Public Trustee v Eastwood Estate of Monaghan [2006] NSWSC 819

New South Wales Supreme Court

CITATION : Public Trustee v Eastwood Estate of Monaghan [2006] NSWSC 819

HEARING DATE(S) : 8, 9, 10, 11 August 2006

JUDGMENT DATE : 11 August 2006

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Windeyer J at 1

DECISION : Last will admitted to Probate

CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - question of testamentary capacity

LEGISLATION CITED : Family Provision Act 1982

CASES CITED : Banks v Goodfellow (1870) LR 5 QB 549

Public Trustee (Plaintiff) PARTIES : Scott Matthew Eastwood (First Defendant) Lesley Eileen Davis (Second Defendant) Joanne Margaret Ward (Third Defendant)

FILE NUMBER(S) : SC 118948 of 2004

COUNSEL : Mr J Kildea (Plaintiff) Mr A Bouris (Defendants)

SOLICITORS : Bartier Perry (Plaintiff) Sydney Cove Law Group (Defendants)

- 13 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

WINDEYER J

FRIDAY 11 AUGUST 2006

118948/04 THE PUBLIC TRUSTEE v SCOTT MATTHEW EASTWOOD & ORS THE ESTATE OF DOROTHY MAY MONAGHAN

JUDGMENT

1 HIS HONOUR: In this matter, so that there is no undue suspense, I say at the outset that I find the 2001 will to be valid. I will now give my reasons for that. 2 Dorothy May Monaghan died on 16 April 2004 aged 98 years. She had a will dated 5 November 2001 under which she appointed the Public Trustee sole executor. She gave the whole of her estate to her grandson, Brian John Lyster, but if he predeceased her, then to Elaine Shirley Lyster, the daughter of the deceased and the mother of Brian John Lyster. The Public Trustee propounds this 2001 will. 3 The defendants are the children of Dorothy Margaret Eastwood, the eldest child of the deceased. Mrs Eastwood died on 14 February 1998. The deceased had made a will dated 23 July 1996 which will also appointed the Public Trustee as executor. Under this will Mrs Monaghan gave one half of her estate to her daughter, Dorothy Eastwood, if she survived, and if she did not survive, then to her children, who are the defendants in this case. She gave the other one half of her to estate to Brian Lyster, and if he did not survive, then to his mother Elaine Lyster. The defendants by cross-claim propound that will. 4 I should say that there is no question as to the validity of the 1996 will. If the 2001 will were not a valid will, then a grant of probate in common form of the 1996 will would be made. The defendants' defences, raised as to the validity of the 2001 will, are lack of knowledge and approval and lack of testamentary capacity. The particulars given cover both defences. They are: (a) At the time the will was made, the deceased was 95 years old and suffered from dementia; (b) At that time, the deceased had been suffering from defective memory and understanding for approximately four years; (c) At that time, the deceased was incapable of understanding the nature of the act of execution of a will, the extent of the property of which she was disposing, and the claims to which she ought to give effect, and, (d) At that time, the deceased suffered from an insane delusion of the mind, namely, that her money and personal possessions had been stolen or taken by her daughter, Mrs Lyster, and that this delusion affected the dispositions made by her in the will dated 5 November 2001. 5 The deceased had a good relationship with both her daughters and with all four grandchildren. She may not have had such a good relationship with Mr Eastwood, the father of the defendants, but that is irrelevant. The deceased and her husband lived at 8 Shannon Parade, Berkeley Vale from 1968. Mr Monaghan died in 1989. In 1994 the deceased went to live with her daughter, Mrs Lyster, at 37 Lake Edge Avenue, Berkeley Vale, but in 2000, after a robbery had taken place at the deceased's home, the deceased and Mrs Lyster moved back to Shannon Parade, and lived there until the death of the deceased. 6 Mrs Lyster, who was born in 1927, was the full-time carer of her mother during her final years. On 5 August 1994, Mrs Monaghan had the first admission to the hospital relevant to this action. She was suffering, among other things, from acute anaemia, needing significant blood transfusions. She was in hospital for about nine or 10 days. She was prepared for a colonoscopy on 12 August 1994. A Mini Mental State Examination took place on that day. The score was 23 out of 30. A note beside this score, on page 477 of Exhibit 1 has the words "generally quite capable". The discharge summary notes this score. A copy of the summary went to Dr Bowers, the deceased's normal general practitioner, with a note "LMO - could you please organise dementia screening". Dr Bowers, who was the deceased's general practitioner, did not do so. He decided to wait and see how Mrs Monaghan progressed. He thought the anaemia might well have borne upon the test result. There was one other admission to hospital prior to the 2001 will, but that was for a cataract operation, and is really not relevant to this matter. 7 At the end of 1997, Mrs Lyster went to visit her son, who was living in Perth. Mrs Monaghan went to stay with her grandchild, Mrs Ward, as by then her sister, Mrs Eastwood, was quite ill. There is conflicting evidence about the trip to Perth. Mrs Lyster says she was called home early by her mother who was not happy where she was. Her son's evidence supports the evidence of his mother that she went home early and did not stay for the full 10 days which was expected. He said that after a few days he arranged for his mother to return to Sydney as soon as he could get an air ticket, but quite when that was is not established. Mrs Ward disputes this. She says that the visit was up to about 10 days as expected. It does not really matter a great deal, as the credit of Mrs Lyster is not a very important matter in this action. There was, however, a serious fall-out between Mrs Ward and Mrs Lyster when Mrs Ward picked Mrs Lyster up from the airport. If it were necessary to apportion blame for this, I will consider Mrs Lyster was more at fault. I accept Mrs Ward on this matter. It is more likely than not that the deceased, who was by this time was 94 years old, did not like the unfamiliar surrounding at the Ward home and made some sort of excuse to call her daughter home early. 8 Mrs Ward said at the time of the visit her grandmother was forgetful, disoriented in the home, had difficulty in dressing, had an unkempt appearance, and could not be engaged in sensible conversation. While there is, as is not surprising, some dispute about this, I accept that, at least from the point of view of Mrs Ward, her grandmother did have a somewhat unkempt appearance, was in old clothes, and would not have had the cared-for look that Mrs Ward may have wished. That, however, was not necessarily the view of the deceased's condition which would have been shared by Mrs Lyster, who would have, I think, looked at things at a somewhat different point of view. 9 Mr Lyster, the son of Elaine Lyster, was living in Western Australia from 1987, although he tried to come to New South Wales on three or four occasions each year. Mrs Davis was either overseas or in Victoria for most of the time. However, from 1997 on, and after the Perth visit, there can be no doubt that the defendants did not see their grandmother as much as they had before. Their evidence is that Mrs Elaine Lyster made visiting difficult. I find that visiting was not impossible, but I also find that Mrs Lyster was quite unhelpful and uncooperative about visiting. It is, I think, proper to say that this can have little bearing on the ultimate result of this case unless in some way it were shown that what would have otherwise been an affectionate view of the grandmother towards the grandchildren was somehow changed.