At core, these proceedings require determination of competing claims to representation, and beneficial entitlement, to a small deceased estate.
The plaintiff (Nona Cole) is a maternal aunt of the deceased (William George ("Bill") Cockell) and, as such, a person entitled (under the Succession Act 2006 NSW) to participate in the estate as a beneficiary in the event that the deceased is held to have died wholly, or partially, intestate.
The defendant (Douglas Paisley), a friend of the deceased, acted as his solicitor in drafting four wills for him, over a period spanning decades. He was named as the deceased's executor in each will. He retired from legal practice in 2014, shortly after the commencement of these proceedings. His former employee, subsequently his partner, took over his firm and presently acts for him in these proceedings.
Throughout the period during which the four wills were executed, the deceased suffered chronic and persistent mental health problems diagnosed (by his treating psychiatrist over much of that period) as a manic depressive psychosis or, using different terminology, a bipolar affective disorder.
Whatever the correct medical diagnosis, it is plain that the deceased, from time to time, lacked capacity to make a will. A central question for these proceedings is whether he lacked testamentary capacity at the particular times he executed particular testamentary instruments.
At the time he executed the last two of the wills he suffered, from time to time, delusional thinking in the form of a belief that he had a special relationship with the Kingdom of Belgium such as to entitle him to claim diplomatic immunity. It did not operate to poison his mind against the plaintiff, or any other person.
The delusion was so closely connected with the identity of the sole beneficiary of the deceased's penultimate will (Queen Fabiola of the Belgians) that it might (though minds might differ) reasonably be held to have been invalid: Woodhead v Perpetual Trustee Co. Limited (1987) 11 NSWLR 267.
The same is not true of the ultimate will. With encouragement from the defendant, and time for reflection, the deceased there nominated the St Vincent de Paul Society as his sole beneficiary. No delusional thoughts of any description affected the deceased's free exercise of his testamentary power on that occasion. On the contrary. With the defendant's gentle encouragement, he rose above any commitment he had to Queen Fabiola, or Belgium; he freely directed his bounty elsewhere.
Nomination of St Vincent de Paul as his beneficiary was consistent with the deceased's long-standing devotion to Christianity: first, to the Anglo-Catholic tradition of the Anglican Church and, later, the Roman Catholic tradition.
Unless (as the plaintiff contends, but I decline to find) the deceased was bound to take into account such, if any, moral claims she may have had on his bounty, there was no claim on his testamentary bounty reasonably in competition with a will in favour of a charity of his choice. Whether or not he did, privately, weigh the plaintiff's claims in the balance before settling on the St Vincent de Paul Society cannot be known; but he was, in my assessment, well able (and he was given space) to do so: Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159]. That is the critical thing.
In any event, the plaintiff puts her claim to the deceased's consideration too high. She and the deceased did not meet face-to-face after 1982. She claims to have played a significant role (and, I accept, she did play a role) in his obtaining (from the Supreme Court of Western Australia) an order for family provision relief against the deceased estate of his estranged mother, and there is evidence of affectionate family-oriented communications passing between the two over several years. However, he lived a solitary, reclusive life. She was not part of that. Nor was she, at an advanced age, a natural object of his testamentary bounty. Her relationship with him was too remote, in terms of personal engagement, to require, or justify, a finding that he was unable to weigh any claims she may have had on his bounty.
The existence of the plaintiff was not known to either the defendant or the deceased's treating psychiatrist. The deceased mentioned her to neither of them, despite close relationships with each of them and, in the case of the defendant, a long standing friendship.
Both were aware of his personal history vis-a-vis immediate family; his sexuality, an important feature of his social milieu; the transience of his personal relationships; his chronic mental health problems; and his engagement with the State's legal and administrative regime for dealing with mental illness. They were privy to intimate details of his life, including those relating to his personal relationships. There was no reason for him not to disclose the plaintiff's existence to them.
To suggest, as the plaintiff does, that his non-disclosure of her existence was a product of delusional thinking on the part of the deceased is objectively unsound. The deceased's pattern of delusional thought did not commence until long after both the defendant and the psychiatrist had come to know him well. His delusional belief about his diplomatic standing did not extend to a belief that he had a family connection with the Belgian royal family, or include a denial of his own family relationships. His admiration for Queen Fabiola was based, rationally, upon his admiration for her publicly-expressed commitment to Catholic causes. There is no evidence of a pattern of complaint against the plaintiff. On the contrary, the evidence demonstrates civility in their personal communications, and silence about her in his communications with others.
After close exposure to the facts of the case in a contested hearing (including lengthy cross examination of the defendant), I am comfortably satisfied that: (a) the plaintiff's application for an order for revocation of a common form grant of probate made to the defendant, in respect of the will benefitting the St Vincent de Paul Society, should be dismissed; and (b) on the defendant's cross claim, a grant of probate in solemn form should be pronounced in his favour, confirmatory of the grant in common form earlier made.
Although the plaintiff was aware of the terms of the 2006 will, and of the defendant's intention to apply for a grant of probate in respect of it, there is no factual foundation for a finding that she acquiesced in the grant, or stood by without taking an opportunity allowed to her to contest it, such as to justify characterisation of the grant as a grant "in solemn form" or otherwise so as to impose on her a heavy burden to justify its revocation. In the aftermath of the deceased's death she sought, by communications with the defendant and the St Vincent Paul Society, to investigate the circumstances in which the will was made. The grant of probate made to the defendant was made, in exercise of the Court's routine, administrative probate jurisdiction, at a time when, on notice to the defendant, the plaintiff had engaged solicitors and was investigating the validity of the will. It is plain from correspondence and the course of events that the plaintiff was inclined to dispute the will. When requested to refrain from distribution of the deceased's estate pending resolution of "the dispute", the defendant readily agreed.
The grant of probate made to the defendant administratively was, in its true character, a grant in common form, not a grant in solemn form. Nevertheless, even if it were to be characterised as a grant in solemn form, it would be no less amenable to revocation in the circumstances of this case. I do not accept that characterisation of a grant as a "solemn form" grant necessarily, of itself, limits the grounds upon which the grant can be revoked or represents a triumph of form over substance: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [203]-[210], [218]-[227], [249], [260] and [292]-[321]. In the circumstances of this case, the failure of the plaintiff to file caveat is no impediment to her challenge to the defendant's grant.
However, that challenge having been dealt with on its merits, in hotly contested proceedings, the appropriate course is for the defendant's grant to be expressly confirmed by the Court as a grant in solemn form. That is because (to paraphrase Estate Kouvakas at [249]):
1. all persons interested in the making of a grant have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any future application for revocation of the grant;
2. on the evidence before the Court, I am satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions; and
3. an order for a grant in solemn form appropriately serves the due administration of justice.
A grant of probate expressly described by the Court as a grant in solemn form is a judicial statement that each of these criteria has been addressed, thereby minimising risk that title to estate property will be disturbed by a later application for revocation of the grant: Estate Kouvakas at [247]-[249] and [275]-[283].
[3]
THE DECEASED'S ESTATE AND THE WILL ADMITTED TO PROBATE
William George Cockell ("the deceased") died on 27 May 2013, aged 65 years, leaving as his last will an instrument dated 13 September 2006 ("the 2006 will"), probate of which was granted, by this Court, to the defendant on 24 February 2014.
The inventory of property accompanying the grant records that the deceased's estate, at the time of death, comprised $568,448 held by the NSW Trustee, to which his protected estate was committed by orders made by the Guardianship Tribunal under the Guardianship Act 1987 NSW.
A substantial question, reserved for consideration in related proceedings in which (by reference to section 63 of the Trustee Act 1925 NSW or a "partial administration order" under rule 54.3(2)(a) of the Uniform Civil Procedure Rules 2005 NSW) the defendant seeks judicial advice or direction, is whether any (and, if so, what) part of the deceased's estate is held on trust for a charity, The Hackett Foundation at the University of Western Australia, as a consequence of the Family Provision Order made by the WA Supreme Court on 26 August 2008 in relation to the deceased's mother's estate.
That order provided for the deceased to receive $350,000 from his mother's estate on terms that it be held by the Protective Commissioner of NSW (a statutory predecessor of the NSW Trustee):
"… on trust as to all or part of the income and capital thereof for the maintenance, comfort and necessities and such other benefits of William George Cockell as the Protective Commissioner in his absolute discretion shall deem advisable for the welfare and happiness of that person during his lifetime and after his death any unexpended balance thereof forming part of the residue of the testator's trust estate [sic] and being payable by the Protective Commissioner to the beneficiary entitled under clause 3.1(g) of the Will of Edith Elaine Cockell (deceased) [namely, The Hackett Foundation at the University of Western Australia]."
The family provision order increased, from $150,000 to $350,000, the provision made for the deceased by his mother's will. Clause 3.1(b) of the will provided for the smaller legacy on qualified terms similar to those which, under the WA Supreme Court's order, favoured The Hackett Foundation.
Clause 3.2 of the will contained an express declaration by the deceased's mother that she had not made any greater provision "for the benefit of [her son, the deceased] due to his extensive history of mental illness."
Questions about the liability, if any, of the deceased's estate to pay money to The Hackett Foundation mean, in the current round of litigation, that the amount at issue in the current proceedings could be as low as $200,000 or thereabouts, not allowing for: (a) any interest that might have to be allowed in favour of The Hackett Foundation; or (b) such, if any, costs of the current proceedings as may be allowed out of the deceased's estate.
A potentially difficult question, not confronted in this judgment, is whether, and how, payments made out of funds held by the NSW Trustee as manager of the protected estate of the deceased, comprising a mixture of the deceased's own funds and those sourced from his mother's deceased estate, can be disentangled in a rational way so as to comply with the trust obligation of the deceased's legal personal representative to account to The Hackett Foundation for whatever (if anything) may be left over from the $350,000 legacy.
[4]
THE DECEASED'S WILLS, AND THE PLAINTIFF'S CHALLENGES TO THEM
[5]
The 2006 Will
The plaintiff attacks the validity of the deceased's 2006 will on the bases that: (a) he lacked testamentary capacity at the time the will was executed; and (b) he did not know or approve its contents.
She also relies upon the "suspicious circumstances rule" (derived from Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, confirmed in Nock v Austin (1918) 25 CLR 519 at 528 et seq and authoritatively discussed in Tobin v Ezekiel (2012) 83 NSWLR 757) in support of her allegations of invalidity, particularly but not only her allegation of a want of knowledge and approval, because: (a) to the knowledge of the defendant, the draftsman of the will, the deceased had a long history of mental health problems; (b) the 2006 will was the first will made by the deceased in favour of a charity; (c) a suggestion that the deceased make such a will emanated from the defendant, its draftsman; (d) at the time the will was made the deceased could not, with precision, have fully known the nature and extent of his property because his claim for family provision relief against the estate of his late mother was pending, unresolved; and (e) the will made no provision for the plaintiff or acknowledged her as a member of family to whom, she contends, the deceased owed a duty to consider as a potential object of his bounty.
[6]
Earlier Wills
The three wills identified as having been made by the deceased earlier than the 2006 will are, in reverse date order, instruments executed on 30 November 2004, 17 June 1983 and (subject to a codicil made on 26 August 1982) 27 July 1982.
[7]
The 2004 Will
The 2004 will left the whole of the deceased's estate to Queen Fabiola, who died on 5 December 2014.
[8]
The 1983 Will
The 1983 will (the original of which cannot be found and which may have been deliberately destroyed by the deceased) apparently left the bulk of the deceased's estate to a Catholic clergyman, the Very Reverend Denis Thomas Wentworth Uhr.
The terms of the will are to be inferred from amendments made (to a copy of the 1982 will) in the hand of the deceased.
The evidence includes a contemporaneous note, in the handwriting of the defendant, dated 8 September 1983, that records that the original of the 1983 will was held by the deceased personally.
All else being equal, the composite document comprising the copy of the 1982 will as amended in the deceased's hand, could, standing alone, possibly satisfy the requirements of section 8 of the Succession Act 2006 for admission to probate as an informal will. The operative date for engagement of the section is the date of death of a testator on or after 1 March 2008: Succession Act, schedule 1, clause 3(3). It is not necessary, however, to do more than notice this possibility. The deceased's estate can, and should, be administered on a firmer foundation than the 1983 will.
[9]
The 1982 Will and Codicil
The 1982 will left the bulk of the deceased's estate to his then wife, Janet, from whom he was (on her application, and to his distress) subsequently divorced, after a short marriage. She predeceased him.
The codicil to the 1982 will did not materially alter identification of the deceased's wife as the principal beneficiary of his estate.
The 1982 will (but not the codicil) was deliberately torn up by the deceased, or by the defendant in his presence, on 17 June 1983 according to a contemporaneous note made by the defendant.
Exactly why the deceased refrained from destruction of the codicil remains a mystery. However, he appears to have been a person of eccentric, and sentimental, tendencies of mind even when hale and hearty. One cannot exclude, for example, the possibility that the document held sentimental value for him because his execution of it was witnessed by two barristers, then quite junior, now of eminence in their profession. We cannot know. Nothing of consequence turns on his motivations in any event.
[10]
Common Features of the Wills
Each of the testamentary instruments of the deceased (the four identified wills and one codicil) was prepared by the defendant as a solicitor, and friend, of the deceased. Each took the form of a valid testamentary instrument, duly executed, apparently rational and regular on its face. Each appointed the defendant as sole executor. Each (including the 2006 will, witnessed by the defendant and his then employee, his present solicitor, Mr DB Emery) included a "charging clause", entitling the defendant, as executor, to charge professional fees as a solicitor and to be allowed executor's commission. None, otherwise, conferred a benefit on the defendant, who charged no fees for preparation of any of the deceased's wills or codicil. None favoured the plaintiff with a gift or acknowledgement, direct or indirect.
The defendant's evidence (which I accept) is that, upon each occasion that the deceased gave instructions for and signed the wills in question, he appeared and behaved in a normal manner, easily able to converse for the purpose of providing instructions and on other matters. As regards the 2004 and 2006 wills, this evidence has been specifically corroborated by Mr Emery, who has been cross examined and whose evidence I also accept.
Each of the four wills included a revocation clause, providing for "all former wills and testamentary dispositions" to be revoked.
[11]
PARAMETERS OF THE CASE
The plaintiff contends that each and every one of the deceased's wills, and the codicil to the 1982 will, not only the 2006 will, was invalid for a want of testamentary capacity.
The foundation for this contention is the fact, earlier noted and acknowledged by the deceased himself, that he suffered from mental health problems, with intermittent manic episodes, and, from time to time, constraints on management of his person and property arising from Guardianship Orders and Financial Management Orders made by the Guardianship Tribunal (under the Guardianship Act 1987) and Community Treatment Orders made by the Mental Health Review Tribunal (under the mental health legislation prevailing from time to time).
Throughout his adult life, from about late 1975 (when he was aged nearly 28 years), the deceased was in and out of institutional care and a regime of protective management of his person and property that subsisted at the time of his death.
The subsistence of protected estate management orders affecting the estate of a person judged incapable of managing his or her affairs does not, of itself, preclude the protected person from making a will; nor does it give rise to a presumption that he or she lacks testamentary capacity: Perpetual Trustee Company Limited v Fairlie-Cunninghame (1993) 32 NSWLR 377.
There is no dispute about this. The plaintiff does not contend that the protective orders affecting the person or property of the deceased from time to time, jointly or severally, precluded him from making a will or subjected him to a presumption of testamentary incapacity.
That said, the deceased himself appears to have felt free to make the 2006 will because, at that time, he was free of an operative guardianship order, though apparently still subject to a financial management order and community treatment orders.
The parties are agreed that the test to be applied upon an assessment whether the deceased had, or lacked, testamentary capacity is that classically found in Banks v Goodfellow (1870) LR 5 QB 549 at 565:
"It is essential to the exercise of [a testamentary] 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."
The broader context in which the proceedings are to be determined includes the summary of principles enunciated by Powell J in Re Eger; Heilprin v Eger (4 February 1985) BC 8500997 at 72-74; Butterworths' Succession Law and Practice (NSW) case number [13, 001], and elaborated by his Honour in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704E-707G.
An application of these principles in these proceedings carries with it an acceptance that the defendant, as propounder of the deceased's wills, bears the legal onus of proving their validity, including that of the 2006 will. The circumstances in which the defendant sought and obtained a grant of the 2006 will, with notice of the plaintiff's opposition and ongoing inquiries, and the speed with which the plaintiff thereafter applied to have it revoked, so that no part of the estate has been distributed, are such as to justify, and require, the defendant to be treated, in substance, as if he were propounding the will de novo: Estate Kouvakas [2014] NSWSC 786 at [284]-[291].
A decision of the Court, in location of the onus of proof on an application for revocation of a grant, is largely one of case management, governed by the purposive character of the probate jurisdiction, directed towards the due and proper administration of the deceased's estate and, in the interests of justice, approaching the question as one of substance, not form.
In this context, an applicant for revocation of a grant (not unlike an applicant for the setting aside of any judgment or order of the Court) must generally persuade the Court that the applicant has: (a) a reasonably arguable case for a grant of representation other than that under challenge; and (b) an explanation for delay in advancing a case for that alternative form of grant: Cf, Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR (NSW) 239 at 243-244 and Tobin v Ezekiel (2012) 83 NSWLR 757 at 761[3]-764[18].
Four important qualifications to this general statement - ideas that inform an exercise of probate jurisdiction - must be borne in mind. First, the fact that probate litigation is "interest litigation" is a critical factor in all decision-making; an applicant for revocation of a grant must be able to show that his, her or its rights will, or may, be affected by the outcome of the proceedings: Estate Kouvakas [2014] NSWSC 786 at [212]-[216], citing, inter alia, Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631 at 634B-C and Osborne v Smith (1960) 105 CLR 153 at 158-159. Secondly, public interest considerations are always prominent in probate proceedings because of an ever-present need: (a) to consider "rights", whether actual, potential or merely arguable rights, of absent parties (always, in the nature of the jurisdiction, including the deceased, and often including beneficiaries who may, or may not, be aware of their interest in an estate); and (b) to maintain public confidence in an orderly, fair process for succession to property. Thirdly, an application for revocation of a grant, and a consequent reopening of issues otherwise settled, may be refused if there is no utility in allowing litigation to proceed; for example, because the size of the estate is too small to warrant, or bear the cost of, further disputation, or because the estate has been fully administered: Estate Kouvakas [2014] NSWSC 786 at [292], citing, inter alia, Stanley v Stanley [2000] NSWSC 1133 at [11] and [33]-[34] and Richardson v Reardon [2006] NSWSC 1252 at [19]-[21]. Fourthly, a preparedness of the Court to entertain an application for revocation of a grant (involving, as it may, an examination of the merits of the grant itself) does not, of itself, entitle the applicant to an order for costs out of the estate or against a perceived adversary. An applicant proceeds at his, her or its own risk as to costs, bearing in mind that the public interest character of probate proceedings may need to be weighed in the balance upon a determination of what orders for costs are, in all the circumstances, appropriate: Williamson v Spelleken [1977] Qd R 152.
The essential question, in deciding whether a particular document should be admitted to probate, is ultimately whether it was the last will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35; Boyce v Bunce [2015] NSWSC 1924 at [45]-[46].
[12]
THE DECEASED
The evidence establishes, beyond doubt, that the deceased was, according to his own lights, a socially and politically conservative man, with a strong disposition towards an embrace of hierarchy in social and religious affairs, and a deeply religious, Christian commitment (from time to time conflicted with a homosexual orientation) which manifested itself in an initial denominational allegiance to the Anglo-Catholic tradition of the Anglican Church, drifting towards the Roman Catholic tradition, in the arms of which he died.
The evidence also establishes that, although a person of above-average intelligence, refined by tertiary education, he suffered from chronic mental health problems to such an extent that he was kept out of anything approaching steady employment, let alone a career in the law, or the church, which he appears to have craved.
After graduation in law from the University of Sydney, he was admitted as a barrister of this Court and, for a time, he practised as a barrister before joining Morpeth College, in Newcastle, as a student with an ambition to become an Anglican priest.
It was at Morpeth College that he suffered a breakdown, resulting in his first mental health hospitalisation, leading to his early departure from the College.
He was consistently proud of his admission to the Bar, where he practised, briefly and perhaps without ever becoming established, after service as an Associate to a judge of the District Court of NSW.
He belonged to an era, before the introduction of practising certificates for NSW barristers in mid-1994, in which it was possible, and commonplace, for a person to describe his or her profession as that of a "non-practising barrister".
In his 2004 and 2006 wills his occupation is described as "retired barrister". In each of the earlier testamentary instruments under review it was described simply as "barrister".
The terms of the 1982 will, the codicil to that will and the 1983 will (as inferred from amendments to the 1982 will) all exhibit, or suggest, connections between the deceased and members of the legal profession based in Sydney.
The friendship between the deceased and the defendant may have had some origin in the deceased's gravitation towards the defendant as a fellow lawyer; but it appears to have arisen, principally, from the fact that both were parishioners of Christ Church St Laurence, an Anglican church known for its Anglo-Catholic tradition, in Sydney.
The deceased appears, over many years, and with rational justification, to have regarded the defendant as a loyal, trusted friend and counsellor. Their personal contact was not consistently regular, but the deceased appears to have turned naturally to the defendant for advice and assistance from time to time.
The deceased's family life was largely unhappy. He was, in substance, an only child. Two siblings died in infancy. An adopted sister drowned, in 1956, aged three, in circumstances in which, at least in the mind of the deceased, there were grounds upon which he could bear responsibility for her death. For a time at least, he was haunted by a sense of guilt, apparently having been blamed by his mother for an alleged failure to supervise the youngster. In large measure, but not completely, he was estranged from his mother. He probably craved, but never entirely felt, her acceptance. His father died, by suicide, in 1981.
Taking up residence in Perth, his mother was, or apparently became, distant from him in all respects, not only geographically. She died in June 2005.
Clinical notes, dated September 1982, in the records of St Vincent's Hospital, Sydney, record that the deceased left home at the age of 21, prior to finishing university, and lived in an Anglican rectory for a short time. He, thereafter, had rental accommodation. The notes continue:
"Has never got on well with parents. Describes his father as a very nervous man who was also an alcoholic. There was a lot of marital discord. Met his wife in 1979. Fell in love with her. She is 12 years his senior. When she married him she was fully aware that he was a practising homosexual and had a psychiatric illness. They have never lived together.…"
Over the years, the deceased appears to have been unable to maintain any personal relationship. He appears to have been destined, if not condemned, by his chronic illness and intermittent manic episodes, to a solitary life.
In a letter dated 5 June 2003 addressed to the plaintiff he wrote of himself: "I am still devoutly religious and reclusive".
He was, naturally, a strong-willed personality, not given to suggestibility. Both the plaintiff and the defendant, each in their own way, gave him space to think things through for himself for that very reason. The plaintiff declined his invitation of 5 June 2003 that she be named executrix of a will he proposed, at that time, to make (but did not make until November 2004) in favour of Queen Fabiola.
That his untainted admiration for the Queen of the Belgians, and for Queen Elizabeth of England, because of their personal qualities, might have spawned a delusive belief about his own diplomatic status, or have been regarded as eccentric by anybody not enamoured of a strong adherence to a monarchist perspective, provides no foundation for a finding that his deeply conservative social, political and religious views were, of themselves, an impediment to a free exercise of testamentary power.
There is a suggestion in his death certificate, and in a coroner's report (prepared without a post-mortem), that his death was attended by dementia of unspecified duration. Based on his personal observations, the defendant disclaims any attribution of dementia to the deceased. In November 2013 Dr Summers, the deceased's general practitioner for the 30 years preceding death, affirmed in a statutory declaration his opinion that the deceased "did not have dementia in 2006 when he made his will". I accept the correctness of that affirmation. The deceased's chronic, recurrent mental illness did not, in any material sense, extend to dementia.
[13]
THE VALIDITY OF THE 2006 WILL
The validity of the 2006 will is supported by: its formal regularity, including the fact that the deceased read it over, and apparently understood its readily comprehensible terms, before its execution; a rational foundation in the objectively known predispositions, life experience and associations of the deceased; the express evidence of the defendant and Mr Emery about its due execution and the deceased's demeanour; the confirmatory opinion of Dr Summers (the deceased's general practitioner) that the deceased did not suffer from dementia in 2006; and observations made by Dr Anderson (the deceased's psychiatrist) when, within about a fortnight of the execution of the 2006 will, the deceased, after an interval of three years, recommenced consultations with him.
Dr Anderson's evidence is significant in four particular respects. First, he had knowledge of the deceased's personal circumstances reaching back decades. Secondly, although he was not treating the deceased immediately before, or at the time of, execution of the 2006 will, his observations of the deceased were relatively contemporaneous, and independent of any involvement in preparation of the will. Thirdly, the deceased discussed the 2006 will with him in terms that make it plain that the deceased clearly knew that he had recently executed a will in favour of the St Vincent de Paul Society. Fourthly, Dr Anderson formed the view that, although the deceased was delusional with respect to Belgium (to such an extent that he was, even then, contemplating making a will reverting to the terms of the 2004 will), he was not suffering a manic episode. He was, in Dr Anderson's assessment, experiencing a general despondency which the doctor attributed to nothing more than depression relating to his mother's death, the terms of her will and his then current circumstances.
I am, affirmatively, satisfied that the 2006 will was the last will of the deceased as a free and capable testator.
In reaching that state of satisfaction I have felt no need to rely upon any formal presumption of validity. It is sufficient to notice that the formal regularity of the will supports its validity as a factor from which, in common experience, an inference can be drawn: Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107 at [18]-[24], citing Calverley v Green (1984) 155 CLR 242 at 264.
I have specifically taken into account each of the factors the plaintiff has urged upon the Court as a "suspicious circumstance":
1. The defendant undoubtably had knowledge of the deceased's long history of mental health problems, which knowledge, in fact, led him, to allow the deceased time for reflection on the wisdom of a will in favour of the Queen of the Belgians. It also led him, constructively, to invite the deceased to consider a range of charities calculated to appeal to the deceased's natural sympathies: the Anglican Board of Missions, the St Vincent de Paul Society, the Bobby Goldsmith Foundation and the Smith Family. He did not confront the deceased with any narrow, specific proposal for a will, but allowed him ample time, over time, not merely one occasion, to reflect on his testamentary intentions.
2. Although it is technically correct to say, as the plaintiff says, that the 2006 will was the first will made by the deceased in favour of a charity, the terms of the 2004 will, and the deceased's rational reasons for favouring Queen Fabiola, point in the direction of advancement of a Catholic cause. The 2006 will was a rational response to the defendant's invitation that he consider leaving his estate to an Australian charity rather than sending it to Belgium.
3. There is nothing untoward in the fact that the defendant made that suggestion as the solicitor (and a long-time friend) of the deceased, and as draughtsman of his will. It was an invitation to reflection, not an imposition of any kind. It conferred no benefit on the defendant personally, whatever his personal sympathies, in circumstances in which the suggestion accommodated a range of the deceased's established, personal sympathies.
4. The fact that, at the time the 2006 will was prepared, the deceased could not, with precision, have fully known the nature and extent of his property because his family provision claim had not then been resolved counts for nothing because the deceased fully understood the nature and extent of his rights, including the character of the family provision proceedings.
5. The fact that the 2006 will made no provision for the plaintiff or acknowledged her as a member of the deceased's family is not remarkable in circumstances in which the deceased had long lived a solitary life, of which the plaintiff was not part. Affectionate though their personal communications had been, the plaintiff had not personally met face-to-face with the deceased for about 24 years. At an advanced age, and living remotely from him, the plaintiff had earlier declined to act as his executrix. She was not, beyond controversy, a natural object of his testamentary bounty.
The plaintiff's criticism of the defendant's processes leading to execution of the 2006 will do not rise so high as to deflect me from comfortable satisfaction that the deceased had testamentary capacity to make, and knew and approved of the terms of, the 2006 will.
The defendant might, in retrospect, have interrogated the deceased afresh to flush out the existence of relatives (such as the plaintiff) beyond immediate family. He might, in retrospect, have insisted upon obtaining a medical certificate as to the deceased's competency. He might, in retrospect, have kept better notes of his instructions for the will, and prepared a contemporaneous diary note detailing his observations. Nevertheless, in the circumstances of this case, dealing with the flesh and blood, the clay, that was the deceased, what was done by the defendant, even if less than perfect, was measured, practical and well-directed to his client's circumstances.
Had the defendant known of the plaintiff's existence at the time of making the 2006 will, I have little doubt that he would have included her in his invitation to the deceased to reflect upon the objects of his bounty. However, I do not hold to his account his lack of that knowledge or any perceived failure to acquire it. He was not obliged, as the plaintiff suggests, to challenge the deceased to make a will (with substitutional gifts) more complicated than the will that was made or, in the circumstances of their long-standing acquaintance, to explore collateral claims on testamentary bounty beyond a non-existent immediate family.
Having found in favour of the validity of the 2006 will, I refrain from making findings about the validity or otherwise of the deceased's earlier wills. No useful purpose would presently be served by my doing so.
On the findings I have made, admission of the 2006 will to probate should be confirmed by a grant in solemn form.
There is no basis upon which to interfere with the deceased's personal selection of the defendant as his executor (Estate Wight; Wight v Robinson [2013] NSWSC 1229 at [18]-[19]) or to contemplate that he be passed over in favour of a grant of representation to the plaintiff.
In logical sequence, an order that a grant in common form be confirmed by a grant in solemn form might reasonably be expected to involve a two step, administrative process involving, first, revocation of the common form grant and, secondly, the issue of a fresh grant in solemn form, hopefully without an interregnum in administration of the estate in question.
However, in practical administration of the probate jurisdiction, there is no universal necessity for a discrete, two step administrative process, bearing in mind the essential character of a grant of probate as a document of title; the distinction between a grant in common form and a grant in solemn form; the purposive character of an exercise of probate jurisdiction; and the desirability of minimisation of interference with due administration of an estate: see generally Estate Kouvakas [2014] NSWSC 786.
Each case calls for consideration on its own facts, mindful of case management imperatives encapsulated in the Civil Procedure Act 2005 NSW, Part 6 Division 1 (sections 56-60) and the practicalities of a due administration of the particular estate. In some cases, prudence may call for the formal embrace of a distinct, two step administrative procedure. In others, a mere declaration that an existing grant be taken to be a grant in solemn form might suffice. In yet others, a middle course might be appropriate, such as endorsement of an existing instrument of grant with a notation of the Court's determination that it take effect as a solemn form grant.
The central object which the Court must keep in view in the exercise of probate jurisdiction generally, and in its application to cases such as the present one, is to serve the due and proper administration of the particular estate before the Court (having regard to any testamentary intention of the deceased and the interests of parties beneficially entitled to the estate): Estate Kouvakas [2014] NSWSC 786 at [211], citing, inter alia, In the goods of William Loveday [1900] P 154 at 156 and Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192.
[14]
CONCLUSION
For these reasons, I make the following orders:
1. ORDER that a grant of probate in solemn form be made to the defendant in respect of the will of the late William George Cockell dated 13 September 2006.
2. ORDER that the proceedings be referred to the Registrar for completion of the grant, in an appropriate form, under her direction.
3. ORDER that further compliance with the Probate Rules be dispensed with.
4. ORDER that, as the Registrar may deem fit, the grant of probate made to the defendant on 24 February 2014 be delivered up to the Registrar upon issue of the grant in solemn form or, in lieu of issue of a fresh instrument of grant, be endorsed by the Registrar as a grant in solemn form.
5. ORDER that the statement of claim be dismissed.
I will allow the parties an opportunity to be heard as to costs bearing in mind discussion in Re Hodges (1988) 14 NSWLR 698 at 709E-710B and Williamson v Spelleken [1977] Qd R 152 of principles generally applied in probate proceedings.
[15]
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Decision last updated: 04 April 2016