Tandy v Glaskin - [2017] WASC 313

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TANDY -v- GLASKIN [2017] WASC 313

CORAM: TOTTLE J

HEARD: 25 OCTOBER 2017

DELIVERED : 25 OCTOBER 2017

FILE NO/S: CIV 1172 of 2016

BETWEEN: MICHAEL BRIAN TANDY
Plaintiff
AND
MARY ANN GLASKIN
Defendant

Catchwords:

Probate - Proof of will in solemn form - Establishing testamentary capacity - Where testator diagnosed with dementia - Proof of testamentary capacity

Legislation:

Rules of the Supreme Court 1971 (WA), O 73 r 15

Result:

Grant to plaintiff of probate in solemn form of will dated 9 October 2009

Category: B

Representation:

Counsel:

Plaintiff: Ms W F Gillan
Defendant: Mr R J Nash

Solicitors:

Plaintiff: Biddulph & Turley
Defendant: Munro Doig

Case(s) referred to in judgment(s):

Lock v Phillips [2014] WASC 92
Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337
TOTTLE J:
(This judgment was delivered extemporaneously on 25 October 2017 and has been edited from the transcript.)

Introduction

The plaintiff, Mr Michael Brian Tandy, seeks a pronouncement of the force and validity of the will of the late Frank Cox, made on 9 October 2009 (the Will), and a grant of letters of administration, with the Will annexed, to him.
The defendant, Ms Ann Mary Glaskin, gave notice in her defence that she insisted on the Will being proved in solemn form and that she wished to cross-examine the witnesses produced to support the Will (pursuant to Rules of the Supreme Court 1971 (WA) O 73 r 15).
Without intending any disrespect, in these reasons I will refer to Frank, his wife, Mrs Eunice Cox, and their children by their first names.
The sole issue in these proceedings is whether Frank had testamentary capacity when he made the Will.
In these reasons, I deal with the following:
(1)some procedural matters;
(2)the factual background;
(3)the evidence adduced that bears on Frank's testamentary capacity;
(4)the relevant legal principles;
(5)my reasons for concluding Frank had testamentary capacity.

Procedural matters

In the Will, Frank appointed his stepson, Mr Philip John Tandy, as executor, and stated that if Philip predeceased him or renounced the appointment, Ann should be appointed executrix in his place. Ann is Frank's daughter.
The present proceedings were commenced by Philip by a writ of summons issued on 3 February 2016. Philip died on 11 March 2016. On 8 April 2016, Ann renounced her right and title to probate and execution of the Will, and to letters of administration, with the Will annexed. On 20 May 2016, the Court ordered that Michael be substituted as plaintiff. Michael is a beneficiary under the Will.

Affidavits of scripts

Affidavits of scripts have been sworn by each of Philip, Michael and Ann. It is common ground that the only testamentary script of which any party is aware is the Will. The original of the Will is attached to an affidavit sworn by Philip for the purposes of obtaining a grant of probate in common form in the Court's non‑contentious probate jurisdiction.

Factual background

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 Tandy v Glaskin

Details

AGLC: Tandy v Glaskin [2017] WASC 313
Case: [2017] WASC 313
Decision Date: 25 OCTOBER 2017

CaseChat Overview and Summary

The case of Tandy v Glaskin involves a dispute over the validity of a will executed by Frank Tandy, who was diagnosed with dementia shortly before signing the will. The legal issue before the court was whether Frank had the testamentary capacity to execute the will, given his dementia diagnosis. The case was heard in the Queensland Supreme Court.

The court had to determine whether Frank had the mental capacity to understand the nature and effect of making a will, including comprehending the extent of his estate, the natural objects of his bounty, and how the will disposed of his estate. The court examined evidence from medical professionals, including Dr Allan and Dr Strivens, who diagnosed Frank with dementia, and the solicitor who witnessed Frank's signature on the will. The court also considered Frank's ability to perform daily activities and manage his finances despite his diagnosis.

The court found that despite the diagnosis of dementia, Frank demonstrated sufficient understanding of his estate, the beneficiaries, and the contents of the will. The evidence showed that Frank could engage in discussions about his health and estate matters, and he was able to perform daily activities independently. The court concluded that Frank had testamentary capacity at the time he executed the will, as he was able to comprehend the implications of the will and the disposition of his estate.

The court's final order was that the will of Frank Tandy was valid and enforceable, confirming the distribution of his estate as per the terms of the will.

Orders

Orders of the court

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Background

Background to the litigation

Factual background The following factual findings are derived from the affidavit evidence, principally the affidavit evidence of Michael and his evidence in cross‑examination. Frank was married to Eunice on 24 October 1987. Frank had two children from his first marriage, Mr John Cox and Ann. Eunice had six children at the time she married Frank. They were Michael, Philip, Ms Trena Browning, Ms Cushla Wann, Mr Sean Tandy and Ms Donna Dolan. Frank's children and stepchildren are beneficiaries under the Will. At the time they married, Frank and Eunice lived in Western Australia. Eunice owned a property in Bicton, upon which she built two townhouses. She sold one and - after they were married - she and Frank lived in the other, Frank having sold a property owned by him on Canning Highway. In 1988, Frank bought a 50% interest in Eunice's townhouse and Eunice transferred the property into their joint names as joint tenants. In the early 1990s, Frank and Eunice sold the townhouse and bought another property in Bicton which they subdivided. They built a home on one of the subdivided blocks. In 1996, Frank and Eunice moved to North Queensland, where one of Eunice's children lived. They bought a property in Kuranda, on which they built a house. While it was being built, Frank and Eunice lived in Cairns. In the mid to late 2000s, they sold the Kuranda property and moved to a suburb of Cairns. On 30 September 2009, nine days before Frank signed the Will, he was diagnosed by Dr Michael Allan, a medical registrar, and Dr Edward Strivens, a consultant geriatrician, as 'more than likely' suffering from 'cortical and sub‑cortical dementia of an Alzheimer or vascular origin'.[1] Dr Allan prepared a letter to Frank's GP dated 30 September 2009, reporting on Frank's condition. That letter was reviewed and signed by Dr Strivens, who was the senior medical practitioner responsible for reviewing Frank at that time.[1] Plaintiff's Trial Bundle, 7. On 6 October 2009, Magnetic Resonance Imaging of Frank's brain was undertaken. A report on the imaging was prepared by a Dr McMenamin, who was a radiologist at the Cairns Base Hospital (as it was known) at the time. On 7 October 2009, Frank and Eunice had a meeting with Mr John McWilliam, a solicitor practising in Cairns. At that meeting, Frank and Eunice gave instructions for the preparation of wills for each of them. For the purpose of this factual overview, it is sufficient to say that Mr McWilliam was unable to recall his meeting with Frank and Eunice, but considered, on the basis of notes he had made in the course of the meeting on 7 October 2009, that there was nothing said then that caused him to have any concerns about Frank's testamentary capacity. That is because, he said, that had there been, he would have made a record of it and would not have proceeded to prepare the Will. Frank and Eunice attended Mr McWilliam's office on 9 October 2009. Mr McWilliam went through the wills he had prepared with Frank and Eunice. Frank signed the Will in the presence of Mr McWilliam and Ms Tiffany Draper (a receptionist employed by the firm of solicitors for whom Mr McWilliam worked). They each signed the Will as witnesses in the presence of Frank and in the presence of each other.

Evidence

Evidence Before The Court

The evidence bearing on Frank's testamentary capacity In addition to the affidavits of scripts, Michael relied upon:(1)an affidavit sworn by him on 14 October 2016;(2)an affidavit sworn by Mr McWilliam on 12 October 2016; and(3)an affidavit affirmed by Dr Strivens on 23 May 2017. Each of the deponents was cross‑examined on their affidavits. A bundle of documents comprising attachments to the affidavits and a copy of the Will were tendered. In his letter of 30 September 2009, Dr Allan noted the following concerning the capacity of Frank:(1)Frank's medical history included '[m]ild cognitive impairment, likely dementia? Alzheimer's? Vascular', and a 'two year progressive decline in memory, most specifically short term according to [Frank]';(2)Frank was 'adamant that he continues to perform all activities of daily living without too much concern … cleans when required, independently showers, is able to do cooking, shopping, and continues to take care of finances for himself and [Eunice]' (Michael's counsel drew attention to the fact that Frank reported that he was taking care of finances not only for himself, but also for Eunice);(3)Eunice indicated 'that at times during the night … [Frank] ha[d] been found wandering around the house slightly confused', and noted her concern about Frank 'going for walks with the dog independently as she [did] not feel confident that [Frank would] be able to relocate their residence';(4)His diagnosis of Frank as 'more than likely' suffering from 'a combination of cortical and sub-cortical dementia of an Alzheimer or vascular origin' was founded on 'the constellation of symptoms exhibited by [Frank] and his significant[ly] worse … mini mental [state examination] than expected for age', along with Frank's 'worsening memory, typographical deficiencies and shuffling gait' and evidence of 'cardio vascular disease and … possibly … a degree of cerebra vascular disease contributing to his cognitive status'. Dr Allan concluded that Frank should undertake further tests including 'dementia screen bloods', an 'MRI brain', and a 'more thorough cognitive review and mini mental [state examination]'. He prescribed cognitive enhancing medications with a cholinesterase inhibitor. There are two other things to note about this letter and the consultation that took place on 30 September 2009. First, Dr Allan took the history from Frank and Eunice and prepared the letter. Dr Strivens, however, joined the consultation after the history was taken and reviewed Frank himself, and subsequently reviewed and signed the letter that Dr Allan had prepared. Secondly, it is evident from the terms of the letter that Frank was capable of providing, and did provide, much of the history to Dr Allan himself. Moreover, there is nothing in the letter that suggests the history given by Frank was inaccurate or that Eunice had to correct any aspect of that history. In his affidavit, Dr Strivens deposed that he is the Regional Geriatrician and Clinical Director for Older Persons, Sub Acute and Rehabilitation, Cairns and Hinterland Hospital and Health Service.[2][2] Affidavit of Dr Edward Strivens affirmed 23 May 2017, par 2 (Strivens Affidavit).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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