Re Dohle[2022] QSC 4

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application for a grant of probate of a will which raises several issues including:

   1. (a)
      whether the deceased had testamentary capacity at the time the 2020 Will was made;
   2. (b)
      an application for rectification of the 2020 Will to replace a reference to “Nereo’s children” with the words “Nereo’s grandchildren”, including an extension of time for the application.

Service

2. [2]
   The application has been served on any person named as executor or beneficiary in the 2019 Will and the 2020 Will, and anyone who would benefit on intestacy, except for one son, Benjamin Mathew Dohle. 
3. [3]
   The whereabouts of Benjamin Mathew Dohle have not been known by the family for a number of years.  For the purposes of service of the applications, searches have been undertaken to locate him but have been unsuccessful to date.
4. [4]
   It is submitted that this beneficiary will not be adversely affected by the orders sought as the terms of the 2020 Will are more beneficial to him than the 2019 Will. 
5. [5]
   In the circumstances, I am satisfied that as the interests of Benjamin Mathew Dohle are not prejudiced by the orders sought, in the circumstances it is appropriate that the application proceed despite one beneficiary not having been served.
6. [6]
   Otherwise, all other beneficiaries and potential beneficiaries have been served and no opposition is raised in respect of the application.

Testamentary capacity

7. [7]
   The threshold issue is whether the deceased had testamentary capacity at the time the 2020 Will was made.  The doubt arises from a letter from Dr Grundy stating that the deceased was incapable of making decisions in relation to financial matters. 
8. [8]
   Further enquiries have been made with Dr Grundy in respect of this issue and Mr Sankey, who took instructions for the 2020 Will and observed the deceased on two occasions at the relevant time, has provided an affidavit.
9. [9]
   The test for testamentary capacity is set out in Banks v Goodfellow^[1] by Cockburn CJ as follows (with numbering added):

“It is essential to the exercise of such a power that a testator:

3. (1)
   shall understand the nature of the act and its effects;

3. (2)
   shall understand the extent of the property of which he is disposing;

3. (3)
   shall be able to comprehend and appreciate the claims to which he ought to give effect; and

3. (4)
   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.”

10. [10]
    The test was affirmed by the High Court in Timbury v Coffee.^[2]  Further, the test has been restated in subsequent cases, including in Read v Carmody^[3] where Powell JA stated:

“1.  that the testator - or testatrix - is aware, and appreciates the significance, of the act in the law upon which he - or she - is about to embark upon;

2. that the testator - or testatrix - is aware, at least in general terms, of the nature, and extent, and value, of the estate over which he - or she - has a disposing power;

3. that the testator - or testatrix - is aware of those or may reasonably be thought to have a claim upon his - or her -  testamentary bounty, and the basis for, and nature of, the claims of such persons;

4. that the testator - or testatrix - has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons.”

11. [11]
    In Frizzo & Anor v Frizzo & Ors,^[4] the Court of Appeal endorsed the approach identified by Applegarth J^[5] where his Honour stated:

“[23]  Of course, the onus of proving that the testatrix had testamentary capacity at the time she made her will lies on the party propounding that will. It is a question determined on the balance of probabilities, based on the whole of the evidence. A presumption of validity arises where the proponent demonstrates a duly executed will that is rational on its face. The party impugning that will must then displace the prima facie case with ‘clear evidence…that the illness of the [testatrix] so affected [her] mental faculties as to make them unequal to the task of disposing of [her] property’. While extreme age or grave illness are circumstances that will attract the vigilant scrutiny of the Court, neither is, of itself, sufficient to establish incapacity. The question always is whether those or other circumstances so affected the testatrix’s faculties as to render her unequal to the task of disposing of her property.

[24]  If, however, doubt is raised as to the testatrix’s mind, memory and understanding, then the Court is thrown back onto an examination of the evidence as a whole to determine whether the proponent has established affirmatively that the testatrix was of sound mind at the time of executing the will. As was said in Worth v Clasohm:

‘The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.’

[25]  In embarking on that examination, opinion evidence may be led, but courts are not obliged to give it a great deal of weight. Justice Mullins has recently reiterated the propositions put forward by Isaacs J (as he then was) in Bailey v Bailey. Those propositions, relevantly, are (1) that opinions of witnesses as to testamentary capacity are ‘usually for various reasons of little weight on the direct issue’; and (2) that, while such opinions are not without some weight, ‘the Court must judge from the facts they state and not from their opinions’.” (Footnotes omitted)

12. [12]
    From the authorities, the relevant principles to be considered include the following:

    1. (a)
       the onus is on the party propounding the will;
    2. (b)
       the question is to be determined on the balance of probabilities, based on the whole of the evidence;
    3. (c)
       a presumption of validity arises where the proponent demonstrates a duly executed will that is rational on its face;
    4. (d)
       that may be displaced by clear evidence;
    5. (e)
       extreme age or grave illness are not sufficient in themselves to establish incapacity, but may attract scrutiny.
13. [13]
    As Applegarth J in Frizzo identified, where doubt is raised as to the testatrix’s mind, memory and understanding then the Court must examine the evidence as a whole to determine whether the proponent has established that the testatrix was of sound mind at the time of the execution of the will. 
14. [14]
    It is also relevant to the consideration of the issue that medical evidence is not determinative of the issue of testamentary capacity and while it may be highly relevant it needs to be considered as part of the “commonsense judicial judgment on the basis of the whole of the evidence”.^[6]
15. [15]
    Here the evidence includes:

    1. (a)
       the 2020 Will is rational and is not a major departure from the earlier 2019 Will;
    2. (b)
       the presumption of testamentary capacity arises;
    3. (c)
       the letter from Dr Grundy raised a doubt that needed to be considered further;
    4. (d)
       further clarification provided by Dr Grundy puts the view expressed in the letter in context:

       1. The letter was prepared to be given to the bank in respect of the use of a power of attorney;
       2. Dr Grundy made no formal assessment as to capacity;
       3. Dr Grundy could not say whether or how the medications taken by the deceased were affecting her;
       4. Dr Grundy did not believe that the deceased suffered from any disorder of the mind.
    5. (e)
       Mr Sankey, an experienced practitioner who prepared the 2020 Will, observed the deceased on two occasions at the relevant time including:

       1. he took detailed instructions, including as to the deceased’s assets;
       2. those instructions have been subsequently investigated and were accurate;
       3. instructions were taken of various scenarios including family provision claims and the consequences of her or her partner predeceasing each other;
       4. the deceased gave clear instructions and appeared to understand concepts relevant to the Will;
       5. Mr Sankey, an experienced legal practitioner, was satisfied that the deceased had testamentary capacity;
       6. at a subsequent meeting to review and sign the 2020 Will, the deceased presented in a similar state.
16. [16]
    I am satisfied on the balance of probabilities that the deceased had testamentary capacity at the time of making the 2020 Will.  Further, I am satisfied that a grant of probate should be made in respect of the 2020 Will.

Rectification

17. [17]
    In respect of the application seeking to rectify an error in the description of Nereo’s grandchildren as his children, the Court has power under s 33 of the Succession Act 1981 (Qld) to rectify a will to carry out the intentions of the testator if the court is satisfied that a clerical error was made or the will does not give effect to the testator’s instructions.
18. [18]
    The approach to an application for rectification has been identified in the authorities as being as follows:^[7]

    1. (a)
       Has a clerical error been made?
    2. (b)
       Does the will fail to give effect to the deceased’s instructions?
    3. (c)
       If either or both of (a) and (b) has occurred, has this caused the will not to carry out the deceased’s intention?
    4. (d)
       If so, then the court may make an order to rectify a will to carry out the testator’s intentions.
19. [19]
    A clerical error is where there is an inadvertent error in the process of recording the instructions in the will such that the draftsperson never really applied their mind to the words the subject of the application.^[8]
20. [20]
    In respect of the question of whether the will does not give effect to the testator’s intentions, the Court of Appeal in Rose v Tomkins^[9] identified the following relevant principles:

    1. (a)
       The court must ascertain the testator’s intention, being the actual intention of the testator reflected in the instructions given by the testator, not what would probably have been the intention in the circumstances that eventuated.
    2. (b)
       The court must construe the provision of the will sought to be rectified.
    3. (c)
       The court is required to compare the relevant provision of the will properly construed with the testator’s intention as ascertained.
    4. (d)
       The court must be satisfied the relevant provision of the will does not carry out the testator’s intentions because it does not give effect to the testator’s instructions and that rectification in the terms sought would give effect to those instructions.
    5. (e)
       The court must be so satisfied on the balance of probabilities, on clear and convincing proof.
21. [21]
    Mr Sankey’s affidavit deposes to the circumstances of the error.  The error was made when Mr Sankey mistakenly wrote “children” in his notes and this was subsequently incorporated into the document without being corrected.
22. [22]
    Here, considering the evidence in light of the principles identified in the authorities:

    1. (a)
       a clerical error was made;
    2. (b)
       the instructions from the deceased were that the named individuals were Nereo’s grandchildren;
    3. (c)
       Nereo and the deceased had been in a long-term relationship.  Nereo died about a week after the deceased;
    4. (d)
       the deceased’s 2019 Will had identified the named individuals as Nereo’s grandchildren;
    5. (e)
       the 2020 Will does not give effect to the testator’s instructions;
    6. (f)
       this has caused the 2020 Will not to carry out the deceased’s intentions;
    7. (g)
       the proposed orders will put the 2020 Will in a form which reflects the testamentary intentions and allow Mr Sankey, as executor, to carry out those intentions.
23. [23]
    In respect of the application being brought outside of the time stipulated in s 33(2), the Court has power to extend time under s 33(3).^[10]
24. [24]
    Here:

    1. (a)
       there has been no distribution of the estate;
    2. (b)
       there is no identifiable prejudice to any person in the making of the orders;
    3. (c)
       there is prejudice to the administration of the estate and the interests of the grandchildren beneficiaries if the order is not made;
    4. (d)
       the error was only discovered after the deceased’s passing;
    5. (e)
       the costs of this application will not be borne by the estate.
25. [25]
    In these circumstances, I am satisfied that it is appropriate for the extension of time to be granted and for the will to be rectified as proposed.

Orders

26. [26]
    I will make orders as per the draft provided to me.

27. [27]
    The Court Orders that:

1. Subject to the formal requirements of the Registrar, a grant of probate of the Will of Robin Ann Dohle (the Deceased) dated 18 June 2020 be made to Corin Michael Sankey, as Executor.
2. Pursuant to section 33 of the Succession Act 1981, clause 3.3 of the Will of the Deceased is rectified to replace the words “Nereo’s children” with the words “Nereo’s grandchildren”.
3. The time for the applicant to make an application under section 33 of the Succession Act 1981 is extended to the date of this order pursuant to section 33(3) of the Succession Act 1981.
4. The Applicant’s costs of this Application in respect of the application for a grant of probate be paid from the estate of the Deceased on an indemnity basis.