Wade v Frost

Case [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  The parties subsequently reached a compromise in the action and the allegation was withdrawn.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satisfied that the deceased had testamentary capacity at the relevant time notwithstanding that the allegation had been withdrawn.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…

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AGLC
Wade v Frost [2014] SASC 162
Case
[2014] SASC 162
Decision Date

CaseChat Overview and Summary

This case involved an application to admit a will to probate in solemn form. The deceased, Jean Munro Sharman, died on 16 January 2010, leaving a substantial estate. The deceased's 2005 will appointed Derek John Wade and Raelene May Wade as executors, and the will was contested by Raymond Gordon Frost, the executor appointed under a 1990 will. The main legal issue before the court was whether the deceased had testamentary capacity when she executed the 2005 will. The court had to assess the evidence, including the opinions of medical professionals and the deceased’s solicitor, and determine if the deceased understood the nature and effect of making a will.

The court carefully reviewed the evidence provided by the deceased's general practitioner and solicitor, who both confirmed that she had testamentary capacity at the time the 2005 will was executed. Although the opinions of medical specialists were divided, the court found that the deceased’s general practitioner and solicitor, who had direct interactions with her, provided reliable evidence that she had the requisite capacity. Additionally, the content of the 2005 will did not suggest any incapacity. The court was satisfied that the deceased understood the implications of her actions and the contents of her will, and thus had the necessary testamentary capacity.

Consequently, the court admitted the 2005 will to probate in solemn form. The court found that all beneficiaries’ interests were adequately addressed and that the will was otherwise valid. The court approved the compromise reached between the parties, pronouncing the force and validity of the deceased’s 2005 will. The court’s decision confirmed that the will was legally binding and enforceable, allowing the executors to proceed with administering the estate according to the deceased’s wishes.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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.