[2023] QSC 172
SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HINDMAN J

No 9259 of 2022

LUKE PETER TEHAN and ANOTHER	Plaintiffs

and

BENJAMIN FELIX TEHAN	Defendant

BRISBANE

10.38 AM, FRIDAY, 23 JUNE 2023

DAY 1

JUDGMENT 

Any rulings in this transcript may be extracted and revised by the presiding Judge.

WARNING:  The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence.  This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories.  You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 

HER HONOUR:   The plaintiffs seek, first, a grant of probate of the will of Patrick Joseph Tehan (deceased) dated the 25th of July 2018.  The plaintiffs are the nephews of the deceased and the executors named in the will.  Second, orders for possession of 25 Ada Street, Windsor, which is the primary asset of the estate of the deceased, and mesne profits for the defendant’s occupation of that property.  There is no dispute that since the death of the deceased the defendant has continued to reside at the property and has refused to vacate the property.  The defendant has not paid any rent for his use of the property since the death of the deceased.  Third, ancillary orders including costs.

The defendant who is presently self-represented opposes the relief sought by the plaintiffs and has filed a counterclaim.  The crux of the defence and counterclaim appears to be that, first, the defendant alleges that the deceased did not have testamentary capacity to make the last will from 2018 or perhaps did not make it at all.  Those allegations now appear to be abandoned by the defendant who concedes that the deceased did make the will and did have testamentary capacity when making the will.

Second, he pleads that he had an agreement with Patrick and the deceased’s brother John, also referred to as Jack, in place for free rent in perpetuity in exchange for caring for the deceased, which he says he did.  I note that no relief appears to be sought relying on such an alleged agreement and there has been no evidence adduced of the alleged agreement, so there is no need to consider that part of the defendant’s pleading further.  

Third, that he should not have to pay any rent on the property because there was some plan by his brother for the property to be redeveloped or because the property was in an unrentable state or a particularly poor condition.  Alternatively, he submitted that an appropriate amount of rent for the property would have been $200 a week.

Other matters that have been raised by the defendant that are not properly raised in the proceeding include an allegation that the executors failed to pay rates on the property earlier this year and so have been mismanaging the estate and ought to be removed as executors, and there was also some allegation that earlier wills of the deceased had also been revoked which might be relevant to consider if I do not admit the 2018 will to probate.  But there is no evidence, again, of any revoking of the earlier wills apart from the making of later wills.  There is also a submission made by the defendant as to his concern that the executors are not going to pay him anything from the estate and perhaps are not properly managing the estate.  That, again, is a matter that is not properly raised as part of this proceeding and therefore is not to be determined by me.

The first issue is should the 2018 will be omitted to probate?  The deceased died on the 12th of July 2021 leaving an estate in Queensland.  The application for probate was duly advertised and served.  There has been evidence from Nathan Donovan, the solicitor who prepared and was one of the witnesses for the 2018 will, that he took instructions from the deceased on the 12th of July 2018.  He did so by going to the 
home of the deceased.  The deceased was noted as being elderly and a person who probably did not leave home very much, lived in a modest house, and had simple needs.  His day-to-day finances were assisted by his brother and one of his nephews, Luke.

Mr Donovan further noted at the time:  his date of birth; that he was not and had never been married; that he had one brother and a sister-in-law; that one of his nephews lived in the premises above him; that he had no vehicle; that he owned the home outright and had lived there since about 1983; that he did not know if he owned any shares.  He was aware that he had bank accounts and money in the bank with the CBA but could not identify the amount.  He was able to identify, it seems fairly clearly, perhaps assisted by a piece of paper that had been written out beforehand albeit not by him, how he wished to structure his new will, and the impetus, it seems, for the preparation of a new will was to remove the Public Trustee as the executor and instead put two of his nephews in place.  There is a recording of part of that meeting, which is exhibit 11.  Nothing was signed at that meeting.

Subsequently, the solicitor, Mr Donovan, noted to the family that given the age of the deceased that it might be prudent for a consultation to occur with a general practitioner about capacity.  That in fact did occur, which I will return to, and there was a letter provided by a doctor which Mr Donovan saw before the will was signed.  The signing of the will happened on the 25th of July 2018.  Mr Donovan attended with a clerk from his office, Emma Woods, at Patrick’s home.  He says that he had simplified the form of the will so that it be as readily understandable by the deceased as possible, that he went through the will with the deceased, he was satisfied that the deceased understood it and had read it, and that it was the will he wanted to make.  The will was executed by Patrick Tehan in the presence of the two witnesses who also executed the will as witnesses in front of Patrick Tehan and each other.  Mr Donovan took the original will with him.

It is an admitted fact that the deceased died without having altered or revoked that 2018 will.  I am satisfied by that evidence that the 2018 will was duly executed.  I am also satisfied that the will is rational on its face.  In that respect the deceased was an elderly man who had never married and had no children.  His family in 2018 comprised his brother John, his sister-in-law Gloria and their four children, Luke, Damien, Benjamin and Deidrie-Anne.  The 2018 will provided that one-third of the deceased’s estate was to go to his brother John and sister-in-law Gloria.  That clause operated such that if one of them deceased the other would receive the whole third of the estate so that, in the circumstances where John died later in 2018, the 2018 will operates so that Gloria will receive one-third of the estate.

The two-thirds of the estate was to be shared equally between the niece and nephews, four of them in total, so one-sixth of the estate each.  That is about 16 per cent to each of the nephews and niece.  The previous will which was dated the 24th of August 2015 had provided that the whole of the estate was to go to the brother, John, and in the event of his death, which is in fact what did actually occur, there were to be substitute beneficiaries, being 60 per cent to the sister-in-law, Gloria, and 40 per 
cent equally to the niece and nephews as above. Being four of them, they would have received under that will 10 per cent each.  The previous will of the 18th of June 2013 provided that the whole of the estate was to go to the brother, John, and in the circumstances of his death the substitute beneficiaries were the children of John.

There is no evidence that any of those wills was revoked by the deceased except by the making of a later will.  Each of the three wills in terms is not dissimilar.  The testator sought to benefit his only family that he has had; his brother, sister-in-law, and niece and nephews.  There is no evidence to suggest that any of the nominated beneficiaries is not a logical beneficiary of the estate or that how the wills treat all the niece and nephews equally is not rational.  Given my findings that the 2018 will is both rational and was duly executed presumptions arise that the testator knew and approved the contents of the will, and that the testator had testamentary capacity.  The evidentiary onus would then fall on the defendant to displace the presumptions by evidence of circumstances casting doubt on the capacity of the deceased or his knowledge and understanding of the will.

As I have indicated, in closing submissions by the defendant it now seems accepted that the 2018 will is the proper will and that the testator had testamentary capacity.  But, because it has been in issue up until now, I am going to consider the evidence in the case about testamentary capacity.  To displace the presumptions that I have mentioned mere assertions are insufficient.  The defendant in this case to impeach the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator.  There is no evidence of acts that would displace the presumptions in this case.

The cause of death recorded on the death certificate is:  1(a), pneumonia, I note that the duration of that illness is said to be days on the certificate; 1(b), advanced prostate cancer, the duration of which is noted on the death certificate as being months; and then, 2, urinary sepsis, dementia, the duration of which has not been specified on the death certificate.  It is not clear that the dementia was a separately existing condition or was associated with the urinary sepsis.  The way the death certificate is drafted with them under one item number it seems more likely that the dementia was associated with the urinary sepsis rather than being some separate underlying condition.  Either way, though, the death certificate is not compelling evidence that there was any lack of testamentary capacity in the deceased some three years prior on the 25th of July 2018, noting that the date of death is approximately three years later on the 12th of July 2021.

Further, in terms of the evidence that might go towards testamentary capacity, Exhibit 9 is an extract of the records from the Windsor Medical Centre showing a consultation with Dr Hossain on the 19th of July 2018, some six days before the 2018 will was executed.  The purpose of the consultation included obtaining a letter from the doctor regarding the deceased’s ability to make a will.  The extract shows that the letter was provided and given to the deceased’s niece.  An over-75 year old annual health assessment was also done.  There is nothing in the records showing any concern about the deceased’s mental capacity at the time, nor on the other recorded 
dates of the 14th of August 2018, the 2nd of July 2019, and the 4th of November 2019, which form part of the exhibit.

Exhibit 10 comprises the letter from Dr Hossain dated the 19th of July 2018 that relevantly provides:

This is to certify that today I have examined Mr Patrick Joseph Tehan aged 87 years nine months for an opinion and management.  His memory looks normal, and he is capable of making decisions on his new will.

Dr Hossain was not subpoenaed to give evidence and there has been no proper challenge to the opinion expressed by him.  There is also evidence both from Ms Cullen and Mr Donovan about the deceased wishing to make the will in the terms that he did in 2018.  That includes Exhibit 11, a recording in which he identifies how he wishes his estate to be split, and I have detailed the two meetings that Mr Donovan had with the deceased.  Accordingly, I am not satisfied that there is evidence of circumstances displacing the presumptions and accordingly the Court will declare the validity of the 2018 will.

Turning then to the defendant’s possession of the property.  The plaintiffs also claim orders for possession of 25 Ada Street, Windsor, and mesne profits for the defendant’s occupation of that property.  The evidence of the plaintiffs is that since the death of the deceased the defendant has continued to reside at the property and has refused to vacate the property.  The defendant has not paid any rent for his use of the property since the death of the deceased.  These matters were admitted pursuant to a notice to admit facts.  There has been no evidence that would support any right of the defendant to remain in the property, whether rent-free or otherwise, after the deceased’s death.

Insofar as paragraph 11 of the defendant’s defence pleads an agreement permitting the defendant to live in the property rent-free in perpetuity, during the trial I have been at pains to explain to the defendant that what is contained in his defence or said from the bar table is not evidence, that the Court will only act on evidence, and how the defendant can adduce evidence, including by getting in the witness box himself.  No evidence of the pleaded agreement has been adduced by the defendant and so the allegation of an agreement is unsupported and therefore rejected.

Insofar as the defendant inserts that he was entitled to live at the property rent-free or otherwise, because the executors, or perhaps more properly one of the executors and his sons, intended at some point to develop the property or perhaps it might be suggested although it has not expressly, that there was some entitlement to live in the property until this proceeding was resolved, I reject any such argument.  Neither is a proper basis for the defendant’s refusal to vacate the property.  

Mesne profits are damages for trespass and are ordinarily calculated as the open market value of the rental of the premises.  The plaintiffs have obtained an expert valuation report prepared by a registered valuer, Alex Payne of Heron Todd White.  There is no competing valuation evidence.

In the cross-examination of Mr Payne, the defendant appeared to contend that, first, the condition of the upper floor was worse than the lower floor which the valuer was only able to inspect and, second, the property could not have been rented in its current condition, for example, because of rusted-through back stairs, an inoperable stove top, and holes in the wall.  In submissions the defendant also appeared to rely upon the fact that because of the poor condition of the property the executors would have had to spend money on the property in order to get it up to a rentable condition, and that an appropriate amount of rent for the property would in fact only be $200 a week if the property was rentable at all, the defendant contending that because of the state of the property it could not have been rented for any amount.

I have looked at the photographs that have been submitted by the defendant into evidence as to the condition of the property but ultimately I accept Mr Payne’s evidence that the property is rentable even its current poor condition and that the market rental value of the property through the relevant period would have been rental of $460 per week from the 12th of July 2021 to the 8th of September 2021, $520 per week from the 9th of September 2021 to the 8th of September 2022, and $560 per week from the 9th of September 2022 to the present.

Whilst I accept that the valuer’s valuation for the rent of the property is in its current condition I think that in reality the return to the plaintiffs might have been somewhat less, bearing in mind that the rental might not have been achieved, there was the potential for agents’ fees to be incurred, if the property was on the open market there would have been periods that the property may have been vacant in between tenants or when repairs were being undertaken, and there could have been necessary expenditure on the property that would need to be incurred to allow a rental to occur.

I intend to account for such matters by decreasing the amount to be awarded in respect of mesne profits and the interest on same pursuant to section 58 of the Civil Proceeding Act 2011 (Qld) to the date of judgment.  Given those matters are not matters that I can assess with any great particularity, I intend to award a total of the mesne profit and interest to the date of judgment at a flat $50,000.

Turning then to the defendant’s counterclaim.  In terms of the relief sought by the defendant in his prayer for relief in the counterclaim I decline to move the claim against the defendant to the Magistrates Court.  The proceeding has been filed in the correct Court and I have and will determine the claim.  Second, I have rejected the submission or the pleaded case that the defendant lacked testamentary capacity to make the 2018 will and have indicated that the Court will grant probate of that will.  Third, the deceased did not die intestate.  The will is to be administered according to its terms.  And fourth, the Court has issued all subpoenas that have been requested by the defendant, nothing is outstanding in that regard, and the Court will consider the costs of the whole of the proceeding shortly.  The counterclaim is dismissed.

The Court will make orders in terms of paragraphs 1 to 5 of the plaintiffs’ draft judgment, save that the amount in paragraph 4 is to be $50,000.  I consider that it is appropriate that the judgment for the mesne profit and interest be deducted from the 
defendant’s interest in the estate of the deceased.  I have been assisted by reference to the New South Wales case of Richardson v Richardson [2021] NSWSC 353, a decision of Chief Justice in Equity Ward where she made orders of that nature in that proceeding.  It seems to me entirely equitable that an order of that nature be made, so I will make orders consistent with the judgment for the mesne profit and interest to be deducted from the defendant’s interest in the estate of the deceased.

The plaintiff applies for costs of the proceeding against the defendant on an indemnity basis and that those costs be deducted from the defendant’s share of the estate of the deceased.  Exhibit 12 is a bundle of correspondence which shows that on the 14th of April 2023 the plaintiffs made an offer to the defendant pursuant to Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) offering to compromise.  It is plain from the terms of the offer, which was not accepted by the defendant, that it is an offer no less favourable to the plaintiffs than the plaintiffs have now achieved by reason of my judgment.  I am satisfied that the plaintiffs were at all material times willing and able to carry out what was proposed in the offer.

In those circumstances Rule 360 of the Uniform Civil Procedure Rules requires that the Court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.  The defendant has submitted that there is circumstances that mean it is appropriate to award costs only on the standard basis rather than the indemnity basis.  He points to the fact that he says the plaintiffs refused to provide certain material about finances and testamentary capacity and refused to engage in negotiations earlier in the proceedings.  I do not consider that they are circumstances that show another order for costs is appropriate.

Once the due execution of the will was established, which it was, the onus was on the defendant to show that there was some reason effectively to doubt testamentary capacity, and that just never rose to the requisite level.    The offer should have been accepted and the consequences are that Rule 360 does require that I order costs on an indemnity basis.  Accordingly, I am going to amend order 6 of the proposed draft judgment to say:

The defendant pay the plaintiff’s costs of the proceeding on the indemnity basis to be deducted from the defendant’s share of the estate of the deceased.

Order 7 is an appropriate order which provides that:

Otherwise, the plaintiff’s costs of the proceeding be paid from the estate of Patrick Joseph Tehan (deceased) on the indemnity basis.

That is just stock standard insofar as estate matters are concerned.  I order judgment in terms of the draft, so it has got amendments to paragraph 4, where I have inserted just $50,000, and the amendment I have just indicated to paragraph 6, but otherwise I give judgment in terms of that amended draft.