Re Barlow[2014] QSC 7

SUPREME COURT OF QUEENSLAND

Issue

1. Ruth Barlow died in August 2010, aged 97. A grant of probate in solemn form is sought of her will dated 4 March 2008. The question^[1] is whether Mrs Barlow had testamentary capacity when she made the will.

Will

2. By the will, Mrs Barlow appointed the Public Trustee of Queensland as her executor and trustee. There were small bequests to a few friends. These gifts ranged between $500 and $5,000. There were gifts of $1,000 to each of the Australian Red Cross and Mrs Barlow’s local church. Bequests were made to friends and to her church of jewellery, furniture and household goods. Mrs Barlow’s substantial asset was her house at Mt Gravatt. She demised that property to “my friend Steven Arnold”. The residue of her estate was left to the Red Cross and local church, in equal shares.

Penultimate will

3. Mrs Barlow had made earlier wills. The most recent was executed in October 2006. It appointed Francis Carroll “or the senior partner of the firm Frank Carroll Solicitor…” as executor and trustee. It stipulated for small cash bequests and for specific gifts of household items to friends and the local church. The house was left to fall into residue, which was to be divided among five charities, including the local church, but not the Red Cross. This will made no mention of Mr Arnold. Mrs Barlow had not then met him.

Some history

4. By 2006, Mr Carroll had practised as a solicitor for about 30 years, mostly in family and estate cases. He met Mrs Barlow in early 2004, about three months after the death of her husband. Mr Carroll made a new will for her. She also gave him instructions to prepare an enduring power of attorney (“EPA”) naming him as her attorney. He accepted the appointment, and Mrs Barlow executed the instrument.

5. Early in 2007, Mrs Barlow was admitted to hospital after falling and breaking a knee cap. Mr Carroll visited her. A hospital social worker told him that Mrs Barlow had been approved for high care residential accommodation in a nursing home. However, she intended to go straight home when discharged.

6. At the hospital, on 13 February 2007, Mr Carroll sought to persuade Mrs Barlow of the “need for safety”, proposing that she move to a nursing home.  Mrs Barlow would have none of it.  Not for the last time did she assert a determination to stay at home, where she had lived for about four decades.

7. Mrs Barlow’s temperament was impeding her judgment. Kenneth McLaren, who knew her for many years, describes her as “very choleric and bossy in her nature”, adding “so it was hard for anyone to encourage her to take better care of herself”. Mr Carroll recalls her “dogged opposition” to acting on medical advice to go to a “full care” nursing home.

8. Mr Carroll discussed with Dr Middleton, a general practitioner, services that Mrs Barlow would need at home. He was warned that she had “borderline dementia, but memory is not all that bad”. Dr Middleton thought that Mrs Barlow should be supported if she were to stay in her home. “A package of care” to achieve that was discussed.

9. Mr Carroll facilitated Mrs Barlow’s return home even though he thought her forgetful and lacking in capacity to make sound decisions about her welfare and assets. He arranged a special chair to assist a therapist in taking Mrs Barlow to the shower safely. He went to her house with a friend of hers to find the stench of urine and faeces overpowering: Mr Carroll procured a contract cleaner. He advanced Mrs Barlow’s interests in other ways: as, for example, putting her money into an interest bearing account. After she got home, Mr Carroll persuaded her to accept professional care from Spiritus.

10. At the end of March 2007, Mrs Barlow spoke to Mr Carroll about a report he had sent to her. She seems to have thought that he had spent her money on himself. He explained that the money had been spent on chairs which, in a hurry, he had initially charged to his credit card. In the same conversation, Mr Carroll suggested that she move to a retirement village. She dismissed the idea.

New friend

11. Stephen Arnold had been employed as a personal care worker since 2006. Before that, he worked in a dementia wing of a nursing home. Working for Spiritus, he met Mrs Barlow in about May 2007. Thereafter, he provided her care at her home. He helped with shopping. He cleaned the house. He coped with her faecal incontinence “hygiene issues” such as soiling to clothing and bedding: problems that were not always apparent to Mrs Barlow because of her poor eyesight.

12. Over time, the direct, strong-willed Mrs Barlow and Mr Arnold became friends. He helped her with her problems as well as with physical care. Every fortnight, they went on “social support outings” together. They discussed many things. One topic was Mr Carroll’s service as her attorney under the EPA. Mrs Barlow claimed that she had noticed from records that Mr Carroll had made withdrawals from her accounts. She complained that she had not received receipts and other documents to show the purposes of the expenditure. On occasions, Mr Arnold contacted Mr Carroll’s office to organise a meeting to be attended by Mr Carroll, Mrs Barlow and himself to address her concerns. The response from Mr Carroll’s office always was that he was too busy.

Home

13. Nursing home rooms became available towards the end of 2007. Mrs Barlow again refused to leave home.

14. Mr Carroll counselled Mrs Barlow many times to act on medical advice to accept the protective care of a nursing home. She resented his persistence. Even so, Mr Carroll continued to assist. He paid her bills. He listened to her complaints. He put up with hearing from others that she had been complaining about him, although he did remonstrate with her about that at least once.

15. At some stage, Mrs Barlow told Mr Arnold that, in effect, she no longer had faith in Mr Carroll and wanted to deal with the Public Trustee instead. In that context, she mentioned that Mr Carroll wanted to put her into a nursing home. 

Developments

16. In early February 2008, Mrs Barlow decided to take over from Mr Carroll payment of bills for such expenses as rates, insurance, electricity and telephone. Mr Arnold took her to the bank. She closed the existing cheque account that Mr Carroll had drawn upon.

17. In 2008, Michelle Curran was employed in the Brisbane office of a federal parliamentarian.  She had worked in government at national, state and local levels and was experienced in dealing with the elderly. 

18. By appointment, on 6 February 2008, Ms Curran visited Mrs Barlow at home to assist her to apply for an Electoral Visitor vote. Over a cup of tea, the two women conversed. They discussed photos on the wall, Mrs Barlow’s garden, the positioning of her house on a steep slope, and Mrs Barlow’s late husband, who had died in November 2003. 

19. Mrs Barlow also spoke of Stephen Arnold, very fondly. She mentioned the help he gave her: with her shopping and in other ways. She also told Ms Curran about Mr Carroll, explaining that he held her power of attorney.  Mrs Barlow complained of Mr Carroll’s “expenditure of her money”, as Ms Curran recalls things.  Mrs Barlow said that she intended to dispute Mr Carroll’s fees and wanted a receipt for their payment.  Ms Curran left a note for Mr Arnold telling him that he should ask Mr Carroll for the receipt. 

20. At Mrs Barlow’s request, Ms Curran telephoned the Public Trustee’s office to arrange an attendance on Mrs Barlow at home.  The Public Trustee’s Outside Wills Appointment Schedule indicates that it was expected that the Public Trustee would be appointed as executor under a new will as well as the attorney under a fresh EPA.  Ms Curran had supplied that information.  The appointment was fixed for 4 March.  Michelle Arnold, who had worked with the Public Trustee since late 1999, was assigned the task.

21. Towards the end of February 2008, Mr Carroll spoke to Mrs Barlow more than once, by phone. She was getting her house painted and told Mr Carroll of this. She wanted to know who had put “stuff” under her house. Mr Carroll explained that no one had been under the house during the clean up in February/March 2007. Mrs Barlow asked Mr Carroll to call by the house to have a look at the work for which the painter had quoted. 

22. A week later, she told Mr Carroll that she wanted to give her house “away”, and that neighbours wanted to buy it. He advised her to retain the house, which would provide for her future even if she moved to a retirement village. Once again, she insisted that she did not need to go to a retirement village. The conversation concluded on the note that she appreciated the help of her friends and was thankful for him too.

23. In February 2008, Mr Arnold called Mr Carroll’s office and asked that a copy of Mrs Barlow’s existing will to be sent to her. That was done on 18 February.

24. Mrs Barlow told Mr Arnold that the Public Trustee was coming to see her on 4 March, “as she wanted to transfer her affairs to them”. She also said that she had in mind leaving her house to him: “Stephen, what would you say if I left you this house when I leave this earth?” He responded that that was very kind of her. But he encouraged her to provide instead for her family, mentioning her niece and nephew. Neither of them contacted her, Mrs Barlow replied; and so they would not be getting anything. He raised the possibility of leaving the house to a church or charity. “I don’t want to. I want to leave it to you”, Mrs Barlow explained. Attempting to persuade her not to do that, Mr Arnold reminded her that he was her carer, not a family member, adding that, although he was flattered by the proposal, he did not expect her to leave him her house. He suggested that she take advice from the Public Trust Office about the house. She responded: “My mind’s made up. I’m leaving it to you.”^[2]

Making the will

25. When Ms Arnold kept the appointment with Mrs Barlow at home on 4 March 2008, Mrs Barlow said that she did not want the EPA: she only wanted to make changes to her will. Ms Arnold questioned her about these intentions.  Mrs Barlow was adamant that she did not want the EPA.  So Ms Arnold took instructions for the new will.

26. Ms Arnold had experience in taking instructions for wills, in preparing them, and in supervising their execution. From May 2007, she had prepared about 35 wills per week. By the time she met Mrs Barlow, Ms Arnold’s understanding was that the validity of a will depended on the testator’s ability to: understand the act of making a will and its effect; comprehend the nature and extent of the assets to be disposed of; and appreciate the claims on the testator’s estate to which effect should be given by will.

27. Ms Arnold’s practice when taking will instructions was to be alert for signs of incapacity, such as non-responsive or irrational answers to questions. If she noticed such signs, she made a note of them and, depending on their severity, would not prepare the will unless a medical certificate as to capacity was provided.

28. Ms Arnold made no note of any concern about Mrs Barlow’s capacity and, it seems, entertained none.

29. Ms Arnold recorded Mrs Barlow’s instructions using the Public Trustee’s standard will-making software. That program displays a questionnaire. Responses are typed in based on answers to questions or by clicking on boxes. Once the questionnaire is completed, the software allows a will to be printed that incorporates the information inserted as responses.

30. Ms Arnold has a vague recollection of her encounter with Mrs Barlow. She recalls that they discussed the gift to Stephen Arnold: Ms Arnold mentioned that her son’s name was also Stephen. The two women found the coincidence amusing.

31. In completing the questionnaire, against “Full capacity?”, Ms Arnold ticked the “No” box because of her perception of Mrs Barlow’s physical limitations - in particular, poor sight.

32. Ms Arnold had the impression that Mrs Barlow had sufficient memory and understanding to make a will. In response to the inquiry on the form, “Can give coherent instructions?”, Ms Arnold entered: “Yes”.

33. Ms Arnold entered the names of the intended beneficiaries, their relationship to Mrs Barlow – invariably, “friend” – and the nature of the various gifts.

34. The will was prepared and executed. Ms Arnold was an attesting witness.^[3] 

Testatrix’s condition

35. By the time the 2008 will was signed, Mrs Barlow laboured under significant infirmities. Her sight and hearing were poor. She experienced memory lapses. She suffered untimely bouts of faecal incontinence. She was not capable of looking after herself or her house properly. She had been encouraged, by medical practitioners and acquaintances, to move to a nursing home but was determined to stay at home.

General Practitioner

36. Dr Kortlucke was Mrs Barlow’s general practitioner.

37. In early February 2008, Dr Kortlucke noted that Mrs Barlow did not want hearing aids even though she was “very deaf”. Her vision was also defective.

38. On 11 March 2008, Dr Kortlucke made a note that Mrs Barlow was “seeing cows go in front of her eyes” – an hallucination that, at the time, Dr Kortlucke thought was probably secondary to “poor vision”.

39. Over time, Mrs Barlow’s condition continued to decline.

40. On 4 July 2008, Dr Kortlucke noted that Mrs Barlow was “getting forgetful according to friends”. In late August that year, Dr Kortlucke noted that Mrs Barlow was again hallucinating.

41. In December 2010, Dr Kortlucke reported:

“Given her age, her forgetfulness and the hallucinations it is likely that she had a dementing illness on the 04^th March 2008.  I don’t believe it is possible that she could have recovered her capcaity [sic] temporarily to be able to give instructions for her will.  I certainly would not be prepared to sign an affidavit stating that she had testamentary capacity.

She had an admission to the Mater Hospital on the 10^th August 2009, the principal diagnosis was noted to be dementia and the Head CT showed marked age related cerebral atrophy.  This further supports my opinion that she was likely to have had significant impairment around the time that she signed the will on 4^th of March 2008.”

42. Dr Kortlucke’s opinion is not of much assistance. Importantly, she does not state her understanding of the law’s requirements for testamentary capacity. Secondly, she made no contemporary note of any mental impairment. Thirdly, she did not see Mrs Barlow regularly. Fourthly, her report reads as though her conclusion may have been unduly influenced by hindsight: eventually, she learned that Mrs Barlow was suffering severe dementia when admitted to hospital about 18 months after the will was made.

Specialist geriatrician

43. Dr Berry, a geriatrician, provided a report in late December 2012, commenting upon the likelihood that Mrs Barlow had testamentary capacity on 4 March 2008.  According to Dr Berry:

“The neighbours stated that the home was extremely dirty and infested with cockroaches and that Mr Carroll was to arrange for an industrial clean of the house to be performed on 23 February 2007.  An access home visit was performed on 22 February and an industrial clean out of the entire home to clean the stained covered walls, cockroach infestation, urine odour throughout the house and uncleaned piles of dishes.  Cluttered furniture was removed and new aids installed…Because of the patient wishes, she was discharged home on 26 February 2007.  A community options support program was instituted, when the house achieved a suitable standard of hygiene to allow workers in.

Cognitive function testing performed during this admission revealed on 3 January 2007 a RUDAS of 20/27 with a short-term memory of 4/8; 17 January 2007, 27/29 with a short-term memory function of 2/3.  Her Modified Barthel Index (MBI) was 55/100 indicating moderate dependence and the Barry Rehabilitation Inpatient Screening of Cognition (BRISC) revealed a score of 71/115 indicative of moderate to severe cognitive impairment.

There is nothing to suggest in this admission of a fluctuating delirium behaviourally, however, the cognitive function did fluctuate during the admission, somewhat.  At discharge, the level of 16/27 on the RUDAS with short-term memory only 2/8 in the absence of any acute illness at this stage would indicate a significant permanent degree of cognitive impairment due to a dementing illness which could have been either Alzheimer’s disease +/- vascular dementia, which would have continued to deteriorate over time by about 2 points a year.

The state of her home was consistent with a geriatric squalor which could be contributed to by her poor sight but more likely poor insight into appropriate living standards due to progressive dementia.  Her desire for no community support although her choice, was consistent with frontal lobe poor executive function related to a dementing illness.”

44. Dr Berry was acquainted with Mrs Barlow’s medical history post execution of the will.  This included an admission to hospital in September 2009 with advanced cognitive impairment.  Dr Berry considers that the course of Mrs Barlow’s condition accorded with a progressive, dementing illness that was consistent with vascular and/or Alzheimer’s disease. 

45. Dr Berry records that there is no note from Ms Arnold to show how instructions were taken for Mrs Barlow’s will.  Nonetheless, Dr Berry considers that the detailed distributions to various friends and charities indicate Mrs Barlow’s awareness of the nature and extent of her property.  Even so, Dr Berry concluded that, more probably than not, Mrs Barlow did not possess testamentary capacity, explaining:

“This is on the basis of the presence of a progressive dementing illness, affecting her executive function such that a will was constructed in which the contents were substantially different from the penultimate will”

Adding:

“Unfortunately, there is a significant lack of contemporaneous assessment of cognition or contemporaneous testamentary capacity assessment on which to base this opinion objectively and absolutely.”

46. With little information about the circumstances surrounding the will, Dr Berry has attributed considerable significance to the differences between the 2006 and 2008 wills. 

47. Dr Berry writes:

“Was the testator capable of being aware of those who may reasonably have thought to have a claim upon the testator’s testamentary ability on the basis of the nature of the claims for such persons?

There is evidence of some paranoid thinking in November 2007’s report to St Luke’s Service of the solicitor and friends from the church trying to put her in a nursing home.  This could justify her changing the disposition of her assets and removing Mr Carroll from being executor for her Will.  Mr Stephen Arnold, the major beneficiary in the Will receiving the house which was subsequently sold by…Mr Carroll, was not a “friend” but indeed a care worker who saw Mrs Barlow infrequently albeit not long before the Will was constructed…

The decision to provide for Mr Arnold, who was a casual carer only, not a friend and certainly not one who had a close relationship with her, would surely not justify her providing for him in her Will.  This would be an error of judgment and likely related to poor decision-making due to poor executive functioning in the setting of a dementia illness, perhaps with a flavour of paranoia.  The change of distribution of assets amongst the charities would seem somewhat odd and, if she initiated these changes absolutely herself, would suggest some degree of intact cognition.  There is, however, no evidence as to how the distribution of the assets to various charities was actually arrived.

Did the testator have the ability to evaluate and discriminate between the respective restraints that the claims of any beneficiaries may have on her estate?

There is no evidence provided by the Will maker that Mrs Barlow engaged in any discussion about distribution of her assets to discriminate between those who had previously been beneficiaries and the new beneficiaries, particularly Mr Stephen Arnold.  The Will maker recorded that Mr Arnold was a friend, which indeed he was not.

Was there evidence of an illness which could have affected her ability to understand the nature of the legal process and construct a Will which, in the absence of such illness, she would never have contemplated or constructed?

There is quantitative evidence of cognitive impairment documented prior to the construction of the Will, indeed some 12 months before the construction of the Will.  Although there may have been some minor delirium during the admission with a fractured patella, there is no evidence of a fluctuating delirium, such that her cognition on discharge from…Hospital would have indicated a stable degree of cognition at a stage which in time would have only deteriorated in keeping with the natural history of the disease.  Significant executive dysfunction was indicated by the state of the house in geriatric squalor, although this would have been contributed to by her poor vision.

Her insightlessness, tendency towards paranoia and refusal of services are typical behavioural features of a dementing illness.  The solicitor continued to advocate for her best interests, including selling of her home to meet the mandatory requirement of admission to Archbishop Duhig Court.  Her wish previously to remove the solicitor from his role as Enduring Power of Attorney and replace with the Public Trustee would suggest that her dementia was affecting her reasoning and rational thinking to remove a previously trusted advisor.  This state of thinking could have also contributed to her desire to remove the solicitor as her trusted executor of her previous Will.  Her poor rational thinking likely also contributed to her significant change of distribution of her assets.

There is no evidence that a lucid interval in the course of a dementing illness from 27 December 2006 until her severe deterioration related to the subdural haematoma in July 2009.  Her behaviour over this time would have been indicative of progressive deterioration related to the progression of the dementia typical of Alzheimer’s or vascular dementia.”

Another view

48. It is highly likely that Mrs Barlow used her 2006 will as a reference tool when she told Ms Curran about her testamentary intentions. Mr Carroll had sent a copy of the 2006 will to Mrs Barlow three weeks earlier. Moreover, the name of one of the beneficiaries, Mrs Du Cloux, is misspelled in the same way in both wills.

49. To the extent to which Dr Berry regarded the bequests in the 2008 will as a factor favouring capacity, she attaches too much importance to them. Those gifts are sufficiently like those made in 2006 that their detail is readily explicable on the basis that Mrs Barlow used her copy of the 2006 will to tell Ms Curran of her wishes.

50. But making too much of the bequests as an indicator of testamentary capacity is a small matter. Of more importance is Dr Berry’s appreciation of the significance of the new arrangements that are expressed in the 2008 will: mainly, the devise to Mr Arnold and the disposition of the residuary estate to just two charities, one of which did not share in residue under the 2006 will.  As her report reveals, her opinion against capacity was significantly, if not decisively, influenced by those novelties. 

51. Dr Berry regards the devise to Mr Arnold as irrational.  And she asserts that Mr Arnold was not Mrs Barlow’s “friend”. 

52. Dr Berry cannot have been apprised of the evidence - especially that of Ms Curran and Mr Arnold - concerning the nature of the relationship between Mr Arnold and Mrs Barlow.  He was professional carer.  But he meant more to her than that.  The 2008 will accurately described Mr Arnold as her friend.

53. The significance of the gift to Mr Arnold also needs to be evaluated in the light of Mrs Barlow’s relationship with him and the absence of any other obvious claim on her bounty.

54. With Mr Arnold’s care and support, she was able to reside at the house she had occupied for 40 years. Her choice was not in her best interests. But it was in character. And he was important in helping her to stay at home.

55. Moreover, no organisation or other individual ought to have featured more prominently in the distribution of her estate than Mr Arnold.

56. Mrs Barlow’s husband had predeceased her. She had no children and, according to her friend, Beverley Du Cloux, “no near relatives who ever appeared to be involved in her life”. That accords with what Mrs Barlow herself had said shortly before the will was made.^[4]

57. Mr Carroll does not suggest that he deserved a legacy. That is not surprising. By March 2008, he had been pressing Mrs Barlow for more than a year to go to a full care nursing home. He was right to do so. She, however, resented his remonstrations on the topic. And there is no suggestion that he was in need.

58. None of the bequests is surprising.

59. Nor does the choice of charities to share in residue call Mrs Barlow’s cognitive functioning into question. 

60. Mrs Barlow’s local church remained a beneficiary in the 2008 will. Four other charities which would have shared in residue under the 2006 will were dropped. The Red Cross was added.

61. Reducing the number of charities participating in residue is understandable. Mrs Barlow’s substantial asset - her house – had fallen into residue under the 2006 will. It was now to go to Mr Arnold. So the value of the residue to be shared was substantially reduced under the 2008 will.

62. Having decided that two rather than five charities would take the residue, the choice of the particular charities to benefit is not surprising. Mrs Barlow was involved in her local church for years.  Her neighbour, Mrs Dwyer, deposes that Mrs Barlow had been “busy with…Red Cross” since 1969.

63. The dispositions Mrs Barlow made are sensible. For reasons which will be apparent, I do not agree with Dr Berry’s contrary opinion.

64. There is, however, one curiosity - about a decision concerning Mr Carroll.

65. It is not surprising that Mrs Barlow wanted to substitute the Public Trustee for Mr Carroll as executor.  The facts earlier related show why that was not an irrational decision indicative of cognitive malfunction.  It does seem odd, however, that having decided that the Public Trustee should take his place as administrator of her estate after death, she decided to leave him as her attorney under the EPA. 

66. Ms Curran had arranged an appointment for a new will and a new EPA. The evidence does not disclose why it was that Mrs Barlow changed her mind and was content to leave the EPA in place. This choice presents as inconsistent. However, there is no explanation for it. In the circumstances, it would not be appropriate to give the decision much weight in assessing testamentary capacity.

Perceptions of others

67. Mrs Dwyer deposes that, by 2008, Mrs Barlow was “quite silly and could not have a sensible conversation for more than a few minutes”.

68. According to Ms Du Cloux, by early 2008, Mrs Barlow’s short-term memory was not good and she had patchy long-term memory. Her blindness was severe; and it caused anxiety and confusion. Mrs Barlow was afflicted with deafness that led to arguments when she would claim that someone had not told her something. Ms Du Cloux went so far as to say that Mrs Barlow could not think clearly or logically and no longer seemed to understand legal matters.

69. There is little or no detail to support those impressions. And others saw Mrs Barlow’s cognitive functioning in March 2008 very differently.

70. Ms Curran found Mrs Barlow to be “rational” when they met a month before the will was made. In her assessment, there were “no signs…of any mental incapacity…”. Ms Arnold was left with much the same impression when she encountered Mrs Barlow on the day. Neither of them had experience of Mrs Barlow other than on the days they encountered her.  Nonetheless, their impressions – one roughly contemporary; the other formed as Mrs Barlow communicated her instructions – do assist in resolving the capacity question.  In particular, it matters that Ms Arnold, who was on the lookout for cognitive impairment, entertained no reservations about Mrs Barlow’s capacity. 

Assessment

71. Mrs Barlow did suffer from progressive dementia. By September 2009, her condition had deteriorated to a severe stage requiring her admission to hospital. There had been indicia of mild to moderate cognitive impairment in January 2007. However, there was no medical assessment of Mrs Barlow’s mental functioning around the time the will was made.

72. Mrs Barlow appreciated that she was making a will when she instructed Ms Curran, and she understood what that meant. There is no reason to doubt that she was aware of the nature and extent and, at least in a general way, the value of her estate. She was aware of those who may reasonably be thought to have had some claim on her bounty. Moreover, the particular gifts she chose to make, coupled with the contemporary observations of Mr Arnold, Ms Curran and Ms Arnold, reveal that she reflected rationally upon the potential claims on her benefaction.^[5]

73. It is more probable than not that Mrs Barlow had testamentary capacity when she made her 2008 will.

Disposition

74. There should be a grant of probate in solemn form in respect of the 2008 will.