Aspland v Tsakalakis
[2012] WASC 35
•6 FEBRUARY 2012
ASPLAND -v- TSAKALAKIS [2012] WASC 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 35 | |
| Case No: | CIV:2831/2010 | ON THE PAPERS | |
| Coram: | EM HEENAN J | 6/02/12 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Grant of probate in solemn form of will dated 12 August 1994 | ||
| B | |||
| PDF Version |
| Parties: | STEVEN PETER ASPLAND ANGELO TSAKALAKIS DIANA TODD MICHAEL WRIGHT JULIE MACKERTICH COLIN WRIGHT BELINDA TODD KURSTIN ELIZABETH WRIGHT COURTNEY SARAH WRIGHT MITCHELL JAMES WRIGHT CHRISTOPHER GRAYDEN ASPLAND SEAN GRAYDEN ASPLAND RONALD WILLIAM LOWTH STUART WILLIAM LOWTH GLENN ROBIN LOWTH NICOLE ANN MAILES |
Catchwords: | Probate and administration Proof of will in solemn form Subsequent will made by testator lacking testamentary capacity Undefended action |
Legislation: | Wills Act 1970 (WA) |
Case References: | Butterworth v Woods [2010] WASC 176 Hoare v Reyburn [2010] WASC 301 McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434 Re Grey Smith (dec) [1978] VR 596 Re Hampshire [1951] WN 174 Re Levy (dec) (No 2) [1957] VR 662 Sawyer v McKenzie [2011] WASC 215 Scarpuzza v Scarpuzza [2011] WASC 65 Thornhill v Thomas [2010] WASC 297 Welch v Phillips (1836) 1 Moo PC 299; 12 ER 828 Wheatley v Edgar [2003] WASC 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ANGELO TSAKALAKIS
First Defendant
DIANA TODD
MICHAEL WRIGHT
JULIE MACKERTICH
COLIN WRIGHT
Second Defendants
BELINDA TODD
KURSTIN ELIZABETH WRIGHT
COURTNEY SARAH WRIGHT
MITCHELL JAMES WRIGHT
CHRISTOPHER GRAYDEN ASPLAND
SEAN GRAYDEN ASPLAND
Third Defendants
RONALD WILLIAM LOWTH
Fourth Defendant
- STUART WILLIAM LOWTH
GLENN ROBIN LOWTH
NICOLE ANN MAILES
Fifth Defendants
Catchwords:
Probate and administration - Proof of will in solemn form - Subsequent will made by testator lacking testamentary capacity - Undefended action
Legislation:
Wills Act 1970 (WA)
Result:
Grant of probate in solemn form of will dated 12 August 1994
Category: B
Representation:
Counsel:
Plaintiff : Ms C F Holyoak-Roberts
First Defendant : No appearance
Second Defendants : No appearance
Third Defendants : No appearance
Fourth Defendant : No appearance
Fifth Defendants : No appearance
Solicitors:
Plaintiff : Curthoys & Co
First Defendant : No appearance
Second Defendants : No appearance
Third Defendants : No appearance
Fourth Defendant : No appearance
Fifth Defendants : No appearance
Case(s) referred to in judgment(s):
Butterworth v Woods [2010] WASC 176
Hoare v Reyburn [2010] WASC 301
McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434
Re Grey Smith (dec) [1978] VR 596
Re Hampshire [1951] WN 174
Re Levy (dec) (No 2) [1957] VR 662
Sawyer v McKenzie [2011] WASC 215
Scarpuzza v Scarpuzza [2011] WASC 65
Thornhill v Thomas [2010] WASC 297
Welch v Phillips (1836) 1 Moo PC 299; 12 ER 828
Wheatley v Edgar [2003] WASC 118
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1 EM HEENAN J: This is an action seeking probate in solemn form of law of a will made by Eric Edgecumbe Rendle (dec) dated 12 August 1994. The affidavit reveals two testamentary documents purported to have been made by the deceased. The first is the will dated 12 August 1994, which is propounded by the plaintiff in this action. The second is another later purported will, dated 14 August 2002 which, so it is submitted, was made at a time when the deceased did not have full testamentary capacity and for that reason is not valid. No person named as executor or beneficiary in that later will is seeking to prove it or to claim any benefit under it.
2 The relationship of each of the defendants to the deceased and the interests provided for them by each of the two wills are described more fully later. By an order made by a Registrar at a case management conference on 8 June 2011 it was directed that the action should be set down for trial on an undefended basis pursuant to Rules of the Supreme Court O 73 r 17 and that evidence at the trial be adduced by affidavit. With the consent of the plaintiff, the court has determined the action on the papers without the need for any oral evidence or appearance by counsel. The matter had been listed for trial on 27 January 2012 and is to be taken as being heard, in the sense that all the evidence was then put to the court, on that date with this decision to follow.
The deceased
3 Eric Edgecumbe Rendle, late of Anchorage Aged Care Facility, 340 Anchorage Drive, Mindarie, Western Australia, died on 8 July 2010. He was then aged 83 years, having been born on 29 August 1926 in Perth, Western Australia. In his death certificate his occupation is recorded as a medical equipment supplier but he had been retired for many years before his death. He was a bachelor, never having been married, and he had no children or adopted children. The cause or causes of his death as recorded on his death certificate are dementia, with contributory causes of depression, anaemia, congestive cardiac failure and renal failure.
Parties
4 Affidavits of service of the writ of summons or of notice of the writ of summons on each of the defendants have been filed. All of the defendants except Stuart William Lowth , Glenn Robin Lowth and Nicole Anne Mailes have entered appearances in the action. All the defendants, including the last three named who have not entered appearances, have also filed notices stating, respectively, that he or she will not participate at
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- the hearing of the action and will abide by the decision of the court. Only the plaintiff, by counsel, made submissions for the hearing.
5 The first defendant, Mr Tsakalakis, is a specific legatee under the first will. The second defendants are the sole devisees of the house and land of the deceased at Redfern Street, North Perth, as provided by both wills. The third defendants are the six residuary beneficiaries named in the first will (subject to the expansion of that class by further children born to their parents before the death of the deceased - which did not eventuate) and six of the nine residuary beneficiaries under the second will. The fourth defendant is the primary executor named in the second will and, finally, the fifth defendants are the remaining three residuary beneficiaries under the second will, together with the six third defendants.
Details of estate
6 A statement of assets and liabilities of the deceased complying with Non-Contentious Probate Rule 9B has been annexed to an affidavit of the plaintiff sworn 9 November 2010. This shows that at the date of death the estimated net value of the deceased's estate was $2,242,970.76. This consists of the house and land in Redfern Street in North Perth, estimated to be worth $800,000, a portfolio of investments valued at over $994,000, an Aged Care Facility Accommodation Bond of nearly $250,000, an insurance policy with a payout value of over $185,000 and some relatively small bank accounts, both in credit. Mr Edgecumbe's only liabilities were his funeral expenses of $3,421.
7 No previous application for a grant of probate or other representation of the estate of Mr Rendle has been made either in the non-contentious jurisdiction or in the contentious jurisdiction. An internal check conducted by the court has revealed that no caveat against a grant of probate has been lodged in the Probate registry. The plaintiff has deposed that he is over the age of 18 years and that if he obtains a grant of probate of the will being propounded he will administer the estate of Mr Rendle according to law.
Preparation of the will of 12 August 1994
8 Although no name of any solicitor appears on its face, this will was prepared by Mr Rendle's solicitors on his instructions and is in conventional form signed by the testator and by two attesting witnesses in his presence as confirmed by a conventional attestation clause. The two witnesses are Ms C M Borowicz, a secretary, and Mr D O D Price, a solicitor. From all appearances, this document complies with the
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- formalities required by s 8 of the Wills Act 1970 (WA). An affidavit of Mr D O D Price, solicitor, one of the subscribing witnesses, and dated 9 December 2010, confirms the due execution of this will.
9 The plaintiff, Steven Peter Aspland, is the sole executor named in the 1994 will subject to him surviving the deceased, not renouncing his entitlement to obtain probate of the will or dying without having proved it, in which case a substitute executor, Peter Grayden Aspland, is named as the sole substitute executor. The plaintiff has, of course, survived the deceased and, by this action, is seeking proof of that will.
10 Mr Steven Peter Aspland is by occupation a financial advisor having been working in financial planning since 1983 and taken over his present business from his father. In his affidavit of 11 August 2011, Mr Aspland deposes that he first met Mr Rendle about 20 years ago through his financial planning business and has been assisting Mr Rendle with his financial affairs since the late 1980s until his death. The relationship commenced solely with Mr Aspland providing financial advice but, as the years went by, Mr Aspland got to know more about Mr Rendle and was told by him that the deceased had no close family in Western Australia. It was part of Mr Aspland's business practice to discuss with his clients whether or not they had a will and, if not, to recommend that appropriate arrangements be made. He remembers having such a discussion with Mr Rendle in about 1994 and, on learning that he did not have a will, making arrangements, with Mr Rendle's approval, for him to meet Mr David Price, the solicitor who had offices nearby. Acccording to Mr Aspland, Mr Rendle and Mr David Price met in the plaintiff's absence and the will of 12 August 1994 came to be prepared and executed.
11 Having come to know Mr Rendle well over a long time, Mr Aspland noticed that Mr Rendle's mental state deteriorated particularly towards the late 1990s. Mr Aspland deposes that he first became aware of a decline in Mr Rendle's mental health when in the late 1990s Mr Rendle told him that his car had been stolen. About two weeks later, the police had contacted him saying that it had been found. At that point, it was discovered that Mr Rendle had parked his car and forgotten where he had left it. In the meantime, at Mr Rendle's request, Mr Aspland had organised for the purchase of another car for him.
12 There were other similar episodes when the deceased 'lost' his car. According to Mr Aspland, this would usually occur when Mr Rendle had been to the shops and, not being able to find his car afterwards, thought that it had been stolen. On these occasions, Mr Rendle would telephone
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- Mr Aspland, who would pick him up and drive around the streets nearby and eventually find the car. According to Mr Aspland, this happened two or three times over about a two-year period.
13 Towards the late 1990s Mr Aspland began to assist Mr Rendle with menial financial tasks. Mr Rendle would often telephone Mr Aspland and tell him that some accounts had arrived and would ask what should be done with them. Mr Aspland would tell him that they had to be paid and how to go about paying them. In addition, Mr Aspland asked his family to provide assistance to help with Mr Rendle's household and garden maintenance because he could not manage those activities himself. As a result, Mr Aspland and his family often visited Mr Rendle at his home but, as described by Mr Aspland, there were certain sections of the house that they were not allowed to enter because Mr Rendle had left them as they were on the day his mother had died. Calendars had not been changed and clocks had not been reset. Mr Aspland describes those parts of the house as representing a shrine to Mr Rendle's mother. The deceased primarily lived in the kitchen area and a bedroom at the back of the house.
14 Mr Aspland recalls that since the late 1990s Mr Rendle was in the habit of doing unusual things with his finances which raised questions for Mr Aspland as to his capacity. One example given is that on 3 April 2000 Mr Rendle wrote a cheque from his deceased mother's cheque book to purchase a television set, yet his mother had died in the late 1980s.
15 In early 2000 Mr Aspland suggested to Mr Rendle that he should have an enduring power of attorney and appoint a niece or nephew as his attorney. Mr Aspland suggested this because he had noticed a decline in Mr Rendle's mental health and was concerned that he would decline further to a point where he would be unable to control his affairs. However, according to Mr Aspland, Mr Rendle refused his suggestion because he was reluctant to have his family involved.
16 It was about this time in early 2000 that Mr Aspland felt that Mr Rendle was no longer capable of looking after himself properly. He gives some examples of eccentricities and obsessions, the details of which need not be mentioned.
17 Some time in early 2000 Mr Rendle discussed with Mr Aspland his desire to change his will. The reason he gave was that a main beneficiary had died and that he had lost contact with another. Some years before this discussion Mr Aspland had introduced Mr Rendle to Mr Ronald Lowth,
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- accountant, whose office was nearby. This was in order to assist with the deceased's taxation affairs. It was on 14 August 2002 that the later will of the deceased was made appointing Mr Ronald William Lowth as sole executor and trustee, with Mr Steven Peter Aspland as substitute executor should Mr Lowth predecease him, renounce probate or die without obtaining a grant. The detailed circumstances leading to the preparation and execution of the second will are described later.
18 Returning to the historical account as given by Mr Aspland, he deposes that after early 2000 he noticed a steady decrease in Mr Rendle's mental capabilities. According to Mr Aspland, Mr Rendle would sometimes appear confused. Mr Aspland has produced an extract from a journal kept by the deceased at this time which shows, among other things, repetitive entries to make phone calls, one page of which, bearing date 26 September 2002, shows unmistakable signs of confusion.
19 In 2001 Mr Rendle failed his driving test. Mr Aspland took him back to do it again and deposes that, although Mr Rendle was ultimately able to pass the test, the plaintiff observed that he was not good at driving. He would drive slowly, cut corners and hit kerbs, leading Mr Aspland to advise him that he should only drive if necessary and then only to the local shops.
20 Mr Aspland deposes to a conversation which he had with Mr Rendle in 2002 in which the deceased informed him that Mr Ronald Lowth had recently taken care of the changes to his will and that a new will had been completed. According to Mr Aspland, before and after that discussion, Mr Rendle was confused, did not know what to do with his accounts, did now know what his accounts were for and had to ask the plaintiff what to do. Mr Aspland did not see Mr Lowth again after he completed the deceased's second will in 2002.
21 Mr Aspland continued to handle Mr Rendle's financial matters as well as attend to the maintenance of his household and general enquiries.
22 On 10 November 2003 Mr Rendle underwent an ACAT assessment due to having been hospitalised. During September 2003 Mr Aspland had to attend a conference in Christchurch, New Zealand, from 13 to 17 September, and before leaving he visited Mr Rendle and noticed that his hands were swollen and that he did not look well. To Mr Aspland, Mr Rendle appeared confused but did not want to go anywhere or to seek medical help. In the circumstances, Mr Aspland rang his doctor and arranged for a house visit. Two days later, after he had arrived in
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- Christchurch, Mr Aspland telephoned Mr Rendle's doctor, to be informed that he had a heart condition and was suffering renal failure. Over the following days, again from Christchurch, Mr Aspland tried to contact Mr Rendle by telephone but he did not answer. He tried to arrange for Silver Chain to visit but they could not do so and, eventually, he arranged for his brother-in-law to visit. The deceased did not answer the door, so the brother-in-law rang the police, who organised an ambulance to take Mr Rendle to hospital.
23 On Mr Aspland's return from Christchurch, Mr Rendle was in hospital and it was during that period that the ACAT assessment was conducted, resulting in him being assessed as very confused and having a score below the cut-off score for dementia syndrome. According to an ACR test conducted on 13 November 2003, Mr Rendle exhibited regular short-term memory problems, wandering and disorientation in time and place. That record also states that Mr Rendle presented with a perforated duodenal ulcer, pelvic abscess and confusion. He was assessed as being unable to sign the proposed application for access for residential aged care or respite care because of confusion. As a result, the hospital authorities recommended that Mr Rendle have secure dementia low level care. According to Mr Aspland, the conduct and appearances of the deceased, both mentally and physically at the time at the ACAT assessment weremuch the same as they were at the time the second will was made in 2002, although in November 2003 his physical condition had deteriorated.
24 Following the ACAT assessment in November 2003, Mr Rendle's consulting general medical practitioner asked the plaintiff whether he would agree to make an application to the State Administrative Tribunal for the appointment of an administrator for Mr Rendle. He eventually did so but, first, he met Mr Rendle's niece, Diana Todd, and his nephew, Colin Wright, which led to an agreement with the family that Mr Aspland should accept the role as administrator provided that the deceased's nephew, Colin Wright, would act jointly with him. They both made an application to the SAT to be appointed as joint administrators on 12 January 2004, which was filed at the SAT on 14 January 2004.
25 A hearing was conducted by the SAT in the exercise of its role as the Guardianship and Administration Board on 27 February 2004, at which Mr Rendle himself attended. Mr Aspland was present. He deposes that Mr Rendle was asked questions by the panel and told them that he did not know where he lived. According to Mr Aspland, Mr Rendle then said that he thought he lived in Subiaco (which was a prior business address some
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- 10 years earlier) but in fact he lived in North Perth. He also said that he worked when, in fact, he had been retired for over 10 years.
26 The SAT made an order following that hearing appointing Mr Aspland and Mr Colin Wright as joint administrators. A review hearing was conducted on 7 April 2009 which reappointed them both as administrators subject to further review on 7 April 2014.
The will of 14 August 2002
27 The original of this will cannot be found but photocopies of it have been produced showing that, although not prepared by a solicitor, it is in conventional form and appears to have been duly executed and subscribed by two attending witnesses and containing a conventional attestation clause.
28 Mr Ronald William Lowth is the sole executor named in this will. By his affidavit, sworn on 27 January 2012, he deposes that he was Mr Rendle's accountant for a number of years before his death, having been introduced to the deceased by his financial advisor, Mr Steven Peter Aspland. Mr Lowth said that he used to see Mr Rendle about once a month to once every two months and would occasionally assist him paying his bills when he requested assistance. According to Mr Lowth, Mr Rendle discussed with him in 2002 a desire to make changes to his will. Mr Lowth explained that the request came about as a result of Mr Rendle indicating to him that he, Rendle, was unhappy with Mr Aspland. Mr Lowth recalls that Mr Rendle's unhappiness arose from some papers which he received from time to time, being letters and information from Mr Aspland about the deceased's investments and financial matters. Occasionally, Mr Rendle would discuss these letters with Mr Lowth, who says that at the time of these discussions about changing his will Mr Rendle was having trouble in understanding this correspondence. When Mr Lowth and Mr Rendle discussed the correspondence, Mr Lowth says that the deceased did not understand the reports and was misinterpreting them. As a result, Mr Rendle informed Lowth that he, Rendle, was suspicious of Mr Aspland when, in fact, it was apparent that he simply did not understand the documents. Mr Lowth thought at the time that the issue with Mr Aspland would blow over because it did not appear to him to be 'a big drama'. However, it did not, and Mr Lowth describes how Mr Rendle wanted Mr Aspland removed from the will.
29 As Mr Rendle's accountant, Mr Lowth was aware of the deceased's assets. He remembers that Mr Rendle told him on one occasion some
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- time before changing the will that he had a sister and that she had children.
30 According to Mr Lowth, he spoke to Mr Rendle about the latter's assets, but does not recall the specific details of the discussions. He also had discussions with Mr Rendle about his wishes regarding his will, but the deceased did not then discuss his sister or her children.
31 According to Mr Lowth, Mr Rendle instructed him that he wanted Mr Aspland removed from the will and for Mr Lowth's children to be included. Mr Lowth told Mr Rendle that it was silly to include his children. Mr Rendle had only met one of Mr Lowth's children, his daughter Nicole, once and had never met his other children. Nevertheless, Mr Rendle insisted, so Mr Lowth prepared the will according to Mr Rendle's instructions.
32 Mr Lowth has deposed that Mr Rendle's demeanour before and at the time of signing the second will of 14 August 2002 was erratic. Mr Lowth observed that when Mr Rendle failed his driver's licence test in about 2001 the deceased had told him that he failed because he hit a kerb, saying that it was not his fault and how was he to know that a kerb was there. Mr Lowth also has deposed that the deceased was forgetful and did not understand the papers that Mr Aspland was sending to him and required assistance with paying his bills. In his view, Mr Rendle's age was catching up with him.
33 Mr Lowth has also deposed that after the August 2002 will was signed he kept the original. In 2003 Mr Lowth was contacted by Mr Colin Wright (a nephew of the deceased) and, as far as Mr Lowth can recall, he gave Mr Wright all of the deceased's documents, including his past tax returns and the original will. Mr Lowth had nothing further to do with Mr Rendle after 2003 but was contacted by Mr Colin Wright in 2010 to be told that Mr Rendle had passed away. Other enquiries have failed to locate the original of the 2002 will and it is thought that it may have become lost or was destroyed. However, apart from any inference which might arise from the fact that the original is missing, there is no evidence to establish that the will was destroyed or destroyed with an intention of revocation. In any event, by 2003 the evidence points to a lack of capacity by Mr Rendle to exercise validly the power of revocation. Even more so, it points to a lack of testamentary capacity at the time the second will was executed.
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34 The need for an animus revocandi before a will which has been destroyed or gone missing can be treated as revoked is well established - s 15 of the Wills Act; Re Hampshire [1951] WN 174; and Butterworth v Woods [2010] WASC 176 [33] - [34]. Nor does the rebuttable presumption that a lost or missing will has been destroyed by the testator with the intention of revoking it apply unless it can be established that the will was last known to have been in the testator's possession - Welch v Phillips (1836) 1 Moo PC 299; 12 ER 828; McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434; and Sawyer v McKenzie [2011] WASC 215 [33] - [38].
35 In the present case the evidence is that original of the second will remained in the possession of Mr Lowth until, so he believed, it was delivered along with other papers to the testator's nephew, Mr Colin Wright. It is possible Mr Lowth may be mistaken about the delivery of the document to Mr Wright, but the evidence is not consistent with the original document being in the possession of the testator and, if it were not, there could have been no possibility of destruction of the will by him or by another at his direction and in his presence as required by s 14 of the Wills Act. Accordingly, I do not consider there is any basis upon which to infer that the 2002 will was ever revoked by the testator and that has not been suggested.
The terms of the will of 12 August 1994
36 This is the will prepared on instructions given by Mr Rendle to the solicitor, Mr David Price. As already observed, it is in conventional form duly executed and witnessed with a standard form attestation clause - as to the significance of an attestation clause see Scarpuzza v Scarpuzza [2011] WASC 65 [32] - [37]. It appoints the plaintiff, Mr S P Aspland as the sole executor and trustee, with a substitute appointment of Mr P G Aspland should the former predecease the testator, renounce or die without obtaining a grant.
37 There is then a series of legacies and specific devises. Mr Rendle left a legacy of $100,000 to a Mr Roger Cockerill (not a party to this action) and a legacy of $2,000 to Mr Tsakalakis, the first defendant. He then devised his house at 88 Redfern Street, North Perth, to such of his nieces and nephews, Diana Todd, Michael Wright, Julie Mackertich and Colin Wright (the second defendants) as should survive him as tenants in common in equal shares.
38 Then follows a residuary devise and bequest of the whole of the remaining estate to be held on trust for such of the following beneficiaries
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- as should survive the testator and attain the age of 21 years as tenants in common in equal shares, namely, Belinda Todd; Kurstin Elizabeth Wright; Courtney Sarah Wright; Mitchell James Wright; Christopher Grayden Aspland; Sean Grayden Aspland; and to such other children as should during the testator's life be born to Steven Peter Aspland and his wife, Susan Joyce Aspland whilst they are married. The first six persons named are the third defendants in the action and there is no evidence of any further children having been born to their parents, the plaintiff and his wife, Susan Joyce Aspland.
39 The will then contains provisions to the effect that if any of the residuary beneficiaries should predecease the testator or die before attaining a vested interest, leaving a child or children who should survive the testator and attain the age of 21 years, then such child or children should take, and if more than one in equal shares as tenants in common, the share which his, her or their parent would have taken had he or she survived the testator to attain a vested interest under the will. That provision is followed by a series of additional powers and discretions enabling the trustee to raise the expectant share of any infant beneficiary towards the maintenance, advancement, education or benefit of such beneficiary; power to mortgage, assign or convert into money the residuary estate and ample powers of investment and other comparable provisions.
40 There is no direct evidence or explanation to account for the absence of the first specific legatee, Mr Roger Cockerill, as a party to the action. However, there is an allegation in the statement of claim that Mr Roger Cockerill predeceased Mr Rendle, although there is no evidence to support that. He may be the beneficiary who died and so prompted Mr Rendle to think about revising his 1994 will. It is unnecessary to explore this possibility in view of the unopposed application for the proof of this will because, in view of the manner in which the proceedings have been conducted, no prejudice will result to Mr Cockerill or to any person or persons claiming through or by him, if any. If, indeed, Mr Cockerill predeceased Mr Rendle, the effect would be that the legacy to him lapsed and became part of the residuary estate. Accordingly, there would be no need for Mr Cockerill or any person claiming by or through him to be joined.
41 This evidence establishes that this will of 12 August 1994 was validly made by the late Mr Rendle, was properly executed and attested, and is a valid testament made by him at a time when there is no reason to doubt his testamentary capacity. The essential question arising in this
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- action is whether or not it is the last valid will of the deceased which, in turn, raises the question of whether or not it was revoked by the later testamentary document of 14 August 2002.
The terms of the will of 14 August 2002
42 The circumstances leading to the preparation of this will and its execution have already been set out and were described in the evidence of Mr Lowth and, to an extent, in the evidence of the plaintiff, Mr Aspland. Again, as already remarked, while this will has been prepared in conventional form, appears to have been properly executed and attested by two witnesses and to contain an attestation clause, it was not prepared by any solicitor but, rather, by the deceased's then accountant, the fourth defendant, Mr Lowth.
43 This will contains an initial clause revoking all former wills and testamentary dispositions previously made and declares the document to be Mr Rendle's last will and testament. It appoints Mr Lowth, the fourth defendant, as the sole executor and trustee but appoints the plaintiff, Mr Aspland, as substitute executor and trustee should Mr Lowth predecease Mr Rendle, renounce probate or die without obtaining a grant.
44 There is then a specific devise, free of all duties or other testamentary expenses, of the testator's house at 88 Redfern Street, North Perth, to such of his four nieces and nephews, the second defendants, namely, Diana Todd, Michael Wright, Julie Mackertich and Colin Wright, as should survive the him as tenants in common in equal shares and subject to the provision that if any of the named devisees should predecease the testator or die before obtaining a vested interest but leaving a child or children who should survive the testator and attain the age of 21 years, then such child or children should take, and if more than one in equal shares as tenants in common, the share of the estate which, otherwise, would have passed to his, her or their deceased parent had he, she or they survived the testator and attained a vested interest in that devise. In this respect, the devise of the house at Redfern Street, North Perth, to the second defendants is to the same effect as the similar devise contained in the 1994 will.
45 This second will contains a general residuary devise and bequest to the trustee of all other property to be held on trust to sell, call in or convert to money subject to the powers and discretions to postpone the sale, calling in or conversion to be held upon trust for such of the following beneficiaries as should survive the testator and attain the age of 21 years and, if more than one, as tenants in common in equal shares but, again,
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- subject to the right of any child or children of a named beneficiary who predeceased the testator or failed to obtain a vested interest to receive the share which the deceased parent would otherwise have received.
46 There are nine named residuary beneficiaries, being: Belinda Todd; Kurstin Elizabeth Wright; Courtney Sarah Wright; Mitchell James Wright; Christopher Grayden Aspland; and Sean Grayden Aspland (all of whom are the third defendants) and, in addition, Stuart William Lowth; Glenn Robin Lowth; and Nicole Ann Mailes. The last three named residuary beneficiaries are the fifth defendants and the residuary gifts to them are additional to the residuary dispositions in the 1994 will. The fifth defendants are, as Mr Lowth explained, his own children and the explanation for them being included has already been set out.
47 The second will then contains similar additional powers for the executor and trustee in terms comparable to those contained in the 1994 will.
Comparison of the provisions of the two wills
48 It is apparent, therefore, that the principal differences between the second will and the first are:
(a) the second will appoints Mr Lowth as primary executor rather than Mr Aspland, who is nevertheless named as substitute;
(b) the second will contains no provision for specific legacies to be paid to Mr Cockerill, or to the first defendant, Mr Tsakalakis or to any other person; and
(c) the residuary disposition in the second will (after making the same disposition of the house and land at Redfern Street, North Perth, to the second defendants) provides for the residue to be distributed among nine named residuary beneficiaries rather than the six named in the 1994 will (disregarding the possibility of further Aspland children being born before the testator's death) and the additional three residuary beneficiaries are the fifth defendants.
49 There is no affidavit from either of the two attesting witnesses to the second will but, as no person is attempting to prove the second will, that is unnecessary.
50 All the persons having any right to apply for probate of the 2002 will or for letters of administration with that will annexed are parties to this action. None has attempted to prove that will or to claim any interest by
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- reason of it. Significantly, the fourth and fifth defendants who may claim a right or interest under the second will but not the first have each filed a notice to abide by the decision of the court, have been served, and have not filed an appearance or entered any defence.
51 Having regard to the evidence, I am satisfied that there is every reason to conclude that because of deteriorating mental capacity by Mr Rendle which had occurred progressively from the late 1990s and which, by 2002, was apparent from his episodes of confusion, lack of comprehension and difficulties in coping with daily activities, particularly his forgetfulness, demonstrate that Mr Rendle did not have requisite testamentary capacity at the time of the execution of the second will and that there is, therefore, no reason to conclude that it is valid. The presumptions of validity which, otherwise, would arise from a testamentary document, apparently rational on its face, duly executed and witnessed with an attestation clause, have been nullified by the evidence of lack of mental capacity.
52 The result, therefore, is that for the 2002 will to be accepted as a valid last testament of the deceased there is an onus of proof to be discharged that it was validly made by a testator with sufficient testamentary capacity at the time. No person having any interest or right to propound that will has attempted to discharge that onus and, having regard to all the circumstances, that is entirely reasonable in view of the evidence pointing to lack of testamentary capacity.
Application to propound the first will
53 This then leaves the question of the role of the court on the application to prove the first will where it has been established that there was a second will about which there are major doubts of the testator's capacity at the time of its execution. This is a subject which has been canvassed in many previous authorities, some of which are recent decisions of this court, including Wheatley v Edgar [2003] WASC 118.
54 The cases support the following propositions. The propounder of an earlier will is not under any duty to establish that a later will is invalid or has no effect: Hoare v Reyburn [2010] WASC 301; and Thornhill v Thomas [2010] WASC 297 [15]. The onus of proving a later will rests upon any person seeking to propound it - Re Grey Smith (dec) [1978] VR 596 and Thornhill v Thomas. An executor named in a will is under no duty to propound that will if he is not satisfied that it should be proved, but if and when he does propound a will, even a penultimate will, then he is entitled to put forward only evidence that is in its favour -
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- Re Levy (dec) (No 2) [1957] VR 662, 665. Similarly, the court is under no duty to satisfy itself by an independent investigation of the validity of some other later will - Re Levy (665). As observed by Murray J in Re Grey Smith, the position is that where an executor established circumstances giving rise to a well-founded suspicion that a later testamentary document does not represent the true will of a capable testator then, provided that notice has been given to all interested parties and none has come forward to propound the later document, the court should ignore the later document. In the present case, not only has no person with any interest sought to prove or claim under the second will, but the evidence establishes circumstances giving rise to a well-founded suspicion as to lack of testamentary capacity at the time of the later will - see Re Grey Smith.
55 For these reasons, therefore, I am satisfied that the will of Eric Edgecumbe Rendle made 12 August 1994 is his last valid testament and has not been revoked and that, accordingly, the court should declare that the plaintiff is entitled to a grant of probate in solemn form of law of that will. The formal grant should be settled by a Probate Registrar and there will be liberty to apply to this court to settle any question relating to the terms of the grant.
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