Blain v Kelsall
[2023] WASC 358
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BLAIN -v- KELSALL [2023] WASC 358
CORAM: HOWARD J
HEARD: 21 SEPTEMBER 2023
DELIVERED : 21 SEPTEMBER 2023
FILE NO/S: CIV 1103 of 2023
BETWEEN: DANIELLE EVA BLAIN
First Plaintiff
ROBERT JOHN NASH
Second Plaintiff
AND
ELIZABETH HELEN KELSALL
First Defendant
ROBERT JOHN FRAYNE
Second Defendant
MICHAEL JULIAN FRAYNE
Third Defendant
SARAH MARGARET FRAYNE
Fourth Defendant
Catchwords:
Application to prove will in solemn form - Following Deed of Family Arrangement plaintiffs given leave to proceed on an undefended basis - Presumption that testator was competent and understanding where will was duly executed - Will proved in solemn form
Legislation:
Nil
Result:
Application allowed
Category: B
Representation:
Counsel:
| First Plaintiff | : | L M McFarlane |
| Second Plaintiff | : | L M McFarlane |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | In Person |
Solicitors:
| First Plaintiff | : | McFarlane Lawyers |
| Second Plaintiff | : | McFarlane Lawyers |
| First Defendant | : | Biddulph & Turley (Mount Pleasant) |
| Second Defendant | : | In Person |
| Third Defendant | : | Zagami Legal |
| Fourth Defendant | : | Zagami Legal |
Case referred to in decision:
Wheatley v Edgar [2003] WASC 118
HOWARD J:
By a writ endorsed with a statement of claim dated 3 February 2023, the plaintiffs seek to prove a will dated 25 June 2020 (2020 Will) of Margaret Helen Frayne who died on 5 September 2022 (Deceased) in solemn form.
The following facts are taken from the evidence led by the plaintiffs at Trial and were not contested.
The Deceased was born 18 April 1941 and died in the State on 5 September 2022. She was 81 at the time of her death, and had married only once. Her husband pre-deceased her.
The Deceased left four children, being the first to fourth defendants.
The plaintiffs were appointed to be joint and several executors of the 2020 Will by its cl 2.1. They were also appointed trustees of each trust under the 2020 Will by cl 2.2. They are accordingly proper plaintiffs in this matter.
Initially, the first defendant contested the Deceased's capacity to make the 2020 Will and disputed its validity. That was the only factual matter put in dispute by the first defendant. She did that by a Defence and Counterclaim filed 17 March 2023.
By that counterclaim, the first defendant sought to prove an earlier will made 26 March 2012 in solemn form.
Initially, the second defendant filed a Notice of Intention to Abide by Decision on 27 February 2023. The second defendant subsequently filed a notice of Defence and Counterclaim filed 8 April 2023.
The Deceased's children (the first to fourth defendants) were the nominated Primary Beneficiaries under the 2020 Will.
A Deed of Family Arrangement was entered into on 18 July 2023 between the plaintiffs and the first to fourth defendants which agreed to the following orders in this action:
(1)the plaintiffs continue with this action to prove the 2020 Will in solemn form on an uncontested basis; and
(2)upon the making of a grant of probate by the Court in terms of the plaintiffs' claim:
(i)the plaintiffs' costs of the Action be paid from the Estate in full as a testamentary expense; and
(ii)there be no other order as to costs.
Orders were then made by the Acting Master on 24 July 2023, by which the Master gave:
(1)the first and second defendants leave to withdraw their defences and discontinue their counterclaims; and
(2)the plaintiffs leave pursuant to O 73 r 19 to enter the action for trial on an undefended basis, as a short cause with evidence by affidavit.
The plaintiffs' evidence
At the trial on 21 September 2023, the plaintiffs read the affidavits of:
(1)Mr Nash, the second plaintiff and a joint executor, made 24 February 2023 with the annexures 'RJN1' to 'RJN4'; and his affidavit made 18 August 2023 with annexures 'RJN1' to 'RJN3';
(2)Stella Hajnalka Emese Cameron made 17 August 2023 with annexures 'SHEC1' and 'SHEC2'; and
(3)Louella Morgan McFarlane with annexures 'LMM1' and 'LMM2' made 18 August 2023.
Matters about which to be satisfied
I adopt the test set out by Heenan J in Wheatley v Edgar [2003] WASC 118 [24], [26] (citations omitted) as to the matters I am to find before I could find the 2020 Will proved in solemn form:
(1)the Deceased had capacity to make the 2020 Will;
(2)was the 2020 Will properly executed;
(3)(in the absence of evidence to the contrary) if so, then it is presumed to have been made by the Deceased being competent and understanding.
The two witnesses to the 2020 Will were Dr Delys Patricia Nicholas and Ms Cameron.
By her affidavit, Ms Cameron deposed to the following:
(1)in June 2020, she had drafted the 2020 Will based on instructions provided to her by the Deceased;
(2)on 16 June 2020, she met with the Deceased and took instructions on amendments to the draft will which Ms Cameron had prepared;
(3)on 25 June 2020, she met again with the Deceased and went through the draft at that date;
(4)the Deceased confirmed in words to the effect that the draft will that Ms Cameron took her through was 'all correct';
(5)from her observations, she considered the Deceased knew what she was doing in giving instructions about, and then executing, the 2020 Will; and
(6)the Deceased signed the will before Ms Cameron and Dr Nicholas.
Ms McFarlane is the plaintiffs' solicitor. In her affidavit she deposed to a conversation she had with Dr Nicholas by telephone (the latter was in Vancouver, Canada and was not returning to Australia until 3 September 2023).
Ms McFarlane deposed to Dr Nicholas stating to her (and Ms McFarlane's belief in the following):
(1)the Deceased was a regular patient of Dr Nicholas from about 2012 until 2018 when the Deceased was admitted to accommodation at Montgomery House, Mt Claremont;
(2)Dr Nicholas kept in contact with the Deceased and spoke with her at Montgomery House in March, April and May 2020;
(3)on or about 2 June 2020, Dr Nicholas provided the Deceased's accountant with a letter confirming Dr Nicholas' assessment that the Deceased had capacity; and
(4)Dr Nicholas witnessed the Deceased executing the 2020 Will on 25 June 2020 with Ms Cameron.
I find that:
(1)at all relevant times in June 2020, the Deceased had capacity to make the 2020 Will;
(2)the 2020 Will was the product of the Deceased's instructions;
(3)the 2020 Will was duly executed; and
(4)the Deceased was competent and understanding when she made the 2020 Will.
In any event, further, there is no reason not to presume, and find, that the 2020 Will was made by the Deceased who was competent and understanding. There is nothing on the face of the 2020 Will to suggest it is the product other than of a competent and understanding maker.
Given that the four defendants who are the Primary Beneficiaries under the 2020 Will do not oppose the plaintiffs providing the 2020 Will in solemn form (and do not propound an alternative will), I consider that I can make the orders sought with comfortable satisfaction.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
21 SEPTEMBER 2023