Kantor & Anor v Vosahlo [2004] VSCA 235

[2004] VSCA 235

Court of Appeal (Vic)|2004-12-16|Before: ORMISTON, BUCHANAN and PHILLIPS, JJ.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2004-12-16

Before

ORMISTON, BUCHANAN and PHILLIPS, JJ.A.

Source

Original judgment source is linked above.

Judgment (232 paragraphs)

[1]

[ 2004] VSCA 235

[2]

WILLS - Probate - Proceeding for revocation - Testamentary capacity - Testatrix suffering dementia - Whether will made in lucid interval - Evidence of solicitor - Need for "careful scrutiny" - Onus of proof - Standard of proof.

[3]

Having had the benefit of reading the judgment to be given by Buchanan and Phillips, JJ.A., I agree with the conclusions they have reached and substantially with the reasons they have given for them. I would, however, wish to say something about one of the principal issues argued before us. The learned trial judge, having concluded that the deceased, Mrs Vosahlo, was suffering from an incapacity by reason of "significant dementia which was probably due to vascular degeneration" both before and after the giving of instructions for (and the execution of) what has been propounded as the deceased's last will, stated that "the executors bear a heavy onus of proof that the deceased acted at the relevant time in a period of temporary lucidity". Before examining in detail what one should construe as the meaning of "heavy onus" and the extent to which such a test can be said to be appropriate, I ought immediately to say that, however generously one ought to read the words of trial judges in expressing the relevant standard of proof, it should be inferred in the present case that the standard was placed too high by his Honour, if only for the reason that his conclusions, as examined by the other members of this Court, can lead fairly only to the conclusion that too high a standard was imposed by the trial judge.

[45]

Dixon, J. then turned in Briginshaw to the question of proof of adultery upon which inconsistent opinions had been expressed by State appellate courts, as well as in the English courts. The answer ultimately given by all members of the High Court in Briginshaw was that an allegation of adultery did not have to be proved to the criminal standard but was one which might be proved according to the civil standard but subject to the caution required by the seriousness of the allegation. What Dixon, J. (and seemingly Starke, J.) perceived was that, although in the common law there were but two standards of proof, in the ecclesiastical courts not accustomed to applying the common law there had been a difference of approach which might be said to evidence a third, or different, standard of proof.[72] What had occurred in the 1850's was that the jurisdiction of those courts had been transferred to the common law courts and there had, over the succeeding eighty years been little clarification of precisely what standard of proof was required to establish adultery in matrimonial causes. This might seem to be at the fringes of relevance to the present case, but, of course, the jurisdiction with respect to probate had also been (largely) vested in the ecclesiastical courts until about the same time, when it was likewise transferred to the common law courts. So, as noted by Dixon, J. at 365, Cresswell, J., when transferred from the Court of Common Pleas to the new Court of Divorce and Matrimonial Causes had defined the standard of proof on a party who alleges misconduct against another as one where that party was "bound to establish such misconduct by affirmative evidence"[73], on its face an identical test to that needed to prove lucid intervals and the like in probate suits. Moreover, in concluding that adultery need not be proved to the criminal standard, Dixon, J. said[74], as to that issue, and using language not dissimilar to that used later by him in Worth, that "the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact."

[46]

What then should be said as to the standard imposed for proof of an issue such as testamentary capacity, where there is evidence of serious mental disability of one kind or another before and after the making of a will. Clearly proof of that issue is not precisely analogous to proof of adultery, at least as it was perceived when cases such as Briginshaw and Williams were decided. No criminal conduct or other misbehaviour is in strictness alleged. What the High Court nevertheless considered in the cases earlier discussed and leading up to the decision in Boreham, and for which they sought to prescribe rules, was how the courts should approach proof of another issue on the civil standard, subject to necessary cautions as to how satisfaction should be reached. The relevant passage in Briginshaw, which is in fact the very passage cited by the majority of the High Court in Neat Holdings[75], refers to the circumstances in which "reasonable satisfaction" of an issue was not to be produced by "inexact proofs, indefinite testimony, or indirect inferences".[76] The three broad circumstances (which, as I have said, ought not to be taken as exclusive) giving rise to the need for qualification were stated there by Dixon, J. to be: (1) "the seriousness of an allegation made", (2) "the inherent unlikelihood of an occurrence of a given description" and (3) "the gravity of the consequences flowing from a particular finding". Category (1) was relevant to adultery and remains relevant to cases of fraud and other criminal behaviour. The third category might cover cases where the right to carry on a profession or business is in issue. But it would seem that the second category[77], namely "the inherent unlikelihood of an occurrence of a given description", is the one which might fairly be applied to the present circumstances, namely the potential unlikelihood of a person temporarily recovering from a serious mental illness so as to have a lucid interval of a kind which would result in a finding of testamentary capacity at the time that the will is made.[78]

[51]

Even if I have misunderstood the manner in which his Honour approached determining the critical issues in this case, I would still, for the reasons stated by Buchanan and Phillips, JJ.A., consider that the trial judge misapplied the accepted tests as to testamentary capacity to the circumstances of the present case. As frequently stated, circumstances vary from case to case and it has never been said that old people are disqualified from making a will if they can otherwise satisfy those tests. The circumstances raised for consideration here were not complicated, neither were the decisions which the testatrix had to make complicated. She had a simple estate and relatively few (if any) people who might have expected to have their claims taken into account. Much of the medical evidence was directed to other issues which, though of general significance, could not be decisive as to testamentary capacity at the relevant time, the time when instructions were taken and confirmed for the making of the propounded will. Because the preponderance of evidence favoured the view that the testatrix's condition varied to an extent making it possible that she had lucid intervals, the question to be resolved and the issue to be raised with the expert medical witnesses had to take into account what the testatrix did at the relevant time. There was in practical terms only one person who was able to apply his mind to that question, even though it was not based on medical expertise, namely Dr Kantor who spoke to the testatrix and took her instructions before seeing to the execution of the will. I am not satisfied that the medical witnesses relied on by the respondent fully and appropriately took account of the observations of Dr Kantor (and the others) who saw the testatrix at that time. Doubtless it would have been a difficult exercise, as those medical witnesses could not have been sure how far the judge was prepared to accept the testimony of Dr Kantor (and the others). Moreover the judge himself had to relate the findings that he was prepared to make about the way in which the testatrix gave instructions and the medical opinions put before him. It seems to me, with respect, that he insufficiently related those two strands of evidence.

[53]

It might be argued that no finding was made by the judge as to her knowledge of others who might otherwise have a claim to be considered in her will. Again this was a simple case, dissimilar from many others where like issues have arisen. If her obscure relatives had been fairly omitted, then who might reasonably have been taken into consideration as the object of her benefaction? It was not suggested that anybody other than Mr Kruntorad was suitable, except that Dr Kantor very properly mentioned to her the possibility of leaving a gift to the Czech charity known as Sokol. The judge made a curious criticism of this gift or these gifts in paragraph [41] of his judgment (as set out in the judgment of the other members of the Court), which, with great respect, I have the greatest difficulty in understanding. Apart from its infelicity, the paragraph connotes that Dr Kantor had made suggestions as to how the testatrix might dispose of her property in a way which seemingly meant that she had no ability to evaluate and discriminate between those who had a claim on her bounty. The truth was that nobody really had such a claim except arguably Mr Kruntorad, whose generosity in her failing years might be recognised. The judge had already found that he was a suitable object for her bounty and, as to the charity, I have difficulty in understanding any criticism of its suggestion or choice. Solicitors frequently make suggestions as to the inclusion of charities in wills in circumstances where there are relatives who have a much more obvious claim than the obscure relatives of the testatrix in this case. Sokol was a charity with which she and particularly her husband had had a close connection because it had been set up for those with Czech origins. Moreover the proposed bequest was only $20,000 and was expressed to be "in memory of my beloved husband BOHUMIL VOSAHLO", who had been the first president of the organisation. Such a gift could hardly be said to have been inapposite in circumstances where the only other potential beneficiary was a relatively recent acquaintance, however kind his endeavours on her behalf may have been.

[126]

These were the criticisms of which the respondent made much in argument, inviting the Court in consequence to disregard Dr. Kantor's evidence as to the testamentary capacity of the deceased. His, however, was the only direct testimony about whether the deceased on 26 May 1999, appeared or did not appear, to have testamentary capacity. Dr. Kantor swore a number of affidavits and we mention only that of 10 February 2003. In paragraph 14 he described the telephone call on 19 May 1999 from Mr. Kruntorad, telling him that the deceased wanted to make a new will; his consequent telephone conversations with the deceased to discuss the new will "and about her private life"; and the deceased's telling him that she wished particularly to benefit Mr. Kruntorad and why, and that she knew Mrs. Nekvapil, who was also looking after her, to be reasonably well off so that "she did not believe any need existed to provide for Mrs. Nekvapil in her will". In paragraph 15, Dr. Kantor described the deceased's telling him of her assets: namely, the house in which she lived "which is fully paid" and "a small amount of savings in her bank account" and, further, "a small income arranged by Mr. Grossman as well as her pension[135]". Dr. Kantor then described the deceased's giving him instructions to make the bequest of $20,000 to Sokol "in recognition of her late husband" who had been its president and that subject thereto "Mr. Kruntorad should be her sole heir". Dr. Kantor added that he read out to her the names of the previous beneficiaries "who she decided to exclude". Paragraph 16 describes what happened on 26 May when the deceased attended at his office and the contents of the will and her reasons for changing the beneficiaries were again discussed, before the will was executed; and by way of corroboration Dr. Kantor produced his diary notes which he had dictated (he said) "following execution of the will on 26th May 1999". In paragraph 17, the deponent confirmed his independent recollection of the deceased's reasons for changing the beneficiaries, emphasised that he had spoken with her in the Czech language and made translation "wherever I thought that [the deceased] may have difficulties in understanding the English" and concluded in emphatic terms: -