Banyard v Duirs
[2013] WASC 146
•24 APRIL 2013
BANYARD -v- DUIRS [2013] WASC 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 146 | |
| 24/04/2013 | |||
| Case No: | CIV:3073/2009 | 9 APRIL 2013 | |
| Coram: | EM HEENAN J | 9/04/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff entitled to a grant of probate in solemn form of law will of deceased dated 23 April 1998 | ||
| B | |||
| PDF Version |
| Parties: | ANNE FRANCES BANYARD ERIC ANDREW DUIRS STEPHEN GERARD BAKER as Administrator of the Estate of BILINDA JANE DUIRS deceased ADAM PAUL DUIRS JACQUELINE ANN LANG CHRISTINE LEE DUIRS KIMBERLEY LEE DUIRS By her Guardian ad litem The Public Trustee MICHAEL ROBERT DUIRS By his Guardian ad litem The Public Trustee JESSICA CLAIRE DUIRS By her Guardian ad litem The Public Trustee Stephanie Maree DUIRS By her Guardian ad litem The Public Trustee THE PUBLIC TRUSTEE As Personal Representative of the Unborn Children of Eric Andrew DUIRS |
Catchwords: | Will Probate Application for probate of will in solemn form Allegation of lack of testamentary capacity Challenge to will later withdrawn Requirements for proof |
Legislation: | Administration Act 1903 (WA) Wills Act 1970 (WA) |
Case References: | Bailey v Bailey (1924) 34 CLR 558, [1924] HCA 21 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 In the Goods of Morant (1874) LR 3 P&D 151 Martin v Fletcher [2003] WASC 59 Re Clout & Frewer's Contract [1924] 2 Ch 230 Scarpuzza v Scarpuzza [2011] WASC 65 Tsaknis v Lilburne [2010] WASC 152 Wheatley v Edgar [2003] WASC 229 Worth v Clasohm (1952) 86 CLR 439, [1952] HCA 67 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ERIC ANDREW DUIRS
First Defendant
STEPHEN GERARD BAKER as Administrator of the Estate of BILINDA JANE DUIRS deceased
Second Defendant
ADAM PAUL DUIRS
Third Defendant
JACQUELINE ANN LANG
Fourth Defendant
CHRISTINE LEE DUIRS
Fifth Defendant
KIMBERLEY LEE DUIRS By her Guardian ad litem The Public Trustee
Sixth Defendant
- MICHAEL ROBERT DUIRS By his Guardian ad litem The Public Trustee
Seventh Defendant
JESSICA CLAIRE DUIRS By her Guardian ad litem The Public Trustee
Eighth Defendant
Stephanie Maree DUIRS By her Guardian ad litem The Public Trustee
Ninth Defendant
THE PUBLIC TRUSTEE As Personal Representative of the Unborn Children of Eric Andrew DUIRS
Tenth Defendant
Catchwords:
Will - Probate - Application for probate of will in solemn form - Allegation of lack of testamentary capacity - Challenge to will later withdrawn - Requirements for proof
Legislation:
Administration Act 1903 (WA)
Wills Act 1970 (WA)
Result:
Plaintiff entitled to a grant of probate in solemn form of law will of deceased dated 23 April 1998
(Page 3)
Category: B
Representation:
Counsel:
Plaintiff : Ms M R Bloch
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Solicitors:
Plaintiff : Merle Bloch
First Defendant : In person
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : In person
Fifth Defendant : Public Trustee (WA)
Sixth Defendant : Public Trustee (WA)
Seventh Defendant : Public Trustee (WA)
Eighth Defendant : Public Trustee (WA)
Ninth Defendant : Public Trustee (WA)
Tenth Defendant : Public Trustee (WA)
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558, [1924] HCA 21
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
In the Goods of Morant (1874) LR 3 P&D 151
Martin v Fletcher [2003] WASC 59
Re Clout & Frewer's Contract [1924] 2 Ch 230
(Page 4)
Scarpuzza v Scarpuzza [2011] WASC 65
Tsaknis v Lilburne [2010] WASC 152
Wheatley v Edgar [2003] WASC 229
Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67
(Page 5)
1 EM HEENAN J: This is an application for proof in solemn form of law of the will dated 23 April 1998 of Edna Frances Duirs who died on 10 December 2001 at the District Hospital, York in the State of Western Australia then aged 86 years. The late Mrs Duirs had two adopted children, a son Thomas Robert Duirs who had predeceased her, and a daughter, Anne Frances Banyard (nee Duirs), the plaintiff. The deceased was also survived by a foster child, the first defendant Eric Andrew Duirs, who, although raised by the deceased from infancy and treated in all respects as a member of the family, was never formally adopted.
Family relationships
2 The plaintiff has one daughter only, Jacqueline Ann Lang, the fourth defendant. The deceased's other adopted child Thomas Robert Duirs died on 21 December 1992, leaving two children - Adam Paul Duirs, the third defendant, and Bilinda Jane Duirs, who herself died later on 25 January 2011. Administration of her estate has since been granted to Stephen Gerard Baker who, in that capacity, is the second defendant. Jaxon Kahn-Baker, born on 12 September 2002, is the only child of Bilinda Jane Duirs and the sole beneficiary of her estate. His interests are represented by Stephen Gerard Baker.
3 The first defendant, Eric Andrew Duirs, the foster son, has five children, Christine Lee Duirs, the fifth defendant; Kimberley Lee Duirs, the sixth defendant; Michael Robert Duirs, the seventh defendant, Jessica Claire Duirs, the eighth defendant, and Stephanie Maree Duirs, the ninth defendant.
4 No representative defendant has been appointed to represent the interests of any unborn children of the plaintiff who may yet be born and be alive at the time the interest under the will in favour of the first defendant determines, but no point has been made about that. I consider the interests of any such children of the plaintiff who are yet to be born are sufficiently protected by the plaintiff herself propounding this will and by doing so agreeing to administer the estate of her late mother according to law and in accordance with the trusts and dispositions established by the will if valid.
5 The affidavit of scripts of the plaintiff sworn 31 March 2010 shows that the deceased made only one will that is the testament being propounded by the plaintiff dated 23 April 1998. This was drawn and prepared by solicitors upon her instructions and duly executed by the testatrix in the presence of two witnesses in the manner and form required by s 8 of the Wills Act1970 (WA). The details of the circumstances
(Page 6)
- giving rise to the instructions for the will, its preparation and execution and the subscription of the signature of the witnesses will be described fully later. The will bears a conventional attestation clause. There was also an earlier draft of a will prepared by solicitors in 1995 but which was never executed.
6 The April 1998 will appoints the first defendant, Eric Andrew Duirs, and the plaintiff, Anne Frances Banyard, as the joint executors and trustees of the will of the deceased. However, the first defendant has declined to apply for probate and, indeed, has opposed grant of probate in common form in the non-contentious jurisdiction by filing an affidavit asserting that the deceased lacked testamentary capacity at the time that will was made. It has been his opposition to grant of probate which has led to these proceedings. That opposition has only recently ceased, leaving this action to proceed on an undefended basis.
7 There has been no formal renunciation by the first defendant of his right to apply for probate under s 32 of the Administration Act 1903 (WA) and he certainly has not disclaimed his interest under this will. Nor has he been cited to take probate. Renunciation of a right to apply for probate will usually be a formal act requiring written renunciation by the named executor concerned to be filed in the Probate Registry and will take effect from the date of filing: In the Goods ofMorant (1874) LR 3 P&D 151 and a failure to appear to a citation to prove or renounce a will is also equivalent to a renunciation. In Scarpuzza v Scarpuzza [2011] WASC 65 [46] – [49] I collected some of the authorities dealing with renunciation including informal renunciation arising from failure to appear or from implication arising by conduct which sufficiently indicates a refusal to accept. The question of whether mere inaction on the part of the person named as executor justified a conclusion of renunciation was addressed in Re Clout & Frewer's Contract [1924] 2 Ch 230 where inaction for nearly 30 years was treated as sufficient indication by the named executor never to act and as a disclaimer, but there are circumstances in which mere inaction may be equivocal and may not amount to a disclaimer or renunciation.
8 In the present case, however, where the first defendant has declined to take any step to join in with the plaintiff or to apply on his own behalf to seek probate of this will and where he has opposed a grant of probate in the non-contentious jurisdiction, I consider the only inference to draw is that he has indicated an unwillingness ever to act as executor and that this amounts to implied renunciation. In this situation, therefore, the occasion is one where, if this will is proved by the plaintiff, I consider that she
(Page 7)
- should be granted probate without leave being reserved for the second named executor to come in and prove later which, otherwise, would be the usual course – see Tsaknis v Lilburne [2010] WASC 152.
Doubts as to testamentary capacity
9 The reason for the existence of the doubt about whether Mrs Edna Frances Duirs had requisite testamentary capacity at the time of her will of 23 April 1998 was made or a time instructions were given shortly beforehand arises from entries on her death certificate which attributed the cause of her death to several factors: terminal bronchial pneumonia (one year); multiple cerebral vascular accidents (five years); carcinosarcoma of the uterus (two years); (contributory cause) Alzheimer's disease (five years). This reference to Alzheimer's disease or senile dementia of five years' duration at the date of death raised the question of whether or not at the time of her will, some three and half years or more earlier, she had the requisite mental capacity to make a valid will. The evidence on this issue is set out and examined below.
The terms of the will
10 The will propounded is in conventional form and obviously professionally drawn. As already stated, the deceased appointed the first defendant and the plaintiff as joint executors and trustees. Subject to the payment of old debts, funeral and testamentary expenses Mrs Duirs left her dwelling house and land in Great Southern Highway, York to her trustees upon the following trust:
for Eric Andrew Duirs to the use and enjoyment thereof and the right to receive income therefrom for so long during his lifetime as he shall make the same his principal place of residence and for so long as he pays all current rates, taxes and outcomes in respect thereof and at his own expense keep the dwelling house in good repair and condition and insured against all normal risks under a standard house owner's and householder's policy to the full insurable value thereof in an insurance office approved by my Trustees and upon the determination of the interest of Eric Andrew Duirs therein I DIRECT that the said dwelling house and land shall be held by my trustees UPON TRUST for distribution to such of my grandchildren and the children of Eric Andrew Duirs as shall be alive at the time of the said determination and if more than one in equal shares.
11 This disposition, which includes in the class of beneficiaries entitled in distribution to the house and land at York upon the determination of the temporary interest of the first defendant, includes further grandchildren and children of the first defendant who may then be living. It accounts for
(Page 8)
- the tenth defendant's presence in this action as a representative defendant of his unborn children.
12 The will being propounded contains bequests of all the deceased's household furniture and effects to the first defendant absolutely.
13 The final residuary bequest in the will provides that the residue of the deceased's real and personal estate is devised and bequeathed to her trustees upon trust for distribution to such of her grandchildren and the children of Eric Andrew Duirs who shall survive her and, if more than one, in equal shares.
14 There then follow provisions conferring upon the trustees particular powers to postpone the sale calling in and conversion of any part of the estate; to apply, whether in whole or any part, the capital or income of any infant beneficiary during his or her minority towards his or her maintenance, education, advancement in life or support; and power to invest the proceeds of conversion of any assets in any form of authorised trustee investments and to vary or transpose such investments.
15 There is then a direction for the deceased's remains to be cremated under the rights of the Church of England, followed by the attestation by the testator and the subscription of the witnesses. It is to be noted that the signatures of the deceased appearing on the will are rather shaky and suggestive of an aged and possibly feeble hand.
16 There is one feature of the stance which had been adopted by the first defendant until recently which is rather remarkable for its incongruity. The position of the first defendant, at least in relation to the non-contentious application for probate, was that the will was invalid because of want of testamentary capacity so that, as a consequence, the deceased died intestate. However, because the first defendant is not the natural or adopted child of the deceased, neither he nor any of his children are eligible beneficiaries to participate in the distribution of the estate on that supposed intestacy – Administration Act s 14. The term 'issue' in the Administration Act means a lineal descendant and includes an illegitimate child but not a foster child who has not been adopted. Hence, if the deceased did indeed die intestate then the plaintiff and the children of Thomas Robert Duirs (deceased) would be the only persons entitled to distribution of the estate – Administration Act s 14(2b).
(Page 9)
The non-contentious proceedings
17 By motion filed 27 May 2009 the solicitor for the plaintiff applied in the non-contentious jurisdiction for probate of this will to be granted to the plaintiff or, in the alternative, for letters of administration of the estate of the deceased to be granted to the plaintiff as one of the beneficiaries on an intestacy.
18 By the statement of assets and liabilities of the estate of the deceased filed by the plaintiff later in these proceedings, it appears that the gross value of the assets of the estate is about $446,500, the principal asset being the house and land at Great Southern Highway, York valued at $400,000. The liabilities include funeral expenses, a provision for estimated capital gains tax, and an estimate of the legal costs associated with the estate and these proceedings, all totalling $56,119.69, making a net value of $390,380.31.
19 Directions have been made by a Registrar that the trial of this action should proceed on affidavit and that the affidavits filed in the non-contentious proceedings, together with the affidavits filed in this action, should stand as the evidence-in-chief of those deponents as witnesses at the trial. No demand has been made for any of the deponents to be cross-examined, nor has any application been made for further or oral evidence to be adduced.
20 There are also three affidavits filed and read in these contentious proceedings. They are:
• affidavits of scripts of plaintiff sworn 31 March 2010.
• affidavit of Merle Ruth Bloch sworn 18 August 2010 giving details of the date of birth of the children of the first defendant.
• affidavit of the plaintiff sworn 3 April 2013 giving details of the latest value of the estate, including the York house and land, and referring to the agreement for distribution reached with the first defendant.
Continuation of non-contentious proceedings (amend heading)
21 In the non-contentious application there are affidavits of the two attesting witnesses to the will, that is Malcolm Frank Bennett and Brian Henry Gibson. In his affidavit sworn 22 June 2006 Mr Gibson deposes that he is one of the subscribing witnesses to the will and identifies a copy of the will as an annexure. He confirms that the deceased executed the
(Page 10)
- will on 23 April 1998 and did so by signing her name at the foot of the first and second pages of the will, as now appears on the document, doing so in the presence of himself and of Malcolm Frank Bennett, the other subscribing witness, both being present at the same time, who thereupon attested and subscribed the will in her presence.
22 A similar affidavit is made by Mr Malcolm Frank Bennett, sworn 27 June 2006, who describes the same circumstances of execution. Mr Bennett has added, in manuscript, a further paragraph to his affidavit by which he deposes that although frail physically at the time of signing her will, Mrs Duirs was mentally very aware. According to Mr Bennett, at the time of signing Mrs Duirs was in an acute ward whilst waiting for a permanent room in Sandalwood House, where full-time care was to be provided for her.
23 There is also an affidavit from Glynes Rynn, a solicitor, who in April 1998 was employed as a solicitor practising at the Rural Community Legal Service Inc in Northam. She took initial instructions for the preparation of the will from Mrs Duirs whom she met on 21 April 1998 at the Legal Service Centre. Ms Rynn recalls that Mrs Duirs was referred to the legal service by a social worker from the Northam Hospital's aged care service specifically for Mrs Duirs to make a will. Ms Rynn deposes that she took instructions for the preparation of the will from Mrs Duirs and recalls that she specifically directed questions to the client in order to establish whether Mrs Duirs had testamentary capacity. Ms Rynn formed the view, based on Mrs Duirs' responses to her questions, that the testatrix was lucid. According to Ms Rynn, Mrs Duirs responded clearly, accurately and appropriately to questions about dates, times, addresses and occupations of the people whom they both discussed and who were to benefit under the will. According to Ms Rynn, Mrs Duirs was clear about the nature and extent of the benefit to be given under her will, leading Ms Rynn to the opinion that the testatrix had the necessary testamentary capacity and that she should, therefore, proceed to prepare her will as instructed. Ms Rynn did not meet with Mrs Duirs again in relation to the will and the final form of the will was settled by another solicitor at the legal practice who later made the necessary arrangements for the will to be executed.
24 That other person was Kevin Daniel Hogg, now a business proprietor but in April of 1998 an employed solicitor at the Rural Community Legal Service Inc in Northam. In his affidavit sworn 2 May 2009 Mr Hogg deposes that on 22 April 1998 he met with Edna Frances Duirs to review the draft will that Ms Glynes Rynn had prepared following their meeting
(Page 11)
- the previous day. Despite the time which has since passed, Mr Hogg recalls Mrs Duirs and his meeting with her. He deposes that on learning of the instructions given by Mrs Duirs to Ms Rynn his immediate concern was about a potential challenge to any will so made because Mrs Duirs was not making any provision for her daughter (the plaintiff) whom she said was her adopted daughter, nor for the children of her son, who had died (whom she said was her adopted son). Mr Hogg deposes how he realised that there was a risk that either the daughter or the son's children could make a claim under the Inheritance (Family and Dependants Provision) Act or alternatively, if they thought it to be the case, they might suggest that Mrs Duirs did not have capacity at the time she made the will.
25 Because of these concerns, Mr Hogg was attentive to the need to assess Mrs Duirs' understanding and appreciation of the risks of making a will as proposed and he realised that he should advise her of the possible implications so as to ensure that she was fully cognisant of those issues. According to Mr Hogg, he therefore questioned Mrs Duirs extensively about her family circumstances and about her reasons for making the will as proposed. He also questioned her in order to ensure that she understood the implications of the will which he had instructions to make and the limitations of her estate in providing for her family.
26 Mr Hogg describes how he questioned Mrs Duirs to ensure that he was satisfied that the first defendant, Eric Andrew Duirs, had not been adopted and that the plaintiff and the deceased son had both been adopted. According to him, Mrs Duirs explained that Eric Andrew Duirs, to whom she was proposing to give a right of occupation, was fostered by her at any early age but was not her child and had not been adopted by her. She explained to Mr Hogg that she regarded Eric Andrew Duirs as her son and that as he had been living in her home, she wanted him to continue to do so after her death and that her furniture and effects should remain in the home in keeping with it being his home.
27 Mr Hogg deposes that he had no doubts that Mrs Duirs was mentally alert and aware. He says that her explanations were clear and appropriate and that she appeared to have carefully thought out what she wanted to achieve by her will. Mrs Duirs appeared to him, by the terms of her instructions, to have thought through her desire and obligation to provide a home for Eric Andrew Duirs, whom she considered to be her son, notwithstanding the lack of formal adoption, and because of her desire ultimately to benefit her grandchildren and his children. Mr Hogg explains in his affidavit that he was satisfied that Mrs Duirs understood the distinction between Eric being her foster child and not her own child
(Page 12)
- but, nevertheless, she regarded him as her son. Mr Hogg deposes that there was nothing in the testatrix's presentation, conversation, instructions or responses to queries that led to him having any concern that she may not have had testamentary capacity. He says that because of his concern about the future for a potential challenge to her will he took particular care to assess Mrs Duirs' demeanour and responses to satisfy himself that there was no risk that her capacity could be successfully challenged.
28 Finally, Mr Hogg deposes that although he had lingering concerns that there might be family conflict when Mrs Duirs died, he was satisfied that she was well able to make a will and that the will reflected her clearly thought out instructions. Consequently, he settled the terms of the will and sent it to Mrs Duirs at York Hospital for signing.
29 In her affidavit of 20 April 2009 in support of the application for a common form of grant the plaintiff, Mrs Banyard, deposed that she is of the full age of 18 years and that she was applying for probate for the will of her late mother dated 23 April 1998 or, alternatively, if the court were not satisfied that that will was valid, for a grant of letters of administration of her mother's estate upon an intestacy. She produced and identified the will, deposed that it was unrevoked and that there were no codicils, and described the place and circumstances of execution and the names of the subscribing witnesses. She also deposed that the deceased did not marry after the time of the execution of the will and had attained the age of 18 years. She describes how the deceased was Eric Andrew Duirs' foster mother and that his name had been changed by deed poll from Eric Andrew Outram to Eric Andrew Duirs.
30 Because of the reference to Alzheimer's disease of five years' duration as a contributory cause of death, Mrs Banyard set out her knowledge of her mother's medical history in the years leading to her death. In April 1998 the deceased's attending medical practitioner was Dr Maxwell Jones, but he died in July 1998. She annexed a report from the senior social worker for the aged care assessment team in Northam dated 2 March 2004, who had referred to her aged care assessment team file notes and the reports from the visiting geriatricians made in May 1998. The author of this report described how Mrs Duirs had been referred to her on 9 April 1998 in order to assist her to draw up a will. She was alert to the need to be satisfied that there was adequate testamentary capacity and describes that her file entry from that meeting was that Mrs Duirs was forgetful but was able to backtrack appropriately. The social worker was confident Mrs Duir had the ability to make a will but, because of the proposed terms and the prospect of future family
(Page 13)
- discord, she referred Mrs Duirs for legal advice. This report records that Mrs Duirs' mental state was noted by a Dr Guthridge on 1 Mary 1998 as being diagnosed with probable dementia but there was no record of any previous diagnosis of Alzheimer's disease. There was no adverse comment in any of the notes by the attending doctors about incapacity to make a will. A report from a physician at Royal Perth Hospital to the plaintiff's solicitors dated 16 June 2006 contains a review of Mrs Duirs' records. These include a test score showing disorientation and confusion in early May 1998 but at that time Mrs Duirs had had recent medical illnesses and was on morphine so it was likely that the pharmacology caused her an element of delirium and fluctuation in mental state. The reporter said that it could not be definitely concluded from that assessment that she did not have testamentary capacity at the time the will was made.
31 In this affidavit Mrs Banyard makes reference to the position of the first defendant, who she understood was contending that the deceased did not have testamentary capacity at the time that she made the will. The plaintiff then gives a history of her mother's progress as leaving her home at Lot 43 Great Southern Highway, York for York Hospital and then to Royal Perth Hospital for treatment, following which she spent some time in the Northam Hospital until she was well enough to be offered a place in the Pioneer Memorial Lodge, a frail aged hostel associated with the York Hospital. After some time Mrs Duirs was unable to cope at the Pioneer Memorial Lodge and returned to the York Hospital. It was during that period at the York Hospital that the will was made. After a period of recovery, Mrs Duirs was then accommodated at the Sandalwood House nursing home, which is co-located with the York Hospital. It was at the district hospital at York that she died.
32 Mrs Banyard gives an account of how she was living in Perth, but how she visited her mother in York frequently and took her to Northam for medical appointments. According to the plaintiff, before Mrs Duirs' admission to Sandalwood House nursing home she was frequently disoriented and her physical and mental condition fluctuated considerably. After her admission to Sandalwood House Mrs Duirs was physically frail but generally mentally aware and lucid, although her mental condition would deteriorate if she was unwell. She says that Mrs Duirs was always pleased to see her when she visited and that Mrs Banyard observed that her mother got on well with other patients and staff.
33 Mrs Banyard then sets out a series of events in her mother's life showing that she had been raised on a rural property and wanted to return to a rural lifestyle in her later years. It was for this reason that she brought
(Page 14)
- the York property to live with Eric and his family and she often stated to her daughter her intention that Eric should have the York property when she died. She was also conscious of the need to provide for Eric's children. For these reasons, Mrs Banyard considers that the scheme of the will as executed was consistent with her knowledge of her mother's intentions and of her desire to ensure that Eric had the opportunity of retaining access to the York land and at the end of that period that there would be provision for his children. Mrs Banyard stated that she realised that if the will was proved then she herself would not receive any benefit from her mother's estate but believes that her mother felt that she was well situated in life and was not in need of any further assistance.
34 The plaintiff deposes that the deceased married Kenneth Lorne Duirs (her adopting father) on 24 April 1943 but that the two were divorced in 1995. She confirmed that the deceased was not married or in any de facto relationship at the date of death. There were no children other than herself and her deceased adopted brother.
35 In the event of an intestacy 50% of the deceased's estate would pass to the plaintiff, 25% of the estate to Bilinda Jane Duirs (since deceased) and 25% to Adam Paul Duirs. Consents by Bilinda and Adam had been filed to the plaintiff's application to prove the will notwithstanding that their entitlements under the will are less than the benefit each would receive on intestacy. A consent to the application for proof of the will was also given by Jacqueline Ann Lang, who would have no entitlement in the case of an intestacy.
Opposition by first defendant to grant in non-contentious jurisdiction
36 By an affidavit sworn 27 September 2007 and filed in opposition to the application for representation in the non-contentious jurisdiction, the first defendant, Mr Eric Andrew Duirs, sets out the basis for his opposition. He confirms that he was a foster child of the deceased from the age of two years. He lived at home with the deceased and his foster father until they separated in 1971 and after that he continued to reside with the deceased. He explains that it was the intention of his foster parents to have him legally adopted and that on many occasions procedures were attempted to that end, but that it was never possible because the Department of Community Development was unable to obtain consent from his birth mother to the proposed adoption.
37 Mr Eric Andrew Duirs sets out the basis for his belief the deceased did not have testamentary capacity at the time of making the will of 23 April 1998. He bases this upon his knowledge of her over
(Page 15)
- approximately four years shortly after her 80th birthday when he and his wife assisted her in doing the cooking, washing, laundry and other general care duties. He describes that some time in 1997 he and his wife and her attending medical practitioner in York, Dr Richard Davies, believed that the deceased was too frail to take a fall and could not look after herself in the long term and that, consequently, she moved shortly afterwards to the Pioneer Lodge in McCartney Street in York. She resided there for about nine to 12 months and was moved later to the York Hospital because of problems with nutrition and substantial weight loss. From there she was sent to Royal Perth Hospital for further medical treatment for the carcinosarcoma. Mr Duirs recounts explanations given to himself, his sister, the plaintiff, and the deceased by medical specialists at RPH that because of her medical condition and age it was decided that there could be no further intrusive procedures and that the plan should be to make her as comfortable as possible and place her on pain reducing medication. For this she was later transferred to the Northam Hospital. On this pain reducing regime she was prescribed medication such as morphine and a mixture of other analgaesia.
38 There were a number of occasions while the deceased was living at Northam Hospital when Mr Eric Duirs and the plaintiff were called by the staff because of a fear that Mrs Duirs was about to die. At some time during the period the first defendant was informed by a member of the hospital staff at Northam that Mrs Duirs had made a will and it seems that there were some hearsay expressions of anxiety about her capacity to do so. After this Mrs Duirs was transferred to Sandalwood House in York and the defendant and his family visited her on a regular basis, two or three times a week, and often took her for outings with medication and pain-killers being administered before leaving.
39 Mr Eric Andrew Duirs deposed that on the day the will was executed he, his wife and his daughter Christine visited the deceased at the York Hospital in the afternoon and that Mrs Duirs was confused as to who he and his wife were, believing they were other relatives.
40 Concern expressed by the first defendant in this affidavit was based on his belief and expectation that the whole of the property of lot 43 Great Southern Highway, York would be left to him by the deceased. He set out in his affidavit the details of a number of occasions on which he claims that the deceased promised him, or led him to believe, that this would occur. He also claims that he and the deceased discussed the transfer to the first defendant of the property at lot 43 Great Southern Highway to be achieved by will to avoid what the deceased understood to be gift tax
(Page 16)
- which would apply if a transfer was not made pursuant to the terms of a will. This appears to be a baseless and erroneous assumption and it has not been pursued. Finally, the first defendant deposed that he had received legal advice as to the entitlements to distribution of the estate of the deceased in the event that the will was held to be invalid and understood that he is not a person entitled to make a claim against the estate pursuant to the Inheritance (Family and Dependants Provision) Act 1972.
41 Mr Eric Andrew Duirs also deposes in his affidavit to having seen a copy of a draft will prepared for the deceased by Solomon Avery Barristers and Solicitors which was never signed by the deceased. A copy of that will is annexed to his affidavit and it appears to have been prepared some time in 1995. It is also included in the plaintiff's affidavit of scripts as noted earlier.
42 No attempt has been made by any party to propound this document either as a copy of some missing will duly executed or as an informal will, and there is no explanation as to why it was not executed. It differs in material respects to the will now being propounded. It appoints a sole executor, a person other than the plaintiff or the first defendant, and also names a substitute executor if the first chosen executor is unable or unwilling to take a grant. That substitute person was a solicitor in the firm which drew the will. This document contains a draft of a devise of the land and property at 43 Great Southern Highway, York to the first defendant and his wife absolutely as joint tenants. It then makes provision with regard to the treatment of a debt due to the estate by a relative and then provides that the residuary estate should be held by the executor upon trust to such of her three grandchildren, Bilinda Duirs, Adam Duirs and Jacqueline Banyard as should survive her in equal shares as tenants in common. This draft document was prepared, it would seem, about two and a half years or more before the will now being propounded and it contains no provision for the first defendant's own children.
43 As it is apparent that the deceased's principal asset was the house and land at Great Southern Highway, York, this meant that there was comparatively little else in her estate for distribution. It seems clear that the deceased had it in mind to benefit at least some of her grandchildren. The April 1998 will, the will being propounded, goes further towards achieving that goal by limiting the gift of the York property to the first defendant for an ascertainable duration and then providing for equal distribution among the surviving 'grandchildren'. There is nothing irrational or capricious about the 1998 will as it plainly attempts to strike a
(Page 17)
- better balance between the interests of all the members of the family whom the deceased desired to benefit than the unexecuted 1995 draft. This is a factor which may be taken into account when determining the issue of testamentary capacity because it suggests greater thought and more careful judgment in attempting to strike a balance between various family interests than the earlier proposal which had not been acted upon.
44 In view of the competing contentions about the testamentary capacity of the deceased, the Registrar of Probate considered that no grant of representation could be made in the non-contentious jurisdiction, leaving the parties to commence these present proceedings.
45 In the course of the present application, the solicitor for the plaintiff informed the court that all the parties to the litigation had agreed upon a deed of family arrangement for the distribution of this estate but that, nevertheless, all had also agreed that there should be a grant in solemn form of probate of the 1998 will and appointing the plaintiff as sole executor, and that it was on this basis that the action was proceeding on an undefended basis. A memorandum dated 8 April 2003 giving notice of an intention to abide by the decision of the court by the sixth, seventh, eighth, ninth and tenth defendants by their representative, the Public Trustee, has been filed.
46 In a case such as the present where the parties have agreed to distribution of the estate, whether in accordance with the will or otherwise, the court may order a grant of probate in solemn form: Wheatley v Edgar [2003] WASC 229 [30]. It is obviously necessary that there should be a formal grant of representation, whether of probate of this will or of letters of administration, because of the different entitlements to distribution which would follow in either eventuality and because of the presence of actual and potential infant beneficiaries. A grant in solemn form will also give added protection to any executor or administrator appointed - see Wheatley v Edgar [19], [27].
47 For the will being propounded to be proved the plaintiff must satisfy the court that it is a valid testamentary document and the last will of the deceased - Bull v Fulton (1942) 66 CLR 295, 343.This includes the onus of showing, on the probabilities, that the testatrix had the requisite testamentary capacity.
48 Bailey v Bailey (1924) 34 CLR 558, [1924] HCA 21, 570 and Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67, 453 confirm that the onus is on the person propounding the will to satisfy the court on the
(Page 18)
- balance of probabilities that the deceased had testamentary capacity at the time it was made. There is a rebuttable presumption, arising from the fact of due execution and the presence of a conventional attestation clause, that the testatrix had testamentary capacity. In the present case, the persons most directly involved with the preparation and execution of the will, namely the two solicitors who discussed with the testatrix her testamentary intentions, drafted the will and then confirmed the instructions, and the two independent attesting witnesses were all satisfied that Mrs Duirs had testamentary capacity, that she realised the importance of the will which was being discussed, prepared or being executed, and that she had a keen understanding of the interests of the various members of her family whom she might be expected to benefit. As already remarked, the structure of the will represents a clearly considered balance as to how the property of the deceased should be distributed.
49 The history of Alzheimer's disease or dementia of fluctuating effect, Mrs Duirs' frail health, the influence of morphine and other medications upon her and the acknowledgement that she clearly had lucid intervals means that the evidence requires 'a vigilant examination of the whole of the evidence …; but that examination having been made, a residual doubt is not enough to defeat a claim for probate': Worth v Clasohm (453)
50 As decided in Banks v Goodfellow (1870) LR 5 QB 549, 565 the requirements of testamentary capacity are:
That the testator shall understand the nature of the act and its 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 its 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 …
51 The probabilities are that by the time the 1998 will was made Mrs Duirs did have some deterioration of mental acuity and periods of confusion, but that this was not a constant state and that she was certainly capable of clear and deliberate thought and of balanced understanding and comprehension of her circumstances. In Martin v Fletcher [2003] WASC 59 [11] - [12] it is noted that in the absence of an appreciable delay between the giving of instructions and the execution of the will, the principal enquiry as to testamentary capacity will be directed to the time when the instructions were given. However, in the present case, I do not think that there is anything to suggest that there is any variation in the
(Page 19)
- condition or capacity of Mrs Duirs over the period from 21 to 23 April 1998 when instructions for the will were given, the will was drafted and it was finally executed. There is no suggestion that Mrs Duirs did not know and understand that she was making the will or that those with whom she discussed the subject doubted that was her true intention. The will is rational on its face, identifies the persons whom Mrs Duirs might be expected to consider to share in distribution of her estate and establishes a scheme of distribution which is, on any objective sense, balanced and proportioned to all the known circumstances, including her obvious intention that the first defendant would, for so long as he wished, be able to continue at the farming property on Great Southern Highway, York.
52 It is obvious that the first defendant believes that the deceased had promised him or assured him that the house and land at York would be left to him or his family absolutely rather than that he should receive a limited interest, but his opposition to the validity of the will was not ever likely to produce that effect and may well have been misguided. He does not press the claim for invalidity based on lack of testamentary capacity or any other reason and, although this is a case where there is obviously need for enquiry and determination as to the capacity of the testatrix, the evidence satisfies me without hesitation that Mrs Duirs was possessed of full testamentary capacity at the time that this will was made.
53 As it was executed in accordance with the requirements of s 8 of the Wills Act and because the plaintiff has satisfied all the other requirements entitling her to a grant, I consider that this court should order that there be a grant of probate in solemn form of law of the will of Edna Frances Duirs, deceased, dated 23 April 1998 to the plaintiff alone. The form of the grant of probate shall be settled by a probate Registrar and there will be liberty to apply for any further order or directions as to the form of grant.
54 The costs of these proceedings, including proceedings in the non-contentious jurisdiction, should be paid out of the estate.
0
7
2