Trust Company of Australia Limited v Daulizio [2003] VSC 358

Trust Company of Australia Limited v Daulizio [2003] VSC 358 - VSC 2003 case summary — Zoe

[44]

"Q: Was this subject raised again before she went into hospital in August 2000? --- Yes, before she went into hospital she was talking more seriously about leaving something to Mrs Fensham and myself. Q: What did she say to you in regard to Mrs Fensham? --- She basically if I remember correctly, she had spoken about her before but it was mainly after she had been to visit Mrs Fensham. She was talking about her visit, she had a wonderful time and everything but she thought maybe it would be good if she would give some money to Mrs Fensham to help with the house and also to help with Tim's education. She was very concerned about Tim's education Q: Did she say anything to you about Mrs Fensham's house? --- No, nothing. She just said that she thought maybe it could use a little bit of - that perhaps she could use some money to do some work on the house. Q: Did she talk again about leaving you something? --- Yes. Q: At this time did she mention any specific sum of money or specific object? --- No. HIS HONOUR: What time is this can I ask? MR PHILLIPS: Prior to her going to hospital? --- No, I used to always stop her. Q: Did Miss Tennent mention to you about wanting to leave some money to any other person? --- Alice Byers. Q: Who was Alice Byers? --- Alice Byers was the woman who used - who came and took her sometimes to see the eye doctor, even sometimes the medical doctor if the doctor wasn't called to Balwyn Manor, and she would also run little errands and get for her toiletries, biscuits, you know, tea, coffee, things that she wanted to have in her room. Alice had been really very kind to her and she wanted to leave her money but she was extremely concerned because she wasn't aware of her circumstances. She didn't know whether she was a pensioner or whether or not she actually did have sufficient means of her own. Q: Do you know how old Mrs Byers or Alice Byers is? --- No. I never inquired. That was the other problem that we had when we were discussing it because neither one of us actually knew how old she was. I suggested that Grizelda perhaps ask her but Grizelda felt that was very unladylike. Q: Did Ms Tennent sort of discuss a monetary sum with you as to what she wanted to leave Alice Byers? --- Yes, she worked out that - she didn't know how old she was but she didn't think she could live much longer than 10 years and it would be really nice to give her a gift for her birthday and a gift at Christmas time."

[69]

"Q: When you got there, what sort of condition did you find her? --- I couldn't believe it. She was really - she was sitting up and she was happy and she was cheerful, and we had coffee together and accidentally spilled it all over the bed sheets and everything, and she was just laughing. I mean, it was just like two little schoolgirls unfortunately, or fortunately. Q: How long did you stay with her for? --- Quite some time. Q: She was able to talk? --- Yes, she was. Q: After a while, did you talk about some serious matters? --- I showed her the personal list of chattels, and I can't remember whether she read it or I read it to her, but we were sitting quite close together, and I asked her if that's what she wanted and if that's what she wanted would she please sign it. Q: And is that what happened? --- Yes, she did. I also showed her the one that I typed out with Alice Byers, and said to her that that was my understanding of what she wanted, and she confirmed it. Q: Was there then some discussion about other matters? --- Yes. I was a little bit embarrassed because I was afraid somebody was going to overhear us - and maybe they did, I don't know - but she then wanted to discuss about leaving money to Libby. Q: Did she say how much? --- We discussed again, we went through the same things that we had gone through once before when she wanted to know if I knew how much Libby's house was and I said to her no, I didn't know what the house was worth - she lived in Mount Dandenong - and she decided that 400,000 would probably be adequate to assist her with the renovations and with Tim's ongoing education. Q: That was a figure that she told you; is that right? --- It's a figure she told me. MR SOUTHALL: Could I ask my learned friend not to lead, Your Honour. These are pretty critical matters. MR PHILLIPS: Did she then say anything else to you? --- Yes, she then said that she wanted me to have the same, and I - - Q: What did you say to that? --- Well, I just told her what I've always told her, that no, I can't do that, I can't accept it, I couldn't take instructions, I couldn't write the Will, I couldn't do anything, and she got really angry with me, which is the first time in all the time I've known her that she got really angry, and - and said that she was sick of it and to get her someone that would do it, because she leave her money the way she wanted to. Q: What did you understand her to mean when she said to get someone to do it? --- I assume she meant somebody from Trust Company or a solicitor or someone that could do it other than myself, because I said I couldn't. Q: You said that Miss Tennent became angry? --- Yes, she - - - Q: Perhaps you could describe how she became angry? --- She threw her arms and she said, "I'm tired of this, I want to leave you something, I should be entitled to leave my money the way I want to." She was just - she raised her voice. She's never raised her voice to me in the time I knew her, and I'd never heard her raise her voice to anyone else, she's such a lady." MR PHILLIPS: There's just a couple of matters I want to go back over from late yesterday afternoon. Do you remember I showed you Exhibit PD4 which was an e-mail that had been sent to you by Mr Dowel on 31 August 2000 giving you information as to Miss Tennent's assets? --- Yes. Q: That said that the asset position was something like $2.1m? --- I recall, yes. Q: Once you'd received that information, what did you do with it? --- I advised Grizelda of the information as she requested, but not at the hospital. Q: What did you tell Grizelda? --- I told Grizelda that I had received a response from Peter Dowel, and - I can't recall the figure that you quoted - but that her estate was around $2m. Q: During the course of that discussion, was anything said to you about the existing charitable trusts in the Will? --- Yes. Grizelda - we had gone through the fact that, of what she wanted, and then she said to me that she really wanted to leave her - the money to charity but to specific trusts, which I believe is something that she did quite some time ago before - when the original Wills were done, Nancy Ewart's Will was to set up a foundation, but that foundation originally had in it means, different charitable trusts that they wished to - the income to be provided for, so what that meant was that Trust Company would hold the capital in perpetuity but the income would go to those specific named trusts, charities within that trust. I think before in 1995 when I went out to see Grizelda, she wasn't all that - - - Q: I'm not concerned about 1995, I'm concerned about August 2000? --- Okay, my - sorry. Q: After you had that discussion with her, was anything else said that night about this charitable trust in Miss Ewart's Will? --- Yes, well, I just basically said to her, "Look, according to Nancy's Will, the foundation leaves the money in trust to be used for charities, but it was left up to Trust Company to decide which charities would receive that income", and that it's always been the practice that her money would fall into that foundation or form part of that foundation, and it would be quite awkward to administer if she wanted specific trusts, and Nancy only had - Nancy's was whatever, whomever Trust Company was to give the money to. Q: Did Miss Tennent make any decision that evening about what she wanted to do with the charities? --- She thought it was very sensible that it remain the way it is." [emphasis added]

[143]

* Cl. 3.01: she said that the "sketch" was currently hanging in her bedroom (ie, at Balwyn Manor). * Cl. 3.02: she said yes to each of the items listed in that sub-clause and, when the single diamond gold ring with diamond shoulders was mentioned, she pointed out to Mr Ryan and Ms Box that it was on her hand. * Cl. 3.03: she said that the three hand-painted cups were painted by a specified maternal ancestor (she specified the precise relationship but it was subsequently noted by Mr Ryan simply as being a "distant grandmother"). * Cl. 3.04: she described the shape, size and design of the blue and gold cups, and said that the set had been broken in the course of many moves by the family over the years. * Cl. 3.05: she confirmed this gift. * Cl. 3.06: she said that the footstool was located under a table in her unit in Balwyn Manor. * Cl. 3.07: she confirmed this gift. * Cl. 3.08: she asked Mr Ryan if he thought it (ie, the sum of $400,000) was enough, to which he replied that it was not for him to comment, but he asked her to confirm that this was a change from her previous wills and that she was happy with that change, and according to the Ryan-Box notes, this clause was "reconfirmed three times" by Miss Tennent, who also herself stated that the balance of her possessions were to be distributed by Libby (Mrs Fensham) at her discretion to members of the family. * Cl. 3.09: this clause was "reconfirmed twice" by Miss Tennent, who then said that both Libby Fensham and Cathy Daulizio had supported her for some years and, according to the Ryan-Box notes, "she spoke about them with clear affection and gratitude". Mr Ryan also testified, and I accept, that at some stage on 2 September, Miss Tennent said to him that Mrs Fensham had been good to her. Mr Ryan referred to the $50,000 difference between the gifts to Mrs Fensham and Ms Daulizio, at which time Miss Tennent said that the additional $50,000 was to be held by Cathy for distribution to her friend Alice Byers. Miss Tennent said that Mrs Byers had been a good friend over many years and often purchased sundry effects and groceries for her. She said that Mrs Byers was a fastidious type of person, and a careful manager of money. * Cls. 3.10 - 3.15: Miss Tennent confirmed each of these charitable gifts. * Cl. 4: Mr Ryan said that the balance of funds were to be utilised to establish The Nancy Ewart and Grizelda Tennent Trust, which was to be a charitable trust to be administered by Trust Company. Miss Tennent asked in substance "well, how much is there after all this?" and "what, sort of, would it do?" Mr Ryan told Miss Tennent that the approximate value of the estate was $2.2 million and the residual of the estate, after specific bequests, was approximately $1.3 million. Mr Ryan told Miss Tennent that when combined with the trust estate of her friend Nancy Ewart, that the total charitable trust would be approximately $1.7 million. Mr Ryan said that the $1.7 million value would be the equivalent of around 3 to 4 homes in Camberwell. Miss Tennent said that this would be a sufficient amount and said that this was to be her wish.

[168]

"Q: What are you able to say about your observations of Grizelda Tennent's ability to communicate with you throughout the period of time that you knew her? --- Grizelda was extremely articulate and extremely intelligent and well read. Q: Did you at any stage in the time that you had contact with her, observe any alteration in that state? --- No, physically Grizelda became more frail, but every conversation I had with Grizelda, she was cognitive, orientated, and it was clear - I clearly understood what she was saying to me and vice versa. Q: Are you able to recall the nature of the conversations, by that I mean the subject matter of the conversations that you had with Grizelda Tennent in your capacity? --- Very generally, she would talk about outings, she would talk about her family, she would tell me about her health, she would often ask my advice about her health. She would want to know what I was doing, very general conversations. Q: In relation to her family, are you able to be more specific about the nature of the discussions that you had with her in relation to her family? --- Once again, very general. She would talk about her family in Sydney, she would talk about the outings she went on with her niece. She would talk about - - - Q: Just stopping you there, when you talk about her niece, did she name her - - - ? --- Yes. Q: Who was that? --- Libby Fensham. She would tell me about the boys. She went - that's Libby's sons. She went to concerts. There were outings they had, and - - - Q: When you say they had, who are you talking about? --- They would come, the Fenshams would, or Libby and her sons, or Libby, would come and pick up Grizelda and it got less and less for Grizelda going to their place, but she would occasionally go up, and she would tell me about such outings. Q: When you say, "go up", go up? --- To the children's school. I remember once a concert that she told me about. I think one of them was musical. But generally she would tell me what she'd been doing since I last saw her. ... Q: Perhaps I'll put it to you this way. Is the fact that elderly people's minds sometimes deteriorate, a matter which you are - - - ? --- Very aware, yes. Q: I'm sorry? --- Yes, I am, and often it presents initially as some short-term memory loss. Q: Did you observe any of that in Grizelda Tennent? --- I honestly can't remember that I did. She always seemed to recollect things that had happened on that day. I can't remember really thinking that Grizelda is starting to develop short-term memory loss. Q: What is your practice if you observe in a person who's a resident at the institution such as Balwyn Manor, that they are demonstrating signs of say short-term memory loss or other mental deterioration? --- I suppose I would discuss it with their general practitioner. We would start to put strategies into place to help those residents fulfil their activities of daily living, such as prompting them at various times, perhaps helping them with getting them to write things down, being more aware of where they are and what they're doing. Q: Prior to Grizelda Tennent's death, did you ever put any strategy of that nature can you recall into practice? --- No. I did only see Grizelda for a period of time. To really observe short term memory loss you need to be looking after someone over a much longer period of time. Q: Well, was the day to day care of Grizelda Tennent in Balwyn Manor something which you concerned yourself with? --- Yes, especially with the initial residents like, you know, some of the residents that I had actually admitted a few years ago before. I'm sure the staff would have said to me when we had our discussions about what was happening at Balwyn Manor, would have told me if they considered Grizelda Tennent was developing some short term memory loss. Q: What period of time are you talking about there? --- At any stage after I'd left. ... Q: Just to make that clear, you did not notice any changes, is that what you're saying? --- No. Grizelda was more frail but she was just as cognitive and articulate as she had always been. Q: Did you discuss any matters with her other than her health in that period of time, I mean? --- I'm sure we talked about Nancy. I'm sure we probably talked about - we may have talked about Libby, but they would be very general, perhaps some other residents at Balwyn Manor, perhaps the staff, but nothing that I can specifically recollect."

[170]

(i) "As to the testator's capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility [ie. physical weakness], and yet he may possess sufficient understanding to direct how his property shall be disposed of..."[14]

(ii) "By the terms `a sound and disposing mind and memory' it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may formerly have done; for even this would disable most men in the decline of life; the mind may have been in some degree dehabilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory."[15]

(iii) "[The testator] must, in the language of the law, be possessed of a sound and disposing mind and memory. He must have memory... But his memory may be very imperfect; it may be greatly impaired by age or disease. He may not be, able at all times, to recollect the names, the persons, or the families, of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered... The question is not so much what was the degree of memory possessed by the testator as this -- Had he a disposing memory? Was he capable of recollecting the property which he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole... -- Were his mind and memory sufficiently sound to enable him to know, and to understand, the business in which he was engaged, at the time he executed his will?"[16]

[174]

"SIR J HANNEN, in summing up made the following observations on the subject of testamentary capacity: The sole question in this case which you have to determine is...whether [the testator], when he made his will..., was of sound mind, memory, and understanding. In one sense, the first phrase, sound mind, covers the whole subject; but emphasis is laid upon two particular functions of the mind, which much be sound in order to create a capacity for the making a will; there must be a memory to recall the several persons who may be fitting objects of the testator's bounty, and an understanding to comprehend their relationship to himself and their claim upon him. But for convenience the phrase "sound mind" may be adopted... . I must commence, however, by telling you what these words do not mean. They do not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives. ...Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will... I have said that we have to take care that effect is given to the expression of the true mind of the testator, and that of course involves a consideration of what is the amount and quantity of intellect which is requisite to constitute testamentary capacity...this is eminently a practical question, one in which the good sense of men of the world is called into action, and that it does not depend solely on scientific or legal definition. It is a question of degree to be solved in each particular case... I should wish to quote the words themselves of Lord Cranworth in Boyse v Rossborough [6 HLC at page 45] "On the first head the difficulty to be grappled with arises from the circumstance that the question is almost always one of degree. There is no difficulty in the case of a raving madman or a drivelling idiot in saying that he is not a person capable of disposing property; but between such an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon, but at what precise moment twilight becomes darkness is hard to determine." In considering the question, therefore, of degree large allowance must be made for the difference of individual character ... ...whatever degree of mental soundness is required for any one of these things, - responsibility for crime, capacity to marry, capacity to contract, capacity to give evidence as a witness, - ... the highest degree of all, if degrees there be, is required in order to constitute capacity to make a testamentary disposition...[b]ecause it involves a larger and wider survey of facts and things than any one of those matters... . ... The burthen of proof, as it is called, is upon those who assert the testator was of a sound and disposing mind. In considering the question, you cannot put aside the contents of, and surrounding circumstances connected with, the will."

[203]

"The relevant law is not doubtful. It may be thus stated:--(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v. Butlin; Fulton v. Andrew). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v. Batt, at p. 321; Tyrrell v. Painton; Shama Churn Kundu v. Khettromoni Dasi, at p. 16). (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v. Batt; Fulton v. Andrew). (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will (Barry v. Butlin and Fulton v. Andrew; per Lord Shaw in Low v. Guthrie, at p. 284). (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification (per Lord James in Low v. Guthrie). (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v. Butlin). (7) The doctrine that suspicion must be cleared away does not create "a screen" behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn L.C. in Low v. Guthrie)."

At a glance

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Judgment (268 paragraphs)

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Cases Cited (6)