Hill v Hill & Cat Protection Society of Victoria [2001] VSC 83

2. The plaintiff, Norena Suzanne Hill, seeks leave to apply for an order pursuant to s. 21 of the Wills Act 1997 and an order under that provision authorising a will to be made on behalf of her mother, Rhona Hill, who does not have testamentary capacity. I shall, for convenience, refer to them as Mrs Hill and "the daughter" respectively.

5. Mrs Hill was born on 5 May 1907 and is now 93 years of age. She has, since 29 November 1998, lived in a nursing home. On 29 September 1998 State Trustees Limited was appointed as administrator of her estate pursuant to the Guardianship and Administration Act 1986. Since that time Mrs Hill has suffered a progressive deterioration in her mental and physical condition. It is common ground and the evidence of her treating doctor, Ron Elisha, shows that she now lacks testamentary capacity and that she will not regain such capacity.

8. Mrs Hill's assets comprise a residential unit at 4/12 Mitford Street, St Kilda which she purchased in 1977. The value of this property appearing in the State Trustee accounts is $126,000 but no formal valuation has been obtained because of the limited resources available. The municipal valuation is $215,000 and the property is currently leased at a rental of $230 per week. A "kerbside valuation" of the property obtained from a local agent, Tony Pride, suggests that it may be worth $221,000. She had also, as at 18 December 2000, about $2,500 in cash. Her income, other than rental income is a pension of $399.70 per fortnight.

11. On 8 November 1996 Mrs Hill, then aged 89 years, made her only will. She appointed as her executor the treasurer for the time being of the Cat Protection Society of Victoria ("the Society") and she bequeathed her property upon trust for sale, the nett proceeds to be divided equally between the Society and the daughter. John Brian Parry, an accountant and the then treasurer of the Society, gave evidence as to the circumstances of the making of the will. He told me that Mrs Hill had for many years been a passionate cat lover and an enthusiastic member of the Society. She was in fact a subscriber to the Memorandum of the Association when it was registered in 1961 and is an honorary life member. He told me that, for some years prior to 1996, he used to meet Mrs Hill once or twice per year on which occasions she had but two topics of conversation: cats and her desire that her property pass to the Society rather than to her daughter. He said that she told him she did not get on well with her daughter and that he observed their strained relationship on one occasion. He told me that she discussed her will with him and her intention to give her property to the Society. He sought to advise against her proposed course because of the risk that the disappointed daughter might seek an order for further provision from the estate after she died. In the event, she acceded to his suggestion to the extent of giving half her estate to the daughter. It was accepted before me that she had testamentary capacity when she made the will and I accept that the terms of this will represent her intentions in November 1996. Mr Parry said that Mrs Hill told him she did not want her daughter to know of the will because she would try to have her mother change it in her favour.

14. I mention all of this because of the requirements of ss. 28, 27(1)(a) and 22(a) of the Wills Act. Of the three matters of which I must be satisfied pursuant to s. 26 upon an application for leave, the matter of particular importance in this case is the likely present intention of Mrs Hill on the assumption that she has testamentary capacity.

17. What was put on the daughter's behalf was that Mrs Hill's attitude changed after 1996. Compelling evidence was placed before me from professional carers concerned with both Mrs Hill and the daughter to the effect that, at different times in 1998, Mrs Hill expressed regret at the terms of her will and a desire that her daughter should inherit the unit in Mitford Street. With the deterioration of her mental capacity since that date I was asked to infer that her changed attitude would continue and therefore represented present testamentary intention if she were today capable of having an intention and of expressing it. I will not burden this judgment with a recitation of the evidence of these carers. They were John Stewart Christie, a psychiatric nurse, whose patient was the daughter and Linda Flavell, a social worker, who was the carer responsible for Mrs Hill from September 1997 to October 1998 and who continued to see her until January 1999. I have no hesitation in accepting their evidence.

20. I have not mentioned the evidence on this point of the daughter herself which was to the same effect. This is not because I reject her evidence but I prefer to rely upon that of the independent witnesses to conclude, as I do, that Mrs Hill in 1998 expressed a wish that she might make a fresh will giving the unit to her daughter.

23. It was put on behalf of the State Trustee and the Society that I should approach with caution the task of determining the supposed intention of Mrs Hill. It was said that the jurisdiction of the court under s. 21 is novel, intrusive upon testamentary freedom and may adversely affect the expectancy of beneficiaries. I accept all of this. I must be satisfied that the pre-conditions for relief have been made out by the plaintiff on the balance of probabilities, but in so doing I am mindful of the serious consequences of the conclusions which I am asked to draw.

26. It was put that Mrs Hill, in 1996, was apprehensive that she would be badgered by her daughter to change her will and that this is what happened. Further, I was reminded that there may be a difference between a person's statement of intention and the more formal step of executing a testamentary document. Finally, it was put that her mind was deteriorating in 1998 so that any statement of intention may not truly reflect a testamentary intention.

29. I have anxiously considered the evidence before me in the light of these submissions. I am satisfied that in 1998 Mrs Hill did in fact change her mind and that she intended to benefit her daughter at the expense of the Society for which she had had a long association. There is no evidence of the reason for this change of heart but Ms Flavell said that, from her discussions with Mrs Hill, she formed the impression that Mrs Hill had come to accept that her daughter suffered from a chronic problem and that she would never return to work. I am able to act upon this material in a case such as the present[1]. Furthermore, I infer from the evidence as a whole, that her change of heart was the product of an awareness of her own frailty and perhaps of her mortality, for she was very ill following a fall in 1997 and obliged to leave her home; as well as the product of an awareness that her daughter suffered from a mental illness for she suffered a relapse of her schizophrenia in October 1997 and became unable to work. It seems to me probable that Mrs Hill, who was mentally alert in 1998 despite her physical frailty, realised that the strains in her relationship with her daughter, her only child, may have been due to her daughter's mental disease which she had had for many years and that she appreciated that her daughter had a real need for a mother's affection and assistance. The changing of her will in favour of her daughter would at the same time provide these things - a sign of her affection and an assistance in a practical way.

32. I conclude also that, if she were able to do so, she would today have the same intention to benefit her daughter, albeit at the expense of the Society.

35. I must also consider in terms of s. 26(c) whether it is reasonable in all the circumstances to authorise the making of the proposed statutory will.

38. First and foremost, I have regard to the modest assets of Mrs Hill[2] and, to a lesser extent, the modest means of the daughter[3] who is a pensioner living with an unemployed man in her own flat in Edithvale. Their joint weekly income, solely from pension payments and superannuation, totals $439.34. The daughter, has, in addition to the flat which is valued at $165,000 and is in need of repair, investments totalling some $40,000. Her domestic partner, Robert John Griffiths, has $641 in the bank and a 1979 Holden car.

41. These matters are relevant to a submission put on behalf of the State Trustee that the daughter should instead in due course seek relief under the Testators Family Maintenance provisions of the Administration and Probate Act 1958. I accept that the task of the court in an application such as this is different from that in a Testators Family Maintenance application. Nevertheless, I should have regard to the fact that Mrs Hill, if she were today of testamentary capacity, would consult a competent solicitor who would advise her of the prospect that her daughter may make an application after her death for further provision. In so doing the daughter might bring forward her own medical condition and lack of means and her relationship with her mother in support of the existence of a testamentary duty unfulfilled. Mrs Hill in these circumstances would be advised of the financial impact of the likely costs orders in the event of such an application[4].

44. In all the circumstances, I conclude that it is reasonable for the court to authorise the making of the statutory will and I will grant leave to the daughter to apply for an order under s. 21.

47. I turn now to the s. 21 application itself. The same facts were relied upon in support and in opposition to the application. I make the findings which I have already set out. I am satisfied that it is appropriate that an order be made authorising a will to be made on behalf of Mrs Hill.

50. The daughter proposes a will be made in terms of Exhibit NSH6 to her affidavit sworn on 18 December 2000. This is a will under which the daughter is appointed executrix and sole beneficiary under a trust for sale. It reflects the likely intention, as I have found it, of Mrs Hill. I will make an order in terms of s. 21 approving a will in this form.

53. I will hear counsel further as to the orders which are required in order to give effect to these conclusions. I will hear counsel further as to costs. I note in this regard that no order as to costs was made in Monger v Taylor. In the event that a different order is sought I should be assisted by submissions as to whether the State Trustee should have its costs of opposing the application given the fact that the Society was represented to present the same arguments.

[1] Section 27(1) and s. 22.

[2] Section 28(b).

[3] Section 28(h).

[4] Monger v Taylor [2000] VSC 304 at [103], per Gillard J.