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IN THE SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BEFORE MR. JUSTICE DERRINGTON

BRISBANE, 7 FEBRUARY 1991

No. 3287 of 1986

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter#Court Reporting Bureau.)

BETWEEN:

LEVI KOOVSHINOFF

-and-

VALERIE GWENDALINE BROOKES

JUDGMENT

Plaintiff

Defendant

HIS HONOUR: The action is dismissed with costs.

' .,

However, the plaintiff should be reimbursed out of the estate

of the testator for his costs and that part of the costs which

he may pay to the defendant both up to but not including

22 January 1991, that is, a week prior to the trial.

~,wt. Printer, Old.

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IN THE SUPREME COURT

OF QUEENSLAND

No. 3287 of 1986

Before Mr. Justice Derrington

BETWEEN:

LEVI KOOVSHINOFF

AND:

VALERIE GWENDALINE BROOKES

JUDGMENT - DERRINGTON J.

Delivered the 7th day of February, 1991

CATCHWORDS:

Counsel: Mr. M. Hinson for the plaintiff

Ms. M. Wilson for the defendant

Solicitors: Mullins & Mullins for the plaintiff

Plaintiff

Defendant

Chambers McNab Tully & Wilson for the defendant

Hearing dates: 29th and 30th January, 1991

IN THE SUPREME COURT

OF QUEENSLAND

BETWEEN:

LEVI KOOVSHINOFF

AND:

VALERIE GWENDALINE BROOKES

JUDGMENT - DERRINGTON J.

No. 3287 of 1986

Plaintiff

Defendant

Delivered the 7th day of February, 1991

The plaintiff is the executor of a will of Savelly Tkachenko

made on 13th July, 1981 and which, if valid, would be his last

will and testament. He died on 24th October, 1985. The

defendant is the sole beneficiary of a prior will of the testator

made on 21st September, 1978 which, if the above will does not

successfully revoke it, is thought to be his last will and

testament. She challenges the testamentary capacity of the

testator to make the later will.

The testator was born on 31st October, 1891 so that he was

eighty-nine years of age at the time of its execution. He was

confined to hospital at Eventide Sandgate where he had been sent

after assessment by an institution at Kenmore in about November

1980. On 12th July, 1981 he was visited by the plaintiff and his

mother who were old friends but had not seen him for many months

at least. He expressed delight and indicated his desire to make

his will in her favour so on the following morning the plaintiff

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communicated with a solicitor at Sandgate, Mr. Lane. He attended

at the hospital where he took instructions from the testator and

returned later in the day with the draft will which was then duly

executed. It appears that the plaintiff and his mother were

present for at least part of the time during which the

instructions were given.

undue influence is alleged.

This is unfortunate even though no

Mr. Lane says that the plaintiff was

a frail man who had some difficulty in speaking and instructions

were obtained by monosyllabic replies by the testator to

questions which he posed. Despite all this, Mr. Lane turned his

mind to the question of the testator's capacity and had the

fortification of a report by a Dr. Jones, who was employed at the

hospital, certifying that the testator enjoyed testamentary

capacity.

A couple of days later the plaintiff presented to the

defendant a form of authority which had also been signed by the

testator on the same occasion and requested possession of the

testator's bank books and keys of the house which he owned. The

defendant refused to comply claiming that the testator was

senile. Alerted by this, she made enquiries at the hospital and

complained of the execution of the will by the testator. The

hospital authorities agitated an enquiry by their specialist

psychiatrist who investigated the matter about a week after the

execution of the will. He was firmly of the opinion that the

testator did not then nor at the time of execution of the will

have testamentary capacity because he lacked the recollection,

judgment and other cognitive faculties necessary to decide

properly who should benefit by his will.

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As it turns out, that is the view of a number of specialists

who had treated or assessed the testator prior to that time and

indeed the medical evidence is unanimous because Dr. Jones

retracted his view and now concurs with the others.

This unanimous and strong body of medical opinion was not

shaken at all by cross-examination. It is true that some of the

factors relied upon could in part be attributed to causes other

than intellectual deficit, but to the extent to which that

operated it was but a minor contribution, and it was obvious that

whilst acknowledging and having allowed for these qualifications

the medical opinion was firmly of the view that to a strong

degree of probability the testator lacked the necessary capacity.

Despite this and despite having had copies of the medical

reports for about two weeks prior to trial, the plaintiff has

persisted in the action although there is no evidence otherwise

upon which he could reasonably hope to discharge his onus of

proving that the testator was "of sound mind, memory and

understanding". This phrase was explained by Cockburn C.J. in

Banks v. Goodfellow (1870) L.R. 5 Q.B. 549 at 565:-

"It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and ~ts effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

Consequently it must be shown that at the time when the will was

made the testator - ( 1) had sufficient mental capacity to

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comprehend the nature of what he was doing and its effects;

(2) was able to realise the extent and character of the property

he was dealing with; and (3) was able to weigh the claims which

naturally ought to press upon him: see In Will of Wilson (1897)

23 V.L.R. 197, 199 and Timbury v. Coffee (1941) 66 C.L.R. 277,

283 per Dixon J.

If there were any relevant point the threshold issue then

would be - when precisely was the will made. It would seem that

the time when instructions were taken is crucial and it would be

sufficient if at the time of execution the testator appreciated

that he was being asked to execute as his will a document drawn

in pursuance of those instructions although he may then be unable

to follow all of its provisions. However this distinction is

inapposi te in the present case because the plaintiff has not

shown that at the time when the instructions to prepare the will

were given nor at the time when the will was executed did the

testator have the requisite capacity.

This is not to say that he was incapable of understanding

the nature and effect of the will or of knowing that he was

making one, nor was he unaware of the nature and extent of his

property in general. Indeed, the evidence of the defendant

herself, although it was obviously not designed to have that

effect, demonstrated his capacity to converse relevantly and

rationally about his will and his property on a superficial

level. The evidence therefore disclosed that the testator had

a general knowledge of the state of his property and of what it

consisted: Waters v. Waters (1848) 2 De G. & Sm. 591. It should

not be doubted that he manifested the same capacity in the

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presence of the plaintiff and his mother on the eve of the

execution of his will and, perhaps to a somewhat restricted

extent, to Mr. Lane when he took instructions for it.

Whilst therefore it might seem that the plaintiff could show

that the testator may have satisfied the first two of the

criteria outlined above, however that he was not totally confused

or incompetent about these things does not mean that he had the

competence to form the necessary judgment in the exercise of his

power. Consequently the plaintiff's case ultimately turned on

whether the testator was able to give sufficient consideration

to the claims upon his bounty. In Brown v. McEnroe (1890) 11

N.S.W.L.R. Eq. 134 at 138 it was held that:-

"Where the will is officious, that is, where the testator disposes of his property fairly among those for whom he is morally bound to provide, a very small amount of capacity is needed. In that case wills have been upheld which were made almost in articulo mortis; but where the will is inofficious, where no provision, or an apparently inadequate or unfair provision is made for those who ought to be the objects of the testator's bounty then fuller and clearer evidence of capacity is required and the capacity must extend to a memory and understanding of the extent of the property to be disposed of and of the claims of those for whom he ought to provide."

The evidence as to his forgetfulness, induced by disease,

which deprived him of the opportunity of recollection of moral

indebtedness to the defendant is one feature. Another is his

general attitude which in effect expressed a willingness to

bestow his largesse upon any person who might happen to be

present at a suitable time.

This incidentally is consistent with his action in offering

to make the plaintiff's mother his sole beneficiary on the

occasion of her first visit to him in many months. Certainly she

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was an old friend and they had mutual Russian origin, but she had

not provided any serious services for him, particularly compared

with those provided by the defendant, and there was no real

reason why she should have been pref erred. Conversely, his

action disinherited the defendant completely despite his moral

obligation ~o her for the extensive services which she had

provided gratuitously to him over a number of yea~s and which had

become more onerous as he became less competent and continent.

Although the plaintiff's mother gave evidence suggesting that the

testator advanced a reason for changing his will, this evidence

appeared to be rationalisation on the witness' part and was

unconvincing. It was neither opened nor was the defendant

cross-examined upon it, but in any case it could carry very

little weight, particularly in the light of the medical opinions.

The only evidence to which the plaintiff could point as

providing even some foundation for argument is that of the

solicitor, Mr. Lane who of course had no medical knowledge nor

any medical information other than the bare report of Dr. Jones.

At the time Mr. Lane was young and quite inexperienced. He had

not long been in private practise and his earlier experience in

the Public Service had not equipped him for an occasion such as

this. True he had spent a year in the preparation of wills in

the Office of the Public Trustee but such a short term would have

restricted his experience to the more commonplace cases. This

is consistent with his admission that he had no experience there

in dealing with any cases in which testamentary capacity was in

question. He should be accepted when he says that he turned his

mind to the issue whether the testator had the necessary

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testamentary capacity, but he undoubtedly relied heavily on the

certificate of Dr. Jones, which has now been retracted.

Further it is doubtful from his evidence whether he directed

himself to the correct issues or whether, from the nature of the

responses which he says he received, he could have formed such

an opinion on the proper criteria. The rudimentary quality of

the monosyllabic replies of the testator to his questions, which

formed the instructions for the will, in association with the

testator's age and frailty, may have warned a more experienced

man that, whilst the testator was manifestly able to express his

superficial wishes of a temporary nature, he might still lack any

depth of insight or reflection. Mr. Lane's evidence certainly

does not demonstrate any search on his part for any real evidence

of any capacity in the testator to appreciate the spectrum of

facts relevant to any suitable judgment. In the result, his

evidence is of no real value in the face of the body of medical

opinion to the contrary.

The plaintiff has clearly failed to discharge the onus which

rests upon him and the action is therefore dismissed.

The question of costs is somewhat more difficult. The will

by which the defendant inherits the entire estate has not yet

been proved and consequently she should be entitled to her costs

against the plaintiff. However there is a question whether the

plaintiff should be entitled·to any costs from the estate, that

is, whether the general rule that costs follow the event which

applies also in probate cases ought be displaced. In Spiers v.

English [1907] P. 122 it was held by Sir Gorell Barnes that:-

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"In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residence have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of those principles, which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course."

The plaintiff was the executor appointed by the testator and he

had the benefit of the opinion of Mr. Lane supported by the

certificate of Dr. Jones. In accepting and performing the

function requested of him by the testator, he was certainly

justified in first instance in acting upon it in accordance with

the wishes of the testator who had made no revocation of his

will. Nor had any action been taken by the Public Trustee, who

took over the testator's affairs, to have its validity impeached.

Whilst the appointment of the Public Trustee to manage the

affairs of the testator shortly after the execution of the will

was based upon medical opinion, that did not necessarily

predicate that the testator was without testamentary capacity at

the relevant time.

Perhaps more importantly, after the death of the testator

when the solicitors for the defendant challenged his testamentary

capacity, referring to medical opinion, at an early stage the

plaintiff, at their request, supplied copies of Dr. Jones'

certificate and the statement of Mr. Lane and at the same time

requested copies of the defendant's medical reports. These

however were not supplied until shortly before trial. ( It should

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be stated that the defendant's solicitors at that time are not

those who now act for her.)

After having received those reports, any reasonably critical

review of the evidence should have convinced the plaintiff that

he was not justified in proceeding further. He cannot now be

said to have been honestly led into the litigation by the outward

appearance of the testator and fortified by the report of

Dr. Jones. See Twist & Ors v. Tye [1902] P. 92. This is not a

judgment in hindsight but a fair evaluation of the case in the

light of that evidence which is overwhelmingly in favour of the

defendant's case. By continuing the plaintiff then proceeded

only for the benefit of his mother and consequently at the peril

of his own liability for costs.

Up to that time the testator certainly had "inspire[d] false

hopes in [the] bosoms" of the plaintiff and his mother at least

and consequently it may be argued that he somehow "invited the

litigation": In re Cutcliffe's Estate [1958] 3 W.L.R. 707 at

715. Such a circumstance was however expressly rejected by

Hodson L.J. in Cutcliffe's case where it was said:-

"While it would not be possible to limit the circumstances in which a testator is said to have promoted litigation by leaving his own affairs in confusion, I cannot think it should. extend to cases where a testator by his words, either written or spoken, has misled other people, and perhaps inspired false hopes in their bosoms that they may benefit after his death ... The common situation is that which arises day by day in the courts of construction where the testator has used language which is difficult to understand, and where he, by himself or by his solicitor, has created the difficulty; and there the costs are normally borne by the estate."

However the testator's action here was the execution of an

arguably (at that time) valid will and there is no question here

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but that the litigation was brought about by the fault of the

testator. However the executor had ample opportunity shortly

before trial to form an educated opinion as to the testamentary

capacity of the testator and ought not to have continued to

propound the will.

In the event the plaintiff should be reimbursed out of the

estate of the testator for his costs and that part of the costs

which he may pay to the defendant both up to but not including

22nd January, 1991, that is, a week prior to the trial. rt is

ordered accordingly.