Phillpot v Olney

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

111929/03 JANELLE THERESE PHILLPOT v LINDSAY OLNEY - Estate of Tracey Maree Aubin JUDGMENT 1 HIS HONOUR: The plaintiff in these proceedings is the sister of the late Tracey Maree Aubin who died by her own hand on about 15 September 2002. Probably within a few hours before her death the deceased prepared two documents which were found near her when she died. In these proceedings the plaintiff sought a declaration under s 18A of the Wills Probate and Administration Act 1898 that the two handwritten documents, or either of them, constituted the will of the deceased. She sought an order that probate in solemn form of the documents, or either of them, be granted to her. 2 One document said "Jenny, I'm not worth much but anything I have is for Callum. Here's a copy of our financial statement prepared for the adoption. Love you so much. T". 3 The other document was addressed "To Whom it May Concern". It said: "I have money in the bank (Commonwealth 2902 639 005), plus additional funds in two mortgage accounts, shares, superannuation and majority ownership of two properties. I want everything to go to my godson Callum Phillpot." "The person I want to organise my affairs is my sister Janelle Phillpot".

It was signed by the deceased. 4 The defendant to the proceedings is the deceased's husband who would be entitled to the whole of her estate on intestacy. By his cross-claim the defendant alleged that the deceased lacked testamentary capacity at the time she executed the subject documents. He alleged that after due search and inquiry no document of the deceased purporting to be a testamentary document had been located. He denied that the subject documents constituted a testamentary instrument pursuant to s 18 (sic) of the Act. In the event that either or both of the informal documents were admitted to probate he made a claim for provision out of the estate of the deceased pursuant to the Family Provision Act. 5 The plaintiff and the defendant have agreed upon orders which they ask the Court to make. The effect of the proposed orders is that the two informal documents would not be admitted to probate. Letters of administration would be granted to the defendant. The costs of the plaintiff in an agreed sum would be paid from the estate. The defendant would undertake to the Court to make a certain payment to Callum Phillpot and would undertake to the plaintiff to provide certain personal items of the deceased to her. The defendant's claim for relief under the Family Provision Act would be dismissed with no order as to costs. 6 Callum Phillpot is the plaintiff's son and was the deceased's godson. He is an infant. 7 Because the grant of probate or letters of administration is a public act, the Court will not make orders for the grant of probate or of letters of administration merely because the parties have agreed to them. (Re Podger [1957] VR 275 at 278; Re Grey deceased [1978] VR 596 at 601; Re Irving deceased [2003] VSC 351 at [23]). In this case the order affects a person other than the parties to the proceeding. On the other hand, the fact that the parties have agreed upon orders for the resolution of the issues in the case is a relevant circumstance, particularly where, as in this case, the plaintiff and the defendant have retained counsel of known competence and experience in the area. (See in relation to release of rights under s 31 Family Provision Act, McMahon v McMahon Young J, (as his Honour then was) 2 August 1985, unreported). 8 In her affidavit in support of her application for the grant of probate the plaintiff deposed that the deceased's estate had a net value of $414,745. It comprised moneys on deposit with the Commonwealth Bank of Australia, some shares, two motor vehicles, superannuation, and death benefits with two superannuation funds. The deceased also had an interest as joint tenant with the defendant in two properties in New South Wales and a small number of shares held jointly with him. 9 Subsection 18A(1) of the Act provides: " 18A Certain documents to constitute wills etc (1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, ……. if the Court is satisfied that the deceased person intended the document to constitute the person's will,………". 10 Prima facie, at least the second of the two documents satisfies the requirements of ss 18A(1). I was told by counsel that if the proceedings went to trial the principal issue would be whether the deceased lacked testamentary capacity at the time she executed the documents. 11 The classic test for determining whether a person possesses sufficient testamentary capacity is that laid down in the judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5QB 549 at 565; "It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of 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". 12 The onus of proving that the deceased had testamentary capacity lies upon the plaintiff. If the Court is not affirmatively satisfied that she had such a capacity it is bound to pronounce against the documents. Where a document has been duly executed in accordance with the formal requirements for the making of a will and is rational on its face, such execution raises a prima facie case that the person is of competent understanding which may place an evidentiary onus on the person disputing that the document is the deceased's will to adduce evidence raising doubts as to the deceased's competency (Bailey v Bailey (1924) 34 CLR 558 at 570; Bull v Fulton (1942) 66 CLR 295 at 343; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704-705; Ridge v Rowden; Estate of Dowling, Santow J, 10 April 1996 in Mason & Handler, Wills Probate and Administration Service para 13045. In this case no such evidentiary onus is thrown on the defendant. 13 Suicide does not give rise to a presumption of testamentary incapacity. (Re Hodges; Shorter v Hodges at 707-708). 14 In this case the circumstances surrounding the deceased's suicide are such as to raise a substantial doubt as to her capacity to comprehend and appreciate the claims to which she ought to give effect by her will. The circumstances suggest that she suffered from a disorder of the mind which affected her ability to appreciate those claims. 15 Because the parties asked the Court to make orders by consent and because the circumstances leading up to the deceased's death are clearly distressing to members of her family and friends who have sworn affidavits in the proceedings, it is undesirable that in these reasons I describe those circumstances any more than is strictly necessary to explain why I am prepared to make the orders sought. There are many conflicts in the evidence on affidavit which cannot be resolved without a trial. However a sufficiently clear picture emerges from the affidavits when considered with the police records and the statements of police officers from the Queanbeyan Police Station. 16 The deceased died by carbon monoxide poisoning sometime between the afternoon of Saturday 14 September 2002 and when her body was discovered on the morning of Sunday 15 September 2002. She had been drinking alcohol. On post-mortem examination she had an alcohol concentration of 0.19 grams per hundred millilitres of blood. The handwritten documents were found near her body. 17 On Friday evening the deceased and the defendant had a sustained violent argument in which she appears to have been psychotic and irrational. The contemporaneous police records state that when the defendant telephoned the police she could be heard in the background smashing items. She gave an account of that occasion to the plaintiff which was inconsistent with that police record. On the Friday evening she left the premises in a motor vehicle but was stopped by police and subsequently arrested and charged with having a blood alcohol content of 0.15. Whilst at the Queanbeyan Police Station she was in tears. She expressed her belief that her being charged with the offence would be fatal to her application to adopt a child. She said that she would be leaving the defendant. She did not at that time threaten any self-harm. 18 The deceased and the defendant had been unable to conceive a child. She was desperate to have a child and regarded the adoption process as her only chance. I am satisfied that her mind was disordered on the Friday evening and the following Saturday when she acted violently and irrationally, in a way completely out of her usual character. There is evidence from the defendant that he had been concerned on previous isolated cases about psychotic behaviour of the deceased and had himself sought advice as to how to handle such behaviour. 19 In her telephone conversation with her sister on Saturday she accused the defendant of plotting the episode to ensure that she would never be able to adopt a child. However the allegation of such a plot is not only inconsistent with the defendant's evidence. It is inconsistent with the police record that when he telephoned the police they could hear the deceased smashing items in the background. She appears to have had a fixed belief that her arrest on the drink-driving charge would be fatal to her adoption application. 20 The defendant's evidence of the episode on the Friday night leading to his leaving the house on Saturday morning is not refuted in the evidence and in some respects is corroborated by the statements of the police officers. 21 Having had regard to all of the affidavits which have been filed I am not satisfied that at the time she made the two documents of which the plaintiff sought a grant of probate the deceased was able to comprehend and appreciate the claims on her estate to which she ought to give effect. I am satisfied that at that time she suffered a disorder of her mind which prevented her from comprehending and appreciating those claims, in particular, the claim of her husband. 22 I therefore make the following orders by consent:

Dismiss the application by the plaintiff for a declaration under s 18A of the Wills Probate and Administration Act that two hand written documents, undated, or either of them, constitutes the will of the deceased.

Subject to due compliance with the Rules of Court, Letters of Administration be granted to the defendant, Lindsay Olney.

The proceedings be remitted to the Registrar to complete the grant.

Otherwise make orders in accordance with paragraphs 3 and 7 of the Short Minutes of Order signed by counsel for the parties and dated 10 June 2004.

Note the undertaking to the Court of Lindsay Olney recorded in paragraph 4 of such Short Minutes of Order.

Note the undertaking to the plaintiff of Lindsay Olney recorded in paragraph 5 of the Short Minutes of Order and the agreement of the parties recorded in paragraph 6 of the Short Minutes of Order.

I direct that the two handwritten documents be returned to the plaintiff. ******

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