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  • Unreported Judgment

Re Sebasio

 

[2020] QSC 247

SUPREME COURT OF QUEENSLAND

CITATION:

Re Sebasio [2020] QSC 247

PARTIES:

GLEN THOMAS SEBASIO

(applicant)

v

CHELLA GOLDWIN

(respondent)

FILE NO/S:

BS No 10388 of 2019

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20, 21 and 22 July 2020

JUDGE:

Callaghan J

ORDERS:

  1. Subject to the formal requirements of the Registrar, a grant of probate in solemn form of law of the will dated 21 March 2011 be made to Glen Thomas Sebasio.
  2. The parties are directed to file and serve written submissions (not to exceed four pages in length) as to costs by 4.00pm on 19 August 2020, and that question will be determined on the papers.

CATCHWORDS:

SUCCESSION – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – where testator purported to revoke all previous wills in 2018 – where testator purported to make will in 2018 that was very different from previous wills – where applicant applies for a grant of probate of earlier will made in 2011 – where applicant submits testator lacked testamentary capacity at time of 2018 revocation of former wills and 2018 will – where applicant submits suspicious circumstances exist around making of 2018 revocation and 2018 will - whether testator had testamentary capacity

Succession Act 1981 (Qld), Schedule 2

Banks v Goodfellow (1870) LR 5 QB 549, applied

Black & Anor v Scotston [2019] QSC 27, cited

Frizzo & Anor v Frizzo & Ors [2011] QSC 107, applied

Nicholson v Knaggs [2009] VSC 64, cited

Kerr v Badran [2004] NSWSC 735, cited

Re Griffith; Easter v Griffith (1995) 217 ALR 284, cited

Tobin v Ezekiel [2012] NSWCA 285, cited

Trust Company of Australia Ltd v Daulizio [2003] VSC 358, cited

Worth v Clashom (1952) 86 CLR 439, cited

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, cited

COUNSEL:

AB Fraser for the applicant

The respondent represented herself

SOLICITORS:

McCullough Robertson for the applicant

The respondent represented herself

Introduction

  1. [1]
    Mr Thomas Sebasio (“Thomas”)[1] was a proud Torres Strait Islander who was regarded as a leader and statesman within that community.[2] Upon his death, the Premier of Queensland was moved to write to the respondent, in a letter of condolence, that he had “lived an extraordinary and inspirational life… and his legacy will continue through his work with the Aboriginal and Torres Strait Islander people”.[3]
  2. [2]
    Thomas had three children: the applicant, Glen Sebasio (“Glen”); a daughter, Kristine  Vicca (“Kristine”)[4] and the respondent, Chella Goldwin (“Chella”).
  3. [3]
    Thomas passed away on 21 June 2019.[5] Glen applies for a grant of probate of a will dated 21 March 2011 (“2011 will”). This will revoked all earlier wills. Under it, the applicant was appointed as executor and Kristine as substitute executor. It provides for the estate to go to Glen and Kristine in equal shares.
  4. [4]
    It was prepared and witnessed by a solicitor, and is to be read in conjunction with another document, namely a “Testamentary Statement”, which was witnessed by the same solicitor and executed on the same date (21 March 2011).
  5. [5]
    The “Testamentary Statement” specifies that the respondent receives no bequest under the will:

“because she does not communicate or care to enquire about me anymore. I have not been made a part of [her] lifestyle and therefore do not wish to contribute to her further by leaving her any more than I have already given her whilst alive….”[6]

  1. [6]
    There are two other wills in evidence.
  2. [7]
    The first of these was executed on 9 September 2010 (“the 2010 will”), and is almost identical to the 2011 will. It revoked all earlier wills. It is in the same form and was witnessed by the same solicitor. The applicant was appointed as executor and Kristine was appointed as substitute executor. The only point of difference (from the 2011 will) is that in the 2010 will the whole of the estate was left to Glen.
  3. [8]
    The third will (“the 2018 will”) was executed on 5 March 2018. It is very different from the other two. It takes the form provided in a “will kit” – no solicitor was involved in its preparation. The details in various fields, including the dispositive provisions, were hand written by the respondent.[7] It was witnessed by two of her friends. In contrast to the stark simplicity of the earlier wills (in that they left the whole estate to either Glen, or Glen and Kristine) there are more than 10 individual beneficiaries. There is only one grandchild (Jenna) who does not receive a benefit under this will.[8] The level of specificity attaching to the bequests descends to the point at which someone was nominated to receive “all my kitchen implements in all the cupboards”.[9] 
  4. [9]
    The major asset in the estate was Thomas’s house, which in the 2018 will was bequeathed, in equal shares, to the respondent and to Kristine’s son, Thomas Sebasio Jr “as joint owners”, and on the basis that the house “must always be open to all my families as I have made it during my life as family welcome to visit and stay”.[10]
  5. [10]
    This document too must be read in conjunction with another. That is, three days prior to his signing of the 2018 will, Thomas signed a document (the “2018 revocation”) which purported to “revoke all former testamentary dispositions, including those referred to as “last Will” and/or “last and only will” made before Friday 2 March 2018”.[11]
  6. [11]
    Taken at face value, the effect of this document might have been that Thomas would have died intestate had that event occurred between 2 and 5 March 2018.
  7. [12]
    In propounding the 2011 will, Glen is necessarily impugning the 2018 revocation and the 2018 will that followed it. He does so principally on the basis that Thomas lacked testamentary capacity as at March 2018, and says also that suspicious circumstances surround the documents prepared at that time.[12]
  8. [13]
    I use the term “impugning” in a wide sense - counsel for Glen maintained that, for the purposes of this application, it was not for the applicant to discount the effect of these documents; rather, the onus was on the respondent to establish their efficacy.[13] The respondent, on the other hand, insists that she is not actively propounding the 2018 will (and indeed, has made no formal application in respect of it) and merely points to the 2018 revocation as a reason why this application should be refused.[14]
  9. [14]
    The situation raises potentially interesting questions about where the onus of proof might lie. It is not precisely comparable with any of those described in the decisions to which I have been referred. It was ultimately accepted that, as the respondent is not in fact propounding the 2018 will, it is not correctly viewed as an item in which anyone bears a particular onus, but should be treated as a piece of evidence that might assist when reaching conclusions about testamentary capacity and/or suspicious circumstances.
  10. [15]
    The respondent was, however, advancing the status of the 2018 revocation. And as at the moment it was executed, the status quo altered such that by reason of the application of the intestacy provisions[15] the respondent (who was then the subject of the aforementioned “testamentary statement”) became a beneficiary - a status which was “formalised” three days later when the 2018 will was executed.
  11. [16]
    For that reason, it was submitted, the doctrine of suspicious circumstances applied, so no presumption of regularity attached to the 2018 will.[16] The applicant had otherwise proved the validity of the 2011 will and therefore the respondent assumed a burden of removing suspicion by proving that Thomas knew and approved of the contents of the revocation.[17]
  12. [17]
    I was referred to several authorities which were all of assistance,[18] but as I have noted none is precisely on point. I am prepared to accept, as I interpreted the respondent to assert from the Bar table, that she was not aware, as at the time of the 2018 revocation, that this act of itself made her a beneficiary.[19] The evidence of her involvement in the preparation of the revocation is thin. In cross-examination, however, the respondent revealed that she typed and then printed a copy which was consequently signed by Thomas.[20] A witness to the revocation states that Ms Goldwin was present when it was signed but did not go into any detail.[21] 
  13. [18]
    At the same time, it is artificial to view the two documents (executed three days apart) - as something other than part of the one exercise. There is, for example, nothing that would permit a conclusion that Thomas wished, as at 2 March 2018, to die intestate, only to resolve three days later, that he should prepare a will. The circumstances surrounding the creation of the 2018 will do, therefore, inform the way in which the revocation is assessed.
  14. [19]
    As it turns out, my findings on the evidence make it unnecessary for me to conduct further analysis or make any specific finding as to “suspicious circumstances”. I have, as will be seen, decided this case  by considering whether,  having  proven  the  2011 will, the applicant can in any event go further, and  establish on the balance of probabilities that Thomas lacked testamentary capacity as at the time he signed the 2018 revocation and, for that matter, the 2018 will.[22]

Preliminary issue – application to adjourn the trial[23] 

  1. [20]
    Before turning to the substantive issues, it should be recorded that the respondent applied for an adjournment of these proceedings. The application was made on the basis that the respondent had complained to the Legal Services Commission about the fact that the solicitors who are acting for the applicant had some previous involvement in the matter. Specifically, she expressed concern that at one time they also represented the person who was the named executor under the 2018 will, and in that capacity had dealings with her and with the applicant.
  2. [21]
    The respondent was unrepresented in these proceedings, but did previously have solicitors acting for her. On 30 July 2019 those solicitors were sent correspondence by the applicant’s solicitors. That correspondence identified this very issue, and invited concerns, if there were any, to be voiced at that time.[24] There was no response.
  3. [22]
    The respondent has not made a formal application for the applicant’s solicitors to recuse themselves. Rather, the respondent points to the fact that, as a result of her complaint, the Legal Services Commission is conducting an investigation, and submits that this should be completed before the hearing continues.[25]
  4. [23]
    The applicant disputes the basis upon which the complaint is made, and in effect submits that even if the complaint about his solicitors was substantiated (and he does not allow of that possibility) there is nothing in it which could have any impact on these proceedings.[26]
  5. [24]
    This issue was litigated in a preliminary application, and on the evidence placed before me at that time, the applicant’s submission should be upheld. The respondent was unable to articulate, with any precision, and other than in a speculative way, the nature of any prejudice that she would suffer in this particular proceeding if it continued prior to the conclusion of the Legal Services Commission’s investigation. I left open the possibility of reserving judgment until that time, but have acceded to the applicant’s further submission that no basis has been demonstrated upon which I would withhold my decision if it was otherwise ready to deliver.

Testamentary Capacity – the test

  1. [25]
    If it was necessary to elaborate upon the test as articulated in Banks v Goodfellow,[27] I would do no more than respectfully adopt the summary provided by Applegarth J in Frizzo & Anor v Frizzo & Ors.[28] I apprehend that I need to assess whether, as at 5 March 2018 Thomas:
    1. (a)
      was aware, and appreciated the legal significance of the act upon which he was about to embark;
    2. (b)
      was aware, at least in general terms, of the nature, extent and value of the estate over which he had the disposing power;
    3. (c)
      was aware of those who may reasonably be thought to have had a claim upon his estate, and the basis for and nature of the claims of those people; and
    4. (d)
      had the ability to evaluate and discriminate between the respective strengths of those claims.[29]
  2. [26]
    In performing these assessments, I need to ask whether, as at 5 March 2018, anything – such as a disorder of mind - might have affected Thomas such as to prevent the exercise of his natural faculties. Perfect mental balance and clarity was not required, and mere “slowness, illness, feebleness and eccentricity” would not have disentitled him from the right to dispose of his property in the will he signed at that time.[30] He was not required to know precisely the value of his assets.[31] I am, as indicated at [19], approaching the case by asking whether the applicant has by evidence established that, at the relevant time, Thomas did not have the requisite awareness and ability.

Relationship between the respondent and her father

  1. [27]
    Against the background of the 2011 revocation, and further evidence from the applicant[32]  about the respondent’s estrangement from their father,[33] the 2018 will represented a dramatic change of mind. Without some explanation, that fact of itself might have been a cause for concern.
  2. [28]
    The respondent, however, insisted that there was never any estrangement from her father.[34] And it does seem, even if relations were once strained, that by the end of 2017 there was a reconciliation.[35] Interactions between Thomas and the respondent during 2017 and 2018 were described by others as “loving and wise as one would expect between a father and his daughter”.[36] After Thomas fell ill,[37] the respondent left her job in Canberra and, along with her son Caleb, were his end-of-life palliative carers. Unchallenged evidence suggests that this was a role performed by the respondent and her son with devotion.  They were the only family present with Thomas at his passing – in his bed, in his home.[38]
  3. [29]
    In those circumstances I can accept that the sentiments expressed in the 2011 revocation did not persist. I cannot determine with precision the point at which they were abandoned, but it was clearly at some point prior to the execution of the 2018 revocation and will.

Evidence suggesting Thomas did have capacity

  1. [30]
    Whilst he was still able to do so, Thomas spent some time with the respondent and Caleb in Canberra.  This much is confirmed by two witnesses - Hasnah Hariri–Scheding, who gave evidence, and her husband John Scheding, whose statement was admitted into evidence without the need  for cross examination.[39]  This couple saw Thomas frequently when he was in Canberra;[40] they were the witnesses to the 2018 revocation and the 2018 will.
  2. [31]
    They gave examples of social interaction with Thomas in early 2018, and speak of the joy that he took in these social gatherings. They describe his full participation in discussions and record his ability, at this time, to impart wise advice.
  3. [32]
    It is therefore unsurprising that they expressed no concern about his capacity to sign the 2018 revocation and will. Mrs Hariri–Scheding gave evidence that the revocation was witnessed at the specific request of Thomas.[41] She also was present as at the time the 2018 will was completed – she saw the respondent “taking notes”.[42] Although she was not really listening to the conversation, she registered that Thomas said that he wanted to change his last will in order to make sure “everyone is included”.[43] 
  4. [33]
    Mrs Hariri–Scheding said that Thomas specifically requested her (and her husband) to witness the will and that she did not see any confusion. On the contrary, she thought him to be “quite engaged”.[44] She spoke also of an occasion after 5 March 2018 when Thomas was in hospital.  A specialist told those present that he needed to discuss Thomas’s care and inquired as to who had power of attorney. Mrs Hariri–Scheding intoned a clear and authoritative manner when she related the way in which Thomas insisted: “I am here. You speak to me.”[45]
  5. [34]
    Further, and although the evidence on the point is spare, I am prepared to accept that until June 2018 Thomas held a position at Griffith University. It is variously described as “lecturer”[46] or “elder in residence”[47] and it is pointed to as something which supports the proposition that, as at March 2018, his mental condition was at least sufficient for him to have testamentary capacity.[48]
  6. [35]
    However, in the absence of any evidence about the nature of his duties, or as to the manner in which he was performing them, I am unable to give much weight to this proposition for the purposes of these proceedings.
  7. [36]
    I have considered all of the respondent’s own evidence that tended to support a conclusion that Thomas did have the requisite capacities in March 2018. In sum, her case - both evidence and argument - was that Thomas held a concern that the 2011 will did not reflect his wishes in that it named, as beneficiaries, only two members of his family. The 2018 revocation was an essential expression of that concern. The 2018 will was, although written by her, no more than an honest account of that which he told her he wanted in order to rectify the situation.[49]
  8. [37]
    There was, so the case runs, nothing about Thomas’s mental capacity at this time which would preclude these conclusions from being drawn. On the contrary, the respondent’s own evidence, along with that of her son Caleb and the evidence of those who witnessed the relevant documents supports the proposition that Thomas knew exactly what he was doing – in particular, that he understood all that was necessary in order for him to make the 2018 revocation. And if that is so, then the application propounding the 2011 will should be refused. 
  9. [38]
    If this was the only evidence of relevance, that might have been the result.

Evidence establishing that Thomas did not have capacity

  1. [39]
    There is, however, a body of evidence which tells against the presence of testamentary capacity. It includes evidence from the applicant, but its principal source is in the records and recollection of two specialists who examined Thomas in 2017 and 2018.
  2. [40]
    I am conscious that the issue of capacity is a question of fact to be determined on the basis of the whole of the evidence. The evidence most relevant to mental capacity will often be found in indications provided by behaviour, and in this case reliable evidence of Thomas’s “behaviour” can be found in statements made to these doctors, who were assessing his mental state.[50] The doctors also provided expert opinions about his mental capacity, and gave evidence about the medical causes of his behaviour. These opinions supported the applicant’s contention that Thomas did not have the requisite understanding as identified at [26], above, but they do not decide the case - the issue is one for me to resolve.

Evidence of Dr Fleury

  1. [41]
    Dr Aisling Fleury, a specialist geriatrician, saw Thomas four times between 28 April 2017 and 12 January 2018.[51] On their first meeting she conducted a Montreal Cognitive Assessment test in which Thomas performed poorly. His overall score was 11/30, and he scored 0/5 for both recall and visuospatial executive function.[52] Dr Fleury found it likely that Thomas was suffering from Alzheimer’s disease of at least moderate severity.[53]
  2. [42]
    After another consultation on 28 July 2017, Dr Fleury recorded that the most likely diagnosis for Thomas was “mixed Alzheimer’s/vascular dementia (rather than Alzheimer’s disease alone), with marked short-term memory loss, executive dysfunction, dyspraxia and insightlessness”.[54]
  3. [43]
    The significance of this diagnosis was explained further in the doctor’s evidence: Alzheimer’s disease is the most common form of dementia, accounting for about 70% of all types of dementia in Australia. It is characterised by progressive loss of memory, and later by impairments in other “domains of cognition”.  Vascular dementia is the second most common type of dementia, and is often associated with more predominant executive dysfunction – that is, a compromised ability to plan and prioritise tasks, to access and use working memory, to think flexibly and to self-monitor and be self-aware.[55]
  4. [44]
    Dr Fleury expressed the need for caution about Thomas making any decisions which would require legal capacity because of his degree of cognitive impairment. She noted that he could “argue a point quite well … but that it became clear quite quickly that he has missed some of the reasoning behind things”.[56]
  5. [45]
    The doctor also elaborated on the concept of “moderate severity”. Someone suffering from a moderate degree of cognitive impairment might still be able to look after their personal activities and live in the community, but would require assistance with “instrumental activities” “like…running a household”.[57] The condition does not improve, and gradually gets worse.[58]
  6. [46]
    At another consultation on 22 September 2017, the doctor recorded that Thomas continued to have poor short-term memory and executive dysfunction (“eg. leaving the hotplates on the stove on at home”).[59] 
  7. [47]
    Dr Fleury’s final consultation with Thomas was on 12 January 2018. He was in company with the respondent. There was a long discussion about legal aspects of Thomas’s care. Dr Fleury did not formally address the prospect of his appointing a new enduring power of attorney “as due to the severity of his cognitive impairment (she) had already formed the opinion in his initial assessment on 28 April 2017 that his EPO needed to be enacted”.[60] The doctor did, however, tell the respondent[61]that Thomas did not have the capacity to revoke his existing power of Attorney (held by Glen) and appoint a new one.[62]
  8. [48]
    Importantly, for current purposes, the doctor noted that there was no improvement in Thomas’s cognition over the months she had been seeing him. It remained her opinion that Thomas still lacked capacity to make his own health, lifestyle and financial decisions.[63] This assessment informs a background for any conclusion about his capacity to make a decision involving any degree of complexity.
  9. [49]
    Dr Fleury also gave evidence which may be important when considering the evidence of Mr and Mrs Scheding. That is, the doctor said that someone whose mental capacity was compromised - in the way that Thomas’s was - may nonetheless retain social skills and relate matters embedded in long-term memory.[64]  Thomas may not have had language difficulties, and may have appeared to a lay person to be functioning well, but this could have disguised the executive dysfunction from which he was suffering. It was the doctor’s view that Thomas himself had little insight into his condition.[65]
  10. [50]
    This evidence supports a conclusion that, as at January 2018, Thomas lacked testamentary capacity – and as noted,[66] the conditions from which he suffered were not going to improve between then and March.

Evidence of Dr Fonda

  1. [51]
    Dr Fonda, also a geriatrician, saw Thomas on 13 February 2018 and 15 May 2018. On both occasions, Thomas was accompanied by the respondent.[67]
  2. [52]
    The overriding concern expressed by Thomas during his first visit was that Glen was planning to move him out of his house and into some sort of care arrangement. To address that concern, the doctor was asked to consider whether Thomas had capacity to alter his EPO on the basis that “given the current conflict of opinion” with Glen, he would rather that the respondent held his power of attorney.[68]
  3. [53]
    Ultimately Dr Fonda was of the view that Thomas did retain the capacity to put in place a new enduring power of attorney for financial, medical and lifestyle decisions.[69]
  4. [54]
    However, Dr Fonda also thought there was “little doubt” that Thomas had mild cognitive impairment consistent with an early dementia. He favoured a diagnosis of early Alzheimer’s disease with a possible element of vascular dementia. He also suggested that Thomas meet with his solicitor in order to reduce the likelihood of undue influence.[70] The respondent was provided with a copy of the report in which this suggestion was made, but there is no evidence that any such meeting took place and, as noted above, the 2018 revocation and 2018 will were both created without input from a solicitor.
  5. [55]
    During this visit, Thomas was able to tell the doctor that he owned his home, although he had no idea what it would be worth. He also said that he had made a will, but was unclear about the details.[71] 
  6. [56]
    The May visit to Dr Fonda was arranged by the respondent specifically to address the question of Thomas’s capacity to make or change his will. By this stage, of course, the March 2018 will had already been executed.[72]
  7. [57]
    Thomas was confused about the purpose of this visit to the doctor. He thought it was for a general medical check-up. He displayed what must be thought, for current purposes, to be some disturbing disorientation – for example, he thought it was March 1948. When it was explained to him that his attendance was for the purpose of assessing his capacity to change his will, he asserted that his will was “already sorted out by his solicitor”.[73]
  8. [58]
    However, Thomas was unclear as to when he had changed his will most recently. Even though this had just been done (in March) he believed it had happened about “a year ago”. Later in the assessment he said he thought it was just a “couple of days ago”. When asked why he wanted to change his will, he said that he “wanted to make sure everything was equal”. This was clarified to mean that he wanted his house to go to his “three children equally”.  That done, “they could give whatever they wanted to his grandchildren and great-grandchildren”.[74]
  9. [59]
    On the basis of information provided to him by the respondent, Dr Fonda put to Thomas specifically the nature of the changes that might be made to his will. These reflected, at least to some extent, the contents of the March 2018 will, such that it was suggested that the house might go to his daughter and grandson. Thomas maintained the answer he had already given, namely that it should go equally to his three children.[75]
  10. [60]
    Thomas had no idea as to the value of his estate.  He suggested that his house was worth “maybe $30,000”, although the respondent indicated that it would be more like $300,000.[76] Thomas was not able to give the doctor any idea of how much money he had in a particular bank account, in circumstances where it contained around $90,000.[77]
  11. [61]
    At no stage, despite frequent attempts by Dr Fonda to make him do so, was Thomas able to grasp the importance of the relevance of his fitness to make decisions. The doctor documented poor memory and executive dysfunction, and concluded that there was clear evidence of established dementia, consistent with Alzheimer’s disease.[78] He found that, as he presented, Thomas did not have capacity to make or change his will.[79]
  12. [62]
    Dr Fonda specifically addressed the question as to whether his findings as at May 15, 2018 might be different from any that might have been made in March, 2018. In the referral, Dr Fonda was told of the previous assessment by “a geriatrician” and of the results of cognitive testing. The doctor concluded that since there had been no reported change in Thomas’s medical condition since that time, and since in cognitive testing Thomas performed in much the same way as he did in February, it was likely (although not certain) that he would, as at the time Thomas signed the March 2018 will, have drawn the same conclusion as to his capacity.[80]
  13. [63]
    As to whether this conclusion could be reconciled with  the opinion offered in February (that Thomas had the capacity to change his enduring power of attorney), the doctor explained  that it was possible for someone like Thomas to understand that he wanted someone to look after his affairs, but that he might not understand things that involved more complexity. For those issues, the “executive decision-making powers” become more and more important - it all depended upon the complexity and the depth of the issues that were involved.[81] On that basis, the doctor expressed the opinion that Thomas probably did not understand all of the relevant issues that were involved in the revocation of 2 March 2018.[82]
  14. [64]
    The doctor’s opinion was unaffected by the hypothetical assumption that Thomas had held down a position (such as one at Griffith University) that was conventionally regarded as requiring mental competence. Dr Fonda observed that a person’s cognitive ability may decline, but that they still may have a meaningful contribution to make in certain situations.  This was particularly the case if the situation called for recourse to long-term memory, which is preserved for a period well after short-term memory and judgment has been compromised.[83] This aspect of his evidence is relevant also to the assessment I make of other evidence[84]about Thomas’s behaviour.

Evidence of Glen Sebasio

  1. [65]
    The applicant gave evidence and was cross-examined by the respondent at some length.  Many of the issues canvassed were of only marginal relevance. However, I am able to make some specific findings of fact. I identify as important and accept Glen’s evidence when he:
    1. (a)
      rejected the proposition that  he had refused to provide his father with a copy of  the 2011 will. I accept that, as Glen said, he had actually received a copy of that will from his father, and therefore assumed that Thomas had retained either the original or a copy for himself;[85]
    2. (b)
      rejected  the proposition that he was planning, at any stage, to put his father into a home;[86]
    3. (c)
      explained that the reason for the 2011 will was because he insisted to his father that Kristine should be added. He did that because if anything happened to him, (Glen) there would at least be someone else who could carry out his father’s wishes;[87] and
    4. (d)
      recalled that those wishes, as expressed to Glen by Thomas, were that the  property should devolve first to him and Kristine,  albeit on the basis  that he wanted them to distribute  it to other members of the family as they saw fit - or, as  Glen put it, it was their responsibility to “divvy it up”;[88] and
    5. (e)
      informed that Thomas had a “loving relationship” with his granddaughter Jenna, who has cerebral palsy and is unable to speak or walk.

Conclusions

  1. [66]
    The respondent insists that the 2018 revocation is a reason why this application should not be allowed.[89] My attention is drawn to medical evidence which allows that dementia does not necessarily obscure testamentary capacity, and to the fact that in February it was Dr Fonda’s view that Thomas had capacity to make an enduring power of attorney. It is emphasised that Thomas was clearly functional in many social (and perhaps even professional) settings.[90] It is said to be likely that Thomas wished to revoke the earlier will because it did not provide sufficiently for distribution of benefits to the wider family.
  2. [67]
    The respondent also emphasised that she was not advancing the cause of the 2018 will,[91] under which she was a beneficiary. And as already noted,[92] I am prepared to proceed on the basis of her statement from the Bar table that she was not aware that the effect of the intestacy provisions was that the revocation did in fact make her a beneficiary of the estate.
  3. [68]
    I accept some of that which the respondent put to me. It may well be that, as at March 2018, Thomas had some awareness, in general terms of those who had a claim on his estate (to the extent that he knew he had a family), and could make some evaluation as to the manner in which that should be addressed. Allowing that to be so, the evidence establishes that his unmistakeably preferred “manner” always involved the estate devolving, by means of a formal will prepared by a solicitor,[93] to at least one of his children, albeit on the understanding that they would distribute some of it to other members of the family. The statements made to Dr Fonda in May 2018 were clear, and consistent with all that had gone before. It was a simple plan, simply expressed in two wills, and then plainly expressed to the doctor. The only variations to that plan concerned the number of children who might be involved (one in 2010, two in 2011, and three in May 2018) in the process.
  4. [69]
    Clearly, the 2018 revocation was not consistent with any plan. There is no basis upon which to conclude that Thomas intended intestacy provisions to govern the distribution of his estate (he did, after all, make another will very soon thereafter, and was not heard by anyone ever to suggest that he did not intend to leave a will) – but that was the legal significance of the document at the time he signed it. The very existence of the 2018 revocation, even if considered in isolation from the 2018 will, suggests that he lacked capacity.
  5. [70]
    If, on the other hand, it were to be contended that  the legal  significance of the revocation was that it paved the way for the 2018 will, then regard should  be had to the terms of that document. They are telling. They are, as put by Dr Fonda, “totally at variance” with that which was expressed to be his desire, and with what was otherwise a persistent pattern of expression[94] in which Thomas made clear the method by which he wanted the distribution of his estate to be achieved.[95] As with the revocation, the very terms of the 2018 will demonstrate that its legal significance was not understood, and make it unlikely that anything done at or around that time would have been accompanied by the requisite awareness and understanding.
  6. [71]
    Those terms also cast doubt upon Thomas’s awareness, at the time, of those who may have had a claim upon the estate. There is, on the evidence, simply no explanation for the total exclusion of Jenna from the 2018 will. It actually might be thought that she was one person for whom Thomas would, had he possessed testamentary capacity, certainly have provided.
  7. [72]
    Further, on the basis that, as found by Dr Fonda, Thomas was likely, in March 2018, to have presented with the same mental status observed by the doctor in May 2018, then it is more than probable that he lacked awareness as to the nature of the estate that was available for distribution.[96]
  8. [73]
    These inabilities were understandable in circumstances where Thomas had, as early as   April 2017, performed as poorly as he then did in cognitive testing, and was observed to be disoriented as a result of short-term memory impairment. When the evidence of things said by Thomas, and in particular those things said to Dr Fonda, is viewed in conjunction with proven circumstances there is really only one conclusion to be drawn.
  9. [74]
    I can accept that the evidence which might support a different conclusion was given honestly. This includes evidence given by the respondent and that which was given by the Schedings. The impressions conveyed by such evidence are, however, explicable (and discountable) on the basis of evidence given by the doctors. Whilst he may have retained “domains of cognition”[97] the objectively recorded behaviour of Thomas discloses a mental disability which makes it unlikely that at any time in March 2018 he was able, with the requisite level of engagement, to do the things required in order for him to either revoke or execute a valid will.
  10. [75]
    In other words I find, on the balance of probabilities, that he did not have testamentary capacity as at the time the 2011 will was revoked, nor at the time he executed the 2018 will.
  11. [76]
    It follows that, the applicant having otherwise established what is necessary in order for me to do so,[98]  I shall order that a grant of probate in solemn form of law of the will dated 21 March 2011 be made to- Glen Thomas Sebasio.
  12. [77]
    I shall order that the parties are directed to file and serve written submissions (not to exceed four pages in length) as to costs by 4.00pm on 19 August 2020, and that question will be determined on the papers. .

 

 

Footnotes

[1]I shall, after consulting with the parties, refer to Mr Sebasio as Thomas. He had a grandson, Thomas Jr,  who will be referred to as such.

[2]T2-18 lines 16-17.

[3]Affidavit of Chella Goldwin 20 April 2020 exhibit X.

[4]Name spelt as per the affidavit of Glen Sebasio 19 September 2019.

[5]Affidavit of Cameron Finsden 1 November 2019.

[6]Affidavit of Glen Sebasio 19 September 2019 exhibit E.

[7]T2-67 lines 18-20.

[8]Affidavit of Glen Sebasio 19 September 2019 at [52].

[9]Affidavit of Glen Sebasio 19 September 2019 Exhibit C.

[10]Ibid.

[11]Ibid exhibit B.

[12]The doctrine of suspicious circumstances holds that a Court may intervene in a testamentary disposition when any circumstance creates a “well-grounded suspicion or doubt as to whether a will expresses the mind of the testator”. See Tobin v Ezekiel [2012] NSWCA 285 at [46]. I respectfully acknowledge that the test is as set out by Ryan J, in Black & Anor v Scotston [2019] QSC 27 at [47]-[51].

[13]T3-25 lines 1-5.

[14]T3-30 lines 25-39.

[15]See Schedule 2 of the Succession Act 1981 (Qld).

[16]Closing submissions of the applicant at [14]-[15].

[17]Closing submissions of the applicant at [81].

[18]Re GREY SMITH, deceased [1978] VR 596; In the Will of STEWARD, deceased [1964] VR 179; In the Estate of the Late Leo Rene Raig [2006] ACTSC 96; Frizzo & Anor v Frizzo & Ors [2011] QSC 107; Hamill and Anor v Wright and Ors [2018] QSC 197; Black & Anor v Scotson [2019] QSC 272.

[19]T3-66 lines 37-38.

[20]T2-67 lines 5–16.

[21]T2-57 – T2-58.

[22]See generally Worth v Clashom (1952) 86 CLR 439 at 453 per Dixon CJ, Webb and Kitto J; Nicholson v Knaggs [2009] VSC 64 at [94] per Vickery J.

[23]The other matter to be noted is that, as will be apparent from my summary of the various testamentary documents, there are others (apart from the applicant and the respondent) who may have an interest in the outcome of these proceedings. The applicant has placed before me evidence which demonstrates that all interested parties have been notified of this application as required.

[24]Affidavit of Paige Edwards 20 July 2020 exhibit PCE-4.

[25]Affidavit of Chella Goldwin 20 July 2020 at [6].

[26]See Applicant’s submissions in reply to adjourn trial generally.

[27](1870) LR 5 QB 549.

[28][2011] QSC 107 at 7 [21]-[22].

[29]See also Read v Carmody (NSWCA, 23 July 1998, unreported; BC9803374), [1998] NSWCA 182 at 4 per Powell JA.

[30]Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 295 per Kirby P (as he then was).

[31]Kerr v Badran [2004] NSWSC 735 at [49]; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [64] and [94].

[32]T1-100; affidavit of Glen Sebasio 19 September 2019 at [47].

[33]The applicant also gave evidence of estrangement between the respondent and Jenna.

[34]T2-73 line 43.

[35]T2-69 lines 39 47.

[36]Affidavit of John Corbin Scheding 4 April 2020 at [4]; affidavit of Hasnah Hariri-Scheding 4 April 2020 at [8].

[37]There is no formal medical diagnosis in evidence, however, it was not disputed that Thomas suffered from cancer in 2019. The cause of death listed on his death certificate is “metastatic oesophageal squamous cell carcinoma” which was an illness said to have been of four months duration. The respondent states that, at Thomas’s request, she was his carer from January 2018 to the end of his life (see affidavit of Chella Goldwin 20 April 2020 at [82]).

[38]Affidavit of Chella Goldwin 20 April 2020 at [86]; affidavit of Caleb John Naumann 22 July 2020 at [42].

[39]When referred to as a couple: “the Schedings”. The respondent addressed Hasna as “Mrs Scheding”.

[40]See generally affidavit of Hasnah Hariri-Scheding 4 April 2020 and the affidavit of John Corbin Scheding 4 April 2020.

[41]T2-57 line 45.

[42]T2-58 line 16.

[43]T2-61 lines 4-9.

[44]T2-58 lines 30-32.

[45]T2-59 line 36.

[46]Affidavit of Chella Goldwin 20 April 2020 at [129].

[47]Affidavit of Dr David Fonda 15 July 202 at 19.

[48]Written closing submissions of the respondent at [29]-[33].

[49]Written closing submissions of the respondent at [29], [38] and [39].

[50]The Court must “subject the evidence to a vigilant, jealous and anxious examination, and in doing so, must scrutinise the totality of the evidence” (Trust Company of Australia Ltd v Daulizio [2003] VSC 358 at [6]; Nock v Austin (1918) 25 CLR 519 AT 528 per Isaacs J; Worth v Clashom (1952) 86 CLR 439 at 453 per Dixon CJ, Webb and Kitto JJ.

[51]Affidavit of Dr Aisling Fleury 15 July 2020 at [2].

[52]Ibid at [6].

[53]Ibid at [7].

[54]Ibid at [3].

[55]Ibid at [14]; T1-92.

[56]Ibid at 16.

[57]T1-90.

[58]T1-91 lines 8-25.

[59]Affidavit of Dr Aisling Fleury 15 July 2020 at 18.

[60]Ibid at [20].

[61]The respondent did not challenge this – see T1-89. The respondent was put on notice to accept that Dr Fleury made this statement to her. She did not contest it (see T3-54 lines 30-35).

[62]Ibid at 20.

[63]Ibid [20].

[64]T1-92 lines 6-35.

[65]Ibid at [30].

[66]At [45].

[67]However, Dr Fonda spent the majority of the appointments with Thomas alone.

[68]Affidavit of Dr David Fonda 15 July 2020 at 24.

[69]Ibid at [6] and 22.

[70]Ibid at 21-23.

[71]Ibid at 21.

[72]Ibid at [10].

[73]Ibid at 37 and 39. Emphasis added.

[74]Ibid.

[75]Ibid.

[76]Ibid at 35. The respondent at one point attempted to explain this away on the basis that it might have been that the house was originally purchased for $30,000 (T3-61 lines 1-6). There is no evidence as to the actual purchase price of the house. Thomas’s confusion about the bank account supports a conclusion that he had little idea about the value of his house – see also [55], above.

[77]Ibid.

[78]Ibid.

[79]Ibid at [20].

[80]Ibid at [23].

[81]T2-7 lines 30-33.

[82]T2-9 lines 10-14.

[83]T2-18.

[84]From the Schedings and from the respondent.

[85]T1-41 lines 44-45; T1-54. 

[86]T1-97 lines 1-5.

[87]T1-51 lines 25-33.

[88]T1-104 line 39.

[89]Written closing submissions of the respondent at [12].

[90]See the evidence of the Schedings at [29]-[33].

[91]Written closing submissions of the respondent at [79].

[92]At [17].

[93]As opposed to by way of intestacy.

[94]The 2010 will, the 2011 will and statements to the doctor.

[95]Affidavit of Dr David Fonda 15 July 2020 at 39.

[96]See [55] and [60].

[97]Affidavit of Dr Aisling Fleury 15 July 2020 at [14]; T1-92.

[98]The 2011 will (which is on the court file) has on its face been executed by Thomas and two witnesses who state to have been present at the same time. This allows the Court to accept the attestation as evidence of the proper making of the will (see section 10 of the Succession Act 1981 (Qld) and rule 604(1) of the Uniform Civil Procedure Rules 1999 (Qld)).

Close

Editorial Notes

  • Published Case Name:

    Re Sebasio

  • Shortened Case Name:

    Re Sebasio

  • MNC:

    [2020] QSC 247

  • Court:

    QSC

  • Judge(s):

    Callaghan J

  • Date:

    12 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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