Plaintiffs v Caveator

2 The question is whether there is a 'case for investigation' or 'something to go on', in the sense that the contention that Mr Baird lacked testamentary capacity and did not know and approve of his will is not frivolous or vexatious or merely speculative.[3] If so, the question as to whether there was a lack of testamentary capacity and lack of knowledge and approval is then a matter for trial. Some time was spent in the hearing discussing the reasons for different conclusions that have been drawn by different judges in different proceedings. Although it may, of course, be instructive to look at how other like disputes have been determined, the legal test is that identified above, and, ultimately, each case must turn on its own facts.

3 The test for testamentary capacity is well known and emerges from the following statement from the old case of Banks v Goodfellow:

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.[4]

4 The test for whether a testator did not know of and approve their will is, as one might expect, whether the testator actually knew the substantive content of their will and approved of that content,[5] or, in other words, correctly appreciated how the will dealt with their property.[6]

5 I will proceed on the basis that the onus to establish a prima facie case is on Mrs Baird as the caveator.[7] However, as the reasons below will demonstrate, my determination of this case does not turn on the question of on whom the onus lies.

6 The 2022 will is notable in that it differs considerably from Mr Baird's prior wills. Approximately two years earlier, on 11 December 2019, Mr Baird and Mrs Baird had executed wills in similar form in which they left their estates to each other or, if the other predeceased them, to their children. As noted above, the 2022 will instead left nothing to Mrs Baird, who by that time had been his wife for more than 50 years, and, with the exception of some specific gifts, left his entire estate to his daughter, Ms van Ruiten. Ms van Ruiten contended that this change was explicable because Mr Baird, while in hospital, had decided to separate from Mrs Baird. In this respect, she points out that there had been problems in their marriage in the past.

7 Consistently with this, on 12 January 2022, a family law solicitor, Ms Elizabeth Weldon, took instructions from the deceased remotely by 'Zoom', and on 19 January 2022, some four days after the execution of the will, Ms van Ruiten as litigation guardian for Mr Baird commenced family court proceedings (Ms van Ruiten contended that Mr Baird had declined in the days following the execution of the will on 15 January 2022). The plaintiffs emphasised that Ms Weldon deposed that on 12 January 2022 Mr Baird was 'alert and well oriented', 'was able to give detailed instructions', and clearly understood what would be involved in the family court proceedings.

8 The plaintiffs also emphasised that neither the solicitor who drew the will nor the two witnesses to its execution expressed any concern that Mr Baird did not have the capacity to understand what he was doing.

B. Reasons - there is a prima facie case to be determined

9 It may well turn out, after a hearing, if the parties' differences cannot be resolved, that Mr Baird did have testamentary capacity and well understood and approved of the contents of the will he executed on 15 January 2022. The mere fact that someone is elderly and dying is no reason to conclude that they do not have testamentary capacity. I am satisfied, however, in the circumstances of this case that there is a 'case for investigation', or 'something to go on', as to whether Mr Baird did not have testamentary capacity or might not have well understood and approved the contents of the will. This conclusion follows, in my view, from the cumulative effect of the following factors (and the following is not intended to be a comprehensive summary of the evidence because, for the purposes of the test, it is appropriate to focus on the matters that suggest the possibility of testamentary incapacity):

10 Mr Baird was born on 14 September 1941 and so was 80 years old when he executed his 15 January 2022 will. In 2010, he was diagnosed with prostate cancer. He received treatment particularly from 2014 onwards. By the end of 2021, the cancer was well advanced and it was apparent that he was dying. On 12 December 2021, he was taken by ambulance to hospital and was admitted for management of back pain secondary to metastases. On 15 December 2021, his oncologist, Dr Sam Liew, told Mrs Baird that her husband's condition was terminal and he was unlikely to leave hospital. Mr Baird was placed in palliative care. In the late afternoon on 24 December 2021, he was discharged into the care of his daughter Ms van Ruiten. The hospital notes contain a number of indications that Mr Baird's mental state was diminished during his time in hospital. For example, a note on 14 December 2021 records that he could not deal with 'anything' and was 'overwhelmed'. It was thereafter recorded, on different occasions, that he was 'alert but vague', 'confused', 'alert but confused', 'had some trouble following instructions', had 'difficulty answering questions', 'could not recall reason for admission', that his alertness was 'deteriorating', was 'disoriented to time/place however easily reoriented', 'drowsy and vague [and] slow to respond verbally', 'pleasantly confused', 'mildly disorientated', and 'confused at times' prior to his being discharged from hospital. These multiple entries raise the possibility that he may not have had testamentary capacity.

B.2 The absence of contemporaneous medical opinion

11 Notwithstanding the numerous mentions of reduced mental functioning in the hospital notes, and the fact that Mr Baird was elderly, had been in hospital, and was declining, no doctor was asked at the time to opine on whether Mr Baird had testamentary capacity when he gave instructions for his will on 13 January 2022 or when he executed his will on 15 January 2022. The deceased's oncologist, Dr Liew, wrote that on 24 December 2021 the deceased had a 'general idea of making power of attorney and Will'. But, on the material before me, there is no evidence that Dr Liew performed his assessment with regard to the Banks v Goodfellow criteria set out above and having a 'general idea' about making a will is not an opinion of testamentary capacity. On 24 December 2021, Dr King, a treating pain and palliative care specialist, had opined that 'I think there is an underlying cognitive defect but it's mild and [the deceased] has capacity' to appoint a medical treatment decision maker and power of attorney. However, this assessment was conducted about three weeks prior to the execution of the will following which Mr Baird's health deteriorated. Furthermore, Dr King acknowledged by letter dated 29 March 2022 that he 'did not make an assessment of [Mr Baird's] general understanding of the nature and extent of his estate or assets' on 24 December 2021, and 'did not formally test [Mr Baird's] capacity to consider beneficiaries of his will' nor 'his capacity to have the ability to evaluate to discriminate between those potential beneficiaries and make provision for them'. Dr King concluded by stating that he was 'unable to comment on what [Mr Baird's] cognitive abilities would likely have been at the time of signing of the will'. As Dr King clearly appreciated, the test for testamentary capacity is different from the test for capacity to execute a power of attorney.

B.3 The circumstances of the preparation and execution of the will

12 Although the solicitor who prepared the will, Mr Howard Jones, was well known to Mr Baird, the instructions for the will were obtained in less than ideal circumstances. First, Ms van Ruiten, who was the principal beneficiary under the proposed new will, was the person who contacted Mr Jones and set up the appointment with Mr Baird. That appointment was not in person, but consisted of a telephone conversation on 13 January 2022 that, Mr Jones believes, took about 15 minutes and, it seems, was in the absence of Ms van Ruiten. Mr Jones did not otherwise meet with Mr Baird. Mr Jones then emailed the draft will to Ms van Ruiten for her to give to Mr Baird, under cover of a letter that suggested that Mr Jones intended to speak further to Mr Baird about two clauses in the draft will before it was executed. Mr Jones did not, in fact, speak to Mr Baird again before the will was executed. Those clauses were:

1. I AUTHORISE my Trustees to continue any family law proceedings that may have been issued before the date of my death and the proceeds of any money obtained from such proceedings shall fall into residue.
2. I HAVE MADE NO FURTHER PROVISION for my wife HELEN MARGARET BAIRD as she has threatened and or commenced family law against me and I BELIEVE has taken a large sum of money out of both a joint account and out of my bank account.

13 In an affidavit prepared for this application, Mr Jones described the deceased as 'ill and frail' and as 'becoming weaker' towards the end of the 13 January 2022 conference, but said that he had 'no reason to doubt' that the deceased had capacity 'in the Banks v Goodfellows (sic) sense'. However, prior to the call, Ms van Ruiten had told Mr Jones that Mr Baird 'had been certified as having capacity by a medical practitioner' and Mr Jones acknowledged that he did not formally question Mr Baird to 'confirm [his] capacity' or himself seek any medical opinion. As noted above, the medical opinion provided considered only capacity to execute a power of attorney and a medical treatment decision making form, not a will. It is certainly arguable that Mr Jones' lack of doubt as to testamentary capacity arose at least in part from a mistaken belief that a doctor had already opined on that issue.

14 The execution of the will on 15 January 2022 was witnessed by two laypeople, Mr Allan Harris, a justice of the peace, and his partner, Ms Carol Bates. They were friends of Mr Baird. Mr Harris says that he had no doubt that the deceased, although physically weak and unwell and unable to get out of bed, was 'fully cognisant of his actions'. However, it seems that Mr Harris did not formally assess, or at least may not have formally assessed, the deceased's capacity by reference to the Goodfellow criteria.

B.4 Possible exclusion of Mrs Baird, the ill feeling between her and Ms van Ruiten, and possibly false or unfair beliefs held by Mr Baird

15 Mrs Baird, in an affidavit prepared for this proceeding, has deposed that after Mr Baird had been taken to hospital on 12 December 2021, she was told that 'there was to be no visitors' and that she 'was not allowed to see him'. This is more plausible than it might ordinarily have been given the COVID pandemic. Mrs Baird then said that on 16 December 2021 she found out that Ms van Ruiten had been visiting every day and so she demanded an explanation from the hospital and the hospital told her that the decision to prevent her visiting had been made by 'someone else'. She thereafter visited and helped to look after Mr Baird in the hospital.

16 Whether this happened is disputed by Ms van Ruiten, and I note that a social worker hospital note dated 15 December 2021 is inconsistent with Mrs Baird not being permitted to visit at least as at that time.

17 Mrs Baird also says that on 24 December 2021, when Mr Baird was being discharged, Ms van Ruiten told her she had obtained a power of attorney, was taking Mr Baird to her house, and that if Mrs Baird 'set foot on her land she would call the police'. Mrs Baird also deposed that Ms van Ruiten made false allegations that Mrs Baird had been 'scheming for months to take control of' Mr Baird's assets. Ms Baird produced a text message sent that day, 24 December 2021, from Ms van Ruiten that said:

Today went very well.

Today, Dad learnt that you have been scheming behind his back for months.

He learned that you have been seeking legal advice from Marylyn Gilberthorpe.

He learnt that you have been getting his possessions valued.

He learnt that you have spent large sums of money without consulting him. Again.

He learnt you have transferred money out of accounts.

He learnt you have accumulated an impressive amount on the credit card in a very short space of time.

So, he spoke to the ANZ bank and declared that he did not want to be responsible for your spending and would be seeking to extricate himself from you in due course. Including the maturation of the term deposit in January.

Then, he spoke to Howard Jones and had me made his sole Power of Attorney this afternoon with the full support of his treating physician and a Justice of the Peace who has known Dad for many years and can attest to his capacity.

He has advised me that he never wants to see you or Matthew again.[8] If you attempt to set foot on my property we will be calling the police. I have spoken to the police in the past about my concerns that you and Matthew were mistreating him so they are well aware of the situation.

I have advised family members and friends of your betrayal so they will no longer be seeking you out for information about Dad's welfare.

I've also been advised that you have briefed Marylyn Gilberthorpe about me in preparation for a fight over Dad's Will. I have no interest in yours or Dad's money. I have enough of my own because I have worked hard and not blown it on drugs and sex workers. If Dad chooses to change his Will in due course I will be encouraging him to leave his share to charity or his grandchildren. All I've even wanted was to love and be loved by Dad. He is a beautiful man and his respect and loyalty is priceless.

(a) this message, sent on 24 December 2021, allows for the possibility that Mr Baird may one day decide to change his will. In fact, Mr Jones, the solicitor, said that Ms van Ruiten called him on or about that day and told him that Mr Baird did want a new will prepared; and

(b) this message suggests that Mr Baird himself had spoken to Mr Jones by 24 December 2021, when, according to Mr Jones, it was only Ms van Ruiten who spoke to him on that day and he did not speak to Mr Baird until 13 January 2022.

19 The matters asserted in this text message explain the second of the two clauses in the will that Mr Jones wanted to speak further to Mr Baird about before he executed the will. Importantly, the truthfulness of what is asserted in the text message, and in that clause, are disputed. Mrs Baird has deposed that, immediately prior to Mr Baird's going into hospital, Mr Baird gave her his 'bank card' and password 'in case [she] needed any money.' She said that she transferred some money from Mr Baird's account into their joint account so she would have immediate access to money in the event that Mr Baird died. She deposed that, other than the money that she took out with what she understood to be his permission, she has never taken a large sum of money out of the joint bank accounts or Mr Baird's bank account, and also that she has never threatened to commence family court proceedings against him.

20 The plaintiffs submitted that a Commonwealth Bank of Australia account and an ANZ account in Mr Baird's sole name had both been accessed, that Mrs Baird took out more money from Mr Baird's account or accounts than she had acknowledged, including from their joint credit card, and that she had provided in particular $12,700 to their son Matthew, probably knowing that that was not what Mr Baird would have liked.[9] However, in assessing whether there is a prima facie case, it is necessary to consider the issue on the basis that Mrs Baird's evidence may be correct that Mr Baird gave her permission to take money from his account.

21 These matters, and particularly the assertion in the will, raise for investigation the possibility that Mr Baird executed his will, and excluded his wife, in the mistaken view that Mrs Baird had taken large sums of money in a manner that was unauthorised, and in the mistaken view that Mrs Baird herself intended to commence family law proceedings against him. It is possible that those mistakes, if they be mistakes, arose due to some defect in Mr Baird's mental capacity at the time, or, if he did not make those mistakes, it is possible that he did not know of and approve the contents of his will.

B.5 The decision to separate and commence family law proceedings

22 There is reason to think that Mr Baird's decision to separate from Mrs Baird, and his associated decision to exclude her in his will, may have come about somewhat precipitously. An early 'pastoral care' note taken in the hospital indicates that someone spoke to Mr Baird about 'end of life' issues, and that note has the words 'leaving wife'. That could mean that there was some discussion about Mr Baird separating from Mrs Baird, but it could also mean that there was some discussion about a consequence of his dying being that he would be leaving his wife a widow. Mrs Baird deposes that there had not been any discussion about separation prior to Mr Baird going into hospital. For present purposes, that evidence should be accepted. Mr Baird's patient registration listed Mrs Baird ahead of Ms Van Ruiten as his 'preferred contact'. A 'social work' note forming part of the hospital records taken on 20 December 2021 records quite a detailed discussion with Mr Baird about his family dynamics. It records Mr Baird explaining difficulties with Matthew, and stating that Ms van Ruiten and Mrs Baird were 'estranged' and that he was not sure that Mrs Baird (who was also elderly) would be 'able to cope for him at home' after discharge, but there is nothing in the note to suggest that Mr Baird had decided, or was contemplating, separating from Mrs Baird. A record of discussions involving Mr Baird, Ms van Ruiten and Mrs Baird about what would happen after discharge also contains no suggestion that Mr Baird was planning to leave Mrs Baird. While a decision not to disclose marital issues to hospital staff may be said to be unremarkable, the lack of a contemporaneous record is a factor I must consider.

23 Counsel for the plaintiffs presented an attractive argument that although all these circumstances perhaps gave one pause for thought, when they are analysed, the notion that Mr Baird may not have had testamentary capacity is in fact nothing but speculation. Counsel emphasised that although there was no medical evidence of testamentary capacity, there was also no medical evidence of a lack of testamentary capacity, none of those who dealt with Mr Baird at the relevant times had any concerns, and the actions taken by Mr Baird all had, he would say, a proper and rational foundation.

24 Notwithstanding the power of that submission, I am, ultimately, for the reasons set out above, of the view that there is a 'prima facie case'. Although, in ordinary circumstances, a decision by an elderly person to leave their spouse and to amend their will to exclude that spouse would not give rise of itself to a concern about testamentary capacity, these are not ordinary circumstances. Where that fact is accompanied by an illness that may have compromised mental functioning, and where the new will represents a significant departure from a previous will, and where there is a possibility that the decision was influenced by a mistaken view in the testator of the spouse's conduct, and where a family member in dispute with the spouse who benefits from the will has made the arrangements to have the will changed, and where the solicitor did not meet with the testator but only spoke to him over the telephone briefly and did not have an intended subsequent discussion about some of the clauses in the will and did not himself investigate testamentary capacity, and where there is no medical evidence of testamentary capacity, and where a short time after the execution of the will a legal proceeding is commenced with the use of a litigation guardian there is, in my view, something to be looked into.

25 Mr Baird's estate is relatively modest, even if the family court proceedings achieve a separation of assets currently held jointly. I was told that the estate was likely to be no more than $200,000. On that basis, it is likely that the costs of litigating any dispute as to the validity of the will may result in much of the estate being 'eaten up' in legal fees. That would, of course, be unfortunate. The plaintiffs submitted, as I understood it, that this was a factor that should be weighed by me.

26 Notwithstanding the superficial 'common sense' in such a submission, that is not, in my view, a factor that should lead to a different result. Having decided that there is 'something to investigate', in my view the fact that the estate is relatively small is no reason to deny the caveator the right to have the Court determine that matter. It cannot be said that there is simply no utility in allowing the litigation to proceed.[10] Nor is it inevitable that the parties' costs will be paid out of the estate. Also, it may be, of course, that the parties reach some form of settlement.

27 The particularised grounds of objection do disclose a case for investigation as to whether Mr Baird lacked testamentary capacity and did not know of and approve the contents of his last will. I will hear the parties on the form or order and on the question of costs.

[1] The parties referred to Kristine van Ruiten as Ms van Ruiten rather than as Mrs van Ruiten.

[2] The parties referred to Helen Baird as Mrs Baird rather than Ms Baird.

[3] Gardiner v Hughes (No 2) [2019] VSCA 198, [41]-[42] (Kyrou, McLeish and T Forrest JJA).

[4] (1870) LR 5 QB 549, 565 (Cockburn CJ).

[5] Vukotic v Vukotic [2013] VSC 718, [132] (McMillan J).

[6] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 173 [197] (Santamaria JA).

[7] See, eg, Gardiner v Hughes (No 2) [2019] VSCA 198, [42] (Kyrou, McLeish and T Forrest JJA).

[8] It seems that Mr and Mrs Baird's son, Matthew, had suffered from substance abuse issues, and that there had been difficulties between Mr Baird and him including in relation to the provision of money to him by Mrs Baird.

[9] It was not submitted that Mrs Baird withdrew any money from their joint term deposit.

[10] Cf Re Cockell; Cole v Paisley [2016] NSWSC 349, [54] (Lindsay J).