Some aspects of the practical operation of litigation relating to deceased estates
Some aspects of the practical operation of litigation relating to deceased estates[1]
To cut down on wordiness in this paper, I shall proceed on the assumption that all people making wills are male, and all people seeking probate of wills are female.
There are two basic types of grants of probate -- grants in common form, and grants in solemn form. The vast majority of grants of probate are grants in common form.
Administrative Organisation of the Probate List
The Probate List in the Supreme Court contains both proceedings seeking grants of probate in common form, and proceedings seeking grants of probate in solemn form. The Probate List is organised administratively so that there is a Probate List Judge, who has ongoing oversight of the list and deals with most of the interlocutory disputes and short matters which arise in the list. Windeyer J is presently the Probate List Judge. It is also usual for there to be, without there being any formal appointment, a comparatively small group of other judges who deal with interlocutory problems or short matters concerning probate matters if for any reason it is inconvenient for the Probate List Judge to do so. At present Young CJ in Eq and I fill that role. Final hearings which are not short concerning probate matters could be heard by any judge in the Equity Division.
There is a Probate List in which matters are listed for hearing every Monday during the law term. The vast majority of probate matters never appear in any Monday list, because they can be dealt with administratively, on the papers. It is only those matters in which there is a prospect of there being some contention, or a need for directions which cannot be adequately dealt with by the Registrar making requisitions, which are listed in a Monday list.
There are two parts to a Monday probate list. One part is returnable before the Registrar, and another is returnable before the Probate Judge. Broadly, the Registrar deals with those applications which are within his own power, and supervises the preparation of applications which are not within his own power, or which for any reason he decides are appropriate to be dealt with by a judge. The Registrar has a very broad range of powers concerning the matters which are listed in the Probate List: Part 78 Rule 5 Supreme Court Rules 1970. Whatever is not in the Registrar’s list is in the Probate List Judge’s list. If a matter is listed in the Registrar's list, and he decides it is appropriate to be referred to the Probate List Judge, it is frequently referred on that same day.
Grants in Common Form and Grants in Solemn Form
A grant in common form is made by the Registrar, following a hearing on papers conducted in Chambers. The grant takes the form of an order of the Supreme Court. Thus it provides a valid authority to the executrix who is named in it to deal with the assets of the estate, and exercise all the powers of an executrix. It is, however, inherently revocable. If it is revoked, dealings with third parties which have been conducted on the strength of it are valid -- thus, if a legal personal representative appointed by a grant in common form pays a debt, or receives a debt which was owing to the deceased, or compromises a claim against the estate, those dealings are valid even after the grant has been revoked: cf Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534; (2005) 192 FLR 92 at [19] – [20].
If a distribution to a beneficiary is made, and the grant is later revoked in circumstances where it turns out that that beneficiary ought not have been paid (as happens, for instance, if a later, and different, will is found to the will which has been admitted to probate) then that beneficiary will have a personal obligation to repay the money received, or reconvey the property distributed in specie: Re Diplock; Diplock v Wintle [1948] 1 Ch 465. As well, because the overpaid beneficiary received the distribution as a volunteer, it will be possible to trace into any property still in the hands of that beneficiary and into which the distribution has been converted, and recover that property in specie: ibid, at 516ff.
A grant in solemn form aims to decide finally, and as against the whole world, whether a particular will is the last valid will that the deceased executed. If that aim is successfully achieved, then on the issue of whether a particular will is the last valid will that a deceased executed, a grant in solemn form is not revocable. But there are numerous exceptions to the finality of a grant in solemn form. Mason and Handler, Wills Probate and Administration Service New South Wales para [6061] list some of the circumstances in which these exceptions arise as:
“(a) a later will is subsequently discovered (cf Clyne, “Revocation of Probate Granted in Solemn Form" (1959) 33 ALJ 232);
(b) it later emerges that the testator married after the execution of the will (cf s 15 [1057]) or that the testator's marriage was terminated after execution (cf s 15A [ 1058])
(c) the judgment was obtained by fraud: Birch v Birch [1902] P 130;
(d) there was some procedural irregularity or unavoidable accident which prevented the party opposing from taking part in the proceedings: Re Barraclough [1967] P 1; In the Estate of Langton [1964] P 163; and see Pt 40 r 9 of Supreme Court Rules 1970."
As well, and most importantly, a person who has an interest in whether a grant is made in a particular estate but does not have notice of the proceedings, and a person who has notice of the proceedings but does not at that time know facts which gave him or her an interest, is not bound by the grant: Young v Holloway [1895] P 87; Osborne v Smith (1960) 105 CLR 153 at 158-9; In the Estate of Langton, dec’d [1964] P 163. Further, a grant in solemn form can be revoked if, for instance, the executrix misbehaves, but in that circumstance the appropriate remedy is to make a grant of letters of administration with the will annexed, concerning the will which has already been decided to be the last valid will which the deceased made.
Because of these exceptions to the finality of a grant in solemn form, both the Court, and the litigants, have an interest, before a grant in solemn form is made, in achieving as high a level of confidence as is possible that everyone who has an interest in the outcome has had the opportunity to be heard. There are two types of procedural step that aim to achieve this.
Caveats
The first type of procedural step which aims to ensure that a probate suit is properly constituted applies in a situation where someone believes that a grant might be sought in a deceased estate, in which that person claims to have an interest. Such a person can lodge a caveat in the registry of the Court, under the power conferred by section 144 Wills Probate and Administration Act 1898.
After the enactment of the Supreme Court Act 1970, there were two different types of caveat:
(1) A caveat requiring proof in solemn form of a will may be lodged under Part 78 Rule 62 Supreme Court Rules 1970. (Part 78 Supreme Court Rules 1970 continues to govern probate matters notwithstanding the enactment of the Uniform Civil Procedure Rules 2005.) That type of caveat is one which entitles the caveator to raise any matters which go to due execution of the will: Hay v Simpson (1890) 11 NSWLR 109, 114-115; Beatson v Perry (1906) SR 167, 168, 169; 23 WN 51, 52; Hughes v Public Trustee 19th August 1980 Court of Appeal (unreported) at 2 of Transcript of Judgment per Hutley JA; Azzopardi v Smart (1992) 27 NSWLR 232 at 236-238; Hastings and Weir: Probate Law and Practice 2 Ed. (1948) 322. It has been held that an allegation of forgery is one which goes beyond challenging due execution: Ragany v Pusztai (Powell J, 19 June 1992, unreported). As Powell J put it in Gurr v Harris; the Estate of the Late Ethel Williams Simmons deceased (18 September 1992 unreported):
“ … a Caveator seeking only proof in solemn form is limited to putting due execution in issue, and to cross examining the attesting witnesses as to that issue; such a Caveat does not, as most practitioners seem to believe, confer on the Caveator some form of roving commission entitling him, even in the absence of evidence, to raise any, and every, ground of invalidity which may take his fancy.
(2) A general caveat is lodged under Part 78 Rule 61 Supreme Court Rules 1970. Any person who claims to have an interest in the estate may lodge such a caveat. A caveat of this kind requires that no grant of probate or reseal be made in the estate without prior notice to the caveator. It is this type of caveat which must be used to raise any issues going to the validity of the will other than lack of due execution. Thus if, for instance, someone wants to allege that a will is invalid because the testator lacked testamentary capacity, a general caveat must be lodged.
Since the enactment of the amendments to the Wills Probate and Administration Act 1898 which allowed informally executed documents to be admitted to probate, there has also been a third type of caveat, whereby a person who claims he or she would be affected by a grant of probate of an informally executed document requires that no grant of probate of such a document be made without that person being given an opportunity to be heard: Part 72 Rule 62A Supreme Court Rules 1970.
All caveats stay in force for six months from the date of lodgement, unless the court extends the period of the caveat: Part 78 Rule 63 Supreme Court Rules 1970. As well, the caveator can sometimes withdraw the caveat (Part 78 Rule 64-67), or there can be contested interlocutory proceedings about whether the court should order that the caveat cease to be in force (Part 78 Rule 69).
It is an essential requirement of a valid caveat that the caveator have an interest in the relevant estate. As Powell J put it in Westall v Morton; the estate of Nita Helen Morrisey deceased (18 September 1992 unreported):
“ … 1. although the provisions of s144 of the Wills Probate and Administration Act 1898 ("the Act") would seem to indicate that it is open to any person to lodge a Caveat, it is to be remembered that Probate litigation is what might conveniently be called "interest litigation", it following that a Caveator must show that he has a relevant interest in the Estate of the relevant deceased (see, for example, Bascomb v Harrison (1849) 2 Rob 118; 163 ER 1262; Bull v Fulton (1942) 66 CLR 295, 337 per Williams J; Re Devoy; Fitzgerald v Fitzgerald (1943) QSR 137; Hughes v Public Trustee 19th August 1980 Court of Appeal (unreported) at 2 of Transcript of Judgment per Hutley JA;
2. put compendiously, a Caveator will show a relevant interest if he is able to show that his rights will, or may, be affected by the grant (Re Devoy; Fitzgerald v Fitzgerald (supra)). Thus, the executor of, or a beneficiary under, another Will than that propounded has a relevant interest in the Estate of the relevant deceased, as also do the next of kin, unless there are other Wills than that sought to be propounded, the validity of which other Wills is not impugned. However, a creditor does not have a relevant interest unless he has obtained a grant of administration (Burroughs v Griffiths (1754) 1 Lee 544; 161 ER 201; Dabbs v Chisman (1810) 1 Phill 159; 161 ER 946; Menzies v Pulbrook (1841) 2 Curt 845; 163 ER 605).”
There is further consideration of what counts as a relevant interest in Mason & Handler, Wills Probate and Administration Service New South Wales, para [1677.4].
A caveator who has filed a general caveat is expected, on the return of a summons for an order that the caveat cease to be in force, to have available for filing evidence demonstrating how the interest the caveator claims arises, and raising a prima facie case of the grounds of invalidity relied upon; if that evidence is not available it is likely that the caveat will be ordered to cease to be in force, with costs against the caveator: Beatson v Perry (1906) 6 SR 967; In the Will of O'Driscoll (1929) 29 SR 559; Ragany v Pusztai (Powell J, 19 June 1992, unreported, but accessible online in Butterworths unreported judgments).
The caveat is a document lodged in court, in connection with court proceedings which are on foot or anticipated (i.e., the grant of probate of the will to which the caveat relates) and might result in interlocutory proceedings to have the caveat cease to be in force. Thus, a lawyer acts properly in making allegations of impropriety in a caveat only if the lawyer has the same sort of basis for making those allegations as would be needed to make corresponding allegations of impropriety in a pleading: Campbell, “The Purpose of Pleadings” (2004) 25 Australian Bar Review 116 at 125 ff. It follows that no lawyer should be involved in lodging a caveat on a speculative basis, in the hope that some evidence on which it could properly be supported in court might turn up. Practitioners might read the decision in Ragany v Pusztai to appreciate the stringency of the criticism with which their conduct might be met if they ignore these precepts.
Citations
The second type of procedural step which aims to ensure that a probate suit is properly constituted is the issuing of a citation.
There are two different types of citation concerning wills. One of them is used if a person is named as executrix in a will, but is not taking steps to obtain a grant of probate of that will. In that situation, a person who has an interest in probate of that will being granted can cause a citation to take probate to be issued: section 69 Wills Probate and Administration Act 1898, Part 78 Rule 52 Supreme Court Rules 1970. If an executrix named in a will is not seeking probate of it, a citation to seek probate can also be issued by a person who has an interest in establishing that that will is not valid, so that probate of a different will may be obtained or so that it can be established that the deceased died intestate. In the latter of these situations, it would be appropriate to ensure that other claims were made in the suit, by cross-claim, so that all questions arising about who was entitled to a grant of representation were decided in the one suit.
If there are contentious proceedings for a grant, any party to those proceedings can apply to have a person who is not presently a party, but who has an adverse interest to that of the applicant, to be issued with a citation to see the proceedings: Part 78 Rule 53 Supreme Court Rules 1970. One common situation in which this type of citation is issued is where an executrix named in a will wishes to seek a grant, and wants to ensure that some person whose interests might be affected if a grant were to be made is bound by the court's decision. One sort of person who might fall into that category is someone who is named as either executrix in, or beneficiary under, a will that the deceased made, but which is not the will of which the executrix is seeking probate. Such an alternative will might be an earlier will, or a later will, than the will of which the executrix is seeking probate, or it might be an informal document which might possibly be the subject of a grant under section 18A. Another sort of person who might fall into that category is someone who would take on intestacy, if it were to turn out that the deceased had left no valid will at all. A citation to see proceedings can be issued other than by an intending executrix, however -- anyone who is already a party to the proceedings can issue such a citation.
When a person has been served with a citation, they have a period of time within which to elect whether to become a party, or to be bound by the result if they choose not to become a party: Part 78 Rule 53, 54 Supreme Court Rules 1970.
Administrative and Contested Grants of Letters of Administration
Any grant of letters of administration on intestacy is a grant by the court, and there is no distinction drawn between grants in common form and in solemn form, so far as that type of letters of administration are concerned. Even so, that type of letters of administration might issue as a result of a "hearing" on the papers and in Chambers by the Registrar, or following a contested hearing.
Further, it is possible for there to be a grant in solemn form of letters of administration with the will annexed, if a will has been proved in solemn form, but the will does not appoint an executor, or for any reason the appointed executor is unwilling or unsuitable to act.
In relation to proceedings for a grant of letters of administration, it is also possible for a person who has a claim to be granted letters of administration to have a citation issued to anyone who has a superior title to obtain a grant of administration, requiring that person with a superior title to pray for administration: Part 78 Rule 51 Supreme Court Rules 1970.
Practical messages concerning constitution of a probate suit
Usually, the Registrar will not allow a contested probate matter to be fixed for hearing unless he is satisfied that he is aware of all the various realistic claims there might be concerning what is the last valid will of a particular testator, and that all appropriate people have been cited or are otherwise joined to the suit. However, leaving it to the Registrar to sort out the constitution of the suit could cause delay. It is more efficient if you work out yourself, as best you can, who ought be parties to the suit, and make sure that all those parties are cited or in some other fashion bound to the result of the proceedings.
As explained earlier, the lodgement of a caveat can give rise to an interlocutory hearing, in a piece of probate litigation, about whether the caveat should remain in force. In the ordinary course of things, an application that a caveat not remain in force is made by a motion, returnable before the Registrar. Such applications are, if possible, referred by the Registrar to the Probate Judge on the return day. The practical message for applicants in such a case is: make sure that you have all the evidence that you need for your application prepared in sufficient time before the first return day. The practical message for respondents in such a case is: have your evidence prepared and be ready to argue the case on the return day, as the Registrar will refer it if he can.
Applications for probate concerning informal wills
Where a person died after 1 November 1989 leaving a document which purports to contain testamentary intentions, probate of that document can sometimes be granted under section 18A Wills Probate and Administration Act 1898 even if the execution of that document has not been carried out in the way that section 18 Wills Probate and Administration Act 1898 requires.
There are special provisions under Part 78 Rules 34E – 34J Supreme Court Rules 1970 to achieve a high level of practical assurance that all people whose interests might be affected by the granting of probate of an informal will are bound by it. Those procedures require the filing of the consent of an affected person, or the service of a notice, in a particular prescribed form, upon that person, or else a decision by the Court that consent, or service of the notice, can be dispensed with. If a person upon whom one of these notices is served does not consent to the granting of probate of the informal document, that person can become a defendant in contested litigation. These rules are designed to achieve the same practical objective as the issuing of citations, but they achieve that practical objective by a different procedural means.
If the procedures have been gone through to get the suit properly constituted, and the evidence is in proper form, and there is no opposition to the grant, the Registrar will endeavour to refer a section 18A application to the Probate Judge on the first return date. The practical message is: try to have such applications ready on the first return date.
What needs to be pleaded and proved in contested proceedings -- interaction of onus, presumptions, and pleadings
In probate litigation there is a complicated interaction of the law concerning onus of proof, presumptions, and pleadings.
This is not the place for a full exposition of those topics. The statements of legal principle concerning what needs to be proved, and onus of proof, that are repeatedly referred to are those contained in Bailey v Bailey (1924) 34 CLR 558 and Estate of Hodges, dec’d; Shorter v Hodges (1988) 14 NSWLR 698 at 704 - 707. The whole question of what needs to be established for testamentary capacity has recently been helpfully reviewed by Burchett AJ in Donato v Mangravite, Estate of Donato [2005] NSWSC 488. What I intend to deal particularly with is how onus of proof and presumptions affect pleading.
While it is necessary, if there is an issue about it, for the person propounding a will to prove that the testator knew and approved of the will, and had capacity to make a will, and intended the particular document which was actually executed to operate as his will (had animus testandi, in the Latin tag sometimes used) those matters would usually be presumed, through the operation of a presumption of fact, if an instrument appears on its face to be regular, and to have been regularly executed. Williams Fullagar and Kitto JJ in their joint judgment in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 at 180 said:
“The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.”
Ordinarily, in a statement of claim seeking probate in solemn form, a plaintiff should plead the death of the deceased, that the deceased left property in NSW, the facts by which the plaintiff claims entitlement to the grant, the execution of the will, the attestation of the will, and advertisement of the application. A precedent for the form of a statement of claim is contained in Mason and Handler, Wills Probate and Administration Service, New South Wales, Para [6081]. (The English form of statement of claim, a precedent of which is in Tristram & Coote’s Probate Practice, 19th ed 1946, p 1160, is even briefer than this, and is not recommended.)
It is not the usual practice for the plaintiff to plead in the statement of claim either testamentary capacity, or that the testator knew and approved the contents of the will, or that the testator executed the document intending it to be his last will. The reason for proceeding this way is that, if a defendant were to not admit those allegations, the pleadings could thereby give rise to a false issue. However, if a plaintiff is in a situation of recognising at the outset that there is going to be an issue about, for instance, capacity, or knowledge and approval, it can sometimes be appropriate to include those allegations in the statement of claim. One situation where the plaintiff might recognise the inevitability of such an issue is where the will on its face was bizarre.
The common sense of proceeding in this way, to ensure that only real issues are fought, is quite clear. As well, I think that a justification for this practice which has grown up can be found consistently with the rules of pleading. There is a pleading rule, contained in Rule 14.11 Uniform Civil Procedure Rules 2005, that:
If it is a condition precedent necessary for a party’s case in any pleading that:
(a) a thing has been done, or
(b) an event has happened, or
(c) a state of affairs exists, or has existed at some time or times, or
(d) the party is ready and willing, or was at all material times ready and willing, to perform an obligation,
a statement to the effect that the condition has been satisfied is taken to be implied in the party’s pleading.
It seems to me that it is possible to regard knowledge and approval, capacity, and animus testandi as conditions precedent to the case of a person seeking to propound a will. Thus, allegations of these matters are taken to be implied in a statement of claim seeking probate.
There are two other pleading rules that are relevant here. Rule 14.14 Uniform Civil Procedure Rules 2005 includes:
(2) In a defence or subsequent pleading, a party must plead specifically any matter:
(a) that, if not pleaded specifically, may take the opposite party by surprise, or
Rule 14.26 includes:
The effect of those two last mentioned rules is that, if a defendant in a suit for probate in solemn form wishes to contest knowledge and approval, capacity, or animus testandi, the defendant should raise that issue in his or her defence. If the defendant does not raise the issue in his or her defence, the implied allegations concerning those three matters will be taken to be admitted.
The situation concerning pleading of these matters is, it seems to me, closely analogous to the situation concerning pleading a statement of claim for breach of contract. There, a plaintiff does not plead that the contracting parties had capacity to enter a contract, even though capacity to enter a contract is a legal pre-requisite to there being a contract, and if the defendant were to deny that any contracting party had capacity, the legal onus of proving capacity would lie on the person alleging the contract had been entered.
The situation concerning the pleading of capacity, knowledge and approval, and animus testandi differs, it seems to me, from the situation concerning the deceased having died leaving property in New South Wales. For the deceased to have died leaving property in New South Wales is a necessary condition for the Supreme Court of New South Wales to have jurisdiction to make a grant at all. In this way, dying leaving property in the state is more than a mere condition precedent to a cause of action.
There are professional constraints on lawyers being involved in the raising of baseless allegations in pleadings. Any contesting, in a defence, of knowledge and approval, capacity, or animus testandi would need to be done within the confines of those professional constraints.
If, notwithstanding those constraints, a defendant raised an issue of knowledge and approval, capacity, or animus testandi, and presented absolutely no evidence on those topics, and the will looked regular on its face and appeared to be regularly executed, the operation of the presumptions of fact mentioned earlier would ordinarily be sufficient to enable those issues to be treated as proved. (In a similar fashion, if a defendant to an action for breach of contract alleged that the plaintiff lacked capacity to enter a contract, but presented no evidence on that topic, the factual presumption of capacity of an adult person would suffice to discharge the plaintiff's legal onus of establishing the issue so raised.)
However, if the defendant raises some evidence to show that there is a real question concerning any of capacity, knowledge and approval or animus testandi, the onus of proof of establishing them lies on the person propounding the will.
Testamentary capacity cf knowledge and approval of the will
Deciding whether a person has testamentary capacity is deciding whether he has the mental skills needed to be able to make a will. Before probate is granted, there can also be a separate and different question, to do with whether, if the testator has testamentary capacity, that capacity was in fact exercised on the occasion of making the will in question. That separate and different question concerns whether the testator knew and approved the contents of the will. To know and approve the contents of the will involves the testator understanding the terms of that particular will, and deciding that he actually wants it to be his will. Understanding that matter, and deciding that matter, are both mental acts of the testator, and are particular exercises of the capacity to make a will.
The way one proves knowledge and understanding is, usually, by proof
- Of testamentary capacity (if that is in issue),
- that the will was read over to the testator,
- that to the necessary extent was explained, and
- that his response was the type of response that a person who understood it would give.
If the will in question is a really simple will (for instance, one which just appointed an executrix, and then makes a handful of gifts without any complications like substitutionary gifts, and where there are no special powers conferred), and there is no reason to believe that the mental faculties of the testator might be impaired in the slightest, it might sometimes be sufficient to show that the testator was given the opportunity to read the will to himself, and appeared to understand it, and said that that was what he wanted. However, if there is the slightest doubt about these things, by far the most satisfactory way of establishing that a testator really understood the will is by showing that it was read out aloud, explained orally, face-to-face. If the case is one where knowledge and approval were in issue but testamentary capacity was not, it might be prudent to also give evidence of the circumstances of giving instructions for the will.
Proof of testamentary capacity
Deciding whether a particular testator had testamentary capacity is a decision about a question of fact. It is the type of factual decision which is a conclusion, a judgment based on a variety of pieces of evidence.
The factual matters that are relevant to the court's ultimate judgment about whether a person has testamentary capacity can be influenced by some matters of law, about the nature and manner of operation of a will. One important such matter of law is that the will disposes of the property of a deceased person after death. However, there are far more matters of law than that which are relevant to the manner of operation of a will which can bear upon questions of testamentary capacity. They include that a will is a document that operates from death, is revocable until death, is able to revoke prior wills, is able to appoint an executrix (i.e. a person who will have certain duties, powers and discretions that the law automatically confers on an executrix concerning the collection and distribution of the deceased's property), that it can confer special powers on an executrix that the executrix does not automatically have, and that it can limit the operation of certain powers that the executrix would automatically have if the will did not say otherwise. Whether all of these matters are relevant to a decision about whether a particular testator had testamentary capacity will depend upon the particular will that he has made.
The question of whether a person has testamentary capacity is one that is asked as at a particular time, namely the time when the will is made. More particularly, it is the time of giving instructions for a will -- if a person has capacity at the time of giving instructions, but deteriorates mentally between that time and the time of execution, the will can be valid if at the time of execution the testator can understand that the document being executed is the document he instructed be prepared, even if he would not be capable of giving those instructions afresh.
The question of testamentary capacity is posed in a general way -- does the person have capacity to make a will. That is because the exercise of making a will involves being able to make choices between the alternative wills that that person might make. But, like many legal questions, how one goes about answering the question of whether a person has legal capacity is influenced by the purpose for which the question is being asked. In the context of a probate suit, that purpose is deciding whether a particular document that the testator in question has executed is a valid will. So the choices likely to have been involved in making that particular will are of particular importance.
The usual authority quoted concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549 at 565. There Cockburn CJ said:
“It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
That passage is quoted repeatedly in later cases.
But one needs to remember what it is. First, it is a statement made in a case where the testator suffered from a serious mental illness, and the question was whether that illness had influenced his will making. That is not the usual context in which, these days, questions of testamentary capacity arise. Concerning the more usual situation, Cockburn CJ said at 566:
“It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause — namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains …”
He approved, at 566-7, the following passage from a New Jersey case:
“…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, and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending business in some measure new."
Cockburn CJ's own conclusion, at 569, concerning testamentary capacity where people were not mentally ill but had impaired mental power was:
“… the standard of capacity in cases of impaired mental power is, to use the words of the judgment, the capacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding.”
Second, the much quoted paragraph from Banks v Goodfellow is not a set of propositions of law. The relevant proposition of law here is a very simple one, namely that to be valid a will must be the will of a free and capable testator. Whether any particular testator is a capable testator is a question of fact.
Third, what Banks v Goodfellow provides is a set of factual guidelines, a reminder of what facts usually need to be established to conclude that a testator was capable. It is nothing like a set of necessary and sufficient conditions for proving testamentary capacity. There are some things that, in relation to a particular will, Banks v Goodfellow does not mention at all -- e.g. it does not consider the identity of the executrix, and it does not consider the powers conferred upon the executrix. If a particular will appointed a particular person as executrix, and conferred a significant power of advancement on the executrix relating to a gift in favour of that executrix’s children, a question could arise of whether the testator had the capacity to understand those provisions adequately.
Fourth, there is also some imprecision in how the guidelines in Banks v Goodfellow are stated -- to understand the "extent" of assets, it is not necessary for the testator to be able to list every stock in his share portfolio and its value -- but how much short of that is good enough? Is it enough if a testator knows his parents left him some shares? Banks v Goodfellow does not answer questions like these.
To some extent there is a policy judgment involved in where the line is to be drawn, about how much understanding of assets will be required before, as an application of a judge-made law, a person ought to be deprived of the ability to make a will. As well, this is a situation where ostensive definition has a role to play in the law [2] -- by seeing practical examples of how judges have actually applied the standard one comes to an understanding of what degree of detail is needed for a person to understand the “nature and extent" of his assets, for the purpose of having testamentary capacity.
It is at the level of policy that there has been a change in how Banks v Goodfellow is applied, as a result of particular social changes. The relevant social changes involved here are the greater tendency of people to live to an old age, a greater tendency of people to end their lives with some measure of mental deterioration, and changes in the type of assets that people own.
That change was recognised by Windeyer J in Kerr & anor v Badran & anor Estate of Badran [2004] NSWSC 735 (17 August 2004), where his Honour said:
“49 In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing “the extent” of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life. The decision of Gleeson CJ in Estate of Griffith dec’d; Easter v Griffiths (unreported NSWCA 7 June 1995) must be kept in mind where he said:
”The formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to disclose one’s assets by will is an important right, and a determination that the persons lacked (or, has not been shown to have been possessed) a sound disposing mind memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult.”
This, of course, was a case of alleged delusion, but the general requirement for care is involved in all contested probate actions. Although he was in dissent, Kirby P in paragraph 8 of his judgment, emphasised the need for caution and stated that medical evidence must be carefully looked at to ensure that it was considered in light of the relevant test and not what the medical expert using medical terminology considered to be the legal position.
50 Next it is important to bear in mind the decision in Worth v Clasohm (1952) 86 CLR 439. This explained that in a case where a doubt as to capacity is raised – thereby as explained in Shorter, satisfying the evidentiary onus on the defendant, the onus passing to the propounder to satisfy the court that the will propounded is valid – this does not mean that a doubt is enough; the doubt must be such that the court considers it sufficient to prevent its finding for the will propounded.
There are three types of evidence from which a decision about testamentary capacity is made. One type -- and a very important type -- is incidents that can be recounted by people who knew the testator around the time of the making of the will, where the incidents show either a failing, or a success, in some task relevant to mental capacity. The most important example of this is evidence from the solicitor who took instructions for the will. If a solicitor taking instructions for a will is doing the job properly, the solicitor will see the testator personally, and alone, and will discuss all the topics that need to be considered when making the will. The content of that conversation, how the testator responds to questions the solicitor asks, whether the testator can give sensible explanations for his choices, and how firm the testator is in his wishes, can all be relevant matters. Indeed, if a solicitor knows that he or she is being asked to draft a will in circumstances where there could later be a dispute about testamentary capacity, it is a good idea for the solicitor to ask questions directed to each of the matters in Banks v Goodfellow, as well as any other matters which are peculiarities of the will which the testator is considering making and which a capable testator would need to be able to understand, and for the solicitor to make an extremely detailed file note of the conversation.
Often visitors to an elderly testator can provide useful evidence of whether that testator still holds in his memory the various people who might be possible objects of testamentary bounty, recollects where those people fit into the family structure, remembers visits he has had when such visits have occurred, and remembers news given to him about family members and close friends.
If there is a solicitor who has drafted other wills for the testator, or has carried out business transactions for the testator, evidence of how the testator fared in giving instructions for and understanding those business transactions can be useful -- though, for the reasons referred to in the New Jersey case which Cockburn CJ quoted in Banks v Goodfellow, other business transactions may require a higher degree of capacity than does making a will.
Other lay evidence could go to any strange notions that the testator has -- a particularly common strange notion of some elderly people is to believe that someone close to them is stealing minor items of little value from them.
The sorts of lay evidence that can cast light on the mental condition of the testator are as various as human personality is various. From all the lay evidence, the court can, mosaic like, build up a picture of the sort of person the testator was.
A second type of evidence which can be particularly useful is evidence from the treating doctor or doctors of the testator, or other qualified health professionals who have examined the testator, concerning any observations or diagnoses made, relative to cognitive functioning. If the testator lives in an institution, like a hostel or a nursing home, and the institution is one which receives federal government subsidy (as most of them do) a place in that institution can be offered only with the permission of the Aged Care Assessment Team (ACAT) for the area in which the institution is located. To decide whether to grant that permission, an ACAT social worker interviews the testator, and usually administers one or more tests of cognitive functioning -- nearly always the mini-mental test, and sometimes others. Unless the testator has deteriorated significantly from the time of entering the institution, the results of those tests could cast light on the testator's mental capacity.
As well, the level of subsidy that the institution receives for a resident depends on a categorisation of the resident. If the institution is to receive a significantly higher level of subsidy for the resident than was applicable at the time the resident first entered the institution, it is necessary for the resident to be reassessed by the relevant ACAT.
There is a third type of evidence that is often presented in probate cases where capacity is in issue. If the testator has been admitted to a hostel or nursing home, or has been hospitalised, as a matter of course a set of nursing notes is produced, of observations of the residents that the nursing staff make. It is quite common for evidence in a testamentary capacity case to include the nursing notes, and for an expert from a discipline experienced in assessing elderly people to express his or her views about whether the testator does or does not pass each of the Banks v Goodfellow tests. This type of evidence is useful, but its limitations need to be borne in mind.
First, an opinion expressed by someone who has never seen the testator has serious limitations.
Second, the person expressing the view cannot come to a view more reliable than that of the nursing notes on which that view is based. Often nursing notes do not focus on matters which would be relevant to testamentary capacity (understandably, because nursing notes are largely to assist in the ongoing medical and nursing care of the testator). Sometimes, they used terms which are too imprecise to be very useful -- saying that the testator "was confused this morning" is not much use by itself, if one does not know what the topic was that the testator was confused about, and how that confusion manifested itself. As well, the nursing notes do not give a balanced picture. One reason for the lack of balance is that there is no point in nursing notes recording occasions when the testator demonstrates good mental functioning in tasks relevant to testamentary capacity. Another is that it is, however, financially important for the management of an institution to be able to demonstrate that a resident needs a higher level of care and that for which the present level of subsidy is paid -- thus a well-managed institution will be careful to record instances of mental failure by the resident, so that there is evidence to present to ACAT in support of an application for a higher level of subsidy.
The importance of lay evidence, and the limitation on usefulness of expert evidence from people who have never seen the testator, has been expressly recognised in Kerr v Badran [2004] NSWSC 735 and Revie v Druitt [2005] NSWSC 902 at [34]. Indeed, if a plaintiff who had opportunity to observe the deceased fails to give lay evidence of his or her observations concerning the capacity of the deceased, the court may draw a Jones v Dunkel (1959) 101 CLR 298 inference, that any such evidence, if given, will not help the plaintiff. That was the situation that the plaintiff in Kerr v Badran [2004] NSWSC 735 found himself in (at [53]).
The natural bent of medical practitioners called upon to give expert evidence is to express their conclusion in terms of recognised medical conditions. That is of limited assistance to the court. As Kirby P. said in Easter v Griffith (unreported, decided on 7 June 1995, at 6) :
"In judging the will propounded, and the challenge to it the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence still less of jargon as to whether particular conditions such as ‘delusion’ or ‘paranoia’ have been established.”
Lost wills
The present practice of the Court concerning whether it will presume that a will which has been executed, but is not to be found upon the testator’s death, has been revoked is that found in Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561
Applications for leave for a minor to make a will
Applications under section 6A Wills Probate and Administration Act 1898 for leave for a minor to make a will are not strictly a probate matter, but there is an administrative practice of having such matters dealt with by the Probate List Judge, as an aid to consistency in decision-making. Such applications are usually made on an ex parte application. If you have such a matter, you will minimise costs for your client if the matter is made returnable in the first instance before the Probate List Judge when the Probate List is being heard, if all the evidence to support the application is available on the first return date, and you are ready to run the application on the first return date.
Evidence in Family Provision Act applications
There is a very serious problem concerning costs of Family Provision Act matters getting out of hand, and being disproportionate to the amount at issue. It is not assisted by practitioners (at least some of whom seem to be accustomed to practising in the Family Court) drafting affidavits which go into the most minute detail of family circumstances.
While it is hard to say that any particular detail of family circumstances is not relevant, there comes a point beyond which a law of severely diminishing returns sets in, so far as the provision of extra information about family circumstances is concerned. For most Family Provision Act cases, the facts which are by far the most important ones can be set out on a couple of sheets of paper. They are:
If claim made for notional estate, assets sought to be included in notional estate:
Assets and liabilities of plaintiff [8]:
Income and expenditure of plaintiff if disclosed in the evidence [9].
Brief statement of any special needs of plaintiff [10]:
Brief statement of any special claims of plaintiff [11]:
Travelling much beyond the scope of these facts is simply a waste of the client’s money and a waste of the court's time. It is the repeated experience in Family Provision Act matters that factual matters of detail are set out at length in affidavits, replied to at length in affidavits, sometimes cross-examined on at length, and then never mentioned or in any way referred to in submissions. The submissions in a case like this are a summary of the reasons why one side says that the Court should give a decision of a particular type. If facts are not important enough to be mentioned or referred to in submissions, they probably do not need to be proved at all.
23 August 2006
ENDNOTES
[1] J C Campbell Judge of the Supreme Court of New South Wales. I am grateful for discussions with Young CJ in Eq and Windeyer J on the topic of this paper. Any remaining errors are, of course, my own. This paper was delivered to a seminar organised by NSW Young Lawyers on 23 August 2006.
[2] Ostensive definition is explained in Re GHI (a protected person) (2005) 221 ALR 589,[2005] NSWSC 581 at [20]; Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 at [177]; Maher v Bayview Golf Club (2004) 12 BPR 22,457, [2004] NSWSC 275 at [39]-[57].
[3] This information can be supplied by referring to the appropriate paragraph of the executrix's affidavit required under Schedule J. Supreme Court Rules
[4] This information can be supplied by referring to the appropriate paragraph of the executrix's affidavit
[5]This information can be supplied by referring to the appropriate paragraph of the executrix's affidavit
[6]This information can be supplied by referring to the appropriate paragraph of the executrix's affidavit
[7] This information can be supplied by referring to the appropriate paragraph of the executrix's affidavit
[8] if disclosed in the evidence. This item can be completed by reference to the appropriate paragraphs of the affidavits
[9] This item can be completed by reference to the appropriate paragraphs of the affidavits
[10] e.g., to complete university education, that plaintiff has care of a disabled child
[11] on deceased e.g., worked on deceased’s farm for 20 years at low pay
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