Succession - Wills, probate and administration - The making of a will - Testamentary instruments - Knowledge and approval of contents - Generally - Circumstances raising suspicion - Will prepared by person taking benefit.

Supreme Court of Tasmania|2011-12-22|Before: Wood J

Howroyd v Howroyd [2011] TASSC 73 (22 December 2011)

CITATION: Howroyd v Howroyd [2011] TASSC 73

Vernon v Watson [2002] NSWSC 600; Nock v Austin [1918] HCA 73; (1918) 25 CLR 519, referred to.

Succession - Wills, probate and administration - The making of a will - Testamentary capacity - Soundness of mind, memory and understanding - Evidence - Onus of proof and weight of evidence - Will executed day before death.

Banks v Goodfellow (1870) LR 5 QB 549, Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, referred to.

Judgment Number: [2011] TASSC 73

1 A claim has been made that the Court shall decree probate of the will of Denis James Howroyd in solemn form. Mr Howroyd died on 9 July 2007.

2 The plaintiff, Richard Howroyd, is the nephew of the testator and a solicitor. On Sunday, 8 July 2007, he received a request to attend his uncle in St John's Hospital, Hobart to speak about his will. Richard Howroyd knew his uncle was gravely ill and might be dying. He took instructions for a will at his bed-side and drafted the clauses in long-hand. He had never prepared a deathbed will before. Two women visiting a patient at the hospital agreed to witness the signing of the will. The attesting witnesses recall aspects of the incident, accept they signed the will, but cannot remember seeing Mr Howroyd sign the will in their presence. Mr Howroyd died the following day.

3 The challenged will is simple and short. It contains some errors, one of which was corrected by Richard Howroyd, but the correction was not initialled by the testator. Standard clauses have not been included.

4 Richard Howroyd is a residuary beneficiary under the challenged will. The other residuary beneficiary is his brother, Glenn Howroyd.

5 The defendant, Terence Howroyd, is the testator's youngest brother. He has entered a caveat opposing the grant of probate. He is a beneficiary under the challenged will, but his share of the estate is less substantial than that of his two nephews.

6 Under an earlier will made by the testator in 2003, Richard Howroyd and his brother, Glenn, were both beneficiaries as was Terence Howroyd. Under that will, Terence Howroyd was to receive a larger share of the estate than Richard Howroyd. Richard Howroyd stands to gain by the new will and his position is improved by comparison with the bequest to him under the 2003 will.

7 Three separate questions arise from the pleadings:

1 Was the signature made or acknowledged by the testator in the presence of the two witnesses who were present, as required by s10 Wills Act 1992?

2 At the time of the execution of the will, did the testator lack testamentary capacity?

3 At the time of the execution of the will, did the testator know and approve of the contents of the will?

8 Particulars of the assertion of lack of testamentary capacity set out in the defence are as follows:

"4 The deceased Denis James Howroyd at the time of the execution of the alleged Will dated the 8th July 2007 lacked testamentary capacity.

PARTICULARS

The defendant says that the deceased Denis James Howroyd lacked testamentary capacity at the time he signed the alleged Will dated 8 July 2007 because:

(a) he was in a rapidly changing clinical state in that he was dying at that time;

(b) he was medicated to such a state at that time as to not be able to appreciate the effect of his actions at that time; and

(c) he was unable to communicate at all at that time."

9 The particulars of lack of knowledge and approval are as follows:

"3 The defendant says further that the deceased Denis James Howroyd at the time of the execution of the alleged Will dated the 8th July 2007 did not know and approve of the contents thereof.

PARTICULARS

(a) The deceased Denis James Howroyd did not give the instructions for the alleged Will;

(b) No written instructions for the alleged Will were taken;

(c) The alleged Will was not read over or explained to the deceased Denis James Howroyd at the time of its alleged execution;

(d) The deceased Denis James Howroyd at the time of the execution of the alleged Will dated the 8th July 2007 did not know and approve of the contents thereof."

10 In relation to the third issue of knowledge and approval, the defence has invoked the doctrine of probate law of "suspicious circumstances". A key factor relied upon is that the person instrumental in the framing of the will, Richard Howroyd, is also a beneficiary under the will. The circumstances identified as suspicious, such that the testator did not know and approve the contents of the will, are particularised as follows:

"PARTICULARS

(a) The plaintiff was the nephew of the deceased Denis James Howroyd;

(b) The deceased Denis James Howroyd was in a rapidly changing clinical state in that he was dying at the time of the execution of the said Will;

(c) The deceased Denis James Howroyd was medicated to such a state as to not be able to appreciate the effect of his actions at the time of execution of the said Will;

(d) The deceased Denis James Howroyd was unable to communicate at all at the time of the execution of the said will.

(e) The plaintiff wrote out the said Will for the deceased Denis James Howroyd in his hospital room immediately before it was executed;

(f) No other person was present with the plaintiff and the deceased Denis James Howroyd in his hospital room at the time that the said Will was written out by the plaintiff;

(h) The plaintiff was present at the time of the execution of the said Will by the deceased Denis James Howroyd.

(i) The plaintiff benefited substantially from the said Will whereas the Plaintiff would have received a substantially smaller portion of the estate of the deceased Denis James Howroyd in the only other known Will executed by the deceased Denis James Howroyd on the 19th June 2003;

(j) The deceased Denis James Howroyd had had no regular contact with the plaintiff before his death.

(k) The Plaintiff, who wrote the said Will, is a legal practitioner with experience in the preparation of Wills and despite such experience, the said Will is messy and contains errors;

(l) The said Will was initially dated 8 June 2007 with that date crossed out and corrected to read 8 July 2007 and although that correction was initialled by the two witnesses to the execution of the said Will, it was not initialled by the said Denis James Howroyd;

(m) The Plaintiff and his brother, named as beneficiaries in the said Will, have their names written out in full in the said Will whilst the Defendant, also named as a beneficiary in the said Will has his named [sic] shortened in the said Will;

(n) The said Will does not purport to revoke any previous Will of the said Denis James Howroyd in circumstances where the said Denis James Howroyd had apparently made a Will on the 19th June 2003;

(o) The said Will purports to describe the said Denis James Howroyd by the first names of 'Dennis' and 'Deniis'; and

(p) The said Will does not provide for the payment of the funeral and other testamentary expenses of the said Denis James Howroyd."

11 The defence does not assert fraud or undue influence by the plaintiff in the preparation of the will.

12 Some of the facts are common ground: matters of personal history about the testator, the testator's relationships with family members, the existence of a will made by the testator in 2003, the terms of the contested will, and details regarding the deceased's estate. These are set out at this stage as context for the consideration of the questions identified above.

13 There is a substantial amount of evidence from the plaintiff and witnesses for the plaintiff which is challenged. In relation to most of it there is no evidence to the contrary, from other witnesses or documents. Nonetheless, the evidence is very much in contention. It falls into the category of evidence to be scrutinised, and is dealt with separately.

14 The testator, Mr Denis James Howroyd, was aged 74 when he died. He had no children and had never married. He did not have a partner or companion in life.

15 Mr Howroyd graduated from the University of Tasmania with an economics degree and pursued a career as an accountant employed by Treasury. Towards the end of his working life he worked as a State Government auditor.

16 He grew up in Scottsdale with his parents and three brothers and moved to Hobart to attend university. Soon afterwards his parents moved to Lindisfarne. Mr Howroyd then lived with them in their house at Lindisfarne, caring for his mother when she was widowed. After her death in 1987 he inherited the house and continued to live there, alone.

17 He also had a holiday house at Bridport. His major hobby was growing orchids and he had an "orchid house" at Lindisfarne and Bridport.

18 Mr Howroyd was described as "his own person". By that I gather it was meant that he was an independent thinker and did things his own way, to the point of eccentricity. By way of example, he continued wearing a gentleman's hat, a pork pie hat or similar, long after it was out of fashion. He was described in evidence as reserved, not demonstrative and a "private person". The descriptions of Mr Howroyd in evidence, portray him as an intelligent, kind and dignified gentleman.

19 Terence Howroyd has given evidence that I accept about some of his brother Denis Howroyd's character traits. These traits are relied upon as giving rise to concern about the challenged will. Terence Howroyd noted that his brother was always a very formal man who exercised great care with detail. Similarly, Mr Howroyd's treating doctor, Dr Jupe spoke about Mr Howroyd as a "fastidious" man. Mr Howroyd always spelled his name with one "n" and whenever people spelled it with double "n", he was greatly annoyed.

20 Mr Howroyd developed cancer, multiple myeloma about five years before his death. Over those years he had a number of admissions to hospital for that condition and complications associated with it. His treating practitioner for that condition was Dr David Jupe.

21 Mr Howroyd died at the Palliative Care Unit at the Gibson Unit, St John's Hospital on 9 July 2007. He was in the Gibson Unit in the days leading up to his death. The background to his admission to that Unit are as follows.

22 Mr Howroyd was admitted to St John's Hospital as a consequence of a complete small bowel obstruction. That was unrelated to his condition of multiple myeloma which was at an advanced stage and had led to a significant loss of condition.

23 Dr Jupe sought a surgical opinion with respect to the bowel obstruction and Mr Howroyd was transferred to Calvary Hospital for a period of assessment and intravenous nutrition. At Calvary Hospital he spent some time in intensive care. After consultation with the specialist, Mr Bob Linnacre, it was decided that surgical intervention was not possible due to the fact that he was a high risk operative candidate. Unless there was spontaneous improvement, the outlook was grave. Mr Howroyd was made aware of that and that if the condition did not resolve he would not survive.

24 On 6 July, Mr Howroyd was transferred to the Gibson Unit at St John's Hospital for palliative care. Dr Jupe sought advice from Dr Paul Dunne as the consultant in palliative medicine at the Repatriation General Hospital regarding palliative management of the bowel obstruction. A meeting with Dr Jupe, Dr Dunne and Mr Howroyd was held on 6 July to discuss palliative management.

25 At this meeting Dr Jupe and Dr Dunne talked to Mr Howroyd about the incurability of his bowel condition and the plan to treat him palliatively. Dr Dunne spoke to him about making the rest of his days as comfortable as possible. The doctors, uncertain as to how long his time was, spoke in terms of generalities of days and weeks. Undoubtedly, Mr Howroyd knew after that discussion that his condition was very grave and he did not have long to live.

26 Dr Dunne looked after Mr Howroyd over the weekend. He saw him on 7 July and then the following day, approximately three to five hours before the time the challenged will was made. After the meeting on 6 July, described above, Dr Jupe did not see Mr Howroyd until the morning of Monday, 9 July, and by that time he was comatose.

27 The testator is the second youngest of four brothers. His eldest brother is Richard Brian Howroyd (usually known as Brian, and referred to as Brian in these reasons to avoid confusion with the plaintiff), born 1924 and the father of the plaintiff. He had a brother Laurence (Bill) born in 1929, Denis was born in July 1933 and the youngest brother, Terence was born in 1935.

28 Brian Howroyd studied in Hobart and settled in Hobart. Terence moved away in the 1950s after graduating from university. He pursued a career as a university academic and lived in Melbourne and Scotland and finally moved to Canada where he became a professor of mathematics and has continued to live there since retirement. Bill Howroyd moved to Western Australia in the 1970s and returned to live in Hobart in about 1980.

29 The testator, Mr Howroyd had regular contact with his brother Brian Howroyd, his wife and children throughout his life. He lived with Brian and his wife for a short while when he was at university. Brian Howroyd was an architect and he designed Mr Howroyd's holiday house at Bridport. Mr Howroyd celebrated family events such as Christmas and birthdays with Brian, his wife Pat Howroyd, and their two children Richard and his younger brother Glenn.

30 After Mr Howroyd developed cancer and his physical condition deteriorated, Brian Howroyd and his wife assisted him in various ways. They helped with household chores such as hanging out his washing and washing-up. When he was in hospital they had the keys to his house and watered his orchids, did some tidying of his house, collected his mail and attended to his banking. On an ongoing basis they did his shopping and collected his medicines. As time went on he needed increasing support. In the last six months or so there was frequent contact with him.

31 As he was growing up, Richard Howroyd had regular contact with his uncle in the family setting. There were visits to his grandparents' home at Lindisfarne where Mr Howroyd lived. These visits were a regular event on Friday nights, but there was also contact at other times, and on special occasions such as birthdays, Easter and Christmas. As Richard Howroyd was growing up they shared an interest in coins and shares.

32 Richard Howroyd, as an adult, kept in contact with his uncle. Mr Howroyd visited his nephew when he was living in England. Mr Howroyd went to his wedding in 1981. After that for a period of approximately four years the plaintiff lived interstate, returning with his own family to live in Hobart. Richard Howroyd and his family visited his grandmother and Mr Howroyd occasionally and on special occasions.

33 On one occasion Richard Howroyd and his wife used Mr Howroyd's holiday home at Bridport. He saw less of his uncle after his grandmother's death in 1987. However, Richard Howroyd continued to see Mr Howroyd at Christmas time and on family occasions, and they continued to have a friendly relationship. Richard Howroyd visited him in hospital in 2005. Mr Howroyd attended Brian and Pat Howroyd's sixtieth wedding anniversary in May 2007. He did not stay long but joined the family for the meal and sat next to Richard Howroyd.

34 Richard drew the will for his grandmother, Mrs Howroyd. The testator was left the house subject to the mortgage. Richard Howroyd acted in her estate. Richard transferred the house to Mr Howroyd and accounted to him in the estate because Mr Howroyd was responsible under the will for the payment of the funeral and testamentary expenses.

35 In October 2005 Mr Howroyd asked Richard Howroyd to keep his title deeds to his two properties in safekeeping at his office. Richard Howroyd did so and wrote to Mr Howroyd confirming that he would do that for him.

36 Glenn Howroyd described his uncle as appearing to have a strong attachment to his immediate family. Mr Howroyd also developed a friendship with Pat Howroyd's family. He kept beehives in the orchard of Pat Howroyd's father's property at Kettering.

37 Glenn Howroyd described his own relationship with his uncle as he was growing up. Friday nights were spent at his grandparents' house and, as the other adults conversed, Mr Howroyd often chatted to his nephews instead and entertained them. On Christmas Day, at the evening meal held at Lindisfarne, when the dining table was crowded, Mr Howroyd joined his nephews at the card table for dinner. Mr Howroyd helped Glenn Howroyd with his schoolwork.

38 Glenn Howroyd moved to Sydney in the late 1970s. He kept in contact with his uncle by occasionally telephoning him and exchanging Christmas cards. On return visits to Tasmania, Glenn Howroyd visited Mr Howroyd approximately once a year. Mr Howroyd stayed with Glenn Howroyd when he travelled to Sydney on two occasions for the funerals of family members. Glenn Howroyd's evidence was that Mr Howroyd never told him or even hinted at the fact that he had included him in his will. He only learnt of this and his role as executor of the estate, when Mr Howroyd died.

39 Glenn Howroyd's evidence was that Mr Howroyd showed a genuine interest in him and his brother as they were growing up and used to engage with them in a meaningful way.

40 A mutual fond regard between uncle and both nephews was evident from the evidence of Richard and Glenn Howroyd.

41 Terence Howroyd's contact with his brother was limited due to the fact he lived in Canada. He returned to Tasmania and visited family at regular intervals and had done so in the previous ten years before Mr Howroyd's death. The last time he saw his brother was in 2000 when he visited Tasmania. On that visit he stayed with the testator for some weeks.

42 The testator, Mr Howroyd, made an earlier will dated 19 June 2003. It was made on a "Quill Will" form. It was kept by Mr Howroyd at his home amongst his papers. Its whereabouts became known by Brian Howroyd when Mr Howroyd was in hospital in 2005. Richard Howroyd was not instrumental in drafting that will or assisting Mr Howroyd with regard to it.

43 The terms of the 2003 will were that the testator left the Lindisfarne property to his brother Terence Howroyd, the Bridport property to Glenn Howroyd and the remainder of the estate to Richard Howroyd. The terms of the will were as follows:

"This is the last Will and Testament of me, Denis James Howroyd otherwise known as Dennis James Howroyd (name)

of 49 Kaoota Rd, Rose Bay, Hobart, Tasmania (address)

in the State of Tasmania

1 I revoke all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament.

to be Executor or Executrix and Trustee of this my Will.

I give to Malcolm French of Benjafield Terrace, Mt Stuart, Hobart my my [sic] shade house orchids and orchid library books plus a computer.

I give my tools and workshop equipment as held at Bridport to Ken Walker of 9 Emily St, Bridport

I give and devise my holiday cottage at 127 Westwood st. Bridport Tasmania to my nephew Glen Howroyd. I give the furniture and fittings in the aforesaid cottage to Glen Howroyd. I give and devise my home at 49 Kaoota Rd Rose Bay, Hobart Tasmania to my brother Terrance David Howroyd

I give my car to my nephew Glen Howroyd

I give all the rest of my property to my nephew Richard Howroyd of Hobart Tasmania as beneficiary

Dated this 19th day of June in the year two thousand and three"

44 The challenged Will made on 8 July 2007 is in simple terms and was completed on a single page. The substantive part of the Will is as follows:

"2 I appoint Glenn Calvert Howroyd, my nephew, to be my executor.

3 I give my shares to my brother, Terry Howroyd.

4 I give devise and bequeath the rest of my estate to my 2 nephews, Glenn Calvert Howroyd and Richard John Howroyd in equal shares."

45 An inventory of assets and liabilities filed with the probate registry is part of the evidence. Glenn Howroyd, as executor, has filed an affidavit in these proceedings attaching the inventory and describing it "as a true statement of the estate of the deceased and that the values are fair and reasonable". It provides that the total value of the assets are $843,233.50 and total liabilities are $12,514.68. Details of the value of cash and assets provided in the inventory are as follows:

The inventory provides an estimate of the value of the entirety of the estate at the time it was prepared. Richard Howroyd's evidence was that the affidavit of assets and liabilities was prepared, and information about the value of the shares was obtained after Mr Howroyd's death and before 18 February 2008. There is no other more specific evidence regarding the value of the estate and specific assets at that time. The parties have proceeded on the basis that for the purposes of this case the appropriate assumption is that the inventory reflects an estimate of the value of the assets at the time of Mr Howroyd's death. There is also no evidence regarding the value of the estate or any of the specific assets at any other time such as at the time the making of the challenged will in July 2007 or the original will in 2003.

The position of the beneficiaries under the 2007 will compared with the 2003 will

46 Based on the estimates of the value of the testator's assets as set out above in the inventory, there is common ground about the comparative positions of the beneficiaries under the two wills. Richard Howroyd receives a larger share of the estate under the 2007 will than under the 2003 will. His share of the estate under the 2007 will is worth about $100,000 more than his share under the 2003 will, based on the values of the real estate and share portfolio at the time the inventory was prepared. Under the 2007 will Terence Howroyd would receive a share of the estate which was then worth about $100,000 less than his share under the 2003 will. The bequest of the Lindisfarne house to Richard Howroyd in the 2007 will represents a gain to him to the detriment of Terence Howroyd who was to receive the house under the 2003 will. Of course, it is reasonable to assume that for Terence Howroyd the family home at Lindisfarne would possess a sentimental value. The bequest to Glenn Howroyd in the challenged will, compared with the 2003 will, is worth approximately the same.

47 There was evidence that by the time of the hearing the value of the share portfolio had decreased due to the global financial crisis, and the value of the real estate had risen. Again, no exactitude has been brought to the values of the share portfolio and real estate at that time. Of course, it is the value at the time of the testator's death which is significant in determining the issues in this case.

48 It is pleaded that the will is invalid and not all of the statutory requirements for due execution have been complied with. While no evidence has been led by the defendant on this issue, no concessions have been made, and the defendant puts the plaintiff to proof.

"10 Requirements as to writing and execution of will

Except as provided by this Act, a will is invalid unless it is in writing and executed in the following manner:

(a) it is to be signed at the foot or end of the will by the testator or by some other person in the presence of, and by the direction of, the testator;

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time;

(c) the witnesses must attest and subscribe the will in the presence of the testator, but no form of attestation is necessary."

50 It is the defendant's position that the Wills Act, s10(b), has not been established and that the evidence does not establish that the testator signed the challenged will in the presence of the two witnesses, or that he acknowledged his signature in their presence.

51 The two witnesses must be present at the same time, and if the testator did not actually sign in their presence, there must be an acknowledgement by the testator of his signature in their presence.

52 An acknowledgment by the testator of his signature may be inferred from the facts. It has been held to be sufficient acknowledgment for the testator to produce the document with the signature on it and to ask the witnesses to subscribe: Daintree & Butcher v Fasulo (1888) 13 PD 67. The concept of acknowledgment by the testator of his signature in the presence of witnesses requires at least that the witnesses see or have the opportunity of seeing the signature: In re Skelton [1930] VicLawRp 49; [1930] VLR 323.

53 It is worth noting that there is no necessity for due execution to be proved by evidence from the attesting witnesses. It can be proved by evidence from some other source.

54 The principles of law that govern a consideration of the second and third issues, testamentary capacity and knowledge and approval, are well settled. They are separate legal issues, and both need to be proved.

55 If testamentary capacity is not established, the will is void. The burden of proving testamentary capacity lies on the person propounding the will: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 570. The court must be affirmatively satisfied that the testator was of sound mind, memory and understanding when he executed the will (Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295). If testamentary capacity is not established, the court must decide against the validity of the will: Bull v Fulton (supra) per Williams J at 343.

56 In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ set out at 565 what is essential in terms of a testator's understanding. This statement of the requirements of the law is regarded as the classic test of whether or not a person has testamentary capacity:

"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."

57 It is worth highlighting (see Smith J In Re Brokenshire (deceased); The Equity Trustees Executors and Agency Co Ltd v Worts [1998] VSC 183; (1998) 8 VR 659) that the test requires that Mr Howroyd comprehended:

•

the nature of what he was doing and its effects;

•

the extent and character of the property with which he was dealing, and

•

the claims and a weighing of the claims to which he ought to give effect.

58 In dealing with unsoundness of mind arising from the "decay of advancing age" Cockburn CJ in Banks v Goodfellow (supra) stated at 566 that "though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains." In focussing on deficiency of memory it was noted that (at 568):

"The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?"

59 Feebleness, grave illness or extreme age are not sufficient of themselves to disentitle the testator of his right to dispose of his or her property by will: Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, Kirby P at 295, and Banks v Goodfellow (supra) at 560. It will only do so if age or illness so affected the mind of the testator in regard to testamentary disposition (In re White (Deceased); Brown v Free [1951] NZLR 393; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707).

60 In cases where the evidence raises a doubt about the testator's testamentary capacity, it is necessary that there be a vigilant examination of the whole of the evidence. The standard of proof is the balance of probabilities: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 453_._ The burden is on the proponent to satisfy the "conscience of the court" that the testator had testamentary capacity (In re Estate of Griffith, per Gleeson CJ 289). The burden continues throughout the case and must be determined upon the whole of the evidence: Bailey v Bailey (supra) at 570.

61 Counsel for the plaintiff submitted that the critical time in terms of testamentary capacity is the time of giving instructions, less so the moment of execution of the will. While the sound disposing mind must exist at the execution of the will, the testamentary capacity need not be as complete at the time of execution of the will as it was at the time of giving instructions for the will: Perera v Perera [1901] AC 354 at 362_._

62 The third issue is whether the testator knew and approved of the contents of his will. Ordinarily proof of capacity and proof of due execution of the instrument creates an assumption of knowledge and approval. However, where the circumstances give rise to a suspicion about knowledge and approval the assumption does not apply. Here, the circumstances are suspicious. This means that the proponent of the will has the burden of dispelling the suspicion and must establish that the testator knew of and approved the contents of the will. (Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 at 528.) This is described as the rule or doctrine of suspicious circumstances.

63 A suspicion arises in this case because the person who wrote the will also takes a benefit under the terms he was instrumental in framing. The will is not void by virtue of this fact but, necessarily because of this circumstance, the validity of the will is called into question and gives rise to a need for scrutiny. The question that is to be closely examined by the Court is whether the mind of the testator is reflected in the will.

64 The descriptions of the Court's role when there is ground for suspicion emphasise the need for very close scrutiny of the evidence. The issue under close consideration is whether the testator knew and approved of its contents. The following descriptions of the Court's role have been uttered and bear repetition. They are collated in Vernon v Watson [2002] NSWSC 600 at par[4]:

•

The Court is "vigilant and jealous" and "requires clear and satisfactory proof that the instrument contains the real intention of the Testator", at par[4], referring to Baker v Batt [1838] EngR 643; [1838] 2 Moore 317; 12 ER 1026.

•

The circumstance calls for the "vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will" Nock v Austin (supra) at 528, pars[3] and [4].

•

The circumstance of suspicion demands the "vigilant care and circumspection of the Court in investigating the case" and requiring "full and entire satisfaction that the instrument did express the real intentions of the deceased": Barry v Butlin [1838] EngR 1056; [1838] 2 Moore 480; 12 ER 1089.

•

The Court ought to be "well satisfied, from evidence calculated to exclude all doubt, that the testator ... knew and approved of its contents": Atter v Atkinson (1869) 1 PD 665 at 668, Sir JP Wilde.

•

There is a "salutary" burden on the propounder of the will to prove affirmatively that the deceased knew and approved of the will: Fuller v Strum [2001] EWCA Civ 1879; [2002] 2 All ER 87 per Peter Gibson LJ.

65 Having given due consideration to the thorough and careful examination of the evidence that is required, and the vigilance I must exercise, I note that it is also necessary to approach the evidence sensibly, remembering that the degree of suspicion varies with the circumstances: Bisdee v Smith [2004] TASSC 152, per Blow J at 4. Depending on the circumstances, the burden of establishing that the testator knew and approved the contents of the will can be a very heavy one.

66 In this case, there is no allegation of fraud or misconduct on the part of the plaintiff. This means that the question about which there needs to be suspicion is confined. The question is, absent any such fraud or misconduct by Richard Howroyd, has it been affirmatively established that the testator knew what he was doing when he executed his will: Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 at 523. As stated by Isaacs J in Nock v Austin at 528, par[7]:

"(7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn LC in Low v Guthrie)."

See also Wintle v Nye [1959] 1 All ER 552 at 560.

67 Notwithstanding the absence of an allegation of fraud or undue influence, the circumstances of this case rouse a significant degree of suspicion and the burden on the plaintiff is a heavy one. Richard Howroyd was the only person present at the time the instructions were taken. He was instrumental in drafting the will and was to receive a large benefit. Richard Howroyd's conduct, such as not seeing that Mr Howroyd had independent legal advice, or arranging an independent person to be present when the will was read over to Mr Howroyd, contributes to the level of suspicion that has been raised (Nock v Austin (supra) per Isaacs J at 530). The full force of the descriptions of the court's role set out in Vernon v Watson (supra) apply and the burden on Richard Howroyd is a salutary one. Given these circumstances, Richard Howroyd's evidence must be closely and critically examined: see Nock v Austin at 529, Wintle v Nye (supra) at 557 - 558.

68 A consideration of the application of the legal principles regarding testamentary capacity and knowledge and approval concerns evidence that overlaps both issues. For example, evidence of the testator's medical condition or the medication administered to him has implications for both capacity and knowledge. For this reason the evidence regarding these two issues is dealt with together and set out under headings which deal with both issues, but for convenience are described as "testamentary capacity".

69 First to be considered is the medical evidence of Mr Howroyd's condition and then evidence regarding the medication administered to Mr Howroyd.

70 Dr Dunne gave evidence about his observations of Mr Howroyd on 6 July, the deterioration in Mr Howroyd's condition after that date, and his observations on both days of the weekend. On 6 July Mr Howroyd was well settled with medication designed to manage nausea and other symptoms. He was "reasonably alert", able to make decisions and he was agreeable to palliative management.

71 As previously noted, Dr Dunne took care of Mr Howroyd over the weekend of 7 and 8 July while Dr Jupe was away. When Dr Dunne reviewed him on 7 July he was comfortable but then had problems with persistent vomiting. He was reasonably alert although he was a "little slow" in his thinking. Dr Dunne explained to Mr Howroyd the reason for the medication and the syringe driver. He had to explain to him the reason a few times but Mr Howroyd seemed to understand. Dr Dunne and Mr Howroyd talked about various aspects of his diet and what he could and could not eat at that stage. There were reports of frequent vomiting over night.

72 Dr Dunne saw Mr Howroyd at approximately lunchtime (11:30am to 1pm) on Sunday 8 July. Dr Dunne noted a "marked deterioration" in his overall condition. He had a rattly cough, he was tachycardic (rapid heart beat) and had tachypnoea (rapid respiration). In Dr Dunne's opinion he was in quite a perilous condition and dying. Dr Dunne considered that he had probably developed aspiration pneumonia as a result of repeated vomiting.

73 Dr Dunne spent some time with Mr Howroyd, probably about 15 - 20 minutes. He said some of his words were a little indistinct but, "I think we got the message across and I could understand him".

74 Because Mr Howroyd was uncomfortable with rapid breathing and he was distressed, the medication was increased, adding an opiate, Hydromorphone, to the syringe driver. Dr Dunne also added a low dose of Midazolam, as a means of overcoming some of the distress and anxiety.

75 Afterwards the course was one of rapid deterioration and death on the afternoon of 9 July. The "most likely cause of death was overwhelming sepsis (probably as a result of inhalational (aspiration) pneumonia or a gram negative septicaemia from the persistent bowel obstruction). The Myeloma probably contributed to the cause of death by adding to his decreased immunity and inability to fight off infection."

76 Dr Dunne has been asked to provide an opinion as to whether Mr Howroyd had testamentary capacity at the time he signed his will on 8 July. He provided a report stating that he was uncertain:

"As to the question that he had testamentary capacity at the time that he signed his will I am not certain. I certainly feel that on the day before the 7th and certainly on the 6th July that he would have been able to make these depositions without let or hindrance, however the man I saw on the afternoon of the 8th July was very unwell and was beginning to die.

The mode of his death as a result of infection was more acute than from the effects of prolonged inanition due to a cancer and there is the possibility that he might have had the clarity of mind to make a will. However, his rapidly changing clinical state and the presence of medications which had been given in increasing doses to allow him to be more comfortable makes me uncertain as to whether he would have had full testamentary capacity on the afternoon of the 8th of July.

I am afraid I cannot be more specific as to whether or not Mr Howroyd had testamentary capacity. I can mount an argument either way but I am unable to be certain as to the moment in time the will was made."

77 There were requests for further opinions from Dr Dunne on the critical issue of testamentary capacity. Counsel for the defendant requested a report and provided to Dr Dunne hospital drug charts and statements from two friends, not in evidence. Dr Dunne provided a report of 8 December 2009, and expressed reservations about Mr Howroyd's testamentary capacity. Speaking of his capacity at the time, Dr Dunne noted that Mr Howroyd was "near death and although people can do prodigious feats in this pre terminal phase I believe he was failing mentally and physically and such a sustained effort would I believe have been beyond his capability at that stage".

78 Counsel for the plaintiff then requested a further report. He enclosed relevant parts of the statements of the plaintiff and his parents concerning contact with Mr Howroyd on 8 July. He was asked to arrive at an opinion as to testamentary capacity, assuming those statements to be true. These statements contained information that was included in the affidavits of these witnesses tendered in evidence.

79 Dr Dunne provided a report dated 15 June 2010, indicating that he had read the statements and that the "question does come down to whether or not the statements are true". He stated:

"If they are then that gives a lot more clarity around the decision making process and I would be happy that Mr Howroyd had capacity and was able to comprehend the matters involved in the process of making provision for his estate. However as I have previously said, it is a very difficult thing to work out what a person's testamentary capacity was retrospectively and in the absence of any formal review and it may end up being a decision for the court."

80 It is clear that Dr Dunne's opinion about testamentary capacity hinges on the observations of those who saw and spoke with Mr Howroyd on 8 July in the period up to and at the time of the making of the will. The essence of Dr Dunne's opinion is that if the evidence of Richard Howroyd and his parents is true then the testator had testamentary capacity.

81 Dr Dunne's evidence was that at the time he saw Mr Howroyd on Sunday at about lunch-time, he would have thought that he did then have that capacity. He added that although he could not recall doing so, it would have been his practice to have spoken to the patient at that time about resuscitative attempts and treatment.

82 Dr Dunne was asked about his expectation of Mr Howroyd's condition after he saw him on Sunday, 8 July. Dr Dunne stated that his expectation was that he was deteriorating, whether he would have "put that hour by hour" he was not sure. Even at the point that he saw him on Sunday, he may still have had a prognosis of days rather than hours. By 4pm he could have been a bit calmer than he was when Dr Dunne saw him at about 11.30am - 1pm.

83 Dr Dunne was asked about whether he expected there was any decreased mental alertness on the afternoon of 8 July. In summary, he said that there would have been a level of mental deterioration. As to whether it affected Mr Howroyd's reasoning he was unable to say. In evidence and cross-examination Dr Dunne maintained his uncertainty about testamentary capacity.

84 Further, he gave evidence that the sort of stress on the body suffered by Mr Howroyd may heighten focus or it may cause a clouding of consciousness. It is impossible to say from person to person the effect on an individual's mental capacity. He explained a state of delirium can occur as part of the dying process and is high in terminally ill patients. People can come out of apparent delirium, focus fairly acutely on the task at hand, do incredible feats of thinking and then lapse back. Dr Dunne noted it is possible for someone in an acute dying situation, especially without a long-term chronic illness, for the body's metabolism to maintain a level of fairly acute thinking.

85 At the time of the making of the will Mr Howroyd was under stress and dying, and yet he could have been aware of what he was doing. Dr Dunne was asked to assume that Richard Howroyd's affidavit was correct; his evidence was that it would not surprise him that Mr Howroyd would have been able to do the things described in the affidavit.

86 In evidence Dr Dunne explained that in terms of testamentary capacity you could argue either way. Mr Howroyd could have had the capacity or there may have been clouding of his consciousness. He explained that ultimately it was a question for the Court.

87 Over the course of the weekend of 7 and 8 July, the drugs administered to Mr Howroyd were Hydromorphone, Midazolam and Haloperidol_._

88 There is no dispute that the drugs administered, a description of them, dosages and times of administering the drugs are as follows:

CNS Drugs Administered to Denis Howroyd for Final 4 Days in Palliative Care Ward.

High-potency antipsychotic with anti-vomiting and sedative effects

5mg/24hours from 7:50pm Friday July 6th 2007 until death

89 It is important to note that the breakthrough injections were administered subcutaneously and not intravenously.

90 The issues explored were whether, at the time of the making and execution of the will, the medication might have clouded the testator's judgment or even caused a state of "conscious sedation".

91 Dr Jupe was of the view that the drugs in these doses would not be expected to cloud judgment. In response to a request for a report from Mr Zeeman focussing on the effect of the drugs on mental state, Dr Jupe stated as follows in his report of 5 March 2009:

"As to the drugs prescribed, they are all drugs capable of altering ones [sic] mental state and so might cause mental confusion and incompetence. However the intention of the prescription is to alleviate anxiety and pain without any severe effect on clarity of mind. The doses prescribed are relatively small and would normally not be sufficient in themselves to cause confusion. However as you point out Mr Howroyd was in a preterminal weakened state and one could not be, a priori, sure that no confusion would be caused."

92 The effect of Dr Jupe's evidence was that Midazolam will cause some degree of loss of acuity and the issue is the extent of the loss likely in this situation. If the objective is maximising avoidance of risk, then the advice would be that the patient should avoid doing anything which might require maximum acuity of thinking.

93 Dr Jupe explained that Mr Howroyd was given "relatively modest" doses of Midazolam. The effects of the drug would be dramatically higher if given intravenously rather than administration by a syringe driver and subcutaneously.

94 Dr Jupe was asked whether the levels of Midazolam given to Mr Howroyd on Sunday would be sufficient to cause conscious sedation, and he replied, "possibly briefly", but that the doses administered were "low" for that sort of effect. Dr Jupe said that the breakthrough injection and the syringe driver could certainly bring about some clouding of consciousness. He emphasised that the dose was way below levels that would be achieved by injecting a patient with 2 - 3 mg intravenously to achieve conscious sedation for the purpose of a medical procedure. Dr Jupe deferred to Dr Dunne's experience with syringe drivers in relation to this issue of the effect of medication.

95 Dr Jupe was asked about the combination of drugs administered, and whether Mr Howroyd would have been in a state of conscious sedation at 4pm on 8 July. His response was that the doses were reasonably small and the intent was to make him comfortable without such an effect. He said he could not swear to the fact that the combined effect would not have been able to cause him some sedation.

96 As to whether, at about 4pm, the effect of the drugs would have prevented testamentary capacity, Dr Jupe could not be sure. An assessment of that matter was dependent on Mr Howroyd's behaviour and what he was saying to people.

97 Dr Dunne also gave evidence about the medication administered to Mr Howroyd. It was Dr Dunne who selected the mix of medication to be administered.

98 He agreed that two of the drugs administered to Mr Howroyd, Haloperidol and Midazolam, are central nervous system drugs with a sedative effect proportional to dose.

99 Generally, at Mr Howroyd's stage of the dying process, there is already some clouding of consciousness. However, the question remains as to capacity. It is possible that mental alertness may have been affected by the haloperidol started the night before. Dr Dunne qualified that by explaining that the dose was relatively small and in his experience it is usually well tolerated. Dr Dunne added that he was of the view that:

"... in the situation when someone is close to the end of life as Mr Howroyd was then other factors come into play such as the level of clearance of the drug, the beginning of delirium and various biochemical changes in the body."

"It is very difficult to be certain as to whether that level of Midazolam in his system could have been responsible for conscious sedation. ... there tends to be a balance between the secretion of adrenaline from the dying phase and the Midazolam which does sometimes allow people to be relatively unaffected by that dose in much the same way as someone who is taking an anxiolytic for anxiety. However, in retrospect, knowing that his condition was pre terminal, I would think that there would be reasonable grounds to assume that there would have been some effect from the Midazolam even at that dose as he was entering into a dying phase.

... I do not think the Midazolam was solely the cause of his sedation and decreased mental alertness. In my opinion I feel that other factors were at play. Certainly there may have been some contribution from the medication but I suspect that in retrospect there was an element of clouding of consciousness due to the dying process that was occurring."

100 Dr Dunne gave evidence that it was reasonable to assume that on the afternoon of July 8 Mr Howroyd would have had decreased mental alertness but, whether due to the effect of sedation or otherwise, he was unable to say. There remains a question of the degree of reduction of mental alertness. From his point of view the issue of capacity is an "unknown".

101 The contention of conscious sedation was explored in evidence with Dr Dunne. He said that given the medications in Mr Howroyd's system, it was his opinion that Mr Howroyd was not consciously sedated on 8 July 2007. He explained that conscious sedation is not what palliative care is about:

"Our aim certainly is a proportional response to peoples distress and suffering with the idea of trying to maintain as much mental clarity and comfort as possible with the objective of allowing people to have as much ability to be in the moment as possible."

102 He gave evidence that he did not agree that the effect of the medication administered to Mr Howroyd was that he was malleable.

103 I accept Dr Dunne's evidence discounting conscious sedation and malleability as possible effects of the medication administered to Mr Howroyd. I accept the evidence of Dr Dunne and Dr Jupe that by the time of the making of the will, Mr Howroyd would have been experiencing a degree of decreased mental alertness. The critical question of whether the decrease impinged on his testamentary capacity is to be resolved by reference to the evidence of the observations of Mr Howroyd, his condition, and what he said and did at the critical time of the period before, and at the time of the making of the will. This evidence is also central to the question of knowledge and approval.

Testamentary capacity: the timing of observations

104 I summarise below the evidence of Mrs Patricia Howroyd (referred to as "Pat" in the evidence) and Mr Brian Howroyd who visited Mr Howroyd in hospital on 8 July, and made observations of him during the early afternoon, before the will was made. I will then consider the evidence of Richard Howroyd regarding the making and execution of the will. I will consider the evidence of the attesting witnesses, Mrs McClymont and Mrs Jacobs, regarding the execution of the will. Evidence about executing the will is considered in the context of testamentary capacity, as it is relevant to Mr Howroyd's condition and bears on an assessment of Richard Howroyd's credibility and reliability.

105 As seen from the review of the medical evidence, Dr Dunne spoke to Mr Howroyd on the day the challenged will was made. The sequence of the observations made on 8 July by the witnesses is as follows: between 11.30am - 1pm Dr Dunne, from 2pm Brian Howroyd and Pat Howroyd, from 4pm Richard Howroyd, Mrs Jacobs and Mrs McClymont and again, Richard Howroyd. It is evident from the evidence that the times mentioned are approximate and refer to the time the visit commenced.

106 The evidence from Richard Howroyd is to be scrutinised and subjected to critical appraisal. The evidence of Pat and Brian Howroyd, as well as the evidence of Richard Howroyd, is to be considered in a critical light. The evidence of Mrs Jacobs and Mrs McClymont has significance as objective and independent evidence.

Testamentary capacity: observations by Brian Howroyd and Pat Howroyd

107 Brian Howroyd and his wife visited Mr Howroyd on 8 July at approximately 2pm. The will was made about two hours later.

108 The evidence of Brian Howroyd was that he brought his brother his mail. Brian Howroyd observed that his brother's condition had deteriorated since he had last seen him.

109 Brian Howroyd could recall nothing out of the ordinary about his conversation with his brother or his condition during that visit. He would have been concerned if he was incoherent or vague.

110 Mr Howroyd opened several of the envelopes, read what was in them and closed the envelopes. Brian Howroyd asked Mr Howroyd what he wanted him to do with the letters. Mr Howroyd replied, "Put them in the drawer".

111 Brian Howroyd left the room for a short time to visit a friend who was at the hospital. He returned and said goodbye to his brother.

112 When Brian Howroyd left his brother it had not occurred to him that his brother might have only days to live. As they left the room his wife told him that Denis wanted to see Richard about his will. It was not until he and his wife had a conversation with a woman at the ward reception about Mr Howroyd wanting to see about his will, and the woman said that it had better be attended to immediately, that he realised that his brother might be close to death.

113 Brian Howroyd and his wife collected their son, Richard, from his office and took him to the hospital where he spent time with Mr Howroyd alone.

114 Mrs Pat Howroyd gave evidence about the visit to her brother-in-law. She was sure that the time that she and her husband visited Mr Howroyd was at about 2pm.

115 Pat Howroyd was shocked to see how his condition had deteriorated. She was with Brian when Mr Howroyd opened his mail and talked a little while. Mr Howroyd spoke quite normally and she said that "we spoke about the things we normally spoke about". Brian left the room and Pat Howroyd stayed with her brother-in-law. He asked her if she could find Richard as he wanted to see to his will. She remembered the word "will" and that his exact words she remembered "very clearly" were "he will know what I mean". Afterwards Pat Howroyd spoke to a female in charge and told her about Mr Howroyd asking her to contact Richard to discuss his will. The woman in charge replied to the effect, "Can you do that this afternoon?" Pat Howroyd's evidence was that she then realised how ill her brother-in-law was and that he was not going to live very long.

116 Pat Howroyd described having a very clear recollection of 8 July. She was asked about her brother-in-law's condition on 8 July. She said he was not sleepy or drowsy when they got there, and in fact talked animatedly. When they left he was relaxing.

117 It was also revealed in cross-examination that a few days after the death of her brother-in-law she prepared some notes of Saturday, 7 July and Sunday, 8 July. She provided those notes to her son, Richard, at a later stage. Pat Howroyd had been a school teacher and described herself as someone who makes notes. In material respects these notes are consistent with her evidence regarding 8 July.

118 Pat Howroyd's affidavit tendered in evidence-in-chief referred to visiting her brother-in-law with her husband on 7 July (as well as 8 July) after collecting some mail and tending to some of his plants. Her notes reveal that she telephoned Mr Howroyd on 7 July and did not visit him on that date. In cross-examination Pat Howroyd was shown the notes and she was not sure whether they had visited Denis on 7 July, as well as 8 July. I did not consider that her uncertainty about the visit on 7 July was indicative of her recollection of 8 July.

119 It was evident that Pat Howroyd had a clear recall of the visit on 8 July and I found her account to be sound and reliable.

120 Cross-examination of Brian Howroyd ranged across a range of matters. It probed his reliability with respect to matters of peripheral details such as the discussion with the woman at reception and collecting his son.

121 The questioning during cross-examination provided an opportunity to make observations about Brian Howroyd's responses and demeanour. He did not always wait for the question to finish before answering it, and did not always attend to it carefully. He was impatient and often his answers were not fully responsive. It seemed he was trying to bring an end to the line of questioning by providing a definitive answer and, in his haste and impatience, he misunderstood the question, or sometimes his evidence was overstated. He mentioned his age, 83 years at the time of the events in 2007, to explain his point of view about matters and as context for his answers. Perhaps, to an extent, it also led to the impatience that was observed.

122 Cross-examination also challenged an account Brian Howroyd gave about finding Mr Howroyd's 2003 will. It probed whether he was frank with the Court in this regard_._

123 Brian Howroyd gave evidence that after finding the will he became embarrassed that he had opened it and did not read the contents in any detail. I found that initially he was reluctant to reveal the fact that he had read the contents. After some questioning he was candid about his natural interest in the contents of the will. Further, it seemed to me that his reason for apologising to his brother for reading the will was not merely, as he said, because he had read a private document, but to give Brian Howroyd an opening in the conversation so that he could make the suggestion that his son look after the will. It was obvious that given the benefit his sons would receive under that will, he was anxious that the will could get lost.

124 Despite these observations about his evidence, I found his account of 8 July, his interaction with Mr Howroyd, and his observations about his condition, sound. His account that while his brother's condition had deteriorated, he was unaware of the significance of the deterioration or how dire his brother's condition was until he spoke to the woman at reception after the visit, seemed genuine and reliable.

Testamentary capacity: Richard Howroyd and the making of the will

125 Richard Howroyd is the only witness to the making of the will. According to his account, after he drafted it and his uncle agreed it was correct, the will was signed in his presence and the presence of two women, Mrs McClymont and Mrs Jacobs. A summary of Richard Howroyd's evidence is as follows.

126 On Sunday 8 July 2007, Richard Howroyd was at his office working. His father arrived at his office to say that "Denis was very low" and asked if he could come to the hospital. He agreed and went immediately with his father and mother in their car to St John's Hospital. On the way his father told him that Denis had asked to see him about his will. Brian Howroyd and Richard went into the hospital. Brian Howroyd said hello to his uncle and said he would leave Richard there with Mr Howroyd. Richard and Mr Howroyd were left alone. His account of what occurred taken from his affidavit, tendered in evidence-in-chief, is set out below. It will be seen that at par89 of the affidavit Richard Howroyd refers to the time of the making of the will as about 4pm:

"81 I greeted Denis. I asked him if he needed anything. He said that a doctor had been to see him and he didn't need anything. He said that he didn't know how long he might be in the hospital.

82 I said that I understood he wanted to see me about his will and he said yes and that he wanted a new will.

83 Denis was looking very thin and pale and gaunt but he was quite alert and could talk to me. He had some restriction in this throat and sounded a bit raspy or hoarse but I could understand what he was saying.

84. He did not appear to be down or depressed. He did not appear to be in any pain.

85 He was in his pyjamas sitting up in his hospital bed.

86 He had a small pan beside him on the bed. He vomited into it once when I was there. There were no nurses or doctors present in Denis' room while I was there. Nor was Denis sharing his room with another patient.

87 After Denis told me that he wanted to draw up a new will I left the room and got some writing paper and a pen from staff at the nursing station outside the room.

88 I didn't think that perhaps I shouldn't draw up Denis' will or that I should arrange to have his instructions typed up on the following Monday. Denis was my uncle and I readily agreed to help him and I was aware that Denis may be dying and he might not have another opportunity to express his wishes.

89 I returned to the room and Denis gave me instructions for a new will. This was about 4.00 pm in the afternoon.

90 It took me about 20 minutes to take instructions and complete the will.

91 I could understand Denis clearly and he was clear as to his wishes. They weren't complicated.

92 I asked him who was to be the executor and he said my brother Glenn.

93 He told me that he wanted to leave his shares to my uncle Terry.

94 I asked him about the rest of his estate and he said it was to be left to Glenn and me equally.

95 I asked him if there were any other bequests he wanted to make but he said no.

96 I wrote up the Will in Denis' presence. I referred to him by the alternative spellings of 'Dennis' and 'Denis' because I was aware from holding his title deeds of the use of both spellings. I was a bit nervous as I was aware that this could be a death bed Will and I have never been in that situation before. I read what I had written to Denis.

97 Once before, some years ago, I had taken instructions for a Will in hospital but there had been no urgency in that particular situation and the Will had been typed up at a later stage.

98 When drawing Denis' Will, I wasn't aware that I may be criticised for drawing my uncle's Will when I was a major beneficiary. I became aware of this after Denis' death.

99 I gave Denis the document to read. He appeared to read over what I had written and agreed that this was what he wanted."

127 Richard Howroyd then went in search of witnesses and, seeing two women, Mrs Jacobs and Mrs McClymont, he asked the medical attendant to approach the women. The attendant told him that they had agreed and they came into the room. The attendant left the room, leaving Mr Howroyd in the presence of the attesting witnesses, Mrs Irene Jacobs and Mrs McClymont, and Richard Howroyd. Richard Howroyd's account was that he introduced the women to his uncle and then handed his uncle the will. Mr Howroyd looked over it and then signed it. Mrs Jacobs and Mrs McClymont signed as witnesses and wrote their addresses on the will. It was then that the error in the date was picked up but Richard Howroyd could not be certain who picked it up. As best he could recall, the error was picked up by himself or one of the witnesses, but it could have been Mr Howroyd. Richard Howroyd crossed out the word June and wrote July, and the alteration was initialled by each witness. He omitted to ask Mr Howroyd to initial the alteration. Richard Howroyd thanked the witnesses and they left the room. The following day he made notes of what had occurred.

128 In evidence, Richard Howroyd added that after the women entered the room, he introduced the witnesses to Mr Howroyd, and Mr Howroyd nodded to them or acknowledged their presence. They sat down and then he gave the will to Mr Howroyd, who looked over it and signed it in their presence.

129 After they left the room he talked some more to his uncle. He asked him again if he required anything more and his uncle said no. Richard Howroyd said he could arrange for the will to be typed up at some later stage if he wanted but again he said no. He wished Mr Howroyd well and told him he could contact him through Brian if he wanted anything further. Richard Howroyd described his uncle as calm, resting and conscious when he left him. The following day he made notes of his attendance. These notes conform with his affidavit set out above.

130 The reference at par83 of the affidavit, that Mr Howroyd was "quite alert", was expanded upon in evidence-in-chief. Richard Howroyd's evidence was that his answers to questions were responsive, stating "He looked me in the eye. He gave me no indication that he had any problem in understanding me and he just gave no indication that he had any problems that were affecting him talking to me". Richard Howroyd stated that Mr Howroyd was very clear and he could understand him very easily.

131 There was no change or deterioration in Mr Howroyd in the time that Richard Howroyd spent with him.

132 Further detail about aspects of his account regarding the making of the will was provided. He was cross-examined closely about the details of his account. Needless to say, I have considered carefully the details of his account regarding the making of the will and indeed, all aspects of his evidence.

133 Richard Howroyd's evidence was that he drafted the main part of the will. He then read that out to Mr Howroyd. He explained further that he first made some notes which he described as "just jottings". After the jottings he wrote out the four paragraphs of the will which he read out. Later, he said he could not be sure whether he had read out the first paragraph. He apologised if he had misled the Court in that regard.

134 Richard Howroyd gave evidence that after he read out the paragraphs, Mr Howroyd said "yes that's what I want". Richard Howroyd then completed the will, proceeding to put in the date and a section for the testator to sign in front of the witnesses. This may have been the stage when he wrote out the first paragraph if he had not written that out earlier. Having completed the will, he handed it to Mr Howroyd to read, and he appeared to read it, and agreed with it.

135 Richard Howroyd was asked about the notes, the "jottings" he mentioned having taken before he drafted the main part of the will. He said he made those notes on a pad as he went and destroyed those the next day. He described these as jottings of what Mr Howroyd had told him and they were basically the three main paragraphs numbered 2 - 4.

136 He was asked why he destroyed the notes and he said they were just "jottings" not formal notes.

137 The notes or jottings were not mentioned in Mr Howroyd's affidavit or his attendance note made on 9 July.

138 I must acknowledge labouring under some uncertainty about one aspect of Richard Howroyd's evidence. It was not clear for part of the cross-examination whether it was the jottings that were read out by Richard Howroyd or the main clauses of the challenged will. It was unclear whether he read out jottings and, after that, he drafted the will in accordance with those jottings. Alternatively, whether he made jottings then wrote out the main clauses of the challenged will, and then read those out. If the latter, it was plain that the will was then incomplete because he afterwards added to that same document the paragraph for signing, and perhaps also the first paragraph if that had not previously been done. The confusion arose because Richard Howroyd said that, after having read the will to Mr Howroyd, he then completed the part of the document regarding the signature. However, he also spoke about drafting the clauses, reading those out to Mr Howroyd, Mr Howroyd agreeing, and then the will was drafted which Richard Howroyd gave to him to read and which he agreed to.

139 My attempts to bring certainty by asking some questions of my own were not effective. The issue was clarified in the end, and the summary set out above, at par[133], reflects the evidence incorporating the clarification.

140 Richard Howroyd was asked about the incorrect spelling of Mr Howroyd's name with double "i". He stated that he made the mistake as he was under some pressure. He acknowledged that Mr Howroyd did not say that his name was spelt incorrectly.

141 He was asked about overlooking the standard revocation clause, and was pressed about the fact that he represented himself as a legal practitioner with expertise in preparing wills. A similar line of cross-examination was pursued in relation to the fact that he had not included a clause normally included in wills about payment of funeral and testamentary expenses before disposing of the residue. He explained that the circumstances of the making of the will were difficult. It was an unusual situation which he had never been in before. He realised that there was some urgency because Mr Howroyd wanted to do his will when he was in hospital. Richard Howroyd thought his uncle might be dying. He thought his uncle might know he was dying and that was why it was urgent. He stated that he did not think he had time to go into detail about testamentary expenses, and his understanding of the law was that this "will would cover that situation".

142 There was cross-examination about Richard Howroyd's experience in the area of preparing wills. It was evident that Richard Howroyd was a general legal practitioner who did not specialise in the area of wills, estate and probate, but he had sufficient experience to include it in an advertisement listing his areas of his practice. Like many lawyers who could provide good service in this area he would be reliant on precedents. It was evident that he did not have extensive experience in the area, of wills. He had never prepared a death bed will before. All wills that he had drafted in the past had been typed up and checked, and he had never drafted a will in long-hand before.

143 He was asked a question about whether he had asked his uncle about his orchid collection and what he wanted to do with that. His answer is revealing about his mind-set at the time, and his deference to his uncle's situation.

"Did you ask him at all about his orchid collection and what he wanted to do with that?.......No as I say, I asked him whether he wanted any specific bequests; I said you can leave special bequests to people that you want. He said no and he was clear as to that. In the circumstances I didn't consider that I should badger him as to where he wanted to leave his orchids or his lawn mower or whatever.

But as a solicitor Mr Howroyd, you wouldn't think you were badgering Dennis Howroyd by asking him whether or not he wants to dispose of his property in any particular way would you?......Well I'd already asked him whether he wanted to leave any particular bequests to anyone and he'd said no and I understood that that was a no; he was clear as to that and the circumstances were such that my uncle was in a hospital bed and putting two and two together, I thought that it was quite possible that he only had days to live."

Howroyd v Howroyd [2011] TASSC 73

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (306 paragraphs)

Howroyd v Howroyd [2011] TASSC 73 (22 December 2011)

Parties

Cases Cited (7)