Re Irving deceased [2003] VSC 351 (11 September 2003)

6. The deceased died on 15 April 2002 leaving an estate of $129,809.56. At the date of his death he was 67 years of age. His death certificate, which was certified by a Dr L. Thurman, certifies that the cause of death was "dementia-Alzheimer's-type four years".

9. The deceased married the mother of the executor, Dawn Irving, in 1958. They were divorced in either 1980 or 1981.

12. On 3 March 1994 the executor executed the will for which the applicant now seeks a grant of probate ("the penultimate will"). He appointed the applicant as executor and trustee. By this will he bequeathed his motorcar to his friend Joy Dwyer, but otherwise left the balance of his estate in equal shares to her and to his former wife, Dawn Irving.

15. On 16 June 1997, and in the company of Joy Dwyer, the deceased attended upon the same firm of solicitors in Bairnsdale who had drafted his earlier will and gave instructions to prepare a further will. On 20 June 1997 the deceased executed a new will ("the later will") whereby he once again appointed the applicant as executor and trustee, but left the balance of his estate to Joy Dwyer. This will provided that in the event of Joy Dwyer predeceasing him, or failing to survive him by 30 days, the balance of his estate was to be paid to his former wife, Dawn Irving. Joy Dwyer survived the deceased and if the later will is valid, she is entitled to the whole of the balance of the estate.

The application for probate of the penultimate will

19. The applicant made application for probate of the penultimate will of the deceased on 31 March 2003. The application was supported by affidavits of the applicant and of the deceased's former wife, Dawn Irving, and of a friend and former brother-in-law of the deceased, Barrie Miles. In addition, an affidavit sworn by Dr Peter Lindstedt, the general practitioner to the deceased between December 1991 and 1999, was filed with the Registrar of Probates.

22. Barrie Miles, the brother of the deceased's former wife, states in his affidavit that he had known the deceased throughout his life. They attended school together and had always been "the best of friends". He stated that he first noticed a deterioration in the condition of the deceased in 1995 when having a meal in his company at a hotel in Paynesville. He said that he was having a normal conversation with the deceased when suddenly he "switched off and drifted off into his own world". He said that after this incident it was often difficult to have a normal conversation with the deceased as he was unable to concentrate and respond in a meaningful way. Mr Miles stated that in 1997 the deceased's condition became worse, he frequently appeared disorientated, and was unable to undertake simple tasks such as ordering his own meal at a restaurant. In due course, although Mr Miles did not state upon what date, the deceased was placed in a nursing home.

25. Ms Irving, by her affidavit, stated that she first noticed changes in the deceased at the wedding of her grandchild which occurred in August 1996. She said that she observed it was "difficult to have a normal conversation with the deceased". She likewise referred to an occasion at the hotel in Paynesville when the deceased was observed by her to be acting "in an unusual way" in that he was unable to order his own meal and appeared to be vague. She stated that from 1997 onwards the deceased's condition worsened and subsequently she visited him occasionally at a nursing home.

28. The affidavits of Mr Miles and Ms Irving are not particularly fulsome in terms of detail and of course they are sworn by persons who might be said to have an interest in the matter.

31. However, their evidence is supported by an affidavit of Dr Peter Lindstedt, a medical practitioner who treated the deceased between December 1991 and 1999. Dr Lindstedt stated that he is of the opinion that as at 3 March 1994 the deceased was of sound mind and therefore able to appreciate the nature and contents of the will signed by him on that date. However, he states that

"From mid 1997 it became evident that the deceased was suffering from a dementing illness that had been developing over the previous 12 months or so. He would not have been capable or competent in managing his affairs from at least late 1997. His cognitive decline became rapidly progressive and by 1998 he required assisted accommodation. He was subsequently admitted to Latrobe Valley Nursing Home in 1999. A predominant feature of his condition was disinhibited behaviour and wandering."

"I believe from my clinical notes and my professional opinion that on the date of executing his last will dated 20 June 1997, the deceased was not of sound mind and therefore unable to appreciate the nature and contents of the will signed by him on that date. Specifically it is my professional opinion that the deceased did not have sufficient mental capacity to:

(a) understand the nature of a will and what it does;

(b) recollection, in general terms, the extent and character of the property available to be disposed of by his will;

(c) bring to mind those relatives, friends or other persons who might have a moral claim upon him and whom one would objectively expect that person to consider when making a will in normal circumstances; and

(d) be able to weigh the claims of those relatives, friends and other persons, making judgments about including or excluding them as beneficiaries and judgments about the nature and extent of the gifts to be made to them in the will."

42. Not surprisingly, the Registrar of Probate made requisitions concerning the matter on 1 April 2003 the first of which was as follows -

"I note the deceased's will dated 20 June 1997 is professionally drawn. What does the draftsperson have to say about the testator's testamentary capacity at the time of giving instructions for and executing the will dated 20 June 1997?"

47. In consequence of this requisition the solicitors for the applicant obtained an affidavit as to the testamentary capacity of the deceased from the solicitor who had drafted the will which was executed by the deceased on 20 June 1997. That solicitor, Alison Claire Tanner, swore an affidavit on 29 May 2003 whereby she set out the circumstances of the making of the later will and expressed her opinion and belief as to the testamentary capacity of the deceased at that time. By her affidavit, Ms Tanner states that she met the deceased on 16 June 1997 and received his instructions to prepare a new will. Ms Tanner did not depose to having met the deceased on any occasion prior to this. She states as follows:

"At the attendance on 16 June 1997 we read through his existing will dated 3rd March 1994 together. The deceased instructed me that he wanted to retain `Tony' as his executor but did not want to leave anything to Dawn Marie Miles. The deceased instructed me that he wanted Joy Dwyer to be the sole beneficiary of his residuary estate. Joy Dwyer was present during this initial interview on 16 June 1997. I observed the deceased during the interview and made an attendance note in writing which included the observation that the deceased was `bright and alert and definite about what he wanted'. I also made a note that the deceased was wearing a hearing aid."

51. On the same day that she saw him, Ms Tanner forwarded a draft of the new proposed will to the deceased by letter. Part of the letter stated as follows -

"We note that your instructions are that you now wish the sole beneficiary of your estate to be Joy Lorraine Dwyer and the draft will has been prepared so nominating Mrs Dwyer. However, you gave us no instructions as to what you would like to happen to your estate in the event that Mrs Dwyer predeceases you. We have prepared the draft so that, should Mrs Dwyer predecease you, the sole beneficiary of your estate is to be Dawn Marie Miles. Of course you are able to provide us with contrary instructions at any time."

55. Ms Tanner deposes that she next attended the deceased on 20 June 1997 alone and specifically in the absence of Joy Dwyer. She said that she did so to ensure that his instructions were independent and consistent. She states that she would not have prepared the will if she had any reason to believe that the deceased lacked testamentary capacity and that she observed nothing in his behaviour to indicate that he did so, although he was hard of hearing.

Administration order under Guardianship and Administration Act 1986

59. On 17 May 2003 an affidavit sworn by Kristan Ross, a manager of Estate Trustees, was filed with the Registrar of Probates. That affidavit demonstrated that according to the records of State Trustees the deceased was the subject of an order of the Victorian Civil and Administrative Tribunal appointing State Trustees as administrator of his affairs pursuant to the provisions of the Guardianship and Administration Act 1986. That order was made on 28 September 1999.

63. On 17 June 2003 the Registrar of Probates requisitioned the solicitors for the applicant in the following terms -

"Thank you for filing the affidavit of Alison Claire Tanner sworn on 29 May 2003. In view of the conflicting evidence regarding the deceased's testamentary capacity at the time of executing his will dated 20 June 1997, I am doubtful whether the present application ought to be granted. Therefore, this application is referred to court pursuant to s.12(2)(b) of the Administration and Probate Act 1958."

67. Section 12(2)(b) of the Administration and Probate Act 1958 provides as follows:

"(2) The Registrar shall not without an order of the court grant probate or administration -

(b) in any case in which it appears to him to be doubtful whether such probate or administration ought to be granted."

74. Subject to the Registrar of Probates giving notice that the application had been referred to the court, the solicitors for the applicant wrote to Joy Dwyer on 20 August 2003 giving her notice of the application and enclosing the affidavits referred to above, together with the originating motion for the grant of probate. The letter enclosing these documents advised Ms Dwyer that as she was a person affected by the outcome of the application she was required to have notice so that she could obtain legal advice and file such material as she considered to be necessary.

77. An affidavit sworn by Ana Peixoto on 3 September 2003 has been filed. Ms Peixoto is a law clerk employed by the solicitors for the applicant. By her affidavit she deposes that subsequent to sending the letter enclosing relevant documents to Ms Dwyer she received a voice mail message from a person identifying himself as Dean Dwyer and claiming to be Ms Dwyer's representative. Ms Peixoto returned Dean Dwyer's call wherein he informed her that he was Ms Dwyer's son and that she did not intend to contest the application fixed for hearing in the Practice Court on 11 September 2003. Ms Peixoto requested that a letter confirming Ms Dwyer's position be provided to her.

The response of the sole beneficiary of the later will to receipt of notice of the court proceeding

81. On 31 August 2003 a letter purporting to be signed by Joy Lorraine Dwyer bearing the same date was faxed to the solicitor for the applicant. It states as follows:

"To whom it may concern: Re: Supreme Court Melbourne I Joy Lorraine Dwyer of Unit 4/1 Main Road Paynesville 3880 have received all the text in regards to Robert William Irving's will from Slater and Gordon dated 21 August 2003. I would like to surrender all my rights to the magistrate on this day being 11th September 2003. To take any further part or action against the claim that has been made against me. [sic] I feel that Robert Irving's wish to leave Anthony Murrell executor and trustee of this will's [sic]. I find that Anthony Murrell's descisions [sic] will be made correctly to Robert's living's wishes."

85. Although this letter is not as articulate a statement of Ms Dwyer's desire not to oppose the application now made before me, as it might be, I am satisfied that in the context in which it was forwarded to the solicitors for the applicant, Ms Dwyer does not intend to come forward to prove the later will. It is apparent that Ms Dwyer had notice of the application to be made in the court and that she has given consideration to the matter. It appears to be clear that she requested her son to telephone the solicitors for the applicant to advise them that she did not intend to contest the application.

88. However, the fact that Ms Dwyer having had proper notice of the proceeding, nevertheless, does not intend to contest the application, is not the end of the matter. It is clear, as a matter of law, that consent given by a party who has an interest in the matter, not to prove a will, does not enable the court to proceed on the footing that such a will does not exist.[1] As Sir Herbert Jenner said in In the goods of Watts,[2] said -

"The consent of parties interested proves nothing; no person's consent can make a will no will."

93. In the case before me the applicant as he should have done, very properly produced both wills to the court. All of the affidavit material has been provided to Joy Dwyer who, if the later will was proved, would be the sole beneficiary. I am satisfied that she has had adequate notice of the application and its nature. I am also satisfied, particularly by the evidence of the deceased's general practitioner which is before me, that the later will was executed in circumstances which raise a well-founded suspicion that it does not express the true will of a free and capable testator. That the sole beneficiary of the later will does not choose to contest the application made by the applicant is of some significance. Nevertheless, the court must be satisfied on the material before it, that it is proper to make the order sought by the applicant. The following facts appear to me to be relevant:

(a) The deceased suffered from an Alzheimer-type dementia for some period prior to his death in April 2002.

(b) Certainly by September 1999 the testator's lack of capacity to manage his own affairs was sufficient for an order to be made by the Victorian Civil and Administrative Tribunal to appoint trustees as administrator of those affairs.

(c) For the period of 12 months prior to mid 1997 the deceased suffered from a dementing illness that was developing. The deceased was certainly not capable of managing his own affairs from at least late 1997.

(d) By reason of this and his rapidly progressive cognitive decline he required assisted accommodation by early 1998.

(e) His general practitioner who had treated him since December 1991, is of the opinion, having looked at his clinical notes, that the deceased was not of sound mind as at 20 June 1997.

(f) Notwithstanding the, no doubt honestly held, opinion of the solicitor who drafted the later will, it appears that she had not known or met the deceased before he attended upon her for the drafting of the will in June 1987.

(g) The opinion of the deceased's general practitioner as to the testamentary capacity of the deceased is supported by the lay evidence albeit that the persons who provide such evidence might be said to be interested persons.

(h) The proposed beneficiary under the final will, Joy Dwyer, attended upon the solicitor to the testator on the occasion of his giving instructions to his solicitor in relation to the will. There is no basis to suggest that she may have exercised any undue influence upon him, but if his cognitive state was as declared by his general practitioner at the time to be, there may well have been an influence upon the testator which was not consciously intended by the proposed sole beneficiary.

(i) Ms Dwyer, despite having been given notice, does not wish to come forward to seek to prove the later will.

(j) There are no infants involved in the matter and all interested parties are adult, capable and so far as the court is aware under no disability. Although it would appear that Ms Dwyer has not obtained independent legal advice it is apparent that she has spoken to her son who has made her wishes clear to the solicitors for the applicant.

(k) On material before me it is highly likely that were there to be a contested application, the expert opinion of the medical practitioner who had known the testator and treated him for a considerable number of years would be of considerable weight in all the circumstances.

(l) On any view, the applicant deteriorated into a state of serious dementia within at least 12 months from the date of the execution of the final will.

99. In addition, it is not without some significance in my view, that the estate, in the event that the penultimate will of the deceased is proved, will be shared equally between the testator's former wife and his friend, Ms Dwyer. To require further proof by oral evidence would only assume more cost and reduce the share of both those parties in what is a relatively small estate.

102. Taking into account all the above matters there is, in my mind, a real suspicion that the final will which was purported to be executed by the testator on 20 June 1997, is not one which expresses the true will of a free and capable testator and in all of the circumstances the court ought not, in my opinion, admit it for probate. In the circumstances I am prepared to make an order granting probate of the will dated 3 March 1994 of Robert William Irving deceased to the executor appointed therein, Anthony Murrell. I order that the costs and expenses of the applicant be taxed as between solicitor and client and when taxed be paid or retained out of the estate of the said deceased.

[1] Re Grey Smith deceased [1978] VicRp 56; [1978] VR 596 at 601.

[2] (1837) 1 Curt 594 at 595; 163 E R 208.