Claudio Quadrio as Executor of the Estate of Gertrude ENA Winston (Dec) v Wishart
[2006] WASC 108
•26 APRIL 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CLAUDIO QUADRIO as Executor of the Estate of GERTRUDE ENA WINSTON (DEC) -v- WISHART & ORS [2006] WASC 108
CORAM: JOHNSON J
HEARD: 26 APRIL 2006
DELIVERED : 26 APRIL 2006
FILE NO/S: CIV 1533 of 2003
BETWEEN: CLAUDIO QUADRIO as Executor of the Estate of GERTRUDE ENA WINSTON (DEC)
Plaintiff
AND
EDWIN KEITH WISHART
PETER WISHART
JOAN MCINTYRE
ALAN O'REILLY
LOVELLA KIRPALANI
NORMA LISLE
SUE WARMAN
DIANNE WINEHAM
PATRICIA O'REILLY
RODNEY NEAVES
RHONDA BECK
First DefendantsSILVER CHAIN NURSING ASSOCIATION (INCORPORATED)
CARMELA KIELEY
PETER CHARLES LESITER
CHERYL DAWN RIGG
EDWIN KEITH WISHART
WENDY GAYE WISHART
GEOFFREY PAUL WINSTON
GORDANA WINSTON
Second DefendantsEDWIN KEITH WISHART as Executor of the Estate of GERTRUDE ENA WINSTON (DEC)
Third Defendant
Catchwords:
Proof of Will in solemn form
Legislation:
Evidence Act 1906 (WA), s 79B(g), s 79B(h)
Guardianship and Administration Act 1990 (WA)
Rules of the Supreme Court 1971 (WA), O 73, r 18
Wills Act 1970 (WA), s 8
Result:
1999 Will proved in solemn form and probate granted
Category: C
Representation:
Counsel:
Plaintiff: Ms M Van der Kwast
First Defendants : No appearance
Second Defendants : No appearance
Third Defendant : No appearance
Solicitors:
Plaintiff: Dwyer Durack
First Defendants : No appearance
Second Defendants : No appearance
Third Defendant : No appearance
Case(s) referred to in judgment(s):
In Re Levy (No 2) [1957] VR 662
In the Will of Steward [1964] VR 179
In the Will of Wilson (1897) 23 VLR 197
Timbury & Anor v Coffee & Anor (1941) 66 CLR 277
Worth v Clasohm & Anor (1952) 86 CLR 439
Case(s) also cited:
Nil
JOHNSON J: This is an application for a grant of probate in solemn form with respect to the Will of Gertrude Ena Winston who I refer to as the deceased dated 22 February 1999. I will refer to that Will in these reasons as "the 1999 Will". There is some dispute as to the place of the deceased's death but it is the case that she died on 29 March 2002. The plaintiff is the sole executor and beneficiary of the 1999 Will.
The first defendants are the children of the deceased's siblings all of whom have predeceased the deceased and those children are the only persons entitled to share in the Estate of the deceased in the event she died intestate. The first named second defendant, Silver Chain Nursing Association, who I will refer to as Silver Chain, provided care for the deceased between 16 February 1995 and 30 October 2000 and is named as a beneficiary in a Will executed by the deceased on 13 April 2000, "the 2000 Will".
The remainder of the second defendants are named as beneficiaries in the 2000 Will. I will refer to the circumstances of the 2000 Will at a later point in these reasons and it will become apparent that it is not a Will in accordance with the usual term. The third defendant, Edwin Keith Wishart, is the executor named in the 2000 Will, he is also the first named first defendant, being one of the children of the deceased's siblings who would benefit from a declaration of intestacy.
In addition, Mr Wishart is the fifth named second defendant in his capacity as the beneficiary of the 2000 Will. The plaintiff alleges that the deceased lacked testamentary capacity when the 2000 Will was made and executed and claims for the Court to pronounce for the force and validity of the 1999 Will in solemn form of law. In their defence to the plaintiff's claim, the first named first defendant, Edwin Wishart, the seventh named second defendants and the third defendant, Mr Wishart in his capacity as executor, pleaded that at the time of the 1999 Will the deceased lacked testamentary capacity and hence the 1999 Will is invalid.
They also plead undue influence on the part of the plaintiff with respect to the making and execution of the 1999 Will. However, by a minute of consent order made pursuant to O 73 r 18 of the Rules of the Supreme Court 1971 (WA), each defendant has withdrawn the defence pleaded and discontinued the counterclaim made against the plaintiff. It is therefore the case that the only claim which requires resolution is the plaintiff's claim for the Court to pronounce with the force and validity of the 1999 Will in solemn form of law and to make a grant of probate with respect to the 1999 Will.
As a consequence of the minute of directions dated 3 March 2006 filed by consent on behalf of all parties, in determining whether to pronounce for the force and validity of the 1999 Will the evidence to be relied upon is affidavit evidence only. In making a determination of this type there are a number of primary legal principles to which consideration must be given. Firstly, a Will is not valid unless it is in writing, it is signed by a testator, the testator signs in the presence of at least two witnesses present at the same time and the witnesses attest and subscribe the Will in the presence of the testator. I there refer to s 8 of the Wills Act 1970 (WA).
Secondly, there is a presumption that the testator knew the contents and effects of the Will and I refer there to In the Will of Steward [1964] VR 179 (at 18,425):
"In the absence of evidence to the contrary an inference that the testator knew of the contents and effects of the Will may be drawn from the mere fact that a person of sound mind has duly executed a document declaring it to be his Will."
That comment appears at page 185 of the authority to which I have just referred. Thirdly, there is a presumption of capacity, the reference for that proposition is In the Will of Wilson (1897) 23 VLR 197 (at 199) also Timbury & Anor v Coffee & Anor (1941) 66 CLR 277 (at 283):
"If a Will rational on the face of it is shown to have been executed and attested in the manner prescribed by law it is presumed, in absence of any evidence to the contrary, that it was made by a person of competent understanding."
The reference there is to page 199 of In the Will of Wilson. The fourth legal principle is that, "The Court is not under any duty to satisfy itself by any form of investigation of the validity of the will of which probate is sought," In Re Levy (No 2) [1957] VR 662 (at 665 and 666). The fifth proposition is that:
"When opposition to a Will has been withdrawn the executor may proceed to prove the Will leading only evidence of due execution and such evidence as he may think proper with regard to capacity if he desires to rely on any such evidence to reinforce the ordinary presumption as to capacity."
In Re Levy (No 2) (at 666). The sixth legal principle is:
"A residual doubt is not enough to defeat the plaintiff's claim to probate unless it is thought by the Court to be substantial enough to preclude a belief that the document propounded is the Will of the testator who possessed sound mind, memory and understanding at the time of his execution."
The authority for that proposition is Worth v Clasohm & Anor (1952) 86 CLR 439 (at 453). In disputing the validity of the 1999 Will the defendants raised the issue of the deceased's mental capacity at the time of execution. Undue influence by the plaintiff and misconduct on his part with respect to the deceased's money was also alleged. Such allegations having been withdrawn, the Court must look only to the circumstances surrounding the execution of the 1999 Will in determining whether there arises any issue raising a substantial doubt to preclude a belief that the Will is valid.
At the time the deceased executed the 1999 Will she was 84 years old. She left her entire Estate to the plaintiff who was not a member of her family but a person who had cared for her for a number of years prior to her death. In my view the Court should scrutinise carefully the Will of an elderly person who leaves his or her Estate wholly or substantially to a carer who is not a family member. I make that observation without consideration of any of the allegations made by the defendants but later abandoned.
It is also the case that on or about the 7 March 2000 an order was made appointing Edwin Wishart as administrator of the deceased's affairs pursuant to the Guardianship and Administration Act 1990 (WA). The relatively short period, a little over a year, between the execution of the 1999 Will and the need for the deceased to have an administrator appointed to conduct her affairs is a matter which also requires scrutiny. In addressing these issues it is appropriate to turn to the circumstances surrounding the making and the execution of the 1999 Will.
The affidavit evidence of Anouka Thomas, one of the witnesses to the 1999 Will, is to the effect that the deceased signed the Will in her presence and in the presence of Ivan Carija, the second witness. Both witnesses then attested and subscribed the 1999 Will in the deceased's presence. This evidence does not specifically address any of the key issues relating to the validity of the Will.
However, the affidavit evidence of Mr Carija is of greater assistance. Not only did Mr Carija witness the 1999 Will, as deposed to by Ms Thomas, he also drafted it. Mr Carija has been a solicitor for over 20 years, and has in the course of his practice drawn up thousands of Wills. He deposes to the fact that in February 1999, he received a telephone call from the plaintiff who advised him that the deceased wished to make her Will and asked if Mr Carija would draw it up for her.
The plaintiff also advised that the deceased wished to leave him all of her Estate. Mr Carija then advised the plaintiff that if he was to be a beneficiary of the Will, he should not be involved in any way in the making of the Will because of the possibility of a challenge to the Will on the basis of undue influence. Mr Carija requested the plaintiff to get the deceased to telephone him, so he could take instructions directly from her.
A day or two later, Mr Carija received a call from the deceased requesting him to draw up a Will so that the plaintiff would receive all of her Estate. Mr Carija advised that he would come and see the deceased, but that the plaintiff was not to be present when he did. Mr Carija deposes to the fact that he was alert to the issues of undue influence and incapacity and paid close attention to the deceased's words and actions.
At the time of the telephone conversation, she appeared to him to be quite normal. Some days later, Mr Carija drove to her residence and took instructions for the preparation of her Will. According to Mr Carija, the deceased advised him that she wished to leave her Estate to the plaintiff. She gave the following reasons for those instructions:
"As he has been looking after me, and because he has nothing. Claude lost his business and his house and I am very sorry for him. I have known Claude since he was a child and I am very fond of him."
In accordance with his standard practice in a matter of this type, Mr Carija asked the deceased about the significant people in her life and why they were not to receive part of her Estate. The deceased told him that her husband had died and she had no children. She said she specifically did not want any money to go to Edward Wishart. She also referred to an elderly sister in a nursing home, but said that she did not need or did not have any use for the deceased's money. She also said she had no one else to leave it to.
Mr Carija states in his affidavit that he observed the deceased carefully to try and detect any sign of testamentary incapacity or undue influence. He notes that during the course of his practice he has on occasions refused to make Wills when he was not satisfied with respect to the issues of testamentary capacity and the absence of undue influence. Mr Carija expresses the opinion the deceased was at all times making her Will freely and without undue influence.
He described the deceased as coherent and rational and able to provide relevant and responsive answers to his questions. She was dressed appropriately and her house was clean. She was able to recall generally the size of her Estate and those with claims to her Estate. In his presence she considered those claims and made a rational decision to leave her Estate to the plaintiff. Mr Carija considered her decision to be explicable in view of her explanation of her family relationships and in view of the lack of close family members who would ordinarily be expected to benefit from her Estate.
After taking instructions, Mr Carija prepared a draft Will and sent a copy to the deceased a few days later. A few days after that he received a telephone call from the deceased who advised him that she had read the draft Will and the contents were fine. She indicated that she wanted to proceed with making the Will. In due course the Will was executed by the deceased as described by Ms Thomas.
During the process, Mr Carija advised the plaintiff, who had brought the deceased to Mr Carija's office, that he was not to be present when the Will was signed. The plaintiff immediately withdrew. Mr Carija also states that he read the Will to the deceased before she signed it. He considered her to have testamentary capacity at the time. In my view, Mr Carija's evidence is compelling evidence of testamentary capacity.
There is also some medical evidence to support Mr Carija's view of the deceased's testamentary capacity. Pursuant to s 79B(g) and s 79B(h) of the Evidence Act 1906 (WA), I have received evidence of an assessment form completed by Dr Nicole Loth, senior registrar at the Bentley Health Service. The assessment is dated 28 January 1999, approximately two months before the execution of the 1999 Will. Dr Loth states:
"In terms of her cognition, she scored 12/12 on the information and orientation scale, and could recall an address given at three minutes. The house was tidy and she was well kept. Conclusion: in conclusion, this 84-year-old woman has been said to show some decline in cognition by Silver Chain, making errors with her tablets and needing prompts to remember matters. She presented well to us and scored 12/12 in the information orientation scale, including recall a given address at three minutes. Her main wish was to remain at home as long as possible."
In view of the evidence of Mr Carija and Dr Loth, I am satisfied of the deceased's testamentary capacity. The only remaining issue is the fact of leaving the Estate to a carer who is not a family member. In this context it is significant to note three factors. The first is that the plaintiff has been known to the deceased since 1957. As she said to Mr Carija, she has known him almost all of his life. This is not a case where a person has come along very late in the life of a testator and then become a beneficiary in place of family members.
The second is that on Mr Carija's uncontroverted evidence, the deceased specifically expressed a desire that Edward Wishart, who might otherwise be thought to be someone to whom the deceased might leave at least some of her Estate, receive no benefit under her Will. The third factor is the terms of her previous Will. The previous Will, said to be executed some time in 1995, and I will refer to it as "the 1995 Will", has not been found. However, in 2000, Mr Wishart attempted to re‑create the terms of the Will, with one exception.
Under the 1995 Will, the plaintiff was to receive the deceased's car. However, by 2000, the deceased had already given her car to the plaintiff, and hence that bequest was not included in the re‑created Will. The re‑creation of the 1995 Will was signed by the deceased on 13 April 2000, which is why I have previously referred to it as "the 2000 Will". The evidence would suggest that by that time, that is 13 April 2000, the deceased was suffering from dementia and lacked testamentary capacity. No defendant sought to propound that re‑creation of the 1995 Will.
However, the terms of the 1995 Will served to overcome any concerns that whatever the cause, the deceased had omitted from the 1999 Will relatives to which she might in the usual course have wanted to benefit from her Estate. Under the 1995 Will, the beneficiaries included the plaintiff, Silver Chain and a number of non‑family members who were apparently her neighbours. The only relatives included were Geoffrey Winston and his wife and Edward Wishart and his wife.
As I have indicated, the deceased expressed to Mr Carija a clear wish that Edward Wishart not benefit from her Estate. It can be seen from the terms of the 1995 Will, as re‑created in the 2000 Will, that the deceased was not someone who in the usual course of events would leave her Estate to her family. Not only had she previously bequeathed a substantial part of her Estate to non‑family members, but she had no close family members, in that she was a widow with no children.
Taking into account all of the matters to which I have referred, I am satisfied as to the validity of the 1999 Will and that I should make the orders sought by the plaintiff in this action. I therefore pronounce for the force and validity of the Will dated 22 February 1999 in solemn form of law, subject to the plaintiff filing the executed affidavit of Mr Carija.
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