ISSUE FOR DETERMINATON
The issues for determination by Justice Boddice was:
- Whether a probate caveat ought be set aside; and
- What evidence was needed to successfully meet a challenge to the validity of a will.
FACTS
The Testator died on 14 September 2016, aged 100 years.
She was in her late 90s when giving instructions for her last series of wills in 2013.
Her estate was valued at over $2m.
She left behind a series of wills, including those done in April and May 2008, October 2009, March 2010 and the final three on 24 April 2013, 29 May 2013 and 16 August 2013.
She had no immediate family members, but did have extended family members.
The Caveator, Mr Kavanagh was a family member, although not a close one.
The testator had inherited family property and was interested in keeping various properties, “in the family”.
Mr Kavanagh filed a caveat on the following grounds:
- That the Testator was elderly and frail
- That he had benefited under earlier wills;
- That the Testator had entered into a written agreement with him about her will and it was part-performed, but not reflected in her last will;
- That two of the key beneficiaries of the last will (Mrs Londy and Mr Byrne) were present on some occasions when the deceased gave instructions
The Testator had relied upon Mr Pender (an executor) for advice for many years and he produced all of her wills from 2008.
Mr Kavanagh’s entitlement was reduced in the Testator’s 2009 will, but this entitlement was subsequently re-instated in 2010. Mr Pender’s file note records that he was concerned the Testator was being influenced or pressured to make these changes.
Mr Pender met with the Testator again in April 2013 for the purpose of making a new will and discussing the payment of an accommodation bond for a nursing home. Mrs Londy was present, but the file note records she was largely silent or asked questions only to clarify matters for herself.
The Testator came to see Mr Pender in May 2013. Mrs Londy was also present. The main purpose of the consultation was to discuss a written agreement between the Testator and Mr Kavanagh, and a payment of $250,000 made in reliance upon that agreement. The Testator said she had not obtained legal advice before entering the agreement and that she felt pressure and manipulated into making it.
Mr Pender told the Testator she could take action to recover the $250,000 paid but she declined to do this.
Mr Pender then discussed the Testator’s current will, which provided a share of residue for Mr Kavanagh and appointed him as one of her executors, in light of her feelings about the agreement.
At that time, she declined to change her will.
However, she again attended on Mr Pender (with Mrs Londy) at the end of May 2013 and told him that she had carefully considered her position and wanted to remove Mr Kavanagh as executor and replace him with Mrs Londy. She wished to make changes to the bequests, and to remove Mr Kavanagh’s gift of 20% of residue and instead give it to Mrs Londy.
Mr Pender’s note records that Mrs Londy said nothing unless asked a question and did not take an active role in the discussion.
The Testator gave the same instructions the next day when she attended on Mr Pender (again with Mrs Londy) to sign a properly engrossed copy of her new will.
There was also discussion about whether Mr Kavanagh should inherit her home. The Testator advised that she felt obligated to do so and concerned that Mr Kavanagh would challenge her will if she did not leave this gift in her will. She wanted to avoid the stress, cost and uncertainty of this after her death.
The testator also told Mr Pender that Mr Kavanagh had been making enquiries of her accountant, about her affairs and with local real estate agents about the value of her properties. She was unhappy about this.
Mrs Londy next contacted Mr Pender about an accommodation bond for the testator and provided him with a 3-page handwritten letter from the Testator, detailing her reasons for excluding Mr Kavanagh and witnessed by the Testator’s doctor, who expressed the view she was competent when she signed the letter.
Shortly afterwards, on 31 July 2013, the Testator again attended on Mr Pender to discuss her will. She was still angry about Mr Kavanagh’s actions. She considered that if she did remove Mr Kavanagh, she would give her home to Mr Byrne. But at that time, she decided not to make a change to her will.
On 6 August 2013, Mrs Londy telephoned Mr Pender to ask for an appointment for the Testator as she now wanted to change her will.
Mr Pender wrote to the Testator’s GP the next day for a report on testamentary capacity and received a report in unequivocal terms that the Testator possessed the necessary capacity.
On 16 August 2013, the Testator, Mrs Londy and Mr Byrne all attended on Mr Pender to discuss the Testator’s will. Mr Pender told them a detailed affidavit would be necessary to ensure the Testator’s wishes were upheld.
DECISION
His Honour noted that Rule 626 Uniform Civil Procedure Rules 1999 (Qld) provides that a Court may set aside a caveat if the caveator does not have “a reasonable prospect of raising a doubt as to whether the grant should be made”.
In light of the issues, this meant reviewing the law on “suspicious circumstances”. Such circumstances having arisen because of Mrs Londy’s longstanding involvement and Mr Byrne’s limited but key involvement in the last will.
Justice Boddice then reviewed all of the material before him and decided that there was indeed “no reasonable prospect of raising a doubt as to whether a grant should be made”. The following matters were crucial.
First: the last will was not a radical departure from the Testator’s previous testamentary dispositions. Both Mrs Londy and Mr Byrne have featured in earlier wills although to different extents.
Second: even though Mrs Londy was present during most discussions with Mr Pender, it was the Testator who provided all instructions and coherently and cogently provided her reasons for any changes.
Third: prior to her last will, the Testator produced her own handwritten account of her dealings with Mr Kavanagh to be read out with her will and it was consistent with her later affidavit.
Fourth: the affidavit provides cogent and compelling reasons for why Mr Kavanagh was no longer a beneficiary. Nothing in it lends weight to the conclusion the deceased was confused or did not have a clear understanding about the effect of her will.
Fifth: there is no suggestion that the Testator lacked capacity at the time of the preparation and execution of her last will.
Boddice J concluded by saying[1]:
“The evidence does not raise a doubt as to whether the grant ought to be made. The respondent’s assertions amount to no more than allegation that the mere presence of the female applicant and of Mr Byrne constitutes grounds for a suspicion of undue influence in the preparation and execution of the deceased’s last will. In circumstances where there is a logical explanation of the change in the contents of the deceased’s last will, that allegation amounts to no more than a mere suspicion. It is not supported by any inferences to be legitimately drawn from a consideration of the material as a whole.
The probate caveat was ordered to be removed. Read the full judgement here
[1] Londy & Pender (as executors and trustees of the Will of Mary Hilary Kavanagh (deceased)) v Kavanagh [2017] QSC 161, at [67]