Vosahlo v Kantor [2003] VSC 81

5. Under the will, which was prepared by Dr Kantor, the deceased left $20,000 to Sokol Funds Management Pty Ltd, a charity concerned with the support of elderly persons of Czech origin in Melbourne, and the residue to Miloslav (Milos) Kruntorad, a friend of her late husband and herself.

8. The deceased was born in 1913 in eastern Europe where she married her husband, Bohumil Vosahlo, in 1945. After the war, the couple lived for some years in Africa until they came to Australia in 1952 or shortly before that. They had no children. Later, in 1952, Mr and Mrs Vosahlo were joined by his brother, Vladimir, and his wife, Vlasta, and their family. In 1955 the Vladimir Vosahlo family moved to Sydney.

11. Bohumil died in 1990 and, thereafter, the deceased lived alone in the family home at 24 Moffat Street, Brighton until she was hospitalised in March 2001, some months before her death.

14. Following the death of the deceased and the grant of probate, her niece, Blanka Marie Vidler, the daughter of Vladimir and Vlasta, and her sister, Jana Trankels, brought an application for further provision pursuant to Part IV of the Administration and Probate Act 1958 in proceeding No. 6666 of 2002. In the course of that proceeding, it emerged that the deceased had made an earlier will on 12 March 1996 under which she left one-third of her estate to her brother-in-law, Vladimir. He says that the discovery of this fact, together with his previous suspicions as to her testamentary capacity in May 1999, caused him to bring this proceeding. He said that he did not raise these doubts because he understood himself to have no interest in the estate. It was only when he discovered the existence of the earlier will which included him as a beneficiary that he took the matter further. Subsequent investigation undertaken on his behalf has, he says, shown his suspicions to be well-founded. The Part IV proceeding was abandoned on 4 December 2002 and struck out. This application was commenced a few days later, on 6 December 2002.

17. Prior to the 1996 amendment to the Administration and Probate Rules 1994, an application such as the present proceeded in two stages. The applicant was required to show a prima facie case for revocation in order to obtain an order nisi calling upon the executor to bring the probate into court and to prove the will in solemn form or to show cause why the will should not be pronounced null and void[1]. Under the current procedure the applicant proceeds by summons for an order revoking the grant of probate[2]. Although the rules make no provision for this, there is much to be said for the view that the applicant, if in a position to do so, should also seek probate of the last will or administration of the estate so that there is no hiatus in the administration. On the other hand, where the executor successfully resists the revocation application, at least where this is made in circumstances such as the present, it may be thought prudent to seek probate in solemn form as was done under the old practice.

20. It was submitted by each party that there lay upon the applicant an onus to show why he had not proceeded prior to the grant by lodging a caveat and, further, to prove that he had a prima facie case before I should, in effect, put the executors to their proof of the capacity of the deceased. It is not necessary for me to enter upon this question because, for reasons which I have already set out, the applicant has demonstrated to my satisfaction a good reason for not lodging a timeous caveat. Nor am I troubled in this case to enter upon the question whether the applicant has made out a prima facie case. He has, in the usual way, led his evidence impugning the capacity of the deceased, and the executors have led theirs in response. I see my task as to resolve this issue which, as will appear, is not an easy one. Furthermore, in the circumstances of this case, I place upon the executors the risk of non-persuasion on the ultimate issue, as they would bear that burden in the event of an application for probate in solemn form. In any event, the concern of the law that the estate of a deceased person pass only in accordance with the dictates of a valid will makes it important that I be satisfied that this will is indeed a valid one.

23. The legal requirements for capacity were not in issue. A propounder must show that, at the relevant time, the testatrix knew what she was doing and of the effect of her dispositions. She must know what estate she had to dispose of and what persons might have a claim upon her bounty[3].

26. I mention at the outset the argument that I should look upon the will as an unofficious document. I do not agree. It is true that the deceased omitted in it a gift to her brother-in-law and his family living in Sydney. I accept that there was nothing extraordinary in this for the reasons she herself gave. She omitted, too, her Czech cousins who had previously been beneficiaries. One of them had died since her last will in 1996; the other was apparently remote in time, distance and in her affections. Furthermore, such place as these beneficiaries may have had in her mind in 1996 was taken by Mr Kruntorad who was a friend and who did much for her.

29. The evidence showed that Dr Kantor, a solicitor of some 45 years' standing, had made four prior wills for the deceased - on 29 April 1990, 29 October 1990, 9 April 1992 and 12 March 1996, respectively. In each case, he and Mr Grossman were named as executors. As Consul for Czechoslovakia and later the Czech Republic, from 1990, he knew Bohumil who was, for some time, president of the Czech Sokol movement in Victoria and active in affairs of this charitable movement. Dr Kantor had made Bohumil's will also dated 29 April 1990 which was in similar terms to that of the deceased's will of the same date. Dr Kantor told me that he, too, is of Czech origin and was able to speak with the deceased and her husband in their native tongue. He said, and maintained this despite a challenging cross-examination, that when he took instructions and when she executed the will the deceased appeared rational and appeared to him to understand what she was doing. He was firmly of the view that she met the legal requirements for testamentary capacity.

32. Dr Kantor also knew the beneficiary under the 1999 will, Mr Kruntorad. Mr Kruntorad was also born in Czechoslovakia and was a member of the Czech Sokol Club in North Melbourne where he had been a cook. Dr Kantor knew that Mr Kruntorad was looking after the deceased.

35. I should add that, after the death of the deceased, Mr Kruntorad fell gravely ill and evidence was obtained from him for the purposes of the Part IV proceeding by affidavit and by oral examination taken on commission. He has recently died and, by consent, his affidavit and the video record of his examination is in evidence in this proceeding.

38. Against the will, the plaintiff marshalled a body of medical evidence much of which was not challenged. This evidence included that of Hilary Ann Hunt, a consultant neurologist, who saw the deceased in October 1997. Dr Hunt diagnosed her as having idiopathic Parkinson's disease and noted that she was somewhat vague and that her short-term memory was definitely impaired. This was said by Dr Gillies to indicate the presence of significant dementia.

41. William Robert Waddell was the deceased's general practitioner up to September 1998. Dr Waddell, too, observed in January 1998 that she suffered from confusion and short-term memory loss. He had a CAT scan taken which showed marked cerebral atrophy. In a letter of 3 July 1998 seeking to have her declared unfit for jury service, Dr Waddell described her mental condition as that of mild dementia. In affidavit he expressed the opinion that at that time she "would have had difficulty in comprehending facts, and difficulty in putting" two and two together "in a court of law". He was not cross-examined on behalf of the executors.

44. In May 1998, too, some 12 months before the making of the will, the deceased was assessed by two nurses. Carolyn Perkins on 15 May 1998 carried out an assessment for the Royal District Nursing Service and Julie Miriam Drechsler, an assessment officer with the Kingston Aged Care Assessment Service, carried out another assessment on 21 May. Ms Perkins tested her long-term memory and her short-term memory and noted that she was not "oriented to day/date/year" and could not give her house number or correct street. Ms Perkins noted that the deceased required assistance with normal living activities. Ms Drechsler's assessment was more comprehensive and it included a Mini Mental State Examination in which the deceased scored only 15 out of a possible 30 points. This score was also considered by Dr Gillies to indicate the presence of significant dementia. Mark Laurence Cunningham, a consultant psychiatrist, called by the executors, said it was indicative of "some degree of fairly established dementia" and later "almost severe dementia I suppose would be more correct". Ms Drechsler recorded that the deceased was alert but with a loss of initiative to attend to activities of daily living. She had word finding difficulties, poor concentration, was easily confused and was not attending to previous activities. She noted the poor short-term memory score on the Mini Mental test. She summarised the behaviour profile of the deceased in these terms: "Pleasant, sociable lady. Co-operative - very compliant". These assessments are consistent with Dr Waddell's observations and were not challenged on behalf of the executors.

47. Medical evidence of her condition in 1999 was also given by Karen Linda Price, her general practitioner from October 1998, and Louise Irene Fagan, an occupational therapist who assessed her, again on behalf of the Kingston Aged Care Assessment Service, for Aged Care Assistance on 5 July 1999, some six weeks after the execution of the will.

50. Ms Fagan noted her poor short-term memory, poor initiation and planning and that she was disorientated as to time. She did not initiate speech. She recorded, too, her behaviour profile as "cheerful open expression, co-operative - gentle nature". She remarked also that the deceased had poor apprehension. Ms Fagan completed an Aged Care Application form but permitted it to be signed by Mr Kruntorad, who was present. She did this, she said, because of her perception that the deceased lacked capacity to understand the document. She was not challenged on these observations.

53. Dr Price saw the deceased from time to time in 1999 including on one occasion on 21 May 1999 at the time she was giving instructions for her will. Dr Price noted that her ability to communicate with her patient was limited due to her primary language being Czech with only limited English. The doctor's report of 19 November 2002, which is in evidence, had been made without the benefit of her clinical notes but she recalled that, in general terms, the mental capacity of the deceased fluctuated. She, like the other medical witnesses, remarked upon the deceased's loss of short-term memory which was greater than her loss of long-term memory. The doctor agreed in summary with the observations of Dr Hunt in October 1997 with respect to her mental condition.

56. I pause to remark that I have no hesitation accepting the evidence of these medical witnesses. They were professional and disinterested and, although their opinions and assessments were directed to matters other than testamentary capacity, I found their observations and opinions of great value.

59. Dr Price was also asked to consider three aspects of the legal definition of testamentary capacity to which she responded based on her consultation with the deceased of 17 March 1999. Her opinion of the deceased as at that date was that, in general terms, she would have been aware of the nature, extent and value of her estate; that she would have been aware of those who might reasonably have a claim on her bounty, but that she would not have had the ability to evaluate and discriminate between the respective strengths of the claims of those persons. She added to this the caveat that this may not have been the position two months later, since the mental state of the deceased fluctuated. Dr Price was pressed in cross-examination about this inability to discriminate but she maintained her view.

62. The reports of these witnesses were then shown by the parties to three medical consultants with a request that they comment upon them and draw inferences as to the mental capacity of the deceased as at the end of May 1999. None of these consultants had seen the deceased. The two consultants retained by the applicant were Glenn John Sutcliffee, a consultant psychiatrist and psychogeriatrician, and David Gillies, a consultant neurologist. Both these witnesses concluded, with greater or less confidence, that the deceased lacked testamentary capacity at the relevant time. Neither of them was cross-examined on behalf of the executors, a fact much relied upon by counsel for the plaintiff. For the executors, the papers were submitted to Dr Cunningham who was called and cross-examined. Dr Cunningham's opinion was that the deceased probably suffered from vascular dementia rather than Alzheimer's-type dementia, although he said that the two were often present together in elderly patients. When asked, in the light of the material submitted to him, for his opinion about her lucidity at the time of the making of her will, he responded that the symptoms of dementia are known to vary from time to time, at least until it was a severe long-term condition. Even then she would have lucid intervals. Dr Cunningham added, rather unhelpfully for my purposes, that he assumed that she made her will during one of those intervals because Dr Kantor said he considered her to have capacity at the time. Under cross-examination, he agreed with many of the observations and opinions of Dr Sutcliffe and Dr Gillies. He did maintain, however, his opinion that the dementia was vascular in nature and was therefore likely to vary from time to time in its impact until it was well advanced. His opinion on this point is confirmed by the observations of Dr Price. As I have mentioned, his comment on the Mini Mental test score was that it indicated "some degree of fairly established dementia" and that it might be characterised as "almost severe dementia", a condition which would indicate a lack of testamentary capacity. Dr Cunningham agreed in general with the conclusions of Dr Gillies, that, as at May 1998, the material available "would be inconsistent with understanding and making rational legal decisions" but he would not accept that this meant that she was so afflicted at the time she made her will. He postulated the possibility of lucid moments notwithstanding the general continuous deterioration of her medical condition. He noted, too, that it was possible that her dementia appeared worse than it in fact was by reason of language difficulties.

65. I conclude from this that the burden of the medical evidence, which I accept, is that, at the time of making her will, the deceased suffered from significant dementia which was probably due to vascular degeneration, perhaps accompanied by Alzheimer's dementia. I conclude that she was unable in March and July of 1999 to make a rational decision affecting her property, and for that reason she lacked testamentary capacity. I accept the medical evidence that her condition was deteriorating generally but also that she might have had periods when her disability was less apparent. The medical evidence that her mental condition might fluctuate was consistent with the evidence of Mrs Nekvapil that it did and I accept this to be the case.

68. The case, then, resolved itself into the issue whether, notwithstanding her incapacity before and after the relevant date, the deceased had the necessary capacity on that date. I bear in mind that, in such a case, the executors bear a heavy onus of proof that the deceased acted at the relevant time in a period of temporary lucidity[4].

71. The evidence of four lay witnesses to a greater or lesser extent bears upon this issue. They are Mr Kruntorad, Kamila Nekvapil, a Czech speaking friend of the deceased for many years, both of whom confirmed that she enjoyed lucid intervals. There was also Patricia Ann James, a law clerk in Dr Kantor's office who witnessed the will and, most importantly, Dr Kantor himself.

74. Mr Kruntorad said he had been a close friend of the deceased since the 1960s. She was about the same age as his mother with whom he lived with his daughter in Wordsworth Street, St. Kilda. The deceased and her husband used to visit his mother frequently and he would see them there and take them for drives in the country. Some time after 1975, Mr Kruntorad took Bohumil to hospital when he became sick and generally helped him in his difficulties.

77. He said that shortly before Bohumil died, he asked his friend to look after his wife and Mr Kruntorad agreed that he would do so. Accordingly, Mr Kruntorad visited the deceased regularly over the succeeding decade. He used to cook for her, do her shopping and carry out errands for her and, generally, provide her with Czech speaking companionship. He said that from April 1999, when he stopped work, until February 2001 he used to go to her place daily and make her breakfast and lunch. Sometimes he slept there. For this she paid him $250 per month. He spoke of occasions when, on his arrival, he found that she had soiled herself. He would then clean her up, bathe her and generally look after her. He also held her power of attorney but did not use it.

80. Mr Kruntorad was asked about her mental capacity about the time of the 1999 will. He agreed that she suffered from short-term memory loss but said that her mental condition varied from day to day.

83. It was Mr Kruntorad who made the initial contact with Dr Kantor on 19 May 1999 for the making of the new will. It was he who accompanied her into the city on 26 May for the signing of the will. He said in his oral examination that he did not then know she was making a will and that he did not know that he was to be the principal beneficiary. When confronted with evidence to the contrary, he accepted that he knew these things. For these reasons and from my observation of his physical condition and demeanour during his out of court examination, I do not have a good deal of confidence in the accuracy of his recollection. But, for the most part, this is of no consequence because his evidence did not much deal with the testamentary capacity of the deceased, a matter not in issue when he gave evidence.

86. There was, however, one piece of evidence from this witness which is important. He said that, on the day before he took her to Dr Kantor's office to make the will, he told Dr Price of the appointment. It may have been on one of the doctor's periodic visits. He said that the doctor asked the deceased questions, apparently directed to her cognitive state. He swore that she answered all questions clearly. Doctor Price said she had no recollection of this incident and that her records show that it was on 21 May 1999 that she last saw the deceased before the date of the will. This presents a difficult conflict of evidence. My assessment of Mr Kruntorad was that he was in many respects an unreliable and defensive witness. On the other hand, I have no hesitation in accepting Dr Price as a reliable witness. Until very recently Dr Price's records showed that the last occasion before the making of the will that she saw the deceased was in March. It now emerges that she did indeed see the deceased on 21 May, the Thursday before the Tuesday on which she made the will. Assuming Dr Price's visit to be a routine visit, it may be that having been told that a will was in the course of preparation it would be prudent to make some enquiries as to her mental condition. It does not, however, appear that she did so at the request of Dr Kantor or that she reported any results of her assessment to Dr Kantor. On balance, I am unable to accept the evidence of Mr Kruntorad as to this incident.

89. Another person who visited the deceased in her later years was Mrs Nekvapil, who had known her since the early 1950s and who lived nearby. Mrs Nekvapil told me that she visited the deceased two or three times per week at the time of the making of the 1999 will. The assessment records of the three nurses who gave evidence show that she was present when the deceased was assessed in 1998 and 1999. It seems that Mrs Nekvapil, who was herself a widow, had had some business experience. She, too, held the power of attorney of the deceased. It was she who kept the deceased's bank statements, signed her cheques for the household bills and withdrew cash for her living expenses, including the monthly payments to Mr Kruntorad. She also arranged medical appointments for the deceased, home help and the like. It is clear from her evidence that, by 1999, her day to day business expenses were not being handled by the deceased.

92. Mrs Nekvapil was adamant the deceased knew her own mind in 1999. She was capable of and did make decisions, such as dealing with requests for charitable donations. She said that in May 1999 the deceased was alert and lucid and that she understood what was said to her and that she responded normally, albeit slowly. Like Mr Kruntorad, she observed at this time that her short-term memory was unreliable from time to time. In assessing her evidence, I have had regard to the possibility that the witness's recollection was affected by loyalty towards her friend. Indeed, her evidence that she visited the deceased two or three times per week at the time of the making of the 1999 will was seriously challenged by her acceptance of the fact that she was in hospital as a result of a car accident from 25 April 1999 to 25 May 1999.

95. Ms James, a law clerk employed by Dr Kantor, knew the deceased from her previous attendances at the office. She had, indeed, witnessed her four last wills from October 1990. She described her on 26 May 1999 as being a lot more frail than when she had last seen her in 1996. She told me that she had a short conversation with the deceased in which they exchanged pleasantries. She then took the deceased into Dr Kantor's office and left her there for about half an hour to three-quarters of an hour. During this time she overheard them speaking in Czech and in English. Later, she and the other witness to the will were called into Dr Kantor's office to be present at the execution of the document. She said Dr Kantor said to the witnesses in the presence of the deceased that he had read the will to her and that she understood what she was signing. The deceased acknowledged this to be the case. I accept her evidence.

98. The last witness to whom I refer and, by far the most important, was Dr Kantor himself. He expressed in strong terms his opinion that the deceased had indeed testamentary capacity at the relevant time. The reliability of his evidence was, however, affected by a number of matters.

101. First, it does not appear that he took any particular care to assure himself of her capacity notwithstanding her age and the evidence which I have accepted that she suffered from dementia which had been characterised as "almost severe". It seems that he sought no medical opinion or independent assessment. Indeed, his approach to his task appears to have proceeded on the assumption that she was unaffected by any mental disability at all.

104. Second, he saw her only once, on 26 May, when the will had already been engrossed. Her instructions were taken, rather unusually in the circumstances, in two or perhaps several telephone conversations. His ability in such conversations to form a view about her mental capacity was limited.

107. Third, Dr Kantor produced and relied upon diary notes dictated by him on 26 May after the execution of the will or perhaps on the following day from written notes which no longer exist. The diary note speaks of a telephone consultation on 19 May and one on 25 May. They appear to record these conversations and other acts of Dr Kantor relating to the preparation of the will. Dr Kantor said that there were other conversations with the deceased which were not recorded in these notes. When cross-examined about inconsistencies between his evidence and the note he said that the note consisted only of points to refresh his memory and was not a full and accurate record of events.

110. Fourth, as is often found in cases like this, it is clear that Dr Kantor appeared to view the attack on his client's capacity as an attack upon his professional competence and even his integrity. His concern about this was demonstrated, not only in the manner in which he gave evidence before me, but also in the manner in which he communicated with some of the medical practitioners late last year. This is understandable, but it means that I treat his evidence as possibly partisan in the sense that he appeared concerned to defend himself from these attacks.

113. Finally, Dr Kantor's account of the circumstances of taking instructions was vague and exhibited a degree of confusion to such an extent that I approach it with considerable caution.

116. This leads me to make the following findings with respect to the events concerning Dr Kantor. There were only two telephone conversations. In the first, on Tuesday 19 May 1999, the deceased told him of her wish to give all her property to Mr Kruntorad. In one or other of the conversations, Dr Kantor took his client through the 1996 will, asking her the reason why she wished to exclude her brother-in-law and her Czech relatives. She gave coherent reasons. Dr Kantor suggested that she make a bequest in favour of the Sokol charity in memory of her late husband and she agreed to think about it. Prior to Monday 25 May, the will was prepared, presumably including the bequest to Sokol. Dr Kantor telephoned her on that day, perhaps to make an appointment for her to attend for the execution of the will. In the course of this conversation he may have gone through the terms of the draft will, again by reference to her previous beneficiaries. Dr Kantor at this time made some disclosure as to the nature of his involvement with the Sokol charity.

119. On 26 May at his office, Dr Kantor took his client through the will. He read it to her in English with explanations in Czech. She appeared to understand the document and duly executed it.

122. Given the way in which Dr Kantor's evidence was given, I am not satisfied that these conversations were conducted in the manner which was not suggested to this elderly woman as to how she might dispose of her property. In this respect, I am mindful of the powerful medical evidence as to her mental infirmity.

125. I conclude, therefore, that I am unable to be satisfied that the deceased had the requisite testamentary capacity at the relevant time. Probate of the May 1999 will must therefore be revoked. I will hear counsel further as to the precise orders which should be made to give effect to these conclusions and to consequential orders which should be made to ensure the proper administration of the estate of the deceased.

[1] Carlisle v Wills [1963] VicRp 78; [1963] VR 583 at 584, per Gowans J.

[3] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 566-7, per Knox CJ and Starke J.

[4] In the Will of Alice May Ivory (unreported, 14 February 1995, SC Vic, Eames J at p. 14).