Wool v Marino[2024] QSC 89

SUPREME COURT OF QUEENSLAND

1. [1]
   Erika Kaegi-Fluri is survived by her only child, Juliana.
2. [2]
   In her first will, made in December 2013, Erika left Juliana everything.  However, Erika and Juliana fell out over the financial arrangements Juliana and her husband made for Erika to reside in Cairns with them.  The ensuing litigation eventually settled, but not the estrangement it created between them.  Erika moved back to Mackay and lived in a retirement village. She died in hospital in Mackay on 16 July 2022.
3. [3]
   Erika made further formal wills in 2018 and 2020.  Each excluded Juliana from any inheritance.  Each explained it made no provision for Juliana as she was not dependent on Erika, had made her own way in life and there had been a breakdown in their relationship.  The 2020 will specifically explained of that breakdown:

“I have entered into a Deed of Settlement with Juliana Barbara Welsing and her husband Gavin Wool which was distressing for me and took approximately three years to resolve.  My daughter and I have had no contact since early 2017 except for the mediation.”

The will bequeathed Erika’s estate in one-third shares to the RSPCA and two friends, Micael Johannsson and Adam Anderson.

4. [4]
   The 2020 will’s executor, Mr Marino, applies for it to be admitted to probate.  There is no issue as to its validity, save that Juliana alleges a subsequent will was made. 
5. [5]
   Juliana points to an unsent note Erika wrote to her the month before her death in 2022.  The unsent note said Erika was changing her will to leave Juliana her house and money.  Erika did not thereafter change her will or make a new one.  Nonetheless, Juliana applies for Erika’s note to be admitted to probate on the basis it forms Erika’s will. 
6. [6]
   Her application must fail because I am not satisfied Erika intended the note would operate as her will or vary or revoke her existing will.  The 2020 will should be admitted to probate. 
7. [7]
   Juliana’s potential remedy to her exclusion under that will remains her yet to be heard application for provision for her maintenance and support.

A document will not form an informal will if its author did not intend it to operate without more as a will.

8. [8]
   The note does not comply with the execution requirements for a formal will in s 10 Succession Act 1981 (Qld).  Juliana’s application relies upon s 18, which permits the court to dispense with formal will execution requirements for a document or part thereof that has not been properly executed but “purports to state the testamentary intentions of a deceased person”.  Section 18(2) relevantly provides:

“The document forms a will … of the deceased person if the court is satisfied that the person intended the document … to form the person’s will, an alteration of the person’s will, or a full or partial revocation of the person’s will.”

9. [9]
   It is well established this requires satisfaction:

1. there was a document;
2. the document purports to embody the testamentary intentions of the deceased; and
3. the deceased, by some act or words, demonstrated that it was the deceased’s intention that the document would, without more, operate as the deceased’s last will.^[1]

It is not apparent from the content of the note that it was intended to operate without more as Erika’s will

10. [10]
    The difficulty that the third requirement presents for Juliana’s application is obvious from the content of the note.  The note, on decorative notepaper, is in capitalised hand printing in the writing of Erika.  It reads:

“DEAR JULIANA

I AM CHANGING MY WILL!

KIM ADAM AND MICAEL HAVE ABANDEND ME.  RSPCA LET ME DOWN.

I LEAVE THE HOUSE AND ALL MY MONEY TO YOU JULIANA.

I GO TO HOSPITAL NOW.  WHEN I GET BETTER I MAKE A NEW WILL WITH A LAWYER.  NO MONEY MUST BE PAID TO RSPCA, MICAEL OR KIM AND ADAM.  I CANCEL THE CAIRNS WILL

SORRY MY HANDS GETTING SORE.

I LOVE YOU VERY MUCH YOU ARE MY ONLY DAUGHTER YOU ARE ALL I HAVE NOW.

I WRITE THIS LETTER IN CASE SOMETHING HAPPEN TO ME.  SORRY I AM VERRY TIRED.

I CONTACT YOU FROM HOSPITAL.

I LOVE YOU MORE THAN ANYTHING IN THE WORD!  YOUR MOTHER,

[…Erika’s signature…]

Mackay 6.6.2022”

11. [11]
    The note is a document and it apparently purports to state Erika’s testamentary intentions.  However, it is not enough that the note articulated a testamentary intention.  For a court to be satisfied the deceased intended the document “to form” her will, the evidence must establish Erika intended the document itself to have operative effect, without more, as a will.  As was explained by Boddice J (as his Honour then was) in Lindsay v McGrath,^[2] the requirement “without more” helps distinguish between a document that merely records testamentary intentions compared to one which is intended to operate as the deceased’s last will.  Putting it another way, if the deceased did not intend the document itself to operate as her will, then the court cannot be satisfied of s 18(2)’s requirement “the person intended the document … to form the person’s will”.
12. [12]
    The note was not accompanied, as informal wills sometimes are, by a heading or introduction purporting to indicate it was a will, for example, “Will of Erika Kaegi-Fluri” or “This is my last will and testament”.  Such content would have supported the inference Erika intended the note to operate as her will. 
13. [13]
    The broken English style and occasional poor spelling of the note is consistent with English not being Erika’s first language.  Her use of language gives rise to competing inferences about the temporal intention conveyed by the note.  See for example, language such as “I am changing my will”, “I leave the house and all my money to you Juliana” and “I cancel the Cairns will”.  By such language was Erika meaning to convey that is what she was intending to do in writing the note?  Or was it an indication of what she would do when she made a new will? 
14. [14]
    The former intention is moderately supported by the language “I go to hospital now” and “I write this letter in case something happens to me”.  But such language is not strongly at odds with the latter intention, for example, letting her beloved daughter know Erika sufficiently regretted their estrangement that she planned to make a new will again favouring her.  More tellingly, the latter intention finds moderate support in the language “When I get better I make a new will with a lawyer”. 
15. [15]
    The note’s content standing alone at best provides some support for an inference Erika intended it to operate as her will.  However, it provides at least equally strong support for the inference Erika merely intended the note to inform her daughter of her regret and change of heart and her plan to reflect that by making a new will favouring Juliana after all.
16. [16]
    It follows the content of the note alone does not satisfy me Erika intended the note to of itself form her will or alter or revoke her existing will. 

Other evidence of Erika’s stated intention does not show Erika intended the note to operate without more as her will

17. [17]
    Consideration of this issue is of course not confined solely to the document’s content.  Section 18(3) permits the court to have regard to any evidence relating to the way in which the document was executed and any evidence of the person’s testamentary intentions, including evidence of statements made by the person. 
18. [18]
    The evidence shows that after Erika’s second husband died in 2014 she developed a significant depressive grief reaction, consumed alcohol to excess and became emotionally volatile, including to those close to her.  Her tendency to emotional volatility continued thereafter.  She endured loneliness, major depressive disorder and occasional suicidal ideation during a gradual cognitive decline prior to her death from heart failure, pulmonary embolism and moderate COVID-19. 
19. [19]
    There was considerable variability in Erika’s comments made to others about her daughter in the closing months of her life. 
20. [20]
    On the one hand she had repeated contact with medical staff, including of the Mackay Mental Health Service.  In such contacts she continued to speak of the falling out and perceived betrayal by her daughter.  This occurred as recently as 4 May 2022.  Indeed, on that occasion she mentioned having a will and that she would not leave money behind for “any human”. 
21. [21]
    Yet, on the other hand, Nelly Frey and Karl Kaegi each depose Erica was contemplating changing her will to favour Juliana after all.
22. [22]
    Ms Frey was an old friend of Erica’s who had endured a long period of rejection by Erika after an objectively inconsequential argument. She was eventually befriended again by Erika.  On 13 March 2022, over lunch, Erika told Ms Frey she did not feel right about what she had done with her will and wanted to make things right with her daughter.  Of her existing beneficiaries she perceived Adam Anderson and his wife abandoned her after a recent dispute over the wisdom of her continuing to drive a car.  She mentioned Micael Johannsson had not contacted her in a quite a long time and she was unhappy with the RSPCA. 
23. [23]
    In a later conversation between them by telephone on 16 March 2022, Erika spoke about the same topic, saying she needed to change her will and make things right.  She asked if Ms Frey would accompany or assist her to go and see a solicitor to change her will. 
24. [24]
    Erika mentioned to Ms Frey on two or three subsequent occasions that she needed to visit a solicitor to change her will.  However, Ms Frey deposes that even though she was taking Erika to many appointments and taking her shopping they did not end up visiting a solicitor. 
25. [25]
    Mr Kaegi was Erica’s first husband.  He was unaware of the 2020 will’s content.  Nonetheless, in a telephone conversation between him and Erika she told him Mr Johannsson did not ask after her, Mr Anderson was not her friend anymore and she was angry at the RSPCA for not looking after her dog during her hospital visits. In another telephone conversation she suggested she and Mr Kaegi must visit a solicitor in Mackay “to set things right”.  That did not happen. 
26. [26]
    Erika had engaged solicitors in the past, both to make wills and to assist in her financial dispute with Juliana and her husband.  While reliant on the mobility assistance of others, such as Ms Frey, Erica had sufficient assistance to see a solicitor about her will again if she so chose.  She did not do so. 
27. [27]
    As it turns out Erika was admitted to hospital about a week after writing her note to Juliana of 6 June.  She was admitted following a massive pulmonary embolism.  Her opportunity to change her will between then and her eventual death in hospital would have been limited.  But it remains that she had not changed her will, despite talking about doing so, from as early as March.
28. [28]
    That Erika was sometimes articulating a desire to make a new will and to visit a solicitor to do so is quite consistent with the note’s content.  But it does not support the inference she intended her note to form her will. 
29. [29]
    This inconsistency between Erika telling some people of her desire to visit a solicitor to change her will to favour Juliana and her failure to do so is unsurprising.  It is scarcely unheard of, in the context of relationships, particularly troubled relationships, for persons to make representations about intended actions but then not take them.  Conversely, if Erika meant her note to operate as her will, it is surprising she did not mention its existence to anyone, not even those she had told of her desire to change her will.
30. [30]
    It follows that none of this evidence materially fortifies the inference Erika intended the note to operate as her will or materially detracts from the at least equally viable inference that the note was merely a communication of love and regret and of a plan to change her will. 

Erika’s use of names for Juliana does not assist Juliana’s application

31. [31]
    Juliana argues there is special significance to be inferred from how she was named in the note. The note was found in an envelope addressed “to Juliana”. It began “Dear Juliana”.
32. [32]
    Juliana deposes her mother used to call her “Nana”, a childhood nickname:

“When she referred to me as “Juliana” this meant she wanted it to be formal, as she always called me ‘Nana” and only used Juliana if introducing me to others. … My mother always used to use my nickname “Nana” for letters meant just for me.”

In this context it is also said to be noteworthy Erika left a printed entry, “LETTER NANA!”, in her diary for 6 June 2022, the date also written on the note. 

33. [33]
    The evidence on the point was not accompanied by any exhibited examples of Erika’s past letter writing pattern to Juliana.  More particularly, no detail was provided of how long ago the last letter in which her mother called her Nana was received.  Hence, it is not apparent whether the severe upheaval in their relationship had influenced the interchangeability with which Erika may have called her daughter by one name or the other.  
34. [34]
    This distinction in use of names provides scant support for the inference Erika intended the note to operate as a formal document.  It does not materially diminish the force of the at least equally strong support in the note’s content for the inference Erika merely intended the note to inform her daughter of her plan to make a new will.

The evidence of Erika’s mental state does not assist Juliana’s application

Erika was in cognitive decline by the date of the note

35. [35]
    Dr Durairaj, a specialist physician in geriatric medicine, provided expert evidence as to Erika’s likely testamentary capacity, founded upon his scrutiny of records of Erika’s doctor, the Mackay Mental Health Service and the Mackay Hospital. 
36. [36]
    Dr Durairaj noted that as early as 2019 Erika was thought to have dementia but declined comprehensive assessment.  However, subsequent cognitive examinations confirmed a decline in cognitive impairment.  An examination in March 2022 suggested significant cognitive impairment.  Erika exhibited poor short term recall, insight, judgment and executive functioning.  In April 2022 she was admitted to a hospital mental health unit after expressing suicidal ideations.  After assessment by a consultant psychiatrist/psychogeriatrician it was considered Erika lacked capacity to make complex decisions about finances, lifestyle and health decisions. 
37. [37]
    Clare Holmes, Erika’s case manager in the Older Persons Mental Health Service, noted on 30 May 2022, that Erika had an appointment with her haematologist, Dr Lin, in which it was indicated Erika’s red blood count was low and an appointment was arranged for a blood transfusion.  Ms Holmes noted Erika then seemed to be confused, unable to process information or use her executive functioning.
38. [38]
    The transfusion was set to occur on Monday 6 June 2022 - the date Erika endorsed on her note to Juliana.  According to her notes Ms Holmes telephoned Erika at 8.45am to remind her of her blood transfusion appointment.  Erika said she was in bed and asked Ms Holmes to call back in 30 minutes.  She did so and Erika said she was still in bed.  Ms Holmes said she would come and take Erika to her appointment. 
39. [39]
    When Ms Holmes arrived Erika’s medication pack delivered the preceding Friday was still outside.  Her home was more cluttered than before. She was fatigued, consistently with her low red blood cells.  She asked where she was going and what for.  Ms Holmes had to repeat her answers. 
40. [40]
    On arrival at the ICON centre, where the transfusion was booked, Ms Holmes noted a nurse immediately reported Erika did not have capacity to consent to the procedure requirements.   Erika expressed frustration at the staff not talking directly to her and required information to be repeated.  From the content of Ms Holmes’ notes, it seems there was little or no material assessment carried out by the nurse and the nurse’s view of Erika’s incapacity may have resulted from some other information.  For instance, the nurse was troubled a requisite “form/consent” had not been completed by the doctor the previous week.  Ms Holmes noted the treatment did not go ahead due to consent concerns and no access to the Doctor to complete the form.  She also noted it was indicated the centre would refer Erika to the base hospital for further treatment. 
41. [41]
    It appears Erika was returned home.  Whether she wrote her note to Juliana before or after the trip out for the blood transfusion appointment is unclear.  Either way, her note’s words, “I go to hospital now”, suggest some misunderstanding of where she was to go for the transfusion appointment or a temporal misunderstanding of what she was told at that appointment about being referred to the base hospital.

Lack of testamentary capacity?

42. [42]
    It was contended that Erika’s cognitive decline precluded testamentary capacity by the time of the note. 
43. [43]
    The seminal exposition of testamentary capacity by Cockburn CJ in Banks v Goodfellow,^[3] effectively requires:

1. understanding of the nature of the testamentary act and its effects;
2. understanding of the extent of the estate;
3. comprehension and appreciation of the claims which ought be given effect to; and
4. that disorder of the mind or delusion does not preclude such comprehension and appreciation or so distort it as to cause a disposition which would not otherwise be made.

44. [44]
    Where circumstances raise a doubt as to the existence of testamentary capacity an evidential burden ordinarily falls to the party propounding a purported will to show the deceased was of sound and disposing mind.^[4]   Similarly, the burden of satisfying the court under s 18 falls to the propounding party.  While the satisfaction required in s 18 is not specifically of testamentary capacity, evidence relevant to whether a deceased lacked capacity to make a will is logically also relevant to the assessment of satisfaction under s 18 that a deceased intended a document to form her will.^[5]  In the present case that evidence trends against the requisite conclusion of satisfaction. 
45. [45]
    Dr Durairji opined it was very unlikely Erika possessed capacity to draw a new will on 6 June 2022.  He noted there had been no direct test of Erika’s ability to understand the nature of the act of making a will and the effects of making it.  However, he opined she was unlikely to be capable of fully understanding the effect of a will she made.  That opinion was premised on her exhibited executive dysfunction, poor attention, impaired judgment regarding her welfare and poor short-term recall.  He considered her exhibited lack of awareness of her financial responsibilities, failure to pay bills and borrowing money from friends raised concerns about her awareness of her estate’s value. 
46. [46]
    I am less troubled than Dr Durairaj about Erika’s ability to understand the nature and consequence of making a will and the extent of her property.  It is to be appreciated the mere presence of some cognitive failures will not of themselves constitute a lack of testamentary capacity.^[6]  Questions of degree are involved, with the key consideration being whether the deceased retained sufficient intelligence to understand and appreciate the testamentary act in its different bearings.^[7]  
47. [47]
    That consideration is informed by the complexity of the estate and the act of disposition associated with it.  Here the estate was very simple, consisting of the refunded lump sum contribution Erika had paid for her retirement village housing and money in her one bank account.  These were what her note to Juliana in lay terms described as her house and all her money.  In the context of the testamentary choices likely to made by Erika little turned upon her appreciation of just what money she had left.  Whether the estate was left to one beneficiary or in shares to multiple beneficiaries it was a very simple dispositive act to comprehend.
48. [48]
    The more troubling aspect of Erika’s mental state is the combination of her cognitive decline with her emotional volatility. 

The troubling combination of emotional volatility with cognitive decline

49. [49]
    Dr Durairaj opined it was difficult to interpret what comprehension and appreciation Erika had of the claims which ought be given effect. He considered Erika’s attitude towards her relationships fluctuated with her mood.  He noted her labile mood was due to her major depressive disorder. 
50. [50]
    That lability or fluctuation in mood also troubled Dr Durairaj in opining on Erika’s ability to express her testamentary intentions.  He considered her lability of mood, significant executive dysfunction and poor recall heightened the likelihood of inconsistency and lack of foundation for solid decision-making.
51. [51]
    It is quite apparent that by 6 June Erika’s cognitive decline had caused her to be frustrated, uncertain, confused and forgetful in tending to many aspects of her day to day existence.  Her capacity to execute properly considered decisions was impaired.  Overlaying that impairment was Erika’s labile emotional attitude towards her relationships.  That mix does not necessarily mean Erika lacked testamentary capacity but it calls for particular caution in weighing the probability she intended the note to operate with testamentary effect without more. 
52. [52]
    The point is best appreciated by regard to the level of certainty which compliance with the formal execution requirements for a will brings.  The requirements of signatures and the concurrent presence of at least two witnesses has the effect of marking the considered importance and gravity of the moment.  In the case of an emotionally volatile testator, at a time of emotion, such requirements are a helpful safeguard against a lack of deliberation as to what effect the testator intends the document to have. 
53. [53]
    In the present case, the material testamentary change being contemplated by Erika was to revert to the testamentary disposition intended before the falling out, that is, leaving everything to her daughter.  That choice involved reversing her earlier decision to disinherit her obvious heir by instead bequeathing her estate to beneficiaries with minor or no moral claim to it.^[8]  Such a choice may have been conceptually straightforward but was an inherently emotional one. 
54. [54]
    I infer Erika, an emotionally volatile woman, made the note at a time of high emotion for her.   As much is apparent from the content of the note, particularly its references to abandonment by others, love for her daughter, going to hospital and the possibility something may happen to Erika.  The inference is also supported by the way Erika left the note. 

How the note was left

55. [55]
    After Erika’s death, when Juliana, Mr Kaegi and Ms Frey were at her home, Juliana found the note in Erika’s bedroom in the top bedside drawer. 
56. [56]
    The long thin decorated envelope containing the note was found within an unsealed envelope which appeared to be a recycled RACQ envelope, along with a large number of photographs taken of Erika and Juliana when Juliana was growing up.  The accompanying presence of the photographs supports the inference the note was written at a time of heightened emotion and rumination over Erika’s relationship with her daughter. 
57. [57]
    The facts are consistent with a lack of deliberation, at a time of high emotion on the part of an emotionally volatile and cognitively impaired woman, as to what effect she intended the document to have.  To the extent there may have been any deliberation by Erika as to the purpose the note was to serve, it was unlikely to have been a legal purpose and more likely to have been an emotional purpose - salving her emotional distress by writing a private note of her love for her daughter and her plan to favour her daughter after all. 
58. [58]
    As with the other surrounding evidence, the evidence of Erika’s mental state, does not support the inference she intended her note to form her will.  It remains an equal if not stronger inference that Erika intended the note to inform her daughter of her regret and change of heart and of her plan to reflect that by in due course making a new will. 

Conclusion and Orders

59. [59]
    For all of these reasons the evidence does not satisfy me, as s 18 requires, that Erika intended her note to form her will or alter or revoke her 2020 will. 
60. [60]
    Juliana’s application for the note to be admitted to probate must fail.  Mr Merino’s application for the 2020 will to be admitted to probate should succeed.
61. [61]
    It remains to list and hear that component of Juliana’s application by which she seeks provision for her maintenance and support. 
62. [62]
    In the circumstances I will reserve costs.
63. [63]
    My orders are:

1. Ms Wool’s application for Erika Kaegi-Fluri’s note to her dated 6 June 2022 to be admitted to probate is dismissed.
2. Erika Kaegi-Fluri’s will of 22 May 2020 be admitted to probate, subject to the formal requirements of the Registrar.
3. Ms Wool’s application for maintenance and support is listed for directions to be given as to its future conduct at 9.15 am 17 May 2024.
4. Costs reserved.