Baxter v Reading as Administrator Ad Litem of the Estate of Frank George Baxter

[2005] WASC 236

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BAXTER -v- READING as Administrator Ad Litem of the Estate of FRANK GEORGE BAXTER & ANOR [2005] WASC 236

CORAM:   HASLUCK J

HEARD:   31 OCTOBER 2005

DELIVERED          :   31 OCTOBER 2005

FILE NO/S:   CIV 2795 of 2005

BETWEEN:   IAN BRUCE BAXTER

Plaintiff

AND

RUSSELL WILLIAM READING as Administrator Ad Litem of the Estate of FRANK GEORGE BAXTER
First Defendant

JEANNE FRANCES SYMES
Second Defendant

Catchwords:

Succession - Wills, probate and administration - Proof of Will in solemn form - Turns on own facts

Legislation:

Nil

Result:

Order pronouncing for Will in solemn form

Category:    B

Representation:

Counsel:

Plaintiff:     Mr S J Brown

First Defendant             :     Mr G I Chitty

Second Defendant         :     Mr P J Sharry

Solicitors:

Plaintiff:     Lynn & Brown

First Defendant             :     Muries Lawyers

Second Defendant         :     Sharry & Associates

Case(s) referred to in judgment(s):

West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144

Wheatley v Edgar [2003] WASC 118

Wheatley v Edgar [2003] WASC 229

Worth v Clasohm (1952) 86 CLR 439

Case(s) also cited:

Bailey v Bailey (1924) 34 CLR 558

Public Trustee (WA) v Drennan [2004] WASC 101

1. HASLUCK J:  The plaintiff, Ian Bruce Baxter, is the son of Frank George Baxter who died on 22 October 1999 at the Regional Hospital, Carnarvon leaving property within the State of Western Australia.

2. The first defendant, Russell William Reading, is a solicitor practising law at Carnarvon.  He applied for a grant of probate in respect of a Will dated 23 October 1997 purporting to be signed by the deceased in the presence of witnesses.  This Will named the first defendant as the sole executor.

3. The deceased's death certificate recorded the cause of death as "dementia (6 years)".  This led to a requisition dated 12 October 2000 from the Probate Office which raised the issue of the deceased's testamentary capacity as at 23 October 1997 when the subject Will was executed.

4. It was against this background that the plaintiff commenced legal proceedings.  It appears from the pleadings and affidavits filed on behalf of the parties that the deceased was born on 14 October 1904 and spent most of his life in the post‑war period working on plantations and pursuing other business interests in the Carnarvon area.  He was 95 years of age as at the date of his death on 22 October 1999.

5. The plaintiff alleged that the deceased left three documents in writing purporting to be Wills being a document in writing dated 6 November 1991 ("the first Will"), a document dated 31 March 1994 naming the first defendant as the sole executor ("the second Will") and a document dated 23 October 1997 being the Will I mentioned earlier; that is, the Will in respect of which the first defendant sought a grant of probate.  This was referred to in the statement of claim as "the third Will".  However, for ease of reference, I will henceforth call it the "subject Will".

6. The plaintiff contended that the deceased did not have testamentary capacity to make the second Will and the subject Will owing to dementia.  Alternatively, the execution of the third Will was obtained by undue influence.  The plaintiff sought declarations that the first Will be declared valid and declarations of invalidity be made as to the second Will and the subject Will.

7. The defendants oppose these claims and advanced a counterclaim as a means of establishing that the subject Will was valid.  It appears from the statement of defence that on or about 29 March 2001 the plaintiff obtained a citation from the probate jurisdiction of this Honourable Court to the defendants to propound the subject Will in solemn form.  The defendants, in their counterclaim, sought an order that the Court pronounce the force and validity of the subject Will in solemn form of law.  In that way issue was drawn between the parties.

8. It seems that the parties have now agreed to settle their differences.  The compromise contemplates that the Court will pronounce the force and validity of the subject Will in solemn form of law.  However, the parties are conscious that the compromise, of itself, will not be sufficient to justify the making of the proposed order.

9. Against this background, it will be useful to look now at the relevant legal principles.  They are conveniently summarised by E M Heenan J in Wheatley v Edgar [2003] WASC 118.

10. His Honour noted at par 17 that Wills can be proved in two ways, being in common form or in solemn form.  In the former case the grant of probate is revocable.  In the latter case, with two exceptions (concerning fraud or discovery of a later Will) the grant of probate is irrevocable.  Wills are proved in solemn form in a probate action where the main, and generally the sole question for the determination of the Court is whether a Will is or is not either in whole or in part, valid as a testamentary instrument.

11. His Honour went on to indicate that the different consequences give rise to evidentiary implications.  He observed at par 24 that for there to be a grant in solemn form the Court must be satisfied on evidence adduced by the party propounding the Will in question, or by any other party to that suit, whether joined or cited, of the form or validity of the Will.  The issue will be decided on such evidence as the propounder decides to adduce that the testator had the capacity to make a Will at the relevant time.

12. In that regard, the propounder may take advantage of the rule that a Will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and of understanding.  If there is evidence to the contrary it is for the proponent to establish affirmatively that the testator was of sound mind.  There must be proof at least to this extent on the civil standard to justify a grant in solemn form: West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144.

13. It follows from all of this that no grant of probate in solemn form should be made by the Court merely on the consent of the parties.

14. In Bailey v Bailey (1924) 34 CLR 558 Isaacs J at 570 summarised the effect of certain decided cases. He said that the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it. The propounder's duty is, in the first place, discharged by establishing a prima facie case.  A prima facie case is one which satisfies the Court judicially that the Will propounded is the last Will of a free and capable testator.  It is not the integrity of the body, but of the mind, that is requisite in testaments.

15. Isaacs J went on to say that the quantum of evidence must always depend upon the circumstances of each case including reference to the complexity of the relevant provisions, the exclusion of persons naturally having a claim upon the testator, the presence of any person having motive and opportunity and exercising undue influence taking a substantial benefit.

16. Once the proponent establishes a prima facie case of sound mind, memory and understanding then the onus of proof lies upon the party impeaching the Will to show that it ought not to be admitted.  Mere proof of serious illness is not sufficient.  There must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.

17. In Worth v Clasohm (1952) 86 CLR 439 the High Court held that the effect of a doubt initially is to require a vigilant examination of the whole of the evidence. However, that examination having been made, a residual doubt is not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document is the Will of a testator who possessed sound mind, memory and understanding at the time of its execution.

18. Let me now return to the circumstances of the present case.

19. It emerges from the reasoning of Heenan J in Wheatley and Edgar (supra) at par 26 that when a compromise is reached between the parties sufficient evidence to satisfy the minimum requirements for validity must be adduced in order for the Will to be proved in solemn form.  This requires, at least, proof of due execution.  Whether or not there should be a decree in solemn form by the Court in the event of a compromise will also depend on the circumstances of the particular case.

20. I am conscious that proof of the subject Will in solemn form will bring finality to the characterisation of that document as the deceased's last valid testamentary script.  However, it is apparent from the decided cases that I must be satisfied by the evidence that the subject Will is the product of sound testamentary capacity and is not affected by undue influence.

21. The only direct evidence of any significance which might be said to raise a doubt concerning the validity of the subject Will is the reference to dementia in the deceased's death certificate.  However, balanced against that is the evidence reflected in the affidavit of John Alexander Lawson sworn 14 July 2005 and the affidavit of Terry Harris sworn 8 July 2005.

22. Mr Lawson was an old friend of the deceased; Mr Harris was the Hospital Administrator of Carnarvon Regional Hospital between the years 1990 to 1998.  The evidence of these witnesses serves to establish that the deceased was mentally alert at the time the subject Will was executed on 23 October 1997.  Mr Harris was one of the witnesses to the Will.  Another witness, the first defendant, being a legal practitioner, said in an affidavit sworn 22 March 2001 that he was aware of the importance of testamentary capacity and was able to affirm that the deceased was coherent when the instructions were given and appeared to be of sound testamentary capacity when the Will was executed.

23. I have before me also the affidavit of Christian Wium who is a medical practitioner.  The deceased was under his care at Carnarvon Regional Hospital in November 1997.  In his opinion the deceased was lucid and of sound mind and had adequate testamentary capacity.

24. There is before me also the affidavit of Alexander Robert Fullarton sworn 4 July 2005.  This deponent had known the deceased when he was a child and later in adult life.  In his observation the deceased retained his characteristic sharp faculties right up to the end of his life in October 1999, when for the last month or so prior to his death he "lost the plot".  It follows from this that on the Fullarton evidence the deceased was of sound mind when the subject Will was made.

25. I note in passing that the provisions of the subject Will are comparatively straightforward in that the deceased devises to his son (the plaintiff) his estate in certain real property in William Street, Carnarvon and devises and bequeaths to his daughter (the second defendant) the balance of his estate both real and personal.  There is no evidence before me sufficient to sustain the plea of undue influence reflected in the statement of claim.

26. I consider that the evidence of the persons I have mentioned who were close to the deceased at the time the subject Will was executed is more specific, and thus more compelling, than the general observation noted on the death certificate.  See Pullin J in Wheatley v Edgar [2003] WASC 229 at par 8. I am conscious also that the subject Will is cogent and rational on the face of the document. Moreover, the subject Will was prepared by a legal practitioner in response to instructions that were said to be given in a lucid manner.

27. The circumstances point to a conclusion that the deceased was of sound mind in 1997 and simply wished to update his Will.  It was pursuant to this objective that the second Will was destroyed and the subject Will was prepared by the first defendant and executed in the presence of witnesses.

28. It follows from all of this that there is sufficient evidence before me to dispose of the doubt raised by the entry on the death certificate.  I am satisfied that at the time the subject Will was executed it was the product of a sound testamentary capacity.  Accordingly, I am prepared to make an order in the form contemplated by the counterclaim and by the compromise; that is, that the subject Will be pronounced valid and there be a grant of probate in solemn form of law.  I will hear from the parties as to whether any further orders or directions are required.