Re Briggs (deceased)[2023] QSC 226

SUPREME COURT OF QUEENSLAND

1. [1]
   Application is made for letters of administration of one of two wills made by Faye Joy Briggs (Faye) who also sometimes spelt her name “Fay”.  The applicant is Shane Martin Briggs (Shane).  Shane is Faye’s eldest son.

Background

2. [2]
   Faye was born on Christmas day 1937. 
3. [3]
   She married Raymond Martin Briggs (Ray) and the couple had two children, Shane born on 10 March 1957 and Keith Raymond Briggs (Keith) born on 19 January 1959.
4. [4]
   In the 1980s, Faye and Ray divorced.
5. [5]
   On 19 January 2010, Faye made a will (the 2010 will).  She later made a will on 19 January 2016 (the 2016 will).  Both wills were prepared by the Public Trustee of Queensland (the Public Trustee).
6. [6]
   By the 2010 will, Faye relevantly:

1. cancelled all earlier wills;
2. appointed the Public Trustee as executor and trustee;
3. recorded that she had advanced $30,000 to Keith during her lifetime and directed that sum be taken into account when dividing her estate;
4. left her estate, after payment of all debts and expenses, equally between Shane and Keith.  In the event either did not survive her by 30 days, then their share fell to their children.

7. [7]
   By the 2016 will, Faye,

1. cancelled all earlier wills which would include the 2010 will;
2. appointed the Public Trustee as executor and trustee;
3. left her estate, after payment of all debts and expenses, equally between Shane and Keith, but:

1. if Keith did not survive her by more than 30 days, then his half share to Shane;

2. if Shane did not survive her by more than 30 days, then his half share to her grandsons, Tyler Briggs and Jake Briggs.

8. [8]
   The only material difference between the 2010 will and the 2016 will is the absence of reference to the debt owed by Keith to Faye.
9. [9]
   On 5 November 2022, Faye died.
10. [10]
    Faye left a modest estate:

1. a Refundable Accommodation Deposit (RAD) of $320,000;
2. cash at bank of approximately $110,692;
3. interest on the RAD of about $8,000;
4. liabilities of about $15,000 which includes anticipated costs of administration.

11. [11]
    On 16 February 2023, the Public Trustee renounced the right to administration of the 2016 will and on 13 June 2023, the Public Trustee renounced the right to administration of the 2010 will.
12. [12]
    Shane applies for orders without oral hearing,^[1] for letters of administration of either the 2016 will or the 2010 will.  The reason for this curious approach is that there is evidence casting doubt upon Faye’s capacity to make the 2016 will.

Should the application proceed without oral hearing?

13. [13]
    Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides:

“489 Proposal for decision without oral hearing

1. A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

2. If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—

1. under rule 491, the court considers it inappropriate to do so; or

2. under rule 494, the respondent requires an oral hearing; or

3. under rule 495, the applicant abandons the request for a decision without an oral hearing; or

4. the Chief Justice or Chief Judge suspends the operation of this rule by direction.”

14. [14]
    The structure of r 489 is that:

1. jurisdiction to proceed without oral hearing is granted;
2. the jurisdiction is enlivened by a proposal by an applicant;
3. the proposal must be accepted, and the application determined without oral hearing, in the absence of the features in r 489(2)(a)-(d).^[2]

15. [15]
    Shane has proposed that the application be determined without oral hearing.  That enlivens the jurisdiction.  The application has been duly advertised.  No person has indicated opposition to the application, or opposition to it being decided without oral hearing.  Keith, being the only other obvious party, supports the application.  Shane continues to press for the application to be determined without oral hearing.  The Chief Justice has not suspended the operation of r 489.  Therefore, none of the circumstances prescribed by rr 489(1)(b), (c) or (d) apply.
16. [16]
    Rule 491, referred to in r 489(1)(a), provides:

“491 Court may decide that decision without an oral hearing is inappropriate

1. The court may decide at any time that an application is inappropriate for decision without an oral hearing.

2. If the court decides this before the date set for deciding the application, the court—

1. must immediately notify the parties to the application of the decision by telephone or in some other way; and

2. may set a date for hearing.”

17. [17]
    Nothing in either r 489 or r 491 expressly defines the notion of disposal without oral hearing being “inappropriate”.  The meaning of the term “inappropriate” must be taken from the context and purpose of the rule.^[3]  Here, the clear purpose of r 489 is the efficient and economical disposal of the Court’s business.  The primary aim though of the Court in exercise of any of its jurisdiction is to do justice.  It will not be “inappropriate” to exercise the Court’s jurisdiction to determine the application without oral hearing where justice can be done without an oral hearing.
18. [18]
    The application is uncontentious except in one respect.  That is that there is evidence of incapacity in relation to the making of the 2016 will. 
19. [19]
    It is a serious thing to set aside a will on the basis of incapacity.  Usually, expert medical evidence would be called and the doctors cross-examined, as would the witnesses to the will.
20. [20]
    Here, there is no expert opinion expressed as to Faye’s capacity in January 2016 when the 2016 will was made.  There is other medical opinion which is relevant.  There is no sworn evidence from any of the witnesses to either the 2010 will or the 2016 will.
21. [21]
    However, as will be seen, there is no evidence to overcome the presumption of capacity of Faye to make the 2010 will.  There is compelling evidence that Faye did not have capacity to make the 2016 will.  There are no apparent reasons why any of that evidence need be challenged through cross-examination or oral argument.
22. [22]
    It is therefore in the interests of justice to proceed without oral hearing.

Did Faye have testamentary capacity?

23. [23]
    Both the 2010 will and the 2016 will are duly executed^[4] which is prima facie proof of testamentary capacity.^[5]  Once dementia is specified as a cause of death (as it is here), capacity is in issue and the person propounding the will must prove capacity.^[6]
24. [24]
    Applegarth J in Frizzo v Frizzo^[7] explained the test for testamentary capacity as:

“[21] The classic test for testamentary capacity was enunciated in Banks v Goodfellow.^[8] 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.^[9]

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.^[10]”

25. [25]
    There is, in my view, no reason to doubt Faye’s capacity to make the 2010 will.   Shane swore that Faye did not show signs of memory loss or other cognitive shortcomings until about 2012.  Even after that time, she functioned well and could largely look after her own affairs.
26. [26]
    Earlier, in 2010, she made an enduring power of attorney in favour of Shane and Keith.  She thereafter discussed this document with Shane and therefore had knowledge of its purpose.
27. [27]
    However, there is evidence that by 2016 Faye had significantly declined.
28. [28]
    On 28 July 2016, Dr Hii at the Logan Hospital wrote:

“This letter is to document that the above patient, Fay Briggs, was found to have no capacity in relation to decision making for personal healthcare decisions. This has been documented by the Logan Hospital Geriatric Team in her most recent admission notes, a copy of which can be obtained if required by contacting our medical records department.”

29. [29]
    On 28 February 2017, Dr Hinds wrote:

“This is to certify that Ms Faye Briggs, DOB 25/12/1937 has Alzheimer’s Dementia and does not have the capacity to manage; health, personal or financial affairs. I believe her son has been previously nominated as an enduring power of attorney and it is appropriate that he now act upon her behalf in these matters.”

30. [30]
    Dr Hii’s letter attests to Faye’s condition only six months after the making of the 2016 will.
31. [31]
    There is evidence of Faye being confused around the time the 2016 will was made.  In particular:

1. Faye told Shane that she had made an appointment with the Public Trustee to remove Keith as her attorney.  This was the appointment which ultimately led not to a change in her attorney arrangements but to a new will.  This suggests some confusion when instructing the Public Trustee.
2. As earlier observed, the only change effected by the 2016 will was to remove reference to Keith owing Faye $30,000.  However, it is common ground that Keith has not repaid that debt.  Therefore, there was no reason to change the terms of the 2010 will.
3. The Public Trustee notes of the appointment with Faye show that she told the officer taking instructions that her regular medical practice was West End Medical Centre.  Investigations have revealed that Faye was a former patient of the West End Medical Centre but had not attended that clinic for over 20 years.  She had in fact been treated regularly, and recently by the Daisy Hill Surgery.

32. [32]
    I therefore draw the inference that Faye’s condition as observed by Dr Hii in July 2016 was likely to have been largely present in Faye six months earlier when the 2016 will was executed.  I find that she did not have capacity to properly evaluate the terms of the document she executed in January 2016.  This inference is especially strong given that the whole exercise of making a new will was pointless as it made no material change to the terms of the 2010 will.

Conclusions

33. [33]
    Shane and Keith have the same priority to seek letters of administration.  Both are residuary beneficiaries^[11] and there is no-one with higher priority.^[12]  Keith has made no application. 
34. [34]
    The 2016 will is not a valid will as Faye had no capacity to make it.  The 2010 will is a valid will.
35. [35]
    Letters of administration should be granted to Shane of the 2010 will.

Orders

36. [36]
    It is ordered:

1. Pursuant to r 489(1) of the Uniform Civil Procedure Rules 1999 (Qld) the application is to proceed without an oral hearing.
2. A grant of letters of administration with the will of Faye Joy Briggs (the deceased, also known as Fay Joy Briggs) dated 19 January 2010 be issued to Shane Martin Briggs subject to the formal requirements of the Registrar.
3. The applicant’s costs of and incidental to this application be paid out of the deceased’s estate on the indemnity basis.