Re Massey (deceased)[2021] QSC 205

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   NORTH J:  This an application brought before the Court by The Public Trustee as executor of the estate of the late Winifred Massey (‘the Deceased’) (‘the Applicant’), for orders:

   1. (a)
      Revoking the order to administer the estate of the Deceased according to her Will dated 14 May 1990, granted to the Applicant on 3 December 1992;
   2. (b)
      Pronouncing for the full force and validity of the Deceased’s Will dated 14 May 1990;
   3. (c)
      Granting probate of the Will dated 14 May 1990 to the Deceased’s grandson, Kevin Cornelius Stanley (‘Kevin’);^[1]
   4. (d)
      Vesting the deceased’s assets in Kevin as the Deceased’s personal representative;
   5. (e)
      Registering Kevin, in his capacity of the Deceased’s personal representative, as the proprietor of the Deceased’s real property situated in Babinda, Queensland.
2. [2]
   The Applicant also offers an alternative order pronouncing in favour of the deceased’s penultimate Will, dated 13 May 1986.
3. [3]
   The First Named Second Respondent acts in support of the orders sought by the applicant, but not the alternative relief sought.
4. [4]
   On 25 March 2021, it was ordered that the First Named Second Respondent was to take carriage of the hearing, and on 16 June 2021 the Applicant was given leave to withdraw from the proceedings subject to being heard on orders made other than those sought by the Applicant and, subsequently, the First Named Second Respondent.
5. [5]
   The Deceased died on 19 August 1992. Her husband, Matthew William Massey predeceased her on 13 August 1982.
6. [6]
   The Deceased was survived by seven children^[2]:

   1. (a)
      Janet Winifred Marlene Stewart (‘Marlene’), who died 18 November 2013, leaving five children;

      3. (i)
         Darryl Murgha;

      3. (ii)
         Victorina Murgha, who died 10 February 2018, survived by three children;

      3. A.
         Cherie Noble;

      3. B.
         George Noble;

      3. C.
         Cheryl Noble (together, the Fourth Respondents)

      3. (iii)
         Matthew Murgha;

      3. (iv)
         Erwin Murgha;

      3. (v)
         Glennys Murgha (‘Glennys’); and

      3. (vi)
         Ian Murgha (‘Ian’) (together, excepting Victorina Murgha, the Third Respondents)
   2. (b)
      Dorothy Frances Stanley (‘Dorothy’), who later died on 27 May 2004, leaving 4 children;

      3. (i)
         Marlene Singleton;

      3. (ii)
         Charles Stanley;

      3. (iii)
         Roberta Stanley (‘Roberta’); and

      3. (iv)
         Kevin Stanley.
   3. (c)
      Gloria Robert Volger (‘Gloria’);
   4. (d)
      Madge Thora Patterson (‘Thora’);
   5. (e)
      Susan Monica Ross-Kelly (‘Susan’);
   6. (f)
      Victorina Genevieve Massey (‘Victorina’), who was formally adopted out on 1 July 1965; and
   7. (g)
      Terrence William Massey (‘Terry’), the biological son of Marlene who was adopted by the Deceased.
7. [7]
   The significant asset of the Deceased’s estate is a property situated at Lot 2 Nelson Road, Babinda (‘the Property’). There are three houses on the Property. A valuation completed 7 December 2017, estimated the value of the Property at approximately $450,000.
8. [8]
   The Deceased’s last Will is dated 14 May 1990 (‘the 1990 Will’). The 1990 Will;

   1. (a)
      Appointed Terry as executor;
   2. (b)
      Gifted the Deceased’s estate to Dorothy, Susan and Terry in equal shares.
9. [9]
   Terry renounced his executorship, and The Public Trustee later obtained an Order to Administer the Deceased’s estate according to the 1990 Will on 3 December 1992.
10. [10]
    The drafter of the 1990 Will is unknown and has not been located.
11. [11]
    The Deceased’s penultimate Will is dated 13 May 1986 (‘the 1986 Will’). The 1986 Will;

    1. (a)
       Appointed The Public Trustee as executor;
    2. (b)
       Gifted the Deceased’s estate to Marlene.

History of Proceedings

12. [12]
    Marlene commenced proceedings 44/1993 in the Townsville Supreme Court seeking the revocation of the Order to Administer granted to the Applicant on 3 December 1992 and that probate of the 1986 Will be granted instead.
13. [13]
    On 27 August 1993, Cullinane J ordered that the Order to Administer dated 3 December 1992 be returned to the Registry and that Marlene be the defendant in solemn form proceedings to be commenced by the Applicant.
14. [14]
    On 6 December 1993, the Applicant commenced proceedings 173/1993 in the Townsville Supreme Court, against Marlene, propounding the 1990 Will. The Writ was served on Marlene. She did not appear or defend. No further steps have been taken in those proceedings.
15. [15]
    On 27 May 1996, the Deceased’s children signed a Deed agreeing:

    1. (a)
       Not to dispute the validity of the 1990 Will;
    2. (b)
       That the Applicant was to administer the estate according to the Order to Administer granted on 3 December 1993;
    3. (c)
       That the 1990 Will be read and construed as if it gave a right to reside for life in one of the houses on the Property to Dorothy, Susan and Terry, with them paying the rates and insurances on the house they occupied.
16. [16]
    The Applicant has allowed Dorothy, Susan and Terry to occupy the houses on the Property.
17. [17]
    The Applicant and his agents have been refused access to the Property, and has been unable to obtain an up-to-dated valuation of the Property, nor has he been able to determine whether repairs or maintenance need to be undertaken, or determine when the insurance on the Property is adequate.
18. [18]
    Since 2016, the Applicant has been paid approximately $38,169.00 in insurance premiums on the Property from his own funds. He is no longer willing to provide for these expenses.
19. [19]
    The Deceased’s children, who were then represented by solicitors, provided the Applicant with correspondence stating that they wanted to “cancel” the abovementioned Deed, the estate to be distributed according to the 1990 Will, the Applicant to renounce executorship and for Terry to take a grant of representation of the Estate.

Legal Principles

20. [20]
    Testamentary capacity is the capacity to know what estate the person has to dispose of and what persons may have a claim. Williams, Fullager and Kitto JJ succinctly summarised the approach to be taken in their joint judgement in Boreham v Prince Henry Hospital:

The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.^[3]

21. [21]
    The burden of proof lies on the propounder of the Will to show on the balance of probabilities that the testator had testamentary capacity.^[4] Applegarth J summarised the applicable test for determining the requisite mental capacity in Frizzo & Anor v Frizzo & Ors:

The classic test for testamentary capacity was enunciated in Banks v Goodfellow. The relevant principles were restated by Powell JA in Read v Carmody:

1. The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;

2. The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;

3. The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;

4. The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.

In this last respect, in the words of Banks v Goodfellow, no disorder of the mind should poison her affections or pervert her sense of right, nor any insane delusion influence her will, nor anything else prevent the exercise of her natural faculties.^[5]

Discussion

Standing

22. [22]
    It was an issue raised during the hearing as to whether the Third and/or Fourth Respondents have standing to oppose probate being granted in favour of the 1990 Will. A litigant must have an identifiable interest in the outcome of the proceedings in order to be a party to the proceedings.
23. [23]
    The Third and Fourth Respondents are the descendants of Marlene. As it stands Marlene, as the sole beneficiary of the 1986 Will, or a personal representative, following her death, are the only people with standing to oppose probate of the 1990 Will.
24. [24]
    It is unknown whether Marlene had a will, or who her personal representative is.
25. [25]
    As beneficiaries to the 1990 Will, the First Named Second Respondent on behalf of the estate of Dorothy, Susan and Terry have standing.
26. [26]
    Nevertheless, Cherie and Cheryl Noble appeared in both days of the hearing for the Fourth Respondents. Glennys Murgha appeared on the second day of the hearing for the Third Respondent, and gave evidence as did Ian Murgha.

Testamentary Capacity

27. [27]
    In the proceedings commenced by Marlene in 1993, the following documents were filed;

    1. (a)
       An affidavit sworn 11 August 1993 deposing to behaviour by the Deceased consistent with impaired capacity in May 1990; and
    2. (b)
       An affidavit from the deceased’s general practitioner, Dr Brian Merlo deposing that, in his opinion the deceased lacked capacity in May 1990.
28. [28]
    The affidavit of Dr Merlo is the only medical evidence available regarding the Deceased’s capacity at or around the 1990 Will. The contents of which were summarised by the First Named Second Respondent in their submissions (‘MFI 4’):

    1. (a)
       Dr Merlo first noticed early signs of dementia in the Deceased on 30 March 1987;
    2. (b)
       On 12 May 1990, he noted in his records that the Deceased:

       3. (i)
          Had short term memory loss;

       3. (ii)
          Was disoriented in time;

       3. (iii)
          Had not been taking her medication;

       3. (iv)
          Was living by herself but with significant family support;

       3. (v)
          Was suffering from confusion;

       3. (vi)
          Showed signed of vagueness;

       3. (vii)
          Was clearly suffering from dementia,

       3. (viii)
          Was progressively deteriorating.
    3. (c)
       At all consultations at 12 May 1990, dementia was noted as a significant condition in his records;
    4. (d)
       At the time of the Deceased’s death, she was severely demented;
    5. (e)
       It was his medical opinion that the Deceased was incapable of making a Will on 14 May 1990.^[6]
29. [29]
    The First Named Second Respondent also summarised the contents of the affidavit of Marlene filed in the 1993 proceedings in MFI 4 as follows:

    1. (a)
       She is the daughter of the deceased;
    2. (b)
       In early 1989, the Deceased was admitted to Babinda Hospital for continuous monitoring and remained in hospital until she died in 1992. During this hospitalisation, the Deceased did not recognise many family members who would visit her.
    3. (c)
       In early 1990, the Deceased was showing signs of not being physically or mentally very well. She deposes to her being vague, very forgetful and had trouble recognising people, and was on medication from her doctor. She had to be constantly monitored.^[7]
30. [30]
    Despite not having standing in the proceedings, the Court heard evidence from Glennys and Ian Murgha (two of the Third Respondents).^[8]
31. [31]
    Glennys Murgha is the granddaughter of the Deceased. In response to questioning, Glennys, who was approximately 25 years old at or around the time of the 1990 Will, recalled that the Deceased has difficulties with cooking, clothing and that her mother, Marlene, was the Deceased’s primary caregiver.^[9]  Glennys had lived with Marlene at the time.
32. [32]
    She also stated that the Deceased was admitted to the Babinda Hospital in the 1990s until her death, estimating her stay to be approximately a year and a half.^[10] Glennys recounted an event where the Deceased thought another patient’s doll was hers to support her statement that the Deceased was suffering from dementia.^[11]
33. [33]
    Ian Murgha, the grandson of the Deceased, was also heard on his recollections of the Deceased’s capacity at or around the 1990 Will. Ian, who was 23 at 14 May 1990, recalled that his mother, Marlene, took the Deceased to the appointment with Dr Merlo which resulted in her diagnosis with dementia. He stated this occurred in 1991.^[12]
34. [34]
    In the proceedings, the First Named Second Respondent called 5 witnesses, and relied on the affidavits of Susan and Judith Clothier filed in support of the 1990 Will.
35. [35]
    The First Named Second Respondent summarised the evidence contained in the affidavits of Susan Ross-Kelly and Judith Clothier in MFI 4.
36. [36]
    Susan Ross-Kelly’s affidavit contained evidence the effect of:

    1. (a)
       She is the daughter of the Deceased;
    2. (b)
       The 1990 Will was signed by the Deceased when she was “in her right mind” and is “exactly what dad and mum wanted and have always verbally spoken about to all the families”;
    3. (c)
       The Deceased and Matthew agreed that Dorothy, Terry and Susan would own and live on the Property and pass it on to their respective sons, Kevin, Darren Massey and Brian Ross-Kelly;
    4. (d)
       She contributed money towards the purchase of the property;
    5. (e)
       She lived in one of the dwellings on the Property with her parents, before moving out to live with her husband and children. She subsequently moved back to the Property in 1995, and continues to reside there;
    6. (f)
       Dorothy and Terry built their own homes and paid for all the materials on the Property and subsequently lived in them;
    7. (g)
       Dorothy, Terry and Susan were the only three children who chose to live at the Property permanently;
    8. (h)
       In the late 1960s, Susan witnessed her father asking Marlene if she wanted to live on the Property, to which Marlene replied, “No it will be like a mission’. Susan never knew of Marlene changing her mind or asking to live on the Property while the Deceased was alive;
    9. (i)
       Marlene, Gloria and Thora did not ever build or live at the Property, and Susa never heard any of them say they wanted to. Instead, they moved away and into homes with their husbands;
    10. (j)
        In Susan’s opinion, the Deceased’s memory was fine up until she passed away;
    11. (k)
        Between 1990 and 1992, the Deceased met Victorina, who had been adopted out 40 years earlier. The Deceased knew exactly who Victorina was and was very excited to see her;
    12. (l)
        She wishes for the 1990 Will to be followed.^[13]
37. [37]
    Judith Clothier’s affidavit contained evidence to the effect:

    1. (a)
       She is the Deceased’s granddaughter, being the daughter of Susan;
    2. (b)
       She took care of the Deceased in roughly 1989 or 1990, during which time the Deceased’s “mind was excellent”;
    3. (c)
       The Deceased always knew who Judith was and Judith does not recall the Deceased “having memory loss or forgetting things. The Deceased’s memory “was great and tis [sic] was in the years 1989-1992”;
    4. (d)
       In 1992, Judith visited the Deceased to introduce Judith’s child to the Deceased, during which the Deceased knew who Judith was. The Deceased died hours later.^[14]
38. [38]
    The first of the witnesses called by the First Named Second Respondent was Reverend Francis Young. Rev. Francis Young was a family friend of the Deceased and has grown up with the Massey family. At her death, he estimates that he had known the Deceased for about 30 years.^[15]
39. [39]
    Rev. Francis Young was shown a copy of the 1990 Will, to which he recognised it as the Will of the Deceased and identified his and his wife’s signatures on the bottom. He recalls witnessing the Will, and places it at either the Deceased’s house on the Property on Nelson Road or Susan Ross-Kelly’s property on Howard Kennedy Drive.^[16]
40. [40]
    When asked whether the Will could have been witnessed at the Hospital, Rev. Francis Young denies the statement, saying he would remember the Hospital had he witnessed the Will there.^[17]
41. [41]
    He was not too sure as to whether the Deceased has signed the Will in his presence nor who drafted it.^[18]
42. [42]
    As to the capacity of the Deceased, Rev. Francis Young in response to questioning gave evidence of the effect that in his best recollection the Deceased did not show signs on not recognising him or her family, she did not have trouble with her memory nor did he observe her to appear confused and disoriented.^[19]
43. [43]
    The next witness called was Mrs Susan Young. She is the wife of Rev. Francis Young and had known the Deceased for about 12-14 years prior to her death in 1992. Mrs Young identified the 1990 Will as that of the Deceased and identified her and her husband’s signatures on the bottom.^[20]
44. [44]
    She could not recall whether she witnessed the Deceased signing the Will but stated that she wouldn’t have signed the document if the Deceased was not present. ^[21]
45. [45]
    Mrs Young also recounted that she did not have any concerns regarding the Deceased’s ability to recognise and understand her or her family in their encounter nor does she recall the Deceased having problems with her memory.^[22]
46. [46]
    The First Named Second Respondent also called three of the children of Dorothy Stanley; Marlene Singleton, Roberta Stanley and Kevin Stanley.
47. [47]
    Marlene Singleton recounted that the Deceased was in good health and would remember her and her family each time she would visit from Cairns approximately every 3 to 4 weeks. She did not reside with her grandparents during her visits, rather with her parents who also lived on the Property.^[23]
48. [48]
    She also referred to the time where Victorina visited the Deceased and the Deceased recognised her.^[24] Marlene Singleton could not recall a time in 1990 where the Deceased did not understand her or did not understand the extent of her estate.^[25]
49. [49]
    Roberta Stanley in 1989 and 1990 travelled for her nursing career. She stated would come home to see the Deceased for a couple of days at least once a month. She remembered that in 1989 and 1990, the Deceased was “very capable” but noted in 1990-1992 the Deceased had a carer.^[26]
50. [50]
    Roberta’s evidence suggested that the Deceased was hospitalised for a continuous period only shortly before her passing.^[27] Roberta couldn’t definitely say whether the Deceased had difficulties in recognising other people or remembering but could definitely recollect that the Deceased remembered and recognised her each time she visited and understood to a certain extent who she was and where she was at.^[28]
51. [51]
    Kevin Stanley stated that during the time around 1990, he would visit the Deceased “regularly,” which he described as “some weeks weekly, some fortnightly, it could be a month”.^[29] The time he spent with the Deceased varied from a couple minutes, to a couple hours, to a day.^[30] During the visits, Kevin recalled the Deceased was quite lucid and knew exactly who he was and where she was.^[31]
52. [52]
    Kevin stated he was not aware of whether the Deceased required a carer to ensure she did not overdose on her medication, was not aware of any incident the Deceased forgot to turn the stove, nor does he recall the Deceased remaining in hospital continuously for the 3 years before she passed.^[32]
53. [53]
    Kevin stated he never observed the Deceased to be vague in her conversations with him, nor being forgetful or confused and disorientated, nor did he observe her having difficulties recognising her family members or what she owned.^[33]
54. [54]
    It is worth acknowledging that the evidence given by the grandchildren of the Deceased (both in support of the 1990 Will and not) appear to be more retellings of family history and stories and are conclusory in nature.  
55. [55]
    Whilst the evidence coming from Dr Merlo should not be discounted outright, there are a number of circumstances that suggest it should not be preferred over the evidence presented during the hearing in favour of the 1990 Will.

    1. (a)
       The clinical records supporting the opinions of Dr Merlo are not before the Court, and extensive efforts but unsuccessful have been made by the Applicant to obtain a copy of these records.
    2. (b)
       Dr Merlo describes the Deceased as severely demented at the time of her death, which is 2 years after the 1990 Will was made.
    3. (c)
       Dr Merlo noted the Deceased being disorientated, confused and suffering memory loss two days before she made the 1990 Will. This is not evidence of her cognitive ability on the day she made the 1990 Will and are not evidence to a sufficient lack of capacity to understand how, and to whom, she is to dispose of her estate.
56. [56]
    It is relevant to note in respect to the above, it has been accepted that while medical evidence going to any of the requirements set out in the Banks v Goodfellow test may be relevant, it is not always determinative.^[34]
57. [57]
    The evidence of the two independent witnesses, Reverend Francis Young and Susan Young, appear to be the most reliable as to the Deceased’s capacity at the time the 1990 Will was executed. Both Francis and Susan Young were the only persons before the Court who observed the Deceased on the day and at the time the 1990 Will was made.
58. [58]
    Rev. Francis Young had known the Deceased for more than 30 years prior to the 1990 Will and would have been familiar with the Deceased’s mannerisms insofar that it is likely he would have noticed if the Deceased was confused, disorientated or otherwise lack the requisite capacity.
59. [59]
    Neither of the witnesses have an interest in the estate and both said that they would have not participated in witnessing in the 1990 Will, should they have had concerns regarding the Deceased’s capacity at the time.
60. [60]
    I was impressed by both Reverend Francis Young and Mrs Susan Young. Susan Young particularly impressed as a thoughtful and reflective witness who was careful to accurately recount the events and circumstances as she recalled them. It is highly unlikely that if the Deceased has exhibited signs of dementia or mental infirmity that they would have failed to detect it. I am persuaded that neither would have witnessed the execution of the Will if they harboured concerns about the Deceased’s capacity
61. [61]
    The drafter of the 1990 Will is unknown, but it is presumed to be a solicitor. The following suggest this presumption;

    1. (a)
       The 1990 Will capitalises and underlines the operative words and names of relevant persons
    2. (b)
       How the 1990 Will is typed and formatted;
    3. (c)
       The 1990 Will refers to s 33 of the Succession Act 1981; and
    4. (d)
       The 1990 Will contains a comprehensive attestation clause, in language particular to the legal profession.
62. [62]
    On its face, the 1990 Will is coherent and does not suggest by its terms that the testatrix lacked testamentary capacity. Nevertheless, members of the family have harboured doubts and have expressed them in the past.
63. [63]
    Evidence was produced in proceedings commenced in 1993 that suggested the Deceased lacked testamentary capacity, however as discussed previously, this evidence should not be preferred to the evidence produced during the current proceedings.
64. [64]
    Whilst I accept that the Deceased may have suffered from dementia in the years proceeding her death, I accept the evidence of the two witnesses who were present at the date and time when the 1990 Will was made.
65. [65]
    The evidence suggesting the deceased lacked capacity on 14 May 1990 is not persuasive. I am persuaded on the balance of probabilities that the Deceased has testamentary capacity on 14 May 1990. 
66. [66]
    I will make orders in terms of the draft provided to the Court by the First Named Second Respondent.
67. [67]
    I will hear submissions on costs.