White v White
[2024] TASSC 69
•25 November 2024
[2024] TASSC 69
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | White v White [2024] TASSC 69 |
| PARTIES: | WHITE, Robert Edward |
| v | |
| WHITE, Ka Helen | |
| WYLIE, Kathryn Ann | |
| WHITE, Dimity Anne | |
| COLE, Brendon | |
| COLE, Craig Martyn | |
| FILE NO: | 3030/2023 |
| DELIVERED ON: | 25 November 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 1, 2 August 2024 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Succession – Making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence – Weight of evidence – Dementia – Fluctuating cognitive ability.
Aust Dig Succession [1007]
Succession – Making of a will – Testamentary instruments – Knowledge and approval of contents – Evidence – Circumstances arousing suspicion – Instructions to solicitor to include gifts to stepchildren not previously provided for – Suspicion not aroused.
Aust Dig Succession [1018]
Cases cited:
Banks v Goodfellow (1870) LR 5 QB 549
Basterfield v Gay (1994) 3 Tas R 293
Connors v Tasmanian Trustees Limited (1996) 6 Tas R 267
In the Will of Wilson (1897) 23 VLR 197
Re Burt [1988] 1 Qd R 23
Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007
Starr v Miller [2021] NSWSC 426
Timbury v Coffee (1941) 66 CLR 277
Tobin v Ezekiel [2012] NSWCA 285, 83 NSWLR 757
Veall v Veall [2015] VSCA 60, 46 VR 123
REPRESENTATION:
Counsel:
Plaintiff: K E Read SC First Defendant: M E O'Farrell SC
Solicitors:
Plaintiff: WMM Law First Defendant: Tremayne Fay Rheinberger
| Judgment Number: | [2024] TASSC 69 |
| Number of paragraphs: | 56 |
Serial No 69/2024 File No 3030/2024
ROBERT EDWARD WHITE v KA HELEN WHITE, KATHRYN ANN WYLIE,
DIMITY ANNE WHITE, BRENDON COLE and CRAIG MARTYN COLE
| REASONS FOR JUDGMENT | BLOW CJ 25 November 2024 |
1 This case concerns a dispute as to the validity of a will. The testator was Edward Valentine White. He was usually known as "Ted". He died on 14 April 2023 at the age of 95 years. He made his last will ("the 2021 will") on 14 December 2021.
2 The plaintiff in this action, Robert Edward White, is a son of the testator. He contends that the 2021 will is not valid on the basis that the testator lacked testamentary capacity, and on the basis that he did not know or approve of the contents of that will. He is seeking to propound the second last will of the testator ("the 2016 will"). The testator made that will on 16 June 2016. The plaintiff was appointed as the executor of both the 2016 will and the 2021 will.
3 Although there are five defendants to this action, the only defendant who has taken any part in these proceedings is the first defendant, Ka Helen White, the widow of the testator. I will refer to her as "the defendant". She contends that the 2021 will was validly made, and that probate of that will should be granted to the plaintiff. She was the second wife of the testator. There are no children of their marriage. She and the testator each had children from previous marriages. The testator had two sons and a daughter. One of his sons predeceased him. The defendant has two sons. They are and were the testator's stepsons.
4 The defendants other than the first defendant were each named as a beneficiary in the 2016 will and/or the 2021 will. The second defendant, Kathryn Ann Wylie, is the daughter of the testator. The third defendant, Dimity Anne White, is the wife of the plaintiff, and also happens to be the former wife of the fifth defendant. The fourth and fifth defendants, Brendon Cole and Craig Martyn Cole, are the sons of the first defendant, and the stepchildren of the testator.
5 In December 2021 the testator was suffering from dementia, Parkinsonism, osteoarthritis in one knee, and a cardiac condition. On 14 December 2021 he had an appointment with an experienced solicitor, Graeme Bradfield, at the office of a legal firm, Tierney Law. He attended that appointment with the plaintiff and the defendant. The appointment lasted about an hour and 45 minutes. During that appointment he executed an enduring power of attorney in favour of the plaintiff and the defendant, a transfer of his home – a house in Lindisfarne - from himself as sole owner to himself and the defendant as joint tenants, a related stamp duty declaration, and the 2021 will.
6 The contents of the 2021 will can be summarised as follows:
• The testator appointed the plaintiff to be his executor. •
He left to the defendant any motor vehicle that she regularly drove at the date of his death together with any furniture, whitegoods or chattels in or about his principal place of residence.
• He left one quarter of his residuary estate to the defendant. •
He left one quarter of his residuary estate to the defendant's children in equal shares. Her only children were the fourth and fifth defendants.
• He left one quarter of his residuary estate to the plaintiff. 2 No 69/2024
• He left the final quarter of his residuary estate to his daughter Kathryn Ann Wylie, the second defendant. 7 Prior wills made by the testator in 2007, 2012 and 2016 were in evidence. The testator did not make any provision for the defendant's children, his stepsons, in any of those wills. Counsel for the plaintiff made it very clear that he does not allege fraud or undue influence in this case. The making of provision for the two stepsons for the first time is of course relevant to the issues of testamentary capacity and knowledge and understanding of the contents of the 2021 will.
8 The contents of the 2016 will can be summarised as follows:
• The testator appointed the plaintiff to be his executor. • He gave the defendant a right to reside at their home in Lindisfarne, which he owned, during her lifetime, subject to her paying rates, taxes and other outgoings and keeping the home in a good habitable state of repair and keeping it fully insured. • Upon the death of the defendant, that property (or any replacement home or the proceeds of sale) was to go to such of the following three people as survived him, in equal shares, namely the third defendant (the plaintiff's wife and the testator's daughter-in-law), the second defendant (the testator's daughter), and a son of the testator named Martin James White who died in 2019. • The defendant was also given a right of residence in a property at 1 McCormack Drive, Port Arthur on similar conditions, with provision for it to be divided after her death into equal shares between such of the same three individuals as survived the testator. • There was a gift to the defendant of any motor vehicle that she regularly drove at the date of the testator's death together with furniture and so forth in respect of the testator's principal place of residence and the McCormack Drive property. • The residuary estate was to go in equal shares to such of four individuals as survived the testator, namely the defendant and the testator's three children. 9 There was evidence that, at the time when the testator made the 2016 will, it was considered prudent for him not to leave any assets to the plaintiff, but instead to leave assets to the plaintiff's wife, the third defendant. The plaintiff had controlled a company whose business had failed. The company had gone into liquidation. The liquidator had suggested that the plaintiff's wife be made a beneficiary in his place.
10 Between the signing of the 2016 will and the signing of the 2021 will, the testator signed two memoranda relating to his wishes. At one point during his oral evidence the plaintiff referred to them as codicils. However there is no suggestion that either document was a valid will or a valid codicil. The first of those documents was dated 14 November 2019. It read as follows:
"This is Edward White's wishes , to be read in conjunction with his last Will.
1 The following family loans may be paid to Edward White's estate, subject to consultation and at the discretion of the executor, and to be shared between Bob White & Kath Wylie;
• Sam White $150K • Chris White $25K • Alex White $64K 3 No 69/2024
• Brendon Cole $61,460 • Greg Wylie $20K • Bob Wylie $60K • Kath Wylie $9K 2 The following properties/assets are to be left to my wife Ka White;
• House at 14A Wellington Road, Lindisfarne • Shack at Carnarnvon [sic] Bay, Port Arthur • Car
3 The remaining assets including Bank balances and family loans are to be shared between Bob White and Kath Wylie."
| 11 | The second memorandum was dated 28 August 2020. It read as follows: "This is Edward White's wishes , to be read in conjunction with his last Will. | |
|
• Sam White $150K • Chris White $25K • Alex White $64K • Brendon Cole $61,460 • Greg Wylie $20K 2 The following properties/assets are to be left to my wife Ka White;
• House at 14A Wellington Road, Lindisfarne • Shack at Carnarvon Bay, Port Arthur • Car
3 The remaining assets including Bank balances and family loans are to be shared between Bob White and Kath Wylie."
12 Nothing was said in either of those memoranda about either of the defendant's sons receiving anything from the testator or his estate. One of them was mentioned, but only as a person who owed the testator money.
13 The property referred to in the two memoranda as a shack at Carnarvon Bay, Port Arthur, was the same property as that described in the 2016 will as 1 McCormack Drive, Port Arthur. It was sold by the testator after the making of the 2016 will and before the signing of the two memoranda. The transfer of the property was dated 5 August 2016. It was registered on 12 October 2016. The plaintiff gave evidence that he prepared the two memoranda that were signed by the testator.
14 There was a second property of significance at Port Arthur. Its address was Lot 4 Bellettes Road or 5 Bellettes Place. The plaintiff gave evidence that the testator bought that property as a
4 No 69/2024
vacant block and then put a shack on it. The defendant said the following in relation to this property in
her affidavit:
"The land only was purchased in November 2016 and in 2016 we purchased a mobile
home and had it erected on the land. This property was held in my name only."
She was not cross-examined.
Testamentary capacity
15 It is common ground that the basic requirements for testamentary capacity are as stated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, in which his Lordship said the following as to the power to make a valid will at 565:
"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 on disposing of his property, and bring about a disposal of it which, if the mind had been sound, would not have been made."
16 A similar statement of principle was made by Hood J in In the Will of Wilson (1897) 23 VLR
197 at 199:
"Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner."
17 That passage was cited with approval by Dixon J (as he then was) in Timbury v Coffee (1941)
66 CLR 277 at 283.
18 It is also common ground that a person propounding a particular will need not provide evidence that the testator weighed the claims to which he ought to have given effect, but that it is sufficient that the testator had the capacity to do so: Starr v Miller [2021] NSWSC 426 at [421]-[422].
The medical evidence
19 Two medical practitioners who had treated the testator towards the end of his life signed affidavits and were cross-examined in these proceedings. The first was a specialist geriatrician, Dr David Dunbabin. The second was a general practitioner, Dr Lachlan Fieldhouse.
20 Dr Dunbabin assessed the testator in October 2021 in order to assist with the medical management of his various disabilities. He was not asked to perform an assessment of his testamentary capacity during his lifetime. In August 2023 he provided the plaintiff's solicitors with a thorough report in relation to the testator's mental capacity. Early in that report he commented that "retrospective capacity assessments are intrinsically unreliable as it is necessary to ask the specific questions which are important in the legal test for capacity".
21 In their letter requesting the report, the plaintiff's solicitors acquainted Dr Dunbabin with the tests for testamentary capacity, quoting the passage that I have quoted above from Banks v Goodfellow. Dr Dunbabin wrote the following in relation to that issue:
5 No 69/2024
"I believe that given his relatively–intact long term memory he probably had a reasonable understanding of his assets and the nature and effect of the Will. I am not sure that he would necessarily be able to make decisions regarding the comprehension and appreciation of his legatees' claims on his estate and indeed such assessments may not be durable given his poor short term memory and concentration deficits. … I found no evidence of delusional or hallucinatory ideation on my assessment in October, however such disorders can develop quite rapidly and I can't be confident that he was free of such influence at the time he made his Will in December 2021. Because of the above considerations it is my opinion that he may not have had testamentary capacity on the 14th December 2021 to make a Will as specified which varies significantly from his previous Wills in terms of the disposition of his assets."
22 Dr Dunbabin went on to address other questions relating to the testator's capacity to complete an enduring power of attorney, his ability to make financial decisions, and his capacity to give instructions to a lawyer. He concluded with the following observation:
"I would emphasise in conclusion that these opinions are based on a retrospective assessment of an elderly man with documented dementia and a severe and unstable cardiac condition intrinsically affected by both his physical and mental status on a particular day at a particular time. It is therefore difficult to be definitive about his capacity at the time the documents were executed without the benefit of a contemporaneous assessment."
23 In his oral evidence Dr Dunbabin explained that the testator had a significant cardiac abnormality which could lead to severe fatigue, possibly resulting in his losing concentration or becoming drowsy. He opined that executing three different documents involved a possibility of the testator becoming confused about the nature of the individual documents if he was tired or having to concentrate for a long period. However Dr Dunbabin had advised in October 2021 that the testator should sign an enduring power of attorney. He agreed that he was satisfied that the testator had the capacity to do that when he saw him in 2021. Under cross-examination he said that he was aware of the two "statements of wishes" signed by the testator, and aware that they contained proposals that his widow should receive their house in Lindisfarne upon his death. He accepted that the execution of a transfer that had the effect of making the couple joint tenants so that the house would pass to his widow upon his death, was "not a very big move for him to make". He agreed with that in principle, "subject to any taxation implications". There were no tax or stamp duty implications.
24 When asked about the possibility that the testator was not confused on the day that he signed the 2021 will at Mr Bradfield's office he said that he really could not comment on the testator's "cognitive function or thought processes at that time". He continued as follows:
"All I can say is that he has a background of cognitive impairment, short-term memory difficulties, that I'd like to re-emphasise that his cognitive function could vary at different times, different days, and according to his other physical co- morbidities."
25 The evidence of Dr Fieldhouse added very little to the evidence of Dr Dunababin. Dr Fieldhouse worked in a practice that the testator had been attending for several years. He first saw him on 14 January 2022, a month after the making of the 2021 will. Under cross-examination it was put to him that the testator had attended the surgery on that occasion so that a doctor could tell him about the results of some recent blood tests. Dr Fieldhouse accepted that that was what his records suggested.
26 The notes made by Dr Fieldhouse on 14 January 2022 included the following:
"Assessment:
nil capacity. Confused with coplex [sic] discussions. Superficial communication only
possible.6 No 69/2024
Nil disturbed behaviours
Plan:
meds updated
rapport established
goal to focus on quality of life reinforced".
27 The evidence of Dr Fieldhouse related to his observations of the testator's cognitive capacity on a particular day. In the light of Dr Dunbabin's evidence about the likely fluctuation in his cognitive ability from day to day and during a day, the evidence of Dr Fieldhouse really goes no further than supporting the proposition that the evidence as to the testator's condition at the time he signed the 2021 will need to be assessed with vigilance.
28 Records relating to an admission of the testator to the Royal Hobart Hospital on 28 October 2022 were tendered. On that day he became agitated and acutely confused, did not recognise his wife, thought she was his mother, and apparently became aggressive towards her. An ambulance was called and he was admitted to hospital for several days. This incident occurred more than ten months after the making of the 2021 will and appears to have been an isolated episode of acute confusion.
The evidence as to 14 December 2021
29 Three witnesses saw the testator on the day he signed the 2021 will, 14 December 2021 – the plaintiff, the defendant, and Mr Bradfield.
30 At that time Mr Bradfield had been in practice as a legal practitioner for 38 years. For nearly all of that time he had been making wills for clients. He gave evidence to the effect that he was well aware of the need to proceed with care if there was any possibility that a testator lacked testamentary capacity. There had been times when he had declined to accept instructions, or declined to proceed without first obtaining medical assessments, depending upon the circumstances relating to a testator's mental state. He has known the testator and the plaintiff for many years. His family had been customers of their business.
31 Mr Bradfield gave evidence that the plaintiff had phoned him on 8 December 2021, told him that Dr Dunbabin had suggested that the testator sign a power of attorney, and requested an appointment for him to sign a power of attorney and make a new will. He said that the plaintiff gave him instructions as to his father's wishes for the provisions in the will. The plaintiff agreed that he had arranged the appointment, but denied that he had spoken to Mr Bradfield, and denied giving instructions as to the contents of the will.
32 The plaintiff and the defendant brought the testator to see Mr Bradfield on 14 December 2021. Mr Bradfield had prepared a draft will in accordance with a note he had made. The draft will contained provisions as to the following gifts:
• The defendant was to receive the Lindisfarne property and one quarter of the residue of the estate. • The other three quarters of the residue was to be divided between the testator's two surviving children, Bob and Kathy (the plaintiff and the second defendant). 33 Mr Bradfield produced an undated note in his handwriting recording details of instructions that he said he received from the plaintiff. The note recorded that there had been a meeting with Dr Dunbabin; that he was to prepare a power of attorney in favour of the defendant, and details of the
7 No 69/2024
defendant's assets. The note recorded details of the proposed will providing for the house and one
quarter of the residue to go to the defendant and the rest of the estate to "Bob & Kathy".34 I do not doubt the honesty of the plaintiff or Mr Bradfield. It is clear that Mr Bradfield prepared a draft will before the testator came to see him, and that he did so on the basis of instructions that did not come from the testator, at least directly. I am satisfied that those instructions were given to Mr Bradfield by the plaintiff. I think the plaintiff must have forgotten that he gave those instructions to Mr Bradfield in 2021.
35 Mr Bradfield gave evidence that the testator was with him from about 11.15 am to about 1.00 pm, and that the testator during that time signed the power of attorney, the transfer of the house, the statutory declaration relating to the transfer that was required for stamp duty purposes, and the 2021 will.
36 Mr Bradfield signed three affidavits for the purpose of these proceedings. In his first affidavit, sworn in April 2024, he gave an account of the events of 14 December 2021 from memory. On 28 May 2024 he found some notes that he thought he had made when the testator gave him instructions for the 2021 will. However his evidence at the trial was that he did not know whether those notes were made at that time or during a meeting with the plaintiff and his wife on 27 April 2023, shortly after the death of the testator. As there is no evidence to support a finding that the notes were made in 2021 I will disregard them.
37 According to Mr Bradfield's first affidavit and his oral evidence, the sequence of events on 14 December 2021 was as follows:
•
The plaintiff and the defendant brought the testator to the office. Mr Bradfield explained to all of them that he would need to make an assessment of the testator's capacity in the absence of the plaintiff. At that stage the plaintiff commented that the testator "was in good spirits, knew what he wanted to do and was in a fit state to outline his instructions". That comment put Mr Bradfield in a "heightened state of awareness".
• Next, Mr Bradfield talked with the testator and the defendant in the absence of the plaintiff. •
After that, he spoke to the testator on his own. They had a lengthy discussion about subjects including Mr Bradfield's mother, the failure of the plaintiff's business, the effect of that failure on the plaintiff and his wife, and the fact that they were enjoying retirement and travelling more. He concluded that he did not have to further question the testator's capacity.
•
The plaintiff and the defendant returned to Mr Bradfield's room. The power of attorney was signed by the testator. The plaintiff and the defendant signed the document to accept their appointments as attorneys.
•
The plaintiff and the defendant then returned to the waiting room while Mr Bradfield discussed the testator's will with him in private. The testator gave details of his assets. The testator said that he wanted the defendant to receive the Lindisfarne property in any event. Mr Bradfield discussed different ways of arranging that, including a transfer prior to death. Mr Bradfield explained that no stamp duty would be paid if the property was transferred into the couple's names as joint tenants, and that the property would then pass to the defendant by survivorship if the testator died first.
•
Mr Bradfield then instructed his personal assistant to prepare the documents for the transfer. She prepared the transfer and the statutory declaration required for stamp duty purposes, and the testator signed them.
8 No 69/2024
• Mr Bradfield then discussed the contents of the will with the testator in the absence of the plaintiff and the defendant. His initial instructions were that the defendant was to get a one-quarter share of the estate, with the rest going to the testator's son Bob and his daughter Kathy. • The testator then asked, "if Ka's children, being Brendon Cole and Craig Cole, could make a claim against his estate". Mr Bradfield advised that "a relatively recent legislative amendment allowed stepchildren to claim against an estate … so they were eligible to bring such a claim". The testator emphasised that his overriding wishes were for there to be no arguments, and for the defendant to be provided for. Mr Bradfield discussed ways of mitigating or eliminating the risk of a challenge under the Testator's Family Maintenance Act 1912 ("TFM Act"), including joint ownership and transfers prior to death. There followed a discussion which concluded with the testator giving instructions that the estate was to be divided so that 25% went to the defendant, 25% was divided between her children, 25% went to the plaintiff, and 25% went to the second defendant. • Mr Bradfield amended the draft will with a pen and gave the document to his assistant. She prepared a new edition of the will. That document was then executed by the testator and witnessed by Mr Bradfield and his receptionist. 38 In his first affidavit Mr Bradfield said the following in relation to the discussion concerning provision for the testator's stepchildren in the will:
"33 I discussed that an alternative was to provide something in his will for Ka's children. Ted agreed that this was appropriate given the relationship he had with them. We then discussed in some depth what would be appropriate. I recall that Ted said that it had to be less than Bob and Kathy as he assumed that the stepchildren were likely to be looked after by Ka. Ted also stated that Bob and Kathy were to be equal even though he appreciated that Bob was better off than Kathy. Ted stated that he believed Bob would help his sister out if there was any real issue and was adamant that he wanted to treat Bob and Kathy equally. 34 After this discussion it was concluded by Ted that the best method would be to divide the estate as follows:
a 25% to Ka; b 25% to be divided between Ka's children; c 25% to Bob; and d 25% to Kath."
39 Mr Bradfield was very thoroughly cross-examined. His evidence as to the lucidity of the testator on the day in question was unshaken. However the cross-examination exposed some facts for which Mr Bradfield could properly be criticised:
•
The line above the testator's signature on the power of attorney read, "Signed as a Deed by this Tuesday, 14 December 2021". The testator's name should have appeared between the words "by" and "this", but Mr Bradfield apparently did not notice that omission.
•
Mr Bradfield's advice that stepchildren had recently been given the right to make claims under the TFM Act was incorrect. Stepchildren were given that right by a legislative amendment in 1957: Testator's Family Maintenance Act 1957, s 2. Mr Bradfield must have been thinking of an amendment in 2015 which widened the definition of "stepchild": Justice and Related Legislation (Miscellaneous Amendments) Act 2015, s 55. Before that amendment, a stepchild ceased to be a stepchild for the purposes of the TFM Act, and lost the right to claim under that Act, if his or her
9 No 69/2024
natural parent died before the stepparent: Re Burt [1988] 1 Qd R 23; Basterfield v Gay (1994) 3 Tas R 293; Connors v Tasmanian Trustees Limited (1996) 6 Tas R 267. The result of the amendment is that, when a natural parent dies before a stepparent, the stepchild continues to be a stepchild for the purposes of the TFM Act, and is able to make a claim following the death of the stepparent. That was irrelevant to the testator's situation because it was expected that he would die before his wife. However all of this is irrelevant to the issue of the testator's capacity on the day in question.
• When Mr Bradfield got his assistant to revise the draft will, the finished product had inappropriately numbered clauses. After clauses 1 and 2, there was no clause 3. There was a clause 4, which was divided into sub-clauses numbered 4.1, 4.2, 4.3, and 3.6. Mr Bradfield did not get the clause numbering corrected before the execution of the will. • Mr Bradfield either did not make or could not find any notes as to his observations concerning the testator's lucidity or comprehension, nor as to whether he knew and approved of the contents of the will, nor as to the will being read by or to the testator. Those matters were not covered in the notes that he found in May 2024, which may or may not have been made on the day when the will was signed. It may be that he made no notes at all on that day, or that he made notes and lost them. • Mr Bradfield was actively involved in the drafting of his first affidavit, but did not mention in that affidavit that the will had been read by the testator. However he did say that in his second affidavit. 40 The defendant swore an affidavit for the purpose of these proceedings. She was not cross- examined. In her affidavit she said that on 14 December 2021 Mr Bradfield spoke with the testator about previous dealings and connections that they had. She recalled them speaking about work that the testator had done for Mr Bradfield's mother. She did not say anything about how the testator was on the day in question, but said a lot about his cognitive powers at about that time. In summary, she said that whilst he was becoming forgetful about everyday things, he retained the ability to solve puzzles, play card games, follow news and politics, and read both fiction and non-fiction.
41 The plaintiff did not become aware of the contents of the 2021 will until after the death of the testator. The gift to the testator's two stepsons took him by surprise. In my view it is significant that he did not express any concerns about the testator's testamentary capacity at the time of the signing of the 2021 will until he learned of that gift. It was because the 2021 will contained that gift that he formed the view that, at the time of the execution of the will, the testator might have lacked testamentary capacity and not known or approved of the contents of his will.
42 The plaintiff, his wife (the third defendant) and his sister (the second defendant) all swore affidavits containing material relating to the testator's cognitive impairment. None of them shed light on the extent of his cognitive ability at the time when he executed the 2021 will.
The testator and his stepsons
43 For the testator to have had testamentary capacity, he needed to understand (a) that he was making a will; (b) what assets he had and was disposing of; and (c) the claims that he ought to give effect to. In my view the most difficult of these for a testator to comprehend would ordinarily be the claims that he or she ought to give effect to. In this case, it is necessary to scrutinise the relationships between the testator and his two stepsons.
44 The testator and the defendant commenced cohabitation in 1973. They were married on 20 November 1992. They had been together for 48 years when the testator made the 2021 will.
10 No 69/2024
45 When the couple commenced cohabitation the defendant's two sons were aged about 10 and about 6. The defendant's children were part of the couple's household. The testator's three children were not. His children had good relationships with him, but he spent more time with his stepchildren during their formative years. Similarly, the stepchildren had good relationships with their natural father, but spent more of their formative years with their mother and the testator.
46 It seems clear that in the stepchildren's adult years they and the testator treated each other as family members, just as the testator and his own children treated each other as family members.
47 The testator's principal assets were the Lindisfarne property and monies in bank accounts. According to the instructions received by Mr Bradfield before the appointment in 2021, he had about $3.4 million in four bank accounts with the National Australia Bank.
48 Having regard to the 48-year relationship between the testator and his stepchildren, a testamentary gift of 12.5% of his money to each of them in my view does not, without more, suggest impaired cognitive capacity.
Conclusion
49 In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, Kunc J suggested some basic rules of thumb for the guidance of solicitors preparing wills for elderly testators when there is a chance that questions may later arise as to testamentary capacity or undue influence. At [107], his Honour listed the following rules:
"(1)
The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary.
(2) A solicitor should always consider capacity and the possibility of undue
influence, if only to dismiss it in most cases.(3)
In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note.
(4) In case of anyone: (a) over 70; (b) being cared for by someone; (c) who resides in a nursing home or similar facility; or (d) about whom for any other reason the solicitor might have concern about
capacity,the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries.
(5)
Where there is any doubt about a client's capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided."
11 No 69/2024
50 It is clear from Mr Bradfield's evidence that he satisfied himself that the testator understood that he was making a will, understood what his principal assets were, understood who his wife, surviving children and stepchildren were, and was capable of understanding how his money was to be divided between them under the terms of the will.
51 Although he had not left his wife an absolute interest in the Lindisfarne property in the 2016 will or any previous will, he had decided to do so when he signed the memoranda of November 2019 and August 2020. It was therefore not a big step for him to arrange for the house to pass to her as a surviving joint tenant, rather than pursuant to a will.
52 The testator treated his two surviving children equally, as he proposed doing in the two memoranda. The only provision that came as a surprise to anyone was the gift to his two stepchildren. However, having regard to the size of his estate, the small fraction that they each received, and his 48- year relationship with them, it was a provision that a reasonable testator could well have made. His stated reason for making a testamentary gift to them for the first time, namely to avoid any arguments, was coherently stated and cannot be dismissed as irrational.
53 I accept that because of the testator's cognitive impairment, his fluctuating cognitive capacity, and his unprecedented decision to make provision for his stepchildren in his will, it is appropriate to give very careful attention to the issue of testamentary capacity. Those circumstances raised a suspicion that the testator was not mentally competent, resulting in an evidential onus on the defendant to satisfy the Court that the testator had testamentary capacity when he executed the 2021 will: Tobin v Ezekiel [2012] NSWCA 285, 83 NSWLR 757 at [45]; Veall v Veall [2015] VSCA 60, 46 VR 123 at [168]. Principally on the basis of the evidence of Mr Bradfield, I am satisfied on the balance of probabilities that the testator had testamentary capacity at the time when he executed the 2021 will.
54 That will was duly executed. There is therefore a presumption that the testator had testamentary capacity. That presumption is displaced if there are circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them: Veall v Veall at [169]. In the light of the evidence of Mr Bradfield and the evidence as to the long relationships between the testator and his stepchildren, I am not satisfied that there is any reason for suspicion. The testator, in a private conversation with his solicitor, gave instructions to give small parts of a large estate to two stepchildren for whom he had not made provision in previous wills. I see nothing suspicious about those facts. On the basis of the evidence of Mr Bradfield, I am affirmatively satisfied on the balance of probabilities that the testator knew and approved of the contents of the 2021 will.
55 For these reasons, the plaintiff's action fails, and the defendant is successful. There was no formal counterclaim, but the plaintiff has not taken any technical point as to that. The appropriate course is for there to be a grant of probate of the 2021 will to the plaintiff in solemn form.
56 The Court pronounces for the force and validity of the last will and testament of the late Edward Valentine White dated 14 December 2021. It is ordered that, subject to the usual formalities, probate of that will be granted to the plaintiff.
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