Revie v Druitt

Revie v Druitt - [2005] NSWSC 902 - NSWSC 2005 case summary — Zoe

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JUDGMENT Outline 1 Leonard William Leslie Revelle died on 21 October 2001. Probate in common form of a will dated 4 October 2001 was granted to his brother, Roy Henry Macquarie Druitt, the defendant, on 7 December 2001. He had signed earlier wills of 24 November 2000 and 30 August 1999. The plaintiff, who is a niece of the testator, seeks an order for revocation of the grant of probate on grounds (1) that the deceased lacked testamentary capacity when the will was executed, and (2) that the execution of the will was procured by the undue influence of the defendant. She seeks a grant of administration with the will dated 30 August 1999 annexed. Mr Druitt is the executor of that will. He seeks a grant of probate in solemn form of the will of 4 October 2001. These are the Probate proceedings. 2 In separate Equity proceedings heard at the same time, the plaintiff seeks damages for breach of contract claimed to be made originally between the deceased and herself under which, in consideration of her moving into his home and caring for him, the deceased promised to leave his home at 9 Short Street, Wentworthville (Short Street) to her. It is claimed that after the plaintiff became bankrupt the contract was either brought to an end by agreement and a new contract entered into, or that the contract was varied so as to leave the property to the plaintiff's mother, Jean Revie, who was the deceased's sister. Mrs Revie survived her brother, but she has since died, the plaintiff suing not only in her own right but now as administrator with the will annexed of her mother's estate. That will left the whole of the estate of Mrs Revie to the plaintiff. The breach of contract is claimed to have arisen by the deceased executing the will dated 24 November 2000 and later the will dated 4 October 2001 and leaving the latter unrevoked. As an alternative to the breach of contract claim the plaintiff also claims an order for a charge over Short Street to the extent of the cost of improvements she said that she made to it and finally she claims an order for provision out the estate pursuant to s7 of the Family Provision Act 1982. 3 It is convenient to set out the facts relevant to the Probate claim first. If the plaintiff succeeds there the Equity action becomes irrelevant. However, I can state at the outset that in my view the claim for breach of testamentary promise must fail. The claimed contract was one for disposition of an interest in land. That contract, if made, was not in writing. The contract was to make the writing, namely the will, and leave it unrevoked, and in those circumstances the will could not be the contract. There is no claim for part performance. The defence under s54A of the Conveyancing Act 1919 was clearly raised. It operates to defeat this part of the Equity action: Horton v Jones (1935) 53 CLR 475. No issue of fraud was raised. 4 In this judgment I will refer to the testator Mr Revelle as the deceased and the defendant as Mr Druitt. To distinguish between the plaintiff and her mother and not through any disrespect I will refer to them as Sandra and Jean respectively. Facts 5 At the time of his death on 21 October 2001 the deceased was aged 94. Jean was born in 1913 and died on 30 April 2003, aged 89. Mr Druitt was born in 1917 and is now 88 years of age. The deceased lived in his home at 9 Short Street Wentworthville which he had owned since 1954. By 1994 he was becoming frail and had had some falls. 6 According to Sandra she had a conversation with the deceased in January 1995 when he said that if she would move into Short Street and cook, clean, wash and care for him until his death, then he would leave the Short Street property to her in his will. Sandra said that she agreed to this. She was at the time in rented accommodation and conducting a sewing business from that accommodation. At this time another brother of the deceased, Henry, was living at Short Street, but he was admitted to a nursing home in March 1995. Jean moved into Short Street in February 1995 and at that time Sandra arranged for a workshop to be built at the rear of the property for her sewing business. She moved in around March 1995. 7 There is evidence from Mrs Dodds, a next-door neighbour, and from a Mr Carmichael, who lived across the road in Short Street, that early in 1995 they witnessed a will of the deceased. Mrs Dodds says that the will was read out by Mr Druitt. She said that under this will Sandra was to get the house. She said Mr Druitt had told her that this was to happen some time earlier when he said, "The niece is moving in and she is going to get the home for looking after Len and Harry". Mr Carmichael did not remember Mr Druitt being present at the time he said the 1995 document was signed. Mr Druitt denied being there. He said he had not seen any will made at that time. No will executed at about that time has been produced. I find that a will was made by the deceased early in 1995. I accept the evidence of Mrs Dodds whom I consider to be a completely honest witness. I find that Short Street was left by that will to Sandra. Mr Carmichael was quite clear that he had witnessed two wills and he certainly was a witness to the 1999 will. I will return to that second will in due course. I do not accept the evidence of Mr Druitt on this. He was not a reliable witness. By the time these proceedings came on he had come to the view which he may have come to earlier that the move of Sandra into Short Street was part of a plan to get the house. It is not necessary to decide, although it was put that Mr Druitt destroyed the 1995 will. I find that he knew there was such a document and that he was aware of its contents. It is clear that Sandra went to live at Short Street as a result of an arrangement with the deceased that in return for looking after him and his brother the house would be left to her. Mr Druitt knew of this. As this is not the contract ultimately sued upon I need take that matter no further. 8 Harry Revelle was admitted to a nursing home in March 1995 and died in June that year. He takes no further part in the story. Sandra moved to Short Street in late March or April 1995. The workshop was completed some short time after that. Sandra cared for the deceased which was not an easy task. 9 In May 1999, Sandra became bankrupt. She told the deceased of this. She said in one of her affidavits that in a conversation after this the deceased had said to her, "If you get the house and you are bankrupt the government will take it off you. I'll get Roy to write another will to leave the house to your mother, so that the place will stay in the family." To which she said, "That's OK by me. I'm the only child and I am the sole beneficiary under my mother's will". She said that not long after that conversation Mr Druitt came to Short Street, she heard them discussing the new will and that later that day Mr Druitt went into the kitchen at Short Street where she was and said, "There's no doubt about him. He's leaving Harry's share to Katrina and Adrian and he's leaving the house to your mother because of your bankruptcy." I accept this. 10 Mr Adrian Stott, who is a son of Sandra, moved into Short Street for about three months at the end of June 1996. He said that he recalled the deceased saying on numerous occasions that "It's your mother's house". He said he had a further conversation with the deceased in 1999 after Sandra became bankrupt as follows: Adrian: "If Mum inherits this house while she is still in bankruptcy, the bankruptcy people from the government would be able to sell the house so they can pay back the companies who are owed money by my mother". Uncle Les: "I don't want your mother to have this house sold up on her. I'll get Roy to write a new will as soon as he comes up to visit next time so that this place and everything in it is left to Jean, so that when Jean dies your mother won't be bankrupt any longer so she can inherit the house from Jean." 11 Katrina Stott, who is the daughter of Sandra, gave similar evidence. She remembered a number of discussions at Short Street during which the deceased said that Sandra was to live with him and look after him and she would have the house. Her evidence as to a will being made in 1995 is somewhat different from that of the other witnesses. She says that it took place after Sandra had moved in. She said that it was she who went to get Mrs Dodds to witness the will and when she returned she saw Mr Carmichael was there. She said that after the bankruptcy she heard the deceased say to Sandra, "I'll change my will and leave the house to Jean and you will still get it. I don't want the government to get it." She lived in the house for about two months at the end of 1995, but not at any other time.

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There is no evidence of such an agreement with the plaintiff. In any event it was not in writing. 14 The deceased had various admissions to hospital after 1997. Some simple tests of mental state were carried out; his visual memory seemed reasonable but verbal memory was poor. He had various visits to the Geriatric Day Centre at Westmead Hospital from then on. On 18 October 1999 Dr Castaldi signed a note saying that the deceased is "cognitively intact but might require nursing home placement". The deceased was admitted to Kaloola Nursing Home for respite care on 7 August 2000 and he scored 19 out of 27 on a Mini Mental State test on admission. His sister was admitted to respite care at the same time. At this time Sandra was having some difficulties with her son and caring for the deceased at the same time, which is why some respite care was required. The deceased had become hostile to female community nurses by this time. They had been calling at Short Street to assist with showering and other activities, as by this time the deceased was spending most of his time in bed. Sandra says, and I accept, that by 12 October, after discussions with doctors and the community aid assessment team, it was decided that the deceased should remain in the nursing home. Mr Druitt said that he was not happy with this at the time and neither was the deceased, although ultimately it seems the deceased became accepting of the position and Mr Druitt agreed that the nursing home was the proper place for him. Dr Singh, in a report dated 9 October 2000, which was probably prepared partly for the purposes of an application to the Guardianship Tribunal, reported: The above patient is a patient of this practice. He currently resides at Kaloola Nursing Home. He is 93 years old and is unable to self-care. He has extremely poor mobility; and requires 2 people to transfer. His mentation is also deteriorating with short term memory loss coupled with this he's quite abusive to carers. I recommend him to continue at the nursing home as a permanent patient.

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And a community nurse said in a note of 12 October 2000: The Parramatta Nursing Service has been visiting Mr Revelle since May 1998, to assist with his personal care, bowel management and pressure care. Since January this year Mr Revelle's condition has progressively deteriorated. In the past he had demonstrated an hostility to the female nurses; this has progressed to a defiance to allow nurses to assist with showering him on many occasions. His poor mobility leading up to client's hospitalisation had been considered unsafe for one nurse and it was proposed to have two nurses to assist with showering him. His carer complained frequently of Mr Revelle's refusal to eat; he rarely left his bed. It is my considered opinion and those of the other nurses involved in his care that it would be unsuitable for Mr Revelle to return to his home. 15 On 15 October 2000 the deceased signed an enduring power of attorney in favour of Mr Druitt. It was prepared by Mr Druitt and witnessed by Mr Bolster, a solicitor who gave a certificate under s163F(2) of the Conveyancing Act 1919. Mr Bolster was not called and in the absence of evidence from him I do not think any weight should be given to the certificate. Mr Bolster was not a solicitor who had acted previously for the deceased. He was picked by Mr Druitt as a local solicitor. Mr Druitt did not know him either. 16 On 24 November 2000 the deceased made a new will. This appointed Mr Druitt as the executor and gave the estate in equal shares to Jean and the six children of Mr Druitt. In other words, they took one seventh each. This will was written out by Mr Druitt and then typed by his daughter on her typewriter. According to Mr Druitt he had spoken to the deceased who had instructed him what to do and then wrote it out for his daughter and she typed it. He said that the deceased had said, "look my sister Jean, she is deteriorating and she is into dementia and she will never go back home because she is a permanent patient at Kaloola. Now I want to make sure she gets something out of the estate, so I am going to give her a seventh share". 17 Prior to this event Sandra had filed an application with the Guardianship Board for the appointment of a manager for the deceased. Mr Druitt was aware of that. Mr Stott, a son of Sandra, had filed a similar application on 13 December 2000. It is not quite clear why this was done. In any event both applications were heard together and determined by orders of the Tribunal on 18 January 2001. Both applications were for appointment of a guardian and of a financial manager. Both were dismissed. In its reasons the Tribunal found that the deceased was a person under a disability although it did not state on what basis this conclusion was reached. The Tribunal nevertheless held, as it was entitled to do, that the deceased was not in need of a guardian, his accommodation being suitable, his general health good and he not being a person where major decisions were likely to be required. The Tribunal stated that in the event of the deceased being unable to give consent in the future to major medical treatment then Sandra as his most recent carer would be regarded as his "person responsible" for the purpose of giving consent on his behalf. 18 So far as financial management was concerned the following passages appear in the reasons: Financial management Mr Revelle has cognitive deficits, which render him incapable of managing his financial affairs. Ms Biswas reported that her original cognitive assessment of him in 1997 found deficits in verbal memory, insight, problem solving/abstract reasoning and in money skills. When she assessed him in January, 2001, she found that these problems were worse and that he had developed visual memory deficits. She found that he also had some difficulties and confusion with money handling.

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The Tribunal heard that, prior to his nursing home placement Mr Revelle was managing his own finances with assistance from Mr Druitt. In October, 2000, however, he executed a Power of Attorney in favour of his brother. He did not remember doing this but he told Ms Biswas that he wanted his brother to manage his finances. He confirmed this at the hearing. Ms Biswas and Ms Bridgement both recommended the appointment of an independent financial manager, Ms Bridgement commenting on Mr Revelle's vulnerability to financial exploitation. … The Tribunal examined the relevant documents and took verbal evidence as to the manner in which Mr Revelle's finances are currently managed. While the arrangements made are unusual, they are in line with Mr Revelle's longstanding habits and there did not appear to be any mismanagement of funds. The Tribunal found, therefore, that Mr Revelle, while incapable of managing his affairs, is not currently in need of a financial manager. His present accommodation protects him from the dangers raised by Mrs Revie and Mr Stott and he did express a clear preference for Mr Druitt to manage his affairs. The application was, therefore dismissed. 19 I should state here that there is some difficulty about the manner in which documents tendered in evidence should be treated. Four folders amounting to 1071 pages were tendered without objection as Exhibit D. Volume 1 of that bundle includes documents which were referred to and which, for the most part, were the documents of significance in this action. It was accepted that unless documents were referred to in oral evidence or submissions then I was not expected to take them into account. I have proceeded on that basis, unsatisfactory as it is. In hindsight I should perhaps have insisted that documents not be tendered but merely be a court bundle, those referred to in evidence being separated and tendered at the end. No more than 30 other pages were referred to. However, the Guardianship Tribunal's decision and other material before the Tribunal are in evidence without objection. As McLelland J said in Estate of Bellew (13 August 1992, unreported) this decision does not determine capacity but the material can be considered. That decision (as to capacity) was followed by Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377. This is of some importance when I come to consider the medical evidence. 20 Towards the end of 2000 the telephone service at Short Street was discontinued as a result of arrangements or instructions given by Mr Druitt, presumably as attorney. Sandra said she asked the deceased whether he would sign a letter to arrange its reconnection and he agreed. She prepared the letter and returned the next day. The deceased said, "You get to buggery out of here. I'm not doing anything for you". I accept this evidence. The next day Mr Druitt produced a document which was signed by the deceased, which is as follows: Dated 5th December, 2000 TO WHOM IT MAY CONCERN

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As I have accepted the general thrust of the evidence of Sandra as to the basis upon which she moved to Short Street, the facts set out in this declaration are untrue. This has the result either that Mr Druitt prepared this document himself without real input from the deceased and got the deceased to sign it, or that the deceased signed a document which contained statements of fact which were not correct. If, as Mr Druitt alleged, the document was prepared after discussions with his brother, it goes to support a finding that the deceased was unable to bring a reasoning mind to the situation. 23 The will admitted to probate was prepared by Mr Druitt, who typed it out on his typewriter and then gave it to his grandson to prepare a better copy on his computer. That will once again appointed the defendant as executor with his son as substitute executor and divided the estate equally between the six children of Mr Druitt. In other words, Jean was omitted as a beneficiary. The evidence given by Mr Druitt in cross-examination about the 1999, 2000 and 2001 wills was as follows: Q. Why did he want to change his will in 2001, do you say? A. Now I've done that, well I didn't actually - I've got that information there. But in the 1999 will she was mentally stable, my sister. That's why he wanted a home for her to live in. Then he made the 2000 will. In this time, as you know with Katrina's evidence, with her experience, Katrina's experience as a nursing sister at the Balmain Geriatric Hospital, she observed that her mother was getting - fast getting into dementia, and started to wander away from the house. He said to me, "Well look, we'll just give her a seventh share in that 2000 will." Then when she was in the nursing home before he made this last will, she didn't recognise or know him or me, so he said, "Look, there is no good of us leaving anything to her. She has got her pension, she will be getting the entitlement from Centrelink for the nursing home. She has got all the money that she needs, so therefore there is no purpose in putting her in. She won't go home."

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And I make this declaration conscientiously believing the same to be true and by virtue of the provisions of the "Oaths Act of 1900". Subscribed and declared at Granville ) This 15th day of October ) [signed] The year two thousand and one ) L W Revelle Before me [signed] C J Murphy ) Justice of the Peace 2/29 Railway Parade Condell Park 27 While Mr Druitt was reluctant to admit it, I think the ultimate effect of the cross-examination was that the solicitor he was instructing in connection with the caveat proceedings referred to suggested that this document be prepared. By this time there is no doubt that Mr Druitt was expressing to the deceased his view that the move of Sandra at least, and perhaps her mother as well, into Short Street was part of a plan to get that house for themselves or probably for Sandra. The deceased could not have remembered the dates set out. It was not suggested he was shown documents to confirm them. The statements about one daughter and one son moving to Short Street are not correct. Neither is the first sentence of paragraph 3. 28 After the date of death of the deceased Mr Druitt asked Dr Adams, who was at that time the attending general practitioner for the deceased for a report. She seems to have taken over the care on 7 February 2001. The report is as follows: To whom it may concern 6-11-01 Re: Leonard Revelle DOB 24.3.07 formerly of Kaloola Nursing Home. Date of death 21-10-01. Mr Leonard Revelle was admitted under my care 7/2/01. I found Leonard co-operative at all times. His speech was difficult to understand but with patience he could communicate his needs quite well. Leonard enjoyed his own company and stayed in his room rather than mix with other residents. This I thought was his choice and there was never any problem re his behaviour. Leonard was always pleasant when I spoke with him, enquired and questioned if he didn't understand. The staff commented that he was a very nice man and I concur with that. Sincerely Dr Sue Adams

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Q. You thought in December 2000 that she was a dishonest person? A. It is a bit of a strong word that, yes. Probate issues 32 It is important to bear in mind that the issues raised on the pleadings go only to testamentary capacity and undue influence. There is no claim of fraud or that the testator did not know and approve of the contents of the 2001 will. Testamentary capacity 33 While the proceedings commenced with a claim for revocation of a grant, it is still for the person who propounded the will the subject of a grant in common form to establish its validity in this action. This was a will made by a man aged 94, blind or almost blind in one eye, confined to a nursing home, mostly in bed, and found by the Guardianship Tribunal to be incapable of managing his affairs. These matters throw doubt upon capacity, discharging the evidentiary onus on the plaintiff to overcome any presumption that a will valid on its face and duly executed was that of a person of sound and disposing mind. 34 As I have pointed out quite recently in Kerr v Badran [2004] NSWSC 735, lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased. In this case, the evidence of Dr Adams was not of much assistance. That is not said in a derogatory sense, but merely states the position. There was no evidence of conversations she had and in the relevant nursing home situation she was not called upon to consider questions of mental ability or capacity. Dr Singh was not called. His absence was not explained. His report of 9 October 2000 raised doubts as to capacity. His patient records were not put into evidence. He was an obvious witness, presumably available to either party and as the ultimate onus was on Mr Druitt, one would have expected that he might call him. Nonetheless in a case such as this I do not consider that any Jones v Dunkel (1959) 101 CLR 298 inference should be drawn against either party. 35 Evidence relevant to the issue is contained in the report in evidence of an occupational therapist, Sue Biswas, dated 9 January 2001 and produced at the request of the Guardianship Tribunal for its hearing. Ms Biswas is an experienced occupational therapist. Dr Rosenfeld, whose evidence I will come to shortly, said that occupational therapists were persons qualified to test and report on cognitive ability. No objection was made to the report. Again I would have expected her to be called to give evidence. 36 Ms Biswas had seen the deceased on two occasions prior to that occasion on which her report was based. Those occasions were 16 October 1997 and 2 October 2000. The first occasion was at Westmead Geriatric Day Hospital when an initial cognitive assessment was carried out. The second was at Kaloola to assess whether higher level of care in that nursing home was the appropriate care for the deceased. The third occasion when she saw the deceased was on 9 January 2001 at Kaloola when, at the request of the Guardianship Tribunal, she carried out a cognitive/functional assessment. The following passages appear in her report: SOCIAL STATUS :

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This is a difficult and complicated situation and it is difficult to know what is the best recommendation. I hope this report is beneficial. If you require any further details please contact me on 9845-6903. 37 Dr Tuly Rosenfeld was called by the plaintiff. He gave a report dated 21 January 2004 based on examination of the nursing home records, Westmead Hospital records and Guardianship Tribunal records. He is an experienced specialist geriatrician. He considered that the deceased had an aggressive cognitive function deterioration from 1997 until 2001. He concluded that he thought that the deceased would have had testamentary capacity in 1999 but not in 2000 or later. It is important to understand that no challenge is made to the 1999 will, other than it is not the last will of the deceased. Dr Rosenfeld said that based on the report of a CT scan in October 1997 it was clear the deceased by then was suffering a vascular disease, a common cause of dementia. 38 Dr Rosenfeld accepted that dementia itself did not determine testamentary capacity. His opinion was that the deceased suffered from a progressive vascular type of dementia. He considered by November 2000 this deterioration was considerably advanced and was related to frontal lobe disease resulting in deficits in executive functioning in matters relating to initiative, comprehension and judgment. In his report, confirmed in oral evidence, he stated that the deceased's lack of understanding of his need for care, his lack of short term memory and his inability to reason indicated that he was not able to weigh appropriately the claims of persons who were the natural objects of his bounty. 39 By the date of hearing Dr Rosenfeld had read the affidavit evidence. This did not alter his opinion. Dr Rosenfeld accepted that a person with dementia can respond appropriately to cues in daily life but that admission to a nursing home where the situation is different can cause more confusion. 40 It is convenient to set out part of the oral evidence of Dr. Rosenfeld. The reference to item 3 is the doctor's discussion of the requirements for testamentary capacity, item 3 in his list being "the testator should be able to recall and understand the claims of potential heirs or family". 41 In cross-examination the following passage appears at transcript page 81: Q. Could I take you back to item 3 in your report. You say, "The testator should be able to recall and understand the claims of potential heirs and family." I am suggesting to you that the report of Ms Biswas shows, at least by January 2001, the deceased was able to do that? A. Is that a question?

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This evidence, particularly the re-examination, I consider to be valuable. I accept it. It is of more assistance than Dr Rosenfeld's written expert report, which on its own would have been of little assistance. 42 I think this evidence should also be considered in the light of the documents signed by the deceased. The first of those documents is that signed on 5 September 2000. I accept the evidence of Sandra about the telephone account and the type of letter she asked her uncle to sign, which at that time had not been written out. Accepting for the moment that the deceased signed this 5 September document of his own will, it shows a complete misunderstanding of the position. I find as a fact that it was at Mr Druitt's suggestion that this document and the others like it came into existence. If the deceased agreed to them they show an inability to comprehend the true facts, particularly so far as the first statutory declaration is concerned, the understanding upon which Sandra moved into Short Street. 43 There is really little other helpful evidence on the question of testamentary capacity. Mr Bonko, one of the attesting witnesses, said that there was some conversation with the deceased for about five or ten minutes about the daily routine, how he felt and what were his needs, but he did not remember any specific details. Mr Druitt said the deceased was able to discuss matters heard on the radio. He said, "we discussed all sorts of things, he would tell me different things and we'd discuss them between ourselves." Miss McKenzie, a solicitor, had visited the deceased in the nursing home in connection with a lapsing notice for a caveat lodged by Sandra. She could perhaps have given useful evidence but was not called. 44 It is necessary for the court to be satisfied that the deceased knew and understood that the document he was signing was a will and what that meant; that he understood the general nature and extent of his assets available for disposition under his will; and that he was able to consider and evaluate the respective claims of persons having a claim upon his estate and whom he would be expected to consider in disposing of his estate: Banks v Goodfellow [1870] LR 5 QB 549. It is not necessary to consider the fourth requirement as there is no claim of delusion. 45 Although there must be some doubt about the matter in view of the evidence about the power of attorney I think it more likely than not that the deceased understood that he was making a will. As he had very limited property comprising Short Street and money in bank accounts, it is at least more likely than not that he was aware of this, although there is nothing to show he understood the value of Short Street or the amounts held in bank accounts. 46 The evidence of Ms Biswas and Dr Rosenfeld is very significant and in the absence of any useful evidence to the contrary must put the court in considerable doubt as to the ability of the deceased to consider those persons who might have a claim on his estate and to weigh up those claims. Mr Druitt really admitted it was he who suggested that his children should be objects of the testator's bounty. As against that there can be no doubt that on the basis that I have found a will was made in 1995, the making of a new will in 1999 was a sensible act having regard to the bankruptcy of Sandra. She was still an undischarged bankrupt at the date of death of the deceased. It is however true that by the time her mother died she had been discharged. It is also true that the debt upon which the bankruptcy was founded was only for an amount of about $2,600 and the amount required to obtain an annulment was only about $6,000. Whether the deceased knew of that is not established by any evidence. If the evidence of Mr Druitt is accepted then the statements of the deceased as to the reason for making changes to his will in 2000 and 2001 would have a logical basis so as to vary and then delete the gifts to Jean. It was at that time that the deceased was annoyed with Sandra for having brought the application to the Guardianship Tribunal and on his understanding of her having arranged for him to become a patient in the nursing home. The reason why this carries less weight than it otherwise would in my view is that the letter signed by the deceased of 5 December and the statutory declaration signed by him shortly thereafter contain statements which were not correct. On the version of Mr Druitt the deceased must have regarded them as correct as they were made after discussion with him. I have little doubt that they were put together having regard to a conversation which was led by Mr Druitt. If the statements which Mr Druitt says the deceased made about the reasons for changing his will were in fact made then once again I have little doubt that they were made at the instigation of Mr Druitt. There is no suggestion that the deceased gave any consideration of any claim Sandra might have or to the continued possibility that she might obtain a discharge from her bankruptcy and inherit the whole of her mother's estate in due course in any event. Nor is it suggested the deceased considered any claim of Sandra's children who it seems likely from the evidence had more contact with the deceased than Mr Druitt's children. 47 This is a difficult case. In Re Estate Griffith (deceased) Easter v Griffith (1995) 217 ALR 284 at 295 Gleeson CJ said the court should be very careful in coming to a decision that an elderly testator lacks testamentary capacity. It is important to bear in mind that: "a residual doubt (as to capacity) is not enough to defeat the plaintiff's claim 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 the execution": Worth v Clasohm (1952) 86 CLR 439 at 453. However, in the light of the evidence of Dr Rosenfeld, and in light of the documents set out which I think establish the deceased was unable to bring proper reasoning to them, and in the absence of any significant evidence from the defendant's side about capacity, and in light of my conclusion that the evidence of Mr Druitt was unreliable - I conclude that I am not satisfied the deceased had the necessary capacity at the time the 2001 will was made. 48 In case it is not clear I summarize my reasons as to the finding about the credit of Mr Druitt. I find his evidence about there being no 1995 will to be untrue; I find he prepared documents signed by the deceased some of which contained statements he knew were untrue; and I consider his evidence about the plan was given to hide the true basis upon which he knew Sandra moved to Short Street. 49 There is no application for probate of the 2000 will. The pleadings did raise an issue on it and on the evidence had it been propounded I would have found against it. The proper course would have been for Sandra to have served citations on the beneficiaries under that will to give them the opportunity to propound it. Mr Druitt of course as executor named in it had the opportunity of propounding it in the alternative to the 2001 will. He did not do so and in the events which have happened his children would have been the persons cited. It can be assumed they have knowledge of these proceedings although they are not bound by the result. In the circumstances I consider the appropriate course is to order a grant of probate of the 1999 will in common form. It is unfortunate this procedural problem went unnoticed. It did so because the probate file was attached to the equity file and not under the eyes of the Registrar in Probate, who normally attends to such procedural matters. That does not mean that I should not have identified the problem when the actions were transferred to me at a late stage for hearing. It is, however, also the responsibility of counsel appearing in contested probate actions to ensure that all necessary persons are parties or the subject of citation. Undue influence 50 In view of the decision on testamentary capacity it is not really necessary to deal with this claim. However, as the issue was raised and in probate actions this gives rise to serious allegations of coercive conduct, it is desirable to deal with it briefly. 51 The onus is on the person alleging undue influence to prove it. It is not sufficient to establish pressure or importuning conduct bearing on the deceased. What is needed for a claim of undue influence to be successful is evidence that the conduct of the person or persons alleged to be exerting pressure was such that it amounted to coercion so that it overbore the free will of the testator: Wingrove v Wingrove (1885) LR 11 PD 81; Boyse v Rossborough (1857) 6 HL Cas 1; Winter v Crichton (1991) 23 NSWLR 116. 52 The only particular of this allegation in the statement of claim is: The defendant prepared the will of 4th October 2001.

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(v) That this ability to control meant that the will was not the will of the deceased whose free will was overborne. 53 It is made clear in Wingrove that the power to control does not establish that coercion was exercised. It is clear, and in fact admitted by Mr Druitt that he discussed the contents of the 2000 and 2001 wills with the deceased and prepared them after those discussions. He may even have suggested the contents. That does not mean the deceased was coerced into signing them. Mr Bonko, the attesting witness of the 2001 will, was not even cross-examined about this. 54 It is generally recognized that it is extremely difficult to prove undue influence. The person who could give the best evidence is dead. That does not mean that it is impossible to establish undue influence, although I know of no case in New South Wales where the issue has been successfully raised. In any event the claim for undue influence in this action fails. Equity proceedings 55 It was accepted that it would not be necessary to consider the separate equity claims if I came to the decision I have on the probate action. I have already explained why I consider the claim for breach of contract fails. I consider also that the claim for a charge fails. It seems likely that the amount spent by Sandra on the improvements to Short Street as a result of which she claims a charge is in the vicinity of $12,000.00. The shed which was erected with those moneys was erected so that she could carry out her sewing business there. There is no evidence the shed added to the value of the property. Without such evidence and having regard to the benefit which the plaintiff obtained from it, I consider a case for a charge fails. 56 I do not think it desirable to make any decision on the Family Provision Act claim. That is because as a result of the decision in the probate action, it is clear that unless an appeal against that decision succeeds, the claim under the Family Provision Act must fail. It will be necessary to frame an order preserving the plaintiff's rights to pursue her Family Provision Act claim in the event of there being an appeal which succeeds in the probate action. Costs 57 I will hear submissions on costs. In the absence of special circumstances costs of the issue of undue influence must be borne by the plaintiff. Proposed orders

At a glance

Court

Decision date

Before

Source

Judgment (105 paragraphs)

Parties

Cases Cited (7)