The New South Wales Court of Appeal in Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 has found that a deceased person lacked the capacity to make her last three wills because she did not understand the extent of her estate and was not able to comprehend and appreciate the claims upon her estate.
Background
The deceased died in 2015, aged 90, having executed 5 wills, all of which had been professionally drafted.
By her first will, executed in 1990, the deceased appointed her husband as executor and made him sole beneficiary but provided that, if he and their son did not survive her, her estate should go to her son’s five daughters in equal shares.
By the time the deceased executed her second will, in June 2011, both her husband and son had died. By the June 2011 will, the deceased appointed H, one of her granddaughters, as executrix and gave her estate to her five granddaughters in equal shares.
The deceased’s three later wills were drafted by a new solicitor who came to be retained by the deceased after she had consulted another legal practice in relation to another matter. That other legal practice had sent a letter to the new solicitor informing him that a question had arisen as to the deceased’s personal affairs, that it appeared that the deceased’s will was out of date and that it had been suggested to the deceased that she should consult the new solicitor as his practice was closer to where she lived. The three later wills left the whole of her estate equally to two named charitable organisations and were as follows:
- A November 2011 will by which the deceased appointed her brother C as executor although C had died some nine years earlier. Although the whole estate had been left to charities, the will gave a power to the executor to apply money for the maintenance, education or benefit of any minor beneficiary.
- A 2012 will which was in identical terms to the November 2011 will except that the deceased appointed her surviving brother E as executor although he was in very poor health at the time and died less than a month later. The will retained the power given to the executor to apply money for the maintenance, education or benefit of minor beneficiaries.
- A 2013 will by which the deceased appointed the NSW Trustee and Guardian as executor (“NSW Trustee”). The power to apply money for the maintenance, education or benefit of minor beneficiaries was deleted but otherwise the will was in identical terms to the two earlier wills.
H sought a grant of probate in respect of the June 2011 will, or alternatively the 1990 will, asserting that the deceased had lost testamentary capacity following the execution of the June 2011 will. The NSW Trustee claimed a grant of probate in respect of any of the last three wills.
At first instance, the judge concluded that the deceased had capacity to make each of the last three wills. H appealed.
Decision on appeal
The Court of Appeal (Gleeson, Leeming and Simpson JJA) allowed the appeal and ordered that there be a grant of probate of the June 2011 will to H.
Legal principles and issues
The Court of Appeal noted that the formula for determining testamentary capacity was that stated in Banks v Goodfellow (1870) 5 QB 549 at 565 which was that a testator must:
- understand the nature of the act of making a will and its effects;
- understand the extent of the property of which he was disposing; and
- be able to comprehend and appreciate the claims to which he ought to give effect and, with a view to this object, that there be no disorder of the mind poisoning his affections, perverting his sense of right or preventing the exercise of his natural faculties, and that no insane delusion should influence his will in disposing of his property and bring about a disposal which, if his mind had been sound, would not have been made (at [112]-[113]).
The Court also noted that the criteria in Banks v Goodfellow were not matters that were directly medical questions but were matters for commonsense judicial judgment on the basis of the whole of the evidence. While medical evidence as to the medical condition of a deceased person might be highly relevant, and might sometimes directly support or deny a capacity in the deceased person to have understanding of the matters in the Banks v Goodfellow criteria, evidence of such understanding could come from non-expert witnesses (at [133]-[134]).
The Court of Appeal said [at [113]) that the critical issues in the case were whether the deceased understood the extent of her estate, and was able to comprehend and appreciate the claims upon that estate.
Onus of proof
H had submitted that the trial judge had failed to correctly apply the onus of proof and so had required H to prove incapacity rather than requiring the NSW Trustee to prove capacity.
The Court of Appeal said that, although the deceased’s November 2011 will was rational and there was clear proof that it had been duly executed, it was common ground that the presumption of capacity had been displaced, such that there was a shifting of the evidentiary onus onto the NSW Trustee which, as the propounder of the three later wills, had the burden of showing that the deceased had such capacity at the relevant time (at [26]; [114]). The presumption of capacity had been displaced because:
- the deceased had been confused at the time she gave the name of C as executor to the new solicitor and had probably also been confused when she executed the November 2011 will a month later;
- the will included an inappropriate power to apply money for the maintenance, education or benefit of any minor beneficiary; and
- given that the new solicitor probably believed that C was alive, this gave rise to further questions as to whether C was also in his 80s or 90s, what his life expectancy might be and what regard the deceased had given to any claims on her estate which he and his family (if any) might have (at [23]-[25]).
In the result, the Court of Appeal did not accept H’s submission that the trial judge had failed to correctly apply the onus of proof and found that the trial judge’s conclusions were not expressed to turn on onus but on the evidence as a whole (at [119]).
Knowledge and approval
H had also submitted that the trial judge had erred in finding that the deceased had known and approved of the three later wills. However, the Court of Appeal was satisfied that, in light of all of the evidence, the trial judge had been entitled to conclude that the deceased knew and approved of these wills. The Court said that the three wills identified the same beneficiaries, in each case in accordance with instructions recorded in a file note of the solicitor, and the simplicity and rationality of these dispositions supported the conclusion that the deceased knew and approved them (at [122]).
Testamentary capacity
The Court of Appeal, however, agreed with H’s submission that the trial judge had erred in concluding that the deceased had the capacity to make each of the three later wills.
The Court referred to a “series of unfortunate events” (at [124]) leading to the execution of the November 2011 will. These were as follows:
- Unchallenged evidence that the deceased’s decision to retain a new solicitor to draft the November 2011 will had been because her existing solicitors – who had drafted the June 2011 will – had told her that she needed to give them some sort of papers before they would do it. On one view, this suggested a measure of caution in advising an elderly client who wished to alter a recently made will so as to exclude all her surviving family.
- The terms of the letter from the other legal practice to the new solicitor that the deceased’s will was out of date, which suggested that the deceased had failed to disclose to that legal practice that she had executed a will only 4 months earlier in favour of her five granddaughters.
- As a result of the deceased’s decision to see the new solicitor, rather than her existing solicitors, there was no reason to believe that the new solicitor became aware of the change which the deceased had made to her will, substituting the two charities for the five granddaughters.
- The deceased’s nomination of C, her long deceased brother, as her executor (at [124]-[128]).
The Court of Appeal then questioned (at [129]) as to how evidence was to be adduced to demonstrate that the deceased had sufficiently understood the claims of her granddaughters when she was so mistaken in relation to her brother. The Court said that ordinarily such evidence would come from the solicitor who had prepared the will and might be along the lines of a file note to the effect that the deceased appreciated that she owned certain assets and that she was conscious that her new will would leave no assets to her grandchildren. However, the Court said that such evidence was “singularly unavailable” in the facts of the case. There was only a file note by the solicitor which contained brief instructions, mainly being the details of the intended executor and the intended beneficiaries. There were no other file notes in relation to the will, and neither the solicitor nor the other person who had witnessed the November 2011 will had any recollection of the circumstances in which it had been executed.
Finally, after conducting a review of the entirety of the evidence in relation to the making of the three later wills, the Court reached the following conclusions (at [158]; see also [130]-[156]):
- The trial judge appeared not to have had regard to significant portions of H’s unchallenged evidence of the deceased’s declining capacity.
- The trial judge appeared to have disregarded or given no weight to the opinion of the medical expert called by the NSW Trustee in relation to the November 2011 will which was that there was significant cognitive deficit. Both that expert and H’s medical expert were in substance of the view that they could not be satisfied that the deceased had capacity at this time.
- The trial judge formed a favourable view of certain lay witnesses called by the NSW Trustee who had given evidence to the effect that the deceased had presented as being attentive and alert around the time of the November 2011 will. However, none of these lay witnesses had discussed matters concerning the deceased’s estate and it was one thing for a person to convey the appearance of full cognitive competence in ordinary conversations; it was another for the person to have testamentary capacity. The evidence of these lay witnesses was unavailable in respect of the two later wills, or else was in stark contrast with the medical evidence, and with the largely unchallenged evidence of H.
- The trial judge erred in relying on the simplicity of the November 2011 will as probative of the deceased’s capacity. While the simplicity of the wills leaving her estate to two charities was relevant to a conclusion that the deceased knew and approved of her wills, it did not logically bear upon the issue of whether she had capacity to comprehend or appreciate the claims of her granddaughters. There was also the problem that the will itself named her long deceased brother as executor.
Accordingly, the Court allowed the appeal and ordered that there be a grant of probate of the June 2011 will to H.
