Re Macpherson [2022] QSC 20 (24 February 2022)

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY - where the testator made a will in 2015 (the 2015 will) - where the 2015 will was her last will - where the cause of death of the testator included "complications of dementia" - where the testator's solicitor prepared the 2015 will - where the testator's solicitor had discharged various other instructions from the testator - where the testator's solicitor was of the view that the testator interacted with him consistently with having capacity - where medical evidence supported the testator's solicitor's assessment of capacity

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION WITH WILL ANNEXED - TO WHOM GRANTED - where executors and trustees were nominated in the testator's will - where those executors and trustees renounced - where the applicant for letters of administration is a solicitor experienced in the practice of succession law - where the letters of administration with the will ought to be granted to the applicant

Succession Act 1981, s 6, s 46, s 68

Trusts Act 1973, s 80, s 82, s 90, s 101

Uniform Civil Procedure Rules 1999, r 603

Banks v Goodfellow (1870) LR 5 QB 549, followed

Frizzo & Anor v Frizzo & Ors [2011] QSC 107, followed

Read v Carmody, unreported NSWCA, 23 July 1998, followed

• [1] Michael Karl Klatt is a solicitor and partner of the firm Mullins Lawyers. He specialises in the practice of succession law.
• [2] Mr Klatt applies for letters of administration with the will of Rangipiri Macpherson of 9 October 2015 (the 2015 will).
• [3] Two issues arise. They are:

1. Mrs Macpherson's capacity to enter into the 2015 will;

2. Mr Klatt's priority to apply for letters of administration.

• [4] Mrs Macpherson was born in the Cook Islands and resided in Australia for the last 61 years of her life.
• [5] Mrs Macpherson married James Ramsay Macpherson (James Snr) in the Cook Islands when she was 21 years of age and she had children, Allen, Anita and James Murray Macpherson (James Jnr). Allen and Anita predeceased her.
• [6] Mrs Macpherson had from time to time sought the professional services of Mr Andrew John Whitehouse, solicitor and the principal of Pender & Whitehouse.
• [7] On 20 December 2013, Mrs Macpherson, with the assistance of Mr Whitehouse, made a will (the 2013 will) By the 2013 will, Mrs Macpherson:

1. appointed her son, James Jnr, and her granddaughter, Ellie Katharine Macpherson (Ellie), as executors and trustees;

2. on the condition that James Snr survived her, she left her entire estate to him;

3. in the event that James Snr predeceased her, the will provided that after payment of debts, funeral and testamentary expenses, the estate should be divided into 20 equal parts to be distributed as to 10 parts to James Jnr, five parts to Ellie and five parts to William Macpherson, another grandson.

• [8] James Snr passed away on 24 December 2013.
• [9] In existence at the time of the making of the 2013 will was an enduring power of attorney by Mrs Macpherson appointing James Jnr and Ellie.
• [10] On 30 September 2014, Mrs Macpherson, with the assistance of Mr Whitehouse, revoked the enduring power of attorney.
• [11] In April 2014, Mrs Macpherson engaged Mr Whitehouse to do some conveyancing work when she sold a property she owned in Samford.
• [12] On Friday, 9 October 2015, Mrs Macpherson attended upon Mr Whitehouse and gave him detailed instructions for the changing of her will. That resulted in the 2015 will which is the will for which Mr Klatt seeks letters of administration. The 2015 will differs from the 2013 will in two respects:

1. It removes the bequest of the residual estate to James Snr. Of course, by the time of the 2015 will, James Snr was deceased.

2. The executors and trustees of the will are nominated as William and Ellie rather than James Jnr and Ellie.

• [13] The 2015 will, like the 2013 will, directed that the residue of the estate ought be considered as containing 20 equal parts to be distributed as to 10 to James Jnr and five to each of Ellie and William.
• [14] Mrs Macpherson died on 17 May 2021 at the age of 85. There is no evidence of any will later than the 2015 will.
• [15] As to the cause of death of Mrs Macpherson, the death certificate says:

2. Stroke, atrial fibrillation, hypertension, polymyalgia, rheumatica."

• [16] The mention on the death certificate of dementia raises an issue as to testamentary capacity. The death certificate does not state the duration of that illness.

• [17] In Frizzo & Anor v Frizzo & Ors,[1] Applegarth J, following Banks v Goodfellow[2] and Read v Carmody,[3] described the relevant test to determine testamentary capacity as:

"[21] The classic test for testamentary capacity was enunciated in Banks v Goodfellow.[4] The relevant principles were restated by Powell JA in Read v Carmody:

1. The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;

2. The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;

3. The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;

4. The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.[5]

In this last respect, in the words of Banks v Goodfellow, no disorder of the mind should poison her affections or pervert her sense of right, nor any insane delusion influence her will, nor anything else prevent the exercise of her natural faculties."[6]

• [18] As to the approach in determining testamentary capacity by application of that test, Applegarth J observed in Frizzo:

"[23] Of course, the onus of proving that the testatrix had testamentary capacity at the time she made her will lies on the party propounding that will. It is a question determined on the balance of probabilities, based on the whole of the evidence.[7] A presumption of validity arises where the proponent demonstrates a duly executed will that is rational on its face.[8] The party impugning that will must then displace the prima facie case with 'clear evidence...that the illness of the [testatrix] so affected [her] mental faculties as to make them unequal to the task of disposing of [her] property'.[9] While extreme age or grave illness are circumstances that will attract the vigilant scrutiny of the Court, neither is, of itself, sufficient to establish incapacity. The question always is whether those or other circumstances so affected the testatrix's faculties as to render her unequal to the task of disposing of her property.[10]

[24] If, however, doubt is raised as to the testatrix's mind, memory and understanding, then the Court is thrown back onto an examination of the evidence as a whole to determine whether the proponent has established affirmatively that the testatrix was of sound mind at the time of executing the will.[11] As was said in Worth v Clasohm:

'The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.'"[12]

• [19] I accept that the test and the approach to applying it is as explained by Applegarth J in Frizzo.
• [20] Mrs Macpherson is presumed to have capacity. However, as the cause of death included dementia, a question of capacity arises and proof of capacity falls upon Mr Klatt who is propounding the will.
• [21] In my view, the evidence overwhelmingly points to Mrs Macpherson having capacity.
• [22] Mr Whitehouse is an experienced solicitor having practised for some 42 years. He was aware of Mrs Macpherson's advancing age and, as a practising solicitor, realised his professional obligation to assure himself that Mrs Macpherson had testamentary capacity.
• [23] Mr Whitehouse accepted Mrs Macpherson's instructions in relation to withdrawing her enduring power of attorney, making both of the 2013 and 2015 wills and the sale of the property in Samford. All those instructions, he has sworn, appeared logical and reasoned and he swore:

"During these conversations I had no reason to doubt her capacity."

• [24] On 16 April 2015, the Public Guardian wrote to Mr Whitehouse enquiring as to any evidence which he possessed suggesting that Mrs Macpherson had mental capacity when she executed the revocation of the enduring power of attorney. Mr Whitehouse responded to the Public Guardian explaining a number of matters which indicated to him that Mrs Macpherson had capacity. The Public Guardian accepted that Mrs Macpherson had mental capacity to sign the revocation of the enduring power of attorney.
• [25] Dr Cliff Fisher was, in 2015, Mrs Macpherson's treating general practitioner. Mr Whitehouse obtained a report from Dr Fisher dated 20 April 2015 in these terms:

"This it (sic) to certify that in my professional opinion Mrs Macpherson has the capacity to make decisions to manage her own financial and health affairs and that she also had this capacity on 30 September 2014."[13]

• [26] In August 2021, solicitors acting on behalf of James Jnr objected to an application for probate that had been lodged by William and Ellie. Mr Whitehouse undertook investigations by attending Dr Fisher's practice and viewing medical records. That revealed that Dr Fisher had administered many mental tests which had confirmed that Mrs Macpherson possessed the requisite testamentary capacity to execute a will.
• [27] Mr Whitehouse received a letter from Dr Fisher in these terms:

"In respose (sic) to your letter of 24th June concerning Mrs Rangipiri Macpherson I can confirm that she attended this surgery from June 2004 until April 2020. Over that time I attended her most frequently and on numerous occasions she discussed her family, her assetts (sic) and the reasoning for her decisions regarding their distribution in her will. It is my opinion that Mrs Macpherson definitely had testamentary capacity to understand and sign her will on 9th October 2015."

• [28] Mr Whitehouse was required to make reasonable enquiries and assessments as to Mrs Macpherson's testamentary capacity. He made those enquiries and made his own assessment before the will was executed. His judgment was correct and is supported by the medical evidence.
• [29] Mr Klatt has established Mrs Macpherson's testamentary capacity as at the date of execution of the 2015 will.

Priority to the grant of letters of administration

• [30] Both William and Ellie have renounced probate. Therefore, by s 46 of the Succession Act 1981, their right to probate ceases. It follows then that the estate is left without an appointed legal personal representative. By s 6 of the Succession Act 1981, and s 80 of the Trusts Act 1973, the court has jurisdiction to grant letters of administration and appoint a new trustee.
• [31] Rule 603 of the Uniform Civil Procedure Rules 1999 provides the order of priority of persons to whom letters of administration may be granted. Rule 603 provides:

"603 Priority for letters of administration with the will

(1) The descending order of priority of persons to whom the court may grant letters of administration with the will is as follows -

(a) a trustee of the residuary estate;

(b) a life tenant of any part of the residuary estate;

(c) a remainderman of any part of the residuary estate;

(d) another residuary beneficiary;

(e) a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy;

(f) a specific or pecuniary legatee;

(g) a creditor or person who has acquired the entire beneficial interest under the will;

(h) any one else the court may appoint.

(2) The court may grant letters of administration with the will to any person, in priority to any person mentioned in subrule (1).

(3) If 2 or more persons have the same priority, the order of priority must be decided according to which of them has the greater interest in the estate.

(4) Each applicant must establish the person's priority by providing evidence that each person higher in the order of priority is not entitled to priority because of death, incapacity or renunciation.

(5) A document providing evidence for subrule (4) must be an exhibit to the affidavit in support of the application.

(6) The applicant need not establish priority for a person equal to or lower than the applicant in the order of priority."

• [32] Mr Klatt falls within r 603(1)(h). By r 603(4), in order to obtain a grant, Mr Klatt must show that all persons higher in the order of priority are not entitled to a grant.
• [33] Here, there is no trustee of the residuary estate.[14] There is no life tenant of any part of the residuary estate.[15] There is no remainderman of any part of the residuary estate.[16] There is no residuary beneficiary entitled to apply because the three beneficiaries have renounced their right to apply.[17] There is no suggestion of any full or partial intestacy and therefore there is no person entitled to the estate in intestacy.[18] There is no specific or pecuniary legatee[19] and no creditor or person who has acquired the entire beneficial interest under the will.[20]
• [34] Mr Klatt, therefore, has priority.
• [35] All the residuary beneficiaries have been alerted to the application and consent to it. The rules in relation to the giving of notice of intention to apply for a grant of letters of administration have been complied with and no caveat has been filed in relation to the estate.
• [36] Mr Klatt is a solicitor experienced in the administration of estates. He has sworn that he is not aware of any matter which might bear adversely on the appropriateness of his appointment.
• [37] Letters of administration with the will ought to be granted to Mr Klatt.

• [38] For the reasons given, Mr Klatt ought to be appointed the administrator of the estate and letters of administration with the will granted to him. Ancillary orders vesting the estate in him and directing persons who are in possession of relevant things to deliver them up to Mr Klatt ought to be made.
• [39] Mr Klatt seeks orders that he be remunerated in amounts to be assessed by an independent costs assessor pursuant to the Supreme Court scale on the indemnity basis.[21] He also seeks a direction pursuant to s 6 of the Succession Act 1981 that he be at liberty to retain his firm, Mullins Lawyers, to act on his behalf and to recover costs assessed by an independent costs assessor pursuant to the Supreme Court scale on the indemnity basis.
• [40] There is no reason why Mr Klatt ought not be paid reasonable fees for acting as the administrator. There is also no reason why he ought not instruct Mullins Lawyers to render professional services in relation to the estate. There is no reason why their reasonable professional fees and expenses ought not be paid from the estate.
• [41] Mr Klatt seeks the costs of the present application to be paid out of the estate on the indemnity basis. That is appropriate.
• [42] The orders are:

1. Michael Karl Klatt be appointed as the administrator of the estate of Rangipiri Macpherson deceased.

2. Subject to the formal requirements of the Registrar, letters of administration with the will of the deceased be granted to Michael Karl Klatt.

3. Pursuant to ss 82 and 90 of the Trusts Act 1973, all property of the deceased shall vest in Michael Karl Klatt as administrator of the estate and be deemed to have so vested on the date of the deceased's death.

4. Pursuant to s 68 of the Succession Act 1981 and s 101 of the Trusts Act 1973, the court fixes the remuneration of Michael Karl Klatt as administrator of the deceased's estate. Such remuneration for professional and non-professional work is to be assessed by an independent cost assessor pursuant to the Supreme Court scale as varied from time to time on the indemnity basis with the fees to be assessed at approximately two monthly intervals and on completion of the administration.

5. Pursuant to s 6 of the Succession Act 1981, Michael Karl Klatt as administrator of the deceased's estate is at liberty to retain Mullins Lawyers to act on his behalf in respect of the administration of the estate with their professional costs and outlays in so acting to be assessed by an independent cost assessor pursuant to the Supreme Court scale as varied from time to time on the indemnity basis and at approximately two monthly intervals and on the completion of the administration.

6. All certificates of title and all other estate documentation and information relevant to the issues remaining outstanding in the estate which are in the possession or control of any party who was served with a copy of the application shall be delivered to Michael Karl Klatt as administrator within fourteen (14) days from the date of these orders.

7. The costs of and incidental to the application be paid out of the estate on the indemnity basis.

8. Michael Karl Klatt shall have liberty to apply.

[1] [2011] QSC 107.

[2] (1870) LR 5 QB 549 at 565.

[4] (1870) LR 5 QB 549 at 565.

[5] Read v Carmody (NSWCA, 23 July 1998, unreported; BC9803374), [1998] NSWCA 182 per Powell JA. See also the judgments of Dixon J (as he then was) in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283, [1941] HCA 22; and of Mullins J of this Court in Conroy v Unsworth-Smith [2004] QSC 81 at [97]- [98].

[7] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 570, [1924] HCA 21 per Isaacs J, Gavan Duffy and Rich JJ concurring.

[8] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283, [1941] HCA 22 per Dixon J; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706; Conroy v Unsworth-Smith [2004] QSC 81 at [100]; Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 295.

[9] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 571-2, [1924] HCA 21 per Isaacs J.

[10] See Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707 and the cases there cited.

[11] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283, [1941] HCA 22 per Dixon J.

[12] Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 453; [1952] HCA 67 at [18].

[13] The date of revocation of the enduring power of attorney.

[21] Succession Act 1981, s 68, Trusts Act 1973, s 101.