Buckley v Buckley
[2011] WASC 184
•4 AUGUST 2011
BUCKLEY -v- BUCKLEY [2011] WASC 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 184 | |
| Case No: | CIV:2604/2009 | 17 JUNE 2011 | |
| Coram: | COMMISSIONER SLEIGHT | 4/08/11 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Order for grant of probate in solemn form of will of the deceased dated 5 January 1995 Costs to be paid out of the estate | ||
| B | |||
| PDF Version |
| Parties: | JOHN MALCOLM BUCKLEY MICHAEL ROBERT BUCKLEY VIRGINIA EILEEN YOVICH WILLIAM GEORGE BUCKLEY |
Catchwords: | Probate Proof of will in solemn form Subsequent will made by deceased during a period of incapacity Grant of probate in solemn form of earlier will |
Legislation: | Administration Act 1903 (WA), s 11 Wills Act 1970 (WA), s 8 |
Case References: | Hoare v Reyburn (In his capacity as the Executor named in the Purported Will) [2010] WASC 301 Re Grey Smith [1978] VR 596 Thornhill v Thomas [2010] WASC 297 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MICHAEL ROBERT BUCKLEY
First Defendant
VIRGINIA EILEEN YOVICH
Second Defendant
WILLIAM GEORGE BUCKLEY
Third Defendant
Catchwords:
Probate - Proof of will in solemn form - Subsequent will made by deceased during a period of incapacity - Grant of probate in solemn form of earlier will
Legislation:
Administration Act 1903 (WA), s 11
Wills Act 1970 (WA), s 8
(Page 2)
Result:
Order for grant of probate in solemn form of will of the deceased dated 5 January 1995
Costs to be paid out of the estate
Category: B
Representation:
Counsel:
Plaintiff : Mr M J Hawkins
First Defendant : Mr G P Dutton
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff : Peel Legal
First Defendant : Dutton Legal
Second Defendant : Jackson McDonald
Third Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Hoare v Reyburn (In his capacity as the Executor named in the Purported Will) [2010] WASC 301
Re Grey Smith [1978] VR 596
Thornhill v Thomas [2010] WASC 297
(Page 3)
1 COMMISSIONER SLEIGHT: This is a probate action commenced by the plaintiff seeking proof in solemn form of a will dated 5 January 1995 of the late Bella Boyd Buckley (the deceased). The deceased died on 31 March 2008.
2 At the time of her death, the deceased was a widow. The date of death of the deceased's husband, Mr Eric Buckley, was 29 December 1991. The deceased was survived by four children, all of whom are parties to these proceedings. The third defendant, William George Buckley, was previously known as Paul Anthony Buckley. He has changed his name by deed poll on two occasions and his current name is as appears in the court heading.
3 The will dated 5 January 1995 appoints the plaintiff the executor and trustee of the will.
4 The will is a hand-drawn will on a standard form. The will is signed by the deceased and there are two witnesses' signatures. The witnesses have sworn affidavits confirming the will was signed in compliance with the requirements of s 8 of the Wills Act 1970 (WA) for the making of a valid will.
5 The will provides for the estate to be divided between the four children of the deceased as follows:
• $5,000 to the deceased's son, Paul (now known as William) (the third defendant);
• $5,000 to the deceased's daughter, Virginia (the second defendant);
• $50,000 to the deceased's son, Michael (the first defendant);
• The remainder of the estate to the deceased's son, John (the plaintiff).
7 The estate is a relatively small estate. The net value of the estate based upon a statement of assets and liabilities is $337,759.
(Page 4)
Affidavit of scripts
8 The plaintiff swore on 3 February 2010 an affidavit of scripts which states that the plaintiff is not aware of any testamentary dispositions or instruments made by the deceased other than three will documents dated 20 November 1990, 5 January 1995 and 6 June 2000.
9 The will dated 5 January 1995 expressly revokes all previous wills. Accordingly, assuming this will is a valid will, the earlier will dated 20 November 1990 is revoked.
10 The will dated 6 June 2000 revokes all previous wills and, if valid, would have the effect of revoking the will of 5 January 1995. The will dated 6 June 2000 is the same document as the will dated 20 November 1990, except that it contains alterations and has been re-signed by the deceased before two witnesses. This will dated 6 June 2000 appoints the plaintiff executor and trustee of the deceased's will. It provides that all of the estate is to pass to the deceased's husband, Eric Buckley, but in the event that he should predecease the deceased, then the estate is to be divided equally between the four children of the deceased.
History of proceedings
11 The proceedings in this matter were commenced in the probate jurisdiction of the court by writ of summons. The statement of claim filed as a part of the writ cited the three testamentary scripts referred to earlier in this decision and sought proof in solemn form of the will dated 6 June 2000.
12 Each of the defendants filed an appearance to the writ. Pursuant to an order of Registrar S Boyle on 24 February 2010, the plaintiff filed a substitute statement of claim seeking proof in solemn form of the earlier will dated 5 January 1995.
13 Initially the first defendant filed a defence and counterclaim seeking proof in solemn form of the will dated 6 June 2000. However, subsequently, an order was obtained giving leave to the first defendant to withdraw his defence and counterclaim. By consent of the parties, an order was made on 15 November 2010 that the plaintiff's action for proof in solemn form of the will dated 5 January 1995 be set down for trial on an undefended basis (the order refers to a will dated 5 February 1995, but this is a typographical error).
(Page 5)
Relevant principles
14 The entitlement of an executor to seek proof of a will in solemn form, even where there is evidence of a subsequent will, has been considered in a number of decisions of EM Heenan J: Thornhill v Thomas [2010] WASC 297 and Hoare v Reyburn (In his capacity as the Executor named in the Purported Will) [2010] WASC 301.
15 In Hoare's case, EM Heenan J stated at [7] - [8] as follows:
The entitlement of an executor to seek proof of a will in solemn form, and the significance of such a grant of probate, were described in my earlier judgment in Wheatley v Edgar [2003] WASC 118 where reference was also made to the judgment of Legoe J in In The Estate of Kirs (dec'd) (1990) 55 SASR 61. In In Re Levy (dec'd) (No 2) [1957] VR 662, Sholl J stated at 665:
'That indicates that the common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition…
Nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will of which probate is sought.'
This recognises the established principle that there is no onus on an executor seeking to propound the earlier of two testamentary instruments to prove a lack of testamentary capacity at the time of the later testamentary instrument or prove its invalidity: In The Estate Of The Late Leo Rene Raig [2006] ACTSC 96 and Re Grey Smith (1978) VR 596. In In The Estate Of The Late Leo Rene Raig Master Harper referred to the decision in Re Grey Smith as follows [34]:
'Re Grey Smith [1978] VR 296, a decision of Murphy J of the Supreme Court of Victoria, is authority for the proposition that the onus of proving the validity of a later will in the circumstances of this case rests on those seeking to propound it. Where an executor can establish circumstances which give rise to a well-founded suspicion that the second document does not represent the true will of a capable testator then, provided that notice has been given to all interested parties and none have come forward to propound the
- later document and the will is proved in solemn form, the court should ignore the later document.' (emphasis added)
16 His Honour EM Heenan J further stated:
The plaintiff has, from the outset, disclosed to the court and the potential beneficiaries the existence of the later will of 2005 and that testament has been produced to the court. Notice of proceedings have been given to the executor and to the pecuniary residuary beneficiary named under that will but, as already described, neither has attempted to defend the proceedings or to propound that will. This is sufficient of itself to allow the court to make a grant of probate of the 2001 will in accordance with the principles which I have just set out [11].
17 The above passage should not be interpreted as suggesting that there need not be any evidence presented as to the incapacity of the testator/testatrix of a subsequent will where the executor seeks to proof in solemn form an earlier dated will. Otherwise, a clearly valid will could be ignored simply because the executor and interested parties wanted an earlier will to be treated as the will of the deceased. Such a result would defeat the testamentary powers of a person to make a subsequent will and revoke all earlier wills. In my opinion, his Honour in the above passage was referring to the overall onus of proof. This is clear by his Honour's reference to Re Grey Smith [1978] VR 596.
18 In Re Grey Smith, Murphy J expressly rejected authorities that suggested that in circumstances where there is a subsequent will, the executor must fully satisfy the court of the incompetence of the testator at the time of the subsequent will. However, Murphy J went on to state that 'it ought to be sufficient for the applicants for probate of an earlier will alone to establish circumstances giving rise to a well-founded suspicion' (604) as to the testamentary capacity. In Re Grey Smith's case (606), Thornhill's case [16] and Hoare's case [12], there was evidence to suggest that there were circumstances giving rise to a well-founded suspicion as to the incapacity of the testator at the time of the subsequent will.
19 In summary, I conclude that before an executor is entitled to an order for proof in solemn form of a will, notwithstanding the existence of a later dated will, the executor must satisfy the court:
(a) that there is evidence to establish circumstances giving rise to a well-founded suspicion that the testator/testatrix was incapable of making the subsequent will; and
(Page 7)
- (b) that notice has been given to all interested parties and no-one has come forward to propound the later document.
Evidence of incapacity
20 The affidavits filed in support of the claim of the plaintiff contain no material alluding to the issue of the mental capacity of the deceased at the time of the will dated 6 June 2000. However, the plaintiff gave oral evidence. In his evidence, the plaintiff said that in 1999, he observed a deterioration in the deceased's mental condition. This caused her to suffer severe memory problems and she stopped performing daily functions, such as reading the paper and writing letters. He gave an account of an occasion when his mother had spent a number of days with the plaintiff and his wife at North Yunderup. Shortly after returning the deceased to her residence, the plaintiff received a telephone call from the deceased in which she complained that he had not been to see her and she indicated that she had no memory of spending a period of time with the plaintiff and his wife at North Yunderup. The plaintiff also said that the deceased became extremely repetitive in her conversation.
21 As a result of the deterioration in the deceased's mental condition, arrangements were made for the deceased to be assessed at the Bentley Hospital. A number of reports from the Bentley Hospital were made available to the plaintiff. Copies of these reports have been tendered into evidence. A report of the Bentley Health Service dated 27 October 1999, addressed to the deceased's general practitioner, reports that a cranial CT scan showed temporal and frontal lobe atrophy, which was a condition favouring dementia either of Alzheimer's type, or fronto-temporal dementia. A report dated 7 December 1999 indicated that assessment results suggested that the deceased was functioning within the dementia range.
22 Based upon this material, I am satisfied that there is evidence of circumstances which give rise to a well-founded suspicion that the deceased suffered a testamentary incapacity at the time of the making of the will dated 6 June 2000.
23 Further, I am satisfied that all interested parties have been given notice of the application by the plaintiff in these proceedings and none of them have in these proceedings sought to have the will dated 6 June 2000 proved in solemn form.
24 In such circumstances, based upon the principles cited earlier in this decision, there is no onus on the executor seeking to propound the will
(Page 8)
- dated 5 January 1995 to prove a lack of testamentary capacity at the time of the later testamentary instrument dated 6 June 2000.
25 Further, I am satisfied on the evidence before me that the will of the deceased dated 5 January 1995 has been regularly made and executed so as to be a valid will. In these circumstances, I consider the court should make a grant of probate in solemn form of the will dated 5 January 1995, the plaintiff having sworn that if he obtains a grant of probate, he will administer the estate of the said deceased according to the law.
26 The form of the grant is to be settled by a probate registrar, but there will be liberty to apply to the court for any directions concerning the form of the grant, should it be necessary to do so.
27 These proceedings have been necessary to obtain a grant of probate. In the circumstances, I will order that the costs of the application are to be treated as testamentary expenses and paid out of the estate.
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