_Banks v Goodfellow_

_Banks v Goodfellow_ - [2001] QSC 177 - QSC 2001 case summary — Zoe

[155]

[146] Shortly after that, Marliss left Derek's residence because she became very upset with what he was saying. Before she left Derek she said he told her that she had better not tell anybody about what he had been saying. She said that she was very worried and told her husband who was in Adelaide with their child. She then told Anna. She said that she did not even know at that stage whether the testator had made a will or whether he intended to make a will because he simply never talked about that to her. After discussing the matter with her, Anna advised that she had no choice but to tell the testator. They were both upset about the whole matter. In any event, with Anna accompanying her, Marliss told her father about what Derek had been saying and it made him very angry. He then said that he could not believe Derek was talking about his will because he was not even dead yet and observed that he had Benjamin and Derek as executors of his will. After about 5 minutes he told Anna to contact immediately his solicitor, James Walker, on the telephone. She said that when Anna had raised Mr Walker she handed the telephone to the deceased who said "I've got a bit of problem here, can you come over and see me?" She said until that time she did not even know that her father had made a will. In the course of her discussion with the testator, he told her that his will wasn't 100% equal because neither Derek nor Nicole were in the business. She asked him why that was so and the testator said that he was happy with the way the business was running, that it was only as good as the people running it and if the people running the business aren't doing it properly it would fail. He said it could even fail within a year. She said she suggested to the testator that if he decided to leave Nicole and Derek out of the business, he should talk to Derek and explain why because if he did not explain Derek would always wonder why he had not been left a share in the business. The testator told Marliss he would have a talk with Derek, and she asked that he not inform Derek that she had told him what Derek had been saying because she did not want to fall out with him. She said that a day or two later while the testator was still in the Mater Hospital, Derek visited him. She said that she left the room to the two of them and went down to get a cup of coffee; she sat down having coffee with Nicole. She said that the visit Derek paid to the testator was a long one - something like 2 hours; she said eventually she observed Derek walk into the coffee shop, sat down near her and Nicole without talking to them, and then said that he was going home and left.

[164]

[155] On 24 August, Mr Walker telephoned the testator as he was leaving home and said that he would see him in about 20 minutes. He said that he arrived at Wesley Hospital at about 7:00 or 7:30am and made notes of the interview. He said that the testator was sitting up in a chair beside his bed eating. He said that the testator was "a bit cranky" because the room needed tidying up. He said the testator got up from the chair and moved to the other side of the bed, moving his monitor with him and plugging it in on the other side of the bed. He said that the testator then sat down on a chair beside him. The testator told Mr Walker that he was concerned about there being only 3 trustees - Benjamin, Marliss and Anna. He said he had decided to appoint all 4 children and Anna because he thought that might keep peace in the family. He repeated that as far as the shares in Dymark were concerned, only the people running the business should get those shares because if there were squabbles, the business could go down in less than a year. He said his bequest to Marliss was always going to stay but that apart from the division of the Dymark shares, he wanted all 4 children to take everything equally except for the two legacies of $50,000.00 each to Sam and Yani. He said that he wanted the legacy left to Anna in his earlier will to be removed because she was going to participate in a fifth of the residual estate. The testator then asked Mr Walker to go through the share information because Mr Walker had brought a file with him. The share information related to shares in Glideway; various of the children had various shares, Marliss however had 3125 shares in Glideway - significantly more than the other children had. There was then a discussion as to drawing a will so that the devise of the Adelaide property previously made to her and to be repeated in this will was to be made conditional upon her transferring a certain number of the shares, she held in Glideway, to the other children, the aim being to equalise everything else so that the residual estate might then be divided equally between Anna and the four children. He said that the testator told him that he loved Derek as a son but that he was mean and that he had to be very careful of what he did because it was difficult to get along with Derek.

[165]

[156] Having taken full notes of the instructions he was given, Mr Walker then went back to the office, checked out the share register of Glideway and did some calculations on share numbers and the steps necessary to see that at the end of the day each of the children had an equal number of shares in Glideway. After doing that, the solicitor telephoned the testator and explained to him how the testator's instructions could be implemented. That was satisfactory to the testator. Mr Walker gave instructions to his secretary who then typed out the will of 24 August and then accompanied Mr Walker to the Wesley Hospital on 24 August where they arrived in the early afternoon. Mr Walker and his secretary went up to the room occupied by the testator. He found the door open and he saw Derek there. He said he was sure he had seen Derek either early in the morning when he had taken instructions or in the afternoon when he attended Wesley Hospital to have the will read over to the testator and executed. He said that whenever it was that he saw Derek upon his arrival, Derek was sitting down beside the testator's bed talking to him. He said that he said hello to Derek who then left the room. He seemed to think it likely that it was in the afternoon that he saw Derek because he was then accompanied by Sophie. He said that the testator appeared to be in more pain and he noted that down, but that "mentally he was still alert as ever and he was also talking about some other issues." He talked about the conduct of the company and expressed the view that the debtor's ledger was getting too big and some steps ought be taken to correct this and he asked his solicitor to get in touch with Anna and to start issuing summonses against debtors if it was thought appropriate. In his view, the testator was talking and acting rationally and lucidly about Dymark and its affairs and about how he was going to dispose of his goods. Mr Walker said, presumably for the same reason as he had previously given him a test, that he gave him a test as to his testamentary capacity. In fact his secretary recorded the questions and answers given in the conduct of this test and later typed them out. Mr Walker said the testator did not appear to him to have any difficulty answering any of those questions asked.

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