Bailey v Bailey [1924] HCA 21

Bailey v Bailey [1924] HCA 21 - HCA 1924 case summary — Zoe

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whisky supplied to his father for a period of five years, the payment of that account, and some rambling conversations between the testator and some of his family and between the testator and various residents of the district where he lived. The farm was let for some time before the testator's death to his son Charles Lindsay Bailey at £236 per annum, and the rent seems to have been paid annually. 'This transaction does not suggest any want of capacity on the part of the testator. The claim for £81 was, we think, somewhat grasping, but the son swears that his father thoroughly understood it and made the payment pursuant to an earlier agreement. It may be so. Apparently a year's rent was due, and the son admitted this on the father inquiring whether any rent was owing, and then made a cross- claim for tobacco, &c. Both items were settled in the most formal manner, and the transaction indicates no want of capacity. But 'we suspect that the son would have had more difficulty in obtaining payment of his account in earlier years. The conversations we have referred to are, however, most important : while they do not, in our opinion, prove any mental derangement in the old man or any disease of the mind, they indicate a decay of the mental faculties due to advancing years. A list of the incidents evidencing this decay may be found in the transcript, and we do no more than refer to them as the foundation of the conclusion ; they include forgetfulness of the death of members of the testator's family and of old friends and of the proper seasons for farming operations. We place no reliance on the opinion of Dr. Sewell, because we think it was based, through no fault of his, upon insufficient data. Nor do we wish to suggest that this decay of the faculties of the old man necessarily establishes want of capacity on his part to make the will of May 1923. But it is an important fact to be weighed in connection with the critical events of April and May 1923, to which we now proceed.

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that was the reason he was desirous of seeing him. The reverend gentleman saw the testator, and believed that he understood and appreciated what was said. But the testator showed no desire to discuss his temporal affairs. Indeed, he required to be pointedly asked whether he wished to settle his affairs, and he then said " Yes." To the suggestion that he should see a solicitor, the testator again said "Yes." This was communicated by Mr. Constable to Mrs. Johansen, with the suggestion that Mr. Hurry should be consulted, but she was not favourable to this suggestion, and named Messrs. Stevens and Rennick. Mr. Hurry, of course, was the testator's solicitor, who had acted for him in the preparation of all his former testamentary dispositions but one. Mr. Constable said he would see Mr. Stevens and ask him to come to the hospital to deal with the business. He set out to do so; but, on thinking the matter over, he was not satisfied, and therefore retraced his steps and told Mrs. Johansen he would rather not go to Mr. Stevens, and would leave the matter in her hands. Mrs. Johansen persisted in her preference, however, and on 11th May 1923 a telephone message to Mr. Stevens summoned him to the hospital. He went there about 11 o'clock in the morning, and was met by Mrs. Johansen, who said her father had not settled his affairs and " wants to see you about doing it." As a matter of fact, the testator was practically a stranger to Mr. Stevens. He was taken into the testator's room, and there saw Mrs. Hobbs also. One of the ladies said '"' Father, here is Mr. Stevens come to see you about your affairs." And then they both retired. A most critical conversation then took place, according to Mr. Stevens ; and this we must set out in detail : - 'I said ' Mr. Bailey, you want to see me about settling your affairs, I understand,' and he said ' Yes.' _Isaid 'Do you mean that you want to make a will?' He said ' Yes, that is so.' I said 'Have you considered how you want to leave your property, what you want to do with it after you are gone?' He said ' Yes.' I said 'How?' He said ' Well, I want it all to go to the family, one lot not to get more than another.' I said ' Do you mean by that that you want all your children to share equally in your estate?' and he said ' Yes.' I said ' Are all your children alive ?' He said ' No; one of the daughters is dead.' I said

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'Did she leave any children ?' and he said ' No; she was not married when she died.' I said that in case there had to be any provision made for grandchildren instead of for a deceased child. I said 'You will have to appoint some persons to act as executors in order to wind your estate up after you are gone; whom do you wish to appoint ?' He paused a moment and he said 'I will have my sons Charles Lindsay and James Robert.' I said ' Are you working or are you occupying your farm yourself now?' He said * No, my son Lindsay occupies it, all the stocks are his.' I forget exactly what my words were, but I said 'I suppose he leases it then ?" He said * No, he just goes on from year to year'; and he added of his own volition, without me asking him, ' he pays me £60,' and I think, from memory, he added the words 'a year.' I said to him ' Well, I will have te go round to the office to prepare the will. I did not fetch the necessary paper to do it with, and I will be back again shortly and see you and you can sign it.'"" Mr. Stevens then returned to his office and prepared a will. He went back to the hospital, with his partner, Mr. Rennick, and took with him the will which he had prepared. Mrs. Johansen and Mrs. Hobbs were present in the testator's room, but retired when Mr. Stevens said that he had brought the will for signature. The will - which gave all the testator's property equally between his children. and considerably improved the position of the daughters and one of the sons, in respect of their shares in the testator's estate. as compared with the provisions made for them under the earlier testamentary dispositions - was then read over, and, according to the two solicitors, the testator said " Yes, that is right." But the old man, though a pen was given to him, did not execute the will. He said, according to the evidence, "I do not think I will sign it now." Mr. Stevens asked "What is the matter - is it wrong - is it incorrect - is there anything wrong with it?" And the old man replied " No, I will do it when I get up." The daughters, Mrs. Johansen and Mrs. Hobbs, promptly returned to the testator's side, and one of them said to her father 'Do you want Mr. Constable to be here when you sign it ?"' and the old man nodded his head ; but he had never suggested this wish to the solicitors. Mrs. Hobbs lost no time. She wrote to the Rev. A. H. Constable on the same day as follows : -

At a glance

Court

Decision date

Before

Source

Judgment (116 paragraphs)