Harrison v Petersen [2000] QSC 415

[2] Mr and Mrs Madden's last home together was at Tyalgum in northern New South Wales. The plaintiff lives at Eungella which is about 11 kilometres from where Mr and Mrs Madden lived. Mr and Mrs Madden were aware that the plaintiff did volunteer work at Murwillumbah District Hospital through a group known as "Pink Ladies". They had some brief acquaintance with the plaintiff when they approached her in 1991 to come and assist them in their home one day each week. Mrs Madden offered to pay the plaintiff $7 for the day's work. The plaintiff agreed to the arrangement and undertook activities such as ironing, dusting, vacuuming and food preparation.

[3] The frequency with which the plaintiff visited Mr and Mrs Madden to provide assistance increased over time. Mrs Madden had a sight problem and eventually the plaintiff took over cooking in their home. Eventually, they depended on her to take them to doctors' appointments. A routine developed where the plaintiff would take Mr and Mrs Madden to Murwillumbah to shop once each week. The plaintiff used Mr and Mrs Madden's vehicle for these trips.

[4] In May 1996 Mrs Madden was admitted to the Nerang Nursing Home. Mr Madden was distressed at his separation from his wife. The defendant considered that Mr Madden blamed her for being separated from his wife, as the defendant was involved in arranging the nursing home for Mrs Madden. The plaintiff continued to assist Mr Madden and run errands relating to Mrs Madden. No change in the payment made to the plaintiff had formally been made, since that arranged at the outset. The plaintiff received $7 per week from Mr and Mrs Madden which was paid on a monthly basis. Sometimes Mrs Madden gave the plaintiff $40 instead of $28.

[5] It appears that there was some friction about the arrangement at the time Mrs Madden went to hospital and then a hostel before going to the nursing home in May and June 1996. The plaintiff presented Mr Madden with an account for $40 for four special trips dealing with Mrs Madden's needs and for doing 16 lots of washing. The plaintiff took the account to Mr Madden's home when she knew the defendant and her husband were visiting.

[6] Mr and Mrs Madden had used the firm of Budd, Budd & Piper in Murwillumbah for the making of their wills in 1971. On 13 June 1996 the plaintiff took Mr Madden to the successor firm where they saw solicitor Mr Gary Power. They were shown the wills which Mr and Mrs Madden had made in 1971. On that occasion Mr Madden signed a form of general power of attorney in favour of Mrs Harrison. The execution of that power of attorney was witnessed by Mr Power. Although Mr Madden could sign his name, he was illiterate.

[7] From about February 1993 Mr Madden consulted doctors at the Queen Street Medical Practice in Murwillumbah. He commenced as the patient of Dr Elizabeth Elliott and was occasionally seen by Dr Betty Marks. As the plaintiff gave evidence that Dr Elliott at Dr Marks' rooms was Mr and Mrs Madden's "normal GP" from when she started to care for them, the plaintiff must not have commenced taking Mr and Mrs Madden to the doctor until February 1993. Dr Betty Marks who gave evidence took over the care of Mr Madden in July 1995. She saw him on 20 occasions until 24 July 1996. It appears that Mr Madden was diagnosed at some stage as suffering from dementia. There was no evidence of when that diagnosis was made. Dr Marks recorded in a medical report which she prepared from her records on 24 September 1996 which therefore must relate back to the last occasion on which she saw him in July 1996, that Mr Madden was depressed because he was separated from his wife and that he was "Becoming more confused due to short term memory". She described his short term memory as poor and his long term memory as fair. He had severe hearing loss in both ears and had a hearing aid for each ear.

[8] On 23 September 1996 Mr Madden was assessed by Ms Jillian Banks, a clinical nurse specialist in gerontology, employed at the Tweed Valley District Hospital for placement in hostel care. Ms Banks had met Mr Madden on two occasions previously, as she assessed Mrs Madden prior to her going into a nursing home. A copy of Ms Banks' assessment report is Exhibit 11. Ms Banks assessed Mr Madden as suited to a regular hostel and that at that stage he did not need the specialised services of a hostel for dementia patients. She commented in her report:

"Mr Madden is significantly demented and is unable to care for himself at home without the considerable help of his neighbour. Neighbours are finding this caring is becoming more onerous and need a break. Long term Mr Madden will require assisted living in institutional care. Due to his dementia he has no insight into his predicament and expresses a lot of anxiety about his house and possessions."

[9] Mr Madden was admitted to St Andrews Lutheran Aged Care Hostel at West Burleigh on about 24 September 1996. He needed to sell his house and land at Tyalgum in order to pay the bond of approximately $60,000 which was required under the licence agreement he entered into on admission to St Andrews.

[10] In the normal course interest was payable on the bond, if it were not paid at the commencement of occupancy at St Andrews. Mr Howard who is and was at the relevant times the general manager of St Andrews gave Mr Madden six months' grace in which to sell his home and pay the bond. The sale of Mr Madden's home and land was completed by November 1996.

[11] Mr Howard gave evidence about conversations he had on two or three occasions with Mr Madden, when Mr Madden would discuss with him the progress of the sale of his property. Mr Howard was able to say that those conversations were rational and Mr Madden made sense. Those conversations must have occurred prior to the end of November 1996. That evidence is too remote from the relevant events on 16 and 21 January 1997 to be of any assistance in this matter.

[12] Prior to going to St Andrews, Mr Madden had given his car to the plaintiff, saying "The car is yours. Now you look after it". The plaintiff also stated that at an earlier time, possibly January 1996, Mr Madden told the plaintiff he would give her his car.

[13] Mrs Madden died on 9 November 1996. After his wife's death, Mr Madden told the plaintiff that he wanted to make a new will through his solicitor in Murwillumbah. By November 1996 the firm which had been Budd, Budd & Piper had been taken over by solicitor Mr Aldridge.

[14] The plaintiff made an appointment for Mr Madden to see Mr Aldridge on 25 November 1996. Mr Aldridge required a medical certificate as to Mr Madden's capacity to make a will. The plaintiff took Mr Madden to Dr Marks.

[15] Dr Marks saw Mr Madden in the plaintiff's absence. Dr Marks asked Mr Madden the type of questions which are usually administered in the Mini Mental State Examination. Mr Madden did not know the day, the month or the year. He could not tell Dr Marks the name of the hostel where he lived. He could name Dr Lloyd, his treating doctor at the hostel. He remembered he was born in 1910, but did not remember the day or month. He remembered his wife's name after a while. He could identify objects pointed out to him such as a pen and pencil, but he could not subtract in 3's from 20 and could not count backwards from 10. He could not remember Dr Marks' name. When Dr Marks asked him whether he wanted to make a will, he said yes. Dr Marks asked him what his assets were and he said "Ask Wanda". Dr Marks was of the opinion that Mr Madden's cognitive impairment was severe and that he was not fit to make a will. Dr Marks telephoned Mr Aldridge and advised him accordingly.

[16] On 5 December 1996 Dr Lloyd who is a general medical practitioner with an interest in geriatric care and who was Mr Madden's treating doctor at St Andrews gave a medical certificate in respect of Mr Madden stating:

"The above-named is at present under my care. I would like to make it clear that Cyril is of sound mind, and able to understand the implications of making a will."

Dr Lloyd gave that certificate because he had formed the opinion that Mr Madden was in no doubt as to what he wanted to do in relation to making a will. Dr Lloyd stated that Mr Madden had told him on many occasions that he wanted to leave his money to "Wanda" and that he did not want his daughter to get it. There was no suggestion by Dr Lloyd that Mr Madden disclosed the extent of his assets to him or the history of his relationship with or the circumstances of the defendant. The only mention of the defendant which Mr Madden made to Dr Lloyd was in the context of saying that he wanted to leave what money he had to the plaintiff rather than the defendant. Dr Lloyd confirmed that Mr Madden had dementia and, although he was not generally of sound mind, considered that he had periods where he knew specifically what he wanted to do for his will.

[17] Dr Lloyd's certificate was sent by facsimile to Mr Aldridge. Mr Aldridge did not go to St Andrews until 16 January 1997.

[18] Dr Lloyd would see Mr Madden once or twice each week. Between the beginning of October 1996 and 21 January 1997 Dr Lloyd saw Mr Madden on 14 occasions. In fact, Dr Lloyd saw Mr Madden on each of 16 and 21 January 1997. Dr Lloyd did not recall being asked to consider Mr Madden's capacity on 16 January 1997. There is certainly nothing in the note made by Dr Lloyd on St Andrews' file for Mr Madden on 16 January 1997 that suggests that he was asked to consider Mr Madden's capacity. Dr Lloyd was experimenting with using a laptop computer at this time in January 1997 and his personal notes are missing. The only notes by which he could refresh his memory were those on St Andrews' file. His note for 16 January 1997 on that file stated:

"Seen by Dr Lloyd. Bruising easily. Check blood. Not using stick as much."

[19] When Dr Lloyd was asked whether he could recall what Mr Madden's capacity to make a will was on 16 January 1997, he responded that he could not recall specifically "but if I had been particularly concerned about his confused state I would have written it in the file then".

[20] Dr Lloyd's note on the nursing home file for Mr Madden for 21 January 1997 stated:

"Seen by Dr Lloyd. Slight anaemia and low platelets. Refer medical opinion."

[21] Dr Lloyd stated that he had no knowledge of whether he knew that Mr Madden was executing a will on 21 January 1997. He certainly did not recall any statement to that effect being made to him by Mr Madden. From his note, he was able to say that he had a discussion with Mr Madden about referring him for medical opinion and he would have been concerned if he had shown any "medical confusion".

[22] In re-examination Mr Egan asked Dr Lloyd in respect of each of 16 and 21 January 1997, if he had been asked to report on Mr Madden as to his capacity to understand the implications of making a will, whether there would have been any difference in the report given from that given in the certificate on 5 December 1996. Dr Lloyd responded "I don't believe there would".

[23] On each of 16 and 21 January 1997, Dr Lloyd was seeing Mr Madden for a routine visit. The respective notes made by Dr Lloyd in St Andrews file for Mr Madden do not suggest otherwise. The fact that Dr Lloyd was prepared to express an opinion about Mr Madden's capacity on each of those occasions to make a will, when Dr Lloyd had clearly not been asked to do so at the time confirms the opinion which I formed otherwise during the course of Dr Lloyd's evidence from what he said and the manner in which he gave his evidence that he was endeavouring to be helpful to the plaintiff, because he believed that Mr Madden wanted to benefit her in his will. I do not accept that Dr Lloyd had sufficient information relevant to the question of capacity or had sufficiently tested Mr Madden for capacity to be able to express the opinion about Mr Madden's capacity on 16 and 21 January 1997 which he purported to give in re-examination.

[24] The defendant lived at Burleigh Heads. The defendant is unable to drive. While her parents still lived at Tyalgum, she would be driven by her husband to visit them regularly. In earlier times they would go down on a Saturday and stay until Sunday. They were still visiting regularly when the plaintiff was caring for Mr and Mrs Madden. They did not see the plaintiff, however, as she was not there on the weekends when they visited. By the time Mr Madden had moved to St Andrews, the defendant's husband was dying and the defendant herself was ill. The defendant visited Mr Madden at St Andrews on a few occasions. The defendant's son, Mr John Petersen, visited Mr Madden at least fortnightly while he was at St Andrews.

[25] It was the plaintiff who requested Mr Aldridge to visit Mr Madden in order to "perform the task of taking dictation of a will". The plaintiff provided some information to Mr Aldridge relevant to Mr Madden, before Mr Aldridge attended on Mr Madden. One example is that the plaintiff had spoken to Mr Aldridge about her having Mr Madden's car to drive.

[26] Mr Aldridge did not make a diary note of his attendance on Mr Madden. What he had to refresh his memory was the draft will which he had started to write out in Mr Madden's presence. The terms of that document (Exhibit 4) were as follows:

"This is the last will and testament of Cyril Oscar Madden.

I hereby revoke all of my previous wills and codicils and state as follows:

1. I appoint WANDA HARRISON, as Executrix and trustee of this my will.

2. I bequeth (sic) $10,000 to my brother Roy Madden and my sister GLADYS MAY in equal shares in tennats (sic) in common.

2.(sic) I bequeth (sic) the rest and residue of my estate to Wanda HARRISON and my daughter Delma Petersen in equal shares in tennats (sic) in common.

The other document which Mr Aldridge had to refresh his memory was the will drawn by him and dated 21 January 1997. Mr Aldridge was frank about the difficulty which he had of recalling the actual conversation which took place between Mr Madden and him.

[27] Mr Aldridge met the plaintiff in the carpark and they went to Mr Madden's room. The plaintiff introduced Mr Aldridge to Mr Madden and explained that he was there in relation to his will. Mr Aldridge recalled that Mr Madden nodded his head in acknowledgment. Mr Aldridge sat down next to Mr Madden and talked loudly, as he was aware of Mr Madden's hearing difficulties. Mr Aldridge recalled having some general conversation with Mr Madden while the plaintiff was present, but could not recall the subject matter. The plaintiff recalled that Mr Madden asked Mr Aldridge what he thought of his room and furniture. Mr Aldridge then asked the plaintiff to leave the room which she did.

[28] Mr Aldridge had pen and paper with him and questioned Mr Madden about what he required for his will. Mr Aldridge observed Mr Madden to be quite frail and stated that, as a consequence, there was a lot of body language like nodding by which Mr Aldridge was able to discern Mr Madden's intentions. In fact Mr Aldridge stated "mostly his response was an affirmative nod and a yes or some sort of noise in the affirmative, yes".

[29] Mr Aldridge asked Mr Madden as to who he wanted to be his executor. Mr Aldridge stated that Mr Madden replied "Wanda was the power of attorney". Mr Aldridge then asked whether he was happy for her to be the executor and Mr Aldridge recalled that Mr Madden acknowledged affirmatively by saying "Yes" and nodding.

[30] Mr Aldridge had acted on Mr Madden's behalf in relation to the sale of his house and land and in the purchase of his right to occupy a room at St Andrews. Mr Aldridge therefore had a general understanding of what Mr Madden's assets were on this occasion. Those assets were the bond paid to St Andrews, approximately $20,000 in a bank account and, possibly, his motor car (depending on what view was taken of his giving possession of that car to the plaintiff). Mr Aldridge did not, however, endeavour to ascertain from Mr Madden on this occasion whether he was aware what his assets then comprised or the value of them.

[31] One matter on which Mr Aldridge's evidence was inconsistent was how and when he obtained the details of Mr Madden's brother and sister. At first Mr Aldridge's evidence was:

"I then asked him - and I can't recall whether we had discussed it previously about his brother and sister. He had a brother and sister who I believe lived in Lismore and I asked him - so I asked him did he want to leave anything to his brother and sister and he responded again in the affirmative."

Mr Aldridge stated in evidence that when he attended on Mr Madden on 16 January 1997 he did not know that Mr Madden had a brother and a sister who were still alive. He could not recall what Mr Madden said to him on that day to provide him with the full names of his brother and sister. When I asked Mr Aldridge how he found out the names of the brother and the sister, he responded "Subsequent to that, I was given the full details of the brother and the sister from Wanda Harrison". When I asked Mr Aldridge how did the names get into the document which was Exhibit 4, Mr Aldridge responded "He give (sic) me that information". When I asked Mr Aldridge to tell me how Mr Madden gave him that information, he responded:

"That's what I am struggling with, your Honour, is the specifics. I did have a discussion with him and, as I tried to do before lunch, I tried to flesh out the actual interaction, but I really can't recall."

[32] After Mr Aldridge had stated that he could not recall the specifics of the discussion with Mr Madden, he was asked by Mr Egan of Counsel who appeared for the plaintiff in re-examination whether he could recall the words to the effect that Mr Madden used to give him the information about the brother and sister. Mr Aldridge answered:

"I would have asked and he would have given me that information. So I would have asked for the names and the names would have been provided."

"And did he have any difficulty in providing you with that information?-- No, not from my recollection. It was fairly clear."

These two answers were clearly deductions and not recollections.

[33] In light of Mr Aldridge's evidence of the manner in which most of Mr Madden's responses were given and his lack of recollection of how Mr Madden conveyed the names of his brother and his sister, but his recollection that he was given those details by the plaintiff, I consider that it was likely that the names of Mr Madden's brother and sister were given to Mr Aldridge by the plaintiff prior to Mr Aldridge's speaking to Mr Madden on 16 January 1997.

[34] Mr Aldridge stated that he asked Mr Madden whether he wanted to leave anything to his brother and sister and that he responded in the affirmative. Mr Aldridge stated that Mr Madden said to him "I would like to leave them some money". Mr Aldridge cannot recall the process by which the figure of $10,000 was given by Mr Madden as the amount which he wanted to go to his brother and sister.

[35] Mr Aldridge stated that he then asked Mr Madden in relation to the rest of his estate and that Mr Madden responded that he would like to leave it to "Wanda Harrison". As Mr Aldridge was aware that Mr Madden had a daughter, he then questioned Mr Madden about his daughter. Mr Aldridge's evidence was:

"I said words to the effect, 'You have a daughter.' He then responded saying that - his gestures and his body language were that he - I'm trying to think of his words. His initial response, again bearing in mind that most of his response was gestures, body language and utterances at times was that he basically didn't want to leave, so the gestures were didn't want to leave to his daughter. I then said - I then asked him - I think I then suggested to them that he should consider leaving something to his daughter or his family. He then said to me that he - he mentioned her sons, his daughter's sons, words to the effect that, 'I don't like her sons' or, 'I'm not comfortable with her sons.' I can't recall the direct words."

[36] Mr Aldridge stated that he suggested to Mr Madden that he consider leaving something to his daughter. The following evidence was then given:

"Right. And did he reply to you after you made that suggestion and, if so, what did he say?-- Again, his reply was an affirmative nod and a yes - not a yes, necessarily, but an acknowledgment, a noise of acknowledgment. I then suggested that he consider dividing it between Wanda and his daughter.

And did he agree with that suggestion?-- Yes. He then agreed to - his words were - I recall at some stage him saying something like, 'Half..' Bearing in mind he didn't sit down and give me 10 sentences on everything around it, but there was the word 'half' definitely that he used."

[37] Mr Aldridge does not suggest that he had any discussion with Mr Madden about the defendant's circumstances or the reasons why Mr Madden should consider leaving something to her.

[38] Mr Aldridge was writing out the draft will as he interpreted each of Mr Madden's instructions.

[39] Mr Aldridge stated that after the discussion about the residue, Mr Madden said something like "my motor vehicle" and then said "Wanda Harrison". Mr Aldridge took that as an instruction from Mr Madden that he wanted to leave his motor vehicle to the plaintiff. Mr Aldridge stated that he then decided that it would not be appropriate to try and complete the drafting of the will while there with Mr Madden and that he would prepare a will back at his office.

[40] Curiously, the handwritten draft of the will makes no reference to the instruction in relation to the motor vehicle. Although Mr Aldridge had been told by Dr Marks in November 1996 that Mr Madden was illiterate, when asked in cross-examination whether he knew that Mr Madden was illiterate, he answered "No". It is difficult to fathom the purpose of Mr Aldridge in having Mr Madden sign the handwritten draft of the will which was incomplete, if Mr Aldridge's recollection was correct and the instruction was given about the motor car. Mr Aldridge's explanation was that Mr Madden had been practising signing his name and that it was "a matter of completion and courtesy to get it signed".

[41] Mr Aldridge estimated that he was with Mr Madden for approximately 20 minutes or up to 30 minutes. The plaintiff stated that Mr Aldridge was with Mr Madden for 10 minutes. Mr Aldridge was satisfied about Mr Madden's testamentary capacity, because he had received Dr Lloyd's certificate and considered that he had been able to communicate with Mr Madden and that Mr Madden understood who he was and why he was there.

[42] The plaintiff gave evidence that Mr Madden invited her back into the room, before Mr Aldridge left and that Mr Madden said "Now, you're in trouble". The plaintiff considered Mr Madden to be coherent and he did not appear to her to be upset or agitated. The plaintiff stated that Mr Aldridge said to her when she returned that Mr Madden "has dictated his will" and decided to leave $10,000 to his brother and his sister as tenants in common and left the residue to be divided between the plaintiff and the defendant. The plaintiff did not state that Mr Aldridge referred to the motor car at that stage. On the other hand, Mr Aldridge stated that he did not discuss the nature of Mr Madden's instructions with the plaintiff, when he met her on his way out.

[43] Although Mr Aldridge has neither notes nor a good recollection of his visit with Mr Madden, I consider it unlikely that Mr Aldridge would have discussed Mr Madden's instructions with the plaintiff, before he left. Certainly, Mr Aldridge would not have used the expression "dictated his will" to the plaintiff. I accept Mr Aldridge's evidence that Mr Madden conveyed to him that he wanted to leave his car to the plaintiff. It was clear that Mr Aldridge was endeavouring to write out the will for execution at the time that he was obtaining instructions and there had to be some reason why he desisted from that process. I therefore accept Mr Aldridge's explanation that on receiving the instruction about the car, he decided to prepare the will for signature at his office. If Mr Aldridge had discussed Mr Madden's instructions with the plaintiff, before he left St Andrews on 16 January 1997, he would have informed her about the instruction in respect of the car and it is clear that he did not.

[44] The plaintiff gave evidence about a telephone call she received later on 16 January 1997 at about 6 pm from St Andrews. She was told that Mr Madden was very upset and requested to return. She was told that he was saying something about the car. The plaintiff returned to St Andrews and spoke to Mr Madden. She stated that Mr Madden said "I think I have forgotten about the car" and then he said "I think I forgot to tell Mr Aldridge about the car". The plaintiff stated that she told Mr Madden that she was quite sure that he would have included it and that it could be sorted out. The plaintiff stated that she contacted Mr Aldridge and told him about Mr Madden thinking that he had forgotten to include the car. She stated that "Mr Aldridge said that the car was included".

[45] The fact that Mr Madden was upset on the afternoon of 16 January 1997 is borne out by the entry in his file at St Andrews:

"Resident very confused this PM. Took many of his clean clothes out of wardroom, saying they were dirty to PC asking for them to be laundred (sic). PC intervention x2 to explain he had gotten out clean clothes."

[46] Mr Aldridge drafted the will which was ultimately signed on 21 January 1997 and made that document available for the plaintiff to collect. The plaintiff collected that document on 21 January 1997 and proceeded directly to St Andrews. The plaintiff had previously organised for Mr Howard to be available as a witness to the execution of the will and Mr Howard had organised for the receptionist, Ms Carmel Weber, also to be available. I accept Mr Howard's evidence that Mr Madden had approached him after 16 January 1997 and before 21 January 1997 about whether he was available to witness his will.

[47] According to Mr Howard, Mr Madden arrived at the reception area around the appointed time on 21 January 1997. Mr Howard took him into the interview room. Mr Howard stated that Mr Madden started to talk to him about "that he had already given his car to Wanda". Mr Howard recalled that Mr Madden had an envelope in his hand and from the way in which Mr Madden was speaking, Mr Howard deduced that it was a copy of his will. Mr Howard did not know that Mr Madden was illiterate. Mr Howard can recall that Mr Madden made some reference to his will. Mr Howard stated that Mr Madden was wanting to tell him what the contents of it were, when Mr Howard interrupted and said "Cyril, I'm only here to witness your signature. I'm not interested in the content". Mr Howard recalled that he stopped Mr Madden after he had said "I'm leaving" and had got as far as saying "something to Wanda". Mr Howard was mistaken in his deduction that Mr Madden had a copy of the will, as there is no evidence that Mr Madden had been provided with any draft or copy after the consultation with Mr Aldridge on 16 January 1997. Mr Howard confirmed that the plaintiff brought into the interview room the will that was ultimately signed. After the plaintiff arrived, Mr Howard called in Ms Weber.

[48] The document was placed in front of Mr Madden by the plaintiff in the presence of Mr Howard and Ms Weber. The will was not read over to Mr Madden, nor were its terms explained to him. The plaintiff showed Mr Madden where to sign each page which he did. Mr Howard then signed each page and Ms Weber did the same. Mr Howard considered that Mr Madden was happy and aware of what he was doing. No witness who was present at the signing of the will gave any evidence about any conversation with Mr Madden to remind him of Mr Aldridge's attendance or what Mr Madden had discussed with him.

[49] There was no evidence whatsoever of any statement made by Mr Madden to any person including Dr Lloyd after the signing of the will on 21 January 1997, as to what he had done.

[50] There are suspicious circumstances surrounding the execution of the will. As Mr Madden was illiterate, the signing of a will by him in circumstances where the terms of the will have neither been read over to him or explained to him must raise doubts about whether there was a testamentary act. Another suspicious circumstance, when Mr Madden was suffering dementia, was the failure of either the plaintiff or Mr Aldridge to obtain a medical opinion as to capacity either at the time of the giving of instructions by Mr Madden on 16 January 1997 or the execution of the will on 21 January 1997. Having regard to Mr Madden's age and medical problems, the certificate of Dr Lloyd given on 5 December 1996 could not be described as still current on 16 January 1997. In fact, this was conceded by Dr Lloyd.

[51] Because of the suspicious circumstances, it is necessary for the plaintiff to prove that Mr Madden knew and approved of the contents of the will: Tyrell v Painton [1894] P151, 159, Perera v Perera [1901] AC 354, 361, Nock v Austin [1918] ArgusLawRp 113; (1918) 25 CLR 519, 528.

[52] The plaintiff also bears the onus of proving that Mr Madden had testamentary capacity either on the day that he gave instructions for the will or at the time of execution of the will. A degree of vigilance must be exercised by the court, because of the age and medical condition of Mr Madden: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 570.

[53] I will deal firstly with the issue of Mr Madden's knowledge and approval of the contents of the will. The plaintiff relies on decisions of Parker v Felgate (1883) 8PD 171 and Astridge v Pepper [1970] 1 NSWR 542. In Parker v Felgate the testatrix gave instructions for her will. There was no issue about her capacity or the detail of the instructions. She subsequently became ill and went into a coma. Her will was prepared in accordance with the instructions. She was roused from her coma to speak about her will. The will was rustled in front of her face and a doctor said to her "This is your will. Do you wish this lady to sign it?" to which the testatrix responded "yes". The woman then signed the will for the testatrix in the presence of the witnesses. The law was stated by Hannen P at 173 to be:

"If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, 'I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out'."

[54] The question was put to the jury whether the testatrix was capable of understanding and did understand that she was engaged in executing the will for which she had given instructions to her solicitor and the jury answered in the affirmative.

[55] Helsham J summarised the principles relating to knowledge and approval of contents of a will in Astridge v Pepper [1970] 1NSWR 542, 548 as follows:

"If a testator knows that the document with which he is confronted is his will and correctly assumes that the will deals with his property in a certain way and if he wishes to dispose of his property by his will in that way, is the execution of the document as his will sufficient to establish knowledge and approval of its contents even though he has not read the actual document nor been told what is in it? I think the answer to this question must be yes, at least if the testator has given instructions for a will to be prepared in those terms. I think a testator is entitled to assume at the time of execution that his will is in accordance with his instructions."

[56] What is critical to the propositions set out in these two cases is that the instructions for the will were unequivocal. It is logical that if a testator with the requisite capacity gives unequivocal instructions for a will and then is presented with a document to sign, the testator (without reading the document) can assume that the will deals with his or her property in accordance with the instructions and can therefore be taken to have knowledge and approval of the contents of the will when signed.

[57] Mr Madden knew that he was signing his will on 21 January 1997. That is only of assistance to the plaintiff, if the act of signing the will on that day can be linked with unequivocal instructions given for that will by Mr Madden at a time when he had testamentary capacity. I am not satisfied that Mr Madden gave unequivocal instructions to Mr Aldridge on 16 January 1997. The process by which Mr Aldridge obtained most of the instructions was for Mr Aldridge to suggest a provision in the will and for Mr Madden to agree or disagree. The process by which Mr Aldridge obtained the amount of the bequest for Mr Madden's brother and sister and the proportions in which to divide the residue between the plaintiff and the defendant must raise the question as to whether Mr Madden was giving final instructions. After giving what Mr Aldridge perceived was the instruction in relation to the residue of the estate, Mr Madden then gave an instruction in relation to the motor car which was inconsistent with disposing of the residue. The car was obviously a consideration important to Mr Madden, as that was raised by Mr Madden himself instead of in response to Mr Aldridge's prompting and the car was then the subject of Mr Madden's concern later on the same day.

[58] Because there was absolutely no evidence of any discussion by any person with Mr Madden after 16 January 1997, as to what instructions he had given for his will, the question of his knowledge and approval of the contents in the will he signed on 21 January 1997 depends solely on the state of the instructions he gave to Mr Aldridge. Even without considering testamentary capacity, there are no unequivocal instructions on Mr Madden's part given on 16 January 1997 to be linked with the will he signed on 21 January 1997. The plaintiff has not proven that Mr Madden knew and approved of the contents of the will he signed on 21 January 1997.

[59] It is therefore not strictly necessary to deal with testamentary capacity, but as I am not satisfied that testamentary capacity has been proven either on the day that instructions were given for the will or at the time of execution of the will, I will now deal with that issue.

[60] The classic statement of what is testamentary capacity is set out in Banks v Goodfellow (1870) LR 5QB 549, 565:

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

[61] Dr Lloyd expressed his opinions about Mr Madden's testamentary capacity on the basis of Mr Madden's express desire to benefit the plaintiff. One of the aspects by which testamentary capacity is determined is a testator's capacity to comprehend and appreciate the claims on his estate. Mr Madden appreciated that he wanted to benefit the plaintiff, particularly in relation to his motor vehicle, presumably as an acknowledgment of the services she had provided. Neither Dr Lloyd, Mr Aldridge nor the plaintiff ever discussed with Mr Madden the claims of the defendant - his only child who it was apparent from her evidence had maintained a loving relationship with her father with some friction in the latter years when Mrs Madden was hospitalised and then placed in a nursing home. The defendant herself had at least one son. When Mr Madden was at St Andrews, the defendant had a dying husband and medical problems herself. The instructions with Mr Aldridge took from Mr Madden did not reflect appreciation of the defendant's position.

[62] Mr Madden chose to benefit his brother and sister who were quite old. In fact, both the brother and the sister died within 3 years of Mr Madden's death. According to the defendant's evidence which I accept, the relationship between Mr Madden and his brother was strained.

[63] The instructions which Mr Aldridge took on 16 January 1997 do not reflect those of a person able to understand the nature of his relationships and the claims on him. That is confirmed by the evidence of Dr Marks. She was of the opinion that someone suffering from dementia which was progressive would not understand the consequences of the disposing of assets in the making of a will, even if he was having one of his "better days".

[64] In addition, I am not satisfied that Mr Madden understood the extent of the property of which he was disposing by signing the will dated 21 January 1997.

[65] The plaintiff is therefore unsuccessful in propounding the will dated 21 January 1997. I will therefore order that the action be dismissed. I will hear submissions from the parties on costs.

Harrison v Petersen [2000] QSC 415

The costs of the plaintiff and the defendant of this action including reserved costs be assessed on the standard basis and paid from the estate of Cyril Oscar Madden deceased.

COSTS - PROBATE AND LETTERS OF ADMINISTRATION - discretion - testator's conduct substantially caused action - reasonableness of course followed by plaintiff - small estate - whether costs assessed on a standard or indemnity basis.

Bool v Bool [1941] St R Qd 26

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Perpetual Trustee v Baker [1999] NSWCA 244

Spiers v English [1907] P 122

Twist v Tye [1902] P 92

Williamson v Spelleken [1977] QdR 152

[66] MULLINS J: When I published my reasons in this matter on 21 November 2000, I heard argument on behalf of the parties on the question of costs and I gave leave to the parties to deliver to my Associate short written submissions on the question of costs.

[67] The written submissions on costs made on behalf of the defendant will be Exhibit 13. The written submissions made on behalf of the plaintiff will be Exhibit 14.

[68] The starting point for an order for costs under rule 689 of the UCPR is that costs are in the discretion of the court, but follow the event, unless the court considers another order is more appropriate. The UCPR does not preclude consideration of long established principles relevant to the exercise of the discretion in relation to costs of probate litigation.

[69] Sir Gorell Barnes P stated in Spiers v English [1907] P 122, 123:

"In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shewn why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the facts warrant either of those principles being brought into operation."

A similar statement was made by the same judge in an earlier decision to which I have been referred by the defendant Twist v Tye [1902] P 92, 94. More recent references to the same principles can be found in Williamson v Spelleken [1977] QdR152, Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 709 and Perpetual Trustee v Baker [1999] NSWCA 244 at pars 13 and 14.

[70] I do not accept the analogies which the defendant sought to draw between the facts in Twist v Tye and the present matter.

[71] The plaintiff was carrying out Mr Madden's instructions in procuring Mr Aldridge to take instructions from Mr Madden for a new will. Dr Lloyd had provided the plaintiff with a certificate dated 5 December 1996 that Mr Madden was of sound mind and able to understand the implications of making a will. Mr Aldridge did not inform the plaintiff that a more current certificate was required, when Mr Aldridge attended to obtain instructions from Mr Madden on 16 January 1997. Mr Aldridge was satisfied about Mr Madden's testamentary capacity and therefore proceeded to prepare the will that was signed on 21 January 1997. It can be inferred that Mr Aldridge did not give any warning to the plaintiff that Mr Madden may not have had testamentary capacity or the ability to given unequivocal instructions for his will.

[72] There is no evidence from the plaintiff to suggest that she had formed any observation of Mr Madden that would negate testamentary capacity on either 16 or 21 January 1997. There was clear evidence that Mr Madden knew and was happy about the signing of the will on 21 January 1997.

[73] In these circumstances it follows that this was a case in which it was Mr Madden's own conduct that was substantially the cause of the action.

[74] In addition, a defence was pleaded that the will dated 21 January 1997 was procured by the undue influence of the plaintiff. That allegation which was being defended by the plaintiff was abandoned shortly prior to trial.

[75] As the reasonableness of the course followed by the plaintiff in endeavouring to prove the will dated 21 January 1997 must be considered in the light of what was known to the plaintiff and not the findings of fact ultimately made at the conclusion of all the evidence, it was not unreasonable for the plaintiff to bring this proceeding. It is therefore appropriate that both parties' costs be ordered to be paid from Mr Madden's estate.

[76] The question arises whether the costs should be paid on the standard basis or the indemnity basis. At the hearing on 21 November 2000, I indicated my provisional view that this may be an appropriate case in which to order that both parties' costs on an indemnity basis be paid from the estate of Mr Madden.

[77] Mr Egan of Counsel for the plaintiff argued that costs on an indemnity basis is the usual order where there is a fund. That is reflected by the terms of rule 704 of the UCPR which relevantly provides:

"(1) The court may order costs to be assessed on the indemnity basis.

(2) Without limiting subrule (1), the court may order that costs be assessed on the indemnity basis if the court orders the payment of costs-

(b) to a party who sues or is sued as a trustee; or

(c) of an application in a proceeding brought for noncompliance with an order of the court."

Rule 704 expressly does not circumscribe when the discretion should or should not be exercised in favour of ordering indemnity costs.

[78] A perusal of probate cases where costs orders have been made in favour of the unsuccessful propounder of a will show that there is no invariable practice that costs be ordered on the indemnity basis (or solicitor and client basis as it was previously known) rather than the standard basis (or party and party basis as it was previously known). In Bool v Bool [1941] St R Qd 26 the members of the Full Court were divided as to the basis on which the plaintiff executor who unsuccessfully propounded a will was entitled to his costs of the action out of the estate. Webb CJ and EA Douglas J held that the costs of the trial should be as between solicitor and client, whereas Macrossan SPJ concluded that it was not unreasonable to allow the plaintiff his costs of the action out of the estate, but on a party and party basis. In Williamson v Spelleken which involved a small estate where there was a doubt about whether the estate was sufficient to satisfy both parties' costs, both parties costs were ordered to be paid out of the estate. As the basis of the costs was not specified, it was taken to be the party and party basis.

[79] The total value of Mr Madden's estate was approximately $80,000. On any view that must be considered a small estate. The size of the estate must be a relevant consideration in determining the basis on which the unsuccessful party's costs are paid from the estate. On that basis, the plaintiff's entitlement to costs should be assessed on the standard basis.

[80] I will therefore order that the costs of the plaintiff and the defendant of this action including reserved costs be assessed on the standard basis and paid from the estate of Cyril Oscar Madden deceased.