WILL – Testamentary capacity – Test – Whether circumstances arousing suspicion – Onus on propounder of will – Elderly testator with cognitive impairment – Change of bequests from previous wills – Whether testator was capable of evaluating claims on his bounty – Significance of unchallenged evidence about instructions for and execution of will.
WILL – Validity – Testator’s knowledge and approval – Suspicious circumstances – Application of principles – Instructions given to solicitor about contents of will – Failure by solicitor to retain any file or notes of instructions – Preparation of wills by solicitors – Duties generally.
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APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr SM Anderson QC with Mr TM Dowling
Katherine Moorhouse-Perks
For the Respondent
Mr DG Collins QC with Mr RB Phillips
McNab McNab & Starke Solicitors
SANTAMARIA JA:
Procedural background
On 13 March 2012, the appellants filed an originating motion for grant of probate of the testator’s will dated ‘10 December 2011’ (‘the December will’).[1] On 30 March 2012, the respondent lodged a caveat in that proceeding in which she objected to a grant of probate to the appellants. The two grounds of objection pursued at trial were that the testator:
(a) lacked testamentary capacity shortly before and at the time that he executed the will; and
(b) did not know and approve the contents of his will.
[1]The will bore the date ‘10 December 2011’. However, it was executed in December 2010.
On 19 February 2014, the trial judge delivered a judgment in which he refused to admit the will to probate[2] and, on 30 April 2014, he dismissed the proceeding.[3] Notwithstanding that the testator suffered from impaired cognition, the judge was satisfied that the testator did have testamentary capacity before and at the time that he executed his will. Notwithstanding that he had testamentary capacity and that the December will was drawn by a solicitor and read by him to the testator, the trial judge was not satisfied that the testator knew and approved its contents.
The appellants filed a notice of appeal on 12 May 2014 in which they sought to appeal against the trial judge’s finding on knowledge and approval. The respondent filed a notice of contention on 30 May 2014 in which she sought that the orders dismissing the proceeding be affirmed and contended that the trial judge erred in finding that the testator had testamentary capacity.
The December will departed significantly from several previous wills executed by the testator.…
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.
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Details
AGLC
Veall v Veall [2015] VSCA 60
Case
[2015] VSCA 60
Decision Date
CaseChat Overview and Summary
The case of Veall v Veall involved a dispute regarding the validity of a will, with Rowland Veall contesting the will of his father, Keith Veall. The case was heard in the Supreme Court of Victoria. The primary legal issues centred around the testator's testamentary capacity and whether Keith was capable of understanding and approving the contents of his will, particularly in light of significant changes to his bequests compared to his previous wills. Additionally, the court had to determine whether suspicious circumstances were present that would cast doubt on the validity of the will, and whether the onus lay with the propounder of the will to prove its validity.
The court found that Keith, who was elderly and had cognitive impairment, had the testamentary capacity to make the will in question. The court considered the evidence regarding Keith's knowledge and approval of the will's contents, including the changes to his bequests. The court held that Keith had given clear instructions to his solicitor about the contents of the will, and despite the solicitor's failure to retain any file or notes of these instructions, there was unchallenged evidence that Keith had indeed given these instructions. The court concluded that Keith was capable of evaluating the claims on his bounty and that the evidence did not establish suspicious circumstances that would invalidate the will.
The court also examined the principles regarding the validity of a will in the presence of suspicious circumstances, and held that the onus was on the propounder of the will to prove its validity. In this case, the court found that this onus had been discharged. The final orders of the court were in favour of the validity of Keith Veall's will, and against the claims of Rowland Veall.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Much of the evidence in the case related to Rowland’s strong sense of grievance at the way in which Kim and Beryl had received a disproportionate share of Keith’s very considerable assets. Rowland said that it was not until about 2008 that he and his father discovered that Keith had been manipulated to favour Kim at the expense of Rowland and Denise. He said that he had himself been ‘kept out of the loop’. He had not himself been involved in the Kim Veall Trust and the decision to vest it. But, in ‘something like 2007, 2008 from rough memory’, he had conducted a search and learnt that Beryl was the sole proprietor of the apartment at Wallace Avenue.[9] He said that he told his father of this, who then enlisted his assistance to locate and recover his assets. He said that Keith had believed that he was a half owner of Wallace Avenue. He also said that his father had lost control of his day to day business activities; Beryl had coaxed Woods and Martin to help them control his assets. ‘Beryl … was the architect and the engineer of this whole very, very sad story’. Rowland accepted that, in 2007, his father had purchased a property in Kilsyth South for him and his wife to live in and a property in Balwyn for Denise. Rowland was not himself privy to the circumstances of the establishment in February 2008 of the Keith and Beryl Veall Trust: ‘once again, I was kept out of the loop, I wasn’t privy’.[9]The evidence was that the Wallace Avenue apartment was not acquired until at least May 2008 and that Keith and Beryl did not move into it until mid-2008. In his affidavit sworn on 18 May 2012, Rowland said that he did not learn of the ownership of Wallace Avenue until late June 2010. He accepted he was mistaken about this.Rowland’s evidence of his father’s health Rowland’s estimation of his father’s health and capacities in 2010 was in evidence. Part of the evidence was contained in Rowland’s communications with Hymans, the solicitors who had been retained in mid-2010. Part of the evidence was given by Rowland during the trial. Rowland’s evidence about his father’s mental health was contradictory. When he addressed the subject as a general matter, he insisted that his father was alert and mentally acute. His father never appeared to be disoriented and his memory was ‘incredibly good in detail’. ‘He was very determined to endeavour to right the wrongs that had taken place over literally decades, thanks to his wife and complicit daughters … His mental capacity was of determination to make sure that at least something could be left for my sister Denise and myself, just something’. In cross-examination, Rowland accepted that, when his father had purchased the house in Kilsyth South for him and his wife and the house in Balwyn for Denise, he understood what he was doing: ‘very much so’. Keith decided to put the house in Kilsyth South into his own name as there had been matrimonial difficulties between Rowland and his wife and even though they had been cleared up, ‘my father was still on safety mode’. However, when he set up the Keith and Beryl Veall Trust in February 2008, and excluded Rowland and Denise as capital beneficiaries, it was not something he knew or intended.