Singleton v Marshall
[2019] NZHC 2486
•1 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-002401
[2019] NZHC 2486
BETWEEN ANN ELIZABETH SINGLETON and SUSAN HAZEL MARSHALL
Applicants/RespondentsAND
PETER JAMES MARSHALL
Respondent/Applicant
Hearing: 9, 10 September 2019 Appearances:
P J Stevenson for Applicants/Respondent C J Orton for Respondent/Applicants
Judgment:
1 October 2019
JUDGMENT OF VENNING J
This judgment was delivered by me on 1 October 2019 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: McVeagh Fleming, Auckland
Corban Revell, Auckland
Counsel: P Stevenson, Auckland
SINGLETON v MARSHALL [2019] NZHC 2486 [1 October 2019]
Introduction
[1] James Marshall died on 11 January 2018 aged 86. He left a will dated 11 April 2015 (the 2015 will) which divided his estate equally between his four adult children: Ann, Christine, Peter and Susan.
[2] In the weeks before he died another document was prepared which James did not sign but which, if accepted as representing his testamentary intention at the time, would alter the distribution of his estate in favour of Peter and Christine to the disadvantage of Ann and Susan.
[3] There are two applications before the Court. Ann and Susan apply under s 19(1) Administration Act 1969 for orders nisi for the administration of the estate pursuant to the terms of the 2015 will. Peter applies to have the document declared a valid will under s 14 of the Wills Act 2007 (the Act).
Factual background
[4] James was born in 1931. He married Shirley in 1954. They had four children and remained married until Shirley’s death in 1985.
[5] For some time there has been a tension between the four children. They fall into two camps, on the one side Ann and Susan, and on the other, Christine and Peter. Christine and Peter have had more contact with James, particularly over recent years.
[6] James made two wills: the first on 17 December 1998 and then subsequently, the 2015 will. Both the 1998 and 2015 wills provide for equal distribution of James’ estate between his four children. The only material difference is that the 1998 will appointed the Public Trustee as executor and trustee whereas the 2015 will appointed Peter as executor and trustee.
[7] On 12 December 2017 James was admitted to hospital. On 15 December, whilst in hospital, he was diagnosed with terminal cancer. James was discharged home on 22 December 2017 for palliative care. Because of his health he required assistance and care 24 hours a day, seven days a week.
[8] While at home the family prepared a roster to provide 24-hour care for James. Christine and Peter assumed responsibility for administering the roster.
[9] On the morning of 30 December there was a mix-up in the roster arrangements. Although there had been a change to the roster arrangements, Christine had overlooked telling Ann and Susan. They arrived at James’ home in the morning. Christine’s son Anton was already there and caring for James. Anton called his mother. There is a dispute between Ann and Susan and Christine and Anton as to what followed when Christine arrived at James’ home.
[10] Whatever took place on the morning of 30 December, later that day Ann sent a text to Christine which stated:
To avoid anymore animosity and hostility … Susan and I are withdrawing from the roster … we hope this will make things easier … .
[11]Ann and Susan did not see their father James alive again after that day.
[12] Peter’s evidence is that, after receipt of that text from Ann, which James learnt about, James told Peter he wanted to change his will and dictated the terms of the new will to Peter. That was later on 30 December 2017.
[13] James’ condition worsened, and he was readmitted to hospital on 1 January 2018 before being discharged again on 3 January.
[14] Peter prepared the document which he says recorded his father’s wishes. He dated it 2 January 2018 as that was the day he printed it out. He gave a copy of the document to James on 3 January when he was back at home after being discharged from hospital that day. James read it. Peter says James was happy with the document but he did not sign it.
[15] The document is in the form of a will. It names Peter as executor, provides that one-third of the fair value of James’ home is to be divided equally between Ann and Susan, and provides for the remainder of the estate to be divided equally between Christine and Peter.
[16] James’ estate is primarily made up of his home at Craddock Street and investments of $100,000 approximately. On Peter’s estimate of the value of the estate, the 2015 will would see each of the children receive approximately $354,625. If the document is an operative will then Ann and Susan’s share would reduce to $216,666 each while Peter and Christine’s share would increase to $492,583.50 each.
The application under s 14, Wills Act 2007
[17] It is convenient to deal first with the application under s 14 of the Act. If Peter’s application is successful there is no need to determine the application by Ann and Susan for administration of the estate under the 2015 will.
[18]The unsigned document dated 2 January 2018 reads as follows:
Will made by James Malcolm Marshall of Auckland, Retired, dated 2 January 2018.
Earlier Wills – I cancel my earlier Wills. Executor and Trustee – I appoint my son Peter James Marshall, the Executor and Trustee of this will.
Residue – I direct my trustee to hold the whole of my estate on trust: to pay my debts and funeral expenses, my trustee’s administration expenses and any death duty payable on my estate.
To divide the residue among my children as per the following: one-third of the fair market value of my home at 30 Craddock Street, Avondale to be divided equally between my two children, Ann Elizabeth Singleton and Susan Hazel Marshall.
As recognition for their unconditional love, support and comfort to me over many years the remainder of my estate is to be divided equally between my two remaining children Christine Jill Marshall and Peter James Marshall living at my death.
Signed by James Malcolm Marshall in our presence and attested by us in his presence.
[19]Section 14 of the Act provides:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[20] The three requirements under s 14(1) are apparent on the face of the section and were referred to by MacKenzie J in Re Campbell (deceased) as follows:1
(a)The first is that the document must appear to be a will. This requirement is concerned with the content of the document and what it conveys, rather than its form. The essential inquiry is, whether the document does any or all of the things described in the definition of the word “will” in s 8 of the Act.
The document sought to be declared valid as James’ last will meets that requirement in this case. It disposes of James’ property. If executed and witnessed it would have been a valid will.
(b)The second requirement is that the document not comply with s 11, which prescribes the requirements for the validity of wills.
The obvious defects in the present case are the lack of a signature by James and the lack of execution by witnesses.
(c)The document must have come into existence in or out of New Zealand.
1 Re Campbell (deceased) [2014] 3 NZLR 706 (HC) at [11].
The evidence is clear that the document was prepared by Peter in New Zealand.
[21] As in the case of Re Campbell (deceased) the gateway provisions are clearly satisfied.
[22] The focus in the present case is on whether, at the time the document was prepared, or later reviewed by James, he had testamentary capacity and if so, whether it represents his testamentary intentions.
Testamentary capacity
[23] The Court of Appeal in Woodward v Smith set out the established principles relating to testamentary capacity:2
[19] The celebrated judgment of the court of Cockburn CJ in the Queen’s Bench (Cockburn CJ, Blackburn, Mellor and Hannen JJ) in Banks v Goodfellow (1870) LR 5 QB 549 remains the leading authority on testamentary capacity. We paraphrase and number the propositions stated in that case at 565–8:
(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.
(3)Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But
2 Woodward v Smith [2009] NZCA 215 at [19].
[i]though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
[ii]It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
(4)It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
(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;
(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.
[24] Ordinarily, where a will has been formally executed in compliance with the requirements for a valid will, there is a presumption that the deceased possessed testamentary capacity. But if there is evidence which raises lack of capacity as a tenable issue then the onus of satisfying the Court the maker of the will did have testamentary capacity rests on those who seek probate of the will.
[25] Where a will has not been formally executed the Courts of various jurisdictions in Australia have held that the presumption of testamentary capacity should not extend.3 The due execution of a formal will, in the presence of witnesses, is considered a strong check against the making of a will by a person who lacks testamentary capacity, and thus provides the justification for, prima facie, presuming that person to have actually possessed such capacity. Where the will has not been formally executed, no such justification arises.
[26] As a result, the onus of proving that the deceased was possessed of sufficient testamentary capacity at the time of preparing the document that does not meet the formality of a will rests on those who seek to have the document declared valid under s 14 of the Act. In this case, the onus is on Peter, as he seeks to have the document validated as the last will. The onus is to be discharged on the balance of probabilities.4
[27] A further issue arises in the present case. That is at what time testamentary capacity is to be considered. Is it when the instructions to prepare the will document were given (in this case on Peter’s evidence 30 December 2017) or is it when the terms of the document were considered by James and apparently approved by him, (on 3 January 2018, according to Peter’s evidence)?
[28] In Parker v Felgate the Privy Council confirmed that if instructions were given when the will maker had capacity the will is valid even though executed when he or she lacked capacity.5 The rule in Parker v Felgate has been applied in New Zealand.6
[29] In the case of Loosley v Powell, the Court of Appeal did note the conceptual difficulties with the rule, in particular as to how a court “in assessing the testamentary capacity of a will-maker who was very ill and confused at the time of execution, can be certain there has been no change of mind by the will-maker,”7 but did not consider
3 Fielder v Burgess [2014] SASC 98 at [25]; Re Spencer (deceased) [2014] QSC 276 at [18]; Konui v Tasi [2015] QSC 074 at [43]; Phillpot v Olney [2004] NSWSC 592.
4 Bishop v O’Day [1999] 18 FRNZ 492 (CA) at 3-5.
5 Parker v Felgate (1883) 8 PD 171.
6 Re Estate of Prasad [2012] NZHC 1489.
7 Loosley v Powell [2018] NZCA 3 at [23].
that the case before it gave rise to an appropriate occasion for reviewing the application of the rule in New Zealand.8
[30] In the present case the document was never executed but, applying the rule in Parker v Felgate, the initial focus of the Court’s attention on James’ testamentary capacity would be on 30 December 2017 when it is said he instructed Peter that he wished to change his will and asked him to draw up a new will.
[31] However, as the document was never executed, but on Peter’s evidence James reaffirmed his approval of its terms on 3 January 2018, it is also necessary to consider James’ capacity at that time. If the deceased lacks the requisite testamentary intention at the time of preparing the will, but the evidence reveals, via the deceased’s subsequent dealings with and statements regarding the document, an intention for that document to operate as a record of his or her testamentary wishes, the Court should give effect to that later intention.9
[32] As McMillan J, in the Supreme Court of Victoria, noted when discussing that interrelationship between capacity and execution:10
If the deceased lacked the capacity to make a will, then the court could not be satisfied that the deceased intended the document to be her will. If the deceased did not know and approve of the document, then the court could not be satisfied that the deceased intended the document to be her will.
[33] Accordingly, I propose to consider the evidence of the deceased’s testamentary capacity at both 30 December 2017 and 3 January 2018.
[34]I turn to the evidence relating to the events of 30 December 2017.
[35] A significant part of the evidence in this case focused on the events of early 30 December when, because of an oversight which Christine acknowledged, Ann and Susan attended Craddock Street, expecting to care for James. Anton was already there. He had been there overnight with his grandfather. Anton called his mother Christine who came to the house about 20 minutes later. Ann and Susan’s evidence about what
8 At [24]–[25].
9 In the Estate of Masters (1994) 33 NSWLR 446 (CA) at 469.
10 Re Stuckey [2014] VSC 221 at [41].
occurred thereafter was significantly at variance with Christine and Anton’s. Ann and Susan describe Christine as being angry and aggressive, while Christine denies that. She says she was calm. Anton’s evidence was consistent with his mother’s. I note that on Christine and Anton’s version of events there was no conflict, so there would have been nothing the deceased could have observed which would have upset him at the time. It is unnecessary for me to resolve the conflict in evidence, but if I had to, I observe that Anton impressed me as a careful and objective witness and I would have preferred his account of the events.
[36] For whatever reason, whether it was the events of that day or the stress of James’ declining health combined with past difficulties between the siblings, Ann and Susan felt it was impossible for them to carry on as part of the roster (there had been previous issues raised about the roster), and ultimately Ann sent the text on behalf of both her and Susan on the evening of 30 December.
[37] Peter’s evidence was that after learning Ann and Susan were no longer going to be part of the roster, James was terribly upset. Dianne Wilton, Peter’s partner, said Christine said something like “they’ve pulled out” and then read the text out loud. Later, but still in the evening of 30 December 2017, Peter said James told him that he wanted to change his will to reduce the amount that Ann and Susan received. Peter’s evidence was that James told him he now intended upon his death for his estate to be distributed as follows:
One third of the fair market value of the Craddock property to be divided equally between Susan and Ann (in other words one sixth each).
The remainder of his estate to be divided equally between Christine and myself.
[38] Peter says that James asked him to draft such a will and that in accordance with James’ instructions he prepared such a will. After it was prepared and whilst at his home (now clarified as at on 3 January)11 he gave a copy of the unsigned will to James who read it and confirmed that he was happy with it.
11 It was only in a subsequent affidavit filed on 2 September 2019 shortly before the hearing that Peter confirmed that he gave the will document he had prepared to his father on the evening of 3 January after James had been discharged from the hospital.
[39] Peter said James did not require any changes. Peter said that his father had hoped that his new distribution may make it possible for Christine and him to retain the Craddock Street property after his death.
[40] Peter also said that he included the words “as recognition of their unconditional love, support, and comfort to me over many years, the remainder of my estate is to be divided equally between my two remaining children, Christine … and Peter …” because his father had asked him to do so.
[41] Peter says that both at the time that James asked him to draft the unsigned will, and when he later read it, James was fully aware of:
·the nature and value of his property;
·that his previous will provided for an even distribution of his assets/estate between his four children;
·that the unsigned will provided for uneven distribution whereby Christine and I would receive more than Ann and Susan;
·Ann and Susan were expecting to receive an equal share;
·Ann and Susan would be upset when they learnt that they were not receiving an even share.
[42] Peter does not give particular examples or evidence of the basis for those statements, but said generally that on both occasions (on 30 December and on 3 January) his father was alert and articulate and was able to engage in conversations on current affairs and critical analysis of the same and that he also maintained his keen sense of humour.
[43] Christine gave evidence that “Dad [James] was very disappointed” and annoyed by Ann and Susan’s decision to withdraw from his care roster and that:
Shortly afterwards when Dad and I were at his home he told me that he had changed his will. He told me that he had made this decision given that Susan and Ann were no longer going to look after him. He went on to say that Susan and Ann would now receive less than Peter and me. He did not tell me specific details of the new distribution or show me a copy of the new will. During the same conversation Dad told me that he had not yet signed the new will as he wanted to explain in a letter to Ann and Susan why he had changed the distribution.
[44] In cross-examination Christine clarified that she thought it was on 4 January that the conversation she refers to took place. She said her father only spoke of it once with her.
[45] Christine says that when she had the conversation she refers to with her father he had his normal mental capacity. She said that while he was very sick it did not affect his mental ability and he was still very alert. She understood that he had made his decision to change the will because he was disappointed that Ann and Susan had decided to stop assisting with his care. He knew they would be upset and that was why he wanted to write to them explaining the reasons why he had changed his will.
[46] As noted, Peter’s partner, Dianne, also gave evidence. She relayed the conversation Peter had with her about James’ request that Peter draft a new will. She said that after that, on at least three or four occasions when she was with James he gestured to her mimicking to sign a document. She says that she knew him well enough to know that he was indicating he wanted to sign the new will that had been prepared by Peter. She said that at least twice he asked her where it was and said he did not know how long he could hang on. She says generally that James maintained his mental capacity up to around 7 January 2018. He had a good sense of humour which he maintained and that even after having a fall on 5 January he was able to make light of it and joke about it.
[47] The Court had affidavit evidence from three medical witnesses and heard from two of them. The evidence of Dr McLeay was read. Dr McLeay’s evidence was limited to a consultation on 27 December 2017. She said that on that day James attended at the Avondale Health Centre Limited and saw her. When she met him she said he:
… appeared competent to have a discussion around Advanced Care Planning and stated that he would like active treatment for infection.
[48] During the consultation she did not detect any evidence of cognitive impairment. In her opinion there was no clinical indication requiring formal cognitive function testing. Dr McLeay was not called for cross-examination.
[49] Peter called Dr David Spriggs, a consultant, who attended James Marshall before his discharge from hospital on 3 January 2018. In his opinion, which was limited to the period 1 to 3 January 2018 inclusive while James was admitted in hospital, there was nothing to suggest that he lacked the mental capacity to make decisions with regard to his will.
[50] Dr Spriggs expanded on that opinion in a letter prepared at the request of Peter. Dr Spriggs said:
Mr Marshall was suffering from disseminated cancer and had pneumonia. There is one comment from the nurses on 02 January that he was confused. Confusion was not otherwise mentioned. He was not, during the time of his admission, taking morphine.
Laboratory testing on the day of his admission showed that his liver was functioning poorly but his kidneys were good. He had a raised white cell count in keeping with his known leukaemia. On 15 December 2017 he had undergone a CT scan of his head which did not show any intracranial metastases or abnormalities.
Although during his admission had been prescribed morphine should he become distressed or in pain he did not receive any morphine while in hospital.
In view of the above I can see no reason recorded in the clinical notes to suggest that Mr Marshall lacked the capacity to make decisions for himself or with regard to his Will.
[51] Ann and Susan called Dr Jane Casey, a consultant psychiatrist, with a speciality in old age psychiatry. She reviewed James’ available clinical and medical records, including: the Avondale Medical Centre clinical records (between 27 December 2017 and 8 January 2018), the Hospice clinical records (from 20 December 2017 to 11 January 2018) and the Auckland District Health Board clinical records (between 12 December 2017 and 4 January 2018). Dr Casey also considered the evidence of the various parties as to James’ condition at the relevant time period.
[52] Dr Casey noted that during James’ hospital admissions there was no comprehensive assessment of cognitive function as it was not clinically indicated. But there were entries where James was observed to be of decreased alertness, attention and concentration.
[53]In Dr Casey’s clinical opinion:
33. [James] Marshall was gravely ill due to widespread metastatic malignancy with associated complications and medical co-morbidities during the period 15 December 2017 – 11 January 2018. There is evidence of fluctuation in the mental state, alertness, and cognition. On 20 December 2017 the Consultant responsible for his care stated that given the circumstances of the diagnosis and prognosis; that is, the death-bed scenario, along with the altered mental status and the withdrawal of treatments, that it was not clinically stable or appropriate to make significant legal decisions in relation to Enduring Powers of Attorney or a Will. Moreover, it was specified that there was ‘family grievance’ and Mr Marshall was ‘under undue influence’. The details of the reasoning behind this appraisal of the situation are not recorded, yet it suggests that the clinical team was observing ‘red flags’.
…
35. Mr Marshall’s condition continued to deteriorate and he was noted to be confused, anxious and drowsy on the date of 30 December 2017 and through to 2 January 2018. Thus, it is highly unlikely that Mr Marshall had a sustained lucid interval where he was restored to the use of his reason and judgment. Mr Marshall would have known who his natural beneficiaries were. There is no collateral evidence to support that he would have appreciated a revision of a Will, or that he was able to comprehend and appreciate the claims of those who might expect to benefit from the Will, or whether he was able to understand the impact of the distribution of the assets of the estate. There is no evidence that Mr Marshall had knowledge and approval of the contents of the Will, at the time that it was executed.
36. Thus, in my expert opinion, on the balance of probabilities, Mr Marshall did not have testamentary capacity, during the period of 20 December 2017 through to his passing on 11 January 2018.
[54] While the issue of testamentary capacity is ultimately one for the Court, the expert medical evidence is of assistance. Having heard from both Dr Spriggs and Dr Casey I prefer the evidence of Dr Casey on the point.
[55] I have come to that conclusion for a number of reasons. First, Dr Casey’s opinion is based on a full review of James Marshall’s clinical notes from 20 December through to 11 January and on the basis of the evidence of the other witnesses filed in this proceeding. Her opinion is based on a more comprehensive review of all the
relevant material than Dr Spriggs. Dr Spriggs did not review the medical notes of others and did not have access to the other affidavit evidence.
[56] Relevantly, given that the instructions to change the will were made on the evening of 30 December, Dr Spriggs’ evidence was restricted to the period 1-3 January.
[57] Next, Dr Spriggs accepts that he made two errors in his letter in which he expressed his opinion. First, contrary to his statement there was one comment on 2 January that James was confused, there was more than one reference to James being confused. The admission notes of 1 January and the notes of 2 January both record him as being confused. Dr Spriggs was also incorrect when he said that James Marshall had not received any morphine whilst in hospital. During cross-examination he accepted James had actually received two doses of morphine whilst in hospital. He also accepted he had not been asked to consider the effect of the diazepam that James was taking. From the notes of the medications administered to James it is clear he was being administered diazepam and morphine throughout the relevant period. The notes record the diazepam was causing sleepiness.
[58] On an earlier occasion (20 December 2017) the notes record that at that time James was in no state to deal with an enduring power of attorney:
Given the [situation] @ present - recent diagnosis of metastatic cancer + under undue influence with MMSE 7/10 + family grievance, I would suggest this is not the correct time for this.
The notes also record that Dr Spriggs actually agreed with the above assessment at the time. On review of the notes during cross-examination Dr Spriggs accepted that there were red flags in them.
[59] While Dr Spriggs correctly suggested that mental capacity could fluctuate and come and go he did accept that James’ physical condition was generally deteriorating.
[60] By contrast, while Dr Casey had not seen James she had access to his full medical notes and the evidence of the parties who had seen James at the relevant time.
[61] On 30 December the Hospice nursing notes record a phone call from Christine who was concerned that James was still very drowsy. A note of a home visit by a Hospice worker recorded that at 18:00 on 30 December:
James feels he is deteriorating but son Peter adamant that his father will get well. Tried to discuss where James would want to die – not prepared to discuss.
[62] On 31 December 2017 there is a note of James complaining of excessive drowsiness. He stated he was feeling he was drugged.
[63] The hospital notes record that when James was admitted to hospital on 1 January he was in a confused state. Dr Spriggs accepted a confused state was similar to delirium.
[64] Dr Casey was cross-examined about the reference in the medical notes to “no behaviour of concern”. She explained that was not particularly relevant because confusion was not itself a behaviour of concern. Hyperactive delirium where a patient was very agitated would be a behaviour of concern but, on the other hand, there could be delirium where a person was simply slow, drowsy, sedated or less active. That could be recorded as behaviour of no concern as there are no outward signs of agitation.
[65] It was put to Dr Casey that James could have had testamentary capacity on 3 January. She did not agree. She noted that he was still gravely unwell, with the metastatic disease and grossly deranged blood tests. While he had been treated for his constipation, he was receiving ongoing treatment for pneumonia so in her opinion there would have probably been ongoing symptoms of subclinical delirium. While Dr Casey was prepared to accept there was a possibility of a window where James had testamentary capacity on 3 January, looking at the overall picture, given the underlying progression of the disease, she remained of the view that he would not have had testamentary capacity on 3 January or indeed for the more extended period of 20 December to 11 January.
[66] Peter fails to satisfy the Court that James Marshall had testamentary capacity on 30 December when he made the direction to change his will. I am not satisfied that
James’ condition did not affect his sense of right. James was physically very unwell but importantly also, his mental state and cognition appear to have been affected by his physical condition and the drugs he was taking, the morphine and the diazepam, particularly on 30 December. Apart from the medical evidence the general evidence, including the evidence of the medication James was taking, left him confused and drowsy for extended periods of time.
[67] Nor does the evidence support a finding that James had capacity on 3 January when Peter says he discussed the will with him. While Dr Spriggs had the advantage of assessing James when he was discharged on 3 January, that advantage is somewhat limited in that it was a snapshot in time, and the focus was on James’ general medical condition rather than his testamentary capacity. For instance, earlier in the day on the 3rd, James was noted to be confused but directable. While James’ issues as to constipation and pneumonia were addressed so that he could be discharged home to palliative care, he remained a very ill, terminally ill man who required significant medication.
[68]I return to the considerations under s 14(3).
[69] As MacKenzie J went on to note in Re Campbell (deceased), whether the will represents the deceased’s testamentary intentions:12
[15] … [is] to be determined by a consideration of all of the circumstances, including those set out in s 14(3). The matters listed in subs (3) are not exhaustive. The Court is not, by the terms of the subsection, restricted to those considerations. Any evidence which may assist to determine whether the document expresses the deceased person’s testamentary intentions may be taken into account. The evidence which may be considered includes evidence of the circumstances in which the document came to be prepared, the reasons why the document was not properly signed and witnessed, and any other relevant consideration. Evidence of the signing and witnessing of the document may, as in this case, include evidence as to why the document was not signed or witnessed at all.
12 Re Campbell (deceased), above n 1.
The document
[70] The document itself is a clear expression of testamentary disposition. If James had testamentary capacity and it was signed and witnessed, it would have been an effective and valid will.
Evidence on the signing and witnessing of the document
[71] The document was not signed or witnessed. There was no attempt by James Marshall to sign the document. I do not overlook the evidence of Dianne Wilton as to the gestures James made which she interpreted as a wish to sign a document, but there are certain difficulties with that evidence which limit its impact. In cross-examination Ms Wilton said that the incident she described occurred when James was in hospital between 1 and 3 January but Peter Marshall’s evidence is clear that he only gave the document to James and discussed it with him after he was discharged from hospital on 3 January. He would not have seen the document before then.
[72] The evidence is also contrary to Christine’s evidence, which I accept, that on 4 January, James told her the reason why he had not signed the will.
Evidence of his testamentary intentions/statements made by the deceased
[73] Peter in particular, and Christine to a lesser degree, sought to explain the reason why James Marshall changed his mind and altered his will was the decision by Ann and Susan not to remain as part of his rostered care. This was yet a further example of the issues between the siblings. The evidence is clear there had been a division in the family for quite some time, particularly between Peter and Ann and Susan. Peter was particularly close to his father, whereas both Ann and Susan had a more difficult relationship with James.
[74] There was evidence of occasions in the past which confirmed the relationship between James and both Ann and Susan was difficult. Emails produced to the Court from 2013 and around the time James altered his will in 2015, suggested a degree of bad feeling or conflict between James and Ann and Susan about certain issues. But despite that evidence, and despite the difficulties between Ann and Susan and their
father, it did not affect the way James treated them under his will at that time. When James made his new will in April 2015 he did not change the terms of the will which provided for equal distribution between all members of his family. His brother John confirmed that whenever he and James had discussed their wills James said he intended to leave his estate equally to all his four children.
[75] Further, there is also evidence of a very open and welcoming email James sent to all members of his family as late as 19 March 2016.
[76] So while there may have been difficulties in the relationship between James and Ann and Susan they had not impacted or affected James’ testamentary intention towards them in the past.
[77] If James did express a wish to change his will on 30 December, the evidence supports a finding that he did so at a time when he was subject to influences which affected his testamentary intention. I should make it clear that I am not using the term “influence” in a pejorative or legal sense in terms of any intention on the part of Peter or Christine to influence James or overbear his will, but rather that at the time James would have been influenced by his compromised medical state, his recent diagnosis of terminal cancer, his physical vulnerability, the need for 24 hour care, and the significant medication he needed and was taking. He wanted and needed the continued support and care of Peter and Christine. While on the evidence they would have gladly provided it as they had in the past, in his confused and vulnerable state he may have thought it necessary to express favouritism for them to achieve that support.
[78] There is a further relevant consideration that impacts on James’ testamentary intention and particularly, whether what he initially expressed as his wishes on 30 December after learning of the text from Ann, remained his intention. As noted, Christine’s evidence is that her father discussed the change in his will with her on 4 January. He told her that he had not yet signed the new will as he wanted to explain in a letter to Ann and Susan why he had changed the basis of distribution. That evidence suggests that, even if the document was prepared to reflect his testamentary wishes, he had decided not to sign it and change his testamentary disposition until he
had explained why he proposed to make the changes in a letter to his other daughters. James never prepared such a letter.
[79] In Re Estate of Hickford Mr Hickford had been diagnosed with terminal cancer.13 He instructed a lawyer about a new will. The will was drafted and posted out to him with a letter from the lawyer suggesting he get in touch if he had any changes. Mr Hickford read the document, discussed it with his partner, then left it on the dining room table and did nothing more about it. He also discussed it with his daughter. He then died without signing the will. MacKenzie J suggested that the fact the deceased did not make an appointment to sign the will or take other steps to formally complete the will might be consistent with one of three broad possibilities:
(a)that he changed his mind;
(b)that he overlooked or forgot about it; or
(c)that he did not think he needed to do anything further.
MacKenzie J stated:
[10] I consider that, to meet the statutory test, the case must fall within the third possibility. Clearly, the first possibility would mean that the document did not express his testamentary intentions. In my view, the second possibility might not meet the statutory test. I consider that the third possibility would meet the test. If the deceased thought that he had made an effective will, and that the reason that the document was unsigned was a mistaken view that everything necessary had been done, the Court could be satisfied that the document did express the deceased’s testamentary intentions despite the lack of a signature.
[80] In Gladwin v Public Trust Woolford J suggested there may be other reasons why a will document might not be executed:14
[22] With respect to MacKenzie J, I do not agree with him that to meet the statutory test the case must fall within the third possibility. MacKenzie J does in fact go on to state that the second possibility might not meet the statutory test so acknowledging that, in some cases, the second possibility might also meet the statutory test. There is another possibility not articulated by MacKenzie J. Rather than overlooking or forgetting to sign a will, a person
13 Re Estate of Hickford (deceased) HC Napier CIV-2009-441-369, 13 August 2009.
14 Gladwin v Public Trust [2011] 3 NZLR 566.
may intend to do so but never get around to it before his or her death. Given Ms Cairns’ chaotic domestic arrangements as described by Mr Gladwin in evidence, that is a real possibility in this case.
[81] Assuming for the moment James had testamentary capacity on 30 December, and/or 3 January, the issue would be whether he just did not get around to signing the will or whether the testamentary intention expressed in the document was provisional and without James’ full assent until he had explained the position to Ann and Susan. Christine’s evidence supports a conclusion that James wanted to wait and complete his letter to Ann and Susan explaining the situation before signing the will. If so, his intention to change the terms of the will was a conditional intention. The condition was never satisfied.
[82] In Mitchell v Mitchell, a decision of the Supreme Court of Western Australia, Heenan J confirmed that the testator’s intent at the relevant time must be unconditional. It is not sufficient if the document is a provisional, preliminary or tentative proposal. It must be the concluded testamentary intent of the testator.15
[83] As the evidence stands there was, in James’ mind at the time, a matter he wished to address before he executed the will document. As such the document did not represent his immediate and unconditional testamentary intention. For this reason also, the application under s 14 of the Wills Act cannot succeed.
Conclusion – application under s 14 Wills Act
[84] For the above reasons the plaintiff Peter Marshall fails to satisfy the Court on the balance of probabilities that the document ought to be admitted to probate under s 14 of the Act. The Court is not satisfied that either on 30 December when he gave instructions to change his will or on 3 January when he reviewed it that he had testamentary capacity. Nor is the Court satisfied that the document represented his unconditional testamentary intention at the relevant time or later, before he died. The application under s 14 is dismissed.
15 Mitchell v Mitchell [2010] WASC 174 at [42].
Conclusion - application for administration under the Administration Act 1969
[85] That leaves the application for administration. Peter is executor of the 2015 will. However an issue arises because his partner Dianne Wilton witnessed the will. The effect of s 13 of the Act is that the disposition to Peter under that will would prima facie be void. In the circumstances there is an apparent conflict between Peter’s position as trustee and executor of the will and his interest or claim against the estate as a potential beneficiary under the will. It is appropriate that an independent person be appointed executor and trustee. The application suggests the appointment of Barry Vaughan Clive Stafford. The application is granted and Mr Stafford is appointed executor and trustee of the 2015 will.
[86] In making that appointment I do so on the basis of the conflict arising under s 13 of the Act rather than as any indication that the Court considers the steps Peter has taken to secure the estate and realise certain assets of the estate was in any way wrong or in breach of his duty to the estate and other beneficiaries.
[87] Although the issue of an application by Peter under s 13(2) of the Act is not before the Court, at the conclusion of submissions Ms Stevenson took instructions from her clients and confirmed to the Court that her clients would not oppose an application by Peter under s 13(2)(b) of the Act to validate the disposition to him under the 2015 will. That is an entirely appropriate stance to take. On the evidence the Court is satisfied that in 2015 James Marshall would have known and approved of the disposition and made the disposition to Peter voluntarily. James was very close to Peter.
[88] That issue could be addressed by a pro forma originating application to the Court with an accompanying memorandum referring to this judgment. I expect the consent of Ann and Susan could be recorded on the document. The application could then be referred to me to be dealt with on the papers.
Costs
[89] As Peter has failed in his application under s 14 he is to pay costs of the defendants in relation to that application, including the costs of the hearing on a 2B basis.
[90] The application by Ann and Susan under the Administration Act was only granted because of the issue of potential conflict given Peter’s position, rather than through any fault on Peter’s part. In those circumstances Ann and Susan are to have the costs of that application on a 2B basis, (with associated disbursements) but those costs are to be paid out of the estate.
Venning J
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