Drakos v Asmar [1993] QSC 295

'. ,'J> ~"' . g ~f~ State Reporting Bureau ~-V_.f.:.Ir.l.L1 TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) I Rr\ 1 ,-, .• ;:' •• =:-c ~-:~.._":":';:..-D·~""'t·· SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION SHEPHERDSON J No 980 of 1991 HAROLD STANLEY DRAKOS and PHILLIP ASMAR BRISBANE .. DATE 20/09/93 JUDGMENT I !.:. ,;.: ... ~.:.~_) '._. _j, :··:.:_"\ !V~Uc. • Slato ~e,...: .. ~~;-I~nq s~rG2U I - ~ Date If I /o i ! 1 I ,...._ _ _, i .i l '"::-·· ' -·'" ' (J f I Plaintiff Defendant -- 1 of 7 -- 200993 kmm (Shepherdson J) HIS HONOUR: Marell Van de Kamp died at Brisbane on 31 December 1990 aged 84 years. On 27 July 1989 she made a will under which she appointed Harold Stanley Drakos, solicitor, to be the instituted executor and trustee of the will. Mr Drakos has sought probate of the will. It appears that a challenge was made to probate in common form with the result that an action for probate in solemn form was begun. The pleadings show the defendant to be a man named Phillip Asmar. When the matter came on for trial this morning Mr Munro, who appeared for the defendant, informed me that, in effect, his client would not be prosecuting his defence. This left the plaintiff in the position where he, very sensibly, decided to seek to have the will proved in solemn form rather than merely requiring probate in common form. The will in question was made by Mr Drakos. Mr Drakos has given oral evidence before me. He told me that he had known 10 20 ( 30 the testator fo:r:: about 20 years.. He has been in practice l/ since 1977. She had been a client of his since then. For some three to four years prior to that he had had dealings with her, first when he was an articledclerk and then when he was a solicitor with a fi-:rm of Brisbane solicitors. On 27. July 1989 he saw Mrs Van de Kamp (the "testatrix") when she gave him instructions for her :Will. By way of background,. in .. the previous year or so he had acted for· her in conveyancing matters when she had sold and bought properties. He knew that proceeds of the saleofa guest house had been put into a bank account. Shortly before 27 July, or indeed perhaps on 27 July he received a telephone call from a relative of the testatrix. That relative was one of the beneficiaries in the will which is now JUDGMENT 2 40 50 60 -- 2 of 7 -- 200993 kmm (Shepherdson J) propounded. He was told the testatrix would like to see him about making a will. Mr Drakos' general practice when elderly persons came to give him instructions for a will was to have the particular client assessed by a medical practitioner immediately before the consultation atwhich instructions were given. He followed that practice on this occasion and told the relative who had telephoned that he required the testatrix to see a Dr Crichton who practises at Annerley. In the event, the testatrix arrived and she came with two or three relatives. Mr Drakos had a brief discussion with all persons present and then sent the relatives out so that only he and the testatrix remained in his room. I should add that prior to the arrival of the testatrix, Mr Drakos had spoken with Dr Crichton, who had seen the testatrix earlier that day. Mr Drakos is not certain of the time at which the testatrix arrived but it seems that it was at least midmorning. I am satisfied after hearing Mr Drakos that he had discussions with the testatrix, who recalled having made a previous will with Mr Drakos and spoke of having made a will with another solicitor at the Gold Coast. She was able to recall the giving of instructions to that solicitor and the attendance to sign the will, although she was unable to say whether the defendant, Phillip Asmar, was the main beneficiary in that will made at the Gold Coast solicitor's office. The instructions which Mr Drakos obtained from the testatrix were, first, that she did not want Phillip Asmar to be the main beneficiary. Indeed, she didn't want him to have much JUDGMENT 3 10 20 30 40 50 60 -- 3 of 7 -- 200993 kmm (Shepherdson J) 1 because she told Mr Drakos that, in effect, Phillip Asmar had had a lot of it, and this was a reference to_ a transac.tion which had o8curred e·arlier when the testatrix had bought a property at the Gold Coast using a solicitor other than Mr Drakos. I am satisfied the testatrix went - . on to tell Mr Drakos that she wanted three relatives who were 10 named to me in the evidence only as Youlanda, Fay and Amalia to be the beneficiaries, with Youlanda to get the biggest share and the other two to have lesser shares. I am satisfied discussions occurred between Mr Drakos and the testatrix as a result of which she decided Youlanda should get 50 per cent 20 and each of the others 25 per cent of the estate and that Phillip Asmar would have a legacy of only $1,000. Mr Drakos, I am satisfied, set out to sat~sfy himself that the testatrix had testamentary capacity in the sense that she knew 30 what she was doing and that she had in mind the persons who had any claims on her bounty. Mr Drakos had acted for her in the past. He knew she was divorced and had no children. The will shows the testatrix had signed at the foot of the first page and the top of the second page. The will rather unusually is 40 held together with a staple. I note there appears to be another staple mark alongside where the staple presently is. Mr Drakos has told me in evidence that the two sheets contain the will of the testatrix. I am satisfied that she waited in his office while the will was prepared and then, after it had 50 been prepared, he got her back into the office where he read the will over to her and satisfied himself that she knew, understood and approved of the contents. The will is rationally made. I might add that I elicited from Mr Drakos in cross-examination the fact that, as he understood 60 _L}l(J_ __ 4 __ JUDGMENT ( ,I - ! -- 4 of 7 -- 200993 kmm (Shepherdson J) it, the testatrix was illerate and this explains the rather poor signatures on the will. Dr Crichton's evidence has been put before me in affidavit form, which is slightly unusual, but nevertheless I have accepted that. He has provided a report dated 12 July 1991 in which he says the testatrix consulted him on 27 July 1989 at 10.30 a.m. He knew she apparently wished to make a will and, as he said in his report, there was some question as to her mental capacity to do so. I quote .from his report: "I noted she was an 82 year old lady who had no significant past medical history apart from arthritis of her hands and fingers and mild depression. Her medication at the time was Prothiaden 25 mg (twice a night) (an antidepressant). I noted she was well dressed and at the time she lived alone and was totally independent ie she cooked for herself and attended to her personal hygiene, dressing and all her domestic duties. It was noted she did have some impairment of short-term memory consistent with early dementia but I considered she would have understood the nature and meaning of any will shewished to make. I was further consulted the same day at 2 p.m. after she had seen her solicitor and made a will. I asked her, 'To whom do you want to leave your possessions when you die?' She clearly replied, 'To the three girls, Youlanda, Amalia and Fay.' This was as documented in her will dated that day. She appeared to fully understand the nature and meaning of this will she had made that day. One may have some early signs of dementia as manifest by a degree of short-term memory loss, but it does not necessarily follow that one is mentally incapable of making a will. Dementia is usually of gradual onset and affects very many people in the over 70 age group to varying degrees. I believe that Mrs Marell Van de Kamp had testamentary capacity when she consulted me on 27/7/1989 and furthermore, any woman of her age(82 years) who lives alone and totallyindependently, cannot be badly affected by JUDGMENT 5 10 20 30 40 50 60 -- 5 of 7 -- 200993 kmm (Shepherdson J) dementia." I have omitted to mention evidence from Mr Drakos that after the will was executed he kept the original and put a photocopy in a sealed envelope which he gave to the testatrix so that she could call to see Dr Crichton later that day and show him the copy will. It is to that document that Dr Crichton has referred in his report. I do not propose to set out the principles which apply in a case such as this. I shall merely mention the judgments of Justice Isaacs in Nock v. Austin (1980) 25 CLR 519 at page 528 and Bailey v. Bailey (1924) 34 CLR 558 at pages 570 and 572. I mention also a decision of the late Justice White of the Supreme Court of South Australia, O'Connell v. Shortland (1989) 51 SASR 337 at pages 350 and 351 in which His Honour set out what had been stated in Williams on Wills (6th Edition) Volume 1 at pages 26 and 27 as to sound testamentary capacity. As that work states, three things must exist at one in the same time: 1. The testator must understand that he is giving his property to one or more objects of his regard. 2. He must understand and recollect the extent of his property. 3. He must also understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will. I bear in mind the quite heavy onus which lies on the I applicant of satisfying the Court by clear and satisfactory /i~ --------· _______ {11~ JUDGMENT 6 '• 10 20 c 30 40 50 60 -- 6 of 7 -- 200993 kmm (Shepherdson J) proof that the testatrix knew and approved of the contents of this will. In the particular case the matter which to my mind initially excited my suspicion was the poor quality of thesignature but that has. been satisfactorily. explained to me by Mr Drakos. I propose to decree that probate be granted. 10 These are the orders I make: I do pronounce for the force and validity of the last will and testament of Marell Van de Kamp dated 27 July 1989, which is Exhibit 1 in these proceedings. 20 I do pronounce against the force and validity of an alleged last will and testament of the said Marell Van de Kamp dated 24 June 1988 which is the subject of the defence and counterclaim in this matter. 30 I decree that probate of the will dated 27 July 1989 be granted to Harold Stanley Drakos as instituted sole executor thereof subject to the formal requirements of the Registrar. By consent of the parties, the Court further orders that the 40 costs of and incidental to this action of both parties, including reserved costs, be taxed as between solicitor and client and paid out of the estate of the testatrix. 50 60 JUDGMENT 7 -- 7 of 7 --