Virginie-Pitel v Campbell; Campbell v Virginie-Pitel

[2010] NSWSC 1440

CITATION:	Virginie-Pitel v Campbell; Campbell v Virginie-Pitel [2010] NSWSC 1440
HEARING DATE(S):	24/09/10, 19/10/10, 07/12/10
JUDGMENT DATE :	15 December 2010
JUDGMENT OF:	Slattery J at 1
CATCHWORDS:	PROCEDURE - courts and judges generally - proceedings for revocation of probate and declarations of invalidity of will - settlement of proceedings between two of three parties to proceedings - second defendant declines to take part in proceedings - directions for service of notice of proposed orders on second defendant - whether second defendant has proper notice of orders proposed to be made - SUCCESSION - wills, probate and administration - despite settlement, as against second defendant, it is necessary to prove circumstances warranting revocation of probate - whether probate should be revoked - later will is invalid for want of testamentary capacity - parties agree to dispense with procedural requirements to make a claim under Family Provision Act, 1982 - Court declines to make such orders - grants liberty to apply.
LEGISLATION CITED:	Conveyancing Act (1919), s 66G Family Provision Act (1982), s 6 Probate and Administration Act (1898), s 40D and 90. Succession Act (2006), Schedule 1, Clause 11(2). Supreme Court Rules (1970) , Part 78, Rules 61 & 62
CATEGORY:	Principal judgment
CASES CITED:	Azzopardi v Smart (1992) 27 NSWLR 232 Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR5QB 549 Bates v Messner (1967) 67 SR (NSW) 187 Brown v M'Encroe (1890) 11 LR (NSW) Eq 134 Edwards v Boyd (1958) 75 WN (NSW) 525 Ex Parte Keegan (1907) 7 SR (NSW) 565 Re Estate of Griffith (Deceased); Easter v Griffith (1995) 217 ALR 284 Re Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698 Re Fenwick (deceased) [1972] VR 646 Re Estate of Wilson (1991) 24 NSWLR 334 Worth v Clasohm (1952) 86 CLR 439 Stephens v Perpetual Trustee Company Limited (2009) 76 NSWLR 15
PARTIES:	Plaintiff- Kathleen Anne Virginie-Pitel/Suzanne Dorothy Campbell First Defendant- Suzanne Dorothy Campbell Second Defendant- Julie Alice Moane/Jean Claude Gerard Virginie-Pitel
FILE NUMBER(S):	SC 2007/257347; 2008/277402
COUNSEL:	Mr DJ Hand for Suzanne Campbell in both matters. Ms L Judge for Virgine-Pitel in both matters.
SOLICITORS:	Plaintiff- Rodney Kent, Kent Attorneys Defendant-n/a

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

WEDNESDAY, 15 DECEMBER 2010

2007/257347 KATHLEEN ANNE VIRGINIE- PITEL v SUZANNE DOROTHY CAMPBELL
2008/277402 SUZANNE DOROTHY CAMPBELL AS SOLE EXECUTOR OF THE ESTATE OF EDITH DOROTHY FULTON v JEAN CLAUDE GERARD VIRGINIE-PITEL

JUDGMENT

1 HIS HONOUR: Kathleen Anne Virginie-Pitel, one of the three daughters of Edith Dorothy Fulton seeks revocation of the probate of her mother’s will dated 2 December 2004. Kathleen Virginie-Pitel’s eldest sister, Julie Alice Moane and her older sister, Suzanne Dorothy Campbell are the defendants to the proceedings. Edith Fulton’s 2 December 2004 will was admitted to probate on 1 August 2006. The will appointed Suzanne Campbell as executrix. Edith Fulton made her last will prior to the 2 December 2004 will on 24 June 1999. The June 1999 will appoints Kathleen Virginie-Pitel as executrix of Edith Fulton’s estate and gave her substantial benefits. All the parties to these proceedings come from the same family. I shall, I hope without any disrespect to any of them, refer to each of Edith Fulton’s daughters by their first names, Julie, Suzanne and Kathleen. Julie is the eldest sister and Kathleen the youngest.

2 If Edith Fulton is found not to have had the testamentary capacity to make the 2 December 2004 will, and probate is revoked, then Kathleen propounds the earlier will of 24 June 1999. These proceedings (“the revocation proceedings”) have settled as between Kathleen and Suzanne. Since about April 2009 Julie has taken no active part in the revocation proceedings. By the settlement Suzanne and Kathleen have agreed that the probate of the 2 December 2004 will should be revoked, and that the 24 June 1999 will should be admitted to probate. The settlement also involves Suzanne bringing a claim under the Family Provision Act 1982 out of time and Kathleen settling that claim as the new executrix of Edith Fulton’s estate under the June 1999 will. Julie has not participated in this settlement. Kathleen and Suzanne’s attorneys submit that the Court should make the orders agreed in the settlement notwithstanding Julie’s lack of participation.

3 The circumstances outlined raise issues as to: whether Julie has been given proper notice of these proceedings and their settlement; whether the Court is justified in making the orders provided for in the settlement revoking probate of the December 2004 will and granting probate of the June 1999 will; and, whether the Court is justified in the circumstances in making the Family Provision Act order requested. Notwithstanding the settlement of these proceedings between two of the three parties, the non-participation of the other party in that settlement and the fact that the settlement involves an invocation of the Court’s power to revoke probate and grant declaratory relief means that it is necessary to consider the circumstances of the making of the 2 December 2004 will and to make a determination as to Edith Fulton’s testamentary capacity at the time.

4 There is another set of proceedings which are being settled simultaneously. In these other proceedings Suzanne seeks relief under Conveyancing Act 1919, s 66G against Kathleen and her husband, Jean Claude Gerard Virginie-Pitel, for the appointment of trustees for sale of Edith Fulton’s interest in a residential property which is jointly owned with Kathleen and her husband (“the s 66G proceedings”). No special issues for present consideration arise out of the settlement of the s66G proceedings. Some background is required in order to decide these issues.

Edith Fulton’s Wills

5 Family tensions existed among Julie, Suzanne and Kathleen throughout the period from the 24 June 1999 will and to the 2 December 2004 will and up to Edith Fulton’s death on 24 April 2006. It is not necessary for the Court to enquire into these tensions for the purposes of determining the issues in these proceedings. But their existence may readily be inferred from the affidavit evidence. Their existence is also a factor relevant to the consideration of Edith Fulton’s testamentary capacity. It is necessary to mention them to at least a limited degree.

6 The Court has not had the advantage of seeing any of the parties to the revocation proceedings, Julie, Suzanne or Kathleen. They each give evidence about their mother and in relation to matters about her testamentary capacity at various times. Nor has the Court had the advantage of seeing the witnesses to the 2 December 2004 will. In these circumstances the Court is required to compare the witnesses’ affidavit evidence with the affidavit evidence of a psychiatrist, Associate Professor Carmelle Peisah who has given expert evidence about Edith Fulton’s testamentary capacity in December 2004. The Court nevertheless can decide the issues on the material presented. The account in these reasons of the facts and the issues will be more summary than it perhaps would have been had the proceedings been fully contested. With this introduction a short account of the family structure and recent history relevant to Edith Fulton’s two wills can be given.

Stan and Edith Fulton’s Family

7 Edith Fulton was born in Almmerton New South Wales in 1923. In 1956, at the age of 33 she married Stanley Francis Fulton. Their three children were born over the next few years; Julie in 1957, Suzanne in 1959 and Kathleen in 1963. Stan and Edith Fulton were married for 24 years until he died in 1980 at the age of 52. At the time of his death Julie was 22, Suzanne was 21 and Kathleen was 16.

8 Edith and Stan Fulton and their three daughters lived in the Illawarra area in the suburb of Fairy Meadow when the family was growing up. The three girls went to school locally. The thrust of the evidence from this period is of good family relationships.

9 Kathleen claims that Edith Fulton made a will in 1989 appointing Julie as the executrix of her estate and dividing her estate equally among her three daughters. Julie does not mention this will in her affidavit. A copy of the will does not appear in the evidence. I do not place any weight in my conclusions in these proceedings upon the existence of such a will.

10 Julie left home in 1975. She married Steven Moane on 21 June 1975. They have three children Rebecca, Elizabeth and Andrew. The elder two of whom were married by 2000. Julie now lives with her husband Steven at Mount Ousley in the Illawarra district of New South Wales.

11 Suzanne married Peter Campbell in 1996. They have one son, Bryce Stanley Campbell who was born in January 1997. They live in Kempsey on the north coast of New South Wales.

12 Kathleen lived with her mother until she was about 18 years old. She moved to Perth in 1991. Kathleen married Jean Claude Gerard Virginie-Pitel in August 1992. Later that same year she and her husband returned from Western Australia to New South Wales. They have two daughters Jacqueline and Caitlin.

Edith Fulton Moves in with Kathleen – The June 1999 Will

13 It was from about 1999 that differing views about what was in the best interest of their mother began to generate differences of opinion between the three sisters. From what can be discerned from the evidence each of them individually appears mostly to have had a good relationship with her mother. But each sister did not demonstrate great empathy with or insight to the kind of care that her siblings were providing to their mother. Without seeing the three sisters it serves no good purpose to go any further than these observations about their various differences of opinion. No more is required for the purposes of these proceedings. The differences among them partly arose over the question of the care and accommodation of their mother.

14 At the end of 1999 Edith Fulton was 76. She was still driving her own car and leading a reasonably independent life living in a unit in Waterloo Street, Bulli. It appeared to be convenient for her to sell her Bulli home unit and use the proceeds of sale to contribute to a 1/3^rd interest in land about to be purchased by Kathleen and her husband at Horsley Park near Dapto south of Wollongong. There was an issue on the evidence as to whether or not the proceeds of sale of the Bulli apartment also funded the construction of a separate living area for Edith Fulton at the Horsley Park property as well as her acquisition of the 1/3^rd interest in the land. Edith Fulton also seems to have made contributions to household expenditure and outgoings incurred by Kathleen and her husband. The “granny flat” at Horsley Park had a separate entrance from the main house and was air-conditioned. Julie Moane thought that the arrangements at the Horsley Park property were not as clearly for Edith’s benefit as Kathleen and her husband thought they were but I do not have to resolve that dispute.

15 Whilst Edith Fulton was considering selling her Bulli apartment and moving in with Kathleen and her husband, she made the June 1999 will. In this will she appointed Kathleen her executor and trustee. This will also provided that should Kathleen not survive then the testator appointed her son in law, Jean Claude Gerard Virginie-Pitel as executor. She gave her 1/3^rd interest in the Horsely Park property to Kathleen or if Kathleen did not survive her to Kathleen and Jean Claude’s daughters Jacqueline and Caitlin. She gave the proceeds of any credit union, investment or savings account operated at the time of her death equally to Julie and Suzanne. Then she divided the balance of her estate equally between Julie, Suzanne and Kathleen. As her sole substantial assets were here one third interest in the Horsley Park property and the bank accounts the residuary gift was of no value.

16 In a detailed statement made contemporaneously with the will on 24 June 1999 Edith Fulton explained her reasons for giving the bulk of her estate to Kathleen under this will. It is not necessary to reproduce this statement fully. The considerations she identified for this choice were: the quality of her relationship with Kathleen; her decision to move in with Kathleen and her husband and her acquisition of a 1/3^rd share in their property; a view that the financial circumstances of Suzanne and Julie were not pressing; and, gratitude for Kathleen and her husband’s purchase of a property. Edith Fulton then expressed in this statement a wish for Kathleen not to have to purchase this 1/3^rd interest from her sisters after Edith Fulton’s death. The 24 June 1999 will and the statement of the same date were both witnessed by Mr Kerry Kyriakoudes the solicitor who took instructions as to both.

Edith Fulton’s Illness

17 Kathleen, her husband and family and Edith Fulton moved into the Horsley Park property in March 2000. Edith Fulton lived there until November 2003. In October 2003 Edith Fulton was diagnosed as suffering from meningioma, a benign but inoperable brain tumour. The medication prescribed to Edith Fulton meant that she was not able to drive. In the two and a half year period between November 2003 and her death in April 2006 Edith Fulton underwent a number of changes of accommodation.

18 From November 2003 until September 2004 Edith Fulton lived with Julie Moane who, together with her husband, Steven, cared for her and assisted her with attending medical appointments and her other daily needs.

19 In September 2004 Edith Fulton’s health declined more rapidly. She was admitted to Port Kembla Hospital for treatment, undergoing rehabilitation until November 2004. Julie Moane and her husband appeared to assume that Edith Fulton would return to their home once she was released from hospital. They were making preparations for that. Julie’s view was that her mother could reside with her. Kathleen’s view was that she was already in palliative care in Port Kembla Hospital and could not walk without assistance. There is a strong contest on the evidence about Edith Fulton’s capacity to take care of herself at this point. Whatever her actual state of physical mobility, by mid November 2004 she had certainly undergone strong medication to deal with the growth of her meningioma.

20 Differences of view about Edith Fulton’s capacity to care for herself led to a rift among the sisters. Suzanne, who lived with her husband in Kempsey, arranged for her mother to be admitted to the Amity Nursing Home where she remained until 4 April 2006. She was only ultimately transferred back from there to the Illawarra, to the suburb of Woonona, to Cheslon Nursing Home on 4 April 2006, some 20 days before her death.

21 Suzanne and Kathleen were of the view that Edith Fulton’s move into a nursing home in Kempsey was for her benefit given her medical condition. Julie thought the move was not warranted by her medical condition and had the disadvantage of removing her from her friends of 80 years. These differing views were strongly debated among the siblings. Curiously the strength of their disagreements are perhaps to be taken as indirect evidence of the strength of their affection for their mother. There were some subsidiary issues. Kathleen was concerned about Julie’s expenditure of Edith Fulton’s money and whether it had all been applied to Edith Fulton’s benefit up until November 2004. But there is evidence of Julie before the Court that these funds were properly applied. The Court does not have to resolve these questions.

The 2 December 2004 Will and the Move to Kempsey

22 On 15 November 2004 Edith Fulton was discharged from Port Kembla Hospital by Kathleen and Suzanne. Julie says this was without her full knowledge. Edith Fulton stayed at Kathleen and Jean Claude’s home at Horsely Park for about 3 weeks before travelling to Kempsey to the Amity Nursing Home. In that 3 week period she made the 2 December 2004 will. The making of the will was organised by Suzanne. It does not seem that Julie or Kathleen had much to do with the arrangements for it.

23 Instructions for the 2 December 2004 will were taken by two solicitors from Messrs Russell, McLelland and Brown in Wollongong, Mr Joshua Bignell assisted by Mr Lindsay Bassington. Instructions were taken on 29 November 2004 and the will executed on 2 December 2004. I am satisfied from Mr Bignell’s evidence that no one else was present when instructions were taken in relation to this will.

24 Under the 2 December 2004 will Edith Fulton appointed Suzanne as her executor and gave the whole of her estate equally to Julie and Suzanne. The will acknowledged that no provision had been made for Kathleen on the basis that “I have adequately provided for her during my lifetime”. No greater explanation of that adequate provision was given than those words.

25 There are strongly differing views on the evidence as to how contented Edith Fulton was at the Amity Nursing Home during 2005. Both Julie and Kathleen had not consented to Suzanne taking Edith Fulton to Kempsey and were critical of the quality of care she was receiving there.

Edith Fulton’s Death and the Legal Proceedings

26 But Edith Fulton did want to return to the Illawarra. Arrangements were made for her to go to the Cheslon Nursing Home in Woonona where she died on 24 April 2006.

27 After Edith Fulton’s death Suzanne Campbell applied for probate of the 2 December 2004 will by Summons dated 28 July 2006. The estate is not a large one. Its gross and net value were both declared at $174,529.49. A grant of probate in common form was made on 1 August 2006. I have had access to the Court’s probate file (No. S2006/112124) in the course of considering my reasons for decision in this matter. Neither Kathleen nor Julie had filed either a general caveat under Supreme Court Rules, Part 78, Rule 61 or a caveat for proof in solemn form under Supreme Court Rules Part 78, Rule 62. As Powell J explained in Azzopardi v Smart (1992) 27 NSWLR 232 at 238 C-F the former is the appropriate form of caveat to raise a ground of invalidity of a will other than want of a proper execution. Kathleen was certainly a party with sufficient interest to lodge such a caveat. Probate was granted in common form. Probate granted in common form may be revoked on grounds which will be discussed below. But a grant of probate in solemn form is conclusive between the parties except in cases of fraud or subsequent discovery of a later will: Edwards v Boyd (1958) 75 WN (NSW) 525 at 527. As there was no impediment to a grant of probate in common form within the ordinary administrative procedures of the Court the grant was made on 1 August 2006. But notwithstanding the relatively modest amount of the estate litigation soon ensued among the sisters.

28 Kathleen’s Statement of Claim in the revocation proceedings was dated 22 October 2007. It was first returnable before the Court on 1 February 2008. Defences and affidavits were filed on all sides between then and 26 March 2009 when Messrs Maguire and McInerney filed a notice of intention of notice ceasing to act on behalf of Julie. She thereafter took no part in the proceedings.

29 Suzanne commenced the s 66G proceedings on 11 February 2008 in her capacity as executor of Edith Fulton’s estate under the grant of probate to her of the December 2004 will. The proceedings sought appointment of trustees for sale of the Horsley Park property and the distribution of 1/3^rd of the proceeds of sale to the plaintiff to be administered as part of Edith Fulton’s estate.

30 Both proceedings were listed before Forster J for hearing on 1 and 2 July 2010. Due to some misunderstandings in relation to the availability of parties for the listed hearing date, applications were made to vacate the listing of both the revocation and the s 66G proceedings on those two days. Forster J vacated the hearing. His Honour gave further directions in the matter in September 2009 before his retirement. The Chief Judge in Equity then managed the proceedings in the first half of this year.

31 The proceedings were listed for hearing before me on 19 October 2010. The Court was told on that occasion that the proceedings had settled. The Court was handed terms of settlement of both the revocation proceedings and the section 66G proceedings. In the result I will make most of those orders, which I discuss further below. But Julie was not a party to the settlement. On Kathleen’s behalf Mr Orlizki presented the orders to the Court and asked for them to be made. I indicated that I was not prepared to do that without it being made clear that Julie had been informed about the hearing of the proceedings and of her opportunity to appear on 19 October 2010 to contest Kathleen’s claim in the revocation proceedings. Mr Orlizki initially sought to persuade the Court it was not necessary to contact Julie any further because she filed a notice of ceasing to act. I pointed out that notwithstanding the notice of ceasing to act she was not a party to the settlement and the Court could not deal with the proceedings by consent in any event as the plaintiff was seeking revocation of the probate granted in common form, a fresh grant of probate and declarations of invalidity of the 2 December 2004 will. It was necessary for the Court to be satisfied that the evidence existed for the making of such orders. So the evidence would have to be analysed in any event.

32 Mr Orlizki undertook to serve notice of the hearing upon Julie. This was not able to be done by the next return date before the Court in November. The matter finally came before me again on 7 December 2010 when evidence was presented of the service of notice of the proceedings on Julie. The adequacy of notice to Julie is the first of the three issues for consideration.

Notice of the Proceedings to Julie Moane

33 Julie has been given adequate notice of the orders which Kathleen is seeking in the revocation proceedings. It is unclear why she declined to continue with her legal representation in the proceedings. The cumulative expenditure of legal costs in a relatively small estate perhaps made that a sound commercial decision.

34 Mr Rodney Kent, the solicitor for Kathleen, sought to serve personally on Julie at her home in Mount Ousley on 30 November 2010 a letter explaining the current state of the proceedings and the nature of the orders being sought. That letter annexes a copy of the terms of settlement of the revocation proceedings and the s 66G proceedings. Mr Kent attended at Julie’s address. It is the same address as appears in her affidavit sworn 3 December 2008 and is confirmed by an up to date internet search. It is evident from the detailed account of the attempt at service given on that occasion that Julie declined, as she has previously, to communicate with Mr Kent, who also appears to be her second cousin. Julie made it clear to Mr Kent through her husband, Steven, that she did not wish to come to the door to receive the letter or have anything to do with the proceedings. After a conversation of some length and a continuing refusal on Julie’s part to take the letter, Mr Kent left it in the post box adjacent to the front door at the Mt Ousley home. It was also copied on, what appears on the evidence, to be her current email address. No communication has come back from her or her husband since then. Her attitude in November 2010 restated the position she had taken in June 2009 after she ceased to retain solicitors when she said to Mr Kent “ I do not want to have any further involvement with the proceedings. I do not care about the estate.”

35 The letter Mr Kent left in her post box and sent to her email address is a full and fair account of the current state of the proceedings, of her rights to make a claim against the estate of the Family Provision Act, of the proposed terms of settlement and of the course of proceedings before the Court. The letter invited acknowledgment of receipt which has not since been forthcoming. I find on this evidence that Julie has been given notice of the orders proposed and has decided that she wants nothing to do with these proceedings. But the question arises as to whether the orders should be made.

The Invalidity of the December 2004 Will

36 The Consent Orders provide for: a declaration that Edith Fulton’s will of 2 December 2004 is invalid; an order revoking the existing probate; and, an order granting probate of the 24 June 1999 will. Other orders under the Family Provision Act are proposed. These are considered in the next section of these reasons.

37 The law that applies to the revocation of grant of probate in common form may be clearly stated. The Court has a discretion to revoke grants of probate and letters of administration which are valid until they are set aside in exercise of that discretion: Ex Parte Keegan (1907) 7 SR (NSW) 565. There are a number of common circumstances in which a grant of probate may be revoked: where a false suggestion has occurred, whether fraudulently or ignorance of the truth which obscures a defect in title of the grant (such as for example where the testatrix does not know and approve certain words which appeared in the will, Re Fenwick (deceased) [1972] VR 646; where the will has been discovered after a grant of letters of administration or a later will after a grant of probate, Re Estate of Wilson (1991) 24 NSWLR 334; where executors or administrators become incapable of acting, Bates v Messner (1967) 67 SR (NSW) 187; where it appears to the Court that a grant of probate or administration ought not to have been granted or that it contains an error, if the Court is satisfied that the grant would be revoked at the instance of a party interested. The executor under a revoked grant is still bound to account, and to pay and transfer money and property received in his or her capacity as executor and to be appropriately reimbursed by a subsequent executor: Probate and Administration Act 1898, ss 40D and 90.

38 The contentions in Kathleen’s Statement of Claim in the revocation proceedings are that Edith Fulton lacked testamentary capacity at the time she made the alleged will by reason of her suffering from a brain tumour which was alleged to have affected her mind, memory and understanding and that she did not know and approve the contents of the alleged will. Notwithstanding the settlement between Kathleen and Suzanne it is still necessary for the Court to determine the matter as between Kathleen and the absent Julie who is not bound by the settlement and against whom the invalidity of the will must be independently established as the second defendant to the proceedings. Although Suzanne is executor of the will Kathleen has appropriately joined Julie as a person interested in opposing the revocation, given her entitlement to half the estate under the 2 December 2004 will.

39 The evidence is finely balanced in my view but does justify a declaration of invalidity of the 2 December 2004 will and revocation of the existing probate.

40 The case put against the 2004 will was a narrow one. The evidence of Associate Professor Carmelle Peisah defined the issues. Associate Professor Peisah has a doctorate in medicine from the University of New South Wales, is conjoint Associate Professor at the University of New South Wales, and a professional member of the Guardianship Tribunal. She is the New South Wales Medical Board’s nominated psychiatrist on the Board’s impaired registrants program and a consultant psychiatrist for the eastern area health service aged care psychiatry practice area. Associate Professor Peisah’s evidence was opposed by lay evidence called on behalf of the first and second defendants Suzanne and Julie. Associate Professor Peisah was asked to subject to psychiatric analysis the elements of Edith Fulton’s testamentary capacity in accordance with the classic passage from Banks v Goodfellow (1870) LR 5 QB 549 at 545

“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.”

41 The applicable onus of proof has been explained in Bailey v Bailey (1924) HCA 21; (1924) 34 CLR 558 and Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698.

42 Where a doubt as to testamentary capacity is raised satisfying the evidentiary onus on the defendant, the onus passes to the propounder of the will to satisfy the Court that the will being propounded is valid; but this does not mean that a doubt is enough; the doubt must be such that the Court considers it sufficient, as a Court of conscience, to prevent it finding for the will propounded: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 and Re Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698.

43 A cautious approach to cases such as the present one is invited by authority. The reason for this was explained by Gleeson CJ in Re Estate of Griffith (Deceased); Easter v Griffith (1995) 217 ALR 284, at 290:

“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 the woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that if the evidence of an unsound mind, the decision may be very difficult.”

44 The issue that Associate Professor Peisah raises in this case, does not relate to Edith Fulton’s appreciation of the significance of the act of making a will, does not relate to Edith Fulton’s awareness of the general terms of her estate and does not relate to her identification of those who might have reasonably have been thought to have a claim on her testamentary bounty. Rather her opinion is that in December 2004 Edith Fulton had cognitive impairment which may have compromised her capacity with respect to her ability to identify, evaluate and discriminate between the respective strengths of the claims of persons on her testamentary bounty.

45 Associate Professor Peisah has examined Edith Fulton’s full medical history as well as much of the evidence in the proceedings. The medical records of Port Kembla Hospital in the last two weeks of her presence there show psychologist’s reports that include the following: “well orientated to person, date and place. Limited non verbal abstract reasoning present…Became tearful when discussing conflicts between daughters”. On 3 November 2004, one month before she made the will a psychologist a Port Kembla Hospital observed the following of her:

“Immediate memory is low average, delayed recall severely impaired. Vasoconstriction is Low average/Borderline for her age and attention is low average. Generally functioning within low average range for her age but with average orientation and language. However is not able to identify appropriate strategies for remaining safe at home. Is probably capable at this time of making an informed decision if the information is of interest to her and relatively simple.
Is not able to remember or process large amounts of new information. May be easily led by persuasive arguments/statements. May have the early stages of dementia, possible AD but this was not fully assessed”

46 Associate Professor Peisah also observed from MRI brain scans taken within 12 months of the making of the will that in addition to the meningioma she had a considerable number of foci of chronic ischaemic change in periventricular and sub cortical white matter. Throughout 2004 she was requiring increasing doses of narcotic analgesics. She was incontinent by October 2004. The medical officers at Port Kembla Hospital concluded that she needed high level residential care. Furthermore, on 9 November 2004 she collapsed while sitting in a chair, was unresponsive for 45 minutes after which her speech was incomprehensible and she was agitated and confused for the next 24 hours. It was concluded that she had had a transient ischemic attack at this time.

47 Based on this material Associate Professor Peisah’s conclusion was that Edith Fulton was suffering from a disorder of the mind, consequent upon cerebrovascular disease (CVD) a disease involving the small and possibly the large vessels of the brain. Associate Professor Peisah concluded in Edith Fulton’s case that the CVD, which manifested as vascular cognitive impairment, is associated with loss of frontal or executive function (that is judgment, planning and reasoning), which in her opinion are crucial to the will making process, especially where that process involves complex or novel decisions which deviate from previously established patterns of disposition.

48 Associate Professor Peisah concludes that it is more probable than not in her opinion that Edith Fulton was unable to weigh, identify, evaluate and discriminate between the respective strengths of the claims of her beneficiaries. Her principal reasoning to this conclusion is set out in a single paragraph of her report which I accept as correct after considering all the evidence in this case:

“The task of evaluating and discriminating between respective strengths of claims was particularly complex for Mrs Fulton. She had to consider and take into account her past, very clearly stated wishes with regards to her estate, as well as past and recent relationships with her three daughters, including the extent to which she had provided for each of them. The greater the complexity and conflict within a testator’s environment, and the greater the complexity of the Will itself, the higher the level of cognitive function or emotional stability necessary to be considered capable. Her mental state by December 2004 reflected both an inconsistency in her decisions and family alliances typical of patients with neurodegenerative disease (even early neurodegenerative disease) and an inability to remember or process large amounts of new information which precluded the kind of evaluation and discrimination required of her as a testator.”

49 It is necessary to consider any relevant will making pattern and the terms of the challenged will. I do not take into account the 1989 will because evidence of its existence is too uncertain. If it did exist it would be rational for its time, dividing up as it was said to do, Edith Fulton’s estate into three equal parts for her three daughters.

50 This case does raise suspicions as to Edith Fulton’s testamentary capacity. Edith Fulton revoked the June 1999 will and executed an entirely different disposition during a period of mental enfeeblement: Bailey v Bailey (1924) 34 CLR 558 at 571. Furthermore the will is “inofficious” in the sense of making no provision for a near relation, Kathleen who ought to be the object of Edith Fulton’s bounty: Banks v Goodfellow (1890) LR 5 QB 549, at 570 and Brown v M’Encroe (1890) 11 LR (NSW) Eq 134 at 138. In such circumstances fuller and clearer evidence of capacity is required.

51 Even if one were prepared to assume the correctness of much of what Julie and Suzanne say in their evidence about Kathleen and the treatment of their mother, the unfairness of the 2 December 2004 will is still striking. Perhaps the centrepiece of Edith Fulton’s rationale for the 24 June 1999 will was not just a perception of gratitude that Kathleen and her husband had done much for her at that time, but rather, a practical realisation that it would create an impossible situation for Kathleen if she had to negotiate with her two sisters to buy back a 1/3^rd interest in her and her husband’s domestic residence in Horsley Park after their mother’s death. The failure to give any obvious consideration to that factor in December 2004 and Edith Fulton’s unexplained assumption at the same time that Kathleen had done well from her bounty already, shows clear internal evidence in my view of a failure to properly weigh the competing claims upon her. The complexity of the December 2004 testamentary task for Edith Fulton, especially given the emotional distress that the differences among her daughters clearly caused her, was intensely challenging. The objective evidence in the will itself, omitting any provision for Kathleen is a powerful factor pointing to lack of testamentary capacity in this case.

52 In my view the challenges to the impairment of her mental capacity implied from her CVD, together with the intense emotional difficulties of weighing the competing claims of her three daughters was a task which was too complex for her in December 2004 and beyond her testamentary capacity.

53 The competing lay evidence does not change this view. There is evidence from the time of making the December 2004 will and there is general evidence from Kathleen, Suzanne and Julie.

54 Mr Bignell, the solicitor who took instructions for the December 2004 will regarded Edith Fulton as coherent, rational and articulate. Sister Sharon Fritsch, a nurse who cared for Edith Fulton in Kempsey at the Amity Nursing Home regarded her as someone who was able to make her own choices and decisions and to be capable of logical and formed thoughts and conversations, although she saw that Edith Fulton required large quantities of medication for pain relief and headaches caused by her tumour. Dr Leo Smith, a general practitioner from Kempsey thought in late 2004 and early 2005 she was capable of understanding the will making process. These genuine opinions do not come to grips with the underlying complexity and emotional difficulty of the task that was presented to Edith Fulton in weighing the claims of her three daughters on her bounty, a task which in my view in December 2004 she was incapable of undertaking. This incapacity could be masked in less challenging situations with which these witnesses were more familiar. The evidence of Mr Bignell and Mr Bassington does not provide any detail about how Edith Fulton reasoned her way to excluding Kathleen from benefits of the 2 December 2004 will. All there is is the mysterious statement that the testator had adequately provided for Kathleen “during my lifetime”.

55 The evidence of Kathleen, Julie and Suzanne about Edith Fulton’s testamentary capacity in December 2004 is greatly in conflict. Without a hearing I find it difficult to draw very much from it. Kathleen saw her mother at the time as becoming quieter, withdrawn and less comprehending of people around her and easily distressed. Julie saw her physically incapacitated but able to communicate coherently and recognising the people around her. Suzanne had a similarly positive view of her mental capacity. It is difficult to decide much on this conflict of evidence. The practical exclusion of Kathleen from the last will, combined with Associate Professor Peisah’s evidence in my view is sufficient for the Court to conclude the deceased lacked testamentary capacity.

56 Accordingly I will make the declarations as to the invalidity of the 2 December 2004 will and I will make orders revoking probate of the will dated 2 December 2004. I will also make consequential orders in relation to probate of the will of 24 June 1999.

57 But there is one remaining question as to the consequential orders settling a proposed Family Provision Act claim to be brought by Suzanne.

The Family Provision Act Orders

58 The neat arrangement made between Kathleen and Suzanne in relation to the proposed Family Provision Act claim by Suzanne are not an adequate discharge of Kathleen’s prospective obligations as executrix of the June 1999 will, probate of which is yet to be granted to her. Clause 8 of the terms of settlement requires Suzanne to file and serve a cross claim claiming relief under s 7 of the Family Provision Act and makes an order by consent extending time for making the claim up until the time of the filing of the cross claim and dispensing with compliance with “all rules and practice notes necessary to enable orders to be made by consent”.

59 I am not prepared to make this order in this form. It dispenses with appropriate consideration by Kathleen in her role as executrix of the estate of her obligations to consider the range of possible eligible persons who may have claims on the estate when she comes to consider these possible claims as executrix under the 24 June 1999 will. That is the future capacity in which she would have to consider these possible claims. Her role in doing so is somewhat different from her present role as a plaintiff seeking revocation of the 2 December 2004 will and in the alternative making a Family Provision Act claim herself against Suzanne as executrix of the 2 December 2004 will.

60 Mr Orlizski has referred the Court to the list of eligible persons provided with the statement of claim in the revocation proceedings in accordance with Schedule J to the Supreme Court Rules, Clause 9(1). Those persons are Kathleen, Suzanne, Julie and Kathleen’s daughters Jacqueline and Caitlin. In my view this list needs to be re-examined by Kathleen in her new role as executrix of the June 1999 will. There is no evidence that she has done this, even prospectively. Her obligations to do so cannot be dispensed with by agreement. It is difficult to see how she can give an adequate account of her performance of this task until she becomes executrix of the 24 June will.

61 As Edith Fulton died before the commencement of the Succession Act (2006), the Family Provision Act (1982) applies to any Family Provision Act claimed by Suzanne: Succession Act, Schedule 1, Clause 11(2). The definition of eligible persons under Family Provision Act, s 6 includes persons who were either grandchildren of the deceased or member of the household of which the deceased was a member and who “was at any particular time wholly or partly dependent upon the deceased”. Kathleen’s children Jacqueline and Caitlin appear to fall into that category possibly as a result of Edith Fulton living at Horsley Park whilst they were there. The evidence does not sufficiently exclude the possibility that Edith Fulton may have shared a household at some point with the one or other of the grandchildren for it to be said on the currently available evidence that there is no possibility those other grandchildren could be eligible persons. Issues of who is an eligible person can involve issues of complexity as Palmer J’s recent decision, Stephens v Perpetual Trustee Company Limited [2009] 107 8; (2009) 76 NSWLR 15, shows. Furthermore Mr Orlizski has not pointed the Court to any clear evidence as yet that Jacqueline and Caitlin have been given notice of these proceedings and do not wish to contest Family Provision Act proceedings. Whilst it is quite unlikely that they would do so in conflict with their mother the Court has so far been left in a complete vacuum about evidence in relation to eligible persons. It is up to Kathleen as the new executrix and Suzanne as the new plaintiff/cross-claimant to fill that vacuum if they wish so as to persuade the Court to make the orders they wish under the Family Provision Act in Suzanne’s favour.

62 The obligations of a plaintiff and an executor under the Family Provision Act 1982 in relation to eligible persons are provided for in Schedule J to the Supreme Court Rules:

“ 9 Notice to eligible persons
(1) The plaintiff claiming an order under section 7 must, unless he or she is the administrator, when serving the summons, also serve a notice on the administrator showing who, in his or her opinion, is or may be an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity).
(2) The administrator must serve a notice in Form 89B on the following:
(a) the surviving spouse (if any) of the deceased person,
(b) every child of the deceased person,
(c) every person not mentioned in paragraph (a) or (b) who is entitled to share in the distributable estate of the deceased person,
(d) any person mentioned by the plaintiff in his or her notice served under subclause (1) and not mentioned in paragraph (a), (b) or (c),
(e) any other person who, in his or her opinion, is or may be an eligible person.”

63 The hostility between the sisters in this case together with Julie’s non participation in these proceedings counsels caution in suspending with any of the requirements of Schedule J, clause 9 in this case. They must be complied with. The Court expects to be directed to clear evidence to show why certain grandchildren are eligible persons and others not and then the Court may be prepared to make the orders requested. The management of this further aspect of the case will remain in Mr Orlizki’s hands on behalf of Kathleen. I will grant liberty to apply. No particular direction is required in my view at this point other than to grant liberty to apply.

Conclusions and Orders

64 In the result I am satisfied that Julie Moane is aware of the orders that are to be made in these proceedings. Notwithstanding the agreement made between the plaintiff, Kathleen Virgine-Pitel, and the first defendant, Suzanne Campbell, it has been necessary for the Court to consider whether the evidence in the proceedings warrants a declaration of the invalidity of the 2 December 2004 will, the revocation of probate in respect of that will and a grant of probate in respect of the 24 June 1999 will. The Court has considered that evidence and reached the conclusion that Edith Fulton lacked testamentary capacity at the time she made the 2 December 2004 will, that probate in respect of that will should be revoked and that the 24 June 1999 will be admitted to probate. However, for the reasons set out above the Court is not prepared to dispense with the requirements of the rules in respect of Suzanne Campbell’s Family Provision Act application, the further management of which is in the hands of the parties. That aspect of the proceedings may yet to be resolved by consent. In respect of that matter I will grant to the parties liberty to apply. The Court will make the orders requested in the s 66G proceedings.

In the Revocation Proceedings

65 The orders I make in the revocation proceedings are as follows:

1. Declare that the Will of the late Edith Dorothy Fulton dated 2 December 2004 is invalid due to the testator’s lack of testamentary capacity.
2. Grant of Probate No 112124/06 of the Will of the late Edith Dorothy Fulton dated 2 December 2004 in favour of the First Defendant is revoked.
3. Probate of the Will of the late Edith Dorothy Fulton dated 24 June 1999 annexed hereto and marked “ A ” [ annexed to orders in Court file] is granted to the Plaintiff.
4. Dispense with all formalities necessary for the grant of probate to be issued.
5. The Court notes that the inventory annexed [ annexed to orders in Court file] lists property disclosed to the Court in accordance with s81A of the Wills, Probate and Administration Act 1898 and directs that the inventory be issued by the Court under section 91(2) of that Act.
6. The First Defendant is to forthwith deliver to the Plaintiff, through her solicitor, all of the documents and things in her possession power and control relating to and being the property of the estate of the late Edith Dorothy Fulton.
7. These proceedings are remitted to the Registrar for completion of the grant in order 3.
8. Within 14 days, the First Defendant is to file and serve a Cross-Claim claiming relief under section 7 of the Family Provision Act 1982 and the time for making the claim is extended up to and including the date of the filing of the Cross-Claim.
9. The Plaintiff’s claim against the Second Defendant is dismissed.
10. Note there is no order as to costs as between the Plaintiff and Second Defendant.
11. Note in relation to the First Defendant’s costs and disbursements of obtaining probate of the Will of the deceased dated 2 December 2004 and administering the estate (including the payments of filing fees and other proper expenses in respect of proceedings number 2008/277402):
(a) the First Defendant is entitled to reimbursement of such costs and disbursements;
(b) note that the First Defendant has been reimbursed in respect of such costs and disbursements;
(c) the First Defendant may not make any further claim in relation to such costs and disbursements against the estate of the deceased.
12. These orders may be entered forthwith.
13. UPON THE MAKING OF THE GRANT and on the Cross Claim of the First Defendant filed pursuant to order 6 herein, pursuant to section 7 of the Family Provision Act , the Court grants liberty to the parties to apply.

In the 66G Proceedings

66 The orders I make and the agreements I note in the s 66G proceedings are as follows:

1. The Summons is dismissed.
2. Note the agreement of the parties that there is no order as to costs to the intent that each party pay its own costs of the proceedings.
3. Note the agreement of the parties that any prior orders with respect to the payment of costs are vacated.
4. These orders may be entered forthwith.

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