Wade v Frost - [2014] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
WADE v FROST
[2014] SASC 162
Reasons for Decision of The Honourable Justice Gray
31 October 2014
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - EVIDENCE - ONUS OF PROOF AND WEIGHT OF EVIDENCE
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Application to admit will to probate in solemn form. The plaintiffs were appointed executors under a will made in November 2005. The first defendant was appointed executor under a will made in 1990. The second, third and fourth defendants are the deceased’s grandchildren. Defendants alleged that the deceased did not have testamentary capacity at the time of making the 2005 will. The parties subsequently reached a compromise in the action and the allegation was withdrawn.
Whether the court must be satisfied that the deceased had testamentary capacity at the relevant time notwithstanding that the allegation had been withdrawn. Whether the deceased had testamentary capacity at the time of making the 2005 will.
Held (admitting the will to probate in solemn form):
1. Once the court is appraised of evidence or allegations of a lack of testamentary capacity, notwithstanding the presumption of testamentary capacity, the court should carefully assess the evidence to affirmatively satisfy itself that the deceased was of sound mind when making his or her will.
2. The deceased’s testamentary capacity is a question of fact on which the court must ultimately come to its own conclusion on the evidence, though it may be assisted by expert evidence.
3. Before making a finding that the deceased had testamentary capacity the court should be satisfied that the deceased was aware of the significance of making a will, the assets comprising his or her estate – in general terms – and the persons who might expect to inherit under the will and the basis for their expectations. Further, the court should be satisfied that, at the time of making the will, the deceased’s judgment in deciding how to dispose of his or her estate was not overborne, for example by a medical condition, age or the influence of another person.
4. The deceased had testamentary capacity when making her will in November 2005.
Supreme Court (Civil) Rules 2006 (SA) r 205(8), referred to.
Wheatley v Edgar [2003] WASC 118; Tsagouris & Anor v Bellairs & Ors [2010] SASC 147; Banks v Goodfellow (1870) LR 5 QB 549; Read v Carmody (Unreported, New South Wales Court of Appeal, Meagher, Powell and Stein JJA, 23 July 1998); Timbury v Coffee (1941) 66 CLR 277; In the Estate of Miegoch (deceased) (Unreported, Supreme Court of New South Wales, Santow J, 22 March 1996); Kerr v Badran [2004] NSWSC 735; Scattini and Anor v Matters [2004] QSC 459; Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75; Conroy v Unsworth-Smith [2004] QSC 81; Grynberg v Muller [2001] NSWSC 532; Challen v Pitt and Anor [2004] QSC 365; In the Matter of Shaun Arthur Pickles [2013] SASC 175; Worth v Clasohm (1952) 86 CLR 439; Kantor v Vosalho [2004] VSCA 235; Norris v Tuppen [1999] VSC 228; Re Crooks (Estate); Akerman v Brown (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994), considered.

WADE v FROST
[2014] SASC 162
Testamentary Causes Jurisdiction
GRAY J.

This is an application to admit a will to probate in solemn form.[1]
[1] See Tsagouris & Anor v Bellairs & Ors [2010] SASC 147, [35]-[36] for a discussion of the difference between grants of probate in common and solemn form.
Background
Jean Munro Sharman, the deceased, died in Adelaide on 16 January 2010. Her estate is substantial and has an estimated value of $2,000,000.00. The deceased’s husband and two sons predeceased her but she has three grandchildren: John Andrew Sharman, Sam Matthew Sharman and Jane Marie Sharman, respectively, the second, third and fourth defendants.
The plaintiffs, Derek John Wade and Raelene May Wade, were appointed executors of the deceased’s estate under a will made on 11 November 2005. Mrs Wade is described in the will as being the deceased’s niece by marriage and Mr Wade is described as being the deceased’s friend.
The 2005 will provides for gifts of BHP shares to: John and Andrew Sharman; the deceased’s cousin, Rosemary Nelson; the plaintiffs; and the deceased’s friends, Katherine Kardos, Kate Sandford, Sabastian and Philippe Thorez, Jane Safralidis and Michael Coventry. In the event that any beneficiary predeceases, the shares gifted to them are to form part of the residuary estate.
The 2005 will provides for the residuary estate to be donated to the Hanson Institute, Royal District Nursing Service, Australian Red Cross, Ronald McDonald House, Saint Vincent de Paul Society SA Inc, Salvation Army and Big Issue in Australia Limited. The executors are given considerable discretion as to the allocation of funds between those charities. Provision is also made for part of the residuary estate to be invested for future bequests to John and Sam Sharman, at the executors’ discretion.
The first defendant, Raymond Gordon Frost, is a partner of the law firm Treloar & Treloar. Mr Frost was appointed executor under the deceased’s will made on 4 June 1990. A copy of that will was not before the Court.
On 9 February 2010, Mr Frost lodged a caveat at the Probate Registry. The caveat sought to prevent the sealing of a grant of probate over the deceased’s estate without notice to Mr Frost. On 13 July 2011, the plaintiffs warned the caveat. On 16 August 2011, Mr Frost entered a notice of appearance in response to the warning.
On 28 September 2011, the plaintiffs commenced proceedings against Mr Frost in this Court by the filing of a summons. The statement of claim sought an order that the court pronounce the force and validity of the 2005 will and that the 2005 will be admitted to probate in solemn form.
On 7 March 2012, a Master of this Court ordered, inter alia, that the plaintiffs join Sam and John Sharman as defendants to the action and give notice to all persons whose interests may be adversely affected by the action, pursuant to rule 205(8) of the Supreme Court (Civil) Rules 2006. The plaintiffs have been able to contact all but one of the beneficiaries. Judith Quick, a solicitor, was subsequently appointed to represent the interests of these beneficiaries.[2]
[2] Except the Charitable Gifts Board, which is the proper recipient of any gift to the Hanson Institute, which indicated that it would abide the decision of the Court.
On 11 June 2012, a Master ordered that the plaintiffs join Jane Sharman as the fourth defendant in the action. It is to be understood that Jane Sharman was not a beneficiary under the 2005 will and had expressed an intention to bring a family provision claim in the event that the 2005 will was admitted to probate.
On 7 August 2012, Sam and John Sharman filed defences to the third statement of claim. The defences were identical in substance and pleaded, inter alia, that the deceased did not have capacity to make a will on 11 November 2005. The defences further pleaded that the 1990 will was the true last will and testament of the deceased.
On 4 September 2012, Jane Sharman filed a defence pleading that she would abide the outcome of the matter. On 5 September 2012, a Master ordered that Mr Frost would abide the event of the action and be excused from further attendance.
On 26 September 2012, a Master made an order for non-party disclosure to the Ashford Hospital, Repatriation General Hospital, Murray Mudge Nursing Home, Adelaide Aged Care Assessment Team, Public Trustee and the Guardianship Board.
On 17 September 2014, I approved a compromise in this action following mediation.
Preparation of the 2005 Will
On 17 September 2014, David Glyn Morgan, a solicitor, swore an affidavit concerning the preparation of the 2005 will. Mr Morgan is a practitioner with over 35 years’ experience and has drafted many wills.
In his affidavit, Mr Morgan states that he received instructions to prepare the 2005 will by facsimile from Mr Wade. Mr Morgan had not previously met or acted for the deceased. Mr Morgan met her for the first time on 11 November 2014, when they met to settle the will he drafted following receipt of instructions from Mr Wade. On that occasion, the deceased, who was in her mid-eighties, was accompanied by the plaintiffs.
Mr Morgan interviewed the deceased alone and did not allow her to see the draft will until he had independently confirmed her instructions. During his hour-long interview with the deceased, she told him that the solicitor who had prepared her previous wills had passed away. She was able to tell him her age and date of birth and describe the nature and extent of her assets. Mr Morgan was able to independently verify this information.
The deceased explained to Mr Morgan that she did not wish to make any provision for Jane Sharman as she had been provided for upon the death of her father and had not visited her for several years.
Mr Morgan formed the view that the deceased had the capacity to make a will “having regard to the apparent ease with which [she] recalled and was able to provide information regarding both her assets and the people whom she should give consideration to in relation to her will”. Accordingly, Mr Morgan did not take any further steps to confirm the deceased’s capacity, such as referring her to her general practitioner for an assessment, as is his practice if he suspects that a client may not have capacity. Mr Morgan also decided that it was unnecessary to undertake further detailed questioning to establish the deceased’s capacity:
... I did not ask [the deceased] any questions to establish her orientation as to time, date and place as having regard to her sharp and alert nature as I considered such enquiries to be both unnecessary and insulting. Had I had concerns regarding the Deceased’s capacity, I would have asked more questions to establish her orientation and capacity generally.
The Deceased provided cogent reasons for her desire to give the Plaintiffs significant discretion regarding the provision to be given to [Sam and John Sharman]. The primary reason provided by the Deceased related to her understanding of [Sam Sharman’s] struggles with drug abuse and his previous incarceration.
Mr Morgan made alterations to the draft will as the deceased’s instructions differed in some respects from the instructions received from Mr Wade. Mr Morgan suggested some further changes, but these were rejected by the deceased. In Mr Morgan’s view, this was indicative of the defendant having testamentary capacity:
... The deceased’s ability to continue to assert her wishes in the face of my advice to the contrary gave me further comfort as to her capacity and as to her ability to withstand any influence which might be brought to bear by any potential beneficiaries.
Mr Morgan explained the draft will, which had been edited to incorporate the amendments agreed at the meeting, to the deceased paragraph by paragraph. In Mr Morgan’s view, the deceased appeared “thoroughly to understand my explanation of the Will”.
The Application
As noted earlier in these reasons, the parties have reached a compromise in this action. That notwithstanding, I must be satisfied that the deceased had testamentary capacity at the time of making the 2005 will and of the formal validity of the 2005 will itself before making a grant in solemn form.[3]
[3] Wheatley v Edgar [2003] WASC 118, [24].
I am satisfied of the formal validity of the 2005 will on the basis of Mr Morgan’s affidavit and my own inspection of the document.
Testamentary Capacity – General Principles
The only issue between the parties was testamentary capacity. Before turning to further consider the evidence of the deceased’s capacity, it is convenient to set out the general principles applicable to cases such as the present.
In Banks v Goodfellow, Cockburn CJ described testamentary capacity in the following terms:[4]
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 being about a disposal of it which, if the mind had been sound, would not have been made.
...
In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, ‘the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.’
[4] Banks v Goodfellow (1870) LR 5 QB 549, 565-6.
In Read v Carmody, the New South Wales Court of Appeal provided the following restatement of the principles in Banks v Goodfellow:[5]
[The matters that the court is required to consider when determining whether the deceased had testamentary capacity] have, over the years, been expressed in varying forms and in differing language, but all formulations seem agreed that `testamentary capacity' encompasses the following concepts:
1 that the testator — or testatrix — is aware, and appreciates the significance, of the act in the law which he — or she — is about to embark upon;
2 that the testator — or testatrix — is aware, at least in general terms, of the nature, and extent, and value, of the estate over which he — or she — has a disposing power;
3 that the testator — or testatrix — is aware of those or (sic) may reasonably be thought to have a claim upon his — or her — testamentary bounty, and the basis for, and nature of, the claims of such persons;
4 that the testator — or testatrix — has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons.
The necessary corollary of this is that, if, at the relevant time the testator — or testatrix — is found to suffer from a condition — whether 'mental illness' (or psychosis) in the strict sense or any other form of `mental disorder' (including, but not limited to, deterioration in higher intellectual function or dementia) — which detrimentally affects his — or her — consciousness or sense of orientation, or has brought about disturbances to his — or her — intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator — or testatrix — will, more probably than not, be held to lack testamentary capacity.
[5] Banks v Goodfellow (1870) LR 5 QB 549; Read v Carmody (Unreported, New South Wales Court of Appeal, Meagher, Powell and Stein JJA, 23 July 1998), 4. Cited with approval in Conroy v Unsworth-Smith [2004] QSC 81; Grynberg v Muller [2001] NSWSC 532; Challen v Pitt and Anor [2004] QSC 365.
I recently considered the authorities on the meaning of testamentary capacity in In the Matter of Shaun Arthur Pickles and summarised them as follows:[6]
In Banks v Goodfellow, a test for capacity was advanced by Cockburn CJ. His Honour held that to have sufficient capacity a testator must understand the nature of the will and its effects, comprehend the extent of the property which is being disposed of, and understand and appreciate the claims to which he or she ought to give effect. In In the Will of Wilson, Hood J observed that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular, and ordinary manner.” These observations were cited with approval by Dixon J in Timbury v Coffee.
[6] In the Matter of Shaun Arthur Pickles [2013] SASC 175, [17].
A testator’s capacity to make a valid will is presumed in the absence of evidence to the contrary.[7] In Worth v Clasohm, Dixon CJ, Webb and Kitto JJ set out the process to be followed by the court when doubts arise as to testamentary capacity:[8]
After anxious consideration of the whole case we of opinion that there is no sufficient reason for denying that a testatrix who appeared to so many competent observers to be completely sane, and made a completely rational will, lacked a sound disposing mind. 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 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. It appears to us that there is ample ground for that belief in this case. Accordingly we must allow the appeal and substitute for the judgment below an order establishing the will.
[7] Timbury v Coffee (1941) 66 CLR 277, 283.
[8] Worth v Clasohm (1952) 86 CLR 439, 452-3.
In In the Estate of Miegoch (deceased), Santow J considered the circumstances in which the presumption of capacity may be rebutted and said:[9]
Unsoundness of mind may be occasioned by physical infirmity or advancing years. However, while extreme age or illness will call for vigilant scrutiny by the Court, neither is of itself conclusive evidence of lack of testamentary capacity. Extreme age or grave illness, or alcoholism (Timbury v Coffee (1941) 66 CLR 277), provides evidence of lack of testamentary capacity but will only displace a prima facie case of testamentary capacity if there is evidence the Deceased's mental facilities had been so affected thereby as to make him or her unequal to the task of disposing of his or her property. That is, the decay of intelligence must have been to such an extent that the proposed testator did not appreciate the testamentary act in all its different bearings: Re Hodges at 707; Battan Singh v Amirchand [1948] AC 161; Bailey v Bailey (1924) 34 CLR 558; Banks v Goodfellow (supra); Public Trustee v Farrell, Estate of Fowler (Powell J, Supreme Court of NSW, 22 March 1989, unreported).
[9] In the Estate of Miegoch (deceased) (Unreported, Supreme Court of New South Wales, Santow J, 22 March 1996), 28.
The onus of proof was considered by the Victorian Court of Appeal in Kantor v Vosalho.[10] Buchanan and Phillips JJA conducted a review of the authorities and said:[11]
As a general principle, then, it will be sufficient to say, once a doubt has been raised about the testator’s testamentary capacity, that the Court must be satisfied affirmatively that the testator was of sound mind, memory and understanding, when executing the will; for that was how the High Court described the onus in Bull v Fulton and Boreham. The expression “satisfied affirmatively” says all that need be said and any further description of the onus can only distract and may mislead: compare Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.
[Footnotes omitted].
[10] Kantor v Vosalho [2004] VSCA 235.
[11] Kantor v Vosalho [2004] VSCA 235, [56].

In Kerr v Badran, Windeyer J considered the application of Banks v Goodfellow[12] and the relevance of medical evidence and said:[13]
In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995... [“Older people”] ... may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing “the extent” of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life. The decision of Gleeson CJ in Estate of Griffith dec’d; Easter v Griffiths (unreported NSWCA 7 June 1995) must be kept in mind where he said:
The formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to disclose one’s assets by will is an important right, and a determination that the persons lacked (or, has not been shown to have been 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, of course, was a case of alleged delusion, but the general requirement for care is involved in all contested probate actions. Although he was in dissent, Kirby P in para 8 of his judgment, emphasised the need for caution and stated that medical evidence must be carefully looked at to ensure that it was considered in light of the relevant test and not what the medical expert using medical terminology considered to be the legal position.
[12] Banks v Goodfellow (1870) LR 5 QB 549.
[13] Kerr v Badran [2004] NSWSC 735, [49].
In Norris v Tuppen, Ashley J addressed the significance of expert medical evidence and a diagnosis of dementia as follows:[14]
Expert (medical) evidence may be important in determining competency. But it does not decide the issue, any more than does the mere fact of the age of the testatrix when the will was made, or the opinions of the attesting witnesses that the testatrix was competent.
The presence of dementia does not necessarily tell against a testatrix having competency. Dementia may manifest itself in imperfect recollection, yet leave intact the awareness and ability to which I have referred.
[14] Norris v Tuppen [1999] VSC 228, [335]-[336].
This issue was also considered by Muir J in Scattini v Matters:[15]
The ultimate question for the court is not the appropriate medical classification or description of any illness or incapacity suffered by a testator but whether the testator suffered from a “delusion” or other incapacity which affected the making of the will. The enquiry identified by Williams J in Timbury v Coffee is whether “the delusion overmastered the judgment at the time of executing the will to such an extent as to render him incapable of making a reasonable and proper disposition of his property or of taking a rational view of the matters to be considered in making a will”.
[Footnotes omitted.]
[15] Scattini and Anor v Matters [2004] QSC 459, [91].
On the topic of the weight to be given to particular evidence, it is relevant to note that, in Re Crooks, Young J observed that solicitors who are experienced in interviewing clients in relation to the preparation of wills may provide valuable evidence in respect of competency.[16]
[16] Re Crooks (Estate); Akerman v Brown (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994), 29.
In Tsagouris, I addressed the circumstance in which, as in the present case, the deceased’s capacity at the time of the making of her will was raised but not pursued:[17]
In proceedings such as the present, the court cannot ignore issues regarding testamentary capacity once raised inter partes.[18] Despite withdrawal, the allegations still warrant a vigilant examination by the Court of the whole of the evidence which the parties place before it.[19] In this respect, the following observations of the High Court in Worth v Clasohm[20] are apposite:
…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. …
[17] Tsagouris & Anor v Bellairs & Ors [2010] SASC 147, [12].
[18] See Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75; Wheatley v Edgar [2003] WASC 118.
[19] Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75, [39].
[20] Worth v Clasohm (1952) 86 CLR 439, 453.
Wheatley v Edgar concerned an application for a grant in solemn form of a will.[21] Testamentary capacity was initially in issue between the parties but was not ultimately pursued as the parties reached a compromise. EM Heenan J considered the authorities concerning whether it was appropriate to make a grant in common or solemn form in those circumstances and concluded:[22]
In my view these authorities produce the result that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.
…
… when a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case.
[21] Wheatley v Edgar [2003] WASC 118.
[22] Wheatley v Edgar [2003] WASC 118, [24], [26].
The effect of these authorities is that, in cases such as the present, notwithstanding the presumption of testamentary capacity, once appraised of allegations or evidence of a lack of testamentary capacity, the court should carefully assess the evidence to affirmatively satisfy itself that the deceased was of sound mind when making his or her will. The deceased’s testamentary capacity is a question of fact on which the court must ultimately come to its own conclusion on the evidence, though it may be assisted by expert evidence. Before making a finding that the deceased had testamentary capacity, the court should be satisfied that the deceased was aware of the significance of making a will, the assets comprising his or her estate – in general terms – and the persons who might expect to inherit under the will and the basis for their expectations. Further, the court should be satisfied that, at the time of making the will, the deceased’s judgment in deciding how to dispose of his or her estate was not overborne, for example by a medical condition, age or the influence of another person.
Testamentary Capacity of the Deceased
Brendan Patrick Murray, solicitor for Sam Sharman, swore an affidavit on 17 September 2012. In his affidavit, Mr Murray states that the deceased spent time in various hospitals prior to and immediately after executing the 2005 will. She was admitted to the Murray Mudge Nursing Home in 2006 as a low level care resident and remained there for approximately twelve months. In December 2005, the deceased appointed the Public Trustee to manage her financial affairs under an enduring power of attorney. In August 2006, the Public Trustee was appointed by the Guardianship Board to administer the deceased’s financial affairs as a protected person
The Court received medical reports of the deceased’s general practitioner, Dr P D Garrett, dated 29 July 2011 and 22 June 2012. In his 2012 report, Dr Garrett discloses that he was asked on two previous occasions to consider the deceased’s testamentary capacity, 12 December 2005 and 20 February 2006. Dr Garrett cannot specifically recall those assessments; however, his records disclose that, on each occasion, he was of the view that the deceased had testamentary capacity.
The Court received reports of Associate Professor Craig Whitehead, a specialist geriatrician and Regional Clinical Director for Rehabilitation, Aged Care in the Southern Local health Network, dated 16 December 2011, 25 July 2012 and 10 July 2013. In 2011, Associate Professor Whitehead reported that he examined the deceased in May 2006 and formed the view that she lacked capacity as a result of suffering from dementia. He was not prepared to opine on whether the deceased had capacity in November 2005 on the basis of the information available to him.
In 2012, Associate Professor Whitehead reaffirmed that he was unable to opine on whether the deceased had capacity in November 2005 based on the information available to him. That notwithstanding, he considered that, “on balance”, the deceased lacked capacity in November 2005.
In his 2013 report, provided after reviewing further medical records of the deceased, Associate Professor Whitehead expressed the opinion that the deceased lacked capacity to make a will in November 2005. He noted that the deceased’s medical records record a series of instances in which the deceased apparently had cognitive difficulties from 2004 onwards. He considered this to be consistent with a diagnosis of dementia.
John Maddison, a consultant geriatrician and Division Director of Aged Care, Rehabilitation and Palliative Care in the Northern Adelaide Local Health Network, provided a report dated 21 November 2013. Dr Maddison has never been involved in treating the deceased and prepared his report on the basis of a review of her medical records, including Associate Professor Whitehead’s 2012 and 2013 reports. Dr Maddison disagreed with Associate Professor Whitehead’s interpretation of aspects of the deceased’s medical history, concluding:
On the basis of the evidence reviewed I cannot conclude Mrs. Sharman had significant cognitive impairment (dementia) prior to 2006. There were episodes of confusion interspersed with episodes of clarity characterised by her ability to give complex and relatively consistent instructions with regard to her affairs. This confusion also needs to be considered in light of the loss of her Son. There is some suggestion there may have been some mild short term memory issues since 2004 which would have been a predisposing risk factor for delirium and clinically is most consistent with Amnestic Mild Cognitive Impairment however this condition is not inconsistent with retaining testamentary capacity at the end of 2005.
[Original emphasis.]
Associate Professor Whitehead reviewed Dr Maddison’s report and provided a further report dated 23 June 2014. In this report, he defended his previous reports and expressed the view that, “on the balance of probability”, the deceased lacked capacity in November 2005.
It is also relevant to recall the evidence of Mr Morgan concerning the preparation of the 2005 will, as set out earlier in these reasons.
In my view, having regard to all the evidence and the authorities extracted above, I am satisfied and find that the deceased had testamentary capacity on 11 November 2005. The specialists’ reports, which were prepared based on a review of the deceased’s records and without the benefit of a personal examination at the relevant time, are divided on this point. However, the deceased’s general practitioner and solicitor each express the view that she had capacity at the relevant date. It is to be noted that both Dr Garrett and Mr Morgan had the benefit of personally assessing the deceased shortly after the making of her will and at the time she made her will, respectively. These opinions are supported by the factual content of Mr Morgan’s discussions with the deceased, as set out in his affidavit, and by the terms of the 2005 will itself, which do not raise any suspicion of a lack of capacity.
Conclusion
I am satisfied that the interests of all the beneficiaries, including the beneficiary who was unable to be contacted, have been addressed. I am also satisfied that the deceased had testamentary capacity at the time of making her 2005 will. Other than the issue of capacity, which was ultimately withdrawn, no other complaint as to the validity of the 2005 will was advanced before me and the evidence before me demonstrates that the 2005 will was otherwise valid.
I approve the terms of the compromise reached between the parties and pronounce the force and validity of the last will and testament of the deceased, Jean Munro Sharman, being the script dated 11 November 2005.