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[2006] QCA 494
Court of Appeal (Qld)
2006-11-24
Jerrard and Holmes JJA and Philip McMurdo JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Dore (as executor of the will of W H B Chenhall dec’d) [2006] QCA 494
PARTIES: CHRISTOPHER PATRICK DORE (as executor of the will of William Hilton ChenhAll deceased) (plaintiff/respondent) v PETER WILLIAM BILLINGHURST and PAUL ERNEST BONE (as personal representative of the late Hilde Chenhall**)** (defendant/appellant)
FILE NO/S: Appeal No 5801 of 2006 SC No 5716 of 2005
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 24 November 2006
DELIVERED AT: Brisbane
HEARING DATE: 9 October 2006
JUDGES: Jerrard and Holmes JJA and Philip McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: Appeal dismissed****Both parties to the appeal should have their costs assessed on the indemnity basis and paid out of the estate of the testator
CATCHWORDS: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – EVIDENCE – ONUS OF PROOF AND WEIGHT OF EVIDENCE – respondent acted as solicitor for testator since 1987 performing mainly conveyancing of residential and commercial properties – respondent drafted a will on behalf of testator which significantly benefited the respondent – trial judge upheld the validity of the will and the substantial gift to the respondent – whether respondent discharged burden of proof to demonstrate satisfactorily that the testator had testamentary capacity at the time he made his will and that he knew and approved the contents of the will at the time he made it – whether the trial judge properly rejected the evidence of the testator’s widow regarding meetings between the testator and the respondent – whether the respondent ought to have been ordered to pay the costs of the action regardless of whether or not probate was granted – whether respondent had a duty to refuse to make a will that benefited him / Banks v Goodfellow (1870) LR 5 QB 549, considered / Barry v Butlin (1838) 2 Moo PCC 480, considered / Boreham v Prince Henry Hospital (1955) 29 ALJ 179, considered / Briginshaw v Briginshaw (1938) 60 CLR 336, cited / Fuller v Strum [2002] All ER 87; [2001] EWCA Civ 1879, considered / G v H (1994) 181 CLR 387; (1994) 124 ALR 353, considered / Kantor v Vosahlo [2004] VSCA 235; Appeal No 35 of 2002, 16 December 2004, considered / Gianoutsos v Glykis (2006) 162 A Crim R 64; [2006] NSWCCA 137, considered / In re Nickson [1916] VR 274, considered / Leitch & Anor v Dore [2005] QSC 069; BS 2343 of 2005, 8 April 2005, considered / Nock v Austin (1918) 25 CLR 519, considered / Ramcoomarsingh v Administrator-General (Trinidad and Tobago) [2002] UKPC 67, cited / Re Fenwick deceased [1972] VR 646, considered / Re a Solicitor [1975] QB 475, cited / Sherrington v Sherrington [2005] EWCA Civ 326, considered / Thomas v Jones [1928] P 162, cited / Wintle v Nye [1959] 1 All ER 552, cited / Worth v Clasohm (1952) 86 CLR 439, considered
COUNSEL: D G Mullins SC, with D J Morgan, for the appellant / T W Quinn for the respondent
SOLICITORS: McCullough Robertson for the appellant / de Groot & Co for the respondent
JERRARD JA: This appeal principally challenges findings of fact in a judgment delivered on 16 June 2006, upholding the validity of a will of William Hilton Boyd Chenhall deceased (“the testator”) made 30 June 2003. The judgment ordered that a grant of probate of that will in solemn form issue to the respondent Christopher Dore. The appellants are the personal representatives of the testator’s widow Hilde Chenhall, and the respondent Christopher Dore is the solicitor who drew the will and who took a substantial gift under it. The judgment under appeal upheld that will and that gift.
The testator died on 11 February 2005 at Buderim, and the primary cause of his death was lung cancer. Mr Dore obtained probate in common form on 17 March 2005, but his widow, who was by then herself suffering from cancer, obtained an order under r 640 of the Uniform Civil Procedures Rules 1999 (Qld) (UCPR) that required Mr Dore as executor to ask this Court in its trial division to pronounce for the full and validity of the will in solemn form. The widow gave evidence in the proceeding in February 2006, but died in March 2006 during the part heard proceedings, and before judgment. Her will directed the present appellants to take all lawful steps to proceed to trial to ensure that Mr Dore received no benefit from her husband’s estate. That testamentary direction explains this appeal.
Background events and matters
Mr Dore is a solicitor who had often acted as the testator’s solicitor since 1987, mostly doing conveyancing of residential and commercial properties. He also did some work in connection with the testator’s mother’s estate. Over the years his professional relationship with the testator developed into friendship.1
Mr Dore had ceased practice as a solicitor in April 2000 to establish a financial planning business, but that was not successful. The testator lent him $86,000 in September 2001 on an unsecured, seven year loan at five per cent per annum interest. The amount was equal to the debts from the unsuccessful financial planning venture. Around the time of that loan the testator and his wife moved to a property at Lake MacDonald, and thereafter each week day either Mr Dore or his secretary would collect the testator’s mail, including that of his companies, from a post office. The testator would come to Mr Dore’s office most mornings, open the mail, and they would talk, usually about the stock market, the economy, and the testator’s investments. Sometimes Mr Dore arranged the purchase of shares and sometimes he researched topics for the testator on the internet; he did not charge a fee for any of those matters.
In April 2002, Hilde Chenhall had telephoned Mr Dore and she said her husband was in bed and in great pain, and that he refused to let her call an ambulance. Mr Dore immediately rushed to the testator’s property, arriving at about the same time as the ambulance he had insisted she summon, and Mr Dore accompanied the testator to hospital. It transpired the testator had a burst duodenal ulcer; the testator greatly appreciated Mr Dore’s help.
The testator was a wealthy investor, and he and his wife were directors of and shareholders in Kireen Pty Ltd, and a company Muffinwell Pty Ltd, a beneficiary under a discretionary trust of which the company Kireen was the trustee. Another company, Muffincastle Pty Ltd, was a corporate beneficiary of a separate trust. The testator used those corporations to control the assets he held through trusts. Muffincastle had been controlled by the testator and his sister until mid-2002, when her ordinary share in that company was transferred to the testator, but by oversight a separate share held by her was not. Those share transfers were part of a process in 2002 of distributing the proceedings of that separate trust among the beneficiaries.
In July 2002 the testator asked Mr Dore to become the secretary of the companies Kireen, Muffinwell, and Muffincastle, and to accept powers of attorney from Muffinwell and Muffincastle. At that meeting (on Mr Dore’s account of it in evidence) the testator also told Mr Dore that the testator was going to leave Muffincastle to Mr Dore, and said that if Hilde Chenhall predeceased the testator, the testator would leave his entire estate to Mr Dore. The testator did not then give any instruction to prepare a new will. That prospect was first raised in either February or March 2003, in one of the many morning conversations between the two men in Mr Dore’s office; but no new will was prepared then.
“Attg Bill27/6/03
re: Will.
C P D – Executor & Trustee
- 2 shares in Muffincastle P/L – to C P D
-$100,000 to each of the children of Rosemary Leitch
-Bal of estate to Hilde
-If Hilde Predeceases
I don’t know
-$200K – to each of the children
-$1,000,000 – Rosemary
-Bal to C P D”
(C P D is Mr Dore; Rosemary Leitch is his sister; “the children” are her two children).
He did not tape record those instructions, nor call in his legal secretary, a Ms Whiteley, to witness and record the instructions, nor have them repeated in the presence of Mr McKenzie, the solicitor whom Mr Dore had previously suggested to the testator as a solicitor who should draft the will. The appellants are particularly critical of those omissions, and submit that the “I don’t know” recorded on 27 June – as to what should happen if his wife predeceased him – shows that the testator had not given clear instructions on that date. But the remainder of the note accords with the terms of the will, the typing of which was completed on Monday 30 June 2003; and the issue is whether the testator knew and approved the contents of the will as executed by him.
It read:
“1. I REVOKE all former Wills and Testamentary dispositions made by me.
I APPOINT CHRISTOPHER PATRICK DORE of 61-85 Pryor Road, Verrierdale via Eumundi in the State of Queensland (hereinafter referred to as ‘my Trustee’) Executor and Trustee of this my Will.
I GIVE AND BEQUEATH to each of the surviving children of my sister ROSEMARY EVE LEITCH the sum of One Hundred Thousand Dollars ($100,000.00) for their sole use and benefit absolutely.
I GIVE DEVISE AND BEQUEATH all my shareholding in MUFFINCASTLE PTY LTD A C N 010 939 349 to the said CHRISTOPER PATRICK DORE for his sole use and benefit.
I GIVE DEVISE AND BEQUEATH the residue of my estate both real and personal of whatsoever nature or kind and wheresoever situate to my wife HILDE CHENHALL for her sole use and benefit absolutely PROVIDED HOWEVER that should the said HILDE CHENHALL predecease me or fail to survive me for a period of thirty (30) days then the following clauses of this my Will shall take effect but otherwise these clauses shall be of no effect.
5 I GIVE AND BEQUEATH to each of the surviving children of my sister ROSEMARY LEITCH a further sum of One Hundred Thousand Dollars ($100,000.00) for their sole use and benefit absolutely.
I GIVE AND BEQUEATH to my sister the said ROSEMARY EVE LEITCH the sum of One Million Dollars ($1,000,000.00) for her sole use and benefit absolutely.
I DEVISE AND BEQUEATH the residue of my estate both real and personal of whatsoever nature and wheresoever situate to the said CHRISTOPHER PATRICK DORE for his sole use and benefit absolutely.
IT IS my desire that I be cremated.”2
The other evidence was that the testator was a literate and intelligent man, described as an astute investor and very interested in the assets he controlled. He and his wife were private people, who had no children, and the testator’s only brother had died in 1997. His sister Mrs Leitch was already a wealthy woman. Mr Dore’s evidence was that the testator rejected a suggestion by Mr Dore on 27 June 2003 that the testator leave $500,000 each to Mrs Leitch’s two children, and the same amount to her; that was rejected because the testator said he had hardly seen her children, who could expect to inherit their mother’s money. Instead, the testator settled on bequests of $100,000 to each of them. Mr Dore’s evidence was that the “I don’t know” was the testator’s initial response when discussion turned to what would happen if Hilde Chenhall died before the testator, and the remaining notes record the outcome of that discussion. On Mr Dore’s evidence, the testator insisted that the residue go to Mr Dore if Hilde Chenhall died first.
Mr Dore’s evidence was that the testator told him that Muffincastle owned shares and held about $350,000 in cash. This Court was told that as at the date of the testator’s death, those shares were worth about $880,000. It is apparently worth even more than that now. Because Mr Dore drafted that will which so significantly benefited him, that circumstance, to quote the dictum by Isaacs J in Nock v Austin (1918) 25 CLR 519:
“...is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the will.”3 (Citing, inter alia, Barry v Butlin4).
“But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction: Fulton v Andrews. I do not understand the righteousness of the transaction to mean that the will was a wise and just one, but that there was no unrighteousness in the conduct of the person who drew the will and took a benefit under it.”
That was the reason for the careful examination of the evidence in the judgment under appeal.
The appeal
The widow’s evidence
The appellants’ lengthy written submissions began with submissions on the second matter, namely the rejection of the widow’s evidence. Unfortunately the written submissions did not describe the evidence said to be wrongly rejected, nor how accepting that evidence would have led to a different result. There is also a complaint that the learned judge had failed to deal with the corroborative evidence of a Mr Halliday of the circumstances of a meeting of 18 March, but that meeting and that evidence was not described either, in those submissions.
With some coaxing, senior counsel for the appellants described the evidence of the widow which was rejected, and which ought to have been accepted, as her account of meetings of 9 July 2002, 17 November 2004, and 18 March 2005. Her evidence regarding 9 July 2002, when Mr Dore met her husband at their home at Lake McDonald, contradicted Mr Dore’s affidavit evidence that the testator specifically told her in Mr Dore’s presence that he intended to leave the company Muffincastle to Mr Dore. Mrs Chenhall denied that in her oral evidence given on 21 February 2006, which was given before Mr Dore filed his affidavit – on 27 March 2006 – but about which claim she was cross-examined. She also denied in cross-examination having been given the further information by her husband that day that in the event she predeceased him, her husband intended to leave his entire estate to Mr Dore. Mr Dore’s affidavit made that claim too.
The second matter specified in oral argument as one on which the widow’s evidence should have been accepted was her account of a meeting on 17 November 2004 at Mr Dore’s office, when she made a new will. It was put to her that Mr Dore had obtained her previous will from a safe custody packet, and also the testator’s will, and gave the latter to the testator. Hilde Chenhall could not recall her previous will being extracted, but could recall discussion of specific legacies she proposed; she agreed the testator’s will was produced, but swore that Mr Dore put his hand on that will and thrust it at her across the desk, then returned it to his own possession. She denied the suggestion made in cross-examination that the testator had explained to her the terms of his own will.6 Mr Dore’s affidavit evidence was in accord with the suggestions put to the widow, but rejected by her. The widow’s affidavit had described her recollection of her preparation of her own will in November 2004, and she had sworn in it that Mr Dore did keep covered with his hand the document he had described as the testator’s last will.
The appellants’ oral submissions on the appeal, although identifying the widow’s accounts of what was done and said on 9 July 2002 and 17 November 2004 as the evidence which the judge should have accepted, did not include submissions as to why the judge should have done that, or why the judge should have rejected Mr Dore’s account of those two meetings. On Mr Dore’s version, the widow learnt on the first occasion of an intention to make Mr Dore the residuary beneficiary if she died before her husband, and of the specific gift of the Muffincastle shares; and on the second occasion she learnt that those intentions had been carried out. In fact, the learned trial judge did not refer to either the evidence given by Mr Dore or by the widow about either of those two occasions, and that evidence accordingly played no part in the conclusions the judge drew. The appellants failed to establish any reason why the judge should have preferred the widow’s version over the solicitor’s or resolved that conflict of evidence, and without some reason for the judge having done that, that ground of appeal really went nowhere. It seemed ultimately to have been abandoned in paragraph 1.13 of the appellants’ outline of argument in reply, although a great deal of time was spent in advancing it in the written submissions.
Mr Halliday’s evidence
Complaint was also made that the learned judge had not considered evidence from a Mr Halliday supporting the widow’s account of events on 18 March 2005, an occasion on which Mr Dore said he visited the widow and discussed, or attempted to discuss, a number of matters with her, including the possibility that a loan owing from Muffincastle (in an amount of $555,390) to the testator should be forgiven. (Mr Dore’s affidavit swore the loan had since been repaid). There seems to be very little substantive difference among the accounts about that Muffincastle debt given by Mr Halliday, (the Westpac Bank Manager present at that meeting on 18 March), that of Mr Dore, and that of the widow; each account agrees that in the course of a conversation lasting over an hour Mr Dore produced financial records of the company and inquired about forgiveness of the debt, and that the widow did not agree to that that day. Irrespective of whether Mr Dore should have been pursuing his own interests that day, there is no relevant conflict in the evidence.
What the learned judge had found was that the widow, when elderly, desperately ill, and grieving, had somehow come to the irrational view that her husband’s unexpectedly sudden death had been hastened by something Mr Dore had said to him in the many hours the two men spent together in her husband’s last days. The judge described her as having become convinced of this by 15 March 2005, and as having challenged Mr Dore with this baseless proposition when they met on 18 March. The judge recorded that on that date she had asked Mr Dore what he had said the night before her husband died that had killed him, and that she disbelieved the answer, “Nothing Hilde, when I left him, he was happy”. Thereafter she had decided that Mr Dore had to be punished; and so where her evidence was controversial, the learned judge did not act on it. The judge noted that when testifying, the widow had made no attempt to disguise her animosity towards either Mr or Mrs Dore. That observation is supported by the record.
The appellants’ written outline acknowledges that the widow had become hostile to the Dores, and that she acquired an irrational opinion that her husband’s death had been hastened by something Mr Dore said to him, as the judge described. But the outline challenges the conclusion by the judge that the widow had decided that Mr Dore had to be punished by the litigation. That finding relied on two diary entries the widow made on 27 July 2005, which support the opinion by the learned judge. A good deal of the written submissions which criticised the judge for rejecting unspecified evidence by the widow concentrated on the delay by Mr Dore in explaining to the widow the circumstances in which the will was drawn and executed. That explanation had first appeared in Mr Dore’s affidavit filed immediately prior to the commencement of the trial in March 2006, and the complaints about that delay in the outline of argument develop, in the written submission, into an argument that the learned judge ought not to have allowed Mr Dore his costs out of the estate. But the appellant did not get leave to appeal the order that the indemnity costs of the parties be paid from the estate, so the submissions about Mr Dore’s delay in explaining the circumstances of the will also lead nowhere. The appellants did not establish that any contentious evidence given by the widow should have been accepted, which if acceptable would or could have made a difference to the judgment under appeal.
Non-description of testamentary capacity
“...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.”7
The appellants refer to the discussion of that test by Fullagar and Kitto JJ in Boreham v Prince Henry Hospital (1955) 29 ALJ 179, where their Honours wrote:
“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.”8
Evidence of testamentary capacity
The evidence on that point, referred to by the learned judge, included that the testator had consulted a Dr Meyer in person on 27 June 2003, the day he gave Mr Dore instructions for the will. Dr Meyer also spoke to the testator by phone on the day the will was executed. Dr Meyer’s evidence was that the deceased had presented with a painful left big toe on 27 May 2003, and on 27 June 2003 a provisional diagnosis of arterial insufficiency was made. Due to severe pain a synthetic opioid pain killer Tramal was prescribed, with 50mg tablets to be taken as required. On 30 June 2003, the day the will was executed, more 50mg Tramal tablets were prescribed. Dr Meyer assumed that the testator was taking between six to eight tablets per day. When seen on 4 July 2003 his pain was sufficiently severe to require an increase in the Tramal to 200mg of sustained release tablets twice daily, with a milder pain killer Paradex to be taken for breakthrough pain as required. More Tramal was prescribed in 50mg and 200mg sustained release on 7 July 2003, and on 10 July the testator was admitted to hospital. A diagnosis of arterial embolism was made; but after some two months the toe returned to normal.
Dr Meyer’s evidence-in-chief described Tramal as similar to Codeine but “probably a little bit stronger”, being a moderate analgesic, and as at 27 June 2003 the doctor was not aware of any reason why the testator would be facing hospitalisation. His pain was getting worse from that date until 10 July, and on that date the complaint was of increased constipation and urine difficulty, which the doctor said were well known side effects of opioids. The reasons for judgment recorded that nothing in Dr Meyer’s evidence supported a case that the testator lacked testamentary capacity on either 27 or 30 June 2003, and remark on the significance that there was no complaint of any side effect from Tramal until 10 July, after the dosage had increased on 4 July; and of the limited nature of those complaints.
The learned judge referred too to the evidence of the two witnesses to the testator’s signature, a Ms Whiteley and Ms Williams. Ms Whiteley is a legal secretary employed by Mr Dore, and Ms Williams a real estate agent in a nearby office. Ms Whiteley’s evidence was that on 30 June 2003 the testator was chatty, bright, and did not appear either dull or drugged, with no smell of alcohol and no apparent effect from his sore toe on his mental alertness. She swore she had witnessed many wills being made during the period of her nine years employment with legal practitioners, and that she had no doubt that the testator knew what he was doing when he signed his will. Her evidence as to his apparent mental alertness was not challenged in cross-examination. She knew the testator from his many visits to Mr Dore’s office.
Ms Williams, who regularly saw the testator parking out the back of Mr Dore’s office, and whom she had observed going into that office a lot over the years, recalled in her affidavit that on the date she witnessed the testator’s will, he appeared to her no different from how she observed him on many other occasions, and that while he was elderly, he appeared to be mentally alert. She had no reservation or hesitation in witnessing his signature on that will. Cross-examination of her was really restricted to suggesting she had so little to do with him that day that it was difficult for her to form any judgment. But the point is that both those witnesses saw and heard nothing suggesting any incapacity, and none was raised by Dr Meyer’s evidence. Mr Dore likewise gave evidence that he had no reason to doubt the testator’s capacity at that time. It was plainly open to the judge to accept that evidence, and to conclude that testamentary capacity was established, as the judge did. The judge also referred to other evidence describing the testator as a careful and cautious person, and the appellants failed to show any basis on which to disturb the positive finding that Mr Dore had established testamentary capacity, or for doubting whether the learned judge applied the correct test; the judge specifically considered testamentary capacity as a separate issue in a carefully structured judgment.
Knowledge and approval – the test
“Both testamentary capacity and the requisite knowledge and approval of the contents of the Will are established.”10
That conclusion expressed the test as the appellants say it should be expressed, so there is nothing in the complaint of misdescription of it.
“71. Although in Fulton v Andrew (1875) LR 7 HL 448 at p. 472, Lord Hatherley referred to ‘the onus of shewing the righteousness of the transaction’, the court is not required to make some moral judgment nor is it given some licence to refuse probate to a document of which it disapproves (see Fuller v Strum [2002] 1 WLR 1097 at paras. 33 and 65). As Chadwick L.J. said in that case in para. 65:
‘The question is not whether the court approves of the circumstances in which the document was executed or of its contents. The question is whether the court is satisfied that the contents do truly represent the testator’s testamentary intentions.’”
Knowledge and approval – the evidence
The evidence as to knowledge and approval included Mr Dore’s evidence, the evidence of Ms Whiteley, and evidence from both a Mr Beerling, and a Mr Elms. In February or March 2003 the testator said he decided to make a new will and that he wanted to give Mr Dore the company Muffincastle, and Mr Dore told the testator that another lawyer should prepare the will. Mr Dore said he suggested a Mr McKenzie, a solicitor practising in nearby premises. Mr McKenzie gave evidence that he recalled approaches from Mr Dore concerning the preparation for a will for Mr Chenhall, because Mr Dore might be a beneficiary under it. Mr McKenzie agreed to receive instructions from the testator to prepare the will, but the testator did not contact Mr McKenzie. That accorded with Mr Dore’s evidence that he had approached Mr McKenzie: the evidence supports an intention to give Mr Dore a gift.
Ms Whiteley also gave evidence of hearing the testator tell Mr Dore, quite a while before the will that was actually made, that the testator was going to leave Mr Dore “one of my small companies”, and that Mr Dore had said to the testator that he thought they should get another lawyer to do the will, and Mr Dore had suggested Mr McKenzie. Mr Dore then asked Ms Whiteley to get Mr McKenzie’s phone number, which she did, giving that to Mr Dore, and she heard Mr Dore ring someone – apparently Mr McKenzie – asking him to see a client about drafting a will in which Mr Dore was to be a beneficiary. Her observations included that the testator was not happy with the advice that another solicitor draft the will. She deduced that from the testator’s response; she was familiar with his behaviour.
A Mr Beerling, a builder in Noosa, who had known the testator and his wife since early 2001, swore affidavit evidence to the effect that Mr Dore and the testator were clearly good friends, and that the testator related to Mr Dore as a father would to a son. He recalled a conversation at a coffee shop in 2003 in which the testator said to the two of them that he wanted to make a (testamentary) gift to Mr Dore of the company Muffincastle, and that there was a discussion in which Mr Dore suggested gifts should be left to the testator’s nieces and nephews, which the testator was unwilling to do. Mr Beerling recalled that Mr Dore advised the testator that he had told the testator to see another lawyer about his will, and that the testator said he would get onto it. Mr Beerling described the testator as a very intelligent but conservative man, and his description of that conversation was not challenged in cross-examination.
Mr Dore’s evidence was that on 27 June 2003 the testator came into his office and spoke of making a new will, some months since that topic had been raised, and Mr Dore again spoke of his anxiety about preparing a will because of the proposed bequest to him. The testator was adamant that Mr Dore should draft it, and Mr Dore accepted those instructions. He began drawing up the will the next day, a Saturday, but did not finish it; on 30 June 2003 the testator returned to his office and said that he had to go to hospital, and that he wanted to sign the new will. Accordingly, Mr Dore completed typing it in the testator’s presence and Mr Dore said the testator then read it. Next, Mr Dore read it out to the testator, and gave it to him, and the testator read it himself. Mr Dore then left to arrange for the witnesses.
The bigger picture and the standard of proof
“It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.”15
“But ‘the righteousness of the transaction’ is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. ...where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased.”19
Chadwick LJ wrote in that case that the learned judge whose decision was under appeal had fallen into error because the judge failed to keep in mind that the task the judge was engaged in was that of assessing evidence and reaching conclusions as to fact on the balance of probability.20 His Lordship added21 that there was nothing in the statement of the law by the Privy Council in Barry v Butland which suggested that the standard of proof required in relation knowledge and approval in a probate case was other than the civil standard, namely that the court had to be satisfied on the balance of probability that the contents of the will did truly represent the testator’s intention (at [70]). Those judgments do not support the proposition that the level of satisfaction required varies with the circumstances.
In Kantor v Vosahlo, the Victorian Court of Appeal overturned a decision in which a trial judge, considering whether the executor had established testamentary capacity, referred to a “heavy” onus of proof. Each member of the court concluded that the judge had imposed too high a standard. Ormiston JA referred to the judgment of Dixon CJ, Webb and Kitto JJ in Worth v Clasohm (1952) 86 CLR 439 at 453, and to the decision in Boreham v Prince Henry Hospital, describing the latter decision as one frequently overlooked. Ormiston JA considered that those decisions required a court, in circumstances of doubt, after vigilant and careful scrutiny, to be satisfied affirmatively of a deceased’s capacity to make a will22, and expressed the opinion that the standard of proof was the conventional civil standard.23 Buchanan and Phillips JJA agreed in a joint judgment that the circumstances did not alter the standard of proof, and that there was no warrant for describing the onus on the propounders of a will as “heavy”, or the standard as other than the ordinary one applicable in the civil suit, the balance of probabilities.24
In Gianoutsos v Glykis, McClellan CJ at common law, giving the judgment of the court, pointed out that Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 had stressed that the test in civil litigation was the balance of probabilities, and that in G v H (1994) 124 ALR 353, the joint judgment of Deane, Dawson, and Gaudron JJ had included that:
“It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that ‘[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.’”25
Those recent decisions do not provide support for the submission that the onus of proof was other than the civil standard described in Boreham v Prince Henry Hospital. The appellants have not shown any error by the learned judge in concluding that standard had been satisfied. Their arguments really conceded it in respect of the gift Mr Dore actually took, and they contested only the adequacy of the evidence of instructions having been given – and the testator having approved – the gift over should his wife predeceased him. The evidence of Mr Beerling supported Mr Dore’s account that those instructions were given, as did Mr Dore’s skimpy handwritten note.
Mr Mullins developed at length in his oral submission an argument that the evidence raised an implication that the testator had not completed giving instructions on 27 June 2003 about what would happen if he predeceased his wife. That submission was based on the “I don’t know” in the handwritten note, and on the fact that on Saturday 28 June Mr Dore did not complete a draft of the will, stopping after the increased gift to the children of Rosemary Leitch. Mr Dore could not recall why he stopped at that moment, suggesting that perhaps his wife had telephoned him; Mr Mullins argued that perhaps some uncertainty or inconclusiveness in the instructions was demonstrated. Mr Mullins also suggested there was some uncertainty shown in the note of the proposal that each of Rosemary Leitch’s children receive $100,000, the note that they receive $200,000, and in the description in clause 5 of the will (in the event Hilde Chenhall predeceased the testator) that there be a “further sum” of $100,000 to those surviving children.
With respect, I see no internal inconsistency in the handwritten note. Mr Dore explained that after an initial “I don’t know”, the testator had settled upon increasing the gift to Rosemary Leitch’s children by $100,000, as is reflected in clause 5 of the will, with which the note is consistent. Further, Mr Dore’s evidence of the circumstances in which the will was executed, supported by the evidence of Ms Whiteley and Ms Williams, simply leaves no room for what Mr Mullins described as residual suspicion still remaining on the table. Those submissions are no better than unsupported speculation.
It was open to the learned judge to conclude on the evidence that Mr Dore had affirmatively satisfied the judge that the testator knew and approved the entire contents of the will and that the whole will should be admitted to probate. It may have been open to the judge, had the judge not been so satisfied in respect of the whole will, to admit to probate only on those parts of the will which provided for the (in fact) undisputed gifts, including that of Muffincastle to Mr Dore; and to not admit to probate the last portion of it. Some authority for such a course is found in Re Fenwick [1972] VR at 651, in Thomas v Jones [1928] P 162 at 165, in Theobald on Wills (London: Sweet & Maxwell, 1993, 15th edition) at p 34, and in (Williams, Mortimer and Sunnucks, London: Sweet & Maxwell, 2000, 18th edition) at p 179 at 13-24. However, it was unnecessary to make any such order in this matter, which would have no effect on the gift to Mr Dore.
“The traditional view … has been that a court of equity will not, on the ground of undue influence as developed by the Court of Chancery, set aside a grant made by a court of probate.
The approach taken in the probate jurisdiction appears to be concerned with the existence of a testamentary intention rather than the quality of that intention or the means by which it was produced. It is a concern of this latter nature which finds expression in the treatment by equity of dispositions inter vivos.”
An allegation of undue influence, in the sense in which that term is used in the probate jurisdiction, is equivalent to saying that the testator was coerced into making this will, and on no view of the facts was that case open. And in the present case, there was no argument that the equitable doctrine of undue influence should now extend to a will. Nor was there an argument that there should be some impact upon the bequest to Mr Dore in consequence of the law relating to fiduciary obligations.
Accordingly, notwithstanding the appellants’ reliance upon regulatory rules and professional standards, the questions for the trial judge were whether the testator had testamentary capacity and he knew and approved of the contents of his will. The question of whether it was proper for Mr Dore to have so acted did not require an answer, except in so far as it was relevant, as in my view it clearly was, to the question of costs. Despite the appellants’ outline arguing that Mr Dore should not have his costs for this reason, that argument was abandoned by the appellants’ oral argument.
I agree with Jerrard JA, largely for the reasons given by his Honour, that the appellants do not demonstrate that the trial judge was wrong to conclude that the testator had testamentary capacity and that he knew and approved of this will, at least as in so far as the relevant bequest to Mr Dore is concerned. I wish to add to his Honour’s comprehensive analysis of the evidence and authorities, two matters.
The first is in relation to the arguments about what the trial judge found, or should have found, about the credibility of Mrs Chenhall and Mr Dore. The appellants’ argument strongly criticised the trial judge for failing to discuss and assess the conflicts between Mrs Chenhall’s evidence and Mr Dore’s evidence. The appellants argued that without dealing with those conflicts, his Honour was unable to make a proper assessment of Mr Dore’s version of what the testator had said on occasions as to what he meant to leave to Mr Dore.
Although the Court was asked to grant probate of the entire will, the essential contest, as to knowledge and approval of its contents, was in relation to the bequest to Mr Dore of the shares in Muffincastle Pty Ltd. It was unnecessary for Mr Dore to establish that the testator knew and approved of other parts of this will, and in particular the gift over to Mr Dore of the residuary estate in the event of Mrs Chenhall’s prior death. This explains why the trial judge did not discuss some evidence which related more to the testator’s knowledge and approval of other parts of the will, particularly the gift over.
The appellants’ complaint is not so much that the trial judge erred in resolving the contest between the evidence of Mrs Chenhall and Mr Dore, but that he did not attempt to resolve that contest. But it was necessary for his Honour to do that only if the outcome depended on the evidence of Mr Dore. Had the ultimate question been whether the testator knew and understood the gift over to Mr Dore, then the outcome might have depended on whether Mr Dore was to be believed, in preference to Mrs Chenhall, when for example, he said that at a meeting in July 2002, the testator had said that he intended making a will which would have that provision.
However, the ultimate question was whether the testator knew and approved of the bequest to Mr Dore of the Muffincastle shares. That question did not turn on the credibility of Mr Dore, or the lack of credibility of Mrs Chenhall. Indeed his Honour reasoned to his conclusions, as to the testamentary capacity and knowledge and approval of the will, without any apparent reliance upon his assessment of Mr Dore’s credibility, except by his reference to the facts which supported Mr Dore’s version and which of themselves well proved that the testator knew and understood that he was making this bequest. Just why the trial judge, near the end of his judgment and after reaching his conclusions on the issues for determination, went on to discuss his impressions of various witnesses, including Mrs Chenhall, is not so clear. But his Honour was right to hold as he did, irrespective of whether Mr Dore or Mrs Chenhall was to be believed where their evidence was in conflict.
[64] I agree with the orders proposed by Jerrard JA.
The description of the background facts is taken from the judgment under appeal. ↩
At AR 991. ↩
(1918) 25 CLR 519 at 528. ↩
2 Moo PCC, 480. ↩
BS 2343 of 2005, 8 April 2005. ↩
This evidence is at AR 36-38. ↩
(1870) LR 5 QB 549 at 565 ↩
(1955) 29 ALJ 179 at 180. ↩
At [48] of the reasons for judgment. ↩
At [57] of the reasons for judgment. ↩
Tyrell v Painton (1894) P 151 at 156 (per Lindley LJ). ↩
In the Estate of Osment; child and Jarvis v Osment (1914) P, at 132 (per Sire Samuel Evans). ↩
Nock v Austen (1918) 25 CLR 519 at 523 (per Barton and Gavan Duffy JJ). ↩
Dore
Billinghurst [2006] QCA 494
(1938) 60 CLR 336
(1994) 181 CLR 387
(1994) 124 ALR 353
(1918) 25 CLR 519
(1952) 86 CLR 439
(1998) 194 CLR 457
In May 2003 the testator began to suffer from a condition that caused his left big toe to blacken. His General Practitioner, a Dr Meyer, made a provisional diagnosis in June 2003 of “arterial insufficiency”. On 27 June 2003, when Dr Meyer saw the testator, the latter was in considerable distress with pain in that toe, and Dr Meyer prescribed the analgesic Tramal.
Mr Dore’s account of how he came to draw the testator’s will was that on 27 June 2003 (after the testator had seen Dr Meyer earlier that day) the testator came into Mr Dore’s office, and spoke of making a new will. Mr Dore (again) described the difficulty that his preparing a will which benefited him would cause, because Mr Dore anticipated that the testator’s sister, Mrs Rosemary Leitch, would particularly resent the bequest of the entire residuary estate, worth more than $20 million, to Mr Dore in the event Hilde Chenhall died before her husband. On Mr Dore’s account of events, he reminded the testator that he had agreed to see another solicitor, a Mr McKenzie, to have that solicitor draw the will, but the testator insisted that Mr Dore draw the will.
Mr Dore’s only record of the instructions he received on that important matter was a brief handwritten note, in the following terms:
Ms Whitely’s evidence described hearing the testator say to Mr Dore that “We will do the Will now”, and she recalled Mr Dore reading the will to the testator, the testator appearing to read through it on the computer and saying “Yes that is right”, and the will then being printed out. She watched the testator appear to read it, and he then said words to the effect “This is what we are doing”; and that before it was signed, Mr Dore asked the testator “Have you read it?” and the answer was “Yes, it is right to go”, or words to that effect. All necessary parties then signed the document.
Mr Dore’s evidence was that he gave a photocopy of the will to the testator in an envelope. That copy was found in the testator’s desk drawer in his home.
On 10 February 2005, the day before Mr Chenhall died, a Mr Barry Elms, the Director of a chartered accountancy practice, telephoned the testator, who told him that the testator was leaving Muffincastle Pty Ltd to Mr Dore in his will; and that he wanted to give it to Mr Dore, because he thought Mr Dore had saved his life when the testator had a stomach ulcer, and he also thought Mr Dore had been responsible for saving his wife’s life by organising a surgeon for her at short notice. Mr Elms also deposed that in 2002 the testator had made it clear to Mr Elms that he then wanted sole control of Muffincastle so he could leave its shares in his will to whomever he wanted. The learned trial judge, when concluding that knowledge and approval of the contents of the will had been affirmatively established, considered that the evidence led provided more than adequate support for the substance of Mr Dore’s evidence about the events of 27 and 30 June 2003, and I agree.
The learned trial judge wrote that the evidence of Mr Elms, Mr Beerling, and Mrs Dore impressed the judge as reliable, and that the widow’s administrators had resisted, on the flimsiest of grounds, the conclusion that the testator had testamentary capacity and that he intended the bequest of the shares in the company Muffincastle. The learned judge noted that that opposition was despite not having challenged either Mr Beerling or Mr Elms in their evidence as to what the testator had said to them about making that very gift. The appellants likewise did not even refer to that same evidence when repeating those same challenges on this appeal.
The appeal should be dismissed, and both parties to the appeal should have their costs assessed on the indemnity basis paid out of the estate of the testator.
HOLMES JA: I have read the judgments of both Jerrard JA and Philip McMurdo J. I agree with their reasons and with the orders proposed by Jerrard JA.
PHILIP McMURDO J: Had the testator not predeceased his wife, then Mr Dore would have received under this will something of the order of $20 million. As it happened, because he died before her, Mr Dore received something of the order of $1.3 million. Even so, the outcome would strike many as disturbing when it was Mr Dore, as the testator’s solicitor, who drew the will, because there is a tension between a solicitor’s duties to his client, particularly his fiduciary duty, and his interest as a potential beneficiary.
Not surprisingly, at least in some jurisdictions, the laws regulating the legal profession prohibit a lawyer from doing what Mr Dore did here, which is to draft and supervise the execution of a will, under which he will be a substantial beneficiary, and for which the client has had no independent legal advice. In England, a solicitor must advise the client to be independently advised, and if the client declines, must refuse to act.26 Cordery on Solicitors says that the principle is strictly interpreted and provides the solicitor with three choices: to decline the bequest; to decline to act; or to insist that the client has independent advice. A previous rule to the same effect was endorsed by a Divisional Court27 in Re a Solicitor [1975] QB 475. Similarly, in New South Wales, a practitioner who receives instructions to draw a will under which he will or may receive a substantial benefit (other than commission and fees) must decline to act and offer to refer the person for independent advice.28 Although the Queensland regulatory provisions contain no equivalent rule, it would appear that the generally accepted view in the profession here is to the same effect, as in my view it should be. In his Wills, Probate and Administration Practice (Queensland), Mr de Groot says that a solicitor should not act as the drafter of a will in which the testator proposes to appoint him or her as a beneficiary and invariably should refer the client to another solicitor.29 Similarly, in Lee’s Manual of Queensland Succession Law (5th ed), it is said that a solicitor to whom a testator proposes to leave a benefit and who is instructed to prepare the will must insist that the testator seek independent advice, and that should the testator fail to do this, the solicitor must forgo the benefit left, or suffer the possibility of disciplinary proceedings.30
In reliance upon those texts, and in Re a Solicitor, the appellants argued that the trial judge erred, by following what was said by the Privy Council in Ramcoomarsingh v Administrator-General (Trinidad and Tobago),31 in a passage which if read out of context, might suggest that such professional rules are more guidelines for the protection of solicitors than legal duties for the protection of their clients. However, what was there said was in a context, like that in the present case, where the issue was not whether a solicitor had acted wrongly, but whether the will which he had prepared was valid. In a case such as this, the solicitor’s interest as a beneficiary is relevant and can be critical, but as the appellants’ oral argument conceded, it need not always result in the will, or at least the bequest to the solicitor, being invalid.
The present case was not a disciplinary proceeding or an action against the solicitor for breach of duty; it involved the proof of a will. The interest of the solicitor as a beneficiary was relevant to the validity of the will because of the suspicion, which that circumstance created, that the testator did not know and approve its contents. If the fact of that knowledge and approval could be established, as it was to the satisfaction of the trial judge, then any breach of duty by Mr Dore was irrelevant, save for the question of costs.
In this case, there was no allegation that there was undue influence in the sense in which that term is used in probate cases. The notion of undue influence in probate matters is different from the equitable doctrine of undue influence, as was explained by Gaudron, Gummow & Kirby JJ in Bridgewater v Leahy as follows:32
Secondly, there is the argument that the trial judge applied the wrong test in relation to knowledge and approval, by at one point, referring to the testator’s intention. As Jerrard JA has explained, in several judgments, including that of Isaacs J in Nock v Austin,33 this question has been asked by reference to the testator’s intention, treating that as synonymous with knowledge and approval of the will’s content. Conceivably, there could be cases where there is a difference between the two. The required knowledge and approval is of the contents of the will rather than a knowledge of its legal effect.34 So there could be cases where the testator knows and approves of the words in his will, thereby making it valid, although it is not what he intended in its effect. The present case, however, is not an example. There could have been no prospect that the testator was under some misunderstanding as to the effect of this clause in his will. In this case, intention and knowledge and approval were the same thing.
Baker v Batt 2 Moo PCC, at p 320 and Fulton v Andrew LR 7 HL 448. ↩
[1959] 1 All ER 552 at 557. ↩
At transcript 38. ↩
Appeal No 35 of 2002, 16 December 2004. ↩
Appeal No 1937 of 2005, 1 May 2006. ↩
[2001] EWCA Civ 1879 at [33]. ↩
[2001] EWCA Civ 1879 at [64]. ↩
[2001] EWCA Civ 1879 at [70]. ↩
[2004] VSCA 235 at [13]. ↩
[2004] VSCA 235 at [14]. ↩
At [52] and [58]. ↩
(1994) 124 ALR 353 at 362. ↩
The Law Society’s Guide to the Professional Conduct of Solicitors (8th ed, 1999) 15.05. ↩
Lord Widgery CJ, Milmo and Ackner JJ. ↩
Revised Professional Conduct & Practice Rules, r 11 set out and discussed in New South Wales Solicitors’ Manual (Ritchie) at [2160]. ↩
John K de Groot, Wills, Probate and Administration Practice (Queensland) (2006) at [204.7]. ↩
At [309]. ↩
[2002] UKPC 67 at [29]. ↩
(1998) 194 CLR 457, 474-475. ↩
(1918) 25 CLR 519 at 528 ↩
H S Theobold, Wills (15th ed, 1993) at 35. ↩