms Del Campo's role and responsibilities were largely consistent with her role prior to the deceased's admission to the nursing home.

The final orders of the court will reflect the determination that Ms Del Campo fulfilled the condition in the codicil to remain the deceased's carer, thereby entitling her to the benefits specified in the codicil.

Orders

Orders of the court

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Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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].