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  • Unreported Judgment

Daley v Barton

 

[2008] QSC 228

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NOS:

SC No 3735 of 2006

Trial Division

PROCEEDINGS:

General Claim; Application

ORIGINATING COURT:

DELIVERED ON:

24 September 2008

DELIVERED AT:

Brisbane 

HEARING DATE:

26, 27, 28, 29, 30 May 2008

JUDGE:

Lyons J

ORDER:

  1. I pronounce for the full force and validity of the Will dated 28 July 2005 and order that probate in solemn form be granted to the plaintiff, the executor named in the Will subject to the formal requirements of the Registry.
  2. The defendant’s amended counter-claim is dismissed.
  3. Pursuant to s 41 of the Succession Act 1981 (Qld) further provision should be made for the proper maintenance and support of William Adam Barton out of the estate of William Anthony Barton by a payment of a lump sum of $560,000 from the estate.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING – GENERALLY – the testator was diagnosed with a brain tumour – within a few days of the diagnosis the testator executed a third Will which left his entire estate to his new wife – no provision was made for his son in the third Will – the son lodged a caveat requiring proof in solemn form of any Will of the testator – the plaintiff filed a claim for a declaration for the full force and validity of the third Will – whether the testator had a full understanding of the nature and extent of his assets at the time of the execution of the third Will and those who had a claim on it – whether the testator had testamentary capacity at the time of giving instructions or executing the third Will

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – a company was appointed as trustee of a discretionary family trust – the directors and shareholders of the company were the testator and his first wife – the company bought the property with money from the family trust – the company appeared as the registered proprietor of the property on the Title Deed – the company listed the property as a fixed asset on the balance sheets of the family trust – the testator and his first wife agreed to Family Court Consent Orders which distributed the property to the testator – the Consent Orders identified the property as an asset of the company and no reference was made to the family trust – whether it was the intention of the company at the time the property was purchased that it was to be a family trust asset – whether the property was an asset of the testator at the time of his death and whether he could dispose of it in his third Will – whether the property was held on constructive trust for the beneficiaries of the family trust

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED – APPLICATION OF CHILDREN – ADULT SONS – the testator’s 34 year old son made an application for provision out of the estate pursuant to Part 4 of the Succession Act 1981 (Qld) – whether, and to what extent, further and better provision should be made for the testator’s son under the Act

Corporations Act 2001 (Cth), s 197

Land Title Act 1994 (Qld), s 187

Property Law Act 1974 (Qld), s 11(1)(b)

Succession Act 1981 (Qld), Part 4

Trusts Act 1973 (Qld), s 80

ASC v AS Nominees Ltd (1995) 133 ALR 1, cited

Anasson v Phillips (Unreported, Supreme Court of New South Wales, Young J, 4 March 1988), cited

Barnes v Addy (1874) LR 9 Ch App 244, distinguished

Bailey v Bailey (1924) 34 CLR 558, applied

Banks v Goodfellow (1970) LR 5 QB 549, applied

Bath v Standard Land Co Ltd [1991] 1 Ch 618, cited

Boardman v Phipps [1967] 2 AC 46, cited

Bosch v Perpetual Trustee Co Ltd [1938] AC 463, cited

Chan v Zacharia (1984) 154 CLR 178, cited

Grayburn v Clarkson (1868) 3 Ch App 605, cited

Keech v Sandford (1729) Sel Cas T King 61, distinguished

Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342, distinguished

Knott v Cotte (1852) 16 Beav 77, cited

Lumb v McMillan [2007] NSWSC 386, cited

Mulkana Corp ML (in liq) v Bank of NSW (1983) 8 ACLR 278, cited

Muschinski v Dodds (1985) 160 CLR 583, cited

Re Buckland [1966] VR 404, applied

ReBuckland No 2 [1967] VR 3, applied

Re Dawson (deceased) [1966] 2 NSWR 211, cited

Re Elwell [1977] Qd R 141, applied

Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] 2 AC 378, cited

Scattini & Anor v Matters [2004] QSC 459, applied

Singer v Berghouse (1994) 181 CLR 201, applied

Timbury v Coffee (1942) 66 CLR 277, cited

Vigolo v Bostin (2005) 221 CLR 191, applied

White v Barron (1980) 144 CLR 431, applied

Wilson v Lord Bury (1880) 5 QBD 518, cited

Worladge v Doddridge (1957) 97 CLR 1, cited

COUNSEL:

D Mullins SC for the plaintiff/respondent

R M Treston for the defendant/applicant

SOLICITORS:

John Nagel & Co for the plaintiff/respondent

Biggs and Biggs for the defendant/applicant

LYONS J:

The issues

  1. Tony Barton was a golf loving, recently married, 67 year old millionaire when he died of a brain tumour on 23 August 2005. This tumour had been diagnosed a month earlier. On 28 July 2005, the day after he was told the tumour was inoperable, he executed a Will which left his entire estate to his new wife. He had one son from his first marriage who was 31 years old at the time of his father’s death. No provision was made for his son in the Will. These proceedings arise out of those events and essentially raise three questions:
  1. Did Tony Barton have capacity to execute the new Will?
  1. What were the assets of the estate?
  1. If the Will is valid should the Court now make some provision for his son?

The factual background

  1. It is necessary to set out the factual background in some detail. On 25 July 2005, William Anthony Barton, who was known as Tony, (“the testator”) was told by his General Practitioner, Dr Konkoly, that he had a brain tumour. He saw his solicitor, Peter Geoffrey Daley (“the plaintiff”) on 26 July 2005. On 27 July 2005, Dr Michael Redmond, a neurosurgeon, advised him that the tumour was inoperable and aggressive but that he could perform a biopsy to ascertain the type of tumour and determine if radiation and chemotherapy were suitable.  Dr Redmond told him that the procedure could kill him and that he was to organise his affairs before the biopsy on 1 August 2005.
  1. On 28 July 2005, the testator executed a new Will which substantially altered his two previous Wills. By this Will (“the third Will”) he appointed the plaintiff as his executor. The testator died three weeks later on 23 August 2005 which was his 67th birthday.  The effect of this third Will was that it left his entire estate of some three and a half million dollars to his second wife, Vitita Sukrod, who he had married two years previously.
  1. William Adam Barton (“Adam Barton”) is currently 34 years old and is a sales representative. He is the only child of the testator’s marriage to Maureen Dawn Barton (“Dawn Barton”). He was not provided for in the third Will because whilst he was left the “rest residue and remainder” of the estate there was nothing left to distribute.

The divorce, the re-marriage, and the first Will

  1. The testator had been married for 35 years to Dawn Barton. The couple had separated on 21 June 2000, with the testator moving to live in their unit at Kangaroo Point (“the Unit”) and Dawn Barton continuing to reside at the matrimonial home at McDowall.  Despite their separation, they had a good relationship.  The testator considered Dawn Barton to be an excellent book-keeper and they continued their joint involvement in a number of investment properties which generated an income of approximately $320,000 per year.  Dawn Barton continued to keep the books and would pay the testator’s share of the income from the properties into his bank account.
  1. In August 2000, the testator met Vitita Sukrod when he was playing golf with friends at a resort in Thailand.  In 2001 she moved to Australia to live with him in the Unit.
  1. The plaintiff is a solicitor at Banyo and had been a friend of the testator since 1989 through their membership of the same golf club at Virginia.  He acted for the testator in his divorce proceedings.  The testator would often call in on the plaintiff on his way to golf to discuss legal and other matters, including his forthcoming marriage, the drafts of his proposed Will, his property settlement, or to get documents witnessed, including those needed for Vitita Sukrod’s visa.
  1. The testator had been discussing making a new Will with the plaintiff for some time but said that he wanted to finalise the Family Court proceedings before doing so. In April 2003, he told the plaintiff of his intention to marry Vitita Sukrod. The decree nisi of the divorce became absolute on 9 September 2003 but no Orders were made in relation to a property settlement at that time.
  1. The testator married Vitita Sukrod on 12 October 2003, one month after the divorce became absolute. The testator did not invite Adam Barton or Dawn Barton to the wedding and they were not aware of his remarriage until six months later in March 2004.
  1. On 14 October 2003, two days after his second marriage, the testator visited the plaintiff and executed a Will (“the first Will”). This Will appointed Paul Barlow of Barlows Accountants as the executor and Adam Barton as the alternate executor. The Will gave Vitita Sukrod the testator’s shareholdings in Baisco Reserve Pty Ltd (“Baisco”) (the registered proprietor of the Unit), all the money he held in a specified Westpac Bank Account, and all the shares he held at the time of his death. It then provided that the rest and residue went to Adam Barton.

The property settlement

  1. The testator and Dawn Barton agreed to settle their property dispute amicably and on 21 March 2004 the testator wrote to Dawn Barton in the following terms:

“Dawn

I have a valuation for K. Point.  You will get a copy when I get it from the valuerer [sic].  For your information $565,000.  You are doing the same no doubt.

I have also had advice from a Family Court lawyer regarding the transfer of [Hamilton Rd, McDowall] to you and K.P. to me.

The position is

A.No stamp duty applies to transfer of property or shares or business assets.

B.Baisco being the owner of K.P. can transfer your share to me which means you have to resign your directorship, Baisco would still be the owner of K.P. and I would own the two (2) shares in Baisco.

C.To transfer Baisco’s ownership of K.P. to me would mean Stamp Duty of $565,000 4% $22,000, approx.

Baisco is just a utility and does not hold any other assetts [sic] – all other properties are in W.A ◦ M. D. so I can’t see any logical reason to be subject to stamp duty.

I am out of town for this week so you can advise me what you have in mind after you get your valuation.

Alternatively, we can just sit as we are, I own ½ of [McDowall] & you own ½ of K. Point.”

 

Tony   ”

  1. By June 2004, the testator and Dawn Barton had agreed on the terms of their property settlement and on 21 July 2004 an Application for Consent Orders[1] was filed in the Family Court of Australia which provided for an equal division of assets.  Dawn Barton was the applicant and both she and the testator (as respondent) signed the application.  As the applicant, Dawn Barton specifically acknowledged in Part I that she had obtained independent legal advice and Part J was signed by her solicitor indicating he had given her independent legal advice. 

The pre-settlement assets

  1. The application stated that the total value of the applicant’s assets was $3,431,666 and that the testator owned an equivalent amount. Annexure “1” to the Application for Consent Orders sets out the assets owned by the couple at the time of the Consent Orders and refers to their investment properties which they held with others and their residences. That document indicates that both parties held a half share in the property at Hamilton Road, McDowall, which they valued at $280,000 each, and a half share in the Unit, which they also valued at $280,000. Their total assets were listed as follows in Annexure 1:

Judgment-Image

The post-settlement assets

  1. The testator advised the plaintiff that the Unit was owned by a family company Baisco and that he and Dawn Barton owned one share each in that company. There was no mention of a family trust. It was agreed between them that the testator would keep the Unit which he would live in and Dawn Barton would keep the McDowall property which she would live in. Orders were prepared on this basis.
  1. It is clear from the letter of 21 March 2004 that the testator considered transferring the Unit into his name at the time but was concerned about the impact of capital gains tax on such a transfer. Whilst the McDowall property was more valuable than the valuation stated in the Orders, the testator was satisfied with the valuations set out in the Order.[2]
  1. The final Orders[3] issued from the Family Court on 18 August 2004.  A document called “Terms of Settlement” is exhibited to that Order.  Those terms indicated that the parties retained their interest in their three investment properties (known as “Gympie Road Strathpine”, “Gympie Road Lawnton”, and “Coominya”) equally.  It was agreed between them that the testator would transfer to Dawn Barton all his interest in the McDowall property to give effect to the agreement that Dawn Barton would keep the McDowall property to reside in.  In relation to the Unit which the testator would reside in the Order provided as follows:

Judgment-Image

Baisco’s background

  1. Baisco was incorporated on 14 April 1976 and the only directors and shareholders were the testator and Dawn Barton. Baisco is also the trustee of the Barton Family Trust (“the Family Trust”) which had been established on 31 March 1978. Baisco had paid the full purchase price of $401,000 for the Unit in March 1997 and is the registered proprietor of the property. Baisco, however, had listed the Unit as a fixed asset on the balance sheets of the Family Trust from the financial year June 1997 and income and expenses were disclosed in the balance sheets and the tax returns of the Family Trust from 1997. The question is therefore raised (to which I will return later) as to whether the Unit was an asset which could be gifted under the Will.

The second Will

  1. On 10 June 2004, the testator gave the plaintiff new instructions for his Will which he had handwritten on the first Will. He asked the plaintiff to be the executor of the Will and when the plaintiff indicated it was preferable to have a family member as the executor, the testator informed the plaintiff that he did not wish Adam Barton to be involved in the administration of his estate.[4]  When the plaintiff advised there should be an alternate executor, the testator nominated his accountant, Paul Barlow, for that role.  There was a discussion about the meaning of certain parts of the first Will and the testator informed the plaintiff that he wished to leave his investment properties to Vitita Sukrod and Adam Barton in equal shares.  The plaintiff was also asked to add a paragraph to the Will to ensure that on his death Vitita Sukrod would continue to receive his share of the income on the investments while his estate was being finalised.
  1. On 11 June 2004, the testator attended at the plaintiff’s office and executed that Will (“the second Will”) which had been prepared in accordance with the instructions he had given on 10 June 2004. Paragraph three of that Will provided as follows:[5]

“3.I GIVE DEVISE AND BEQUEATH all of my property estate superannuation and effects of whatsoever nature and wheresoever situate of or to which I may be seized possessed or entitled at the time of my death unto and to the use of my Trustee UPON TRUST with power to sell call in and convert into money the same and after payment of all my just debts and funeral and testamentary expenses including Capital Gains Tax to hold the remainder upon the following trusts:-

(a)For my wife VITITA SUKROD my personal effects, jewellery, household contents and any motor vehicles which I may possess;

(b)For my said wife my shareholdings in the Company BAISCO RESERVE PTY LTD the registered proprietor of Unit*, Bridgewater Gardens, Goodwin Street, Kangaroo Point;

(c)For my said wife any moneys and shares which I may possess or be entitled to possess upon my death; and

(d)For my said wife a one-half share or part thereof of my interests or entitlements in the following properties:-

(1)*** Gympie Road, Strathpine, Brisbane, Queensland;

(2)*** Gympie Road, Lawnton, Brisbane, Queensland; and

(3)Chicken Farm, Zischkes Road, Coominya, Queensland.

(e)I DIRECT my Trustee to apply one half of all income generated from the aforesaid properties referred to in paragraph d (1) (2) & (3) to my said wife pending the finalisation of my estate.

(f)PROVIDED HOWEVER should my said wife fail to survive me then her share in my estate shall pass to my son WILLIAM ADAM BARTON.

(g)For my said son WILLIAM ADAM BARTON the rest residue and remainder of my estate PROVIDED HOWEVER should he predecease me then his issue shall take in equal shares as tenants in common upon attaining the age of TWENTY-FIVE (25) years the share to which his her or their deceased father would have been entitled upon surviving me PROVIDED FURTHER if there are no issue who survive me as aforesaid then to the QUEENSLAND CANCER FUND …” (emphasis added)

  1. The plaintiff also prepared an Enduring Power of Attorney for the testator on that date and this document was duly witnessed and executed. This document appointed Vitita Sukrod as his attorney.
  1. In March 2005, the testator asked the plaintiff to act on behalf of Adam Barton in relation to his matrimonial proceedings. Adam Barton had separated from his wife after 12 months of marriage and the testator had concerns about his son’s property settlement, particularly because he and Dawn Barton had contributed to the purchase of Adam Barton’s property.

The circumstances surrounding the execution of the Third Will

  1. The testator was diagnosed with a brain tumour on 25 July 2005 and later that day he rang the plaintiff to make an appointment to see him. He met with him on 26 July 2005.  The plaintiff’s attendance note indicates the following:[6]

“26/07/05 - Tony has a brain tumour. Will see specialist on 27/7/05 discussed his will- he was very forgetful-confirmed he had the Will and POA at Westpac Bank.  Vitita with him.  Advised him to collect the Will and POA and give to me to hold-confirmed that Dawn collects the money from the rents and pays to his account.  I advised that Tony should now make sure that Suncorp a/c a joint a/c with Vitita so as to ensure that the money continues to go to Vitita after death or incapacity.  Will need to pay it back to the estate i.e. ½ to A. Barton.”

  1. As suggested, the testator later went to Suncorp to change the account into a joint account but because of bank requirements was unable to do so. He was, however, able to transfer funds into Vitita Sukrod’s account. On 27 July 2005, he went to the Westpac Bank in the city and took the second Will and the Power of Attorney out of the bank’s security box.
  1. On 28 July 2005, the testator returned to see the plaintiff and initially saw him alone. The plaintiff’s attendance note indicates the following:[7]

“28/7/05 9.00 to 9.40.

Tony with Vitita. Said he was going to Hospital-operation to his head the left side-he showed me. He was saying the same things-he repeated himself.  He said he wanted to change his Will-could not find the earlier Will- I printed off a copy-he said he wanted the same but that V was to get the income properties-he said he just wanted to change that part of the Will and to make me the Executor. I made the change to the Will -he read it-said that’s what he wanted-he said it was terrible (how he felt and just happened all of a sudden). I discussed with him that the Will now meant that Adam did not get anything unless Vitita died first.  He said ‘that’s right his mother will look after him.’ He said- so you will be the executor- you will look after it all for me, make sure Vitita gets it.  How long will it take for her to get the money. I said I will talk to Dawn and tell her to continue to pay the money as she does now.  He left the Will with me and he had the POA.”

  1. As the file note indicates, the testator gave the plaintiff instructions for the third Will, which the plaintiff immediately prepared. The testator then read over the Will and confirmed with the plaintiff that was what he wanted. The Will was then duly executed and witnessed by the plaintiff and his secretary, Janelle Imhoff. The third Will altered paragraphs 3(d) and (e) such that Vitita Sukrod now received a full interest rather than a half interest in the investment properties and the income from those properties. The rest of the Will remained the same:

“3….

(d)For my said wife my interests and entitlements in the following properties:-

(1)*** Gympie Road, Strathpine, Brisbane, Queensland;

(2)*** Gympie Road, Lawnton, Brisbane, Queensland; and

(3)Chicken Farm, Zischkes Road, Coominya, Queensland.

(e)I DIRECT my Trustee to apply all income generated from the aforesaid properties referred to in paragraph d (1) (2) & (3) to my said wife pending the finalisation of my estate.” (emphasis added)

  1. The file note specifically records that when the plaintiff challenged the testator and said that the new Will meant that his son would get nothing unless Vitita Sukrod died first, the testator said, “…[y]es, his mother will look after him.”[8] 
  1. The testator was admitted to the Mater Hospital for a biopsy on 1 August 2005.  He was told that the tumour was very aggressive and he only had up to six months to live.  He stayed in hospital until 5 August and then returned home but was readmitted on 8 August and then transferred to Mt Olivet the following week.  He died on 23 August 2005.

Assets of the testator

  1. The assets of the testator at the time of his death were in the order of $3.5 million if one includes the Unit in the valuation. The parties have agreed to the following valuations and descriptions of the assets as at the date of the hearing:

 

Asset

Description

Deceased Interest

Value

Net Estate Value

  1.  

Gympie Road, Strathpine, Queensland 

1/3rd share)

$2,900.000.00[9]

$  966,666.66

  1.  

Gympie Road, Lawnton, Queensland 

1/4th share)

$5,000,000.00[10]

$1,250,000.00

  1.  

Zichkes Road, Coominya, Queensland 

9/20th share)

$2,000,000.00[11]

$  900,000.00

  1.  

All shares in Baisco Reserve Pty Ltd which owns unit at Goodwin Street, Kangaroo Point

 

$   900,000.00

$  900,000.00

  1.  

Holden sedan

 

$    30,000.00

$   30,000.00

  1.  

Triton utility (sold $4,000.00)

 

 

 

  1.  

Moneys held in Suncorp Metway Bank

 

 

$           18.16

 

  1.  

Funds held in Estate Trust Account by John Nagel

 

$  288,419.02[12]

(on investment)

 

$    25,257.36

(in trust)

$313,676.38[13]

 

 

Liability

 

 

 

  1.  

Taxation 2008 (anticipated)

 

$    86,695.00

 

  1.  

Estimated legal costs

 

$  200,000.00

 

The current proceedings

  1. On 21 September 2005, Adam Barton lodged a caveat requiring proof in solemn form of any Will of the testator.

The plaintiff’s 9 December 2005 claim for a declaration for full force and validity of the Will (BS 10471/05)

  1. The plaintiff filed a claim on 9 December 2005 (BS 10471/05) for a declaration for the full force and validity of the third Will.  On 4 January 2006, a Notice of Intention to defend was filed by Adam Barton, alleging that at the time the instructions for that Will were provided, the testator was not possessed of sound mind, memory, and understanding.  Further, he was not capable of knowing and approving the contents of the third Will.
  1. On 8 March 2006, Mackenzie J appointed John Nagel, solicitor, Administrator of the estate of the testator until the trial and he was authorised to invest the funds in an interest bearing deposit.
  1. An amended defence and counter-claim was filed on 27 July 2007 (in BS 10471/05).  Adam Barton seeks an Order that the court pronounce against the force and validity of the third Will and that probate issue in relation to the second Will.  An amended counter-claim was made by Adam Barton against the plaintiff and Baisco and Adam Barton also seeks a declaration that the Unit is held by Baisco on trust for the Family Trust.  He also seeks an Order that Vitita Sukrod has no interest in the Unit under the testator’s Will.  Further Orders are also sought for the appointment of a new trustee pursuant to s 80 of the Trusts Act 1973 (Qld), and that the defendant by counter-claim, Baisco, account for the money it has received or would have received but for its breach of trust.
  1. A further amended reply and answer was subsequently filed and the plaintiff seeks a declaration that the Unit was at all material times an asset which the testator was competent to devise by his Will or alternatively a declaration that Baisco holds the Unit on constructive trust for the testator.

Adam Barton’s 5 May 2006 claim for provision out of the estate (BS 3735/06)

  1. On 5 May 2006, Adam Barton filed an application (BS 3735/06) that adequate provision be made for his proper maintenance and support out of the estate of William Anthony Barton.
  1. Further Orders were subsequently made that the two proceedings be heard together at trial and that the matter should proceed by way of affidavit.

The claim for a declaration for the full force and validity of the Will dated 28 July 2005

  1. In the first action Adam Barton claims that the testator did not have capacity to sign the third Will and was not capable of knowing and approving the contents of the Will. In essence, therefore, he claims the testator lacked the requisite testamentary capacity.
  1. In order to ascertain if the testator had testamentary capacity at the time of making this third Will, it is necessary to have regard to the classic test discussed by Cockburn CJ in Banks v Goodfellow.[14]  To satisfy the requirements set out in Banks v Goodfellow the testator at the time of the making of the Will must have understood the effect of his wishes being carried out at his death, the extent of the property he was disposing of, and the nature of the claims on him.  He must also have been able to recall the people who may be fitting objects of his bounty and understand and comprehend their relationship to him and their claims upon him so that he could decide whether or not to give each of them any part of his property by his Will.
  1. The testator must have testamentary capacity at the time when he actually executed the Will as well as at the time he gave instructions. It would suffice, however, if the testator had testamentary capacity at the time of giving instructions for the preparation of the Will, provided the Will is prepared in accordance with his instructions and, at the time of execution of the Will, he was capable of understanding and does understand he is executing a Will for which he had previously given instructions. This alternative is usually relied upon in cases where a testator’s capacity deteriorates after giving instructions. As there is no evidence of any instructions being given on 26 July 2005 and no evidence of a substantial deterioration between 26 July 2005 and 28 July 2005, this is not relevant in the present case.
  1. Accordingly, the time for assessing the testator’s capacity is at the time he executed his Will in the plaintiff’s office on 28 July. It is clear that the legal burden of proof always lies on a person propounding a Will to prove that the testator had testamentary capacity at the relevant time. However, it is also clear that the evidential burden of proof may shift from one party to another in the course of a case.

Did the testator have capacity to make the third Will on 28 July 2005?

  1. In order to answer this question a number of factors need to be considered, including the events prior to the execution of the Will, the circumstances surrounding the execution of the Will, as well as the medical evidence and the evidence of those people who saw him on or about 28 July 2005. Turning first to the relevant background events.

The events prior to the execution of the Will

  1. The testator had been for a holiday to Thailand with his wife and returned to Australia on 11 July 2005.  Whilst he had previously been a very capable golf player, when he played golf on 12, 14, and 19 July 2005, he had difficulty in playing.  On 12 and 14 July 2005 he was only capable of playing nine holes, and on 19 July 2005 he only played three holes because he was having difficulty hitting the ball and was very tired.  Mr Warren Patterson gave evidence that when he had lunch with the testator at the Gold Coast on 20 July 2005, he observed a change in his behaviour and it was clear that he considered that the testator was irritable.  There was also a disagreement about directions to get to Brisbane airport which, he contends, indicates the testator was confused.

The medical evidence

  1. On 22 July 2005 the testator saw Dr Konkoly, who had been his General Practitioner since February that year. He had seen him on four previous occasions. Dr Konkoly gave evidence at the hearing that the testator told him that his right side felt different, he was not feeling good, he was finding golf difficult due to his tiredness, and he did not consider his thinking was as good.  Dr Konkoly observed that the testator had “…expressive dysphasia” which means that a person has difficulty “…finding the right words that you wish to say or conceptualising your thoughts into language.”[15]  He did not consider that he had “dyspraxia”, which is difficulty in speaking, as Dr Konkoly had no problem understanding what he was saying.[16]  Whilst he also indicated that he had “…receptive problems”, he was unable to give any examples of a lack of comprehension.  Dr Konkoly also recorded that “…his normal demeanour was down; thought he may have had a minor stroke.”  He also thought he was “vague” but also acknowledged that the testator was a “…man of few words.”[17]
  1. The testator was sent for a CT scan on 25 July 2005 which revealed the brain tumour. He was then referred to Dr Redmond and Dr Konkoly did not see him again.
  1. Counsel for Adam Barton asked Dr Konkoly to express his opinion in relation to the following scenario:[18]

“Doctor, if I ask you to accept that there is evidence in this proceeding that Mr Barton saw his solicitor on 26 July 2005 to discuss his will.  His solicitor asked him to produce the original of his earlier will.  He said he did not have it and a discussion ensued about whether the original will was with Mr Barton's bank.  His solicitor advised him to attend his bank and retrieve the original will.  Mr Barton's wife gave evidence that the next day, 27 July 2005, she and her husband attended the Westpac bank in the city and took the will - original will and a Power of Attorney out of the bank security box.  When Mr Barton returned to see his solicitor on the next day, 28 July 2005, he told his solicitor he had been unable to locate the original will.  Now, can I ask you to accept that that's evidence in the proceeding before her Honour and to express your medical opinion as to what that set of fact evidences to you in terms of what Mr Barton - what that evidence suggests to you in terms of your medical opinion about his condition?”

  1. Dr Konkoly stated:[19]

“It would suggest that he had problems with comprehension and he was unable to determine the consequences of the complex action that he was required to do and the information that he gave back to his solicitor.  I would say he had problems with comprehension.”

  1. Dr Konkoly also stated the fact that the testator told the plaintiff that he was having an operation to see if the tumour could be removed rather than saying he was just having a biopsy meant that “…he didn’t realise the full extent of his illness, the purpose of the investigations and the consequences of the results of those examinations.”[20]  Dr Konkoly’s evidence was that “…he lacked at the time full capacity to make a Will”.[21]  His conclusion was:[22]

“Because of the size of the lesion, the presenting problems that he came with and the history that I obtained, and the short duration from the time I saw him to when the will was made, I thought that it was an inappropriate time to make it with his problems…but I thought that to have full capacity to make a will and think of all the ramifications of one’s decision-making that he would be lacking the ability.”

  1. The testator saw a neurosurgeon, Dr Michael Redmond, on 27 July 2005. Dr Redmond did not give evidence but his notes are in evidence as is the consent form signed by the testator which acknowledged that the operation had been explained to him and that he understood the procedure.
  1. Dr Cox, the radiation oncologist, saw the testator on 3 August 2005 after the operation, and her statement is in evidence. Dr Cox was not called to give evidence but her statement indicates that she discussed with him his care options after the operation and he made the decisions.[23]

The lay witnesses’ evidence in relation to the testator on or about 28 July 2005

  1. Several witnesses who had seen or spoken to the testator around the time he made the third Will gave evidence at the hearing. Ms Pamela Benton, a neighbour of the testator, gave evidence that he was the treasurer of the Body Corporate of their units and that he had attended a Committee Meeting in her unit on 21 July 2005. She gave evidence that she considered that he was totally coherent and performed his duties in a normal manner. Prior to his admission to hospital, the testator had told her of his brain tumour and his concern for Vitita Sukrod. He had told her he wanted to make sure she was happy and looked after.
  1. Mr William Morgan who had been a lifelong friend of the testator and had been to school with him gave evidence. He said that he and the testator played golf together regularly and had played on several occasions in July after the testator’s return from Thailand.  Because of the testator’s poor form on the golf course, Mr Morgan said he had told him to see a doctor because he was concerned he had a virus.  He spoke to the testator after he saw the doctor and had been told by him of the brain tumour.  He thought that the testator’s speech had changed and that he was not as talkative.  He also considered that he was “…fobbed off’’ in relation to a discussion about his health.  However, he considered that otherwise the testator was “…his usual self”.
  1. Mrs Nada Morgan gave evidence of her attendance at the testator’s wedding in 2003 and how happy he had been in his new marriage. She had seen the testator in the week leading up to his biopsy on 1 August 2005 and whilst he was not as active, she considered he was his normal self except for the fact that he was worried about the operation. She also considered that he had a slight slur in his speech and had difficulty searching for the right words but was otherwise able to have a normal conversation and did not say or raise anything that seemed strange.
  1. Mr Ian Barlow of Barlows Accountants had been the accountant for the Bartons for over 30 years. He said that he spoke to the testator on the phone on the evening of 28 July 2005 and the testator told him that he was going in to hospital for surgery for a brain tumour and was expected to die. He said that during the conversation the testator expressed his concern for Vitita Sukrod and he was asked to look after her, from an accounting point of view. Mr Barlow considered that he was “…at all times rational” but that towards the end of the conversation the testator’s voice became slurred.
  1. Mr Walter Skulskyj is the onsite manager of the unit complex the testator lived in and had known him since he bought the Unit in 2000. They would regularly have a drink together. He said he ran into the testator in the car park of the units in late July and he told him that he had just seen a specialist and that he had “…an egg growing in his head.” He subsequently saw him at the Mater Hospital and whilst he was upset at the prospect of dying, he otherwise considered he was “…clear and coherent.”
  1. Ms Janelle Imhoff, the plaintiff’s secretary, witnessed the signing of the third Will on 28 July 2005 and she gave evidence that the plaintiff initially saw the testator alone. She was then asked to print out a copy of the second Will. The plaintiff then came back to her with changes written on that Will. She had then made the changes and printed out the third Will. She was asked to stay while the testator read over the Will and by that stage Vitita Sukrod had joined him in the office. The plaintiff had then asked the testator if that was what he wanted and the testator had acknowledged that it was. Ms Imhoff and the plaintiff had then witnessed the testator signing the third Will. Ms Imhoff stated that in the time she had with the testator she did not notice anything different about him.
  1. Mr Robert Cashman gave evidence that he had started playing golf with the testator and Bill Morgan in 1990. Since 1996 he had played with them four days a week and after a round they would stay for a drink and talk. The testator had confided in him his disappointment in his son and the fact that he did not appreciate what he had done for him and that he seemed to have no desire to improve himself.
  1. Mr Cashman had also played with the testator after his return from Thailand and considered that his golf was poor.  On 28 July 2005 he saw Vitita Sukrod driving the testator into the Golf Club at Virginia from the direction of the plaintiff’s office.  When the car pulled up he leaned into the car and spoke to them for a short time.  The testator had then told him that he had a problem in his head and that he was going for a “biopsy”.  He told him that his doctor said that he thought it was “inoperable” but would know when the biopsy was done.  They spoke of general matters for about 10 minutes and the testator told him that he had played his last game of golf.  When he saw him in the Mater Hospital after the operation he considered that whilst his speech was ‘thick’ he was otherwise fine.  He gave evidence that the testator’s major concern at that point was his wife and he had said “…now at least Vitita will be looked after.”[24]  He had told him that he had a terminal tumour and that he did not have long to live.

Vitita Sukrod’s evidence

  1. Vitita Sukrod gave evidence at the hearing. She indicated that whilst the testator was lacking in energy and not playing golf very well after they returned from Thailand, he was otherwise fine and was still driving.  She said that Dr Konkoly had advised them of the presence of the brain tumour on 25 July 2005 and that they saw the plaintiff the next day.  She also gave evidence that after they saw the plaintiff on 26 July 2005, they attended at the Suncorp branch at Hamilton and the testator had tried to change his bank account into a joint account but was unable to do so.  The bank had then suggested that Vitita Sukrod could be given authority to operate the account.  The testator indicated that was not what he wanted and subsequently transferred a large sum of money directly into Vitita Sukrod’s bank account.
  1. Vitita Sukrod said that after they saw Dr Redmond on 27 July 2005 it was clear that the news was bad and that there was very little that could be done.  Vitita Sukrod gave evidence that after they had seen Dr Redmond they went to the Westpac Bank in the city and picked up the second Will and the Power of Attorney.  When they went to the plaintiff’s office on 28 July 2005 she had stayed in the reception area while the testator saw the plaintiff alone.  She had then been called into the office.  Vitita Sukrod said she was told that the testator had changed his Will and that she was the only beneficiary.  She understood that meant that Adam Barton would get nothing unless she died first.  She stated that when queried about this, the testator had said, “…[t]hat’s alright, his mother will look after him”[25] as well as words to the effect that Adam was a man and he had a job and a house and he could look after himself.[26]
  1. Vitita Sukrod also stated that after they had seen the plaintiff they drove home and had run into Mr Skulskyj in the car park at the Unit and she had been very upset. Later, she and the testator had a discussion about his assets and he had told her to write down what he had. She had then written the figures he gave her down in an exercise book as follows:[27]

“House- $750,000

Money- $550,000

Farm -$1,250,000

Bank -$650,000

Building- $800,000”

  1. She also said he told her that she should feel free to remarry and have children but had warned her to be careful about who she chose as they might only want her for her money.

The submission of incapacity

  1. Adam Barton disputes the testator’s capacity to execute the third Will. Adam Barton gave evidence at the hearing and said that he did not see the testator on the day the third Will was executed but he did see him three days later. The testator had rung him on Sunday, 31 July 2005 to tell him of the operation and he had then visited his father at the Unit. He considered the testator was confused. He initially thought the testator was drunk because he was slurring his words, although he could understand what he was saying. The testator was able to tell him he was going into hospital for an operation, but gave the impression that it was nothing serious. Adam Barton stated that the testator was unable to name the hospital and he did not think he was fully able to tell him what was wrong. He kept saying he had “…a couple of hairs in my head they are having a look at.”[28]  Adam Barton also stated that the testator twice called his second wife by the name of his first wife.
  1. Adam Barton subsequently visited the testator at the Mater Hospital on a number of occasions.  On 11 August 2005, after a phone call from his mother alerting him to her concerns the testator may have changed his Will, Adam Barton asked the testator, “…[w]hat have you done about your Will?  What have you done about your businesses?”[29]  The testator had replied, “…[i]’ve left half to Dawn and half to Vitita.”[30]  Adam Barton had then said, “…[s]o you’ve taken me out of your Will?” and this was confirmed by the testator.[31]
  1. Adam Barton impugns the Will on a number of bases and submits that the testator did not have capacity to execute the third Will for the following reasons:
  • The testator was suffering from a rapidly growing, highly malignant brain tumour and was under the care of a neurosurgeon, Dr Redmond.  He was in a state of serious physical decline and had a six centimetre tumour growing on the left side of his brain at the time the third Will was executed.
  • The plaintiff’s file notes do not leave a clear paper trail of the testator’s testamentary intention.  The plaintiff’s memory of events is inaccurate and in one respect is challenged by Dawn Barton who claims the plaintiff told her the testator was hard to understand at the time he executed his third Will.
  • The plaintiff did not did not test the testator’s knowledge of his assets or have any discussion with him as to what actually comprised his estate.
  • The testator did not have a full understanding of the nature and extent of his assets because Baisco owed a debt to his estate of $400,000, Baisco held the Unit at Kangaroo Point on trust for the Family Trust, and Vitita Sukrod was not a beneficiary of the Family Trust.  Adam Barton impugns the evidence of Vitita Sukrod that the testator gave her a list of his assets on the evening of 28 July 2005 which she recorded in a notebook.
  • By 31 July 2005, which was within days of the execution of the third Will, the testator was exhibiting confusion and was also slurring his words and was not fully able to tell Adam what was wrong with him.
  • The evidence of Dr Konkoly indicates that the testator did not understand the nature and effect of the decision he was making and this is evidenced by the fact that the testator forgot that he had collected his second Will from Westpac and that he had not been able to change the bank account into joint accounts.
  • The architecture of the third Will puts Vitita Sukrod into partnership with Dawn Barton, which is irrational and indicates a failure to understand the consequences of his decisions.
  1. Turning first to the criticism by Adam Barton of the plaintiff’s evidence, I consider that the plaintiff was a careful and accurate witness who gave evidence of the events which had transpired, so far as he could remember. If he could not recall something he said so. He did not seek to justify his note-keeping or bolster his evidence in any way. He simply relayed what he knew and did not speculate. I accept the plaintiff’s evidence. I consider that they accurately note what transpired. The notes are not extensive and whilst more detailed note taking would be best practice I consider that the notes record what transpired and the instructions that were taken. I do not doubt their accuracy.
  1. I also accept that the file notes were made contemporaneously. Furthermore, I do not consider that anything turns on the fact that the file note kept by the solicitor indicates that it was in relation to the testator’s ‘estate’, rather than his ‘Will’. I consider it common enough for a solicitor to use the terms “Wills” and “Estates” interchangeably. The plaintiff’s file note referred to an “Estate” matter which I find unsurprising and I draw no adverse inference from this fact as suggested by Counsel in cross examination.
  1. Neither do I consider that anything turns on the issue as to whether it was clear on 26 July 2005 that the testator was going to change his second Will or whether he was attending at the solicitor’s office to simply discuss his Will. After the testator saw the specialist on 27 July 2005, it was clear there was no hope and by 28 July 2005 he clearly wanted to change his second Will.  There are file notes of the relevant appointments on 26 and 28 July which record the instructions given.
  1. Counsel for Adam Barton also seeks to generally impugn the notes taken by the plaintiff and submits that his note taking is inadequate particularly in relation to his instructions for the earlier second Will. Whilst the file notes of discussions between the testator and the plaintiff about planned changes to his second Will prior to 10 June 2004 were not extensive, the handwritten note sets out what his instructions were for the second Will.  The evidence of the plaintiff was clear that the testator called into his office frequently because they were friends and he attended to a number of matters for him, including witnessing his signature on documents.  However, if there was an appointment to discuss a matter or if he received instructions, he would make a file note.  In relation to the second Will it is clear that the testator had hand written his instructions onto the first Will.
  1. There is a dispute about a conversation which took place on 11 August 2005 between the plaintiff and Dawn Barton. Dawn Barton gave evidence that on that date the plaintiff told her that the testator “…was in two weeks ago to change his papers… it was hard to understand [Tony’s] instructions.”[32]  In her diary for 11 August 2005 Dawn Barton wrote the words “…[n]ew papers 2 weeks ago.  POA to Vitita.  Tony hard to understand.”[33]  This information was then conveyed to Adam Barton’s solicitors on 11 October 2005 and the solicitor’s file note for that attendance records this.  Dawn Barton also alleges that the plaintiff said to her during that phone call that he did not realise how serious it was.
  1. The plaintiff states, however, that whilst he spoke to Dawn Barton on that date and indicated that the Will was done again recently, he categorically denies saying anything about the testator being hard to understand. The plaintiff also contends that Dawn Barton is confusing other aspects of the conversation with a subsequent conversation they had on 7 September 2005.
  1. Having heard the evidence of both parties, I prefer the evidence of the plaintiff. Having considered the evidence of Dawn Barton as a whole, I do not consider that she had a clear recollection of all events. I consider that Dawn Barton was in fact at times confused about some matters.[34]  I also consider that on other occasions she was evasive.  I consider she was particularly evasive about the precise amount of money she had given her son by way of loans and the amount she had paid for his legal fees.[35]  I also consider that she did give different versions when pressed during cross-examination in relation to whether she agreed to suspend the repayment of money owed to her by Adam Barton.[36]  On another occasion, whilst she initially said that the testator was difficult to understand when she spoke to him on 31 July 2005,[37] she later conceded that she could in fact understand him but rather it was his voice that was different.[38]
  1. I also have concerns about the credibility of Dawn Barton’s evidence about the ownership of the Unit as I do not consider that it accords with the contemporaneous correspondence about the ownership of the Unit. Dawn Barton gave evidence in relation to the letter from the testator dated 21 March 2004 set out in paragraph [11] above. Dawn Barton gave evidence that the result of this correspondence was that, “…[h]e kept the unit in the family trust.”[39]
  1. And then:[40]

“…[s]o it’s your evidence, is it, Mrs Barton, that both you and your husband understood that when the ink dried on the consent orders in the Family Court?—Mmm. Mmm.

That the intention of the parties to the property settlement confirmed in the consent orders, was that you got McDowall and the Family trust got to keep the unit?—That’s correct.

Is that what you’re saying?—Yes, that’s correct.”

  1. And later:[41]

“…I didn’t regard it as the unit being his, I regarded the unit being in the family trust, but I understood that Tony could sell that unit or transfer it to his sole name at any time, being the director, the one and only director of Baisco Reserve.”

  1. I consider that the letter of 21 March 2004, as well as the Family Court Orders indicate that both parties dealt with the Unit as if it were the property of the testator, and considerations of the Family Trust did not come into play. I do not find Dawn Barton’s evidence in this regard to be credible. Furthermore, whilst Dawn Barton might be a competent book-keeper, I do not consider that she had a good knowledge of the workings of the Family Trust or of Baisco. When asked was she a director and shareholder of Baisco she replied, “…[a] director and a shareholder? Well I don’t know, was I? I guess I was.”[42]  Dawn Barton also conceded that she was not familiar with the terms of the Family Trust.[43]
  1. In terms of credibility, therefore, I consider that the plaintiff was a more accurate and reliable historian. Accordingly, in relation to the conversation on 11 August 2005, I accept his version of events.  I consider that overall he was a far more reliable and careful witness and that, specifically in relation to this conversation, his memory was more accurate.  Furthermore, the plaintiff had made a contemporaneous and lengthy file note of the conversation, and I accept that evidence.  The plaintiff’s file note indicates as follows:[44]

“Dawn called and said Tony had a terminal brain tumour - no chance - no operation.  He is going to be taken to Mt Olivett Hospital.  She is going to see him.  Has he got a Power of Attorney? - Yes.  Vitita -not happy.  I told her she will have to work with Vitita and do as she has done in the past  -no need to change - if there is trouble will need to sell up.  What about when he dies? I cannot talk about the Will - I cannot believe he has left me to deal with her.  What about Adam, has he got anything to do with it - I said Vitita has the Power of Attorney.  The Will was done again recently.  Cannot discuss the Will - that’s understandable.  Lets deal with it as it is now.  If there are any problems come to me don’t get into an argument...”

  1. Whilst Dawn Barton wrote the words “…Tony hard to understand” in her diary, I am not satisfied this is what the plaintiff said to her. I consider it extremely unlikely that a solicitor of long standing who had been appointed as executor would have made any such comment to someone who was not his client. I consider the plaintiff was very carefully conveying information to Dawn Barton and he knew how unhappy she was with the situation and with Vitita Sukrod’s role. I consider that an indication that the testator was hard to understand goes against the tenor of the rest of the conversation.
  1. As to whether there was evidence about the testator having an understanding of the extent of his assets, I consider that there is evidence that establishes this knowledge at the time of the execution of the Will. I consider that the discussion between the plaintiff and the testator on 26 July 2005 about the necessity for cash flow and the need to make his account a joint account is necessarily based on an understanding of the nature and extent of the testator’s assets and liabilities. He discussed the fact that his three investment properties with Dawn Barton produced an income stream because he wanted to make sure that income would continue to be paid into his bank account. He knew he had three income properties and that they produced an income stream.
  1. On 26 July 2005, he wanted to ensure the flow of money to Vitita Sukrod. He went to the bank to change his bank account into which the income was paid into a joint account but was unable to do so. On 28 July 2005 he returned to his solicitor’s office and the discussion continued and it was clear he now wanted to give his total interest in those properties to Vitita Sukrod including the income those properties produced. It is also clear that he gave instructions that she was now to get those properties and all of the income from those properties as well. I consider the instructions are based on an understanding by the testator of his assets. It is clear from the plaintiff’s evidence that he considered they had a rational discussion about these matters.
  1. Furthermore, the file note indicates that on 28 July 2005 the second Will was printed out and the testator read it and said he wanted the “same” but that Vitita Sukrod was to get the income properties. This, in itself, shows the testator’s level of understanding at the time. He read through the whole Will and discerned what was to remain the same and what was to change. He then articulated the changes and asked the plaintiff to be the executor. He did not simply tell the plaintiff that he wanted it all to go to Vitita Sukrod. He was able to go to the document and articulate what was being changed and what was staying the same. When challenged, he could sustain his decision and his decision was consistent with the concern he had been expressing to a number of his friends about Vitita Sukrod’s future and her ability to access funds.
  1. I do not consider that the testator’s treatment of the Unit in the third Will evidences a lack of knowledge about his assets. The Unit was registered in the name of Baisco and the testator’s treatment of the Unit in his third Will as his own property is consistent with the way the parties treated the Unit in the property settlement. In fact, the testator also ignored the existence of the Family Trust in his earlier Wills. Whilst there was evidence that the testator had invested in some successful investment properties, there was not, in fact, any evidence that he had a good understanding of the intricacies of the businesses or of these legal issues. It is clear he left all the paperwork to Dawn Barton and there is no evidence that he had a full understanding of the nature of the Family Trust and how it operated.
  1. I do not think that the failure to mention the Family Trust at any stage in the preparation of any of the Wills means he did not understand the nature and extent of his assets at the time he executed these Wills. I consider that his understanding of his asset position was consistent in relation to all three Wills. I also consider that the disposition of the Unit by his third Will reflected the true position as agreed between the parties in the property settlement. I consider that both the testator and Dawn Barton considered the Unit, for all intents and purposes, to be the testator’s. As previously indicated, I do not consider Dawn Barton’s evidence that they both thought that the Unit continued to be the property of the Family Trust to be credible because this is simply not consistent with the other evidence.
  1. I also consider that the discussions the testator had on 28 July 2005, firstly with the plaintiff and then with Vitita Sukrod, clearly indicate that the testator had a good knowledge of his assets. I accept Ms Sukrod’s evidence that when she and the testator returned from the plaintiff’s office that day the testator fully explained to her what his assets were and he expressed his wishes in relation to her future. I consider that Vitita Sukrod was a careful and credible witness and I accept her evidence. I do not consider that she was in any way evasive in her answers to questions, including questions about other relationships. In particular, I consider her evidence as to the conversation she had with the testator on 28 July to be entirely believable. I consider that the descriptions and the values written down were clearly those of the testator and included his valuations, which I consider were sufficiently accurate. Indeed, I consider that the terms used to describe the property are in fact indicative of dysphasia in that he did not give the properties the more sophisticated descriptions by reference to their addresses but, rather, gave them the very simple descriptions of house, money, farm, bank, and building.
  1. Adam Barton criticises the fact that the third Will has the effect of placing the testator’s second wife into partnership with his first wife and other partners in relation to the three investment properties. The difficulty with this argument is that this was also the effect of the second Will and there is no submission that the testator did not have capacity to execute this Will. The testator clearly had great faith in his first wife, he considered her a good book-keeper, and had maintained a good relationship with her. He obviously considered that the arrangement was viable. The fact that the testator set up what others consider to be an impractical arrangement does not indicate that he lacked capacity on either occasion. This argument clearly has no substance.
  1. There is no doubt about the evidence of a tumour growing in the testator’s brain and this clearly evidences physical incapacity, but this is not evidence per se of mental incapacity. I accept the evidence that the testator was not very forthcoming with information about the operation to Adam Barton on 31 July 2005, however, I consider that this evidence is consistent with the testator not wanting to talk to him about his medical condition rather than being evidence of an inability to talk about it. His oldest friend, Bill Morgan, also considered he had been “fobbed off”. The evidence of the plaintiff, Nada Morgan, Pamela Benton, and others was that he was having difficulty coming to terms with his diagnosis and was tearful and devastated. I do not consider that a reluctance to talk about his health to his son is necessarily indicative of cognitive failure on the part of the testator.
  1. Furthermore, there is no doubt that the testator had dysphasia; that is, he had trouble searching for the correct word to use. Mixing up his wife’s name in the circumstances is evidence of expressive dysphasia, but that does not indicate that he did not understand that he had a wife and did not understand who his wife was. Expressive dysphasia relates to difficulty with expression rather than understanding. Whilst Dr Konkoly concluded that he considered the testator had receptive dysphasia, there is simply no evidence of any example of this.  Furthermore, there is no indication that he did not understand what was being discussed at any stage in relation to his treatment and the medical notes indicate he signed the medical consent form in relation to his operation.  Dr Redmond gave some handwritten information to the testator on 27 July 2005 during the consultation, and they are exhibited to Vitita Sukrod’s affidavit.  The note states, “…[t]his tumour cannot be completely removed or cured with surgery.  It is inoperable”[45]  (emphasis added).  Later in the note it states, “…[h]owever I recommend a biopsy is performed.  To identify the type of tumour to give a prognosis and tailor treatment to the tumour.”  The fact that the testator spoke of removal to the solicitor is not necessarily indicative of confusion.  A biopsy, in fact, involves the removal of a sample of the tumour and Dr Redmond himself spoke in terms of removal.   Indeed, the fact remains that the specialist neurosurgeon allowed him to sign the consent form indicating he understood the operation and Dr Cox also discussed the treatment options with him.
  1. I consider that Dr Konkoly’s evidence is important but needs to be considered in the context of the other evidence. Dr Konkoly’s evidence about a lack of testamentary capacity is not based on an understanding of the test for testamentary capacity. In addition, the opinion is not based on any formal testing he or anyone else carried out at the time. Dr Konkoly’s opinion about capacity was based, to a large extent, on the scenario posed by Counsel for Adam Barton and is based on the proposition that the testator had “forgotten” collecting the second Will from the bank and forgetting that he had not been able to change his account into a joint account.  I agree with the submission of the plaintiff, that the factual premise upon which the conclusion is based was not established.
  1. Furthermore, there is no evidence that the testator told the plaintiff that he had changed the bank account into a joint account. The evidence was simply that they had gone to the bank and that he had “…changed the account.” The plaintiff thought this meant he had made it into a joint account, as they had discussed, but there is no evidence that that is what the testator actually told the plaintiff. This answer that he had “changed the account” is consistent with a different, but just as effective solution to the cash flow problem he knew would occur on his death. What actually happened was that he had transferred funds to Vitita Sukrod. Indeed, he had rejected the option the bank had suggested, which was to give Vitita Sukrod authority to sign on the account, as he knew this was not the solution he wanted. I consider that his rejection of one option and the formulation of a different and more effective option is in fact powerful evidence of his comprehension and cognition.
  1. Furthermore, he did not say he had not been able to get his Will from the bank. He said he “…could not find the earlier Will”, which may simply be that he had misplaced it after he collected it. Vitita Sukrod apparently found the original of the second Will amongst his papers at the Unit after his death. It is also clear that the second Will and the Power of Attorney were both held at the bank. The plaintiff’s file note of 28 July 2005 actually records that the testator had the Power of Attorney, which means he had collected the Power of Attorney from the bank and remembered doing so.  I do not consider that there is evidence to indicate that the testator had forgotten going to the bank or collecting his second Will and Power of Attorney, but there is evidence he couldn’t “find” the Will on 28 July.

Testamentary capacity

  1. In Timbury v Coffee[46] Dixon J reformulated the classic statement in Banks v Goodfellow[47] of the matters necessary to establish testamentary capacity as follows:

Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner’ (per HoodJ., In the Will of Wilson   [21] , at p. 199). ‘If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it’ (per CresswellJ., Symes v. Green   [22] )--Cf. per HolroydJ., In the Will of Key   [23] . ‘In the end the tribunal--the court or jury--must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will…’”

  1. A helpful statement in relation to the onus of proof is set out in the decision of Bailey v Bailey.[48]  In that decision Isaacs J set out the following relevant principles:[49]

“(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.

(2)This onus means the burden of establishing the issue.  It continues during the whole case and must be determined upon the balance of the whole evidence.

(3)The proponent’s duty is, in the first place, discharged by establishing a prima facie case.

(4)A prima facie case is one which, having regard to the circumstances so far established by the proponent’s testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator.

(5)A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments.

(6)The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances.

(7)As instances of such material circumstances may be mentioned:

(a)the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries;

(b)the exclusion of persons naturally having a claim upon the testator;

(c)extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit.

(8)Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.

(9)To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.

(10)The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.

(11)While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.

(12)Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.”

(footnotes excluded)

  1. It is clear, therefore, that the legal burden always lies on the person propounding the Will to prove that the testator knew and approved of its content at the relevant time and that the person propounding the Will must satisfy the court that the instrument is the last Will of a free and capable testator. Normally, once there is evidence of testamentary capacity and due execution of the Will, a rebuttable presumption arises that the testator knew and approved of the contents at the time of execution. The evidential burden, therefore, then shifts to the person opposing the Will to rebut this presumption.

Discussion

  1. The testator clearly had a brain tumour which was growing. He did have certain deficits. It is clear that the testator was forgetful on 28 July 2005. There is no dispute about that, and the plaintiff in fact made a note that he was forgetful when he saw him on 26 July 2005. The fact that he said he could not find his earlier Will is evidence of this forgetfulness. He also had some expressive dysphasia at times, particularly as the conversation progressed.
  1. I consider that whatever deficits the testator had on 28 July went substantially to memory; that is his ability to recall the events. I do not consider that the testator’s lapses in memory are evidence of his inability to understand those events. In relation to the Will, the Enduring Power of Attorney, and the bank account, he understood what he had to do and he had achieved his purpose. He retrieved the second Will and Enduring Power of Attorney from the bank. He had also managed to arrange a large injection of funds into Vitita Sukrod’s bank account when he was unable to make his account a joint account. I consider that the testator understood what he had to do and achieved what he wanted. There is no evidence that the bank had any concerns about his presentation or instructions to them.
  1. The plaintiff is a solicitor of the Supreme Court of Queensland and an experienced practitioner. He knew the testator well, both socially and professionally for many years, and had acted for him in his divorce and in the preparation of his previous Wills. Whilst he was the executor of the third Will, he received no legacy or any benefit under this Will. Importantly the plaintiff indicated that he had no difficulty in understanding the instructions he was given and there was no speech difficulty or confusion apparent, although there was some searching for words and he was forgetful. Even when challenged in cross-examination, the plaintiff’s evidence was that he was in receipt of clear instructions and that these instructions prevailed even when he tested the testator. He also gave evidence that he had asked the testator in his presence to read the third Will, which he did, and he confirmed that the contents was to his satisfaction. The witness, Ms Imhoff, also indicated that she had no reservation as to attestation and execution of the third Will.
  1. Both the plaintiff and the witness to the third Will, Ms Imhoff, were adamant that the testator was not slurring his speech, nor was there anything to excite their suspicion on 28 July 2005. Furthermore, Robert Cashman saw him this same day and indicated that he did not ascertain that there was any irrationality or confusion. There is, in fact, no evidence of any concern from anyone who saw the testator on 28 July 2005.  The prima facie evidence is that the instructions to the plaintiff were clear, precise, and forthright and when challenged, he was able to sustain his instructions and provide a reason for them.
  1. Did the testator have capacity to execute the third Will and did he know and approve its contents? Did he satisfy the requirements set out in Banks v Goodfellow? That is, did he:
  1. understand the nature of the act and its effect;
  1. understand the extent of the property of which he was disposing;
  1. comprehend and appreciate the claims to which he ought to give effect; and that no disorder of the mind poisoned his affections, and no insane delusion influenced his word?
  1. I consider that the testator fully understood the nature of the decision he was making. It is clear when he came to making his final Will on 28 July 2005 the testator wanted to ensure that Vitita Sukrod was provided for and looked after. The evidence indicates that it was not the plaintiff who came up with options as to how to achieve this end but rather it was the testator who on 28 July, after reading through the second Will, indicated what his instructions were in this regard. He crafted a Will which would ensure his wishes were carried out. He also stated he wanted the plaintiff as his executor. This was not something the plaintiff had suggested but rather it was clearly the testator’s wish. It was the testator who gave firm instructions.
  1. I also consider that the testator was cognisant that the consequence of the Will was that his son would get nothing because when he was challenged by the plaintiff and told that this was the effect of the third Will the testator agreed that this was the consequence and indicated that “…his mother would look after him”. Furthermore, the evidence indicates that the testator fully understood this consequence because some two weeks later in hospital, when Adam Barton queried the testator about the third Will, the testator remembered the contents of his Will and told Adam Barton he had not been provided for. When Adam specifically asked what had happened to the businesses he said, “…half to Vitita and half to Dawn.” This is, in effect, the consequence of the Will and the property settlement in terms of the businesses. In all of the circumstances I consider that the testator knew the consequences of his instructions.
  1. I also consider that the evidence does indicate that the testator understood the estate he was disposing as previously discussed in paragraphs [77]–[83] of this decision.
  1. I also consider that the testator understood that his son had a claim on the estate and that, despite this claim, he would not be provided for. Whilst there is clear evidence that the testator was a broken, sad, and devastated man on both 26 and 28 July 2005, and there was some evidence that the testator was vague, forgetful, and that he had trouble finding the right words to use on 28 July, I consider that the testator had the relevant capacity to make the third Will and to know and approve the contents of that Will.  As Muir J said in Scattini & Anor v Matters:[50]

“The ultimate question for the court is not the appropriate medical classification or description of any illness or incapacity suffered by a testator but whether the testator suffered from a ‘delusion’ or other incapacity which affected the making of the will.  The enquiry identified by Williams J in Timbury v Coffee is whether ‘the delusion overmastered the judgment at the time of executing the will to such an extent as to render him incapable of making a reasonable and proper disposition of his property or of taking a rational view of the matters to be considered in making a will.’”

  1. I consider, therefore, that the testator, when making this third Will was able to make a reasonable and proper distribution of his property and that he took a rational view as to the matters to be considered in making a Will. He did know the extent of his property and those who had a claim on it. He clearly considered that his new young wife who he had displaced from Thailand had a greater claim on him than his fully employed son who was in fact already being substantially supported by his mother.  He also knew of their very strong bond and that he would be the major beneficiary of her estate.  I consider he knew the relative positions of both parties.  With full knowledge of these factors he then made his third Will.  I also consider that the testator read and understood the contents of the Will before signing it.  I find that the testator had testamentary capacity to execute the third Will.
  1. I pronounce for the full force and validity of the Will dated 28 July 2005 and Order that probate in solemn form be granted to the plaintiff, the executor named in the Will subject to the formal requirements of the registry.

The application for a declaration of trust

  1. Among the assets the testator left to Vitita Sukrod in his third Will were his “…shareholdings in Baisco Reserve Pty Ltd the registered proprietor of Unit 37” at Kangaroo Point. The testator clearly thought he was competent to gift the Unit to Vitita Sukrod given that since the property settlement he was the only shareholder in Baisco. However, as previously indicated, Baisco is the trustee of the Family Trust. Adam Barton makes an application for a declaration that the Unit is held by Baisco on trust for the beneficiaries of the Family Trust and that the only existing beneficiaries are Adam Barton and Dawn Barton. The question, therefore, is whether Baisco owns the Unit in its own right or as trustee for the Family Trust.
  1. Adam Barton claims that since the purchase of the Unit, Baisco has declared that it held the Unit on trust for the Family Trust. In particular, he claims Baisco listed the Unit as a fixed asset in the balance sheets of the Family Trust from the financial year June 1997 and that the income and expenses were disclosed in the balance sheets and the tax returns of the Family Trust from 1997. The testator signed the tax returns as the public officer of Baisco.
  1. Adam Barton submits that these documents are also sufficient to satisfy the requirements to s 11(1)(b) of the Property Law Act 1974 (Qld), that a declaration of trust respecting any land must be in writing.  He also seeks an Order that the Court direct the Registrar of Titles under s 187 of the Land Title Act 1994 (Qld) to amend the title to reflect the true beneficial owner of the Unit.
  1. Adam Barton also seeks Orders for the appointment of a new trustee pursuant to s 80 of the Trusts Act 1973 (Qld), a declaration that Vitita Sukrod has no interest in the Unit, and that Baisco, the defendant by counter-claim, account for the money it has received or would have received but for its breach of trust.
  1. Adam Barton essentially submits that the Unit was not an asset of the testator and accordingly he could not dispose of it in his third Will.
  1. The plaintiff as executor submits that the Unit is an asset which the testator could dispose of as it was owned by Baisco in its own right rather than as trustee because:
  1. Baisco is the registered proprietor on the Title Deed;
  1. Baisco was not recorded as trustee in the nominated space on the Form 24 Statement provided to the Titles Office at registration; and
  1. The Family Court Consent Orders indicated that the Unit was owned by Baisco.

The Family Trust and the Unit

  1. The Family Trust is a discretionary trust and was settled on 31 March 1978. The Family Trust was initially established to transact the family business operations but the family sold the business in the 1980s. The only beneficiaries of the Family Trust were the testator, Adam Barton, any future children of Adam Barton, any spouse of any future children of Adam Barton, Dawn Barton, any future children of Dawn Barton, and the testator’s parents who are now deceased. Clause (5) of the Family Trust Deed provides that the trustee could at its absolute discretion, to be exercised in writing, pay the capital and any income or apply the same to the benefit of any one or more of the beneficiaries.

Judgment-Image

Baisco Reserve Pty Ltd

  1. Baisco was appointed as trustee of the Family Trust. Baisco was incorporated on 14 April 1976 and the only directors and shareholders were the testator and Dawn Barton.  Baisco was trustee and held funds pursuant to the Trust Deed.  This was not its only role however.  Income earned jointly by the testator and Dawn Barton was loaned to it.  Adam also loaned money to it.  It acted as a reservoir of funds of the members of the family.
  1. In March 1997, when Baisco purchased the Unit at Kangaroo Point for $401,000, Dawn Barton deposes that the testator told her that the “Trust” had put a deposit on it and that he “....was intending to meet the purchase price from the ‘Trust’, by which he meant the Baisco Reserve account”.[51]  I consider that what the testator told her was that Baisco was going to purchase the Unit and that he did not make any reference to the Family Trust.  I consider that the reference now to the Family Trust is in fact a reconstruction by Dawn Barton of that conversation.  This evidence is simply not consistent with the documentation at the time of the purchase or their subsequent treatment of the Unit.
  1. The testator advised Dawn Barton that he was going to live there and initially did so. The purchase price was paid in full by Baisco, as well as the costs of acquisition, which included legal costs and stamp duty. Baisco is the registered proprietor of the Unit and there was no reference in any of the documentation executed at the time that it was held on trust and it is not recorded on the Title Deed. After the purchase of the Unit Dawn Barton and the testator separated but reconciled after a couple of months and he returned to the family home at McDowall.
  1. The Unit, however, subsequently became listed as an asset of the Family Trust. The family accountant of some 30 years, Mr Ian Barlow, gave evidence that he was not given instructions that the Unit was to be owned by the Family Trust and was not, in fact, contacted by the testator when he purchased the Unit in the name of Baisco. Mr Barlow indicated that he became aware that Baisco funds were used to buy the Unit when he came to do the tax returns for the 1997 year.  The Unit was thereafter reported as an asset of the Family Trust in annual financial statements and tax returns which were read and signed by the testator.[52]  The Unit was rented out between 1997 and 2000 until the testator returned to live at the property when the parties again separated in June 2000.  He then resided there until he died and paid all expenses and outgoings.  He did not pay rent during the time he resided there.[53]
  1. Mr Barlow gave evidence that when the couple bought their investment properties they usually did so in their own names and not in the name of the Family Trust. Dawn Barton had always done the bookkeeping for the Family Trust, the family business, the testator, her own business interests as well as a small business that Adam Barton operated. Both the plaintiff and Adam Barton confirmed this and indicated that it was Dawn Barton who attended to all the book work and, as Adam Barton said, his father was more the “hands on” person in terms of the actual physical side of the business and Dawn Barton did all the paperwork.
  1. Dawn Barton also deposed that she and the testator in their individual names each owned, as tenants in common, shares in various properties in partnership with other parties.[54]  She also confirmed that there was only one bank account which was in the name of Baisco and when the properties earned income it was directed to the Baisco bank account along with income from the Family Trust.  Dawn Barton stated that a loan account was created in their joint names against the Family Trust.  They did not keep separate bank accounts and withdrew money where necessary from the Baisco account.  Even after their separation Dawn Barton continued to manage money for the testator and would transfer money electronically from the Baisco account to him, initially to his Visa account and then to specific bank accounts nominated by him.[55]

Findings

  1. Before there could be declaration of a trust as sought by Adam Barton I would need to consider the intention of the testator at the time of the purchase of the Unit. In this regard I note the following:
  1. There is no evidence that the intention of the testator at the time he purchased the property was that the Unit was to be a Family Trust asset and the registration of the Unit in the name of Baisco does not support such an inference.
  1. The testator was about to separate from his wife when he purchased the Unit and in fact immediately moved in to the Unit after the purchase.
  1. Dawn Barton was unaware of the purchase of the Unit until after the testator had paid the deposit.
  1. Dawn Barton’s evidence was that there was only one bank account into which all funds were paid and from which funds were expended.
  1. All income of the testator and Dawn Barton went to Baisco, where it was recorded as a joint loan by them to Baisco.
  1. There was no advice to the accountant that the Unit was a Family Trust asset at the time the Unit was purchased.
  1. The accountant did not list the Unit as an asset of the Family Trust until some time subsequent to the purchase and he did so without specific instructions from the testator to do so.
  1. The terms ‘Baisco’ and ‘Family Trust’ were used interchangeably by both Dawn Barton and the testator without a real understanding that different interests were involved.
  1. I do not consider that there is in fact clear evidence that it was the intention of the testator that the Unit was to be a Family Trust asset. Neither do I consider that there is evidence that it was the intention of Baisco, as manifested by the intention of the testator, who had signed the contract as director, that when the Unit was purchased the intention was that it was to be a Family Trust asset. I consider that this was not the intention of Baisco. I do not consider that either the testator or Dawn Barton had a good understanding of the Family Trust and that it was in fact a separate legal entity from Baisco. I consider the intention was that Baisco was the owner of the property, as the Title Deed reflects. Furthermore, both the testator and Dawn Barton continued to act as if the property was owned by Baisco and they clearly conducted their property settlement on this basis. Neither of them advised their respective legal advisers at the time of the settlement that the Unit was an asset of the Family Trust.
  1. The Unit did, however, subsequently become listed as an asset of the Family Trust.

The Family Court settlement proceedings

  1. As has been set out previously, the testator and Dawn Barton entered into a property settlement which split their assets into an equal distribution. Dawn Barton took the property at McDowall and the testator took the Unit. In their affidavits in the Family Court, they both deposed that the Unit was an asset of Baisco and that the Unit was an asset in which they each held a half share valued at $280,000.[56]  By Consent Orders reflecting the agreed property settlement filed in the Family Court, Dawn Barton confirmed her resignation as a director of Baisco.  She also relinquished any right or claim she may have had to the Unit and she transferred her share in Baisco to the testator.  Dawn Barton advised Mr Barlow that she had relinquished her rights to the loan account in the joint name of herself and the testator to Baisco and he was to record her part of the loan in the financials as a debt owed wholly to the testator.  During these proceedings no reference was made to the Family Trust.  The Consent Orders identify the Unit as an asset of the company.
  1. Furthermore, a copy of the balance sheet and tax return for Baisco as trustee for the Family Trust for the financial year ending 30 June 2005 is in evidence and the balance sheet records, in deferred liabilities, a loan account of the testator in an amount of $381,957, whereas in previous returns this was recorded as a debt of both the testator and Dawn Barton.
  1. The evidence indicated that the testator was very averse to having to pay capital gains tax or stamp duty. He knew that the transfer of the Unit into his own name would attract stamp duty on his calculations of $22,000. He, therefore, left the Unit registered in Baisco’s name.
  1. The Family Court Consent Orders indicated that after the property settlement the Unit was the only asset of the company and the testator had all the shares in the company. When the testator made his Will, no reference was made to the fact that the Family Trust was in existence and there was no discussion of the relevance of this entity with the plaintiff.
  1. I consider that the terms of the Family Court Consent Order, and the testator and Dawn Barton’s declarations to the Family Court are consistent with the testator and Dawn Barton believing that Baisco was the owner of the Unit. They were both attempting to divide and distribute the property of which they assumed, due to their shareholding in the company, they had full ownership of and therefore had the ability to distribute and divide as they wished.
  1. The evidence establishes that once the McDowall property had been transferred into Dawn Barton’s name and she had resigned as director of Baisco, she informed Mr Barlow that she had relinquished her rights to the loan account, which was in their joint name, to Baisco.  Mr Barlow was asked by Dawn Barton to record her part of the loan in the financials of the company as a debt owed wholly to the testator or, “…i[]n other words, Dawn’s half share of the loan account with Baisco Reserve was transferred to Tony.”[57]  This is recorded on the balance sheet as at 30 June 2005.[58]  All previous returns and statements had been recorded by Mr Barlow as debt in the name of the testator and Dawn Barton.
  1. When the testator and Dawn Barton informed Mr Barlow they were getting a divorce, they both stated that they intended for Dawn Barton to receive the McDowall property and the testator to receive the Unit.[59]
  1. Furthermore, the testator and Dawn Barton were the directors of Baisco and they were effectively the controlling mind of the trustee. I consider that the controlling minds of the company intended the Unit to be transferred to the testator and they had a clear intention to do so.
  1. Accordingly then, even if I am wrong and the Unit should be considered a Family Trust asset prior to the property settlement, I consider that at the time of the property settlement the trustees had applied an asset of the Family Trust for the testator’s benefit. I consider that the Consent Orders were a valid exercise of the trustee’s powers under the Trust Deed. The trustees acted in accordance with clause 5(b) of the Trust Deed such that there was an application of an asset of the Family Trust to the benefit of the testator who was a beneficiary of the Family Trust. Furthermore, this was in writing, as required, as it was signed by both parties. Therefore, even if it was a Family Trust asset initially, I consider that at the very least from the time of the Consent Orders the Unit was clearly, from that point on, an asset of Baisco in any event.
  1. Furthermore, the testator’s conduct supports this finding. He lived in the Unit, he did not pay rent, and he paid all the outgoings and rates. He also assumed he was competent to gift the property to Vitita Sukrod given that in his third Will and in earlier Wills he referred to his shareholding in Baisco and that this shareholding in Baisco was to be gifted to Ms Sukrod. Furthermore, the third Will specifically states that Baisco was the registered proprietor of the Unit.[60]

Adam Barton’s arguments

Declaration of trust

  1. The argument put forward on behalf of Adam Barton is that the purchase of the Unit was made with Family Trust money and that there is no evidence that the trustee made a distribution to the beneficiaries of the Family Trust. In any event, he submits that Baisco was not a beneficiary. Adam Barton submits that all that is required for a declaration of trust is for the Court to be satisfied that it was the intention of the trustee, at the time of the purchase of the property, that it was to be a trust asset; and that the property has never been distributed from the Family Trust.
  1. He further submits, that the failure to accurately record the beneficial ownership on the Title Deed, and the subsequent representations made by the testator and Dawn Barton in the Family Court proceedings were either errors or breaches of trust. Adam Barton contends that because the Unit appeared in the Family Trust’s financial documents each year from the time it was purchased until 2005, it is unlikely that the testator and Dawn Barton did not intend that the Unit was to be a Family Trust asset at the time of purchase.
  1. As I have indicated, I am not satisfied that there was an intention that the Unit be a Family Trust asset. Adam Barton also submits that the Unit has never been distributed from the Family Trust and remains a Family Trust asset because Baisco was not a beneficiary of the Family Trust and there is no evidence that the trustee, at the time of purchase or at any other time, made a distribution to the beneficiaries of the Family Trust. It is true that Baisco is not itself a beneficiary of the Trust. If it was correct that the Unit was an asset of the Trust, the transfer of any beneficial interest in the Unit to Baisco would not be a distribution to Baisco as a beneficiary; but it was the application of an asset of the Trust for the benefit of the testator who was a beneficiary of the Trust and would, in any event, have been in accordance with the provisions of clause 5(b) of the Trust Deed.
  1. This argument must therefore fail.
  1. Neither do I accept that a resulting trust should be imposed because of the clear intention of the parties at the time of the purchase. As Jacobs’ says:[61]

“A resulting trust will be presumed where, on a purchase, the legal title to real or personal property is vested in someone other than the person who is proved (by parol or other evidence) to have provided the purchase money.”

(footnotes excluded)

However:[62]

“The presumption in favour of a resulting trust in the case of a voluntary transfer of realty or a transfer to a person other than the purchaser and the presumption against a resulting trust in the case of a transfer to the wife or child of, or person in loco filii, to the purchaser may be rebutted – that is, where the presumption of a resulting trust arises, evidence is admissible to prove that no trust was intended, and where there is a presumption against a resulting trust, as in the case of a transfer to the wife or child of the purchaser, evidence will be admitted to show that the wife or child was intended to be merely the nominee of the purchaser.  Further, in either class of case, evidence will be admitted to show that the transferee of the property holds it not beneficially (in rebuttal of a resulting trust) nor for the purchaser (in rebuttal of a presumption of advancement) but on express trust for a third party.  In other words, the law endeavours always to give effect to the intentions of the parties, but in the absence of any evidence of such intention except the bare fact of the transfer to someone other than the purchaser, it presumes, until the contrary is proved, in the first case, in favour of the person providing the purchase money and, in the other, in favour of the wife or child or person in loco filii.

In order to ascertain the true intention of the person who has paid the purchase money, the court, apart from receiving testimony from that person as to that person’s intention, will admit evidence (written or parol) of the circumstances surrounding the transfer: for example, the relationship of the parties, and statements made by the parties.  Evidence of acts and declarations of the parties before or at the time of the purchase or so immediately after it as to constitute a part of the transaction will be admissible either for or against the actor or declarant.”

(footnotes excluded)

  1. As I have indicated the true intention of the parties was clearly to purchase the property in the name of Baisco.

Constructive Trust

  1. It is also submitted by Adam Barton that Baisco held the Unit on constructive trust for the beneficiaries. A constructive trust will be imposed without reference to the intention of the parties in a situation where it is unconscionable for the party holding title to deny the interest of the other party.[63]
  1. Adam Barton submits the constructive trust should be imposed because of Baisco’s breach of fiduciary duty. The breach being either its misappropriation of Family Trust money or the failure to instruct the Registrar of Titles as to the correct beneficial owner.[64]  The High Court of Australia in Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd stated:[65]

“…[t]he doctrine of Keech v Sandford is shortly stated by saying that a trustee must not use his position as trustee to make a gain for himself: any property acquired, or profit made, by him in breach of this rule is held by him in trust for his cestui que trust.”

  1. It was also submitted that Baisco was obliged to act in the best interests of the beneficiaries and the failure to ensure that the Title Deed reflected the true beneficial ownership of the property was a breach of the obligation. He submits that the Court should not permit Baisco, as trustee, to gain a beneficial ownership as a result of a breach of trust. Adam Barton submits that Baisco should now make good any loss suffered by the beneficiaries of the Family Trust because a trustee acting in breach of trust is liable to make good any loss suffered by the trust regardless of whether the breach was in good faith.[66]  He submits that Baisco is obliged to put the Family Trust in the same position it would have been had the breach not occurred.[67]
  1. It is to be remembered that Baisco was not simply the trustee of the Family Trust. All monies which became available to the testator and Dawn Barton from their investments were deposited in to its bank account. Money was then paid to them or on their behalf as occasion required. In my view, the evidence establishes that the testator and Dawn Barton intended that the Unit be purchased with their money deposited in Baisco. I, therefore, do not consider that on purchase of the Unit Baisco held it on constructive trust.
  1. Further, I consider that the conduct of the parties at the time of the Family Court Consent Order was such that it would in fact be unconscionable to now impose such a trust. I consider that the Consent Orders were negotiated on the basis that the Unit was actually owned by Baisco and would essentially become the property of the testator as he was the only director and shareholder. It must be remembered that when Dawn Barton parted with her share in Baisco, she also gave up a share of the debt owed by Baisco, as trustee, to herself and the testator. This was a personal asset of the testator and Dawn Barton, not a Family Trust asset. This debt was substantial but was not referred to in the Family Court settlement. This debt has not been paid and Adam Barton submits that it is now owed to the estate and has indicated that Baisco may sell the Unit in order to pay the debt in its capacity as trustee.
  1. I do not consider that the circumstances of this case are such that a constructive trust should be imposed such that the Family Trust is the legal owner of the property.
  1. It was further argued that a constructive trust should be imposed because the representations made by the testator and Dawn Barton in the Family Court proceedings were errors or a breach of trust. In the past, directors of corporate trustees have not been personally liable for the company’s breach of trust.[68]  It was submitted that this rule does not apply when the trust property can be followed to the directors themselves.[69]  Directors may be personally liable:
  • For breaching their fiduciary duties; or[70]
  • As knowing accessories to the company’s breach under the second limb of Barnes v Addy;[71]or
  • Under s 197 of the Corporations Act 2001 (Cth) which provides that a person who is a director of a corporation when it incurs a liability while acting, or purporting to act, as trustee, is liable to discharge the whole or a part of the liability if the corporation has not discharged, and cannot discharge, the liability or that part of it.
  1. As I have indicated, I do not consider that the Unit was held by Baisco as trustee of the Family Trust as an asset of the Family Trust.
  1. Accordingly, I do not consider that there is any basis for a declaration that the Unit is an asset of the Family Trust and the application for the declaration is refused. I consider that the Unit was an asset of Baisco at the time of the testator’s death. I do not consider any further declarations are required as Baisco is currently the registered proprietor of the Unit.

The family provision application BS 3735/06

  1. Having determined that the third Will was valid and having determined what was able to be distributed by the third Will, the final issue relates to Adam Barton’s application for provision out of the estate.
  1. Adam Barton is the applicant in this proceeding and he seeks provision out of the estate pursuant to Part 4 of the Succession Act 1981 (Qld).  Section 41 of the Act provides:

41 Estate of deceased person liable for maintenance

(1)If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A)However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased’s persons death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

(2)The court may—

(a)attach such conditions to the order as it thinks fit; or

(b)if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or

(c)refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.”

  1. The classic formulation of the correct approach to such an application is set out in the High Court decision in Singer v Berghouse which stated the following:[72]

“The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life’?  The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Ltd.  The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder [(1951) 82 CLR 645] where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

  1. In the decision of Vigolo v Bostin,[73] the High Court of Australia affirmed that an application for provision is a two stage process.  In the present case, therefore, the first stage calls for a determination as to whether Adam Barton has been left without adequate provision for his proper maintenance, education and advancement in life.  If this first determination is made in his favour then the second stage arises and requires the court to decide what provision ought to be made for him out of the testator’s estate.  The first question is, in effect, a jurisdictional question and is determined upon the circumstances existing at the date of the testator’s death.  Although as Mason J stated in White v Barron:[74]

“There is an element of the artificial in saying that it is only after jurisdiction is established that the exercise of discretion begins, for the twin tasks which face the primary judge are similar.”

  1. In Vigolo v Bostin Callinan and Heydon JJ stated:[75]

“We do not therefore think that the questions which the Court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.”

  1. It is clear that Adam Barton has not been provided for in the third Will but that is not necessarily determinative of the jurisdictional issue as the decision in Vigolo v Boston makes clear.  In that case the eldest son of the testator had not been provided for in the Will.  The findings at first instance were that the financial dealings between the testator and the son showed that he had previously been adequately and proportionately compensated for his contribution to the farming business.  As Gleeson CJ[76] stated in relation to the decision at first instance:

“She held, and the Full Court agreed, that the appellant had failed to show that he was left without adequate provision for the matters referred to in the Act or that proper provision required that he ought to have been made a beneficiary in the testator’s will. No successful challenge to that conclusion can be made.”

  1. In coming to a determination of the application some of the issues that the court will need to take into account include the following:
  1. Whether the applicant is able to meet his own financial responsibilities;
  1. The amount which is necessary for his maintenance and survival;
  1. The size of the testator’s estate and the competing claims upon the testator;
  1. The standard of living of the applicant during the testator’s lifetime;
  1. The extent of contact between the testator and the applicant and the manner in which the applicant conducted himself in relation to the testator during his life; and
  1. The testator’s wishes and what those wishes were as they were communicated to the applicant.
  1. In the present case there is a substantial estate because the testator left assets at the time of his death in the order of $3.5 million. The testator did not leave any explanation for his failure to provide for Adam, other than his desire to ensure that his wife, Vitita Sukrod, was taken care of and his knowledge that Adam’s mother would take care of him.
  1. What was the nature of the relationship between father and son? Adam Barton had an ongoing relationship with his father and they had kept in contact. I consider, however, that the relationship had cooled somewhat since the break up of the marriage. When the testator remarried in October 2003 he did not invite Adam Barton to the wedding or even inform him until five months later, in March 2004. Adam Barton did not visit him at the Unit until the evening before his operation. It would also appear that he did not try to have a relationship with Vitita Sukrod. He was clearly unhappy about his father’s remarriage, particularly to a younger woman from Thailand.  Adam Barton’s evidence was that he and his father would catch up at coffee shops.  I note that, whilst the testator was told that he had a brain tumour on 25 July 2005, he did not tell his son until some six days later on the evening before the operation.
  1. There was also evidence from the plaintiff and Robert Cashman that the testator had been disappointed in Adam Barton in recent years. I note also that the testator had made Adam Barton his alternate executor in the first Will in October 2003 but that by the time of the second Will in June 2004 the testator had told the plaintiff that he did not want his son involved in the administration of his estate.
  1. I would conclude that, whilst Adam Barton previously had a moderately close relationship with his father, this relationship had become more distant in the years immediately preceding his death. The relationship was, however, an ongoing relationship.
  1. Adam Barton gave evidence, which was supported by Dawn Barton’s evidence, that the testator had led him to believe during his lifetime that if Adam Barton “…kept his nose clean”, all of the assets of the couple would one day be his. I accept this evidence. The evidence also indicated that Adam Barton had carried out minor maintenance work on the properties in conjunction with his father some years ago including chopping down trees, cleaning, and clearing rubbish. There had not been any such assistance in recent years.
  1. In relation to Adam Barton’s personal circumstances, he is in his thirties, he has been well educated, and has a reasonably secure job. He is currently divorced, having had a short marriage of some 12 months duration, which resulted in his mother paying $25,000 to his ex-wife by way of the property settlement. Adam Barton has indicated a desire to marry again and have children. He earns approximately $50,000 per year and is provided with a car for his employment. He has modest superannuation and no savings. In relation to his debts, he owns a property at Nundah which is subject to a Westpac Bank mortgage of $290,000 and is required to repay $1,953 a month. Of the $290,000 owed to Westpac an amount of $220,000.00 is fixed and there is a fully drawn line of credit of $70,000.
  1. I consider that Adam Barton was at times less than fully frank in his evidence, particularly in relation to the full amounts loaned to him by his mother. I also consider that his evidence with respect to his expenses and his future capacity to repay was less than satisfactory. Adam Barton owes various sums to his mother. He has an unsecured loan from his mother of $225,000, which includes the amount of $30,000 originally advanced in 2001 and a further advance of $185,000 in 2004 given to him to pay out the original bank loan.[77]  He also owes his mother $25,000 in respect of his property settlement with his former wife.  As the evidence emerged, it would appear that further advances were also made to Adam Barton by Dawn Barton of $25,000 in December 2007, $20,000 in February 2008, and $10,000 in May 2008.  These are, once again, apparently loans and Adam Barton has indicated he wishes to repay them.  It would seem clear on the evidence, however, that he currently has no ability to do so on his income.
  1. Dawn Barton has also advanced the sum of $160,000 to Adam Barton for legal fees and once again indicated that she hopes that this amount will be repaid to her. Dawn Barton conceded, however, that Adam Barton may never be in a position to repay her but still considered that the moneys given to Adam Barton were loans and not gifts. It is apparent from the evidence that Dawn Barton paid out Adam Barton’s original bank loan of $225,000 and he now owes his mother this amount. The repayment of that debt however has been suspended to allow Adam Barton to take out a substantial further loan of $290,000 from Westpac to renovate the home.
  1. In summary, Adam Barton’s current liabilities are:

Westpac Loan$290,000

Loans from his mother:

$225,000

  $25,000 (December 2007)

  $20,000 (February 2008)

  $10,000 (May 2008)

  $25,000 (property settlement with wife)

          $160,000 (legal fees)

Total          $755,000

  1. The only valuation on Adam Barton’s home is an amount of $585,000, which was done prior to the property settlement with his wife some two years ago. It would seem clear, however, that significant further funds in the order of $290,000 have been spent on the recent renovations. I consider that Adam Barton was being evasive when he would not be drawn on how much he considered his house to be worth, saying he would “…have no idea as to what it’s worth.”[78]  It is clear that the house is “…800 square metres, two storey home, air-conditioned upstairs, five bedroom, three bathroom, deck on the back, landscaped, fenced, driveway, carport.”[79]  I consider that the inference to be drawn is that the property is possibly worth at least $800,000 and given the purchase price and the funds spent on the renovation the value of the property may well be in excess of this.
  1. The evidence indicates that during the time of their divorce there was correspondence between the testator and Dawn Barton to the effect that Dawn Barton asked the testator to honour his promise to Adam Barton in relation to the properties. I consider, therefore, that the evidence supports a finding that during his lifetime the testator did indicate to Adam Barton that he would have an interest in the family properties.
  1. The evidence also indicates that Adam Barton is financially supported by his mother in many respects. She has provided significant sums of money to him, including amounts to pay for his property settlement with his ex-wife, to renovate his home and to fund the present litigation. It has also been established that he will substantially inherit his mother’s interest in the properties, as Dawn Barton gave the evidence at the hearing that Adam Barton was the major beneficiary under her Will.
  1. At the time of his father’s death, Adam Barton was not dependant on him at all because he was in employment and was being ably supported by his mother by way of loans. However, there was an ongoing, if somewhat diminished, relationship with his father where there was a past history whereby the testator had told him that he would end up with the businesses one day. In all of the circumstances, I consider the testator contributed to an expectation by Adam Barton that he would be inheriting from him. I consider that Adam Barton had an expectation that he would be provided for in his father’s Will by being given an interest in the family business of managing investment properties. That would have given him a regular income stream which would have made life comfortable for him. That has not occurred.
  1. Clearly then, this is a large estate and no provision has been made for Adam Barton at all in the testator’s third Will. Looking at the matter “in globo”[80] I consider that in all of the circumstances a factual finding should be made that adequate provision has not been made for Adam Barton.  Accordingly, I consider that the first question, which is the jurisdictional question, has been satisfied.  Once the first question has been satisfied then, the second stage of the process which was identified above begins.  The real question is what provision should be made given that this is a large estate?

What provision should be made for Adam Barton?

  1. In relation to this second stage, pursuant to s 41(1) of the Act the court has discretion as to whether or not to make an Order for further provision after the first jurisdictional threshold question has been met. If the first question is answered in the affirmative, the court, in exercising its discretion to make some provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the Order. In other words the court is required to take into account what has happened to Adam Barton since the death of the testator and Adam Barton’s actual circumstances at the time the application was heard.
  1. Some of the principles relevant to large estates were discussed in the decision of Anasson v Phillips.[81]  In that decision Young J said:

“If the estate is a large one, the Court has a slightly different approach.  The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated.  Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs.  In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor.  These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially p412.”

  1. Claims by adult sons were previously considered to be in a particular class of claim and various cases considered the principles to be applied. It is now established that adult sons are not “…a special class of persons who are prima facie disentitled to an order for provision.”[82]  Accordingly, no special principles are in fact to be applied.  There is no doubt that given the size of his estate the testator could have provided for both Adam Barton and Vitita Sukrod if he wished.  It is clear that Vitita Sukrod has been left with almost $3.5 million worth of properties.  She also has an income stream of over $200,000 per year.  All of this is additional to an amount of $500,000 that the testator gifted her in October 2004, as well as the $126,000 worth of superannuation that she received.  Vitita Sukrod was in employment in Thailand but it is uncontroversial that she has not contributed anything to the accumulation of the testator’s estate.  The evidence of the testator’s friends indicated that he had been very happy in this new relationship which was a relationship of some five years at the time of his death.  Vitita Sukrod has not been employed since her arrival in Australia and has moderate but thickly accented English.  She is currently 38 years of age and was brought to Australia by the testator away from the support of her family and friends in order to marry him.
  1. It is also clear that Adam Barton had an ongoing relationship with the testator for thirty one years but he is in employment, in good health, has a valuable asset, and receives generous and ongoing support from his mother, as predicted by the testator. He has no dependants and he is able to currently meet his liabilities from his own resources, except to the extent that he owes his mother an extensive amount of money. However, she is not pressing for repayment and this amount may never be paid. Having determined that the Unit was not an asset of the Family Trust I also consider that Adam Barton would not have any expectation of a distribution from the Family Trust in this regard and have dealt with his application on this basis.
  1. It is clear that by its terms s 41 of the Act is designed to protect eligible persons where inadequate provision is made for their proper maintenance and support in life. In determining what is meant by the word “proper”, in Vigolo v Bostin Callinan and Heydon JJ stated:[83]

“Its use, it seems to us, invites consideration of all of the relevant surrounding circumstances… [t]he use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the ‘station in life’ of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

  1. In considering the question of what provision should in fact be made for Adam Barton it is important to remember that the function of the Court is not to make a new Will for the testator. As Barton J stated in Re Buckland:[84]

“Were it my function to make a new will for the testator founding myself on what many people might reasonably consider a fair distribution of his wealth, no doubt the precise extent of the fortune to be disposed of would be of great importance, but I am enjoined to remember that this is not my function; my function is to ensure only that adequate provision is made for proper maintenance and support.

The plaintiff was no doubt disappointed, and one can readily understand it, that her father disposed of his fortune as he did; but the decision was one for him, subject only to the jurisdiction of this Court to ensure for her adequate provision out of his estate for proper maintenance and support.”

  1. Those words are particularly relevant in the circumstances of the current case. Adam Barton is no doubt disappointed by the provisions of his father’s third Will, but that decision was a decision for his father to make and this Court cannot re-write the Will. As Counsel for the respondent stated in Vigolo v Bostin[85] “…[t]he purpose of the legislation is not to redress a sense of grievance or hurt feelings or to promote family harmony.”  My function is only to ensure that adequate provision is made for Adam Barton’s proper maintenance and support.  As Kitto J stated in Worladge v Doddridge:[86]

“What is proper is to be tested by reference to the provision which in all the circumstances of the case satisfies, but does not exceed, the requirements of moral justice in regard to those particular purposes.”

  1. This approach was endorsed in the recent NSW Supreme Court decision Lumb v McMillan[87] where McLaughlin J stated:

“The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff.”

  1. The principles which apply in the exercise of the discretion were stated in Bosch v Perpetual Trustee Co Ltd:[88]

“As was truly said by Salmond J in In re Allen (Deceased), Allen v. Manchester [[1922] NZLR 218, 220]: ‘The Act is….designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances’”.

  1. Adam Barton has obviously lived comfortably all his life and was raised by parents who had a substantial income. He resided in the well appointed family home at McDowell until he left home at 24 years of age. He is an only child. He has a job which provides him with a moderate income but he has significant debts. Some of these debts have clearly been voluntarily assumed in order to raise his standard of accommodation by way of the renovations.
  1. In order to be debt-free in relation to the house, he would need to repay the loan from his mother of $225,000. He has in fact paid $10,200 of this amount which leaves almost $215,000 to pay. He now owes his mother a further $55,000 in relation to the house and Westpac $290,000. To own the house debt-free, therefore, means an amount of approximately $560,000 needs to be paid.
  1. Whilst there are further debts to his mother in relation to the property settlement and legal fees these debts do not arise in relation to the house.
  1. I consider that Adam Barton would be able to live comfortably and to a good standard on his own income if he were not required to make mortgage or loan repayments. The amount of $560,000 should see all of Adam Barton’s current liabilities in relation to the house discharged and would allow him (if he desired) to own debt free a substantial property which he has renovated to a good standard. He is currently living in this well appointed property in Nundah, an inner suburb of Brisbane.  I consider that this property is appropriately described as “good” accommodation, but is not luxurious.  The payment to him of such an amount could therefore leave him not only debt free but independent and self-sufficient.  I consider that this amount would constitute “proper’ maintenance.  This would give him “…a degree of comfort and freedom of anxiety for the future”, as referred to in Re Buckland No 2.[89]  Adam Barton would have a valuable asset and he would be able to make his own way easily on the income he currently earns from his own exertions.  There was no evidence that Adam Barton had experienced or would experience difficulty with employment in the future, given he was well educated and in good health.
  1. This figure takes into account the fact that he is an only child and that his mother’s financial circumstances are clearly comfortable and she has extensive assets which are similar in size to those of the testator. The evidence has established that she provides significant support to Adam Barton when he requires it. In any future emergencies that arise, Adam Barton will no doubt be generously supported by his mother in the same way she has done in the past. I also consider that this amount of $560,000 would have within in it the capacity to cover future exigencies given he could essentially be debt free. Furthermore, Adam Barton and his mother have an extremely close relationship and Dawn Barton has indicated that he is the major beneficiary of her estate. Accordingly, Adam Barton will inherit substantially upon her death.
  1. Pursuant to s 41 of the Act further provision should therefore be made for the proper maintenance and support of William Adam Barton out of the estate of William Anthony Barton by a payment of a lump sum of $560,000 from the estate.
  1. I will hear from Counsel as to costs and the formulation of the Orders to be made.

Orders

  1. I pronounce for the full force and validity of the Will dated 28 July 2005 and order that probate in solemn form be granted to the plaintiff, the executor named in the Will subject to the formal requirements of the registry.
  1. The defendant’s amended counter-claim is dismissed.
  1. Pursuant to s 41 of the Succession Act 1981 (Qld) further provision should be made for the proper maintenance and support of William Adam Barton out of the estate of William Anthony Barton by a payment of a lump sum of $560,000 from the estate.

Footnotes

[1] Exhibit “PGD9” to the affidavit of PG Daley, filed 10 February 2006.

[2] Transcript of Proceedings, Day 1, p 11, ll 38-42.

[3] Exhibit “PGD8” to the affidavit of PG Daley, filed 10 February 2006.

[4] Transcript of Proceedings, Day 1, p 18.

[5] Exhibit “PGD11” to the affidavit of PG Daley, filed 10 February 2006.

[6] Exhibit “PGD12” to the affidavit of PG Daley, filed 10 February 2006.

[7] Exhibit “PGD14” to the affidavit of PG Daley, filed 10 February 2006.

[8] Transcript of Proceedings, Day 1, p 50, ll 27-28.

[9] As per valuations prepared by E-valuation Queensland Pty Ltd, 26 October 2007.

[10] As per valuation prepared by Bill Johnson Real Estate, 23 November 2007.

[11] As per valuation prepared by E-valuation Queensland Pty Ltd, 21 November 2007.

[12] As at 6 May 2008, see affidavit of PG Daley, filed 12 May 2008, para 6.

[13] As at trial (estimate only), see affidavit of PG Daley, filed 12 May 2008, para 6.

*If the Kangaroo Point property is not an estate asset there is a debt by Barton Family Trust to the estate of $381,957.00.

[14] (1970) LR 5 QB 549, 565.

[15] Transcript of Proceedings, Day 4, p 53, ll 38-39.

[16] Transcript of Proceedings, Day 4, p 65, l 43.

[17] Transcript of Proceedings, Day 4, p 54, l 15.

[18] Transcript of Proceedings, Day 4, p 54, ll 30-47.

[19] Transcript of Proceedings, Day 4, p 54, ll 47-51.

[20] Transcript of Proceedings, Day 4, p 55, l 45.

[21] Transcript of Proceedings, Day 4, p 59, l 40.

[22] Transcript of Proceedings, Day 4, p 68, ll 2-11.

[23] Exhibit 4.

[24] Transcript of Proceedings, Day 2, pp 55-56, ll 15-20 (55), ll 52-56 (56).

[25] Transcript of Proceedings, Day 1, p 50, ll 34-35.

[26] Transcript of Proceedings, Day 1, p 86, ll 16-17.

[27] Exhibit 5.

[28] Transcript of Proceedings, Day 3, p 30, l 49.

[29] Transcript of Proceedings, Day, p 20, ll 19-20.

[30] Transcript of Proceedings, Day, p 20, l 54.

[31] Transcript of Proceedings, Day 3, p 25, ll 1-8.

[32] Transcript of Proceedings, Day 4, p 9, ll 38-40.

[33] Exhibit 14.

[34] Transcript of Proceedings, Day 4, p 18.

[35] Transcript of Proceedings, Day 3, p 91, ll 5-15; p 92, ll 55-56; p 93, ll 1-2; p 97, ll 25-34.

[36] Transcript of Proceedings, Day 3, p 94; p 96, ll-21.

[37] Transcript of Proceedings, Day 3, p 102, ll 23-45.

[38] Transcript of Proceedings, Day 3, p 103, ll 3-5.

[39] Transcript of Proceedings, Day 4, p28, l 43.

[40] Transcript of Proceedings, Day 4, p 28, ll 47-55.

[41] Transcript of Proceedings, Day 4, p 30, ll 38-42.

[42] Transcript of Proceedings, Day 4, p 29, ll 44-45.

[43] Transcript of Proceedings, Day 4, p 30, ll 47-48; p 33, ll 23-24.

[44] Exhibit “PGD19” to the affidavit of PG Daley, filed 10 February 2006.

[45] Exhibit “VB4” to the affidavit of Vitita Barton, filed with leave on 26 May 2008.

[46] (1941) 66 CLR 277, 283.

[47] (1870) LR 5 QB 549.

[48] (1924) 34 CLR 558.

[49] Bailey v Bailey (1924) 34 CLR 558, 570-572.

[50] [2004] QSC 459, 18.

[51] Affidavit of MD Barton, filed 27 July 2007.

[52] Exhibit 1, vol 1, pp 19-51.

[53] Affidavit of V Sukrod, filed 2 May 2007.

[54] Affidavit of MD Barton, filed 27 July 2007, para 10.

[55] Affidavit of MD Barton, filed 27 July 2007, para 21.

[56] Exhibit “PGD9” to the affidavit of P Daley, filed 10 February 2006.

[57] Affidavit of ID Barlow, filed 13 October 2006, para 16.

[58] Copy of Baisco Reserve Pty Ltd balance sheet and tax return as trustee for the Family Trust as at 30 June 2005.

[59] Affidavit of ID Barlow, filed 13 October 2006.

[60] The last Will and testament of WA Barton, clause 3(b).

[61] JD Heydon, MJ Leeming, Jacobs’ law of trusts in Australia (7th ed, 2006) 240, [1210].

[62] JD Heydon, MJ Leeming, Jacobs’ law of trusts in Australia (7th ed, 2006) 246, [1213].

[63] Muschinski v Dodds (1985) 160 CLR 583, 613-614.

[64] Keech v Sandford (1729) Sel Cas T King 61; Chan v Zacharia (1984) 154 CLR 178, 198-9; Boardman v Phipps [1967] 2 AC 46.

[65] (1958) 100 CLR 342, 350.

[66] Grayburn v Clarkson (1868) 3 Ch App 605; Knott v Cotte (1852) 16 Beav 77.

[67] Re Dawson (deceased) [1966] 2 NSWR 211, 218.

[68] Wilson v Lord Bury (1880) 5 QBD 518.

[69] Bath v Standard Land Co Ltd [1991] 1 Ch 618.

[70] Mulkana Corp ML (in liq) v Bank of NSW (1983) 8 ACLR 278, 279.

[71] (1874) LR 9 Ch App 244; ASC v AS Nominees Ltd (1995) 133 ALR 1, 18; Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] 2 AC 378.

[72] (1994) 181 CLR 201, 209-210.

[73] (2005) 221 CLR 191.

[74] (1980) 144 CLR 431, 443, as cited in Singer v Berghouse (1994) 181 CLR 201.

[75] (2005) 221 CLR 191, 230-231.

[76] Vigolo v Boston (2005) 221 CLR 191, 207.

[77] Transcript of Proceedings, Day 2, p 88, ll 28-29.

[78] Transcript of Proceedings, Day 3, p 60, ll 57-58.

[79] Transcript of Proceedings, Day 3, p 61, ll 1-3.

[80] Re Elwell [1977] Qd R 141, 144-145.

[81] Anasson v Phillips (Unreported, Supreme Court of New South Wales, Young J, 4 March 1988).

[82] John De Groot; Bruce Nickel, Family Provision in Australia (3rd ed, 2007) 125.

[83] Vigolo v Bostin (2005) 221 CLR 191, 228.

[84] [1966] VR 404, 414.

[85] (2005) 221 CLR 191, 195.

[86] (1957) 97 CLR 1, 18.

[87] [2007] NSWSC 386, [26].

[88] [1938] AC 463, 479.

[89] [1967] VR 3, 4.

Close

Editorial Notes

  • Published Case Name:

    Daley v Barton & Anor; Barton v Daley

  • Shortened Case Name:

    Daley v Barton

  • MNC:

    [2008] QSC 228

  • Court:

    QSC

  • Judge(s):

    Lyons J

  • Date:

    24 Sep 2008

Litigation History

No Litigation History

Appeal Status

No Status