Tasmanian Perpetual Trustees Limited v Colbeck and Chuckowree

[2007] TASSC 86

[2007] TASSC 86

CITATION:Tasmanian Perpetual Trustees Limited v Colbeck and Chuckowree [2007] TASSC 86

PARTIES:IN THE MATTER of the ESTATE OF ELVIE ELLEN COLBECK deceased

TASMANIAN PERPETUAL TRUSTEES LIMITED
  v
  COLBECK, David Ross
  CHUCKOWREE, Jillian Faith

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  21/2004
DELIVERED ON:  12 November 2007
DELIVERED AT:  Hobart
HEARING DATES:  14 September 2007
JUDGMENT OF:  Slicer J

CATCHWORDS:

Succession – Wills, probate and administration – The making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Generally – What constitutes sound mind.

Bull v Fulton (1942) 66 CLR 295; Worth v Clasohm (1952) 86 CLR 439, Re Estate of Griffith (Dec’d); Easter v Griffith (1995) 217 ALR 284, applied.
Banks v Goodfellow [1870] LR 5 QB 549; Re Brokenshire (2003 – 2004) 8 VR 659, followed.
Aust Dig Succession [4]

REPRESENTATION:

Counsel:
             Plaintiff:  P J F Lunn
             Defendants:  D F M Zeeman
Solicitors:
             Plaintiff:  Simmons Wolfhagen
             Defendants:  Butler McIntyre & Butler

Judgment Number:  [2007] TASSC 86
Number of Paragraphs:  31

Serial No 86/2007
File No 21/2004

IN THE MATTER of the ESTATE OF ELVIE ELLEN COLBECK deceased
TASMANIAN PERPETUAL TRUSTEES LIMITED
v DAVID ROSS COLBECK and JILLIAN FAITH CHUCKOWREE

REASONS FOR JUDGMENT  SLICER J

12 November 2007

1. The plaintiff is the executor and trustee of the will of Elvie Ellen Colbeck who died on 13 June 2003.  The defendants are the nephew and niece of the deceased.   The plaintiff commenced the action seeking an order that the Court pronounce for the will in solemn form.  The defendants allege that the testatrix did not know and approve the contents of the will and lacked the requisite capacity at the time of its making.

1. The original form of action followed from the right or obligation to propound the will, and the differences in the respective jurisdictions of the Courts of Chancery (which retained jurisdiction in relation to executors and trustees) and Probate.  An executor would propound the will and the court direct a citation to issue to persons interested as heirs, next of kin, and the interested persons who were then entitled to enter a plea to the matter (Moore v Holgate 1 LR, P 101; Lister v Smith 3 S & T 53; 32 LJ, P 13).  A party propounding a will was entitled to put any person opposing it on proof of his interest (Hingeston v Tucker 2 S & T 596).  The use of a caveat was early recognised (Domvile v Domvile 4 S & T 17).  A person could be cited to propound and prove a will as a distinct matter from being cited to take probate (Bewsher v Williams 3 S & T 62).  The burden of proof remained with the party propounding the will, even where an intervener (who was required to begin) to an action by a party sought a declaration of intestacy (Cross v Cross 3 S & T 49).  The competency of a testator was assumed until it was impeached by evidence but it was not to be assumed in law to be valid until a court was satisfied as to competency (Sutton v Saddler 3 CB, N, S 87).  The different forms and pleas led to complexities of evidentiary requirements.  Thus the burden of proving capacity remained with the party propounding the will, but when that proof was given, it was then incumbent on the party alleging incompetency to prove the basis of that incompetency which included soundness of mind, undue influence, fraud, and intoxication (Smee v Smee 5 PD 84; Sutton v Sadler (supra)).  The law as developed is that the onus of proving that an instrument is the will of a testator or testatrix made in proper form by a person possessing testamentary capacity remains with the propounder, who is required to establish a prima facie case of testamentary disposition which might be displaced (Bailey v Bailey (1924) 34 CLR 558). Upon proof of due execution, testamentary capacity is presumed in that it was made by a person of competent understanding (Re White [1951] NZLR 393) and the onus is a continuing one (Bailey v Bailey (supra)).  Here the plaintiff, as executor, has, in modern parlance, pronounced for the will but as trustee, quite properly, not advanced a particular cause but placed before the Court as much relevant material as will assist the Court in determining validity.  The defendants do not challenge the form of execution of the document, but contend that its terms, the circumstances of its making, and the mental condition of the testatrix ought raise a cogent doubt as to competency.  They have identified and adduced evidence which would cause a court to doubt competency.  The test here to be applied is as stated by Williams J in Bull v Fulton (1942) 66 CLR 295, where he stated at 343:

"Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it."

1. The standard of proof required of such an exercise is that of vigilant examination resulting in a substantial or significant doubt.  In their joint judgment in Worth v Clasohm (1952) 86 CLR 439, Dixon CJ, Webb and Kitto JJ provided, at 453, the formulation that:

"A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. 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."

1. The provisions of the Wills Act 1992, s27A, are not relevant to these proceedings, and no question of rectification arises.

Terms of the Will

1. The form and terms of the will are complex.  The testatrix appointed the plaintiff as executor and trustee and a relative, Phillip Martin Colbeck as:

"… an advisory Trustee whose advice shall be sought … before determining the course of action to be taken to implement clauses 5 to 9 inclusive of this my Will or the Memorandum of even date accompanying [the] Will."

1. A bequest of $2,000 was provided for a neighbour and one of $100,000 for the advisory trustee.  The will provided for the subdivision of land owned by the testatrix and the devise of an allotment, chosen by the advisory trustee, from that subdivision to Mr Phillip Colbeck.  The balance of the will provided for the creation of a trust whereby some of the land was to be utilised for the erection of "villa units … suitable for the purpose of providing single accommodation for a person in receipt of a … pension from the Commonwealth" and the sale of other land for the building of such units.  The memorandum accompanying the will contained detailed and complex terms providing for the care, management and administration of the trust.

Making of the will

1. The will was executed on 23 October 1992.  In April 1992 the testatrix executed a power of attorney in general terms to Perpetual Trustees in accordance with the Power of Attorney Act 1934, s11A.  A witness to the deed of appointment was Mr George Brown, an experienced solicitor, who subsequently was involved in the preparation of the will.  Mr Brown had previously acted for Elvin George Colbeck, referred to within the family as Manie, who was the brother of the testatrix.  Mr Brown deposed that:

"8   The terms of the said Will were not that of my standard will and I, therefore, believe that the said Will was drafted as a consequence of specific instructions from the deceased and some of the terms were likely to have been taken from a previous Will or previous draft Will."

1. While he was unable to recall every detail of his attendances on the testatrix, he was conscious of the need to be cautious in confirming the accuracy of the terms of a will in the case of an elderly or infirm client and the need to assess the capacity of such a person.  He recalled that the process of taking instructions, drafting and executors, took place over some months.  He believed that the testatrix had no difficulty in hearing or understanding their discussions, nor had he noticed any "disability which might have affected her knowledge, understanding and/or capacity".  Mr Brown recalled that Manie had accompanied the testatrix, at least on her first attendance at his office.  In a later deposition sworn on 4 May 2007, Mr Brown was less certain as to some of the details of the making of the will.  Consistent with his earlier affidavit, par8, he did not believe that he had any part in drafting the will.  The testatrix had always attended his office with her brother "Manie apart from when she signed the will at which time Manie was dead and when Elvie attended my office with Ilma".  Manie had died on 2 February 1992.  The other witness to the will, Ilma, was his widow.  In her will made in October, the testatrix had directed that she be buried "in the family grave in St Mary's Churchyard at Gretna with [her] sister Olive and [her] brother Elvin".  The body of Elvin (Manie) had in fact been cremated at Cornelian Bay on 4 February 1992.

1. Mr Brown recalled that on some occasions he received little or no co-operation from his client but that, "Manie was very desirous that Elvie did not die intestate and that her wishes, so far as she had revealed them were carried out."

1. The presence of Manie during the course of those instructions, in the light of the evidence, and other evidence of his business affairs, is relevant to considerations of the terms of the will and the testamentary capacity of its maker.

1. Miss Elvie Colbeck was born in July 1903.  She never married.  She died on 13 June 2003 and was aged 89 when she executed the will.  She was described by some as being eccentric and variable in her moods and attitudes.  It would appear that she had but limited literacy skills.  An older sister, Dorothy, had experienced episodes of mental illness and following the death of another sister, Olive, Dorothy and Elvie had lived together, but as of 1983 it was obvious to others that the two had difficulties in caring for themselves unaided.  Elvie's conduct was sometimes illogical or difficult to understand.  In September 1983, she had been admitted to the Royal Hobart Hospital in an unkempt condition, presumably following a stroke.  The medical notes of the hospital of 8 September 1983 record:

"Date

         10.26     ? problem ?? Dementia.

8/9/83

C17 This 76 year old lady presented to Casualty ? how & why.  She is

Cas No

extremely confused and unable to give any history at all regarding why

36

she is here and how she got here except occasionally she mentions,

Time Seen

'Don't know whats up' & 'a fortnight'

Otherwise speech is rambling & senseless
OIE Unkempt elderly lady.  Afebrile

Speech – able to understand words but make no sense at all.  Perseverates.  Afebrile.
                Orientation: Nil:   person X
  place X
  time day of week X
  month X
  year X
                Memory: Short Term: unable to remember my name
  Long term: very poor.
                Ability – unable concentrate.
Cranials
                Fields II – fundi – poorly visualised
  fields – grossly – poor comprehension

PERLA

…

Impression:  confusion ? Dementia."

1. The therapy record maintained contains the following extracts:

"14.9.83Testing on Aphasia screening test reveals receptive aphasia – is having difficulty with written and oral language.   Although she can accurately read aloud an instruction is unable to extract meaning from it and carry it out.  Similarly cannot carry out an instruction given auditorily with no visual cuing.

…

20.9.83Retested some items on aphasia screening test.  Some slight improvement in comprehension skills but still not at a functional level.  Some superficial improvement in verbal responses to social conversation. C Sergt. C Sargeant Speech Path.

…

4.10.83Comprehension skills still very poor masks her difficulties by being able to repeat instructions accurately but usually unable to carry them out.  Abstract ideas present great difficulty. C Sergt. C Sargeant Speech Pathologist.

6.10.83Working on picture word matching although able to read the word accurately is unable to match it correctly to a picture is unable to decode out abstract meaning from what she reads – similar to auditory reception. C Sergt. C Sargeant Speech Pathologist.

…

18.10.83Testing shows some improvement in both comprehension and expressive skills however both areas still below average.

Continuing to work on auditory comprehension concrete tasks easier than abstract ones.  C Sergt. C Sargeant Speech Pathologist."

1. Her behaviour and conduct deteriorated and in 1986, she was admitted to a nursing home.  She was examined by a psychiatrist in February 1986 following an assault and in a report dated 14 February 1986, the examining psychiatrist summarised his findings as:

"Neurological examination early this month revealed no focal abnormality.

In summary her history is incomplete as there is no collaborative information available as to whether her cognitive decline has been gradual or more recent.  On balance the most likely diagnosis of such marked cognitive impairment in clear consciousness with a past history of cerebrovascular disease is a multi-infarct dementia.  The differential diagnosis includes Alzheimer's disease and acute organic brain syndrome including the possibility of a subdural, underlying infection such as urinary tract infection, avitaminosis or focal brain lesion."

1. Her brother Elvin (Manie) was involved in the running of that nursing home.  On 24 December 1986, police found Elvie confused and wandering through the bush near Ridgeway.  She was taken to hospital and then returned to the nursing home.

1. Jillian Chuckowree, the second defendant, is the niece of Elvie.   She had provided some help and kept in contact with Elvie before her admission to the nursing home in 1986.  Ms Chuckowree had some contact with Manie over some family property and recalls a long conversation with Manie in early 1987 during which he asked her "a lot of questions about Elvie's affairs."  The second defendant further deposed:

"During that telephone conversation Uncle Manie told me that he wanted to subdivide Elvie's land at Bonnet Hill.  He told me that he had a big developer in Sydney who was interested in the land and he mentioned a man called 'Edward' who he said was a powerful man.

Uncle Manie also told me during that telephone conversation that he was aware that my brother David had been to Elvie's house at Bonnet Hill with the police and Uncle Manie indicated to me that he was not happy about that.

Uncle Manie then went on in that telephone conversation to say he was trying to get Elvie to sell her property but that she could not decide whether or not to sell it.  He seemed to be [sic] to be  bothered by this and said during the conversation 'if only I could get her to sign'.  He asked me whether I knew where the deeds to her property were.  I told that [sic] that I did not know and that it was none of my business."

1. Ms Chuckowree saw her aunt on two further occasions in 1993 and 1994 but it is likely that Elvie failed to recognise her on either occasion.

1. The notes of the nursing home between 1987 and 1991 confirm a gradual deterioration with references to "wandering, aggressive occasionally, depressed".  That deterioration was observed by her sister-in-law Marie.  In 1993, Elvie was admitted to a different nursing home.  An entry dated 7 July 1993 records that:

"She is roughly aware that she came here a few months ago, but doesn't know where she was before she came here.

She doesn't know where she is now.  Nor the date, day or year.  Shortterm memory poor … Now she appears to have cognitive impairment … is incapable of managing her affairs."

Medical assessments and opinions

1. Reference has been made to the psychiatric assessment made in February 1986.  Doctor Isles had been Elvie's treating general practitioner since 1989.  On 27 April 1994, he swore an affidavit in different proceedings (M69/1994) in which he stated:

"3My present diagnosis is that Miss Colbeck suffers from a state of dementia that leaves her totally unable to understand the complexities involved in either discharging a will or administering the estate of a person who died intestate.

4In my opinion Miss Colbeck is incapable of managing and administering her property and affairs and would be incapable of administering the estate of her late sister, whom I understand died intestate, and she is unlikely to become capable in the future."

1. On 26 November 2003, he provided a report to the defendants' solicitors in which he stated that in his opinion her condition as of July 1993 was not dissimilar to that at the time of his first meeting with Miss Colbeck in 1989.  As her treating doctor he stated his opinion in answers to questions set out:

"1)In your opinion, was Elvie Ellen Colbeck suffering from dementia on or about the 23^rd October 1992?  YES

2)If yes to the previous question, was her dementia such that (it) left her totally unable to understand the complexities involved in her making her Will?  YES"

1. He provided more detailed reasons for those opinions, including the 1983 admission to hospital which led him to believe that Miss Colbeck had suffered from "post stroke related cognitive impairment."

1. Dr Jacob Mathew, a specialist psychiatrist/geriatrician, had reviewed Dr Isles' patient and advanced in a note dated 7 July 1993 that he believed Miss Colbeck to suffer from cognitive impairment and was vulnerable to exploitation by others.  In a report addressed to the defendants' solicitors dated 20 April 2004, Dr Mathew confirmed that he had examined Miss Colbeck on 7 July 1993 at which time he had concluded that she was "not capable of managing her affairs".

1. It is not necessary for the purpose of these proceedings to make findings in relation to attempted exploitation in the drawing of the will.  The assault which had led to her previous admission to hospital followed a series of events of exploitations by others who were in no way connected with the family.  But those events are relevant to capacity.  It is suggested that the terms of the will were a result of suggestive manipulation but, given my conclusions as to capacity and understanding, it is not necessary to make a positive finding to that effect.   There was a significant delay between the death of Manie and the signing of the will, and a significant period of time over which the testatrix was involved with a solicitor in its preparation.  The alteration in October is more likely a product of confusion and capacity than an immediate consequence of attempted exploitation.

Testamentary capacity

1. The Court is required to conduct a vigilant examination of the whole of the evidence (Worth v Clasohm (supra)).  Central to this examination are the issues of understanding the nature and effect of the disposition.  That requisite understanding was stated by Cockburn CJ in Banks v Goodfellow [1870] LR 5 QB 549 when he stated at 565:

"It is essential to the exercise of such a power 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 delusion 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."

1. These principles have been applied in Australia (Timbury v Coffee (1941) 66 CLR 277; Worth v Clasohm (supra); Re Estate of Griffith (Dec’d); Easter v Griffith (1995) 217 ALR 284; Re Brokenshire (2003 – 2004) 8 VR 659). In Griffith, Gleeson CJ stated at 289:

"Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439.

This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This was the point made by Sir James Hannen in his charge to the jury in Boughton and Marston v Knight, above. Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind."

1. Kirby P, dissenting for other reasons, approved the same approach, stating at 295:

"In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will: … Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval …. Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed."

1. In Brokenshire (supra), Smith J was required to consider the case of an 89 year old widow in declining physical health who had made a will in 1987.  In 1990 she revoked that will and made a further will.  In 1992 she was hospitalised and then admitted to a nursing home suffering from dementia.  His Honour applied the "classic" statements in Banks v Goodfellow and having reviewed the other 19 authorities, dealt with the question of dementia in the following terms at 125:

"Both witnesses also gave evidence about the nature and consequences of dementia. For similar reasons, I prefer the evidence of Dr LIoyd about the nature and consequences of dementia. In particular, I accept the following:

1    A person can have dementia and paranoid ideation and still have testamentary capacity. The presence of the former does not necessarily negate testamentary capacity.

2    There can be catastrophic and sudden deterioration in the condition of the dementia.

3    Paranoid ideation can be discreet. It tends to relate to specific and discreet areas. Thus the fact that the testatrix may have shown a degree of paranoid ideation in relation to neighbours did not mean that she had any such paranoid ideation in relation to family members.

4    Paranoid ideation is often a suspiciousness, a doubt, which is amenable to reason or to challenge. A delusional belief is a fixed illogical belief which is not challenged or questioned by the patient.

5    A patient may have delusional beliefs, may have hallucinations, may have a psychotic disorder but still be quite capable of identifying what they own and who might have a claim on their bounty. The presence of psychotic ideation and delusional beliefs do not preclude the person having reason in other areas.

6    With short-term memory deficiencies it is possible to remember current events and plans if they are linked in some way to long-term memory items and particularly when they are seen by the person to be important."

1. Significant time had elapsed between the preliminary instructions for the preparation of the will and execution.  Given that the solicitor had not personally drafted the will, the terms of which appeared to have come from a different and earlier document, it is necessary to exclude the possibility that it was not a product of confusion and undue influence of another (Wingrove v Wingrove (1885) 11 PD 81) and that whilst at the date of execution (made in the absence of Manie) the testatrix might have suffered from impairment, the terms were settled on instructions at a time when she was able to appreciate what she was doing (Parker v Felgate (1883) 8 PD 171; Batten Singh v Amirchand [1948] AC 161).

1. The relevant proposition is stated in Hayes and Jarman, Concise Forms of Wills 13 ed, 1910, at 98 as:

   "If a testator has given instructions for his will, and it is prepared in accordance with them, but illness prevents him, at the time of his executing the will, from recollecting anything beyond the fact of his having given instructions, but he believes that the will he is executing is in accordance with them, this limited capacity is sufficient to render the will valid.  And this is so, although at the time of execution he had no longer the capacity to recollect and understand either the instructions he had previously given, or even each clause inserted in the will if it had been put to him. Parker v Felgate (supra); Perera v Perera [1901] AC 354; 70 LJPC 46; 84 LT 371."

2. The evidence establishes that the impairment suffered by Miss Colbeck was significant and of long standing.  It existed during the course of her dealings with her solicitor, during the course of the preparation of the will, and as of the date of its execution.

Joinder of Attorney-General

1. During the course of the hearing of this matter, I determined that it was not necessary for the Attorney-General to be joined as a party to this action (McCracken v Attorney-General for Victoria [1995] 1 VR 67; In Re Beck [1999] VSC 318) and do not need to repeat in detail my oral reasons, given during the course of exchanges with counsel. The beneficiaries named in the will have had an opportunity to take part in these proceedings and have entered into a deed of agreement with the other potential beneficiaries which protects their interest. The defendants are likewise parties to a deed of agreement which does not unduly or improperly advantage them. The public interest has been well served by the approach taken by the plaintiff, consistent with its duty, in the inquiry undertaken by the Court. This is not a case where aggrieved relatives have attempted to gain advantage in contradiction with the clear and properly expressed wishes of a testator.

Conclusion

1. The Court concludes that at the time of the execution of her will dated 23 October 1992, Elvie Ellen Colbeck lacked testamentary capacity.  The action commenced by the plaintiff as executor to pronounce for the force and validity of the will of Elvie Ellen Colbeck in solemn form of law is refused, and its claim to a grant of probate, as trustee, dismissed.  Given the ambiguity of the terms "pronounce for" and "propound" in relation to the form of the action, counsel are invited, if necessary, to further consider the precise terms of the order.