- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
McKeown v Harris & Anor; In the Will of Patricia Margaret Rice  QSC 87
MARY CATHERINE MCKEOWN
TIMOTHY JAMES HARRIS
JANELLE IRENE HARRIS
Supreme Court at Rockhampton
12 April 2018
Supreme Court Brisbane
11 April 2018
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – PROCEDURE – QUEENSLAND – COMPROMISE PROCEEDINGS – where the parties have reached a compromise on the matters in dispute – where the compromise was placed formally into a deed – whether there can be a grant ordered in solemn form by consent
Succession Act 1981 (Qld), s 18
Dowling v St Vincent De Paul Society Inc  VSC 454, cited
Germanotta v Germanotta & Ors  QSC 116, cited
Giumelli v Giumelli (1999) 196 CLR 101, cited
Hansen v Hansen  WASC 268, cited
Re Levy (deceased) (No 2)  VR 662, cited
Lando v Sutton  QSC 339, cited
Lindsay v McGrath  2 Qd R 160, cited
Richardson v Lo Pilato (Liquidator); in the Matter of Trojan Hospitality (ACT) Pty Limited (in Liq)  FCA 888, cited
Sadleir v Kahler & Ors  QSC 67, cited
West v Smith  WASC 12, cited
Williams v Schwarzback (No 2)  WASC 43, cited
Wood & Anor v Trudinger; in the will of Alan Stewart Trudinger  QSC 245, cited
Vandeleur v Franich  1 Qd R 481, cited
J Otto for the applicant
Payne Butler Lang Solicitors for the applicant
Gleeson Lawyers for the respondents
- Patricia Margaret Rice passed away on 28 July 2015 aged 95 years. Ms Rice was never married and had no issue. By her duly executed last Will and testament dated 31 May 2004 (the Will) Ms Rice appointed her brother-in-law Ernest Arthur Hanson and her niece Mary Catherine McKeown (the applicant) as the executors and trustees of her estate.
- By her Will, Ms Rice made a number of small bequests before bequeathing the rest and residue of her estate to her niece, the applicant. The major asset of the estate is Golmoy, Ms Rice’s rural property valued at approximately $600,000. When Golmoy is sold, nearly all of the sale proceeds will fall into the residue of the Will. Ernest Arthur Hanson passed away some years ago so that the applicant is the sole surviving executor named in the Will.
- By application filed 2 September 2015, the applicant applied for probate of the Will of 31 May 2004 in common form. In support of her application for probate Ms McKeown filed an affidavit on 11 September 2015 which annexed not only the formally executed last Will and testament of 31 May 2004 but also a document referred to as a “hand written note” allegedly written by the deceased in December 2013.
- As far as it is legible the “hand written note” states;
To Whom It May Concern.
I Patricia Rice (unintelligible) give my (unintelligible) to Mrs Jenele (sic) Harris to take full responsibility of me and my duty of her and bare (sic) intel (sic) such time of and event of me passing all my assits (sic) go to Mrs J Harris
- As is required the applicant advertised her notice of intention to apply for a grant of probate in the Queensland Law Reporter and the Bundaberg News-Mail. The advertisement brought forth a caveat filed by the second respondent Mrs Janelle Harris. On 11 September 2015 notice to the caveator was sent and the second respondent filed a notice in support of caveat on 18 September 2015.
- Pursuant to a series of orders and a statement of claim filed on 19 October 2015, the applicant applies for a grant of probate of the Will dated 31 May 2004 in solemn form. The applicant also brought a claim for equitable compensation against the respondents.
- By a series of amended defences, the respondents brought a counterclaim pursuant to s 18 of the Succession Act 1981 (Qld) in respect of the “hand written note” said to be the informal Will of December 2013. In addition to this, a counterclaim is also brought by which the respondents allege they are the beneficial owners of the deceased’s property, Golmoy.
- The counterclaim is brought on the basis that “the estate of the testator is estopped from denying the respondents’ beneficial ownership of the property.”
- The court file consists of numerous pleadings and amendments thereof as well as numerous affidavits. For example, one affidavit contains an exhibit consisting of eight volumes and some 2433 pages.
- Although the principal asset of the estate, Golmoy is valued in the vicinity of $600,000, the estate could not be regarded as a large one. On the documentation alone, the matter would require a trial that would last more than one week.
- Conscious of these and many other matters, the parties reached a compromise on 20 December 2017. This was placed formally into a deed dated 14 March 2018.
Compromising Probate Proceedings
- In Lando v Sutton Philippides J held:
“… despite the provisions of rule 288, the court cannot merely rubber-stamp a probate application and ignore valid wills or give effect to invalid wills.”
- The reasoning behind this is that it is the applicant who invites a Court to pronounce for the validity of a Will and if so persuaded the Court pronounces the full validity of the Will. Subject to limited exceptions, the Will is a binding determination at large, it cannot be “gainsaid” even by another court. This is to be contrasted with a compromise by which only parties or persons that are privy to the suit will be bound.
- The principles of compromise in probate actions have been the subject of many decisions for a considerable period of time. The series of the early authorities are collected in the judgment of Sholl J in Re Levy (deceased) (No 2).
- More recently in Vandeleur v Franich Macrossan CJ stated the following:
“Real J. in Queensland Trustees Limited v. Finney  Q.W.N. 21 was of the view that in a solemn form action there cannot be a grant ordered in solemn form by consent unless the proof is offered which in law is necessary. In the circumstances of that case he ordered proof in common form. In the present trial if opposition had been withdrawn at an earlier time, for example at the beginning of the hearing or even at the time when the plaintiffs executors’ case had been concluded one particular difficulty would have been absent.
It is common enough for a compromise to be arrived at in a probate suit even after the trial has commenced. Amongst the reported cases are Wytcherley v. Andrews (1871) L.R. 2 P.D. 327, Tiger v. Handley  W.N. 432, In re King  2 Ch. 420, Ritchie v. Malcolm  2 I.R. 403 and Mecredy v. Brown  2 I.R. 437. It does not appear that in any of those cases evidence adverse to the validity of the will had been led at the time the respective suits were compromised.
A further consideration arises where, as part of the compromise, the court is invited to pronounce for or against the will. Only parties or persons privy to the suit will be bound by the terms of the compromise and the decree as the cases last cited show. If a pronouncement for or against the will is sought, there will need to be appropriate evidence: see Queensland Trustees Ltd v. Finney and Mortimer on Probate (2nd ed.) at 611. If a declaration in favour of validity is sought, it seems that, as a minimum, there must be evidence of due execution: see Williams, Mortimer and Sunnucks Executors, Administrators and Probate, (16th ed., 1982) at 401, 402. In view of the answer taken from the jury on the issue of due execution in the present case and because of the lack of contest as the cases of the parties were presented, no problem arises on this aspect in the present case, but there may be a requirement that evidence on other aspects be provided: see e.g. Williams Mortimer and Sunnucks (supra) at 401–402 where, dealing with evidence on trial in the Short Probate List in England, it is said:
‘Where a will is being set up, evidence of one of the attesting witnesses should be adduced. Affidavit evidence will usually be sufficient. Where the circumstances raise strong doubt as to the testamentary capacity of the deceased it is advisable to call medical evidence, if available, to show capacity’.
Clear definitive statements as to what is required do not seem to be available and the answer may depend to an extent upon the circumstances, consistently always with the application of basic principles. Pronouncing for or against a purported will is a solemn act and it will not be possible simply to ignore a substantial body of evidence to which the court’s attention may have been drawn, depending upon the stage at which the parties propose a compromise. If the court, after hearing evidence, has already arrived at a firm view on a vital issue, there will at least be difficulty in asking the court to act in a contrary fashion: see the opinion expressed In the Estate of Szylowicz (dec’d) (1978) 19 S.A.S.R. 263, 271, In the Will of Podger, (dec’d)  V.R. 275, 278 and In the Will of Pearce (dec’d) (1945) 46 S.R. (N.S.W.) 71. However, mere conflict in the evidence will not necessarily preclude the court from acting on a compromise which may be proposed — see the observations of Cairns J. In re Muirhead  P. 263 at 265 explained.
In a case of conflict the court may find it easier to pronounce in favour of rather than against the testator’s expressed wishes. In the former case there may not be as firm a requirement for a fullness in the evidence in support of the course proposed. Still I do not consider it can be said that there is any hard and fast rule.
- The decision of Macrossan CJ in Vandeleur v Franich has been cited in numerous subsequent decisions and has also been referred to in Succession Law texts.
- As is made plain by Sholl in Re Levy (deceased) (No 2), although the Court in making an order admitting a Will to probate in solemn form is making a declaration for all purposes, the probate proceedings remain inter parties and the Court does not and should not attempt to adopt an inquisitorial process. When the parties to a probate action compromise the proceeding there is a potential for conflict between the terms of the compromise and the evidence thus far adduced. However, as Macrossan CJ stated in Vandeleur v Franich:
“In a case of conflict the court may find it easier to pronounce in favour of rather than against the testator’s expressed wishes.”
- Sholl J said in Re Levy (deceased) (No 2):
“I think the executor may proceed to prove the will in solemn form, leading only evidence of due execution and such evidence as he may think proper with regard to capacity, if he desires to rely on any such evidence to reinforce the ordinary presumption as to capacity”.
The Will of 31 May 2004
- Apart from the presumption as to capacity there is substantial evidence before the Court that Ms Rice had capacity when the Will was duly executed. The deceased attended on her general practitioner Mr David Whittle for 27 years. Dr Whittle attests to Mrs Rice’s capacity in May 2004 as follows:
“[I]n 2004, she was not suffering from any cognitive impairment and had full testamentary capacity”.
- In the present case due execution of the Will has been proved and testamentary capacity has been proved.
The Handwritten Note of December 2013
- With respect to the handwritten note the respondents no longer contend for the admission of the handwritten document to probate under s 18 of the Succession Act 1981 (Qld). No evidence has been led as to the circumstances in which the hand written document came into existence from which it may be reasonably concluded that the document embodied the testatrix’s testamentary intentions and that the testatrix intended it, without more, to operate as a Will. The requirements of s 18 of the Succession Act 1981 (Qld) as explained in Sadleir v Kahler & Ors and Lindsay v McGrath have not been met. The document is in part unintelligible.
- In Re Spencer (deceased) Dalton J held:
“I accept the authorities as to evaluating the evidence with care, in accordance with the Briginshaw principle. Where there is a duly executed will, there will be a presumption of capacity. In the absence of a duly executed will, there is no presumption of capacity in the relevant sense. In Phillpot v Olney, White J said, in considering the onus of proving testamentary capacity where there was an informal will:
‘The onus of proving that the deceased had testamentary capacity lies upon the plaintiff. If the Court is not affirmatively satisfied that she had such a capacity it is bound to pronounce against the documents. Where a document has been duly executed in accordance with the formal requirements for the making of a will and is rational on its face, such execution raises a prima facie case that the person is of competent understanding which may place an evidentiary onus on the person disputing that the document is the deceased’s will to adduce evidence raising doubts as to the deceased’s competency ... In this case no such evidentiary onus is thrown on the defendant.’”
- Not only is there an absence of evidence proving Ms Rice had capacity in December 2013, there is rather a large body of evidence which strongly points to the conclusion that the testatrix actually lacked testamentary capacity in December 2013.
- The deceased’s general practitioner of 27 years Dr Whittle observed that Ms Rice displayed evidence of cognitive decline several years prior to her death. This was particularly evident when Dr Whittle administered and recorded the results of mini-mental state examination (MMSE). On 15 September 2011, Ms Rice scored 25 out of 30. On 1 November 2012 again a score of 25 out of 30 was obtained. This was followed by a score of 19 out of 30 on 12 December 2013 and a score of 17 out of 30 on 27 February 2015. Dr Whittle was also of the opinion that the MMSE score of 17 out of 30 on 27 February 2015 “understated her actual impairment”. It was also noted by Dr Whittle that by November 2012 and proceeding into 2013 Ms Rice became increasingly more vague and “virtually non-communicative”. Dr Whittle records that by 12 December 2013 the testator “was having significant difficulties cognitively” and “was certainly in a debilitated state by this time”.
- In Dr Whittles affidavit he opined:
“[A]t some time between the end of November 2012 and December 2013, possibly earlier, [the testatrix] would have lost her ability to understand what it meant to make a Will. I also consider it likely that during that period, [the testatrix] would no longer have understood the nature of her assets, and certainly not the value of them. I form this view based on the number of long term medical conditions she was suffering, combined with her cognitive state and her visible frailty.
Her memory and recollection had deteriorated such that in my view, from a medical perspective, due to her cognitive decline, she would have struggled to recall her familial relationships, other than her relationship with Ernie who was by her side daily. Patricia had become quite impressionable, and as a result of this was particularly vulnerable”.
- On the evidence that was placed before the Court it can be confidentially concluded that in December 2013 when the hand written note was drawn, the testatrix, the late Patricia Margaret Rice did not have testamentary capacity. This of course is not necessary under s 18(2) of the Succession Act 1981 (Qld), but is a highly relevant factor in considering whether the requirements of s 18(2) are satisfied.
- In the circumstances there is no conflict. As Macrossan CJ put it in Vandeluer v Franich, it makes it easy to pronounce in favour of the testator’s expressed wishes in the last Will and testament of 31 May 2004.
- With the exception of clause 1.3, the terms of the compromise embodied in the deed of agreement dated 14 March 2018 are as set out in the orders which are to be made by the Court. Clause 1.3 requires that after the sale of the property known as Golmoy, the applicant is to pay the respondents the sum of $100,000 within 14 days of settlement. The sum agreed to be paid to compromise the litigation may properly be seen as a risk and costs considered sum agreed between the parties. This is in response to the Giumelli type claim being brought by the respondents rather than any issue concerning the validity of the Will.
- In the circumstance the orders of the court are:
- Pursuant to s 6 of the Succession Act 1981 (Qld), the Court pronounces for the force and validity of the Will dated 31 May 2004 of Patricia Margaret Rice, deceased, late of Riverlea Nursing Home, River Terrace, Bundaberg in the State of Queensland, in solemn form of law;
- Pursuant to s 6 of the Succession Act 1981 (Qld), probate of the testatrix’s said Will be granted to the applicant as the executor named therein;
- The respondents’ costs of the proceeding, capped at $50,000, be assessed and paid out of the estate of the testatrix;
- The applicant’s costs of the proceeding be paid out of the estate on the indemnity basis;
- The applicant’s claims be otherwise dismissed;
- The respondents’ counterclaims be dismissed.
 Further Amended Defence of the respondents dated 4 September 2017 at paragraph 42. See also Giumelli v Giumelli (1999) 196 CLR 101; Germanotta v Germanotta  QSC 116.
  QSC 339.
 At page 5.
 Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 20th ed (2015) at p 564 [40-02].
 See Mortimer, Mortimer on Probate, (1927) at p 241.
  VR 662 at 664-665.
  1 Qd R 481 at 484-485.
  1 Qd R 481.
 Dowling v St Vincent De Paul Society Inc  VSC 454; Lando v Sutton  QSC 339; Hansen v Hansen  WASC 268; Richardson v Lo Pilato (Liquidator); in the Matter of Trojan Hospitality (ACT) Pty Limited (in Liq)  FCA 888; Williams v Schwarzback (No 2)  WASC 43; West v Smith  WASC 12.
 See A A Preece, Lees Manual of Queensland Succession Law, 7th ed (2012) p 168.
  VR 662 at 665.
  1 Qd R 481 at 485.
  VR 662 at 668.
 Exhibit “DW1” to the affidavit of David Ross Whittle, sworn 18 August 2015.
  QSC 67.
  2 Qd R 160 at 173-174 and 185-187.
  2 Qd R 435 at 440  – footnotes omitted. This case was applied in Wood & Anor v Trudinger; in the will of Alan Stewart  QSC 245 per Brown J at .
 Affidavit of David Ross Whittle, sworn 25 October 2017 at paragraphs 19 – 20.
- Published Case Name:
McKeown v Harris & Anor; In the Will of Patricia Margaret Rice
- Shortened Case Name:
McKeown v Harris
 QSC 87
12 Apr 2018
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 87||12 Apr 2018||Force and validity of will pronounced; probate granted: Crow J.|