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  • Unreported Judgment

In The Will of Roland Kent Bulger Deceased

 

[2011] QSC 36

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

15 March 2011

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

14 March 2011

JUDGE:

McMeekin J

ORDER:

Direct that subject to the formal requirements of the registrar the will of 27 September 2007 be admitted to probate

CATCHWORDS:

SUCCESSION – WILLS PROBATE AND ADMINISTRATION – Probate and letters of administration – Lack of Testamentary Capacity - whether testator of sound mind during creation of second will

Uniform Civil Procedure Rules 1999 (Qld)

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Middlebrook v Middlebrook (1962) 36 ALJR 216
Re Estate Griffith (Deceased) Easter v Griffith & Ors (1995) 217 ALR 284
Worth v Clasohm (1952) 86 CLR 439

COUNSEL:

AM Arnold for the Applicant

SOLICITORS:

Grant & Simpson Lawyers for the Applicant

[1] McMeekin J:  The application concerns the testamentary capacity of the deceased testator, Roland Kent Bulger.  The Registrar has referred the question of capacity to the court pursuant to r 601(2) of the Uniform Civil Procedure Rules 1999.

[2] The testator died on 5 June 2008 aged 76 years. His executors sought a grant of probate in common form of his last will dated 27 September 2007.  The material shows that there were a number of earlier wills; the most recent to the last will being one dated 7 July 2003.

[3] The question initially arose because the Death Certificate provided “dementia” as a cause of death and as having been present for a period of five years.  Following the Registrar requisitioning the application for the grant of probate affidavits filed by family members suggested that the testator might well have lacked the necessary capacity at the material time.

[4] On the hearing of the matter Mr Arnold of counsel appeared on behalf of the executors and those whom I will call the “family beneficiaries”.  He indicated that his instructions were to the effect that the family members would be content if probate were granted in respect of the either the last will or the immediately preceding will.  There are some differences between the two wills, most significantly that in the last will a bequest of $25,000 is made to a local parish priest.  Generally the principal beneficiaries are the same under the two wills, they being the family beneficiaries, and they benefit in much the same way under the two wills.

[5] Because of the attitude taken by the family beneficiaries there seems little point to a protracted investigation of the testators’ capacity.  I am satisfied I can reach a decision on the affidavits filed.

The Legal Principles

[6] In Re Estate Griffith (Deceased) Easter v Griffith & Ors Gleeson CJ said in relation to the principles that apply on such an application:

“Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted (Worth v Clasohm (1952) 86 CLR 439).

This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.”[1]

[7] And further:

“The traditionally accepted formula for determining testamentary capacity is that stated by Sir Alexander Cockburn CJ in Banks v Goodfellow:[2]

‘It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’”[3]

Consideration

[8] The affidavits of the family members, being his remaining child Mr Allen Bulger, and his grandchildren, all attest to facts that would suggest that the testator clearly had capacity in 2003.

[9]  The more difficult question is whether he had such capacity in September 2007.

[10] The affidavits filed establish that over the years the testator’s mental capacities had been waning.  It seems that he was acutely conscious of that.[4]  This deterioration has led his treating general practitioner, Dr Evans, to opine that the testator had “mild dementia” in 2003 and “severe dementia” by 21 August 2007.  He doubts that the testator had the necessary capacity to make a will on the date the last will was executed.[5]

[11] Plainly, if that were the extent of the evidence, there would be grounds for doubting that the testator had the necessary capacity.  However the mere assertion of opinion as to the ultimate question can carry little weight – it is the facts on which the opinion might be based that would provide most assistance[6] and no factual basis is advanced.  I do not mean by that to assert that the doctor did not give due consideration to his view. I am conscious that Dr Evans had known the testator for several years, at least, and presumably is qualified by training and experience to proffer a useful opinion.  However the lack of any factual context makes it difficult to place any great weight on his opinion.

[12] As well the evidence shows that the initial instructions to alter the will appear to have emanated from the testator’s wife (now deceased) and not from himself.[7]  That too is a circumstances that in some cases can suggest a concern about whether the will truly reflects the intentions of the testator.

[13] However the doubt that these pieces of evidence create is, to my mind, dispelled by the balance of the evidence and principally that from the son and executor, Mr Allen Bulger, and most significantly from Mr Ian Haig, the solicitor who took the instructions for the last two wills.

[14] First, I note that the affidavits filed from the family members make clear that the dementia from which the testator suffered was variable in its effects.  Plainly there were considerable periods of lucidity.

[15] Secondly, Mr Allen Bulger was in a particularly good position to judge his father’s mental state.  He knew his father very well. He relates that they met nearly every week end and often met during the week as well.  His father’s principal asset and his business had consisted of a grazing property. He states that his father remained interested in the running of that property, which his son had taken over in 2002, and was able to attend to the caring for the 30 beasts that he kept, until shortly before entering a nursing home in October 2007. He remained generally interested in matters associated with the cattle industry and with matters pertaining to the family – principally the doings of his grand children.

[16] After entering the nursing home in October 2007 the testator’s mental faculties, to Mr Bulger’s observations, deteriorated markedly.

[17] Thirdly, the solicitor, Mr Haig was in a position to best judge the precise question now under consideration. Mr Haig had known the testator for a very long time, some 25 years.  He explains in his affidavit that he had made some four wills in all for the testator, including the last two. He was an attesting witness in respect of those last two wills.

[18] Mr Haig relates that on the occasion of receiving instructions in respect of the September 2007 will he travelled to the testator’s home on the evening of the day of execution of the will and spent a little time with the deceased.  Their conversation covered matters not only connected with the will.  They spoke of matters concerning recent occurrences in the Emerald township, where they lived, as well as matters pertaining to the testator’s health and his garden. Mr Haig formed the view that the testator “spoke in a coherent, sensible way”.  He attests that the testator answered questions that Mr Haig asked of him.

[19] Further Mr Haig relates that he spent one hour and twenty five minutes with the deceased discussing his affairs.  He discussed with him the important provisions in the will and the differences between the instructions now being provided and the terms of the previous will.  He concluded that the testator seemed to understand the contents of the will and that he intended to benefit the beneficiaries named in it in the way outlined.[8]

[20] The fact that there is an apparent conflict between the medical practitioner and the solicitor does not of course cast any aspersion on either man.  As Dixon CJ pointed out in Middlebrook v Middlebrook, a case in which there was conflict between the evidence of legal and medical witnesses, the judgments of such witnesses are formed on differing materials and involve no “necessary conflict of veracity”.[9] So it is here.

[21] Mr Haig is a solicitor of undoubted integrity and of long experience. He went to the property that evening well aware of his responsibilities in taking instructions from an aged gentleman. He cannot but have been acutely conscious of the need to be satisfied that his client had the necessary capacity to provide such instructions.  He had a good opportunity to observe and assess the testator in relation to the very issue now relevant.  He had long familiarity with him and his habits.  His affidavit shows that he has a detailed recollection of the events surrounding the taking of instructions and there is therefore good reason to rely on his testimony as accurate.

[22] Finally, there is nothing in the terms of the last will to arouse any suspicion.  It is not a complex will. It is not so different from those that had preceded it.  Generous provision was made for the persons that the testator cared for.

Conclusion

[23] While acknowledging that there is room for some doubt, that doubt is not “substantial enough to preclude a belief that the [testator] was of sound mind, memory and understanding at the time of execution of the will”.[10]

[24] I find that the testator had the necessary capacity in September 2007. I direct that the will of 27 September 2007 be admitted to probate subject to the formal requirements of the registrar.

Footnotes

[1] (1995) 217 ALR 284 at 289-290

[2] (1870) LR 5 QB 549 at 565

[3] Ibid at 290

[4] Affidavit Andrew Allen Bulger filed 7 March 2011 para 7

[5] Affidavit filed 7 March 2011

[6] Bailey v Bailey (1924) 34 CLR 558 per Isaacs J

[7] Affidavit Ian Edward Haig filed 7 March 2011 paras 10 to 14 – the reference to the “will of 27 July 2007” in para 10 is presumably a typographical error

[8] See particularly the affidavit filed 7 March 2011 at para 23

[9] (1962) 36 ALJR 216 at 217

[10] Per Gleeson CJ in Estate of Griffith above

Close

Editorial Notes

  • Published Case Name:

    In The Will of Roland Kent Bulger Deceased

  • Shortened Case Name:

    In The Will of Roland Kent Bulger Deceased

  • MNC:

    [2011] QSC 36

  • Court:

    QSC

  • Judge(s):

    McMeekin J

  • Date:

    15 Mar 2011

Litigation History

No Litigation History

Appeal Status

No Status