Dore (as executor of the will of W H B Chenhall dec'd) [2006] QSC 140

SUPREME COURT OF QUEENSLAND CITATION: Dore (as executor of the will of W H B Chenhall dec’d) [2006] QSC 140 PARTIES: CHRISTOPHER PATRICK DORE (as personal representative of the estate of WILLIAM HILTON BOYD CHENHALL deceased) (plaintiff) v PETER WILLIAM BILLINGHURST and PAUL ERNEST BONE (as personal representatives of the late HILD CHENHALL (defendants) FILE NO/S: BS5716 of 2005 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 16 June 2006 DELIVERED AT: Brisbane HEARING DATE: 21-22 February 2006; 3-5 April 2006; 10-12 April 2006 JUDGE: Byrne J ORDER: Let a grant of probate of the will of William Chenhall made on 30 June 2003 issue in solemn form, subject to the formal requirements of the Registrar. That the costs of the parties be assessed, on an indemnity basis, and paid out of the estate. CATCHWORDS: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – IN GENERAL – where testator had blackened toe from arterial insufficiency and was taking a synthetic opiod for pain relief – where testator did not complain of any side effects from medication until 10 days after execution – where testator spoke to doctor on day of giving instructions and day of execution – where no witness noticed drowsiness or confusion in testator – where will contains incorrect numbering – where will is short with clearly expressed provisions – whether solemn form grant should issue -- 1 of 15 -- 2 SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – KNOWLEDGE AND APPROVAL OF CONTENTS – GENERALLY – where testator had friendship with solicitor – where testator had few close relatives, all of whom were financially independent – where testator believed solicitor had saved his life and that of his wife – where two witnesses heard testator say he intended to benefit solicitor under his will – where solicitor took substantial benefit and became residuary beneficiary if the testator’s wife predeceased him – where solicitor suggested testator instruct another solicitor but testator refused – where solicitor took no real steps to record this advice or the circumstances surrounding the making of the will – where witness saw testator reading the will twice – where solicitor gave testator a copy of the will to keep – whether solemn form grant should issue SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS BY EXECUTORS OR ADMINISTRATORS – where solicitor took no real steps to record the circumstances surrounding the making of the will – where widow became convinced that solicitor had hastened the testator’s death and should be punished – where administrators ad litem continued to argue issues in the face of convincing evidence to the contrary – whether solicitor should have costs out of the estate Daulizio v Trust Company of Australia [2005] VSCA 215 considered Lutchman Ramcoomarsingh v The Administrator General [2002] UK PC 67 considered Nock v Austin (1918) 25 CLR 519 considered COUNSEL: T W Quinn for the plaintiff D G Mullins SC, with him D J Morgan, for the defendants SOLICITORS: De Groots for the plaintiff McCullough Robertson for the defendants Gifts by will [1] On 30 June 2003, Mr William Chenhall signed a will containing these operative provisions: “1. I REVOKE all former Wills and Testamentary dispositions made by me. 2. I APPOINT CHRISTOPHER PATRICK DORE of 61- 85 Pryor Road, Verrierdale via Eumundi in the State of Queensland -- 2 of 15 -- 3 (hereinafter referred to as ‘my Trustee’) Executor and Trustee of this my Will. 3 I GIVE AND BEQUEATH to each of the surviving children of my sister ROSEMARY EVE LEITCH the sum of One Hundred Thousand Dollars ($100,000.00) for their sole use and benefit absolutely. 3. I GIVE DEVISE AND BEQUEATH all my shareholding in MUFFINCASTLE PTY LTD A C N 010 939 349 to the said CHRISTOPER PATRICK DORE for his sole use and benefit 4. I GIVE DEVISE AND BEQUEATH the residue of my estate both real and personal of whatsoever nature or kind and wheresoever situate to my wife HILDE CHENHALL for her sole use and benefit absolutely PROVIDED HOWEVER that should the said HILDE CHENHALL predecease me or fail to survive me for a period of thirty (30) days then the following clauses of this my Will shall take effect but otherwise these clauses shall be of no effect 5 I GIVE AND BEQUEATH to each of the surviving children of my sister ROSEMARY LEITCH a further sum of One Hundred Thousand Dollars ($100,000.00) for their sole use and benefit absolutely. 6. I GIVE AND BEQUEATH to my sister the said ROSEMARY EVE LEITCH the sum of One Million Dollars ($1,000,000.00) for her sole use and benefit absolutely. 7. I DEVISE AND BEQUEATH the residue of my estate both real and personal of whatsoever nature and wheresoever situate to the said CHRISTOPHER PATRICK DORE for his sole use and benefit absolutely. 12. IT IS my desire that I be cremated.” Beneficiary and testator [2] The will was prepared by the beneficiary Mr Dore, a solicitor. [3] The testator died on 11 February 2005. His widow’s solicitors raised concerns about his testamentary capacity, whether he intended to make a will in those terms, and about the suspicious circumstance that Mr Dore benefited substantially. As executor, Mr Dore now seeks a solemn form grant. [4] Mr Chenhall was 67 when, on 27 June 2003, he called on Mr Dore with instructions to prepare a new will. Mr Dore was then 45. Apart from a year when Mr Dore was not in legal practice, since 1987 he had often acted as Mr Chenhall’s solicitor. Most of the work concerned conveyancing – residential and commercial. Some was more personal: for example, in connection with Mr Chenhall’s mother’s estate. Over the years, their professional association had developed into friendship. [5] Mr Dore ceased practice as a solicitor in April 2000 to establish a financial planning business. The venture was not successful, leaving him with debts of $86,000. With Mr Chenhall’s encouragement, in May 2001, Mr Dore resumed practice as a -- 3 of 15 -- 4 solicitor, at Noosaville. Mr Chenhall offered him an unsecured, seven-year loan for $86,000 at 5% per annum interest, which Mr Dore accepted. The money was borrowed in September 2001. Other loans eventually followed. [6] When Mr Dore first met Mr Chenhall and his wife, Hild, they lived at Sunshine Beach. Towards the end of 2001, they moved to a property at Lake Macdonald. After that, at Mr Chenhall’s request, each weekday Mr Dore or his secretary collected Mr Chenhall’s mail, including that of his companies, from a post office. Most mornings, Mr Chenhall would drop into Mr Dore’s office, open his mail, and the two men would chat for a while. Typically, they spoke about the stock market, the economy, and Mr Chenhall’s investments. Mr Dore sometimes researched money-related topics for Mr Chenhall on the Internet. Occasionally, Mr Dore arranged the purchase of shares. No fee was ever charged for such things. [7] Mr Chenhall was a wealthy investor. The assets he controlled were largely held through trusts and corporations. He and his wife were directors of, and shareholders in, Kireen Pty Ltd. Kireen owned all the units of the Mindari Unit Trust. It was also the trustee of the WHB Chenhall Family Trust. Muffinwell Pty Ltd was a beneficiary under that discretionary trust. [8] Felshack Pty Ltd was the trustee of the Ruth Mary Chenhall Family Trust, named for Mr Chenhall’s mother. He and his only sister, Rosemary Leitch, were shareholders in, and directors of, Felshack. They and their mother 1 were primary beneficiaries of this trust. Muffincastle Pty Ltd, which had been incorporated in 1989, became a corporate beneficiary. [9] Until the middle of 2002, Muffincastle was controlled by Mr Chenhall and Mrs Leitch, each of whom held one ordinary share and what Mr Chenhall’s accountant of many years, Mr Elms, calls a “dividend access share” – in Mrs Leitch’s case, designated an F class share. By 2001, they had decided to wind up the Ruth Mary Chenhall Family Trust and to distribute the proceeds between them. Under this re- arrangement, Mrs Leitch was to transfer her shareholding in Muffincastle to her brother so that he alone would control its assets and destiny. In late July 2002, consistently with this consensus, Mrs Leitch transferred her ordinary share in Muffincastle to Mr Chenhall. She also resigned as a director, leaving Mr Chenhall as the sole director. By oversight, the F class share was not transferred then. [10] On 24 April 2002, Mr Dore spoke by phone with an agitated Mrs Chenhall, who told him that her husband was in bed, in great pain, and would not let her call an ambulance. Mr Dore exhorted her to summon an ambulance immediately. He locked up his office and rushed to the Lake Macdonald property, arriving at about the same time as the ambulance. He went to the hospital to which Mr Chenhall was to be admitted. Mr Dore stayed at the hospital until the early hours of the morning, when he heard that Mr Chenhall had recovered well from a burst duodenal ulcer. Mr Dore drove Mrs Chenhall and Mrs Leitch to visit Mr Chenhall in hospital. As events were soon to prove, Mr Chenhall appreciated Mr Dore’s help. 1 Who died in 1994. -- 4 of 15 -- 5 Towards a new will [11] On 9 July 2002, Mr Chenhall asked Mr Dore to become the secretary of Kireen, Muffinwell and Muffincastle, and to accept powers of attorney from Muffinwell and Muffincastle. He agreed. According to Mr Dore, at this meeting, Mr Chenhall also told him that he was going to leave Mr Dore Muffincastle and that, if Mrs Chenhall died before him, Mr Chenhall proposed to leave his entire estate to Mr Dore. Mr Dore, who was overwhelmed by this generosity, understood these ideas as statements of future intention, not as an instruction to prepare a new will. [12] After that meeting, Mr Chenhall spent more time discussing with Mr Dore the shares that Muffincastle should buy and sell. Not until the following year, however, did Mr Chenhall implement his desire to benefit Mr Dore by his will. [13] In February or March 2003, in one of the many morning conversations between the two men in Mr Dore’s office, Mr Chenhall announced that he had decided to make a new will, and that in it he wanted to “give” Mr Dore Muffincastle. He spoke to Mr Dore of directing more money into Muffincastle in future, “and when I die you can have that”. [14] Mr Dore told Mr Chenhall that another lawyer should prepare the will, suggesting Mr McKenzie, a solicitor who practised from premises along the street. Mr Dore’s recollection is that Mr Chenhall agreed and that, with Mr Chenhall in the room, he telephoned Mr McKenzie to say that he had a wealthy client who wished to leave him something by his will, and that he was uncomfortable about drawing the document. Mr McKenzie was willing to accept instructions to prepare the will. Mr Chenhall asked for Mr McKenzie’s phone number, which Mr Dore gave him, so that Mr Chenhall could make an appointment. Mr Dore was at Mr McKenzie’s office later on. He asked whether Mr Chenhall had called, to be told “no”. Mr Dore told Mr McKenzie that he would remind Mr Chenhall to get in touch with him; and he did so. [15] This account of Mr Dore’s attempts to persuade Mr Chenhall to retain another solicitor to prepare his will receives support from Ms Whiteley, Mr Dore’s secretary. “Quite a while before the will was actually made”, she heard Mr Dore advise Mr Chenhall to “get another lawyer to do your will”. At Mr Dore’s request, she found Mr McKenzie’s telephone number and gave it to Mr Dore, and Mr Dore telephoned Mr McKenzie to ask him about preparing Mr Chenhall’s will. [16] Mr McKenzie recalls approaches from Mr Dore concerning a will for Mr Chenhall. On points of detail, his recollection is different. He believes that Mr Dore arrived at his office one day, unannounced, saying that he might send a client to see Mr McKenzie about a will because he (Mr Dore) may be a beneficiary under it. Mr Dore said that he wanted his client – mentioning his name – to get independent legal advice. Mr McKenzie agreed to receive instructions from Mr Chenhall. Afterwards, at Mr McKenzie’s office, at the end of dealings about an unrelated matter, Mr Dore asked if Mr McKenzie had heard from Mr Chenhall yet. “No”, Mr McKenzie -- 5 of 15 -- 6 replied. Mr McKenzie recalls that Mr Dore indicated that he would speak to Mr Chenhall again to try to convince him to retain Mr McKenzie. [17] The proposal to make Mr Dore a substantial gift by will accords with what Mr Dore’s friend, Mr Beerling, remembers Mr Chenhall saying in 2003. [18] Most mornings, Mr Beerling met Mr Dore at Piccolo’s Café in Noosa Junction. About every four to six weeks, Mr Chenhall joined them. To Mr Beerling, Mr Dore and Mr Chenhall were obviously good friends, whose relationship seemed more personal than professional. [19] At Piccolo’s one morning, Mr Beerling recalls Mr Chenhall talking, as usual, about shares and real estate. Then he turned to a different topic – updating his will. Mr Beerling heard Mr Chenhall say that he wanted to make a gift to Mr Dore in his new will, and to look after his wife, adding that he was not interested in giving anyone else anything. Mr Beerling remembers Mr Dore saying to Mr Chenhall that he had nieces and nephews to consider. But Mr Chenhall did not want to give them anything. They were “all pretty well off”, he explained; and they had not, he said, taken any great interest in him or in his wife. Mr Chenhall was specific about the provision for Mr Dore: Muffincastle. Mr Beerling also recalls that Mr Dore reminded Mr Chenhall of the desirability of involving an independent lawyer. Mr Chenhall said that he would “get onto it”. [20] In May 2003, Mr Chenhall began to suffer from a condition that blackened his left big toe. In June that year, his general practitioner, Dr Meyer, made a provisional diagnosis of “arterial insufficiency”. The condition became increasingly painful. [21] When Dr Meyer saw him on the morning of 27 June 2003, Mr Chenhall was in considerable distress with the pain in his toe. A synthetic opioid, Tramal, was prescribed. That drug is, as Dr Meyer characterized it, a “moderate analgesic” “similar to Codeine but probably a little bit stronger”. Instructions [22] Within hours of consulting Dr Meyer, Mr Chenhall walked into Mr Dore’s office and spoke to him of making a new will. A few months had passed since this prospect had been raised. Apparently, seeing Dr Meyer had stirred Mr Chenhall to action. Dr Meyer, it seems, had told him that he may need to have an operation on the toe. [23] Mr Dore again spoke of his anxiety about preparing the will because of the bequest to him. That meant trouble: he anticipated that Mrs Leitch would particularly resent a bequest to him of the entire residuary estate – a gift which, in the event of Mrs Chenhall’s earlier death, would see him receive or control assets worth $20 million or more. Mr Dore reminded Mr Chenhall that he had agreed to see Mr McKenzie. But Mr Chenhall was adamant that Mr Dore should compose the will. He “insisted -- 6 of 15 -- 7 and said that he didn’t want to see anyone else and he wanted me to do it”. Unfortunately, Mr Dore accepted these instructions. [24] Remarkably, the only record Mr Dore made of his time with Mr Chenhall that day was this note in his hand: 27/6/03 Attg Bill re: Will. C P D 2 – Executor & Trustee - 2 shares in Muffincastle P/L – to C P D - $100,000 to each of the children of Rosemary Leitch - Bal of estate to Hilde - If Hilde Predeceases I don’t know - $200K – to each of the children - $1,000,000 – Rosemary - Bal to C P D [25] At the outset, there was discussion of Mr Chenhall’s assets. [26] Mr Chenhall was not a lawyer. In discussions with Mr Elms, Mr Dore, and others, he often spoke of corporate and trust assets he controlled as if they were his. But he knew what he was entitled to beneficially. Mr Dore was familiar with the trust structures and was not perturbed by Mr Chenhall’s speaking of assets held in trust for him or his companies as if they were his own. More to the point, as is common ground, in June 2003, Mr Chenhall was a literate and intelligent man. He was also an astute investor, keenly interested in the assets he controlled. Mr Daddow, a motor dealer, considered him a “shrewd business man”. “Shrewd” was also how the real estate agent, Mr Midgley, regarded him. Mr Elms described him as “one of my more astute clients”. And Mr Peek, another real estate agent, saw him as an investor who “never lost his acumen and judgment”. [27] Muffincastle was raised. Mr Chenhall said that, apart from shares it owned, that company held about $350,000 in cash. He told Mr Dore, as he had before, that he was “leaving Muffincastle to you”. [28] Mr Chenhall and his wife were private people, who kept mostly to themselves. They had no children. Mr Chenhall’s only brother, Adrian, had died in 1997. Mrs Leitch, who lived in Armidale, was already wealthy. [29] Mr Chenhall wanted to leave some money to his sister’s children, with the rest of his fortune to pass to his wife. Mr Dore suggested $500,000 each as the amount of the legacies for Mrs Leitch’s children, with the same amount to go to Mrs Leitch. This idea was rejected. Mr Chenhall said that he had hardly seen Mrs Leitch’s 2 “C P D” is Mr Dore. -- 7 of 15 -- 8 children, and that they could expect to inherit their mother’s money. He settled on bequests of $100,000 to each of them, as Mr Dore’s terse diary note confirms. [30] Discussion turned to what would happen if Mr Chenhall’s wife predeceased him. The diary note records Mr Chenhall’s initial response as: “I don’t know”. The two men then discussed possibilities. [31] Mr Dore suggested that $1,000,000 be given to Mrs Leitch, with the same amount to go to each of her children. Mr Chenhall was not inclined to do that, harking back to his belief that the children would inherit Mrs Leitch’s money. Mr Dore raised the idea that the estate be divided between Mrs Chenhall’s niece and cousins and Mrs Leitch and her children. Mr Chenhall was not interested in that either. He also derided Mr Dore’s suggestion of committing the residue to a charitable trust or legacies to charities, saying that the money would be spent in administration costs. [32] Mr Chenhall decided that, should his wife die before him, $200,000 would go to each of his nieces and nephews, $1,000,000 to Mrs Leitch, and the rest to Mr Dore. Mr Dore told Mr Chenhall that what he was proposing would cause trouble – a reference to the expected reaction from Mrs Leitch once she came to learn that Mr Dore had been preferred to her and her children as the residuary beneficiary should Mrs Chenhall die first. But Mr Chenhall was insistent: he would leave the residue to Mr Dore. “I am giving it to you and that’s it”, he said. Execution [33] Mr Dore started drawing up the will the next day, a Saturday, using that of another client as the “skeleton”.3 Mr Chenhall had not mentioned when he expected to be hospitalised. Mr Dore, not feeling under pressure to complete the task, did not bother to finish his (one-finger) typing of the document that day. [34] On Monday, 30 June, Mr Chenhall dropped into Mr Dore’s office. He told Mr Dore that he had to go to hospital, and that he wanted to sign his new will. It had remained in the incomplete state in which Mr Dore had left it on Saturday. So, in Mr Chenhall’s presence, Mr Dore set about typing the rest, including the residuary bequest to him. That done, according to Mr Dore, he turned his computer screen to face Mr Chenhall. Mr Chenhall read the will on the monitor. Mr Dore then arranged for the document to be printed. Next, he read out to Mr Chenhall a summary of “the basic bequests”, including the gift of residue to him. The printed document was handed to Mr Chenhall, who began to read it to himself. Mr Dore left to arrange the attendance of two witnesses: Ms Whitely, and Ms Heidi Williams, a real estate agent whose office was nearby. 3 A lack of discrimination in drawing on this precedent explains the inappropriate numbering: two clauses 3, and no 8, 9, 10, or 11. -- 8 of 15 -- 9 [35] Ms Whiteley’s recollection of circumstances surrounding execution of the will is somewhat different. [36] She recalls Mr Chenhall arriving on the day the will was executed, walking into the office through the back door, limping. He stopped at her desk to show her his blackened toe. He then walked into Mr Dore’s office. Ms Whiteley took Mr Chenhall’s mail to him. She left the room briefly to get her letter opener. When she returned, she overheard Mr Chenhall say to Mr Dore, “We will do the will now”. Some time later, Ms Whiteley, who knew she was to be a witness to the execution of the will, went back into Mr Dore’s office and sat down next to Mr Chenhall. She recalls: “Chris read the will to Mr Chenhall. I think Chris then turned the computer screen around to face Mr.Chenhall. Mr Chenhall read through it. That only took a short time after which, Mr Chenhall said ‘yes that is right’ or words to that effect. Chris then printed out the will to the printer which was outside his office. Chris went and got the will and brought it back into the office and gave it to Mr Chenhall and said ‘I will go and get Heidi so we can sign this’, or words to that effect. All this time I was still sitting at the desk next to Mr Chenhall. He had the will in his hand. I watched Mr Chenhall read the will. After he had read it, he then put the will on the desk in front of me and said ‘this is what we are doing’, or words to that effect. Next, Chris and Heidi came in. Heidi was introduced to Mr Chenhall by Chris. At this point, Chris then went to his chair, I remained in my chair, Mr Chenhall remained in his chair, Heidi stood looking towards Chris, Heidi was to Mr Chenhall’s left, Mr Chenhall was in the middle and I was sitting in a chair to Mr Chenhall’s right. When Chris was seated he said to Mr Chenhall ‘have you read it’, Mr Chenhall said ‘yes it is right to go’, or words to that effect. Chris showed Mr Chenhall where to sign, he signed, then I signed, then finally Heidi signed. Heidi then left.” [37] Despite the differences in their memories, Mr Dore and Ms Whiteley recall that Mr Chenhall read the will before signing it. Neither made a record of the event. So the difference in the detail is unsurprising. Both, however, are persuaded that they saw Mr Chenhall read the will twice – on the screen, and in printed form – before execution. Afterwards [38] After the new will was executed, Ms Whiteley photocopied it. That copy was put into an envelope and given to Mr Chenhall. Mr Dore retrieved Mr Chenhall’s 1998 -- 9 of 15 -- 10 will from safe custody and gave it to him. He tore it up in Mr Dore’s presence. Mr Chenhall left soon afterwards, driving away in his automatic Toyota four wheel drive vehicle. [39] In mid-November 2004, Mr Chenhall said that his wife was sick and wanted to make a will. They attended Mr Dore’s office on 17 November, when Mrs Chenhall gave instructions for her will and for an enduring power of attorney in favour of her husband. Her will was signed on 1 December 2004 – less than a fortnight before her condition was diagnosed as oesophageal cancer. Mr Dore arranged medical treatment for her in Brisbane. [40] Late in 2004, Mr Chenhall developed pleurisy and pneumonia. His state of health did not improve with time. Mr Dore suggested that he consult Dr Meyer. Not long afterwards, Mr Chenhall told Mr Dore that he was suffering from an advanced form of inoperable lung cancer in both lungs. With death impending, Mr Chenhall set about arranging his financial affairs. [41] On 26 January 2005, at Mr Chenhall’s request, Mr Dore went to see him at Lake Macdonald. Mr Chenhall told Mr Dore that he wanted to make him a director of Kireen, Muffinwell and Muffincastle, with power to sign cheques for the three companies. The local Westpac Bank manager, Mr Tyndall, was there. When Mr Tyndall enquired about directors’ fees, Mr Dore said that he did not want any. Mr Chenhall indicated that he regarded that as fair, because Mr Dore was “getting Muffincastle”. [42] Mr Chenhall was taken to the Buderim Hospital shortly after that meeting. [43] Mr Chenhall told Mr Elms that he had appointed Mr Dore to the Boards of Kireen, Muffinwell and Muffincastle. Soon afterwards, Mr Dore spoke to Mr Elms about the F class share in Muffincastle still registered in Mrs Leitch’s name. A day or so later, Mr Chenhall called Mr Elms about that share, asking him to attend to the transfer, as ought to have been done in 2002. [44] On the afternoon of 10 February, Mr Dore paid another visit to Mr Chenhall in hospital, finding him in good spirits. He was excited about imminent radiotherapy which he anticipated would make his breathing easier, if not extend his life. At this visit, Mr Chenhall said that he had “sorted out Muffincastle” – a reference to having instructed Mr Elms to see to the transfer of the F class share. Mr Chenhall also spoke of Muffincastle’s assets, telling Mr Dore that “there’s over a million dollars in fully franked dividends in cash” in the company. The conversation turned to other things, with reminiscences about distant events in Mr Chenhall’s life. [45] That day, Mr Elms telephoned Mr Chenhall, mainly to talk about correspondence he proposed to send to Mrs Leitch to arrange for the F class share to be transferred. Mr Chenhall insisted on that transfer, telling Mr Elms that he was “leaving Muffincastle Pty Ltd to Chris Dore in his will”. Mr Elms also deposes: -- 10 of 15 -- 11 “Bill said to me that the company was worth over 1 million dollars and he wanted to give it to Chris because in his mind, Chris had saved his life when he had the stomach ulcer and also that Chris had been responsible for saving Hilde’s life by organising a surgeon at short notice. He also mentioned that Chris had helped him out with sorting out the estate of Adrian Chenhall which was quite a testing and stressful time for Bill. The interesting thing is it seemed as though Bill thought he had to justify to me why he was leaving what appeared to be a large amount of money or asset to Chris Dore. Bill was at pains to go through the issues … I offered no comment in relation to it because Bill had thought it through. He said that it was the least he could do for Chris given all the support that he felt Chris had provided to him over many years.” [46] On the morning of Friday, 11 February, Mr Chenhall lapsed into a coma. He died shortly before 4 pm that day. His condition had deteriorated surprisingly rapidly in the last hours of his life. Mr Dore and Mrs Chenhall were with him when he died. [47] Two days later, Mr and Mrs Dore went to Lake Macdonald. Mrs Chenhall gave Mr Dore the key to a cottage Mr Chenhall had used as his office. Mr and Mrs Dore and Mrs Chenhall went there. In a locked desk drawer, they found the copy of the will Mr Chenhall had taken with him on 30 June 2003, removed from the envelope in which it had been handed to Mr Chenhall. Mrs Chenhall took the copy and put it into an envelope. Main issues [48] The bequests to Mr Dore, coupled with the absence of independent legal advice to Mr Chenhall, make the circumstances attending the making of the will suspicious. The circumstances cast upon Mr Dore the obligation to provide affirmative proof that the will reflects the testator’s intentions.4 Testamentary capacity [49] Mr Chenhall consulted Dr Meyer in person the day he gave Mr Dore instructions for his will. And Dr Meyer spoke to him by phone on the day the will was made. Nothing in his evidence supports a case that Mr Chenhall lacked testamentary capacity on either day. [50] The day the will was made, Mr Chenhall telephoned Dr Meyer, complaining that his pain was worse. He had taken all his Tramal tablets, which suggests that he had been ingesting between six and eight daily, and asked for a new prescription. A further 20, 50mg tablets, were prescribed. Four days later, he consulted Dr Meyer in 4 Nock v Austin (1918) 25 CLR 519, 523-524, 528; Lutchman Ramcoomarsingh v The Administrator General [2002] UK PC 67, [14]. -- 11 of 15 -- 12 person. By this time, the pain was severe enough to require an increase in the Tramal – to 200mg sustained release tablets, twice daily, coupled with a milder pain killer, Paradex, to be taken for “break through pain”. [51] Tramal has common side-effects: dizziness, sedation, fatigue, headache, constipation, nausea, and vomiting. Confusion and sleep disturbance are less frequent consequences. On 10 July, Mr Chenhall complained of constipation and urine difficulty. Significantly, he did not complain of any side-effect until after the increase in dosage that Dr Meyer had prescribed on 4 July. [52] When Mr Dore took instructions on 27 June, and when the will was executed three days later, Mr Chenhall was, as Mr Dore knew, in considerable pain and limping. But Mr Dore saw no reason to doubt Mr Chenhall’s testamentary capacity. The pain aside, he presented as usual – as a determined person. There was no sign of drowsiness, confusion or fatigue. Nor was there any indication that Mr Chenhall may have been affected by a drug. Mr Dore made no inquiry of Mr Chenhall or Dr Meyer specifically directed to testamentary capacity. He saw no need to do so. [53] Ms Whiteley also deposes to Mr Chenhall’s mental acuity when the will was signed: “My conversations with Mr Chenhall on the 30th of June 2003 were as they had always been in the past. Mr Chenhall was chatty, bright. He did not appear to me to be dull or drugged. There was no smell of alcohol on him. … While he had a sore toe, there was no apparent effect on his mental alertness…” [54] The other witness, Ms Williams, had regularly seen Mr Chenhall parking near Mr Dore’s office and going inside. To her, he “appeared to be mentally alert”. [55] The only troubling fact pertinent to capacity is Mr Chenhall’s omission to observe the wrong numbering of operative clauses. Such a mistake appears to be out of character. “Very careful, cautious” is how Mr Elms described him. To Mr Beerling, Mr Chenhall “seemed to live and conduct himself very cautiously and carefully”. Perhaps he was distracted by pain, or by thoughts of imminent surgery; or, which seems more likely, perhaps he did not bother to pay attention to mere numbering. In any event, in all the circumstances, failing to notice that mistake is not a weighty consideration telling against capacity. Knowledge and approval [56] Several considerations provide more than adequate support for the substance of Mr Dore’s evidence concerning the events of 27 and 30 June 2003. -- 12 of 15 -- 13 • The will is short. Its provisions are clearly expressed. There is no reason to doubt Mr Chenhall’s ability to have grasped their plain meaning. • Ms Whiteley saw Mr Chenhall read the will, twice, before signing it. • Mr Dore must have believed that the will conformed to Mr Chenhall’s instructions. Otherwise, he would not have left a photocopy with the testator. This copy was found in Mr Chenhall’s desk drawer. It had been removed – no doubt by Mr Chenhall – from the envelope in which it had been handed to him, which suggests that he may well have read it after taking it home. • The bequests in favour of Mr Dore – especially in respect of Muffincastle – accord with what Mr Chenhall told Mr Beerling a few months before the will was made as well as with what he told Mr Elms the day before the death. Conclusion [57] Both testamentary capacity and the requisite knowledge and approval of the contents of the will are established. Evidence reliability [58] The evidence of Mr Elms, Mr Beerling and Mrs Dore impressed me as reliable. Mr Dore’s evidence concerning the events of 27 and 30 June 2003 is generally acceptable, supported as in important respects it is by his diary note and by other evidence. [59] Mrs Chenhall, an elderly, desperately ill, grieving widow, somehow came to the irrational view that her husband’s unexpectedly sudden death had been hastened by something Mr Dore had said to him in the many hours the two men were together in Mr Chenhall’s last days. As early as the Sunday after his death, when she spoke to Mrs Leitch, she began to delude herself that Mr Dore had accelerated the death. She had become convinced of this by 15 March 2005 when she told Mr Halliday, a bank officer, as much. She challenged Mr Dore with this baseless proposition when they met on 18 March, asking him what he had said the night before her husband died that had killed him. “Nothing, Hilde, when I left him, he was happy”, Mr Dore replied. But Mrs Chenhall could not be moved. And she decided that Mr Dore just had to be punished.5 The depth of her hostility is confirmed by her concern to influence events against the interests of Mr Dore even after her death.6 5 On 27 July 2005, Mrs Chenhall wrote two entries in her diary. One relates back to 11 February – the day her husband died. This reads: “What happened? What made that cancer ‘gallop’ … through his body. To my dying day I am sure Christopher Dore had something to do with it – and as time has elapsed since – CD stinks more & more. Please God he will be punished …”. The other says: -- 13 of 15 -- 14 [60] Where Mrs Chenhall’s evidence is controversial, I would not act on it. In testifying,7 she made no attempt to disguise her animosity towards Mr and Mrs Dore. Her anxiety in giving evidence was not so much to tell the truth as to prevent Mr Dore’s taking a benefit under the will. Her demeanour and the content of her evidence were consistent with her conviction that Mr Dore must be “punished” for hastening her husband’s death. And her strong feelings about him were transposed for no good reason to Mrs Dore. Costs [61] The defendants contend that Mr Dore should not have his costs of proving the will because his lack of skill and prudence in connection with preparation of the will accounts for this litigation. [62] First, it is said that he ought not to have accepted instructions to prepare a testamentary instrument under which he took such a substantial benefit. That was an unwise decision.8 But Mr Dore was not obliged to refuse to draw his client’s will.9 [63] Secondly, his omission reliably to record Mr Chenhall’s instructions about the contents of the will and the circumstances attending its execution is alleged to be responsible for this litigation. [64] Mr Dore’s failure to make a full, incontrovertibly reliable record of the events of 27 and 30 June 2003 was inept. There were obvious, practicable steps open to him that would have reduced significantly the risk of the kind of litigation that has eventuated: as examples, tape-recording the taking of Mr Chenhall’s instructions and the execution of his will, or having Mr McKenzie in the room at such times. The will itself aside, however, the only contemporaneous record of the events of 27 and 30 June 2003 is Mr Dore’s brief note on the 27 th summarizing Mr Chenhall’s instructions about the bequests. Mr Dore did not even trouble to write to Mr Chenhall recording the rejection of advice that another solicitor should prepare the will. [65] If Mr Dore’s imprudence in connection with the will is responsible for this litigation, in principle, there is much to be said for requiring him to pay at least his own costs.10 “Please God let … this Horrible Situation with voracious Dore be over very soon & he gives up & goes to HELL – like he is trying to Send me – He harassed you to Death & he should be PUNISHED.” 6 Clause 3.3 of her will, made on 25 February 2006, provides: “ I DIRECT to (sic) my trustees … To continue to defend the proceedings … involving the estate of my late husband … and to instruct my legal representative to take all lawful steps to proceed to trial to ensure that the plaintiff in those proceedings … receives no benefit from the estate ...” 7 It is common ground that I may take into account impressions of Mrs Chenhall during her cross- examination on 21 and 22 February 2006: see consent order made 8 March 2006. 8 Cf Nock v Austin at 525. 9 Lutchman Ramcoomarsingh v The Administrator General at [29]. -- 14 of 15 -- 15 [66] The notion that the case has proceeded to trial because of Mr Dore’s incompetence is complicated by Mrs Chenhall’s irrational antipathy to Mr and Mrs Dore and by the stance the administrators ad litem have adopted in the face of evidence convincingly establishing both testamentary capacity and Mr Chenhall’s determination that Mr Dore should inherit all the shares in Muffincastle. [67] Mrs Chenhall wanted to use the case to punish Mr Dore, and for something which, on any rational assessment, he had not done. Nothing Mr Dore could reasonably have been expected to have put in place to record the critical events, or to involve Mr McKenzie, would have dissuaded her from resisting as strongly as she could his attempt to prove the will in solemn form. While she lived, the litigation was inevitable. [68] Mrs Chenhall died in March. Recently, the conduct of the defence has been in the hands of administrators ad litem. They have maintained an entitlement to put Mr Dore to proof on both capacity and intention. [69] They resist a conclusion of testamentary capacity, on the flimsiest of grounds. They also oppose a finding that Mr Chenhall intended the Muffincastle bequest; and this despite not having challenged Mr Beerling or Mr Elms concerning what the testator had said to them about making such a gift. [70] It is, I suppose, possible that an incontrovertible record, such as a demonstrably complete tape-recording, may have persuaded the administrators that the suspicion surrounding the testator’s intentions had been clearly dispelled. However that may be, the position adopted on testing testamentary capacity indicates that the case was always destined to go to judgment, and after a trial conducted at much the same length and expense as if Mr Dore had acted with due prudence. [71] Mr Dore’s conduct is not shown to have caused the litigation. As proving executor, he should have his costs. Disposition [72] Subject to the formal requirements of the Registrar, a grant of probate should issue in solemn form. The costs of all parties are to be assessed, on an indemnity basis, and paid out of the estate. 10 Nock v Austin at 525, 529; Daulizio v Trust Company of Australia [2005] VSCA 215, [11], [29], [34]. -- 15 of 15 --