Azzopardi v Smart

The deceased's Wills

1. I have referred to the last two testamentary instruments of the deceased. She also left the 2016 Will, a Will dated 5 June 2012, a Will dated 18 April 2012 and the Will relied upon by the caveator, being a Will dated 3 March 2010. Clearly, as was accepted, the 2010 Will was not the penultimate Will of the deceased.
2. A copy of each of the Wills of the deceased referred to, as well as a copy of the 2018 Codicil is in evidence. Each appears to have been duly executed. A reading of these Wills reveals that the deceased gave consideration to those people who appear to have had a claim on her bounty, including the persons named in the 2017 Will, albeit that the provision made for each may have changed over time. There appears to be a degree of continuity and consistency in the deceased's testamentary intentions.
3. Importantly, in Clause 3 of the 2018 Codicil, the deceased in all other respects confirmed the 2017 Will.

The facts relied upon by the caveator

1. I shall refer to the caveator's affidavit sworn 12 March 2021 in which the following facts, so far as are relevant, and apparently limited to events before each of the 2017 Will and 2018 Codicil was executed, are asserted as admitted into evidence: 1. In or around 2015, the deceased "suffered from a minor stroke". 2. The caveator spoke to the deceased "regularly" on the telephone. The deceased "sounded frustrated when we spoke on the phone as she was unable to say what she wanted". On one occasion, the deceased told her that she was "not allowed to drive anymore. I had to sell the car" and that "my independence is gone. It's been taken from me. I hate relying on other people." 3. The caveator noticed "a distinct decline in [the deceased's] memory loss (sic) during various phone calls". She also noticed that she would repeat questions.
2. Rightly, the applicants submitted that the caveator's evidence was vague and unspecific as to time. Had that been all of the evidence upon which the caveator relied, I would have concluded that it failed to satisfy me that there was a doubt as to whether the grant of probate should be made. However, that is not all of the evidence upon which the caveator relied.

The Medical Evidence

1. The Death Certificate of the deceased, the Informant shown thereon being Graham, notes as the "Cause of Death and Duration of last illness": "(I)(a) Cerbrovascular disease, 4 years; (b) Hyperlipidaemia, years (II) Dementia" Name of Certifying Medical Practitioner or Coroner: Dr Sandra Miles".
2. A certificate of death issued by the Registrar of Births, Deaths and Marriages in New South Wales is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry: Births, Deaths and Marriages Registration Act 1955 (NSW), s 49(2).
3. The 2017 Will and the 2018 Codicil are within the stated period of 4 years in relation to cerbrovascular disease.
4. The caveator also relied upon an email dated 4 November 2020 from Dr Adrian Smith, who practises at Kingscliff Beach Medical. He was the general practitioner upon whom the deceased attended. The email is in the following terms: "Thank you for your email regarding your sister Robyn and apologies for the delay in getting back to you. My condolences to you, Denise and family. Robyn was my patient for a number of years and was a lovely lady. With reference to the timing of her illness Robyn was diagnosed with dementia in late 2016 (Alzheimers with vascular contribution). Unfortunately, this was a progressive disease leading to decline in memory and cognitive functioning, and contributing to frailty and physical decline, gait problems and falls that you refer to. MRI brain around that time demonstrated global atrophy and an (old) right frontal infarct. This infarct (stroke event) clearly happened sometime prior to this but I can't clearly see when that was from the records. I hope this give some help to you regard the timings of Robyn' [sic] illness."
5. With no criticism intended, the contents of the email are somewhat abbreviated. The email says nothing about how the conditions which are noted affected the deceased's capacity to make a Will or Codicil (or indeed, whether they did).
6. Annexed to an affidavit sworn 29 March 2021 of Mr M Fraser, the solicitor for Jeffrey, is a copy of the Progress Notes from Kingscliff Beach Medical. Counsel for the caveator pointed to the following notes: "20 January 2016 Name of Test: MR 63040 Head - Acoustic neuroma FINDINGS There is prominent atrophy of the frontoparietal and temporal lobes as well as the cerebellar vermis. There is prominent atrophy of the frontalparietal and temporal lobes as well as the cerebellar vermis. There is an old territorial branch distribution infract in the lateral aspect of the right frontal lobe just superior to the silvian fissure which has a rim of surrounding gliosis. Some minor deep white matter ischaemic changes noted in the frontal regions bilaterally. 4 May 2016 …she has been evaluated for vestibular neuropathy here and to my surprise her MRI shows a right frontal infarct and significant global cerebral atrophy. Today Graham reminded me that she has difficulty with her memory. Her comprehension is impaired and she often has difficulty expressing herself. 6 September 2016 Letter to Dr Adrian Smith by Dr Koshy George: "It was a pleasure to see Robyn again. Robyn continues to have issues with her memory. She is very forgetful and Graham has also noticed this. Her vestibular neuropathy appears to be improving. She has had multiple skin cancers removed … On doing her MMSE today I was surprised that she only scored 21/30 suggesting mild cognitive impairment. Her MRI showed significant global atrophy and also an old right frontal infarct. Her carotid doppler did not show any stenosis… In view of her Mild Cognitive Impairment I have taken the liberty of sending her to Dr Peter Bailey at the Gold Coast University Hospital who is starting a new trial for patients with mild cognitive impairment. I have encouraged her to continue on aspirin … She also gives me a history of depression and she is a bit teary and sad at times …" 5 April 2017 Letter: "It was a pleasure to see Robyn again today. Robyn saw Dr Peter Bailey in the Memory Clinic but she did not want to continue with the planned research program. She and her husband think that Robyn has improved but I have repeated the MMSE and she managed to score 24/30. On examination today her gait was significantly broad based. She was quite anxious and uncoordinated … She had difficulty following commands … Robyn has mild cognitive impairment with mild incoordination. I have therefore suggested that before she be certified for renewal of her licence …" 11 October 2017 Letter: "Thank you for referring Robyn for her left foot drop and other neurological problems. Robyn has been evaluated here and in the Gold Coast Hospital for her progressive aphasia and the decline in her cognitive function. Her MRI shows an incidental right frontal infarct. In spite of all this she continues to do well. She remains active. She can cook, clean and do crossword puzzles. Her writing and colourful skills are good. However, Graham has brought to my attention that sometimes she suddenly freezes and she does not move the left side of her body as much as the right. At other times she is able to walk without any issues. She does not have any tremors and she does not have a history of bradykinesia… all suggest early Parkinson's disease. Examination … She has ongoing word finding difficulty and her balance does not appear to be good."
7. The applicants, in each matter, relied upon a copy of a report dated 9 April 2018 of Dr Mohammed Khateeb, a Geriatrician and General Physician, that was annexed to an affidavit of Ms L J McPherson, solicitor, sworn 23 February 2021, which was a few days before the 2018 Codicil was executed. The report, which was addressed to Attwood Marshall Lawyers, the solicitors for Graham and Alicia, stated: "I have been forwarded a letter, sent by yourself, to Dr Adrian Smith on Robyn Alice May Linworth, requesting a mental capacity report towards her testamentary capacity to prepare amendments for her Will. For the purposes of the record, I am a Specialist Geriatrician and Physician holding specialist qualifications in Australia. I am in public and private specialist practice in Australia and I regularly assess cognitive and mental capacity as part of my expertise. Robyn has been my patient for about a year and is stable on treatment for mild Alzheimer's dementia. I have done this assessment in my rooms at the John Flynn Hospital Medical Centre, 09/04/2018. Robyn was agreeable to the assessment. In terms of understanding what a Will is, Robyn had a broad idea of what a Will stands for. She knows that it is a legal document and it comes into effect after she has passed away. She confirms that she has made a Will in the past and now wants to make her "last Will". I asked her if she wanted to make changes in her will and her answer was also in the affirmative. I asked her whether there was any pressure on her to change the Will and she replied in the negative. I then went on to some details as to why she wanted to make amendments to her Will and she mentioned that she likes to make changes regarding her two sisters, whom she names as Denise and Sue, as well as make some additions with regards to Graham and his daughter, Alicia. I then asked her about her assets. She informs me that she has a house which is in her name and she has told me the approximate value of that house, which is documented in my notes. I then asked her about her funds, whom she banks with and she was able to give me a figure as well as the name of the banks which I have recorded in my documentation. She informs me that she has shares and named where she has invested them. For her confidentiality I have not disclosed it in this report. OPINION & SUMMARY In my opinion, Robyn is able to express her wishes, understands what a Will is and is able to dictate the amendments that she wants to make in her Will. My recommendation is that these changes should be done as early as possible. When communicating with her, it has to be borne in mind that she does have some difficulty in expressing herself, which is due to the Alzheimer's dementia. With some patience, I am able to fully understand her wishes and would be confident in allowing her to make the requested amendments."
8. This report not only deals with the conditions from which the deceased suffered, but also deals with her capacity to make a will. It is unlikely that the caveator will be able to challenge what occurred at the consultation with Dr Khateeb, and the author's record thereof, although she may be able to challenge, in cross-examination, some of the opinions expressed in the report. In any event, the purpose for which the medical opinion was sought, and the context in which the medical assessment took place, are matters that may properly be explored, and examined, at a hearing.
9. As was rightly pointed out by counsel for the caveator, medical evidence as to the medical condition of a deceased may be highly relevant, and, sometimes, may directly support, or deny, capacity in the deceased. But, ultimately, the determination of testamentary capacity is one made by the Court. This is a practical question which does not depend solely upon medical evidence but is to be determined holistically, by reference to all of the facts established in the case.

Determination

1. I note that the 2017 Will and the 2018 Codicil are the last testamentary documents and that there is no dispute about the validity of the 2016 Will (other than its revocation by the 2017 Will).
2. The evidence of the caveator herself, read in the proceedings, in my view, is of little weight. I accept the submission made that, for the most part, her evidence about conversations with the deceased were not time specific, were quite general and were somewhat vague. None of her evidence suggested irrationality in the deceased. Indeed, some of her evidence, arguably, demonstrates the deceased's insight into the conditions from which she was then suffering.
3. However, reading all of the evidence, results in me being satisfied that there is a doubt about the deceased's condition which warrants investigation going to the validity of the 2017 Will and the 2018 Codicil on the basis of a lack of testamentary capacity.
4. In particular, I note: 1. Counsel and the solicitor for the applicants and applicant respectively, made some criticism of the email and the report relied upon. Counsel for the caveator pointed out that Dr Khateeb's report included that: "When communicating with her, it has to be borne in mind that she does have some difficulty in expressing herself, which is due to the Alzheimer's dementia. With some patience, I am able to fully understand her wishes and would be confident in allowing her to make the requested amendments." Neither of the two medical practitioners upon whose email, and report, was relied, respectively, have been cross-examined. Accordingly, one must simply read the email, and the report, as a statement of his opinion which, at the present time, has not been able to be tested. 1. There was uncontested evidence that the deceased suffered a mild stroke in 2015. 2. There was uncontested evidence that the deceased suffered mild cognitive impairment and mild unco-ordination and that she suffered aphasia, that is to say, inability (or impaired ability) to understand or produce speech. 3. Graham, who would have had some knowledge of the deceased's condition at the relevant times, had not sworn an affidavit that was read on either notice of motion (and, therefore, was not able to be cross-examined). However, there is evidence of him having stated what he had observed about the deceased, including that "she has difficulty with her memory. Her comprehension is impaired, and she often has difficulty expressing herself".
5. Whilst the form of each testamentary document suggests that the deceased had the benefit of legal advice, there is currently no evidence about the circumstances in which the 2017 Will and the 2018 Codicil came to be prepared and executed. Although this is not a matter, necessarily, going to the issue of "doubt", there is no evidence, given by the solicitor who drafted the 2017 Will and the 2018 Codicil. She, or he, presumably, would be able to give evidence of what had occurred when the deceased gave instructions for each of the relevant testamentary documents and when she executed each of them. This is relevant in light of what Dr Khateeb had written quoted above.
6. Similarly, each of the attesting witnesses of the 2017 Will and the 2018 Codicil, who may have observed the deceased's condition, at the relevant times, had not sworn an affidavit that was read on either notice of motion (and, therefore, was not able to be cross-examined).
7. In the circumstances, I am satisfied that the matter will need to proceed by pleadings. I would, however, wish to make it clear that the conclusion reached should not lead the caveator to be unduly optimistic about her ultimate prospects of success. Nor should she think that she will, necessarily, be entitled to her costs out of the estate even if she loses the substantive case. It is important to reinforce that the practice of the Court in a case seeking a caveat cease to be in force is not to decide the ultimate issue as to the validity of the will or codicil. Naturally, I have not undertaken such an exercise, and being satisfied that a doubt exists should not be taken to imply any judgment as to how the doubt is likely to be resolved at a final hearing. I am simply satisfied, based upon the current state of the evidence, that the caveator has established, that the testamentary capacity of the deceased should be investigated.
8. It should be understood that the Court has not formed any view of either party's ultimate prospects of success. What has been stated is simply to ensure a caveator does not conclude that success in defending proceedings to have a caveat cease to be in force will automatically result in a costs order, no matter what the result of the case, after the evidence is complete and the final hearing concludes.
9. In this regard, the principal effect of having any succession matter proceed to a final hearing, or until the matter is otherwise resolved, will be to delay a grant of probate and the due administration of the deceased's estate.
10. As I shall not order that the caveat cease to be in force, in respect of the application, the Court will give such directions as appear best adapted for the just, quick and cheap determination of proceedings on the application to be made.
11. On the question of costs of the two notices of motion, counsel for the caveator tendered a copy of an email dated 31 March 2021 sent to the legal representative of each of the applicants (Ex C1). The email was in the following terms: "We refer to the above matter and the Notice of Motions filed by each respective party. It is clear when the motions were filed each of your clients was aware that the deceased at the time of the relevant will and codicil was diagnosed with dementia. By inference a doubt as to the validity of the documents was within your clients' knowledge. Our client makes the following open offer in relation to the Notice of Motions: 1. The Notices of Motions be dismissed. 2. The applicants on the Notice of Motions pay the respondents costs of the Notice of Motion on the ordinary basis as agreed or assessed. In relation to the further conduct of the proceedings there would then be orders for pleadings and further general conduct. This offer is open until 5pm, the day before the next directions hearing."
12. It was submitted that had each of the applicants accepted this open offer, the costs of the hearing of the notices of motion would have been avoided.
13. It is true that, had the offer been accepted, the hearing which, ultimately, took 2 hours, would have been avoided. However, I do not think that the making of the offer, and its rejection, should result in the applicants having to pay the caveator's costs of the notices of motion.
14. My reasons for coming to this conclusion are: 1. At the time of the making of the offer, the only caveat that had been filed was the caveat requiring the 2017 Will and 2018 Codicil to be proved in solemn form. As there was no dispute that each had been duly executed, the only order that could have been made, then, was for the caveat to cease to be in force. 2. Prior to filing the notice of motion, Ms McPherson, the solicitor for Graham and Alicia, sent a detailed letter requesting particulars, going to the filing of the caveat. It was reasonable communication between interested parties, sent before the notice of motion to have the caveat cease to be in force was filed, designed to avoid the incurring of unnecessary costs and delay. No response appears to have been sent to the correspondence. I have referred to the events that occurred on the first return date of the notice of motion. 3. Whilst it is true that the offer referred to the deceased having suffered from dementia, that fact, on its own, does not give rise to a conclusion that she lacked testamentary capacity. 4. The copy of the email of Dr Smith, which had prompted the request for the production of the medical records was annexed to the caveator's affidavit served on 15 March 2021. The matters referred to were matters that the applicants were entitled to investigate. The affidavit of Mr Fraser, to which the medical records, were annexed was only sworn the day before the hearing as it appears that the records were not produced. 5. There was no element of compromise in the open offer made on behalf of the caveator. It required the applicants to capitulate, including on the question of costs. 6. It appears that the email was sent on the date the notices of motion were to be heard.
15. In my view, the costs of the notice of motion should be the parties' costs in the cause. Apart from anything else, some of the evidence relied upon is likely to be relied upon at a hearing. Furthermore, for the reasons set out, on balance, I am not persuaded that it was unreasonable of each applicant to reject the offer and to pursue their, or his application.
16. I shall provide a copy of these reasons to the legal representatives involved in each notice of motion. The parties should confer upon the form of orders to be made and the directions that appear best adapted for the just, quick and cheap determination of proceedings on the application for the grant of Probate. They should provide short minutes of order, in hard and soft copy, for the Court's consideration, by 4:00 p.m. on 21 April 2021. The matter is adjourned until 10 May 2021 for orders and directions as to continuation of the proceedings by pleadings to be made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2021