Re Watts[2011] QSC 420

SUPREME COURT OF QUEENSLAND

HER HONOUR:  The Public Trustee of Queensland has applied to the Court for an order that he be authorised to administer the estate of John Clyde Watts (deceased).  The application is based on a Will of Mr Watts dated 23 May 2007.

This matter was referred to the Court by the Registrar who was unwilling to make the order himself in view of the evidence which suggested that the deceased may not have had testamentary capacity to make the Will when it was made.  The Public Trustee has quite properly brought those matters to the

Court.

The material before me failed to satisfy me that the testator had testamentary capacity at the time of making his last Will and, indeed, two previous Wills.  Accordingly, it was inappropriate to make the precise order sought.

I will explain my reasons for coming to that conclusion.  

The deceased was a very old man at the time he died.  He was born on 18 July 1911 and died on 9 May 2009. 

His personal circumstances appear to have been that he had two siblings.  He married Marguerite Holden on 15 July 1935.  His first Will, the first Will that is before me, was executed on 25 May 1950 and was a very simple one.  It bequeathed the whole of his estate to his wife and should she predecease him, to their daughter, Dawn Astrid Watts.  The Public Curator of Queensland, as the Public Trustee was then known, was appointed executor of the Will.

On 7 February 1956 that marriage was dissolved and on 12 September 1957 the deceased, Mr Watts, married Edna Ruby Stuart.  That marriage revoked the Will made in May 1950.

It appears that Mrs Stuart had a number of children prior to her marriage to Mr Watts.  Mr Watts and Mrs Stuart did not have any children together.

The next matter of significance occurred on 24 March 2003.  I should mention that there is nothing to suggest that any Will to replace the revoked Will of 1950 was executed by the testator before this date.

On 24 March 2003 Mr Watts was charged on indictment with 22 counts of indecent dealing with a girl under the age of 12. 

The dates on the indictment cover the period from 1 January 1969 to 1 January 1973.

It appears from later reports that he blamed one of the daughters of Mrs Stuart for those charges.  Mr Watts was already by then a very elderly man and it appears that a number of steps were undertaken in a short period of time.

On 10 July 2003 a Will was executed by Mr Watts.  He appointed one of his stepsons, the brother of the woman whom he blamed for the charges against him and the wife of that stepson, as his executors and bequeathed 70 per cent of his assets to that stepson and his wife, and if they should predecease him, their children, and the remainder to another of his stepsons and if he predeceased the testator, then his children.

In paragraph 6 of that Will, he said, "I have made no provision for my other stepchildren", whom he named as June Yvonne Beckman and Dawn Astrid Worley.  In the case of Ms Beckman because he said she had initiated criminal charges against him, and the case of Ms Worley because he said he was estranged from her and his endeavours to reunite had been rejected.

There are some matters of concern in that Will.  Firstly, Ms Worley was not his stepdaughter but in fact his natural daughter; secondly, the Will appears to have been created when he was in a state of hostility because of the criminal charges that had been laid against him; thirdly, the solicitors who prepared the Will were the solicitors acting for him in the criminal proceedings, but most importantly only a month later,those same solicitors referred the matter to the Mental Health Court on the grounds that, in their submission, he was either of unsound mind at the time of the offences or lacked capacity to undergo a trial.

Reports were prepared for the hearing in the Mental Health Court.  A report was prepared by his general practitioner, Dr Gan.  There were two letters from him, one dated 30 September 2003 and another dated 17 October 2003.

The letter dated 30 September 2003 said that Mr Watts suffered from severe depression and dementing process.  He had an abbreviated mental test score of 2 out of 10 and he was not physically or mentally capable of appropriately performing as a witness in a court case.

In the letter dated 17 October 2003, he opined that Mr Watts showed signs of early dementia and was not physically or mentally capable of standing the rigors of trial.  He said that his long-term memory was deficient; his short-term memory was deficient; his capacity to instruct defence lawyers appropriately was questionable and he should be referred to a psychologist skilled in memory testing.

Mr Watts was then referred to a clinical psychologist.  The psychologist had a different view.  She thought that Mr Watts' general ability was in the low/average range and that he was capable of giving appropriate and proper instructions to mount a defence against the offences laid against him in terms of

his cognitive ability and his memory. 

Appropriately then Mr Watts was referred to a person who was more qualified than his general practitioner and the  psychologist to give advice.  Dr Gerard Byrne, a Consultant Psychiatrist and Associate Professor of Geriatric Psychiatry, examined Mr Watts under section 422 of the Mental Health Act 2000 (Qld).

He used a number of sources in reaching his opinion.  They included a long interview with Mr Watts, an interview with the wife of one of his stepsons, the reference by his solicitors dated 18 August 2004, the indictment, the report of the clinical psychologist dated 19 November 2003, three reports from his general practitioner, a CT brain scan report, an echocardiogram report, a letter from his solicitors to the Mental Health Court dated 19 August 2004, and other written materials including transcripts of police records of interview, bench charge sheets, witness statements and a transcript of proceedings in the Brisbane Magistrates Court.

Dr Byrne's qualifications and experience cannot be doubted and he produced a lengthy and insightful report.  Of particular concern to this application was Dr Byrne's finding that Mr Watts was only able to provide fragmentary details of his personal history and he gives specific examples.

Dr Byrne was of the opinion that it was likely that Mr Watts was suffering from dementia of mild to moderate severity which was likely to be due either to Alzheimer's disease or cerebrovascular disease, or a combination of both.  He was unable to tell because of the passing of time whether he was of unsound mind at the time of the alleged offences, but he was of the opinion that he was not currently fit for trial due to a combination of his hearing impairment and cognitive impairment.  He was of the view that his unfitness for trial was likely to be permanent.

He did not agree that he was suffering from depression and it is clear from his report that Mr Watts’ dementia was not going to improve.

He expressed the view that Mr Watts tended to minimise the severity of his cognitive impairment or its consequences which probably reflected both reduced insight into his cognitive impairment and the impact of his cognitive impairment on his insight.  He gave a number of examples which showed Mr Watts'

cognitive impairment which did not vary by topic and did not vary across the duration of a lengthy clinical interview.

Although Dr Byrne was not asked, because it was not his role,to determine whether or not Mr Watts had testamentary capacity, it seems tolerably clear that had Dr Byrne been asked, it would be most unlikely that he would have been satisfied that he had testamentary capacity.

Testamentary capacity is the capacity to know what estate the person has to dispose of and what persons might have a claim on him, the testator.

The burden of proof lies on the propounder of the will to show that the testator had testamentary capacity and before being admitted to probate, it must be shown that the will was the last will of a free and capable testator. 

It seems tolerably clear from the contents of the Will that Mr Watts made in July 2003, and from the report from the general practitioner and, more importantly, the report from Dr Byrne prepared around that time, that I could not be satisfied that Mr Watts had testamentary capacity from at that time.  Indeed, from Dr Byrne's report, it would appear unlikely that Mr Watts could recover testamentary capacity.

Nevertheless, on 1 September 2006, Mr Watts executed another Will.  Dr Gan administered a mini mental state examination on that day and, on the basis of that, apparently formed the view that he had testamentary capacity.

That Will appointed the Public Trustee of Queensland as the executor and bequeathed the whole of his estate to one of his stepsons and his great nephews, who had not been mentioned in any previous Will, and his late stepson's wife, to be held equally by such of them as survived him.

...

HER HONOUR:  A letter from Mr Watts' general practitioner says that he declares him intellectually capable of understanding the necessary aspects to make a will and to declare a power of attorney.  The contemporaneous letter does not say on what basis Mr Watts, who was suffering from the impairments noted by Dr Gan in 2003, and by Dr Byrne later in 2003, had sufficiently recovered from those impairments to be declared intellectually capable of understanding the necessary aspects to make a will.

I am not satisfied that Mr Watts had testamentary capacity at the time he made that Will.  That, however, is not the last Will that was made by Mr Watts.  Because of different estrangements and arguments that had apparently broken out within the family, he decided to make yet another Will.

On 16 May 2007, he saw another general practitioner at the same practice as his usual general practitioner, Dr Cramond.  He refers to a difference of opinion he had had with one of the beneficiaries of his earlier Will and that he wished to change his Will and that he needed a letter to verify that he knew what he was doing.

Dr Cramond noted the opinion of the geriatrician dated 31 December 2004, that is the report of Dr Byrne to which I referred.  Dr Cramond notes:  "Seems to be a very convoluted story."  He said that the person he now wished to disinherit had turned very nasty in the last six months.  Dr Cramond notes: "I declined to give him a certificate.  Seems to be mixed up between Public Curator, enduring power of attorney, Will, et cetera."  Dr Cramond then deals with some other matters and then says that he advised him that he didn't know him well enough and that he should see Dr Gan. 

Mr Watts did see Dr Gan who opined that he was of sound mind and capable of understanding the value of his assets and determining how he wanted them distributed in the event of his death, and a Will was made on 23 May 2007.  That Will is the Will which is the last Will which is the one the Public Trustee has brought to the Court.

His instructions reflect hostility to his natural daughter. There is no evidence before me to suggest whether or not what he said was accurate.

Some matters in the questionnaire are of some concern to me.In answer to the question:  "Full capacity?  - effect on attestation", the answer, "No", is marked.

It is difficult to tell from that whether that means that the answer to the question, "Full capacity?"  was "No", or the answer to the question whether or not any question about capacity had an effect on attestation was, "No".  It does not really answer the question of whether or not he had testamentary capacity.

Unsurprisingly, after Mr Watts died the Public Trustee sought more details from Dr Gan as to the question of his testamentary capacity at the time of making the Will.  After some exchanges of correspondence the subject, of course, of interest to the Public Trustee was how it could have been that the testator, who was not fit to stand trial in 2003, could be fit to make Wills and have testamentary capacity in 2003, 2006 or 2007.

Dr Gan opines that the reason why his capacity had changed between 2004, as he refers to it as, and 2006, was because his performance had been complicated by major depression which had completely resolved by 2006.  However, Dr Gan is not an expert in depression and Dr Byrne, the geriatric psychiatrist who examined and reported on Mr Watts' state on 31 December 2004 did not find that he suffered from any mental illness apart from his extreme cognitive impairment.  There was no suggestion that the cognitive impairment was caused or related to any depression.  In fact, he explicitly said, "I could elicit no clear history suggestive of a major depressive disorder or psychotic disorder."  He said his mood and the more enduring and underlying component of his emotional state was rather sombre but not clinically depressed.

Accordingly, I cannot be satisfied that Dr Gan's opinion that Mr Watts regained testamentary capacity due to a major depression resolving is accurate.  That is not supported by the expert psychiatric evidence before me.

There are a number of opinions that the Public Trustee has gleaned from persons who knew the deceased, but they are not consistent with the psychiatric opinion.  They are lay opinions and do not really assist me in determining whether or not Mr Watts had testamentary capacity.  Indeed, the opinion,for example, of Reverend Donaldson from the New Vine Ministries, who had discussed many matters with the deceased,has the name of the deceased's natural daughter incorrect,presumably because the deceased, at the time he discussed this with Reverend Donaldson, had the name of his daughter incorrect.

In all of the circumstances, I cannot be satisfied that Mr Watts had testamentary capacity at the time of making any of the Wills that are before me apart from the Will dated 25 May 1950 which was revoked upon his marriage.

Accordingly, I am not satisfied there is any valid Will before the Court which can be admitted to probate.

It follows, therefore, that Mr Watts died intestate.It is very desirable that Mr Watts' modest estate be administered without any further delay.

His natural daughter has made an application for family provision.  Her circumstances will, of course, change now that the declaration has been made that he died intestate.

Nevertheless, the Public Trustee has submitted that it is more appropriate that he be appointed; that the Court grant letters of administration to him in accordance with rule 610(3) of the Uniform Civil Procedure Rules 1999 (Qld) and section 29(1)(a) of the Public Trustee Act 1978 (Qld).

There does not appear to be any dissatisfaction with the actions of the Public Trustee as appears from the letters of those representing all the potential beneficiaries and in circumstances where there is obviously some high degree of family disharmony and complicated family relationships, it would appear that there is some utility in appointing a disinterested party to administer the estate in intestacy.

Accordingly, in my view, it is appropriate to order that the Public Trustee of Queensland be authorised to administer the estate of John Clyde Watts (deceased) in intestacy, and I so order.