Grbavac v Vujcich
[2020] NZHC 1953
•6 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2016-404-1848
[2020] NZHC 1953
UNDER Part 27 and Rule 27.34 of the High Court Rules IN THE MATTER
of the ESTATE OF JOSEPH GRBAVAC
BETWEEN
NIKOLA GRBAVAC
First Plaintiff
NIKOLAS VLADIMIR JOSEPH GRBAVAC
Second Plaintiff
AND
PETER TONI VUJCICH, MATE TOLJ and MIRKO DANIEL UJDUR
Defendants
Hearing: Other matters: 8-12, 15-19, 22 July, 30 August 2019
2, 12 13, 16 September 2019
Appearances:
E St John, N Devery and J Carruthers for Plaintiffs P Stevenson and S Carter for Defendants
Judgment:
6 August 2020
JUDGMENT OF DUFFY J
This judgment is delivered by me on 6 August 2020 at 10am pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
E St John, Barrister, Auckland N Devery, Barrister, Auckland WCM Legal Limited, Greytown
Penelope Stevenson, Barrister, Auckland
GRBAVAC v VUJCICH [2020] NZHC 1953 [6 August 2020]
Table of Contents
Introduction [1]
Background [5]
The recent testamentary dispositions [11]
Relevant law [16]
Evidential approach [27]
Events leading up to the challenged will
Health [29]
Mr Joseph’s interactions with Mr Lucas and Ms Bullot [38]
The 2011 draft will [41]
The idea of a change from gifts to family under a will to a
charitable trust/s [45]
The enduring powers of attorney are executed early 2012 [50]
The meeting on 2 March 2012 [51]
Mr Joseph is “bullied” into signing a power of attorney [54]
Finding [60]
Meeting on 24 September 2012 [61]
Finding [62]
Mr Lucas contacts primary health care practitioner for Mr Joseph
about his capacity [63]
Finding [68]
Later attendances of Mr Lucas on Mr Joseph in 2012 [69]
Finding [71]
Room for confusion [75]
Finding [83]
Ms Bullot assumes sole responsibility for will instructions
Events around February 2013 [85]
Finding [91]
What does the letter of 19 February 2013 represent? [92]
Finding [102]
Optional Codicils [104]
Finding [113]
Execution of the 2013 Codicil [114]
Finding [121]
Ms Bullot’s assessment of Mr Joseph’s testamentary capacity [126]
Finding [138]
General practices adopted by Mr Lucas in relation to
will-making and how these were applied to Mr Joseph [143]
Finding [150]
Decision to use a codicil to change the 2004 will [156]
Finding [157]
Effect of changes to the 2004 will [160]
Finding [163]
Execution of power of attorney in 2014 [164]
Finding [171]
General professional attitude [175]
Finding [178]
Evidence of Mr Joseph’s other commercial dealings
after execution of 2013 codicil [179]
Finding [181]
Medical evidence [183]
Finding [192]
More general observations on Mr Joseph’s capacity
from family members [202]
Those family members who had close regular contact with Mr Joseph in his final years
Dragica Behrent [205] Finding [210] Ratomir Petricevich [211] Finding [226] Mirku Ujdur [230] Finding [256]
Those family members who had less regular contact with Mr Joseph in his final years
Mr Nikola and his wife Juliana [263]
Milan Radich [269]
Dr Vujcich [275]
Finding [280]
Ex post facto opnion evidence from medical experts
Experts joint statement [282]
Criticism of Dr Casey’s evidence [295]
Finding [300]
Analysis [301]
Lack of capacity as a tenable issue [306]
Can the defendants prove Mr Joseph had testamentary
capacity? [335]
Post-trial events [349]
Result [353]
Introduction
[1] The late Joseph Grbavac died aged 94 years at Auckland on 9 August 2015. A grant of probate of the last will he executed was issued on 22 September 2015. This will is dated 15 November 2004 (the 2004 will) and there are two codicils, one dated 24 January 2008 (the 2008 codicil) and one dated 25 June 2013 (the 2013 codicil).1
[2] The first plaintiff, Nikola Grbavac brings this proceeding as litigation guardian of his son, the second plaintiff Nikolas Vladimir Joseph Grbavac.2 They seek recall of the grant of probate on the ground the late Mr Grbavac lacked testamentary capacity when he executed the 2013 codicil.
[3] The defendants are the executors of the will. They maintain that Mr Joseph had testamentary capacity when he executed the 2013 codicil. Accordingly, they oppose recall.
[4] Because the late Mr Grbavac shares the same surname as the plaintiffs I shall refer to him henceforth as Mr Joseph, to the first plaintiff as Mr Nikola and to the second plaintiff as Nikolas.
Background
[5] The following is an overview of the relevant background. Many of the essential facts are disputed; and these will require evidential analysis, which will be done separately.
[6] Mr Joseph came from Dalmatia, in the former Yugoslavia, to New Zealand with his mother and four siblings in 1938. His father had arrived here earlier in 1925. In 1942 Mr Joseph studied agriculture at Massey University. In 1946 he purchased an orchard in Huapai, which became known as the Sunnyview Orchard.
1 It is common ground the will dated 15 November 2004 is the last will of the late Mr Grbavac and this will and the codicil dated 24 January 2008 were validly executed.
2 See the minute of Hinton J in Grbavac v Vujcich HC Auckland CIV-2016-404-001848, dated 25 August 2016.
[7] Mr Joseph married Katarina Grbavac, now deceased. They had no children however three of Mr Joseph’s other siblings did.3 Mr Joseph and his wife Katarina belonged to an extensive family group of Grbavac siblings, their spouses and children. They were also a part of the Auckland Dalmatian community.
[8] Mr Joseph was a hard worker and an astute businessman, with the support of his wife he made Sunnyview Orchard a very successful orchard. Together the couple built up substantial assets. At the time of his death Mr Joseph’s estate had a gross value of approximately $10,528,258.00, which comprised:4
(a)cash of approximately $2,168,373.10 (which includes cash, insurance, minor shares in a repaid debt to Mr Joseph’s estate);
(b)commercial property situated at the corner of Chorley Avenue and Waimumu Road, Massey, Auckland valued at $810,000 (the commercial property);
(c)a 75 per cent share in Sunnyview Orchard Limited (Sunnyview Orchard) which owns 6.9 hectares of land at 529 State Highway 16 for which the government value is $5,500,000;
(d)10.1 hectares of land at 677 SH 16 for which the government value is
$3,800,000;
(e)relationship property at 261-263 Royal Road, Massey, Auckland (Lots 1 and 2 Deposited Plan 70663) for which the government value is $730,000.00 and furniture and household effects.
[9] During his lifetime between 1968 and 2013 Mr Joseph made seven wills and three codicils. All the wills were prepared by Meredith Connell and Co. The partner responsible was Barrie Connell. He worked with a legal executive Marie-Louise Bullot. In 2006 Mr Connell retired. In 2006 Colin Lucas was practising as a sole
3 The fourth sibling Ante Grbavac died when she was three years old.
4 These values are taken from the affidavit of assets filed by Mr Lucas.
practitioner under the name Lucas and Mabin. He employed Ms Bullot and some of Mr Connell’s files were transferred to Mr Lucas. This is how Mr Lucas became Mr Joseph’s solicitor. On 1 April 2013 Lucas and Mabin merged with Sellar Bone and Partners. Ms Bullot continued her work as a legal executive with the newly merged firm.
[10] Under the first six wills Mr Nikola was named as a beneficiary in some respect and he received a reasonably substantial part of the estate. He was excluded as a beneficiary by the 2004 will, which instead included his son Nikolas as one of the beneficiaries. Nikolas essentially received gifts of similar value to what his father had received in the earlier wills. At the time the 2004 will was executed Nikolas was 11 months old.
The recent testamentary dispositions
[11]It is helpful to set out the terms of the 2004 will.
[12] The trustees and executors were Peter Toni Vujcich (Dr Vujcich), Voislav Iure Ujdur, Mate Tolj and Barry James Behrent. The will left specific bequests to Mr Joseph’s wife, Katarina Grbavac, including, furniture, furnishings, plated goods, linen, glass, china, books, prints, statuary musical instruments and all other articles of household use or ornament belonging to Mr Joseph at the time of his death. The family home at 261 Royal Road, Massey was also left to Mrs Grbavac. The commercial property was subject to a life interest in favour of Mrs Grbavac, then left in equal third shares to family members Matilda Botica (niece), Milka Petricevich (niece) and Nikolas being the son of Mr Nikola. Mr Joseph’s motor vehicle was left to Voislav Ujdur. The residue of the estate was left one-half for Mrs Grbavac the other half in equal fifth shares to Millie Vujcich (sister), Dragica Behrent (niece), Voislav Iure Ujdur (nephew), Mirko Ujdur (nephew) and Nikolas.
[13] The 2008 codicil appointed Lucas and Mabin as solicitors in substitution for Meredith Connell.
[14] The 2013 codicil reduced the executors and trustees from four to three. Voislav Ujdur and Barry Behrent were removed. Dr Vujcich and Mate Tolj remained and
Mirko Ujdur was the new third executor/trustee. The gift of the motor vehicle to Voislav Ujdur was revoked as Mr Joseph no longer owned a motor vehicle. The gift of the commercial property was now a life interest to Mrs Grbavac and the remainder went to Matilda Botica. One half of the residue of the estate went to Mrs Grbavac, the other half went in equal third shares to Millie Vujcich, Voislav Ujdur and Mirko Ujdur. Thus, the 2013 codicil removed Nikolas, Millie Petricevich and Dragica Behrent as beneficiaries under the will.
[15] If the 2013 codicil is found to be invalid the 2004 will and the 2008 codicil will then take effect. This will restore Nikolas, Millie Petricevich and Dragica Behrent as beneficiaries. It will also remove Mirko Udjur as an executor/trustee and restore Mr Behrent and Voislav Ujdur to this role.
Relevant law
[16] Provided will-makers have testamentary capacity, and the obligations imposed under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949 are not engaged, they are free to dispose of their property as they wish. Their dispositions need not be fair; indeed, they may be brutal as to their outcome.
[17] The only statutory obligations Mr Joseph owed were to his wife under the Family Protection Act. No issues are raised in that regard. So, provided he had testamentary capacity he was free to dispose of his property as he wished. The law on testamentary capacity is well settled.
[18] I start with proof. In Loosley v Powell the Court of Appeal recently affirmed the principles relevant to the onus and standard of proof in cases where testamentary capacity is challenged:5
[20] In Bishop v O’Dea, this Court described the relevant onus and standard of proof in a testamentary capacity case in a statement also relied on by Courtney J:
[3] In probate proceedings those propounding the will do not have to establish that the maker of the will had testamentary capacity, unless there is some evidence raising lack of capacity as a tenable
5 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [20].
issue. In the absence of such evidence, the maker of a will apparently rational on its face, will be presumed to have testamentary capacity.
[4] If there is evidence which raises lack of capacity as a tenable issue, the onus of satisfying the Court that the maker of the will did have testamentary capacity rests on those who seek probate of the will.
[5] That onus must be discharged on the balance of probabilities. Whether the onus has been discharged will depend, amongst other things, upon the strength of the evidence suggesting lack of capacity.
[19] And in Nijsse v Squires the Court of Appeal described the burden that rests on the proponent of a will once a tenable doubt has been raised as to capacity:6
It will be noted that in Peters & Ors v Morris this Court emphasised the distinct burden resting on the proponent of a will where a doubt is raised. That point was also emphasised in Brown v Pourau [1995] 1 NZLR 352, and recently the England and Wales Court of Appeal, in Re W (Enduring Power of Attorney) [2001] Ch 609, referred to both of these New Zealand authorities with approval in that respect. See also Tanner & Ors v Public Trustee & Ors [1973] 1 NZLR 68.
[20] The primary occasion for assessing capacity is the date of the execution of the contested will. However, if by the date of execution testamentary capacity is absent, the rule in Parker v Felgate allows for the assessment to be made on a secondary and earlier occasion.7 In such circumstances the Court can nevertheless have regard to whether the will maker had testamentary capacity at the time when he or she gave the instructions to prepare that will. The force of the rule in Parker v Felgate was recognised by the Court of Appeal in Loosley v Powell:8
It is not only the date of the signing of the Final Will on 2 May 2014 that is relevant to the issue of capacity. Under the rule in Parker v Felgate if, when the instructions were given by a will-maker, that will-maker had testamentary capacity, the will can be valid even though that testamentary capacity had been lost by the time of execution.
(footnotes omitted).
[21]And later:9
The rule in Parker v Felgate has been accepted by the New Zealand High Court. It was accepted by Courtney J in this case. Under the rule the court must be satisfied that there has been no revocation of the earlier instructions
6 Nijsse v Squires CA53/04, 15 December 2004 at [8].
7 Parker v Felgate (1883) 8 PD 171.
8 Above at [22].
9 Above at [24].
when the will is signed, all the more so when the earlier instructions involve a significant change from an earlier will for no apparent rational reason.
(footnotes omitted).
[22] Turning now to the substantial elements of the law of testamentary capacity; also, recently affirmed in Loosley v Powell. The Court of Appeal laid out the indicia of testamentary capacity and how they are to be used:10
The principles relating to the assessment of testamentary capacity are well- settled, and were set out by this Court in Woodward v Smith. There, this Court re-stated the principles laid down in the often-cited judgment of Banks v Goodfellow:
(1) Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
(2)It is essential to the exercise of such a power that a testator:
(i)understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
(ii)is able to comprehend and appreciate the claims to which he ought to give effect;
(iii)be free of any disorder of the mind which would 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.
…
(5)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(6)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(7)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all.
10 Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].
(8)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament.
(9)But if that standard is not met, he will lack capacity.
… The Banks v Goodfellow propositions as summarised in Woodward v Smith have been widely accepted and applied in New Zealand. It is important to treat them as guiding propositions rather than as a formula.
(footnotes omitted).
[23] In Woodward v Smith11 the Court of Appeal endorsed a checklist of specific steps for doctors to undertake an adequate medical assessment of capacity that were contained in an advisory paper for doctors written jointly by an old-age psychiatrist (geriatrician) and a solicitor, each of whom were expert in dealing with contentious probate cases .12 These were as follows:13
(a)get a letter from the solicitor detailing the legal tests;
(b)set aside enough time;
(c)assess (according to standard medical knowledge) whether the patient has dementia;
(d)Check that the patient understands each of the Banks v Goodfellow
criteria …being:
(i)The nature and effect of making a will;
(ii)The extent of his or her estate;
(iii)The claims of those who might expect to benefit under the will; and
(iv)The patient should not have a mental illness that influences making gifts in the will that would not otherwise have been made;
(e)Record the patient’s answers verbatim;
(f)Check facts, such as the extent of the estate, with the solicitor;
(g)Ask about and review previous wills;
11 Woodward v Smith [2009] NZCA 215.
12 Jacoby and Steer “How to assess capacity to make a will” (2007) 335 BMJ 155.
13 Woodward v Smith [2009] NZCA 215 at [57].
(h)Ask why potential beneficiaries are included or excluded; and
(i)If in doubt as to capacity, seek a second opinion from an experienced professional.
[24] The terms of the will can also be an indicator of testamentary capacity. In Re Rhodes, Hammond J commented: 14
Finally, there is (as in this case) the question of the terms of the will itself. Where property is disposed of fairly, and in accordance with moral dictates, then only a very small amount of capacity is needed. But with abrupt and unfair changes, fuller and clearer evidence of capacity is required. (See, for instance Brown v McEnroe (1890) 11 NSWR Eq 134).
[25] In Green v Green Winkelmann J (as she then was) was critical of the above passage in Re Rhodes insofar as it might be understood to suggest that a fair and rational decision requires less capacity than one that on its face is unfair or apparently irrational.15 In this regard Winkelmann J referred to Bishop v O’Dea where Tipping J commented that the rationality of a will on its face does not necessarily provide much evidence of capacity, especially if it is professionally drawn, in which case it is likely to be rationally expressed.16 However, I find the above passage from Re Rhodes helpful insofar as it suggests that abrupt and unfair changes to a will require fuller and clearer evidence of capacity.
[26]The forgoing frames the legal approach herein.
Evidential approach
[27] Assessment of the relevant evidence has been made difficult in this case by the absence of informative contemporary records. The legal records of relevant events are not as good as might be expected. Some such events were not recorded at all. Other records, such as the legal notes Mr Lucas made at the time of his attendances with Mr Joseph, are cryptic and impossible to understand without further explanation. Often the only idea of how long a particular attendance on Mr Joseph may have lasted has to be gained from the time recorded in the fees ledger. The legal executive,
14 In the Estate of Ethel Mary Rhodes, Collier v Meads HC Wellington, CP25/02, 7 March 2002 at [40]. Approved in Loosley v Powell [2018] NZCA 3; [2018] 2 NZLR 618 at [32].
15 Green v Green [2015] NZHC 1218 at [99].
16 Above at [99].
Ms Bullot, followed a practice of making notes at the time of an attendance or other instruction, doing what she thought was required and then destroying the notes. In evidence she acknowledged that, because the original notes she made at the relevant times are no longer available, it would not be possible to know whether the work she carried out fulfilled the instructions she was given. As is usual when litigation proceeds, with the requirements for discovery and later preparation of bundles of documents, the original legal files will have been dismembered, so insights that may otherwise have been gleaned from where an undated document was positioned on a file are no longer available.
[28] Accordingly, an understanding of the relevant events leading up to the execution of the 2013 codicil must be gained from a forensic analysis of the available evidence set out in chronological order; this evidence comprises a mix of documentary evidence, circumstantial evidence and the recall of Mr Lucas and Ms Bullot, as well as other witnesses, of events, sometimes undocumented, that happened some six or more years before the trial. No doubt this has contributed to the parties’ dispute. Had clear and fulsome file notes been made at the relevant times they may have reduced if not removed the scope for dispute. But that is not what happened.
Events leading up to the challenged will
Health
[29] Mr Joseph was 83 years old when he executed the 2004 will. He was 87 years old when he executed the 2008 codicil and he was 92 years old when he executed the 2013 codicil.
[30] Family witnesses for both the plaintiffs and defendants were agreed that in his later years Mr Joseph had become irritable and frustrated with the limitations his age and deteriorating health had imposed on him. He had been a proud independent man who was very capable and competent, understandably the loss of his strength and vigour were sorely felt by him.
[31] From about 2010 Mr Joseph had limited mobility. He never went to the offices of his lawyer Mr Lucas, who initially would attend Mr Joseph at the Sunnyview
Orchard, but from 2010 the attendances were at the family home at Royal Road Massey.
[32] Mr Joseph had cataracts in both eyes, an operation to remedy this problem in one eye failed and he would not proceed with treatment on the other eye. A number of witnesses said that to read he required the use of a magnifying glass.
[33] By 2011 Mr Joseph’s hearing was bad. Dragica Behrent who accompanied him on visits to his primary care doctor and to the hospital on outpatient visits for kidney treatment said Mr Joseph did not like others to know he was hard of hearing and he would act as if he could hear when he could not. She said he also had difficulty understanding what the health professionals he saw said to him, but he acted as if he could understand. Her task was to explain to him on the way home from seeing them what they had said about his health. Her view was that at the time Mr Joseph had no difficulty understanding the explanations she gave to him.
[34] Mr Joseph’s primary care practitioner Dr Kathryn McDonald gave evidence that he was unwell from November 2011 through to January 2012. On 31 January 2012 he was admitted to North Shore Hospital with a urinary blockage and a urinary tract infection. He remained in hospital until 14 February 2012. Throughout his stay in hospital his kidney function showed no sign of improvement. The hospital’s clinical notes record that the “presumed” level of function was said to be around “5-10% of normal kidney function”. The renal specialist Dr van der Merwe explained to the family the requirements of dialysis (three times a week each session for four to five hours) and they agreed dialysis was not an appropriate treatment option for Mr Joseph. This left him facing palliative care. A cognitive assessment was planned during this admission, but it did not proceed. The hospital notes taken at this time also record that Dr van der Merwe told the family Mr Joseph would require a high level of care on discharge (he was leaving with a suprapubic catheter which he retained for the rest of his life) and going to a private hospital was an option for his safety and well-being. Mr Joseph was said to require high level care for showering, getting in and out of bed and toileting at home, and his wife was not competent in caring for him (at the time she was elderly and frail as well). However, Mr Joseph and the family wanted him to go home and live under care and support by his family. The hospital was to provide
conservative treatment with the support of the District Nurse, Palliative Care team and Hospice team.
[35] During the above hospital admission, the hospital records include a file note on 1 February 2012 made by the occupational therapist that reported Katarina Grbavac saying she had noticed increasing vagueness over the last six months. The occupational therapist considered that cognitive screening was required but because family were present when she returned to carry this out it was not done. Although recorded as ‘to be attempted later in the week’ this was not done.17 On 2 February 2012 the gerontology nurse specialist recorded there was concern over the past six months about Mr Joseph’s medical issues and his deterioration in his insight and cognition. Mr Joseph appeared vague at times and he was said to have no insight into changes in his level of function. He was also said to have been unable to manage his suprapubic catheter. On 2 February 2012 a medical registrar Dr Lee recorded a discussion he had with Katarina Grbavac and noted “according to his wife on/off confusion is longstanding”.
[36] There were four other hospital admissions in 2012. The first on 14-15 March when the suprapubic catheter was dislodged. The second on 24 April 2012 when the suprapubic catheter was lodged. The third on 9 May 2012 for a post-operation problem following a skin graft. The fourth on 24 October 2012 for a blocked catheter. No cognitive assessments were made during these admissions. By 2013 Mr Joseph’s health conditions had stabilised. There were no hospital admissions that year. There were no issues that year regarding management of the suprapubic catheter.
[37] A letter dated 13 March 2013 from North Shore Hospital to Dr McDonald reveals that by this time Mr Joseph’s kidney function had been assessed at around 13 per cent. The letter records that both Mr Joseph and his wife were finding day to day tasks a struggle and there were concerns about their ability to continue to live in their home together. Dialysis was said to be not needed and not recommended for the future, which I consider to be a statement that needs to be understood in the context of
17 There is no evidence to explain why the cognitive assessment was not followed up. It may be because the concerns which first led the hospital staff to consider such assessment was required later dissipated or it may be that in a busy hospital environment there was no time to complete the assessment before Mr Joseph was discharged.
a 92-year-old man who had been on palliative care for more than 12 months. There is nothing in the health records to suggest there was any improvement over time in Mr Joseph’s kidney function.
Mr Joseph’s interactions with Mr Lucas and Ms Bullot
[38] Mr Lucas described meeting with Mr Joseph and his wife, first at the premises of Sunnyview Orchards, and from about 2010 onwards at their home in Royal Road. Generally, Ms Bullot went with Mr Lucas when he attended Mr Joseph.
[39] Mr Lucas said that typically, given Ms Bullot’s longer association with Mr Joseph, he would telephone her about an issue and she would then tell Mr Lucas that Mr Joseph wanted to see him. One such example involves a cryptic file note of a meeting on 10 December 2012 where the fees ledger records 90 minutes of time, which Mr Lucas said included driving of 15 minutes each way to Royal Road. Neither the file note nor the fees ledger recorded Ms Bullot being present at the meeting although Mr Lucas thought she would have been present:
QAnd [Ms Bullot], who appears underneath, [the fees ledger record] was she there with you?
A She might have been, but she might not have charged her time.
QRight, but at the moment, can we tell from this time record whether she was there or not?
A The chances are, Ma’am she would have been, but what ordinarily happened when Mr Grbavac wanted to meet was, he would ring her, and she would come into my office and say, “Joe wants to see you.” And then I’d say, “When?”
Q And did she tend to go with you when you went to see-
AYes she did Ma’am, purely because she had the ongoing relationship with him, and she was the contact person, so I let her – she was very experienced, and I felt that I’d like to keep the association up. She knew what Mr Grbavac’s affairs were better than I did, and I was the new guy on the block.
[40] Ideas of a new will were being floated in 2011 and 2012 and there were discussions about executing powers of attorney under the Protection of Personal and Property Rights Act 1988.
The 2011 draft will
[41] There was a meeting at Royal Road on or about 8 March 2011 to discuss new wills for Mr Joseph and for his wife Katarina. Mr Lucas made a rough handwritten file note dated 8 March 2011. The fees ledger records an hour attendance to discuss will on 7 March 2011. Mr Lucas said his practice was to enter his time recording after an attendance. He thought the 7 March 2011 date an error. The handwritten file note is cryptic. It records the travel distance to Mr Joseph’s home, states his name, the word “will” and then states “Nikola Grbavac out of clause 6/8”. No more than that is written down. The remainder of the note deals with Katarina Grbavac’s will.18
[42] These instructions led Mr Lucas to prepare a draft will around 15 March 2011. The directory of his computer contains a document created on that date. A copy of this draft will was in evidence. It bears the date 2012 but Mr Lucas says this is because he changed the date to 2012 sometime later.
[43] The 2011 draft will had the same four executors and trustees as the 2004 will. The specific gifts to Katarina Grbavac, including the family home, were the same. The disposition of the commercial property was changed insofar as Nikolas was removed as a beneficiary. He was also removed as one of the beneficiaries who shared in the residue of the estate. Mrs Petricevich and Dragica Behrent (being persons removed by the 2013 codicil now under challenge) retained the gifts they received under the 2004 will.
[44] The 2011 draft was sent to Mr Joseph on 6 April 2011. The letter accompanying the draft will for Mr Joseph and one for Katarina Grbavac (which was sent to Sunnyview Orchard rather than to the Royal Road address) did not outline the changes in the draft will from the 2004 will; all it did was invite Mr Joseph and his wife to review the enclosed draft wills and referred to Mr Lucas coming out to see them to discuss further. Thus, it was left to Mr Joseph to work out for himself the differences in the dispositions between the 2004 will and the 2011 draft will.
18 Katarina Grbavac finally executed a new will on 24 September 2012. Before that and between 7 March 2011 and 24 September 2012 there is some evidence of draft wills being sent to her and telephone conversations about changes she was proposing to them.
The idea of a change from gifts to family under a will to a charitable trust/s
[45] There was another attendance on 9 May 2011. The file note which Mr Lucas made at the time says nothing about Mr Joseph’s views on the draft will that was posted to him with the letter of 6 April 2011. Instead Mr Lucas records that Mr Joseph had ideas of setting up a charitable trust to which he and his wife would make gifts rather than by gifting under a will. The note records “Clark” “Fletcher trust” and “Fruit Growers Federation Charitable Trust” which Mr Lucas says were charitable trusts mentioned by Mr Joseph. Mr Lucas agreed that Mr Joseph had it in mind to give money to a charity he established rather than to family. However, this idea was not pursued to any great extent, possibly because Mr Lucas did nothing to take it any further.
[46] In evidence Mr Lucas said there were several complicating factors against a charitable trust/s being established and he set out the type of issues that need to be covered when establishing such a trust. Mr Lucas could not explain to the Court why he could not have taken Mr Joseph through the various matters that the creation of a charitable trust would have required. Mr Lucas’s response was:
Sorry Ma'am, I did mention that when I was being lead through my evidence this morning. 9/5/11. That was another meeting with Mr Grbavac. He was talking about other options for his and Mrs Grbavac’s estate, and there was, you'll see reference to Clark and Fletcher Trust and Fruit Grower’s Federation Charitable Trust. He was talking about a charitable trust for assets rather than gifts under their will, so they were contemplating setting up some sort of foundation in the Kumeu area or something like that. That conversation didn’t go further because, quite frankly, it was going to be, that would have meant a complete redraft of everything he had done, so we would've had to sit down and just work through at length how it was going to work, who the ongoing trustees would have been, structure, and all those other bits and pieces, and I think he decided that was just too big.
[47]Then under questions from the Court:
Q. Mr Lucas, about this meeting on 9 May 2011 where there was this discussion about charitable trusts, you said to me that ultimately, that was abandoned because that meant having to go through a number of things?
A. It meant – I didn’t like the idea but whether I like it or not is irrelevant. If you're going to setup a charitable trust, there are a number of complicating factors. Generally, there needs to be a settlement onto a trust itself, a formal trust deed, the will saying that’s going to go that
way or you do it in advance so that if the testators are still alive when they’ve settled everything onto a charitable trust which can be done, there is a debt back so they can actually get some income back from the trust to see them through their last few years or something like that and then identifying the objects of the trust, what are they going to be? And that would be a long conversation. You can have a number of general objects but in these sort of charitable trusts, you need to have a specific object so that the trustees down the track know what the intentions of the creators of the trust were.
Q. Well why couldn't you sit down with Mr Grbavac in 2011 and get instructions to cover those sort of details from him if that’s what he wanted to do?
A.As I said to Mr St John, Ma'am, that was more – I thought it was floating a balloon rather than any specific instructions. It would cause a conniption fit amongst the family I suspect.
Q.Well, at the time you sat down with him, it seems to me all you recorded from that meeting was the idea of a charitable trust. There's nothing else recorded there.
A. That’s correct, Ma'am.
QSo it looks to me as if the focus of that meeting [9 May 2011] was on the possibility of creating a charitable trust?
A It was more a subject of discussion…
Q Well earlier when you had said that you were concerned because that included setting up trustees, you’ve set out the number of things you had to deal with, what I’m trying to find out is why you couldn’t at that stage sit down with Mr Grbavac and go through all those matters with him, we’re talking about 2011 here?
A All I can say Ma’am is I could’ve but I don’t recall doing that.
[48] Later, the 9 May 2011 file note (document 960 in the bundle of documents) concerning a charitable trust was re-visited:
QJust going back to 960, in 2011 the late Mr Grbavac was 90. You’ve said to me there were concerns about creating these charitable trusts because of what you have to go through in terms of-
A Precisely.
Q– identifying trustees, the terms of the charitable trust, whether you do it inter vivos or post mortem, those things, right?
A Correct.
QThat’s a fair understanding? Were you concerned at the time that you were going to have difficulty getting instructions from someone who was 90, as he was then in 2011, for setting up these charitable trusts?
A If he’d gone down that path I think I would have been Ma’am.
[49] The 2011 draft will was never executed nor were any further steps taken toward setting up a charitable trust. The documents in evidence record no further contact with Mr Joseph for the year 2011.
The enduring powers of attorney are executed early 2012
[50] The fees ledger records the next time work was performed for Mr Joseph was in January 2012 when Mr Lucas reviewed the file with Ms Bullot. A file note Mr Lucas made on 28 February 2012 of his discussion with Dr McDonald records that Mr Joseph was articulate and understands what is spoken to him and understands his business activities. There were no issues as to competency, but it was thought to be a good idea to get enduring powers of attorney executed in anticipation of a deterioration in his health. This would have followed Mr Joseph’s discharge from North Shore hospital in February 2012, by which time Mr Joseph’s physical health had deteriorated. However, Mr Lucas said in evidence he did not know at this time that Mr Joseph had been diagnosed as having stage 5 renal failure.19
The meeting on 2 March 2012
[51] There was a family meeting on 2 March 2012 at the Royal Road house which was also attended by Mr Lucas and Ms Bullot. The handwritten note Mr Lucas made of this meeting is both vague and brief. It states: “Not wanting to work” which in evidence Mr Lucas said was a reference to Katarina Grbavac’s brother. The note then states: “Peter T V, Barry James Behrent, discussed the shops, Joe concerned about Katy’s brother who is a spendthrift”. The fees ledger records 120 minutes, which may be the time of the meeting or the meeting plus travel; Mr Lucas could not say which it was.
[52] Also, on 2 March 2012 following the meeting at Royal Road Mr Lucas wrote a letter to Mr Joseph and his wife, which referred to the meeting and family members present that day. Included with the letter were three separate powers of attorney for
19 Stage five is end stage renal failure.
Mr Joseph and another set for his wife. Barry Behrent was to be appointed attorney in relation to personal care and welfare and if he could not act then Dr Vujcich. Mr Behrent and Dr Vujcich were both appointed attorneys in relation to property and they were both also appointed under a general power of attorney. The letter explained who had been appointed to hold the powers of attorney and invited Mr Joseph to contact Mr Lucas to make a time for him to attend the execution of these documents. However, the letter did not explain the effect of the powers of attorney and Mr Lucas accepted in evidence that he made no note of having given this explanation to Mr Joseph when he visited him on 2 March 2012.
[53] Mr Lucas accepted that he took no steps to make sure that Mr Joseph could read the documents he was sent. Mr Lucas admitted he did not know Mr Joseph had cataracts in both eyes and said if he had known this he would have taken steps to ensure Mr Joseph could either read the documents or they were explained to him. These were the first powers of attorney Mr Lucas had prepared for Mr Joseph. Under cross-examination Mr Lucas said his understanding was that the certificate on the powers of attorneys did not require him to enquire as to whether Mr Joseph understood this document:
Q So, does the certificate that you give which essentially says I’m satisfied that he understood them [the powers of attorney] it doesn’t require you to make any enquiries?
A Not as I read the certificate, no.
Mr Joseph is “bullied” into signing a power of attorney
[54] There was another attendance at Royal Road on 19 April 2012 which the fees ledger records as being for the purpose of signing the powers of attorney. Once again, the handwritten note made by Mr Lucas is both vague and brief. The file note records Mr Joseph’s age (91 years), states he is “not sure about Barry”. Then it notes “Mate Tolj” and states his telephone number then records “possibly EPAs property and H/W”. The note goes on to state “Mirko Ujdur” - “Signing authority for NBNZ” then “speak to Joe”. The note also records “Mirko wants Joe to retire as trustee of I Ujdur estate”. “Sign authority speak to Joe.” What is notable about this meeting is that the file note made at the time records Mr Joseph had doubts about Mr Behrent holding a
power of attorney, yet at that meeting he signed powers of attorney which appointed Mr Behrent to this role.
[55] Mr Lucas accepted that the file note presented the situation vis-a-viz powers of attorney as essentially “back to square one”. Mr Lucas said he would have taken Mr Joseph through the powers of attorney explaining what an attorney can and cannot do, that they are a “protective document”. However, no record was made of such explanations being given. Further, whilst the powers of attorney required Mr Lucas to certify that the receiving person understood them, Mr Lucas has admitted he did not read the certificate as requiring him to make such enquiries.20 Nor is there any contemporary record that would suggest Mr Lucas made such enquiries of Mr Joseph. There is the earlier file note of 28 February 2012, which records that Dr McDonald had informed him there were no issues as to competency. Mr Lucas may have decided that was enough. However, whether that is what he did cannot be known now from the evidence that is available.
[56] Mr Lucas was asked if the request from Mirko Ujdur for Mr Joseph to be removed as a trustee from the estate of Ivan Ujdur indicated there were doubts at the time Mr Joseph could carry out the role of trustee. Mr Lucas said “not necessarily”, he attributed the request to a realisation it was better to make the change while it could still be made. He could not recall if the change was actioned.
[57] Mr Lucas accepted that on 19 April 2012 a power of attorney was executed appointing Mr Behrent to this role. On the same day a letter was sent to Mr Behrent advising him that he was appointed attorney under “enduring powers of attorney in relation to property and care and welfare” with Mr Behrent being the “primary attorney”. However, that same day Mr Joseph was recorded in the file note by Mr Lucas as not sure about Mr Behrent holding the power of attorney. Mr Lucas was asked by the Court to explain how this came about:
AI think the point was that it was decided it was better to have enduring powers of attorney in place and then if there were changes mooted we could always change them rather than go away, redraft, come back again.
20 See [53] herein
Q Well you’ve gone ahead and got something signed on the 19th of April 2012 even though at a meeting on the very same day there was some uncertainty being expressed about who the attorney should be?
AYes but the discussion ultimately ended up that that was something that would be put over for consideration…
QWas there any urgency felt at that time about his state, that you needed to get him to sign as soon as you could?
A If we go back to my discussion with Dr McDonald, it had been a wee while and I took the view that that particular discussion I didn’t want to postpone so I sort of, I probably bullied him into signing. [emphasis added]
[58]Then later Mr Lucas under cross-examination said:
QSo, about half an hour ago, it was your evidence that older people like to take their time, and you were happy to let them do so?
A That is so, but sometimes a line needs to be drawn in certain circumstances.
Q Well, who drew that line? A I did.
A …we’d actually gone out to sign the things, and there was having those sort of discussions, and then my feeling was that if we had those discussions, I’d be going to and forward from Royal Road with more regularity than I wanted to, so we got them signed.
QAs I understand your answer, what you did is you got a 91 year old man to sign a very serious document granting powers to a third party when that man has said he has concerns about who the donee is. And you’ve actually recorded that.
AI think probably concerns is too strong a word. What he was looking at was options, because he did have a string of options, and he was probably just trying to cover his bases.
QWell you’ve noted here, “Not sure about Barry”, who is the donee. I’ll ask my question again, he’s not sure at that point, you’ve recorded that, but yet you had a 91 year old man sign an enduring power of attorney that appointed him as the donee?
A Yes.
[59] At either the meeting on 2 March 2012 or 19 April 2012 Mr Lucas also took the draft will he prepared in 2011 with the date now changed to 2012 with him to Royal Road. In his evidence he referred to one of the meetings in 2012 at which
enduring powers of attorney were discussed, but he did not identify which it was. The will was not discussed because other persons were present.
Finding
[60] It is difficult now to make sense of the need to persuade Mr Joseph to grant a power of attorney to someone he had doubts about. There was seemingly no real urgency because it was not until 2 October 2012 that Mr Joseph received copies of the executed powers of attorney for his records. Mr Behrent executed the document in May 2012 and Dr Vujcich did not execute the document as the alternative attorney until September 2012. Until the recipients of the powers of attorney have executed them they are not enforceable.21 The more important questions raised by these events, which are relevant to capacity are why, after the meeting in March 2012 about granting powers of attorney, had matters reverted back to square one by April 2012; and secondly, why did Mr Joseph allow himself to be “bullied” into granting a power of attorney to someone he was “not sure about”.22 These important questions represent a departure from Mr Joseph’s previous conduct of his affairs and should have at least put Mr Lucas on alert that competency issues may arise in the future. Also, the concern Mirko Ujdur expressed on 19 April 2012 to have Mr Joseph removed as trustee of the estate of Ivan Ujdur, the late father of Mirko Ujdur, suggests that persons close to Mr Joseph, as Mirko Ujdur was, were becoming concerned that Mr Joseph’s capacity to make the type of decisions a trustee is required to make may be becoming doubtful if not already in decline.
Meeting on 24 September 2012
[61] The next attendance was on 24 September 2012 and the fees ledger records it lasted 72 minutes. There is no file note in evidence that outlines what was discussed at this meeting. However, it is clear from subsequent evidence that the meeting on that day involved Mr Joseph and Mrs Grbavac, and that on 24 September 2012 Katarina Grbavac executed her will. This is established by a letter dated 25 September 2012 from Mr Lucas to Mrs Grbavac, which encloses her will and an invoice. This letter specifically refers to a meeting with Mrs Grbavac and the will being executed
21 Section 94A Protection of Personal and Property Rights Act 1988.
22 See [54] and [319] herein.
on 24 September 2012.23 There is also a letter dated 26 September 2012 from Mr Lucas to Mr Joseph which refers to a meeting on “Monday” and informs Mr Joseph that Mr Lucas has now discussed the possibility of him and Mr Joseph meeting with Mr Joseph’s accountant to review Mr Joseph’s affairs and “rework your will”. The letter ended with the usual invitation to Mr Joseph to contact Mr Lucas about a suitable time to meet.
Finding
[62] I am satisfied there was a meeting between Mr Lucas, Mr Joseph and his wife, on 24 September 2012 which involved her executing her will and discussions about Mr Joseph reviewing his will.24 Looked at contextually, it is clear from the evidence that the couple had each started talking with Mr Lucas in early 2011 about changing their wills and by 24 September 2012 Katarina Grbavac was ready to execute her new will while Mr Joseph was still talking about changing his will.
Mr Lucas contacts primary health care practitioner for Mr Joseph about his capacity
[63] There is a printed file note made by Mr Lucas dated 24 September 2012 of a telephone discussion between Mr Lucas and Dr McDonald. The file note records:
I indicated that I had some concerns about Joe’s capacity. She made the comment that Joe’s capacity is alright, albeit slightly ragged around the edges as one would expect for a 91-year-old man.
She is, however, not keen on the idea of a drastic change to Joe’s will as that may signify a more deep-seated issue. I indicated I would take the review of Joe’s will slowly as a consequence.
[64] The note Dr McDonald made on 24 September 2012 about her discussion with Mr Lucas is slightly different. It states:
Call from lawyer Colin Lucas 5202178 concerned re mental cognition. Discussion and agree shouldn’t make any will change.
23 An earlier letter of 19 July 2012 to Mrs Grbavac refers to a revised version of the draft will, so around this time Mrs Grbavac must have been considering changes to her will.
24 Whilst the attendance on 24 September 2012 is recorded in the fees ledger the work involving the letters sent on 25 and 26 September 2012 is not.
[65] Mr Lucas’ note does not mention the attendance at Mr Joseph’s home that day, nor does it indicate that any such attendance was planned to happen. On its face the note says nothing about whether it was written before or after Mr Lucas attended on Mr Joseph that day or following a recent meeting with Mr Joseph. However, the order of the recorded work in the fees ledger for 24 September 2012 establishes that the file note was recorded after the attendance that day, which suggests the telephone call to Dr McDonald also came after the attendance. Further, the description in the fees ledger states “Telephone call from John bulog (sic) [Mr Joseph’s accountant] & Kathy McDonald review wills”. The letter of 26 September 2012 refers to Mr Lucas having a discussion with John Bulog subsequent to the meeting with Mr Joseph and Mr Lucas, which suggests the call with Dr McDonald came after the meeting too.
[66] Mr Lucas’ file note records nothing about what motivated him to contact Dr McDonald that day. He was asked under cross-examination why he had done so:
A Well, a favourite topic of conversation of Mr Grbavac was Mrs Grbavac’s brother, who he harboured a concern about because he considered him to be unreliable with money and a bit of a scoundrel, one might say. And his concern was that he did not want Boris to get, I think his name was Boris, to get [Mrs Grbavac’s] money when she died, after anticipating that he died before [Mrs Grbavac]. And this was a reasonably recurrent theme, which I felt I just needed to get Dr McDonald’s confirmation that, of her view of Mr Grbavac’s capacity I suppose.
Q Why?
AIt was happening with sufficient regularity to raise a question mark in my mind sir, it had been, it was similar to other clients and indeed my mother who got a bit repetitive as they get older and the same stories would come out and you’d be thinking is there an issue or is there not an issue hence my call to Dr McDonald.
QSo, the gist of it is, is that his repeated instructions, or this is my word not yours or obsession with his brother in law caused you to pause and call Dr McDonald?
A It gave a question mark which I needed to have addressed.
QNow you said you had some concerns about [Mr Joseph’s] capacity but you don’t dictate what they are?
AWell that was it, because of the nature of that repetitive conversation about his brother in law that was really the question that was in my mind.
[67] Later in the cross-examination when Mr Lucas was asked whether he had explored with Dr McDonald what she meant by a drastic will change signifying a “more deep-seated issue”. Mr Lucas said:
A I took her to mean that it was – there may have been other issues with capacity.
QYes. so at that point did you tell her, “well actually not too long ago he was toying with the idea disinheriting the family and leaving everything to a charitable trust or trusts?
A No I didn’t.
Q No because as you say that may have exposed a deep-seated issue.
That’s your words?
A Yes.
Q Which went to capacity, yes?
Q Have you answered that question? A I think I said yes.
Finding
[68] The attendance on 24 September 2012 stands out from other attendances on Mr Joseph. The experience raised concerns for Mr Lucas about Mr Joseph’s capacity to the point where Mr Lucas contacted Dr McDonald. Her understanding of their discussion was that they agreed there should be no will changes, whereas his understanding was that any drastic will change may signify issues regarding capacity. Given the changes Mr Joseph had already been contemplating up to this date, the discussion with Dr McDonald should have prompted Mr Lucas to make enquiries with Mr Joseph about organising a capacity assessment by a medical expert or for Mr Lucas as Mr Joseph’s solicitor to undertake this task himself in conformity with the principles laid down in Banks v Goodfellow. The road map for a solicitor in Mr Lucas position to follow, which encapsulates the Banks v Goodfellow principles, was set out in Woodward v Smith.25 As at 2012 this law was well established. However, no such steps were taken. Instead matters continued as before with Mr Lucas making subsequent attendances on Mr Joseph to discuss will revisions.
25 See discussion at [23] herein.
Later attendances of Mr Lucas on Mr Joseph in 2012
[69] The fees ledger records the next attendance as being on 15 November 2012. There is no file note to record the purpose of this attendance though the time recorded is 90 minutes.
[70] The next attendance was on 10 December 2012. The handwritten file note for that attendance, for which the time recorded is 90 minutes, follows the usual format of Mr Lucas’ notes; they are cryptic and only informative when explained by him. The file note is headed Tequila Sunrise, which Mr Lucas said was the name of a rose he saw growing and liked in the garden at Royal Road. It is helpful to set out this file note:
Joe Grbavac
Nikola Properties Ltd written to as request.
a) Wants to revoke will
Doesn’t want any money to go to Katy’s brother Doesn’t want to do any more about it
Peter Vujcich & Mate Tolj trustees & executors Far better to sell
Joe, Katy’s brother is crook Keep clause 6 residuary gifts Keep clause 8
Finding
[71] The above note reveals the repetitive conduct displayed by Mr Joseph about his wife’s brother that had prompted Mr Lucas to contact Dr McDonald. However, this time, rather than being viewed as a signal that confirmed the concerns raised earlier on 24 September 2012, such conduct passed without remark or action by Mr Lucas. It should have been recognised by him as a further prompt to have Mr Joseph’s capacity assessed, but it did not.
[72] The 2011 draft will made provision for four executors/trustees being Dr Vujcich, Voislav Ujdur, Barry James Behrent and Mate Tolj. The proposed will changes discussed at 10 December 2012 would have reduced their number to Dr Vujcich and Mate Tolj. Mr Joseph wanted to keep clauses 6 and 8 but it is not clear from the file note whether those clauses were references to clauses 6 and 8 in the 2004 will or clauses 6 and 8 in the draft 2011 will. This made a difference as to who the beneficiaries in those clauses were.
[73] The general impression to be gained from the file note made of the 10 December 2012 attendance is that matters regarding Mr Joseph’s will had not advanced from the earlier attendances that had led to the draft 2011 will. Mr Lucas saw the proposed changes indicated at the 10 December 2012 attendance as “playing with its structure slightly”.26 I disagree. Mr Joseph was looking at changing the executors/trustees. He was still unhappy with Katarina Grbavac’s brother and the thought he might receive a benefit from the will indirectly through the gifts left to Katarina Grbavac. Mr Joseph was now thinking about selling the orchard.27 He and his wife had first started thinking about making new wills in March 2011, by September 2012 her will was executed whereas the general impression that I have regarding Mr Joseph was that while he wanted to revoke his will he was almost back at square one when it came to making a new will.
[74] The indecisiveness this impression projects is not consistent with how witnesses described Mr Joseph in his earlier years.28 It may be that he was simply taking a longer time than he would have done earlier in his life to make up his mind about a new will, or such indecisiveness may have indicated a problem with his capacity to make the type of decisions that a new will required.
Room for confusion
[75] Mr Joseph’s understanding of his will and the idea of changing it was not helped by the way in which he was given legal advice on this topic. As at 10 December
26 See evidence below at [75].
27 In evidence Mr Lucas said the reference in the file note to “far better to sell” was a record of Mr Joseph expressing this view about the orchard.
28 There was common agreement among all witnesses that during his working life Mr Joseph was someone who knew his own mind, was a smart astute businessman and he was decisive.
2012 the 2004 will was the operative will. The 2011 draft will had been sent to Mr Joseph for his consideration in April 2011 and there was a further attendance in May 2011. The first question is, which will is being referred to when the 10 December 2012 file note says “wants to revoke will”. Logic would suggest it is the 2004 will because that was the legally operative will, but that is not how Mr Lucas saw matters:
Q… “keep clause 6, keep clause 8”. Now that could only refer to clause 6 and 8 of the 2004 will, could it not?
ANo, because he was looking at the draft I had sent through, which had clause 6 and 8 with the changes that had been made on his instructions.
Q Which dovetails right into the question that Her Honour put to you, which is how would you know? How would you know that he wasn’t looking at the 2004 will, because he says, “Wants to revoke will.” He doesn’t say, “Wants to keep the draft,” that you sent through. And I put to you, again, that if someone came in afterwards trying to ascertain testamentary intention, and tried to interpret your file notes, it would be, “Wants to revoke will,” which could only be the 2004 will, “Wants to keep clauses 6 and 8,” of that will.
ANo, because we’re talking about the draft I had sent through, and then the letter I reported, my reporting letter to Mr Grbavac attached the updated draft with the two trustee changes that he wished to make and incorporated the changes to clauses 6 and 8 that we’d discussed.
QWell, where does it say in your file note that you are discussing the draft that you had sent through earlier?
A It doesn’t.
Q Well, why do you record, “Wants to revoke will?”.
A Because that would be the effect of signing a new will. THE COURT:
QWell, you’d had a meeting in 2011, and from that you’d sent a draft will?
A Yes, Ma’am.
Q If he knew what was going on, I would have thought at that point he would know he had a 2004 will, he had a new will, which followed his meeting with you in 2011 and he would either be wanting to say, “I want to execute the new will that you’ve sent me,” or he might be saying, “I want to alter the new will that you’ve sent me,” but it doesn’t make sense for him to be saying, “I want to revoke my will,” at this point in time, December 2012, given the meeting in 2011, and the sending of the will that followed in 2011. [The 2011 will was sent on 6 April 2011].
AFor me, Ma’am, it follows that if he signs the new will he has, in effect, he’s obviously revoking the prior will. And as far as I was concerned we were talking about the draft and he was playing with its structure slightly.
QThere’s nothing in the file note that refers to the discussion about a draft will?
A No, there isn’t, Ma’am.
QAnd on one view this could suggest he had in mind he was talking about the existing will, the 2004 will, and had had a new idea that he wanted to revoke that, having not actioned what had happened the previous year in 2011?
AI regard it as part of the continuum Ma’am. The man was making up his mind.
[76] The difficulty with the 10 December 2012 file note is that if the references to keeping clause 6 and 8 are read as references to the 2004 will that would leave Nikolas included as one of the beneficiaries, because he is a named beneficiary in clauses 6 and 8 of the 2004 will. The draft will of 2011 which was not executed removed Nikolas from clauses 6 and 8. If Mr Joseph was referring to the draft 2011 will the effect recorded in the 10 December 2012 file note would be him confirming the instructions given earlier for the drafting of the 2011 will that he wanted Nikolas removed as a beneficiary from clauses 6 and 8.
[77] The letter dated 13 December 2012, which followed the meeting on 10 December 2012, does not throw any light on matters. The letter refers to the meeting of 10 December 2012. It refers to a further draft will which Mr Lucas had prepared and included with the letter. Regrettably, the 2012 draft will was not in evidence.
[78] Some description of the effect of the 2012 draft will is given in the letter dated 13 December 2012, which is all that can be known of its contents. Mr Joseph is told that the number of executors/trustees is reduced to two now being Dr Vujcich and Mate Tolj.29 The gift of a motor vehicle to Voislav Ujdur had been deleted because Mr Joseph did not then own a motor vehicle. Mr Joseph is told that in general terms
29 Voislav Ujdur and Mr Behrent were to be removed as executors/trustees.
the gifts contemplated by “your will” are those that have appeared in earlier versions of your will. Certain gifts are then listed:
(a)“Katy” receives the property at Royal Road;30
(b)“Katy” receives an income for her lifetime of the Chorley Avenue shops;
(c)“Katy” has a share of the balance of your estate which is divided into two parts, the first to Katy and the second to your nieces and nephews.
[79] The gifts in the 2011 draft will and the 2004 will were more extensive than what is set out above. Either the 2012 draft will reduced the gifts or the 13 December 2012 letter does not provide a comprehensive explanation of the gifts set out in the 2012 draft will.
[80]The 13 December 2012 letter then states:
If this will is acceptable, would you please let me know and Marie-Louise (Ms Bullot) and I will call out to witness your signature of this document.
[81] The letter does not identify who the nieces and nephews are to benefit under the draft will and those who have been excluded:
QNow if you go to [the letter dated 13 December 2012], in general terms, the gifts contemplated by your will are those that have appeared in earlier versions of your will. Where does it say here that Nikola is out?
A It doesn’t.
QNo but you said this letter made clear your instructions as recorded in your letter of – of your file note of 10 December.
A It has attached to it the draft will that I prepared. Q Does he sign this?
A Excuse me?
Q Does he sign this will?
A No.
[82]The December 2012 will was never executed.
30 The reference to “Katy” is to Katarina Grbavac Mr Joseph’s wife.
Finding
[83] Maintaining a grip on the various similarities and differences of the 2011 and 2012 draft wills and the 2004 will at times posed problems during the hearing. How a 91-year-old man with poor health, hearing difficulties, vision problems and a box of the papers sent to him over time by his solicitors, kept tabs on the meaning and effect of the draft wills and the letters that accompanied them is hard to imagine. The pattern of conduct throughout 2011 and 2012 involved attendances to take instructions for a new will. Other ideas such as a gift to a charitable trust were ignored and left to languish by his solicitor. Once a new will was drafted it was sent out with an accompanying letter for him to consider. No-one from his solicitor’s office went out to see Mr Joseph again to sit down with him to see if he fully comprehended what the latest draft proposed. Instead, it was left with him to contact the solicitor to take matters forward, and throughout this time he did not. Instead after some time had passed this round would start again.
[84] Mr Lucas in evidence described what was happening as a “continuum” with Mr Joseph in the process of “making up his mind”. That is not how I see what was happening throughout this period. The evidence does not support there being a continuum that over time is advancing progressively to the execution of a new will. Rather, the evidence suggests that the parties were stuck in the same loop; commencing discussions, producing a draft and repeating, each time starting from scratch and never progressing beyond the production of a draft.
Ms Bullot assumes sole responsibility for will instructions
Events around February 2013
[85] At some point in early 2013, Ms Bullot assumed sole responsibility for attending on Mr Joseph. It is not clear exactly when or why that happened.
[86] The events of 2013 directly lead to the execution of the 2013 codicil in June 2013. However, the record keeping here is extremely poor. In early 2013 Mr Lucas withdrew from attendances on Mr Joseph. From then on Ms Bullot is the person who had direct contact with Mr Joseph at all relevant times. As mentioned earlier,
Ms Bullot did not keep file notes. Accordingly, it is necessary to look at other evidence that is available and to draw available inferences, where that is possible.
[87] The first recorded step in 2013 is a meeting on 12 February 2013 that can be learned from the fees ledger. The ledger states “meeting mlb” which is a reference to Ms Bullot. She is referred to throughout the fees ledger as MLB. Mr Lucas’ initials are also recorded which means he was the person recording time spent at the meeting with “mlb”. The fees ledger records the meeting taking 18 minutes. There is no file note by either Mr Lucas or Ms Bullot setting out what happened at this meeting or its outcome. However, as only Ms Bullot had contact with Mr Joseph about his will the meeting may have been to discuss her assumption of sole responsibility for this task. As at 12 February 2013 there is no record of Mr Joseph contacting his solicitor about a new will. This is despite Mr Joseph having received a new draft will with the letter sent to him on 13 December 2012.
[88] The next recorded step is a letter in evidence dated 19 February 2013 written by Ms Bullot to Mr Joseph, which refers to her visiting him at home recently to discuss his will. The letter does not refer to the date when this visit happened. The fees ledger does not record: (a) any telephone call or other step that may have prompted Ms Bullot to meet with Mr Joseph; (b) an attendance by Ms Bullot on Mr Joseph before the date of the letter, or (c), the preparation of this letter. There is nothing else in evidence to throw any light on how the undocumented meeting came about, nor the letter that followed it.
[89] Because no file notes have been kept, it is not possible now to know whether the letter of 19 February 2013 refers to the last attendance Mr Lucas and Ms Bullot made together on Mr Joseph on 10 December 2012, or some later occasion prior to 19 February 2013, that for some reason was not recorded in the fees ledger. Mr Lucas could throw no light on what might have happened:
QBy 19 Feb 2013, if you go to 907 [in the common bundle]. This is a letter from your firm signed by [Ms Bullot]. Was your practice to read correspondence before it went out?
AWe had discussed that, what, the process. I was aware that for a variety of reasons I’d asked Marie-Louise to step into dealing with Mr Grbavac, as we were a bit, I was a bit stretched at that time, and it
seemed to me that she had had the longer relationship with him, and she was the reason he came to the firm.
QWell, this records, “After visiting you at your home.” Were you part of that visit?
A No.
QAnd whatever arose out of that visit, we do have more changes now, in that Mirko is also to become a trustee?
A Correct.
Q And we have a new change now in that Milka is out? A Correct.
Q And Peter Vujcich is in? It’s Dr Vujcich. A Correct.
QAnd he was still thinking who the third beneficiary would be, and then you come down – so those are in relation to the shops?
A Yes, correct.
Q Yes, and then you come down, and Dragica is out? A Correct.
Q Of the residue, and Nikola is out of the residue? A Yes.
Q So we have yet more changes?
A Well, as I say, there was an evolution taking place.
Q You can’t speak to that because you weren’t at the meeting? A No, I wasn’t.
[90] Mr Lucas talks as if he accepts there was a specific meeting between Mr Joseph and Ms Bullot in 2013 before she wrote the letter of 19 February 2013. Earlier, although referring to himself, in answer to a question regarding how good the time keeping records were Mr Lucas described himself as “obsessed with time records”. It is somewhat surprising, therefore, that his legal executive was not expected to record her time more assiduously than the omissions in 2013 would suggest she did. By then she had been working for him since 2006.
Finding
[91] The description of the proposed changes in the letter of 19 February 2013 shows further changes to the trustees/executors and the beneficiaries. There is no mention of the 2012 draft will prepared after the meeting on 10 December 2012 when Mr Lucas and Ms Bullot attended on Mr Joseph, and which was sent to him with the letter dated 13 December 2012. That was seemingly put to the side. Whilst Mr Lucas maintained his view that there was an “evolution taking place” it looks to me as if Ms Bullot was starting from scratch with the proposals set out in the 19 February 2013 letter.
What does the letter of 19 February 2013 represent?
[92] Ms Bullot said she would destroy any contemporaneous notes she had taken once she had actioned whatever she had recorded in those notes. Accordingly, working backwards the contents of the 19 February 2013 letter should reflect what was discussed at the unrecorded meeting. The contents of the letter provide more comprehensive advice than appears in Mr Lucas’s letters to Mr Joseph, which suggests the meeting took some time. This makes it even more surprising there is no time recording of it in the fees ledger.
[93] The 19 February 2013 letter contrasts what Mr Joseph’s “will” currently does and his proposed alterations. The letter does not identify the will to which this reference is made, but it is clear from the descriptions in the letter that Ms Bullot is referring to the 2004 will. She identifies the four executor trustees who were named in the 2004 will.31 She notes the current will leaves a motor vehicle to Voislav Ujdur but there is no longer a motor vehicle and so the bequest will be deleted.32 She also identifies the interests in the commercial property and residuary of the estate as they
31 Ms Bullot notes “you advised you wish to delete Voislav Ujdur and Barry Behrent as trustees and you wish to add Mirko Ujdur as a trustee”. This is a further change from what was being discussed in 2012 as then the idea was to remove Mr Behrent and Voislav Ujdur without adding any new person as executor/trustee.
32 Mr Lucas said in evidence that the draft 2012 will did the same for the same reason.
were set out in the 2004 will.33 She then proceeds to record Mr Joseph’s advice that he wanted to delete “Milka Petricevich” and “Nikola Grbavac” as beneficiaries of the commercial property and instead wanted one of the available shares to go to Dr Vujcich and was yet to decide who the third beneficiary would be, and that Mr Joseph “wished to delete Dragica Behrent and Nikola Grbavac” as beneficiaries of the residuary of the estate and was “to consider if there were to be any other beneficiaries under this clause”.
[94] The letter ends, “Although I am not sure who mentioned it, but my notes indicate that Mate Tolj was mentioned as a possible beneficiary. Do you wish to consider him in this regard?”. The reference to the uncertainty as to who mentioned Mr Tolj as a possible beneficiary suggests the idea may have come from someone other than Mr Joseph, which would leave either Ms Bullot or the possibility of a third-party having input into the discussion of who else might benefit under the new will. The failure to keep full notes means there is no record of who was present at this meeting.
[95] Ms Bullot gave evidence that she had met with Mr Joseph some time before she wrote the letter of 19 February 2013, she did not attempt to put a date on when that meeting happened. She said the letter of 19 February 2013 set out Mr Joseph’s instructions as advised to her by him. She said he contacted her by telephone to talk about changing the executors and trustees of his will. However, there is no record of him doing so. She said he then decided to adjust the number of beneficiaries under his will. Ms Bullot did not say when this decision was communicated to her. She said Mr Joseph was very clear about whom he wished removed from the list of beneficiaries, but she could say no more than that. When asked whether he wanted to replace beneficiaries with other beneficiaries she said he replied, “I will think about it”.
33 The 2004 will left a life interest in the commercial property to Mrs Grbavac and following her death the property was to be transferred in one-third shares to Matilda Botica, Milka Petricevich and “Nikola Grbavac”. Ms Bullot in her letter however, did not make it clear whether the “Nikola Grbavac” to which she refers is Mr Nikola or Nikolas. The letter goes on to say the residuary estate is currently left to Katarina Grbavac as to one-half share, with the other one-half share to be shared equally between Millie Vujcich, Dragica Behrent, Voislav Ujdur, Mirko Ujdur and “Nikola Grbavac”. Together, these descriptions identify the “current will” she is discussing as being the 2004 will and not the draft produced in 2012.
[96] In answer to questions from the Court Ms Bullot outlined her usual practice if someone was going to change their will, which involved her writing the changes on the existing will. She said she followed this practice with Mr Joseph in 2013, but she did not refer to a copy of the will on which she recorded the changes:
Q.Well, what did he tell you? can you recall now what the late Mr Grbavac said to you or not?
A. The 2004, which set it all out that he had signed, my practice was if somebody was going to change their will, their power of attorney, their document I would take a copy of it with me and would write on the will, cross people’s names out or add them in and that was how I’d say right what about this person? It might be a tick or whatever. But it was always, I used the basis of the existing will so that all points were covered in the same way.
Q. So when you discussed it with the late Mr Grbavac, what did you actually say, when you read it out?
A.Well, I can’t remember my exact words obviously, but I would have said, “you have so-and-so and so-and-so in here do you wish them to remain?” And he would have said to me yes or no.
Q. So you’d give the names?
A.Yes I’d give the names and if he said yes I would, possibly a tick but, if he said no I would put a line through them so that when I went back, I knew from those instructions.
Q.Well we don’t have the will you would have written on this way do we now?
A. Not that I am aware of.
[97] However, in the course of re-examination of Ms Bullot some unexpected evidence about the meeting that pre-dated the 19 February 2013 letter emerged. Ms Stevenson, took Ms Bullot to document 909 in the common bundle which is a copy of the 2004 will, and asked her whose handwriting was on the document. Ms Bullot said it was her handwriting with her changes on it. When asked “what do the changes reflect?” her answer was, the “new instructions I had received from Mr Grbavac to do a new codicil”. She was asked if she could recall when she produced the document and she said “when I was receiving instructions from Joe at his house which will be the – in the time records I would expect”. There was no notation on the document itself to record when the alterations were made or who was responsible for making them. Nor was her expectation that the meeting at which she received the instructions
referred to in the 19 February 2013 letter correct. There is no record in the fees ledger of such time being spent with Mr Joseph.
[98] It is surprising that in a case involving so much documentary evidence and testimony from numerous witnesses, that the key person who saw the codicil executed and earlier took instructions for the preparation of the changes to the will did not in her evidence-in-chief identify relevant contemporary documents (particularly given there are so few) that might throw some light on what occurred when she met with Mr Joseph to discuss changes to his will. The practice of writing changes in wills that Ms Bullot followed came to light through questions from the Court. The existence of the 2004 will with Mr Bullot’s handwritten notes on it came to light through re-examination following the Court’s questions.
[321] The letter of 19 February 2013 suggests more beneficiaries were being removed than previously, and others were going to be added. Yet again nothing was done to advance those discussions. The impression I have is that Mr Joseph may have been overwhelmed by the weight of the decisions these various thoughts on will revision had generated for him. By now he had been looking at revising his will since 2011. The various changes that were contemplated were never advanced beyond the stage of either expressed ideas recorded by his legal advisers or being put into draft wills. Each change often had the effect to some extent of taking matters back to the beginning when it came to appointment of executors/trustees or nominating beneficiaries. None of this is consistent with Ms Bullot’s description in her written brief of evidence of her experience of Mr Joseph over the years being that he was a man “who did not change his mind repeatedly” and being the type of person who “once he made a decision and he told me what he wanted it was a straight forward exercise for me to finalise the draft and take it to him”.83 Although Ms Bullot said this was the
79 The proposed changes to the will in December 2012 and February 2013 also had the effect of removing Voislav Ujdur and Mr Behrent as executors/trustees under the 2004 will.
80 See [162] herein.
81 See [162] herein.
82 See [162] herein.
83 This impression of Mr Joseph is confirmed by Mr Ujdur who described Mr Joseph as determined and a man who knew his own mind: see [232] herein.
case for the 2013 codicil as well, I do not consider that it was. Once the entire lead up to the codicil is considered Mr Joseph’s conduct looks very different from the decisive man she knew earlier on. I also note that as early as May 2011, Mr Lucas had recognised that a change from disposition of property by will to disposition of property by gift to a charitable trust was something beyond Mr Joseph’s capacity. The indecisiveness and lack of action on the various will revisions is consistent with Mr Joseph struggling here as well because of a lack of testamentary capacity
[322] When set out as I have done here, the process of producing various draft revisions that were never executed (up until the 2013 codicil) and which each removed various beneficiaries and trustees can in no way be viewed as a continuum that was progressing toward a new will, as was often said by Mr Lucas in his evidence. Rather this was a circular process that repeated itself many times over and this in and of itself is contrary to what would be expected of a man in control of the production of his will and in particular the decisive and astute businessman I am satisfied that Mr Joseph was at early stages of his life.
[323] A lack of capacity to carry thoughts through to their execution may explain why later in 2013 around May there was the idea to move from revising the will to making a codicil.84 It is difficult to see why after spending two years on preparing new draft wills there was a move to a codicil. The letter written to Mr Joseph on 16 May 2013, after the unrecorded meeting of 3 May 2013, tries to keep matters simple by sending him two alternative codicils one that reduces the number of executors/trustees from four (under the 2004 will) to three and another which in addition to that change also removes three beneficiaries. The letter provides the explanation that the second alternative removes persons he does not want to benefit, and if he thinks there are insufficient beneficiaries he can add them later. The explanation suggests that Mr Joseph may have been having difficulty deciding what outcomes he wanted. The wish to add other persons, which was shown in the letter of 19 February 2013, was seemingly still present as at 16 May 2013. However, no further persons were added as beneficiaries.
84 See [158] and [159] herein.
[324] After the 2013 codicil was executed the evidence from then on, which covers 2014 up to Mr Joseph’s death in 2015, reveals nothing about him wanting to do anything else in relation to his will. Despite the expression in the letter of 16 May 2013 about discussing the addition of other beneficiaries at a later date, nothing eventuates from this, which suggests he may have lacked the capacity to take steps to progress those ideas further. There is no evidence that Mr Joseph ever raised this matter again. In principle this could indicate he was content with the outcome of the 2013 codicil. However, against the background of relevant circumstances leading to the codicil’s execution it could equally indicate that at the time he executed the 2013 codicil he lacked capacity to follow through on his idea to add more beneficiaries.
[325] There are no documented reasons for why Mr Joseph made the changes in the 2013 codicil. There is no evidence to suggest that during the course of the proposed changes to his 2004 will Mr Joseph was asked why he wanted to remove certain beneficiaries and to add others. Nor is there evidence to suggest that Mr Joseph understood the nature and effect of the 2013 codicil in contrast with the nature and effect of the dispositions under the 2004 will. Initially, under that will he had recognised a wide number of his nieces and nephews having a claim to receive something from his estate. The 2013 codicil significantly reduced the pool of beneficiaries at a time when his estate would have been more valuable than it was in 2004, and therefore there was more to distribute amongst family members than previously.
[326] In evidence the suggested reasons given by family witnesses were that he was unhappy with Mr Behrent, the husband of Dragica, in connection with the 19 April 2012 power of attorney, but there was no evidence he ever viewed Dragica Behrent in a poor light. She gave unchallenged evidence of being the person who took Mr Joseph to many of his hospital appointments and she explained to him later what the doctors were saying. This was because his hearing was poor and he did not like to reveal he had difficulty understanding the doctors. She attended family meetings concerning Mr Joseph’s health right up to his death. There is nothing to explain why in 2013 he decided to remove her as a beneficiary.
[327] Mr Joseph was said by Dragica Behrent and by Mirko Ujdur to be unhappy with Mr Nikola, the father of Nikolas, about how Mr Nikola was managing a family company called Nikola Properties Ltd, in which Mr Joseph had an interest. However, this does not explain the removal of Nikolas as a beneficiary. Mr Nikola was removed as a beneficiary in the 2004 will when he was replaced by his son Nikolas. At that time whatever reason there was for Mr Joseph removing Mr Nikola had not influenced him against Nikolas. There was no evidence to suggest Mr Joseph viewed Nikolas poorly.
[328] There is no evidence of Mr Joseph having a rift or perceived rift with Millie Petricevich or her husband Ratomir Petricevich. However, Mirko Ujdur offered the explanation that of the two sisters, Millie Petricevich and Matilda Botica, Mr Joseph was unhappy with the way Millie Petricevich had treated her mother and had approved of how Matilda Botica had treated her.85
[329] The evidence regarding family tensions was more extensive than the brief overview I have given. I have not spent much time on this evidence because ultimately its use can only lead to conjecture and speculation to explain why Mr Joseph may have wanted to exclude those beneficiaries. The evidence available to me does not directly inform me as to what Mr Joseph’s reasons might have been, nor does this evidence provide a proper foundation from which I might infer those reasons.86 Moreover, even if regard is paid to this evidence it casts no light on why Mr Joseph would have excluded three of the former beneficiaries from his will.
[330] In Re Rhodes Hammond J found that abrupt and unfair changes to a will require fuller and clearer evidence of capacity.87 I agree with that reasoning. In Loosley v Powell the Court of Appeal referred to the numerous authorities where “A major change of testamentary disposition has been seen as supporting an inference of
85 This evidence was given by Mr Ujdur under cross-examination and by this time Mr Petricevich had given his evidence. So, the plaintiffs’ counsel had no opportunity to raise it with Mr Petricevich. The topic was not put during the cross-examination of Mr Petricevich for him to comment on, if he could. No application was made to recall Mr Petricevich.
86 See Caswell v Powell Duffy Associated Collieries Ltd [1940] A.C., 152 at 169 where Lord Wright said "...inference must be carefully distinguished from conjecture or speculation and there can be no inferences unless there are objective facts from which to infer other facts which it is sought to establish.”
87 In the Estate of Ethel Mary Rhodes, Collier v Meads HC Wellington, CPA25/02, 7 March 2002.
incapacity in the absence of an adequate explanation”.88 The removal of Nikolas, Dragica Behrent and Mrs Petricevich was abrupt (they had been beneficiaries in the 2004 will) and given the effect on them it was unfair. Their removal came without any background that could explain why this decision was made. The removal of Mrs Behrent and Mrs Petricevich was not contemplated until 2013. The removal of Nikolas was mooted in 2011 and 2012, but no steps were then taken to achieve that end. It also was not accomplished until 2013.
[331] Further, the effect of removing the three beneficiaries was that the pool of beneficiaries was reduced at a time when the estate was at its most valuable. The earlier wills had given gifts to the members of Mr Joseph’s extended family. The earlier wills had often favoured members of the preceding generation, but as those members had died the successive wills had focussed on subsequent generations with the will of 2004 having achieved a generous spread of gifts among his many nephews and nieces. Given the general accounts of him being a warm and generous man who as an individual and a Dalmatian valued family it is difficult to understand why at the last stages of his life, without apparent reasons, he would chose to execute a codicil that excluded some family members who had previously benefitted under his 2004 will and therefore to favour more those fewer family members, who remained as beneficiaries. In Loosley v Powell the Court of Appeal held that the nature and reasons for major changes in a will are part of the relevant factual matrix for assessing capacity and that while apparently rational change can support capacity being present apparently irrational changes can undermine capacity. Here there is an absence of evidence to show changes made by the 2013 codicil were rational. Given the factual matrix as established by the evidence those changes appear out of character for Mr Joseph and seeming irrational.
[332] There is also a separate question as to whether Mr Joseph properly understood that the “Nikola Gbrbavac” who was removed from the 2004 will was his great- nephew Nikolas. The 2004 will referred to “Nikola Gbravac son of Nikola Gbravac”. In fact, the son of Nikola Gbravac is called Nikolas, so the 2004 will misspelt his name. Without good records to show it was being clearly explained to Mr Joseph
88 Loosley v Powell at [32].
between 2011 and 2013 who this person was, it is possible the spelling mistake led to him confusing Nikolas with his father Mr Nikola. In her evidence Ms Bullot said she did not realise that the “Nikola Gbravac son of Nikola Gbravac” referred to in clauses 6 and 8 of the 2004 will was in fact Nikolas. Some time was spent during the hearing exploring with witnesses whether Mr Joseph may have been confused as to whether he was excluding the father (whom he had excluded in 2004 when that will was first executed) or the son, whom in 2004 he decided to include in the will as a substitute for the father. Ultimately, I have made no determination on this issue because I have not found it necessary to do so. The weight of all the evidence I have considered is enough to raise lack of capacity as a tenable issue without recourse to this issue.
[333] The expert opinion evidence from Dr Duncan was that persons who have end stage renal failure can suffer cognitive impairment. Also, of persons who are in their nineties, 30 per cent can have dementia. Neither expert could diagnose Mr Joseph as having a serious cognitive impairment. However, the more general evidence from Dr Duncan is helpful insofar as it is not at odds with the inference that here, against the background of all the available evidence, lack of capacity is a tenable issue.
[334] For all the above reasons I am satisfied that here lack of capacity is a tenable issue, both at the time the 2013 codicil was executed and earlier when it was prepared. Once lack of capacity has been found to be a tenable issue the onus of proof then moves to the party seeking to propound the will to prove Mr Joseph had testamentary capacity.
Can the defendants prove Mr Joseph had testamentary capacity?
[335] The defendants’ expert evidence from Dr Casey was that Mr Joseph did not have a serious cognitive impairment. But her conclusions on capacity being present were based on there being nothing to displace the notion it was not present.89 That does not assist here now that the onus of proof has shifted to the defendants.
[336] The evidence of Mr Lucas and Ms Bullot does not assist the defendants either. The same criticisms that have been made of their evidence earlier on apply here as
89 See [295]-[299] herein.
well. There is no contemporary evidence that supports Mr Joseph having testamentary capacity when he executed the 2013 codicil. I do not find the ex post facto accounts provided in evidence by Mr Lucas and Ms Bullot to be reliable for the reasons expressed earlier on herein.90 There is simply not enough evidence to support the view that either of them were making accurate assessments of Mr Joseph’s capacity on any of the occasions when they met with him about the revision of his will. The same applies in relation to Ms Bullot when she attended the execution of the 2013 codicil. I am not persuaded by the idea that the long-time frame between 2011 and June 2013 is evidence of Mr Joseph thinking carefully about how he would dispose of his estate under his will. That is one possible interpretation of matters. However, I find other interpretations that are consistent with him lacking testamentary capacity in June 2013 to be more probable.
[337] There is no evidence here, of the type recognised in Loosley v Powell, of matters that are indicative of capacity. There is no contemporary evidence of any specific enquiry into the rationale for the changes brought about by the 2013 codicil or whether there was such a rationale. Here, unlike in Loosley v Powell, the 2013 codicil was not a dead bed change to the will by an acutely ill person. However, much of the reasoning in that judgment can be applied to circumstances where the will- maker has been chronically ill for some time and there are various flags as to whether he has capacity to make the significant changes that will result.
[338] Dr Casey said in her evidence that she considered Mr Joseph was taking his time thinking about how to dispose of his estate given the ill health he had experienced in early 2012 when there was a significant deterioration in his kidney function. She said she had often seen elderly ill people behave in that way. However, her assessment in this regard seems to have been based largely on the defendant’s written evidence, which gives this impression of Mr Joseph. However, to reach this point Dr Casey had also assumed that after proper reflection neither Mr Lucas nor Ms Bullot had seen anything about Mr Joseph that caused them to doubt he had capacity. I do not see the evidence pointing that way. Had there been contemporary notes that recorded instances of Mr Joseph on sequential occasions discussing his will revision with those
90 See [123]-[125]; and [142] herein.
persons in a way that revealed he had read and understood the draft will he had received and had thought further about what he wanted to provide for in his will this would provide convincing support for Dr Casey’s view. However, there is no such evidence.
[339] Given Mr Joseph’s poor vision, poor hearing, elderly age and ill health together with the seeming absence of any response from him on each draft he received or letter he received outlining possible gifts, I do not consider it can be assumed that over the period from 2012 to June 2013 he was actually reading, comprehending and forming views on the draft wills or letters on testamentary gifts, nor can it be assumed that he was receiving and holding those views in his head in a way that would have allowed for a rational development of how he wanted his estate to be distributed under a will. From the evidence that is available to me I am satisfied that the will revision process proceeded in a stop start manner with each engagement with his lawyer and legal executive appearing to involve Mr Joseph starting from square one again. Given the length of this process, it is not consistent with someone who had capacity to make a will. More importantly, it is not consistent with Mr Joseph’s usual conduct of his affairs prior to this period.
[340] I also consider that the meetings in March and April 2012 had pointers that show others around Mr Joseph were concerned about his capacity either then or in the near future. Mr Lucas took a draft will from 2011 with him. Mirko Ujdur asked Mr Lucas to take steps to remove Mr Joseph as a trustee of the Ujdur family trust. Mr Lucas and seemingly the family members present saw the need to persuade Mr Joseph to grant a power of attorney to Mr Behrent despite Mr Joseph’s concerns about him. Mr Joseph had just recently been discharged from hospital where he had been very ill. He and his family had been told he had terminal end stage kidney disease. No-one at the time would have had any idea of how long Mr Joseph might live or what his condition would be like in the future. In such circumstances it could be expected that Mr Joseph would approach the question of making a new will, if he had capacity to progress this event, with some urgency in case his health declined further. Yet rather than work on a new will proceeding apace nothing happened until 24 September 2012 when there was the attendance for Katarina Gbravac to execute her will and Mr Lucas at that meeting formed doubts about Mr Joseph’s capacity.
Against this background Mr Joseph does not appear to me to be someone with capacity who was carefully thinking about what the shape his new will should be. If he was in that state I would have expected him to be pushing for the new will to be completed so he knew it was done before any further adverse health event overtook him.
[341] This is not a case like Public Trust v Dollimore where someone who had a form of dementia was found to have capacity on the day she presented to the Public Trust Office to make a will. In Dollimore Simon France J took into account the specialist expertise of the persons employed at the Public Trust Office to prepare wills. He noted that the Public Trust officer interviewing Ms Dollimore had 37 years’ experience and had been involved in the preparation of “hundreds or possibly thousands of wills”, and this officer considered he had received valid will instructions during an interview where there were no flags regarding her capacity.91 This was also a case where Ms Dollimore had presented to her doctor as not possessing any confusion the day prior to interview, and where the resulting will was rational on its face. In those circumstances France J found Ms Dollimore to have had testamentary capacity.
[342] Here, there is nothing to suggest to me that Ms Bullot had comparable expertise to the Public Trust officer in Dollimore. Rather, the way in which Ms Bullot and Mr Lucas operated suggests that, unlike this Public Trust officer, Ms Bullot had not prepared hundreds or thousands of wills and was not in a role where assessing capacity was a common task for her (or at least she was not aware it was a task she should be undertaking when attending the execution of wills for elderly clients). There is also a vacuum of knowledge created by the absence of contemporary records showing what transpired when the 2013 codicil was executed and earlier when Ms Bullot had the telephone conversation with Mr Joseph about which codicil option he wanted to execute. I am not prepared to fill this vacuum by assuming that the 2013 codicil was executed in the presence of a very experienced and well qualified professional person who could be relied upon to have taken the proper steps before the execution or preparation of that document. The evidence available to me on how Ms Bullot and Mr Lucas conducted themselves in relation to this matter does not give me the confidence to draw such assumption. The approach of both to the will revisions was
91 At [115] and [120].
casual, which is demonstrated by their poor record keeping and poor follow up once they had commenced a particular revision. The idea that simply posting two alternative codicils to Mr Joseph for him to decide for himself which of the two he wanted to execute rather than take the two codicils to the meeting with him on 25 June 20913 so that he could be adequately advised on the effect of either and then make an informed choice displays a casual approach which had no regard for how he then was.
[343] For completeness, I note that the other features present in Dollimore are also absent in this case. There is no evidence from medical professionals attesting to Mr Joseph’s capacity in the days leading up to the execution of the will. This is a case where there is a complete absence of medical evidence that would support a finding of competence, and a mass of evidence from hospital attendances, friends, family and Mr Joseph’s conduct that together support a finding of a lack of testamentary capacity. Nor was the codicil that resulted rational having regard to the previous wills that sought to make relatively even distributions to Mr Joseph’s extended family. In short, the absence of evidence identifying cognitive impairment is insufficient to discharge the burden that has shifted to the defendant executors/trustees.
[344] Action taken by a prospective will-maker to initiate a new will or will revision is typically consistent with him or her having the capacity to make that will. Here, there is no contemporary evidence to show who was telephoning whom or otherwise arranging the meetings about the various will revisions, including what became the 2013 codicil. In such circumstances I am not prepared to assume it was Mr Joseph who was the person driving this process.
[345] Accordingly, I am not persuaded to the civil standard of proof that Mr Joseph had testamentary capacity in June 2013 when he executed the 2013 codicil. Nor is there evidence to suggest that, relevant to the principles in Parker v Felgate, he had testamentary capacity earlier when Ms Bullot met with him in May 2013 and obtained instructions to prepare the 2013 codicil.92 Given the absence of evidence to describe how that meeting was managed and, in particular, whether it was conducted in a manner consistent with the principles approved of in Woodward v Smith, I have no
92 Parker v Felgate, n 7.
basis for concluding (to the civil standard of proof) that Mr Joseph would have had testamentary capacity then either.
[346] It follows that when Mr Joseph executed the 2013 codicil there is nothing to establish on the balance of probabilities that he had testamentary capacity. As the burden of proof has shifted to the defendants this means they have failed to discharge the burden of proof that they bear. It follows that the 2013 codicil is invalid.
[347] It also follows that the plaintiffs are entitled to an order recalling the grant of probate of the will of Joseph Grbavac dated 15 November 2004 insofar as it was amended by the 2013 codicil.
[348] The parties were agreed that if the 2013 codicil was found to be invalid the 15 November 2004 will, as it was executed at that time, is the last valid will of Joseph Gbravac. It follows therefore that a grant of administration to the named executors and trustees of that will in its original form should issue.
Post-trial events
[349] After the trial it came to my attention that the proceeding was only formally served on the defendants, and the beneficiaries had not been ordered to be served.
[350] There was a face to face conference on 30 August 2019, which was preceded by memoranda from the parties on the topic of the impact of the beneficiaries not being formally served. Following that conference further evidence and a memorandum were filed.
[351] The plaintiffs maintained it was the responsibility of the defendants to keep the beneficiaries informed of the proceeding and that the plaintiffs were under no legal obligation to obtain directions for service on the beneficiaries. The defendants disputed the notion that they were responsible for keeping the beneficiaries informed about the proceeding but said they had done so nevertheless. They filed affidavits from each of the executors/trustees which outlined the steps each of those persons had taken to inform the beneficiaries about the proceeding. In addition, Mr Lucas provided
a memorandum in which he outlined the steps he had taken as solicitor acting for the defendants to apprise the beneficiaries of the steps the defendants were taking.
[352] I acknowledge there appears to be no procedural rule or case-law directly on point that would establish the beneficiaries should have been served with the proceeding.93 On the other hand, it seems to me to be preferable that where persons are at risk of a Court proceeding impacting on them, particularly adversely, they should be served with notice of the proceeding. Such notice gives them the opportunity to apply to intervene and be joined as a party should they wish to actively participate in the proceeding. In any event I am satisfied from the affidavits filed by the executors/trustees and the memorandum filed by Mr Lucas that here all relevant beneficiaries have had the proceeding drawn to their attention and they have been kept informed of the proceeding. Had they wished to intervene to defend their anticipated inheritance under the will they knew enough to have enabled them to take that step. Accordingly, I am satisfied that here the absence of formal service on the beneficiaries can have no impact on the outcome of the proceeding.
Result
[353] The plaintiffs are entitled to an order recalling the grant of probate of the will of Joseph Grbavac dated 15 November 2004 insofar as it was amended by the 2013 codicil.
[354] The 15 November 2004 will as it was executed on that day is declared to be the last valid will of Joseph Gbravac. It follows therefore that a grant of administration to the named executors and trustees therein should issue.
[355] Leave is reserved to the parties to return to Court for further orders, if required, and to file memoranda on costs.
Duffy J
93 None was drawn to my attention by any party.
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