McGrath v De Plater
[2004] QSC 243
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McGrath v De Plater[2004] QSC 243
McGrath v De Plater[2004] QSC 243
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
MUIR J
No 2075 of 2004
ANTHONY GREGORY MCGRATH | Plaintiff |
and |
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MERVYN BENJAMIN DE PLATER | First Defendant |
and |
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JOHN KEVIN McGRATH, SUZANNE MARY McGRATH, PAUL MICHAEL McGRATH, ROBERT GERARD McGRATH, CATHERINE HELEN McGRATH, RICHARD WILLIAM McGRATH, ANNE KATHLEEN PEPPARD, MARGARET MARY PEPPARD, PETER JOHN PEPPARD, WILLIAM FRANCIS PEPPARD, FRANCIS DONALD PEPPARD, JOHN GERALD McCARTHY, SUZANNE MARY McCARTHY, JENNIFER LOUISE McCARTHY, WILLIAM ANDREW McCARTHY, NICOLA JAYNE McGRATH, ANDREW JOHN McGRATH, DANIEL JOSEPH McGRATH, LISA ANN McGRATH AND TIMOTHY JAMES McGRATH | Second Defendant |
and |
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MERVYN JOHN PFORR | Third Defendant |
and |
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ALYSON MARGARTET CADAN | Fourth Defendant |
and |
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TRUSTEES OF THE SOCIETY OF ST VINCENT DE PAUL | Fifth Defendant |
and |
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ROYAL MELBOURNE HOSPITAL BRISBANE | Sixth Defendant |
and |
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TRUSTEES OF THE SISTER OF CHARITY OF AUSTRALIA | Seventh Defendant |
and |
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TIMOTHY CLIFTON WHITNEY | Eighth Defendant |
No 3639 of 2003 |
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ANTHONY GREGORY McGRATH | Plaintiff |
and |
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MERVYN BENJAMIN DE PLATER | First Defendant |
and |
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JOHN KEVIN McGRATH, SUZANNE MARY McGRATH, PAUL MICHAEL McGRATH, ROBERT GERARD McGRATH, CATHERINE HELEN McGRATH, RICHARD WILLIAM McGRATH, ANNE KATHLEEN PEPPARD, MARGARET MARY PEPPARD, PETER JOHN PEPPARD, WILLIAM FRANCIS PEPPARD, FRANCIS DONALD PEPPARD, JOHN GERALD McCARTHY, SUZANNE MARY McCARTHY, JENNIFER LOUISE McCARTHY, WILLIAM ANDREW McCARTHY, NICOLA JAYNE McGRATH, ANDREW JOHN McGRATH, LISA ANN McGRATH AND TIMOTHY JAMES McGRATH | Second Defendant |
and |
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MERVYN JOHN PFORR | Third Defendant |
and |
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ALYSON MARGARTET CADAN | Fourth Defendant |
and |
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TRUSTEES OF THE SOCIETY OF ST VINCENT DE PAUL | Fifth Defendant |
and |
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ROYAL MELBOURNE HOSPITAL BRISBANE | Sixth Defendant |
and |
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TRUSTEES OF THE SISTER OF CHARITY OF AUSTRALIA | Seventh Defendant |
BRISBANE
DATE 16/07/2004
JUDGMENT
HIS HONOUR: The plaintiff seeks probate in solemn form of a will dated 9 November 2000 of Vera McGrath who died on 25 June 2002 aged 90. Her Death Certificate records the causes of death as pneumonia, being bedridden, dementia and hypertension.
The matter first came before the Court on 4 February 2004 for summary determination as all interested parties either consented to the relief sought or did not oppose it. The Judge who heard the application was not satisfied by the evidence put before her and was concerned about the absence of a contradictor to the case advanced by the plaintiff. She made directions which, inter alia, appointed Mr Whitney to be the contradictor. He appears today in that capacity.
The plaintiff is a grandchild of the testatrix. She was the widow and sole beneficiary of the large estate of John Joseph McGrath who died on 14 April 1988. The principal assets of the estate were shares in what is described in the affidavit material as the McGrath Group of Companies. On 29 March 1988 the testatrix made a will under which she-
- gave two minor pecuniary bequests to two named persons;
- gave all of her shares in companies in the McGrath Group of Companies to John Kevin McGrath (the plaintiff's father and one of the four sons of the testatrix's late husband);
- gave the residue of her estate equally to five nominated charities.
At the date of that will the shares comprised the great bulk of the testatrix's assets. The 1988 will was similar in terms to a will made by the testatrix on 8 November 1997. After 1988 the businesses of the McGrath Group of Companies were terminated and over a period of years their assets were converted into cash and distributed to shareholders.
By 2000 there were either no remaining shares held by the testatrix or the shares held by her had very little value. The testamentary intention at the time of making the 98 will was thus no longer reflected in the document.
It is relevant at this juncture to record Mr John Kevin McGrath's understanding that he was being left the shares on behalf of his and his siblings' children.
The testatrix had a close friend and confidante, Maria Redman. Mrs Redman had known the testatrix for about 15 years and in the years prior to her death had seen her on a virtually daily basis. She recalls that prior to the death of John Kevin McGrath the testatrix told her that she did not wish to leave her estate to her husband's four children but wanted it to go to the grandchildren. In the course of one such discussion, the testatrix asked Mrs Redman to phone the plaintiff and request him to come up and discuss a new will with her. The request was consistent with conduct in the course of the relationship which had developed between the two women. Mrs Redman occupied not only the role of confidante but that of personal assistant.
This evidence sheds some light on the testatrix's intellectual capacity. It shows an understanding not only of the persons she wished to benefit under her will but an appreciation that the existing will would not achieve her objective.
The plaintiff travelled to Brisbane in response to the request and discussed it with his grandmother, who by then was in a retirement home. Mrs Redman recalls being present at at least part of the discussion. She recalls also the testatrix “firmly saying what she wanted in her new will”. She said that the testatrix was “very adamant that the grandchildren get the estate”.
The plaintiff first met Mrs Redman when at the request of his father he travelled to the Gold Coast to see his grandmother in 1998. She then asked him to help look after her financial affairs and gave her power of attorney in his favour. On the occasions that the plaintiff received instructions from the testatrix about the proposed change in her will in 2000 he recalled the testatrix saying to him words to the effect “I want my will changed”, and that she wanted to distribute her estate to her grandchildren. The plaintiff asked her if she understood the extent of her estate, to which she responded that she knew how much money she had, she was a very wealthy person. There was discussion about the health of the plaintiff's father and inquiries about his mother and his children. The remainder of the two hour visit was spent in general conversation between the plaintiff, the testatrix and Mrs Redman.
The plaintiff had a solicitor friend of his prepare a new will. The friend prepared the will gratuitously as a favour and the plaintiff sent it to Mrs Redman to arrange its execution by the testatrix.
There is no doubt that at relevant times the testatrix was suffering from dementia. Mrs Redman swore that the testatrix had “good days and bad days” but that the latter were rather less prevalent than the former. She said:
“On her good days she always talked with me about business and current affairs and what was going on in the world.”
Mrs Redman recalls that it was the testatrix who decided to sign the will which she had been given some months previously. She read it over to the testatrix and it appeared to Mrs Redman that she understood its contents. That understanding was derived in part from the fact that it was the testatrix's behaviour at around that time to become agitated and raise concerns with Mrs Redman about any matters which she did not understand or did not accept. On the day the will was signed, Mrs Redman understood the testatrix to be having a good day. She recalls her saying after she read the will to her, “That's what I want. I want to make sure that John's grandchildren are properly cared for under the will.” The other witness to the will was a resident in the retirement village in which the testatrix resided. She recalls arriving at the testatrix's apartment and telling her “I'm going to witness your will”, to which the testatrix replied, “You're not in it.”
She said that she had frequent contact with the testatrix at around this time, that she was always well dressed, neatly presented and well spoken. Her recollection is that the testatrix was “totally lucid” and “proud of the fact that she didn't need glasses”.
The medical evidence is not of much assistance. It is canvassed in some detail in reasons for judgment of Atkinson J delivered on 24 February 2004 and I do not propose to retraverse it at any length.
Dr Parker, the testatrix's general practitioner, gave a short report which is in evidence. The report speaks of the testatrix having severe dementia when the doctor last saw her in 1999. It is apparent, though, that he has confused the dates and that he was probably speaking of 2001 rather than 1999. The medical records show some quite disturbed periods in 2000 when the plaintiff plainly lacked testamentary capacity. Those periods, though, are explicable by reference to the testatrix's state of health and the medical treatment she was receiving at the time. In particular, on some of these occasions she had undergone a general anaesthetic and was on painkillers. It is thus not surprising that a person of her age was exhibiting inappropriate and confused behaviour.
Her behaviour on such occasions stands in marked contrast to the behaviour on her “good days” including the day on which the will was signed.
A classic statement of the matters necessary to establish testamentary capacity is that of Coburn CJ in Banks v. Goodfellow (1870) LR 5 QB at 565:
“It is essential to the exercise of such a 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 delusion 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.”
The following passage in the judgment of Dixon J (as he then was) in Timbury c. Coffee (1942) 66 CLR 277 at 203 contains the following formulation:
“‘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 realise 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 Hood J, in the will of Wilson) ‘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 if affirmatively that the testator was of sound mind when he executed it’(per Cresswell J, Symes v. Green) - cf per Holroyd J, in the will of Key ‘In the end the tribunal - the Court or jury - must be able, affirmatively, on a review of the whole of the evidence to declare itself satisfied of the testator's competence at the time of the execution of the will.”
The learned authors of Mortimer on Probate 2nd Edition at pages 55 to 60 observe in respect of wills made during lucid intervals:
“Will made during a lucid interval. - Although it may be proved or admitted that the testator was habitually of unsound mind, the Court would yet pronounce for his will if satisfied that, when the will was made, the testator was for the time being in the enjoyment of his sound senses … such intermissions are commonly called “lucid intervals”.
… it is not necessary that the mind should be restored to all its former vigour
… if it be proved that the morbid affection no longer obscures or vitiates the judgment that will suffice. But such a state will be examined with jealousy … if the mind be apparently rational upon all subjects and no symptoms of delusion can be called forth on any subject, this may constitute a lucid interval. If derangement be proved or be admitted to have existed at any particular period anterior to the will, but a lucid interval be alleged to have prevailed at the time when the will was executed, then the burden of proof attaches to the party alleging such lucid interval, and he must show sanity and competence at the period when the act was done, and to which the lucid interval refers.
… very strong presumptive evidence in favour of the existence of a lucid interval may arise from the fact that the will itself is a rational instrument I … a rational act done in a rational manner, while not perhaps ‘the strongest and best proof’, certainly not conclusive proof of a lucid interval, does contribute materially to the establishment of it.”
In this case comfort is able to be had from the consistency of the testatrix's expression of desire in relation to her proposed testamentary disposition and its relative simplicity. That is a relevant consideration: Re Muirhead (1971) Probate 263 at 265 and Vandeleur v. Franich [1991] 1 QdR 481 at 484-5.
Mrs Redman is and was a person who stands to take no benefit from any change in the testatrix's testamentary dispositions, rather. She plainly had the interest of the testatrix at heart. She was familiar with the testatrix's personality and behavioural patterns and closely observed the applicant's conduct around the time in question. She had no doubt about her capacity. Her views are supported by the testatrix's conduct at the time of execution of the will as observed by the other witness.
I am further confirmed in the views I have formed by the fact that Mr Whitney, the contradictor, finds himself unable to make any submissions in opposition to the application. He has interviewed Mrs Redman at some length and has also satisfied himself as to a number of matters which caused him initial concern. He finds nothing sinister in the circumstances in which the will came to be prepared and executed.
Having observed the plaintiff in the witness-box and considering the affidavit material, I, too, am satisfied. Unfortunately Mrs Redman, due to ill health, was unable to be present in Court.
For the above reasons, I find that the testatrix had testamentary capacity when signing the will on 9 November 2000. I propose it give judgment then to reflect those reasons in terms of the minutes of judgment produced by Mr Mullins and Mr Whiteford and I note that the other parties have no difficulty with judgment in those terms.
I give judgment then in terms of the document, initialled by me.