Green v Critchley[2004] QSC 22

SUPREME COURT OF QUEENSLAND

1. The applicant and the respondent in this matter are brother and sister. They are the only two children of Margaret Josephine Lawrence who died on 4 July 2003 at the age of 88 years. Both Thomas Joseph Green, the applicant, and Evelyn May Critchley, the respondent, were children of Mrs Lawrence’s first marriage. They are now aged 68 and 66 years respectively. Mrs Lawrence died of a myocardial infarction having suffered from atrial fibulation and cerebrovascular disease for many years. Mr Green applied to the Court for the revocation of a grant of probate issued to Mrs Critchley in relation to Mrs Lawrence’s estate. He has sufficient interest to do so as he would be entitled to take on the intestacy of Mrs Lawrence were he to be successful in his application.^[1]

2. Mrs Critchley applied for probate as executor of a will made by Mrs Lawrence on 22 November 2000. Mrs Critchley was named as the executor in that will. Under that will, Mrs Lawrence divided the whole of her estate equally between her daughter, Mrs Critchley, and her grand-daughter, Mrs Critchley’s daughter, Jennifer Margaret Hearn. Probate was granted on 21 August 2003. The estate is a relatively small one having a net value of less than $200,000.

3. Mr Green gave evidence by affidavit that in about June 2000, some four to five months prior to the execution of her will, Mrs Lawrence suffered a severe stroke which had left her largely incapacitated both physically and mentally. He said that after the stroke he visited his mother on a number of occasions and, in his view, prior to the date on which she is alleged to have executed the new will, she lacked the mental capacity to make decisions about her wishes and intentions.

4. Mr Green said that he visited his mother several days after the stroke occurred and could see that she was unable to walk at all, requiring assistance even to go to the toilet. He says that she could not swallow, talk or eat and she was not capable of having any sort of discussion or communicating with him. She required full nursing care.

5. He said that two or three months later he visited Mrs Lawrence at St Andrew’s Hospital at Wickham Terrace in Brisbane in late August or early September 2000. He says that his mother was still unable to walk without assistance and was unable to hold a proper conversation with him. He said that when she tried to speak to him her message was distorted and often did not make any sense, or was repetitive. He says that when he returned to visit his mother the next day, Mrs Critchley had arranged to move her to another location without telling him. He says he eventually tracked Mrs Lawrence down through hospital records to a nursing home at New Farm where he visited her and saw that she still needed assistance to do anything of a physical nature, including walking, and that her speech was still distorted and garbled. He said that Mrs Critchley again moved Mrs Lawrence without informing Mr Green, on this occasion to Mt Olivet Hospital. He says that she remained in nursing or hospital care from this time until she died.

6. Mr Green says that he had never had an argument with his mother, at least in his adult life, and they had always remained close, often going on holidays together. He says that he always sent presents to his mother for Christmas and telephoned her for birthdays except after she had the stroke. For a long time she was unable to discuss things with him and he could not telephone her or discuss things that she might like as a gift. For the purposes of this application, I have assumed that Mr Green’s evidence about these matters would be accepted.

7. In his affidavit, Mr Green says that in the past five or six years he noticed that his sister, Mrs Critchley, had become bitter, particularly towards Mr Green’s wife and children. When their mother was close to death, Mr Green said that Mrs Critchley did not tell him but instead her husband, whom Mr Green had never met, telephoned Mr Green and told him that his mother was very ill. Mr Green maintained contact with him over the next couple of days until he advised Mr Green that Mrs Lawrence had died.

8. On 26 August 2003, Mr Green’s solicitors wrote to Mrs Critchley’s solicitors saying inter alia that they intended to make an application to this court to contest the validity of the will dated 2 November 2000 based on Mrs Lawrence’s lack of testamentary capacity at the time. 

9. Mrs Lawrence’s will was prepared and witnessed by Margaret Egan Kelly, a solicitor who has been in practice for over 40 years. She has extensive experience in the area of wills and estates. Her evidence in this application shows that Mrs Lawrence attended at Mrs Kelly’s office in the city with her daughter, Mrs Critchley, and her grand-daughter, Mrs Hearn, on 15 November 2000. Mrs Kelly made attendance notes of what occurred on that occasion. They show that Mrs Critchley had an enduring power of attorney. Mrs Kelly noted that Mrs Lawrence had two children, the older of whom is the applicant. She noted that the applicant had three children all over the age of 18 years. She took note of Mrs Lawrence’s instructions, which were that her estate was to be left to her daughter but if the daughter did not survive her by 30 days, to her grand-daughter. She made a note as follows, “Nothing to son. Nothing to daughter-in-law. (Married 32 years ago)”.

10. Mrs Kelly also noted that Mrs Lawrence had suffered from a stroke on 31 July 2000 and had been at the Mater and then at St Andrew’s for rehabilitation and then for respite at the Chateau and Mt Olivet. She noted that Mrs Lawrence’s son had only phoned once in six to seven weeks and come down once whilst Mrs Lawrence was in the Chateau, for a visit of one hour. Mrs Kelly noted the words said to her by Mrs Lawrence, “Sees me on average once a year when down on holidays”.

11. Another appointment was made for 10 am on 22 November 2000. Mrs Kelly’s diary note shows that Mrs Lawrence arrived for that appointment accompanied by her daughter, Mrs Critchley, and her grand-daughter, Mrs Hearn. Mrs Kelly showed Mrs Lawrence into the interview room while her daughter and grand-daughter remained in the waiting area. Mrs Kelly’s diary note shows that in response to her enquiring as to whether Mrs Lawrence had re-considered what she wanted, Mrs Lawrence said that she did not wish to include her son as he had not contacted her. Her daughter did everything. Mrs Kelly then read the will to Mrs Lawrence and discussed its provisions with her. Mrs Lawrence said repeatedly that it was “between Evelyn and Jennifer”. If anything happened to her daughter it was to go to her grand-daughter. This was reflected in the draft will which was exhibited which disposed of the whole of the estate to Mrs Critchley, and if Mrs Critchley pre-deceased her, or survived but failed to survive for a period of 30 days, the estate was to go to Mrs Hearn.

12. The will that was admitted to probate is different from that draft will. The will admitted to probate leaves half the estate to her daughter and half to her grand-daughter. Mrs Kelly provides some explanation in her diary note of how this occurred. Her diary notes records,

“I then invited Mrs Critchley and Mrs Hearn into the interview room and they confirmed it was their understanding that Mrs Lawrence wanted what she had to go half each to them or all to Mrs Hearn if Mrs Critchley did not survive Mrs Lawrence for 30 days”.

13. The latter was what the draft will had given effect to whereas the former was given effect to by the will that was executed. Mrs Kelly then records in her diary note, “Discussion then ensued as to what was to happen if Mrs Hearn did not survive Mrs Lawrence for 30 days, ie whether her half share was to go to Mrs Critchley or her children. It was decided it should go to Mrs Hearn’s children who attained 25 years.” Mrs Kelly says that a draft copy of a will leaving half of Mrs Lawrence’s estate to Mrs Critchley and half to Mrs Hearn “surfaced during these discussions”. Handwritten amendments were made to that draft to give effect to a provision that Mrs Hearn’s children who attained the age of 25 should take half of the estate if Mrs Hearn pre-deceased Mrs Lawrence.

14. Mrs Kelly said that Mrs Lawrence, Mrs Critchley and Mrs Hearn then left her office and returned by arrangement at about 11.45 am. Mrs Kelly took Mrs Lawrence into the interview room whilst her daughter and grand-daughter remained outside in the waiting area. Mrs Kelly read the amended paragraph to Mrs Lawrence “who seemed comfortable with it”.

15. The will, which was subsequently admitted to probate, was then witnessed by Mrs Kelly and her secretary, Dimity Josephine Proud. Mrs Kelly can not specifically remember Mrs Lawrence and so relied on her file notes to which I have referred. However, she did say that she would not have made a will if she considered that Mrs Lawrence clearly did not have capacity to make a will.

16. Testamentary capacity or the capacity to make a will exists if at the time the testator, Mrs Lawrence, executed the will she knew what she was doing and the effect of her dispositions. In order to have the requisite capacity she must know what estate she had to dispose of and what persons might have a claim on her.^[2]

17. Mrs Lawrence was old when she made the will and she had had a stroke. These circumstances require the court to exercise a greater degree of vigilance.^[3]  However, she went into the solicitor’s office in the city on two occasions, albeit with the beneficiaries under the will.  She told the solicitor of her instructions and she clearly considered others, being her son and his family, who might have a claim on her estate.  The solicitor read over the will to her, as drafted and as amended, in the absence of the beneficiaries, to ensure it conformed with her wishes.  Whatever mental incapacity the applicant may have observed when he saw his mother after her stroke had passed by the time she came to give instructions for and execute her will.

18. In those circumstances, it appears that Mrs Lawrence had testamentary capacity and exercised the freedom a testator has to bestow her property as he or she wishes.^[4]  That prima facie case has not been displaced in the circumstances of this case.  The test to be applied on an application for the revocation of probate is that set out by Isaacs J in Bailey v Bailey^[5]:

“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 [or her] mental faculties as to make them unequal to the task of disposing of his [or her] property.”^[6]

In this case, there is no evidence of undue influence capable of displacing the conclusion that Mrs Lawrence had testamentary capacity when she gave instructions and when she executed her will.^[7]  Nor was there any evidence that she suffered from insane delusions.  She clearly gave instructions and understood the effect of the will she executed.

19. Mere suspicion on the part of a disappointed potential beneficiary, without more, cannot be and, in this case, is not sufficient to suggest that the deceased lacked testamentary capacity or was overborne by undue influence.^[8]  In these circumstances, there is insufficient evidence to excite the suspicion of the court.  The respondent has satisfied the court that the will admitted to probate was the last will of a free and capable testator.^[9]  The application should be dismissed.