SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 342

SUCCESSION - Application to set aside caveat on probate - test for testamentary capacity - proof of serious illness suffered by deceased not sufficient alone to displace presumption of testamentary capacity raised by valid execution of will and terms of will - application granted

COSTS - Indemnity costs sought by plaintiff - defendant's conduct made service, hearing of proceeding and receipt of evidence unnecessarily difficult - defendant's evidence failed to raise a real issue in relation to testamentary capacity of deceased - solicitor and client costs awarded to plaintiff

Evidence Act 2011 (ACT) s 136

Succession Act 1981 (Qld) s 10

Court Procedures Rules 2006 (ACT) rr 3069, 6461

Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Boreham v Prince Henry Hospital (1955) 29 ALJ 179

Dugan v Mirror Newspapers Ltd [1978] HCA 54; (1978) 142 CLR 583

Prus-Grzybowski v Everingham [1983] FCA 11; (1983) 67 FLR 132

Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277

1. Kelli Maree Rushton died in the Australian Capital Territory on 11 April 2015. She was aged 42 years. She died from the effects of breast cancer from which she had suffered for a period of four years. She had executed a will in accordance with Queensland law on 25 July 2014.

2. The defendant, her husband, lodged a caveat under the Court Procedures Rules 2006 (ACT) (Rules) requiring proof of the will in solemn form. The grounds for his objection to the grant of probate are described in the caveat as follows:

Deceased was not of sound mind or possessing testamentary capacity in order to make a valid will as deceased was a mentally and physically incapacitated person (civiliter mortuus), medically diagnosed with breast cancer in 2011 developing a terminal illness that was diagnosed since 12/7/2013 and other secondary metastasises including but not limited to in the brain, receiving care and medication as a civil committed palliative care patient.

3. As may be apparent, the reference in this passage to civiliter mortuus (civil death) makes little sense. The concept was referred to in Dugan v Mirror Newspapers Ltd [1978] HCA 54; (1978) 142 CLR 583 at 602 and discussed in Prus-Grzybowski v Everingham [1983] FCA 11; (1983) 67 FLR 132 at 139-140. It is not relevant to the present case.

4. By originating application filed 13 August 2015 the plaintiff, one of the executors identified in the deceased's will, has sought orders including the following:

1. That the Caveat on probate No. C245 dated 18 June 2015 filed by the Defendant on 18 June 2015 be set aside pursuant to rule 3069 (4) of the Court Procedures Rules 2006.
2. That the Defendant within 14 days deliver to the Plaintiff all documents in his control or possession that relate to:

a. the financial affairs of the late Kelli Maree Rushton; and

b. the legal affairs of the late Kelli Maree Rushton.

...

5. The Defendant to pay the Plaintiff's costs of and incidental to this application.

5. Rule 3069 of the Court Procedures Rules 2006 (ACT) provides:

3069 Caveat - setting aside

(1) If -

(a) a person has applied or intends to apply for grant of

representation for an estate; and

(b) a caveat is in force in relation to the granting of

representation for the estate;

the person may apply to the court for an order setting aside the

caveat.

(2) If the person has applied for grant of representation, the application

must be made in that proceeding.

Note Pt 6.2 (Applications in proceedings) applies to the application.

(3) If the person intends to apply for grant of representation, the

application must be made by originating application, naming the caveator as a defendant.

(4) The court may set aside the caveat if it considers that the evidence

does not -

(a) show that the caveator has an interest in the estate or a

reasonable prospect of establishing an interest; or

(b) raise doubt about whether the grant of representation should

be made.

(5) If the court sets aside the caveat under subrule (4), the caveator must

not file another caveat in the court in relation to the estate without the

court's leave.

Note Pt 6.2 (Applications in proceedings) applies to an application

for leave or directions under this rule.

(6) If the court does not set aside the caveat under subrule (4), the court

may give the directions it considers appropriate for the application to be decided quickly, including a direction for the caveator to start a proceeding within a stated time.

(7) The court may give directions under subrule (6) on application by a

party or on its own initiative.

Note Pt 6.2 (Applications in proceedings) applies to an application

for directions.

(8) If the court gives a direction under subrule (6) for the caveator to start

a proceeding with a stated time and the caveator fails to start a proceeding within that time, the caveat is taken to have been withdrawn.

6. The proceedings were first before me on 21 August 2015 and I made directions relating to the service of the application and listing the matter for hearing. On 10 September 2015 I discharged those orders because it had not been possible to serve the proceedings on the defendant. On 25 September 2015 I listed the proceedings for hearing on 22 October 2015. On 13 October 2015 I ordered pursuant to r 6461 of the Rules that the originating application and affidavit in support were served on the defendant on 21 September 2015 and made an order permitting service of any additional documents on the defendant by email. On 16 October 2015 the defendant lodged for filing an affidavit that he affirmed on that date. The document is not stamped as having been filed but I have treated it as having been filed on that date.

7. The proceedings were heard by me yesterday, Thursday, 22 October 2015. The plaintiff was represented by counsel, Mr Hausfeld, and the defendant appeared in person. This was the first occasion on which the defendant had appeared.

8. The defendant raised an objection to the jurisdiction of the Court however I ruled that he was subject to the jurisdiction because he had been properly served pursuant to the orders of the Court. While he was invited to sit at the bar table he chose not to and instead conducted the case whilst in the public gallery. From that position he fully participated in the hearing before me.

9. The issues that I need to determine are whether or not the deceased lacked testamentary capacity at the time she made her will on 25 July 2014 and whether or not I should make any order to the effect of order 2 set out in the originating application.

10. The test for testamentary capacity applicable in Queensland and, if relevant, the Australian Capital Territory, is established by a series of decisions of the High Court.

11. It is necessary first to refer to the decision in Banks v Goodfellow (1870) LR 5 QB 549 in which Cockburn CJ, delivering the judgment of the Court, said at 565:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

12. The case before the Court was one in which the testator had suffered mental illness. As to that, Cockburn CJ said at 565-566:

If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.

13. In Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, Isaacs J (with whom the two other members of the majority, Gavan Duffy J and Rich J, agreed) formulated a number of propositions drawn from the case law, including Banks v Goodfellow. These propositions (at 570-572) are, relevantly, as follows:

(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.

(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.

(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case.

(4) A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator.

(5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments.

(6) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances.

(7) As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit.

(8) Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.

(9) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.

(10) The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.

(11) While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.

(12) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.

(Citations omitted)

14. In Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283, Dixon J quoted with approval three passages from reported cases:

"Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner" (per Hood J., In the Will of Wilson [1898] VicLawRp 39; (1897) 23 V.L.R. 197, at p. 199). "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (per Cresswell J., Symes v. Green (1859) 1 Sw. & Tr. 401, at p. 402)-Cf. per Holroyd J., In the Will of Key [1892] VicLawRp 123; (1892) 18 V.L.R. 640. "In the end the tribunal-the court or jury-must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v. Tebbitt (1867) L.R. 1 P. & D. 398, at p. 436; Sutton v. Sadler [1857] EngR 738; (1857) 3 C.B. (N.S.) 87, at p. 97)" (per Rich J., Landers v. Landers [1914] HCA 74; (1914) 19 C.L.R. 222, at pp. 235, 236).

15. In Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, the Court (Dixon CJ, Webb J and Kitto J) made the following statement in relation to the standard of proof at 453:

A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.

16. Finally, in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 the Court (Williams, Fullagar and Kitto JJ) said at 180:

The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.

17. Evidence in the case was in the form of affidavit and documentary evidence. Both the plaintiff and the defendant made affidavits. The plaintiff was subject to cross-examination on his affidavit. There were a number of documents annexed to the affidavits as well as additional documents that were tendered during the course of the hearing. I have separately set out:

(a) my findings of fact based on the documentary evidence;

(b) my summary of the evidence of the two deponents; and

(c) some observations about the will.

18. The defendant married the deceased on 12 February 2005.

19. The deceased originally underwent surgery in 2011 for grade 3 breast cancer. She received radiation and chemotherapy. The chemotherapy resulted in her suffering from "fatigue, nausea, intermittent vomiting and emotional distress."

20. In early 2012 she developed chest tightness and by mid-2013 she had confirmed metastatic breast cancer. She was treated with chemotherapy from July 2013 until December 2013. In February 2014 she underwent radiotherapy to her chest. She continued on a different form of chemotherapy until at least March 2014. As at 24 March 2014 a medical oncologist at Redcliffe Hospital in Queensland recorded:

Kelli has had minimal myelosuppression from the [chemotherapy drug] to date, and minimal other toxicities. She is otherwise fit, with no major medical co-morbidities.

Kelli's current medications include

Oxycontin 20 mg bd

Endone 5-10 mg qid prn

Oxynorm syrup 5 mg/ml 1-2 mls q2h prn

Mirtazepine 15 mg daily

Lorazepam 1 mg bd prn

21. On 28 March 2014 the deceased's employment with the Commonwealth Department of Human Services was terminated on the grounds of "inability to perform duties because of physical or mental incapacity".

22. On 26 June 2014 a general practitioner, Dr Helen Angel, certified that she had examined the deceased and recorded: "In my opinion, she is cognitively intact and able to make decisions".

23. On 22 July 2014 a protection order was made by consent which prohibited the deceased from entering the defendant's residence or work.

25. The deceased suffered from what was described as "an intercurrent non-pathological fracture" of her femur in August 2014.

26. As at August 2014 a discharge medication record from the Redcliffe Hospital Pharmacy Department shows that the plaintiff was taking medication which included:

(a) oxycodone (OxyContin) 40 mg two times per day;

(b) oxycodone (Endone) 5 mg one to two tablets every four hours for breakthrough pain.

27. She was also taking a range of other medication including chemotherapy drugs, anti-nausea drugs and anti-clotting medication. The evidence does not disclose whether the oxycodone was prescribed exclusively to treat the effects of her cancer or whether it was in part necessary to treat the symptoms of her fractured femur.

28. The deceased continued receiving chemotherapy until at least November 2014 when she relocated to Canberra with her children and was referred to palliative care services at Clare Holland House.

29. The deceased died at her house at 8 Bayly Place Macarthur on 11 April 2015. That property was near the defendant's parents' house and the defendant was living at his parents' house and providing some assistance to the deceased and their children prior to her death.

30. The plaintiff deposed to the fact that whenever he spoke to the deceased she recognised who he was, she spoke about friends and family and remembered things that they had spoken about previously. His evidence was that her conversation was always coherent and her personality and demeanour were unchanged.

31. Substantial portions of the affidavit evidence of the defendant were inadmissible. I made an order under s 136 of the Evidence Act 2011 (ACT) limiting the use to which some items in the affidavit could be put so as to make it clear that the evidence did not extend to evidence of expert medical opinion.

32. Relevant to the issue of testamentary capacity was the evidence relating to the deceased's mental state. The defendant records that the deceased became depressed after being diagnosed with breast cancer. However she was fit enough to return to work for a period.

33. His evidence was that he observed at some stage the deceased suffering from significant anxiety especially during the night.

34. He gave evidence that at times when the deceased was taking oxycodone she had also drunk alcohol. He gave evidence of what he described as abusive or threatening behaviour on the part of the deceased in early 2014. He gave evidence consistent with a breakdown in the relationship between the two of them in February and March 2014 including the involvement of police. He recorded that from March 2014 he spent six months homeless and destitute travelling to and from his parents' house in Canberra and to his uncle's house on the other side of Brisbane. It is clear that the defendant harboured significant resentment against the Queensland Police for their conduct in relation to a protection order applied for or obtained against him.

35. In April 2014 it is clear that the relations between the deceased and the defendant were not good. The deceased's mother and stepfather visited and stayed with them in order to assist with the care of the deceased and her children.

36. In June 2014 the defendant provided some assistance for the children on a regular basis but did not cohabit with the deceased. On 22 July 2014 he was granted a protection order that enabled him to return to the family home and collect some personal possessions.

37. He stated that on 25 August 2014 the deceased's oxycodone was increased to 80 mg per day and Endone to 30-60 mg per day. (That appears to be an inaccurate summary of the discharge medication record but does appear to represent the maximum possible dosage under the then current regime.) He also recorded that in October 2014 the prescribed dosages of oxycodone and Endone increased again.

38. His evidence, although not specific in time, was that the deceased suffered many side-effects throughout her anti-cancer therapy including but not limited to intense fatigue, pain, mouth sores, bedsores, diarrhoea, nausea, vomiting and constipation and nervous system effects such as tingling, burning, weakness or numbness in the hands, having achy muscles, loss of balance, shaking and trembling.

39. The will is a will prepared by solicitors - Creevey Russell Lawyers of Toowoomba in Queensland. The will is executed in accordance with the requirements of s 10 of the Succession Act 1981 of Queensland. It is in an orthodox form. It permits the defendant to reside at a property at 28 Benson Street in Scarborough in the state of Queensland on certain conditions. The residue of the estate is given to the deceased's children. There are various other provisions which it is not necessary to record.

40. The unusual feature of this case is that there is in fact only very limited direct evidence about the deceased's mental condition at the time of executing her will. The will has clearly been prepared by solicitors and executed in accordance with the formal requirements of Queensland law. There is nothing in the terms of the will itself which indicates that it was the product of mental incapacity.

41. The evidence that could be seen as tending in favour of a finding of incapacity is:

(a) that the deceased was suffering from metastatic breast cancer;

(b) that the deceased was taking opiate based pain relief and chemotherapy medication at the time she executed the will;

(c) that she was retired from the Australian public service on the grounds of physical or mental incapacity in March 2014.

42. The defendant also submitted that the terms of the will itself, in particular, the absence of any gift or distribution to the defendant, were inconsistent with the actions of the deceased having regard to their 20 year relationship and the fact that when she returned to Canberra in November 2014 she moved to a property near the defendant's parents' house and was assisted in some respects by the defendant.

43. I do not accept that these matters either individually or collectively are evidence of incapacity in the sense described in Banks v Goodfellow. While a progressive disease such as cancer may lead to incapacity the mere fact that the deceased was suffering from metastatic breast cancer does not indicate incapacity. The general proposition that proof of serious illness is not sufficient is established by proposition 9 in Bailey v Bailey set out above. Insofar as the deceased was taking opiate based medication, there was no expert evidence that would indicate the likely effects of that medication on capacity and no lay evidence to indicate that as at July 2014 it had any relevant effect on her capacity. The document effecting retirement from the Australian public service does not indicate the nature of the incapacity that existed and does not assist in determining whether or not there was any mental incapacity. Even if there was mental incapacity sufficient to warrant a retirement from the public service, the existence of that incapacity does not of necessity indicate incapacity for the purposes of the execution of a will.

44. Therefore, in my view the evidence does not displace the presumption that the plaintiff had the capacity arising by reason of the execution of her will and the terms of that will.

45. In any event, in case I am wrong in concluding that the presumption has not been displaced, considering all of the evidence I am satisfied that the plaintiff had capacity. Although the evidence about her capacity was sketchy, and to that extent less than satisfactory, in my view the following matters indicate that the deceased had capacity:

(a) the logical form and formal execution of the will;

(b) the fact that having regard to the deceased's circumstances, namely being seriously ill, having a poor relationship with her husband and having young children, the dispositions disclosed in the will appear to be rational ones;

(c) the certification by Dr Angel one month prior to the execution of the will that the deceased was cognitively intact and able to make decisions;

(d) the record from the medical oncologist at Redcliffe Hospital indicating that the deceased was otherwise fit with no major medical co-morbidities;

(e) the evidence of the plaintiff that the deceased continued to behave in a manner consistent with testamentary capacity.

46. In my view those matters collectively outweigh any possible inference of incapacity arising from the deceased's illness, her medication use or her subsequent conduct.

47. It follows that I am satisfied that the deceased had testamentary capacity when she made her will on 25 July 2014. I will therefore make an order that the caveat lodged by the defendant be set aside.

48. Counsel for the plaintiff submitted that I should make an order in relation to documents as an exercise of the inherent power of the Court and in order to efficiently and without further expense permit those documents to be obtained. I was not referred to any statutory provision or authority that demonstrated that it was open to make such an order at this stage. It was not suggested that the order was in the nature of an order for discovery relating to any final relief in any proceedings.

49. I am not satisfied that I should make any such order. Probate has not yet been granted. Once it is granted then the executor will be obliged to administer the estate. If there are particular difficulties with obtaining documents relating to the estate which are within the possession or control of the defendant then it may be that further proceedings are available and necessary. However I am not satisfied either as to my power or as to the appropriateness of making any order at this stage.

50. In the event that the plaintiff was successful he sought an order for costs on an indemnity basis. The defendant submitted that in any event no order for costs should be made against him. In my view it is appropriate that costs follow the event. The response by the defendant to the proceedings was both unusual and unhelpful. While the solicitor for the plaintiff quite appropriately sought to correspond with the defendant in an attempt to resolve any issue that gave rise to the lodgement of the caveat the defendant responded in a way which did not rationally engage with the issues that were to be determined in the proceedings. I refer in particular to the email of 26 June 2015 at 2.29 pm which is Annexure I to the affidavit of the plaintiff. There was also unusual and unnecessary conduct which made service of the proceedings more difficult. Further, it was not a case where there was proper evidence put forward which created a real issue as to the testamentary capacity of the deceased. The material was, however, enough to require a hearing of the proceedings over most of a day, largely to address the admissibility of the defendant's evidence. In my view the case warrants a better than usual costs order. It appears to me to be a case where the indemnity given by a costs order should be more generous than that which would be provided by a party and party costs order. In my view it is an appropriate case in which to make an order on a solicitor and client basis.

1. That the caveat on probate number C245 dated 18 June 2015 filed by the defendant on 18 June 2015 be set aside pursuant to r 3069(4) of the Court Procedures Rules 2006 (ACT).
2. That the defendant pay the plaintiff's costs of the proceedings on a solicitor and client basis.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.