Supreme Court New South Wales Medium Neutral Citation: Estate of Edna Grace Rochester [2013] NSWSC 884 Hearing dates: 01/07/2013 Decision date: 01 July 2013 Jurisdiction: Equity Division - Probate List Before: McDougall J Decision: Declare that the deceased lacked testamentary capacity at time she made her purported will, and that she died intestate. Appoint plaintiffs as administrators. Dispense with administration bond. Catchwords: WILLS & ESTATES - wills - testamentary capacity - whether deceased lacked testamentary capacity at time of making will EVIDENCE - admissibility - expert report - where expert fails to acknowledge, or agree to bound by, the Expert Witness Code of Conduct - whether court should exercise discretion to admit expert report - relevant considerations Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Colin Rochester (First Plaintiff) Jeanette Featon (Second Plaintiff) Representation: Counsel: G A Rich (Plaintiffs) Solicitors: Avoca Beach Law (Plaintiffs) File Number(s): 2012/100695 Judgment (ex tempore - revised 1 july 2013) 1HIS HONOUR: The plaintiffs are the only children of the late Edna Grace Rochester (the deceased). The deceased died on 23 July 2011 leaving a small estate, worth less than $400,000 in total. The deceased did not have a spouse or partner in a de facto relationship with her. Accordingly, if the deceased were intestate at the time of her death, the plaintiffs between them would be solely entitled to take on intestacy. 2However, the deceased did leave a document purporting to be a will. That document was made on 23 May 2005. By it, the deceased appointed her sister Joyce Toomey as executrix and trustee and gave the whole of her estate to the first plaintiff, her son. 3Joyce Toomey has also died: on 10 February 2012. The purported will has not been proved. 4The plaintiffs assert that the deceased lacked testamentary capacity when she made the document purporting to be her will, on 23 May 2005. On that basis, it appearing that there is no prior will, they seek administration on intestacy. The application is not opposed. 5There is a deal of evidence dealing with the deceased's mental state at and prior to 23 May 2005. It seems to be reasonably clear that the deceased had been suffering from dementia from at least 2002. It does not follow, of course, that because the deceased suffered from dementia from at least 2002, she lacked testamentary capacity on 23 May 2005. 6The only direct evidence on that key point comes from Doctor David Little, who had been the deceased's attending general practitioner from January 2007. The deceased had been a patient of the practice in which Doctor Little practises from May 2002, and from that date until January 2007, had been under the care of Doctor Keith Evershed. 7Doctor Little was asked to prepare a report setting out, among other things, his opinion on whether the deceased had testamentary capacity as at 23 May 2005. He was instructed to express that opinion by reference to the following criteria (I paraphrase the letter): (1) that the deceased should be aware, and appreciate, the significance of making a will; (2) that the deceased should be aware in general terms of the assets and value of her estate; (3) that the deceased should be aware of those who might have a claim on her testamentary bounty, and of the nature and bases of those claims; and (4) that the deceased should be able to evaluate and discriminate between the strength of those claims. 8The letter of instructions pointed out also that if the deceased at the relevant time suffered from some mental illness or mental disorder, including dementia, which affected her consciousness or orientation, or disturbed her thought processes, then she might lack capacity. 9In my view, that was an appropriate test by reference to which Doctor Little could express an opinion as to testamentary capacity. 10Doctor Little said, by reference to those criteria, that he did think that the deceased "would have understood the basics of the intention of a Will". However, he said, it was his opinion that she "would not of [sic] been able to understand or have the ability to re-evaluate and to discriminate between respective strengths of the claims of different people...". Doctor Little expressed that view by reference to the clinical records maintained by his practice which appeared to show "long-standing low intelligence" and "a known dementing process which [the deceased] appeared to be undergoing from at least around 2003". 11Doctor Little was asked to acknowledge that he had read the Expert Witness Code of Conduct and agreed to abide by it. He failed to do so. Accordingly, by UCPR r 31.23(3), his report is not admissible unless the court otherwise orders. It is a matter of some concern that although Doctor Little's affidavit was sworn as long ago as 10 April 2013, no attempt was made to address this deficiency between then and the present date. 12In the ordinary way, I would not have been inclined to exercise the discretion to allow the report to be admitted in evidence. The rules relating to expert evidence serve a very important function. They are intended to ensure that the court can rely upon expert evidence as representing the independent view of the expert, not a view tailored to the needs of the person on whose behalf the report is commissioned. 13In this case, however, it seems to me that there are reasons in favour of exercising the discretion to allow the report to be relied upon. First, Doctor Little was the deceased's general practitioner for about four years up until her death, and the practice in which he works had been providing medical services to her for about nine years prior to her death. Thus, Doctor Little has had an ample opportunity to observe the deceased during the last years of her life, and to familiarise himself (as he says he has done) with the practice records prior to January 2007, when he took over the care of the deceased. 14Secondly, this is not a disputed case in the ordinary way. Thus, there is not the usual basis for fearing that an expert may not be truly independent. 15Thirdly, the court has been informed that the first plaintiff, Mr Rochester, has entered into a deed with the second plaintiff, Ms Featon, under which they have agreed to a redistribution of the deceased's estate. Thus, even if the present application were refused, and if someone qualified to do so sought administration of the will, the outcome would be the same: the estate would be divided in the way that the two plaintiffs have agreed. 16Finally, I take into account the fact that the estate is relatively small, and that the just quick and cheap resolution of the issues seems to dictate that the court should make the orders sought now, if satisfied that it is appropriate to do so, rather than put the parties to the expense of an adjournment and of procuring a further affidavit from Doctor Little. 17I wish to make it perfectly clear however that this is in my view an exceptional outcome, and should not be taken as signifying any detraction from what I have said is the significance and purpose of the rule in question. 18On the basis of the whole of the evidence, including the observations of lay persons as to the deceased's state of mind and behaviour, the evidence of Doctor Little, and evidence from social workers and the like, I am satisfied that the deceased was suffering from dementia for a period of at least three years before she made her will. 19I am satisfied, further, that for the reasons that Doctor Little gives, it is likely (in the sense that it is more likely than not, on the balance of probabilities) that the deceased lacked testamentary capacity because she lacked the ability to discriminate between those who had a claim upon her bounty. In this respect, taking into account the evidence of Ms Featon and Ms Jennifer Louise Toomey (the deceased's niece, who was present when the will was signed), it does appear to me that the deceased's reasons for leaving the whole of her estate to the first plaintiff, her son, to the exclusion of the second plaintiff, her daughter, were irrational. That seems to me to confirm the view expressed by Doctor Little. 20Accordingly, I am satisfied that the deceased lacked testamentary capacity when she made her will, and thus that the will is invalid. Since no other will has been proved to have been made, I am likewise satisfied that the deceased died intestate. 21In circumstances where the only claimants to the estate have agreed as to the way in which it should be divided, it is appropriate to appoint them as administrators and to dispense with the administration bond. 22Accordingly, I make orders in accordance with paragraphs one to six of the Short Minutes of Order initialled by me and dated today's date. I direct that the exhibits be retained with the papers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2013