Brockhurst v Andre Das
[2023] WASC 226
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BROCKHURST -v- ANDRE DAS [2023] WASC 226
CORAM: WHITBY J
HEARD: 19 JUNE 2023
DELIVERED : 23 JUNE 2023
FILE NO/S: PRO 4373 of 2022
BETWEEN: KIM PATRICK BROCKHURST
First Applicant
THOMAS MARTHINUS SMALBERGER
Second Applicant
AND
ANDRE DAS
Defendant
Catchwords:
Probate - Letters of administration - Application for removal of caveat - Section 64 of the Administration Act 1903 (WA) - Test for removal of caveat - Whether the deceased had testamentary capacity to revoke will by destruction
Legislation:
Administration Act 1903 (WA)
Wills Act 1970 (WA)
Result:
Application to remove caveat pursuant to s 64 of the Administration Act 1903 (WA) dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | Mr J Yeldon |
| Second Applicant | : | Mr J Yeldon |
| Defendant | : | Mr N Siegwart |
Solicitors:
| First Applicant | : | Fort Knox Legal |
| Second Applicant | : | Fort Knox Legal |
| Defendant | : | Birman & Ride |
Case(s) referred to in decision(s):
De Bruin v De Bruin [2004] WASC 20
Hayden v Bond [2003] WASC 96
Larussa v Carr [2018] WASCA 127
Re Poole (SC (NSW), Young J, 118125/94, 26 April 1996, unreported, BC9601658)
WHITBY J:
Alfred Joseph Jones died on 3 May 2022. I refer to the deceased as Alfred in these reasons, with no disrespect intended. Alfred's wife, Paravathy Devy Jones (Susan), died on 3 August 2016. Alfred did not have any children. Alfred had three sisters, two of whom predeceased him and whom had no children of their own. Alfred has one sister who is still alive, Monica O'Mara. Monica lives in the United Kingdom.
Alfred had a will dated 14 August 2019 (2019 will). Fort Knox Legal had prepared the will in accordance with Alfred's instructions and it was validly executed. The beneficiaries of the will include Susan's nephew, Andre Das, the defendant.
On 10 October 2019, Alfred picked up his 2019 will from the office of Fort Knox Legal and took it home with him. Home for Alfred was an apartment in South Perth. Alfred lived in the apartment alone.
On 9 June 2020, Alfred went to see his lawyer, Mr Smalberger, at Fort Knox Legal. Mr Smalberger was not available. Alfred told the receptionist that he wanted to make some changes to his 2019 will. Alfred made an appointment to see Mr Smalberger the next day. Alfred called Fort Knox Legal the next day and made the appointment for the following day, 11 June 2020. Alfred did not attend that appointment. On 29 June 2020, Alfred called Fort Knox Legal and made an appointment to see Mr Smalberger on 1 July 2020. Alfred did not attend that appointment either.
On 13 October 2020, Alfred was admitted to the delirium ward at Sir Charles Gairdner hospital. On 25 November 2020, Alfred was moved from the hospital into transitional care in Bicton. In February 2021, Alfred was transferred to care in North Fremantle.
On 8 January 2021, the State Administrative Tribunal appointed Mr Kim Brockhurst, Alfred's friend and neighbour, as Alfred's plenary administrator and limited guardian.
In February 2021, Mr Brockhurst engaged a painter, Mr Gordon Booth, to paint Alfred's South Perth apartment. In March 2021, Mr Brockhurst found a pile of torn up documents, which included Alfred's torn up 2019 will, on Alfred's bed in his apartment.
Mr Brockhurst and Mr Smalberger, as attorneys appointed on behalf of Monica O'Mara, made an application for letters of administration of Alfred's estate. The application was made on the basis that Alfred revoked his 2019 will by tearing it up. The only person entitled in distribution in these circumstances was Monica.
In response to the application for letters of administration, the Supreme Court of Western Australia issued a requisition to Mr Brockhurst and Ms Smalberger requiring them to serve a copy of the application upon, inter alia, Mr Das.
Mr Das filed a caveat over Alfred's estate on the basis that he was a beneficiary under Alfred's 2019 will and that the 2019 will had not been revoked.
Mr Brockhurst and Mr Smalberger applied to remove the caveat pursuant to s 64 of the Administration Act 1903 (WA) (Act). That is the application before me.
For the reasons that follow, I am satisfied that the caveat should not be removed.
Application
By amended chamber summons dated May 2023, Mr Brockhurst and Mr Smalberger, (together the Applicants) have applied to remove the caveat pursuant to s 64 of the Act (Application). Mr Das, the defendant, opposes the Application.
The Applicants rely upon the following evidence in support of the application:
(a)Affidavit for Application to Administer Estate sworn by Kim Patrick Brockhurst on 15 July 2022 (Brockhurst Affidavit); and
(b)Affidavit of Thomas Martinus Smalberger sworn on 17 May 2023 (Smalberger Affidavit).
The defendant relies upon the following evidence in opposition to the Application:
(a)Affidavit of Patmanathan Ayadurai sworn 5 April 2023 (Ayadurai Affidavit);
(b)Affidavit of Andre Das sworn 11 April 2023 (Das affidavit);
(c)Affidavit of Nigel Jerome Siegwart sworn 12 April 2023 (First Siegwart Affidavit);
(d)Affidavit of John Alfred Reilly sworn 20 April 2023 (Reilly Affidavit);
(e)Affidavit of Rama Krishna Rajenthiran sworn 20 April 2023 (Rajenthiran Affidavit); and
(f)Affidavit of Nigel Jerome Siegwart sworn 29 May 2023 (Second Siegwart Affidavit).
At the hearing of the application, upon hearing objections from both counsel, I struck out the following paragraphs of the affidavits:
(a)Brockhurst Affidavit - par 42 and annexure k on the ground that they contained inadmissible hearsay evidence and pars 52 and 53 on the ground that they contained unsupported statements of belief;
(b)Ayadurai Affidavit - paragraph 13 on the ground that it contained inadmissible hearsay evidence;
(c)Rajenthiran Affidavit - paragraph 6 on the ground that it contained an unsupported statement of belief; and
(d)Reilly Affidavit - paragraph 7.2 on the ground that it contained inadmissible hearsay evidence.
I refused to strike out par 21 of the Rajentherin Affidavit on the basis that, although it was hearsay evidence, it was relied upon by the defendant as proof that those words were said, not for the truth of what was said.
Legal principles applicable to an application pursuant to s 64 of the Act
Section 64 of the Act provides:
(1)In every case in which a caveat is lodged the Court may, upon application by the person applying for probate or administration, or for the sealing of any probate or letters of administration, as the case may be remove the same
(2)Every such application shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat.
(3)Such application may be heard and order made upon affidavit or oral evidence, or as the Court may direct.
An application to remove a caveat pursuant to s 64 of the Act is a summary procedure. It is an alternative to commencing contentious proceedings for a grant of probate of the 2019 will in solemn form. If an order is made removing the caveat, then the applicants can proceed with their application for a grant of letters of administration. If the application is dismissed, then the alternative is an application (by a person with standing) for proof of the 2019 will in solemn form.
The defendant bears the onus of proving that the caveat is not vexatious. In order to defend an application pursuant to s 64 of the Act, the defendant must put some material before the court that justifies the expense and delay attendant with an application for a grant in solemn form: De Bruin v De Bruin [2004] WASC 20 [14]-[15] citing Hayden v Bond [2003] WASC 96 [17] (Hayden).
Issues
The issue arising in this case is whether the defendant has satisfied the court, on the balance of probabilities, that the caveat is not vexatious. The question to be determined is 'Are there circumstances which warrant further investigation by the court?'
Applicant's Submissions
The Applicants submit that the only reasonable explanation for the torn 2019 will is that Alfred intended to revoke his 2019 will. The Applicants say that this presumption of revocation is supported by the following facts:
(a)Alfred took the original 2019 will away from Fort Knox on 10 October 2019;
(b)Alfred was the only person living at the apartment;
(c)Mr Brockhurst found the torn up 2019 will on the bed in the apartment after Mr Booth had painted the apartment; and
(d)Alfred had made an appointment to see Mr Smalberger at Fort Knox Legal for the purpose of changing his will.
The Applicants submit that the defendant has not placed any material before the court which is capable of rebutting the presumption of revocation by destruction. The Applicants say that any evidence as to Alfred's capacity, or lack thereof, to revoke the 2019 will is too general, is consistent only with Alfred having hearing problems and is not given in its full context. The Applicants submit that the defendant has not discharged his onus of proving that the caveat is not vexatious and that the application to remove the caveat should be granted.
Defendant's submissions
The defendant submits that there is evidence before the court that suggests that Alfred may not have had testamentary capacity to revoke the 2019 will. The defendant submits that evidence is:
(a)Alfred was 84 years old in 2020;
(b)Alfred's friends, Mr Ayadurai, Mr Rajenthiran and Mr Reilly, noticed that Alfred was having trouble with recognising people and engaging in conversation in 2020;[1]
[1] Ayadurai Affidavit para 14 and 15; Rajenthiran Affidavit para 12, 13, 17-16 and Reilly Affidavit para 11.
(c)when Alfred went to see Mr Smalberger at Fort Knox Legal on 9 June 2020, the paralegal who saw him, Ms Colleen Zietsman, made a contemporaneous file note which said
[Alfred] said he wanted minor changes to his will - he opened his Will to clause 5 and he also had another yellow paper with the same conditions of clause 5 written down with a line below & after the line he had (e), (f) and (g) to be deleted.[2]
These proposed changes did not alter the bequest to the defendant;
(d)when Alfred called Fort Knox Legal on 10 June 2020, the contemporaneous note of the telephone conversation taken by Ms Zeitsmam said that Alfred asked why Mr Smalberger wanted to see him, when it was in fact Alfred who had made the appointment just the day before to see Mr Smalberger;[3]
(e)Alfred did not attend the appointment he made at Fort Knox legal on 11 June 2020 or a later appointment he made on 1 July 2020;[4]
(f)in October 2020, Alfred was admitted to the delirium ward at Sir Charles Gairdner Hospital;[5]
(g)Alfred was not able to return home and was placed into care;
(h)on 8 January 2021, the State Administrative Tribunal determined that Alfred was unable to make reasonable judgments in respect of all matters relating to his estate and appointed Mr Brockhurst as plenary administrator and limited guardian;[6]
(i)the torn 2019 will was located with Alfred's Enduring Power of Attorney and Enduring Power of Guardianship which were also torn.[7] The defendant submits that there is no evidence that suggests Alfred wanted to change these documents when he attended at Fort Knox Legal on 9 June 2020; and
(j)Alfred died on 22 May 2022 and his cause of death was identified as 'end stage Alzheimer's disease (palliative), Atrial fibrillation (longstanding)'.[8]
[2] Smalberger Affidavit TMS 3.
[3] Smalberger Affidavit annexure TMS 4.
[4] Smalberger Affidavit paras 8-9.
[5] Ayadurai Affidavit para 15.
[6] Brockhurst Affidavit paras 23-24.
[7] Brockhurst Affidavit para 42.
[8] Second Siegwart Affidavit Annexure NJS17.
The defendant submits that the presumption of revocation by destruction of the 2019 will can be afforded little weight given this evidence. The defendant says that he has discharged his onus to show that the caveat is not vexatious and that the matter should proceed by way of solemn form proceedings.
Determination
There is no admissible evidence before the Court as to who tore up the 2019 will or when it was torn up. However, on the basis of the evidence before the Court, it is reasonable to draw the inference that Alfred was the person who tore up the 2019 will. Alfred collected the original 2019 will from Fort Knox Legal on 10 October 2019 and it is more likely than not that he had the original will with him on 9 June 2020 when he attended Fort Knox to see Mr Smalberger about changing his will. Alfred was admitted to hospital on 13 October 2020 and did not return to his apartment. Therefore, for the purposes of the Application, I accept that Alfred tore up the 2019 will sometime between 9 June and 13 October 2020.
Section 15 of the Wills Act 1970 (WA) states:
'… the whole or any part of a will may be revoked only -
…(c) by the testator, or some person in the testator's presence and by the testator's direction, burning, tearing or otherwise destroying it to give effect to the intention of the testator of revoking it.'
The case of Re Poole (SC (NSW), Young J, 118125/94, 26 April 1996, unreported, BC9601658) (Re Poole) involved a will that had alterations made on it which, if proved, would have partially revoked the will by striking through a number of bequests. The alterations were informal in that they had not been witnessed and were made at some time during a period where the testator's testamentary capacity was in doubt. Young J held that, where that the effect of the partial revocation would have produced a partial intestacy, 'one needs to direct one's mind to the same matters as should be in one's mind when one is making an actual will, so that the degree of mental capacity is the same'.[9]
[9] Re Poole page 5.
Therefore, in order for Alfred to have revoked his 2019 will by tearing it, he must not only have torn it, he must also have intended to revoke it by tearing it. At the time that he tore the 2019 will, Alfred must have had capacity to revoke it. Capacity in this sense means 'testamentary capacity' in the same way Alfred must had testamentary capacity to make his 2019 will.
As held by Barker J in Hayden at 22, in order to possess the requisite testamentary capacity to make a will (and therefore, in this case to revoke a will):
… a testator must understand the nature of the acts and its effects; understand the extent of the property of which he is disposing, be able to comprehend and appreciate the claims to which he ought 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 his 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…
Although I accept that there is a presumption that the will has been revoked where the evidence supports the inference that Alfred tore it up, the strength of this presumption is dependant upon the facts of each case.[10]
[10] Larussa v Carr [2018] WASCA 127 at 115-116.
In the following circumstances, the defendant has satisfied me, to the requisite degree, that the presumption of revocation by destruction is not so strong as to render the caveat vexatious:
(a)Alfred tore up the will between 9 June 2020 and 13 October 2020 (relevant time);
(b)at the relevant time Alfred was 84 years old;
(c)in June 2020, the notes of Ms Zeitsman from Fort Knox Legal suggest that Alfred may have forgotten making appointments to see Mr Smalberger and/or the reason for making those appointments;
(d)Alfred was admitted to the delirium ward at the hospital on 13 October 2020;
(e)a plenary administrator and limited guardian was appointed for Alfred by the State Administrative Tribunal on 8 January 2021; and
(f)Alfred died on 3 May 2022 and a cause of his death was end stage Alzheimer's disease.
It is not surprising that there is no evidence before the Court in the form of medical notes that may shed some light on Alfred's testamentary capacity at the relevant time. That is because this is not a contentious proceeding and the defendant is not permitted to seek discovery or issue subpoenas. These are the processes that are available in contentious proceedings and are the very reason why contentious proceedings are the appropriate forum for the issues raised by the defendant to be determined.
In my view, there is sufficient evidence to find that the defendant has satisfied the court, on the balance of probabilities, that the caveat is not vexatious. The answer to the question “Are there circumstances which warrant further investigation by the court?” is 'Yes'.
It is therefore, appropriate that the Application is dismissed. The matter should proceed by way of solemn form proceedings.
I note that my findings of fact, for the purposes of this Application, are not binding in any subsequent contentious proceedings in relation to Alfred's estate.
Conclusion and Final orders
The defendant has satisfied me that the caveat is not vexatious. There are circumstances surrounding the destruction of the 2019 will which warrant further investigation by the court.
The Application is dismissed. I will hear the parties as to final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
23 JUNE 2023
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