Tolbert v Hicklin

Case [2020] QSC 166

SUPREME COURT OF QUEENSLAND

CITATION:

Tolbert v Hicklin [2020] QSC 166

PARTIES:

CAMERON LEE TOLBERT

(Plaintiff)

v
NINA RUTH HICKLIN

(Defendant)

FILE NO/S:

BS 7852 of 2018

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 and 19 February 2020

JUDGE:

Brown J

ORDER:

1.   The Counterclaim is dismissed.

2.   The parties are to submit draft orders reflecting my reasons and any submissions as to costs within fourteen days of the date of publishing these reasons.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE A WILL – GENERALLY – claim to pronounce for the force and validity of a 1979 will – counterclaim seeking order pursuant to s 18 Succession Act 1981 (Qld) that the Court dispense with execution requirements for a will – where the deceased was admitted to hospital – where the deceased had instructed his daughter to contact a solicitor to make a will – where the solicitor met with the deceased and made notes of the deceased’s testamentary intentions – where the solicitor read the contents of the notes of testamentary intention to the deceased – where the deceased checked the notes of testamentary intention – where the deceased and solicitor signed the notes of testamentary intention – where the solicitor returned the following day to have the deceased execute a formal will – where the deceased could not execute the formal will and died shortly thereafter – where the draft will and notes of testamentary intention were markedly different – whether the deceased intended the notes of testamentary intention to be his final will – whether the deceased had knowledge of, and approved of, the contents of the notes of testamentary intention

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – KNOWLEDGE AND APPROVAL OF CONTENTS – EVIDENCE – CIRCUMSTANCES AROUSING SUSPICION – where the deceased was admitted to hospital – where the deceased had instructed his daughter to contact a solicitor to make a will – where the solicitor met with the deceased and made notes of the deceased’s testamentary intentions – where one year prior to his death, the deceased sought to create a will similar to the notes of testamentary intention – where the daughter did not inform her siblings of the draft will or notes of testamentary intention – whether the daughter was present when instructions to the solicitor were given – whether there were suspicious circumstances as to the creation of the notes of testamentary intention

Succession Act 1981 (Qld), s 18

Banks v Goodfellow (1870) LR 5 QB 549, considered
Estate of Angius; Angius v Angius [2013] NSWSC 1895, considered
Estate of Moran; Teasel v Hook [2014] NSWSC 1839, cited
Mekhail v Hana [2019] NSWCA 197, considered
Re Gloria May Limpus Deceased[2013] QSC 66, considered
Re: Ogley (Dec); Ex parte The Public Trustee [2004] WASC 277, considered
Re Prien [2019] VSC…

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Tolbert v Hicklin [2020] QSC 166
Case
[2020] QSC 166
Decision Date

CaseChat Overview and Summary

In the case of Tolbert v Hicklin, the court was tasked with determining the validity of a 1979 will in light of a 2017 document that the claimant argued should be recognised as the deceased's final will. The deceased, Kenneth, had been admitted to hospital and had instructed his daughter to contact a solicitor to draft a will. The solicitor met with Kenneth, recorded his testamentary intentions, read them back to him, and Kenneth checked and signed these notes. The solicitor intended to have Kenneth execute a formal will the next day, but Kenneth could not do so before his death. The court had to decide whether the 2017 document, which differed markedly from the draft will, was intended by Kenneth to be his final will, and whether he had knowledge of and approved the contents.

The legal issues included whether the 2017 document was a valid will under the Succession Act 1981 (Qld), and if it could be dispensed with the execution requirements under section 18. The court considered the circumstances surrounding the creation of the 2017 document, including whether there were suspicious circumstances and whether Kenneth had knowledge of and approved the contents. The court also examined the evidence regarding Kenneth's testamentary capacity, including his awareness of the nature and extent of his estate.

The court found that the 2017 document was not intended by Kenneth to be his final will but rather a note of his testamentary intentions. The court was not satisfied to the requisite standard that Kenneth intended the 2017 document to form his will, and thus the counterclaim was dismissed. The court pronounced the 1979 will as Kenneth's last valid will. The court ordered the parties to submit draft orders reflecting the court's reasons and any submissions as to costs within fourteen days. The court found that the costs of the parties should be paid out of the estate.

Orders

Orders of the court

1. The Counterclaim is dismissed.

2. The parties are to submit draft orders reflecting my reasons and any submissions as to costs within fourteen days of the date of publishing these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Kallangur Property is the primary asset of Kenneth’s estate. In addition to that, Jennifer had died intestate and under the intestacy rules Kenneth was to inherit the first $150,000, the household chattels and one third of Jennifer’s estate. Her estate included a property outside Gin Gin and two term deposits.Evidence at trial The Siblings all gave evidence at trial. Each had a vested interest in the outcome, in terms of a share of Kenneth’s estate, or in the case of Nina, her son having the benefit of the Kallangur Property which she was to hold as trustee until he came of age. I therefore approached each person’s evidence with some circumspection. I found that each of the Siblings were honest and straight forward in the evidence they gave and mostly did not seek to provide answers which were self-serving. The 1979 Will Cameron, Lara and Terry gave evidence in support of the 1979 Will being Kenneth’s final valid will. They all gave evidence that they were aware that the 1979 Will was Kenneth’s will. According to Cameron, Kenneth joked with him that the 1979 Will was so old that he was not named in the will. Cameron stated that he knew the 1979 Will was in his father’s files and that is where he found it. Cameron stated that Jennifer had died intestate and he estimated that the Gin Gin property she owned was worth approximately $80,000 and that she had two term deposits. In total, he thought her estate was worth approximately $100,000. The Siblings had all agreed that Jennifer’s estate should form part of Kenneth’s estate. Cameron discussed that with his father. Lara and Terry gave similar evidence to that of Cameron, as to the size of their mother’s estate. Lara also gave evidence that she took Kenneth to see the Public Trustee about his position with respect to Jennifer’s estate. The Public Trustee representative they saw suggested that Kenneth get Letters of Administration in respect of Jennifer’s estate, which according to Lara, caused him to get very anxious. Lara then suggested that they return to the Public Trustee another day. That appears to never have occurred.Events leading up to Kenneth’s Death Kenneth had been in rehabilitation in May 2017. Subsequently, he was admitted to the Redcliffe Hospital on or about 1 June 2017, where his condition deteriorated up until his death on 10 June 2017. He is recorded as suffering from dyspnoea. Neither Cameron, Lara nor Terry, who all live a considerable distance from Brisbane, managed to see Kenneth before he suffered a significant downturn in his health on or about 5 June 2017. Cameron arrived at the hospital on the evening of 6 June 2017, by which time Kenneth was mumbling and was very difficult to understand. Lara had seen Kenneth in January 2017 before flying back to Darwin. Lara had spoken with Cameron, Terry and Kenneth over FaceTime while she was still in Darwin, approximately a week before Kenneth had died. She stated Kenneth kept falling asleep mid-sentence. Lara did not see Kenneth again until the morning of 10 June 2017. Terry did not see Kenneth in person until 7 June 2017, by which time Kenneth’s condition had deteriorated significantly.

Decision

Reasons for decision

Section 18 of the Succession Act is beneficial in nature and to ensure that a testator’s intentions are given affect, such that the benefits of change should not be withheld by requiring too rigid a manner of proof.[54] However, when all of circumstances are considered, this is not a case where I cannot be satisfied that the 2017 Document was regarded by Kenneth as anything more than a note of his testamentary intentions or instructions which were going to be reproduced in a formal will. [54]Re Garris [2008] 2 Qd R 59 at [9].Conclusion I am not satisfied to the requisite standard that the 2017 Document is a document that Kenneth intended to form his will such that the requirement of s 18(2) of the Succession Act is satisfied. The counterclaim should be dismissed. It is therefore appropriate to pronounce the 1979 Will as Kenneth’s last valid will. Nina raised a question in relation to the appropriate form of order. In the circumstances, the parties’ legal representatives should confer and provide a proposed form of order to the court within fourteen days. The present case was one which I consider had to be brought before the court for determination given the existence of the 2017 Document. In those circumstances, it would seem the appropriate order is that the costs of the parties be paid out of the estate. I will allow the parties fourteen days to make submissions as to the appropriate order as to costs, to be provided at the same time as the proposed form of order. I therefore order:1.The counterclaim is dismissed.2.The parties are to submit draft orders reflecting my reasons and any submissions as to costs within fourteen days of the date of publishing these reasons.

Ratio Decidendi

Legal Principle Established

A poor memory does not necessarily indicate a lack of capacity. The question is the soundness of the testator’s ability to decide how assets are to be divided. The testator must, at least, be aware in general terms of the nature, extent and value of the estate.[34][34]Rowe v Sudholz [2019] QSC 306 at [23].Consideration The evidence of Kenneth’s testamentary capacity was fairly scant. While the plaintiff did not contest capacity, it remained a matter which Nina had to establish in order to propound the 2017 Document as Kenneth’s will. A brief letter was provided by Dr Ching which stated that Kenneth was “cognitively intact” and that he was “competent to make decisions pertaining to his lifestyle, medical treatment, and finance.”[35] Dr Ching stated that he had been involved in Kenneth’s care. Mr Pattison was also confident that Kenneth had capacity after speaking to him when he arrived on 4 June 2017, although he did not undertake the Banks v Goodfellow test in any detail prior to taking instructions.[36] Nina’s evidence as to capacity was equivocal, insofar as she stated that is why she sought a letter. [35]Exhibit 25.[36](1870) LR 5 QB 549. One aspect of the Banks v Goodfellow test is that the deceased must be aware of the general nature and value of his estate. A matter that does raise a point of concern is the fact that Kenneth did not, in his discussions with Mr Pattison, refer to the property at Gin Gin, which was the property that had been in Jennifer’s name. His failure to make reference to it raises a question of whether he knew the extent of his estate. According to the evidence of the Siblings, Kenneth knew that he was entitled to inherit her property, which was a belief shared by the Siblings. Kenneth had discussed his position with Cameron, who had provided him with reassurance in that regard. He had also attended the Public Trustee with Lara, and according to Lara, became very anxious when obtaining letters of administration such that she decided to defer the discussions for a further day. However, no letters of administration had been obtained by Kenneth when Jennifer passed away. In those circumstances, Kenneth would have been aware that no steps had been taken to transferring the property into his name. I do not find Kenneth lacked an understanding of the general nature of his estate. Kenneth’s lack of reference to Jennifer’s property is explicable on the basis he took no action to transfer the Gin Gin property into his name nor took any active steps in relation to the property. His medical condition was not directly related to his cognitive function. In addition to the letter of Dr Ching, the medical notes lend some support to the fact that Kenneth had testamentary capacity given they record that he was conversing with medical staff, including, it appears as late as 5 and 6 June 2017, although that interaction was clearly very intermittent given his deteriorating condition. I am persuaded on the balance of probabilities that Kenneth had testamentary capacity on 4 June 2017 when the 2017 Document was created. Intended to have an immediate effect