Edmonstone v Churches of Christ in Queensland [2018] QSC 261

SUPREME COURT OF QUEENSLAND CITATION: Edmonstone v Churches of Christ in Queensland & anor [2018] QSC 261 PARTIES: HILARY ELIZABETH EDMONSTONE (applicant) v CHURCHES OF CHRIST IN QUEENSLAND (first respondent) ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (second respondent) FILE NO: SC No 8064 of 2018 DIVISION: Trial Division PROCEEDING: Originating Application DELIVERED ON: 3 September 2018 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 3 September 2018 JUDGE: Atkinson J ORDERS: It is declared that: 1. The gift in Clause 3 of the Will of Gary Verdun Coghlan, deceased dated 21 September 2009 was a charitable gift. It is directed that: 2. The property the subject of the gift in Clause 3 of the Will of Gary Verdun Coghlan, deceased dated 21 September 2009 be paid to the first respondent, Churches of Christ in Queensland, and the receipt of the Proper Officer of the first respondent be a sufficient discharge to the applicant. It is ordered that: 3. The applicant’s costs of this Application be paid out of the Estate of Gary Verdun Coghlan, deceased on the indemnity basis. CATCHWORDS: CHARITIES – CHARITABLE GIFTS AND TRUSTS – WHEN APPLIED CY PRES – FAILURE OR EXTINCTION OF OBJECT – WHERE GIFT APPLIED CY PRES – GIFT FOR INSTITUTION CEASING TO EXIST IN TESTATOR’S LIFETIME – where the testator by his will made a charitable gift to the predecessor in title to the first -- 1 of 3 -- 2 respondent – where the testator was a paraplegic resident of a nursing home operated by the first respondent – where the executor of the estate was a paid employee of the nursing home – where ordinarily the law would operate to assume undue influence in the making of the will – whether it was appropriate to make the orders sought by the applicant COUNSEL: L J Nevison for the applicant No appearance for the first respondent A H McCabe (sol) for the second respondent SOLICITORS: Neil Sullivan & Bathersby for the applicant No appearance for the first respondent Crown Law for the second respondent [1] This was an application by an executor for a declaration of a charitable gift and a direction that the gift made to an entity that ceased to exist before the testator’s death be paid to its successor institution. The Attorney-General has been served and appears by Counsel because of this being in the nature of a charitable gift. [2] The factual circumstances were that the deceased, Gary Verdun Coghlan, died in Stanthorpe on 29 August 2017. His death certificate showed that he was 63 years old, had never been married and had no children. He had been a paraplegic from the age of 43, so for the previous 20 years. At the time of his death, he was a resident in a nursing home run by the first respondent. It then had a different name and there is no doubt that the first respondent is its successor in title and that in the ordinary course the appropriate order would be that the first respondent be regarded as the successor in title of the institution to whom the testator left the entirety of his estate. [3] I have expressed some concern about the matter, because the executor of the estate is a paid employee of the nursing home in which he was a resident and, as I said, the sole beneficiary was that nursing home by its name then known for whom its successor in title is the Churches of Christ in Queensland. Had the testator not received independent legal advice, it seems to me there is a serious danger that it would have been assumed that he was acting under undue influence. A paid carer may not exercise an enduring power of attorney over a person for very good reason. A person such as the deceased, as a resident of a nursing home, is extremely reliant upon those who run the nursing home and is in the situation of obvious vulnerability with regard to any undue influence that might be exercised over him. [4] Because of the concerns I expressed, the solicitor who acts for the applicant has sworn an affidavit setting out the circumstances. He acts for the applicant executor not because he is the solicitor for the Churches of Christ in Queensland, but, rather, because he knew the deceased since he was about 17 years old. The solicitor is a very experienced practitioner in Stanthorpe with substantial experience in the taking of instructions for wills and the administration of estates. He knew that the deceased had resided with his parents during their lifetime. He also knew that the deceased had a brother. He knew, because he had been told by his paralegal, who also knew the deceased, that the deceased had become a -- 2 of 3 -- 3 resident in the nursing home in Stanthorpe in about 2004. There is, therefore, no coincidence between his becoming a resident and the execution of the will. [5] A solicitor took instructions from the deceased at the nursing home personally on 15 September 2009 and, with his paralegal, returned on 21 September 2009 for the will to be executed. He refers to his usual practice, although he cannot personally recall the visit, but his paralegal does have an independent recollection of the deceased signing his will. The solicitor swears there was nothing to cause him any concern as to the capacity of the deceased or that he was subjected to any undue influence by any person. [6] Shortly after the death of the deceased, the solicitor was informed by his paralegal that the will was read at a meeting with the deceased’s brother and a copy provided to him. Probate of the will was subsequently applied for and issued by the Court on 9 May 2018 with the usual advertising of the application for the grant of probate. Accordingly, it would appear that it would be difficult for anyone to allege that the will was induced by undue influence or that the testator lacked testamentary capacity. I should, however, say that it is unwise for an employee of a nursing home where a testator is a resident to be the executor of the estate and, indeed, for the nursing home to be the sole beneficiary of an estate, including where it means that the refundable deposit will be paid back to the organisation that runs the nursing home. Such a situation is always likely to arouse at least some suspicion that the will of the testator has been influenced, if not overborne, by his vulnerable situation. [7] However, as I said, I am satisfied by the affidavit of the independent solicitor who acted for the testator that that is not the case on this occasion. Accordingly, being otherwise satisfied as to the matters of which I am required to be satisfied, I grant the application and, it not being opposed by the Attorney-General, I intend to make the order as per draft which I will initial and place with the file. -- 3 of 3 --