Docking v Schwarzkopf

[2015] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

DOCKING v SCHWARZKOPF

[2015] SASC 18

Judgment of The Honourable Justice Stanley

13 February 2015

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY

SUCCESSION - MAKING OF A WILL - EXECUTION - GENERALLY

Application to admit a will to probate in solemn form. 

Albert Theodore Docking, the deceased, died on 2 August 2009.  On 27 April 1989 the deceased made and duly executed a will appointing the plaintiff as the sole executor of his estate.  On 19 June 2007 the deceased made and duly executed a document purporting to be a will revoking all former wills and testamentary dispositions, and appointing the defendant as the sole executor of his estate.  The plaintiff seeks to have the 1989 will admitted to probate.  He seeks to have the Court pronounce against the force and validity of the 2007 will on the basis that the deceased lacked testamentary capacity at the time he made and executed the 2007 will as a result of suffering mental illness, namely, dementia.  The defendant took no steps to participate in the trial of the action.  The matter proceeded in the absence of a party seeking to propound the validity of the 2007 will. 

Whether the deceased lacked testamentary capacity at the time he made and executed the 2007 will.

Held:

1. The 2007 will appears to have been executed in accordance with the formalities prescribed by the Wills Act 1936 (SA), and so in the absence of evidence to the contrary would be presumed to have been made by a person with the requisite testamentary capacity (at [24] - [25]).

2. There is evidence to the contrary in this case. It has been affirmatively established that the deceased did lack testamentary capacity at the time of the making of the 2007 will (at [25] and [29]).

3. The plaintiff has the advantage of the presumption arising from the proper execution of the 1989 will that the deceased had testamentary capacity at that time (at [32]).

4. Orders pronouncing in favour of the force and validity of the 1989 will and against the 2007 will (at [33]).

Wills Act 1936 (SA); Guardianship and Administration Act 1993 (SA) s 3, referred to.
Menz v Menz [2014] SASC 180; Wheatley v Edgar (2003) 4 ASTLR 1; R v Levy (No. 2) (1957) VLR 662; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171; Banks v Goodfellow (1870) LR 5 QB 549; Boreham v Prince Henry Hospital (1955) 29 ALJ 179; Timbury v Coffee (1941) 66 CLR 277; Wade v Frost [2014] SASC 162; Re Estate of Griffith (1951 – 2002) 217 ALR 284, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"testamentary capacity"

DOCKING v SCHWARZKOPF
[2015] SASC 18

Civil

STANLEY J:

Introduction

1. This is an application to admit a will to probate in solemn form. 

   Background

2. Albert Theodore Docking, the deceased, died on 2 August 2009.  He was 92 years old.  On 27 April 1989 the deceased made and duly executed a will appointing the plaintiff as the sole executor of his estate (“the 1989 will”).  The 1989 will made a specific bequest of photographs to the plaintiff, Graeme John Docking, and a further specific bequest of a motor vehicle to the deceased’s brother, Ralph William Docking.  The residue of the estate was to be shared equally between the plaintiff and Mark James Packer.  The plaintiff is a nephew of the deceased.  On 19 June 2007 the deceased made and duly executed a document purporting to be a will revoking all former wills and testamentary dispositions, and appointing the defendant, Michael Bjorn Schwarzkopf, as the sole executor of his estate (“the 2007 will”).  The 2007 will provided that in the event the defendant was unwilling or unable to act as executor, the deceased appointed the defendant’s fiancée, Ella Elmira Schwarzkopf, as the sole executor (sic) of the estate.  The 2007 will bequeathes the whole of the estate to the defendant and in the event that he predeceases the testator, it provides that the defendant’s daughter, Claudia Anttoinette Schwarzkopf, takes the whole of the estate.  The defendant also is a nephew of the deceased. 

3. On 11 February 2011 the plaintiff lodged a caveat at the Probate registry.  The caveat sought to prevent the sealing of a grant of probate over the deceased’s estate without notice to the plaintiff.  The caveat has been renewed from time to time. 

4. The plaintiff seeks to have the 1989 will admitted to probate.  He seeks to have the Court pronounce against the force and validity of the 2007 will on the basis that the deceased lacked testamentary capacity at the time he made and executed the 2007 will as a result of suffering mental illness, namely, dementia. 

5. The plaintiff is a discharged bankrupt.  He became bankrupt on 7 January 2011.  He was discharged from bankruptcy on 8 January 2014.  These proceedings were commenced in this Court on 25 July 2014.  The plaintiff’s trustee in bankruptcy, Anthony Christopher Matthews, swore an affidavit on 6 November 2014.  He states that the plaintiff paid the deceased’s funeral costs in the sum of $10,296.83.  The plaintiff and his trustee have agreed that that money is an asset which vests in the plaintiff’s bankrupt estate.  Further, the trustee takes the view that any entitlement on the part of the plaintiff to the deceased’s estate will fall into the plaintiff’s bankrupt estate.  Mr Matthews also takes the view that the plaintiff’s right to pursue a grant of probate became vested in the plaintiff’s trustee.  Mr Matthews states that he has come to a settlement with the plaintiff.  He has agreed to allow the plaintiff to pursue a grant of probate in relation to the deceased’s estate.  Mr Matthews will not take any steps to involve himself in these proceedings and will not interfere with any administration of the deceased’s estate by the plaintiff should a grant of probate be made in respect of the 1989 will provided that the trustee receives the amount payable to him as part of the settlement. 

6. The principles applicable to a grant of probate in solemn form were considered in Menz v Menz,[1] where Gray J cited with approval the analysis of those principles by E M Heenan J in Wheatley v Edgar[2] as follows:[3]

   In my view these authorities produce the result that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time:  Barry v Butlin (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this 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 understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.

   [1] [2014] SASC 180 at [14].

   [2] [2003] WASC 118, (2003) 4 ASTLR 1.

   [3] [2003] WASC 118 at [24], (2003) 4 ASTLR 1.

7. The defendant was served with the proceedings and given notice of the hearing of the matter before the Court.  He has not entered an appearance and has taken no steps to participate in the trial of the action.  Accordingly, the matter proceeded in the absence of a party seeking to propound the validity of the 2007 will. 

8. The sole issue in these proceedings is testamentary capacity.  In considering an application for probate of a will, the Court is not conducting some independent inquiry which places it under a duty to go into evidence which the parties before the Court have not adduced.[4]  However, in cases where an order is sought pronouncing against a will, the Court should conduct an investigation where circumstances exist which give rise to a well founded suspicion that the document is not valid and no party comes forward to rebut those circumstances.[5] 

   [4]    R v Levy (No. 2) (1957) VLR 662 at 665; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171 at [37].

   [5]    Spoehr v Health Services Charitable Gifts Board [2014] SASC 171 at [38].

9. Before considering the evidence of the deceased’s capacity, it is necessary to address the principles applicable to the determination of the question of the existence of testamentary capacity. 

   Testamentary capacity

10. The commencement point for a consideration of testamentary capacity is the judgment in Banks v Goodfellow[6] where Cockburn CJ said:[7]

    It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to 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.

    [6] (1870) LR 5 QB 549.

    [7] (1870) LR 5 QB 549 at 565.

11. Cockburn CJ enunciated this principle in the context of a case in which it was alleged the testator had suffered mental illness.  He said:[8]

    If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right?  It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged.  If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.

    [8] (1870) LR 5 QB 549 at 565 – 566.

12. Banks v Goodfellow[9] emphasises that the mere existence of mental illness does not necessarily deprive a testator of testamentary capacity.  Notwithstanding the existence of mental illness a testator may still retain sufficient intelligence to understand and appreciate the significance and effect of a testamentary act.  If he does so, the will is not invalidated for want of testamentary capacity.  This proposition was considered in Timbury v Coffee[10] where Dixon J (as he then was) said:[11]

    “Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner" (per Hood J, In the Will of Wilson (1897) 23 VLR 197, at p 199). “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 the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (per Cresswell J, Symes v Green (1859) 1 Sw & Tr 401, at p 402)-Cf per Holroyd J, In the Will of Key (1892) 18 VLR 640. “In the end the tribunal- the court or jury – must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v. Tebbitt (1867) LR 1 P & D 398, at p 436; Sutton v Sadler (1857) 3 CB (NS) 87, at p 97)" (per Rich J, Landers v Landers (1914) 19 CLR 222, at pp 235, 236).

    [9] (1870) LR 5 QB 549.

    [10] [1941] HCA 22, (1941) 66 CLR 277.

    [11] [1941] HCA 22, (1941) 66 CLR 277 at 283.

13. The approach of a court to the determination of the question of whether a testator has testamentary capacity was considered in Boreham v Prince Henry Hospital[12] where, in a joint judgment, Williams, Fullagar and Kitto JJ said:[13]

    The proper approach of the Court to the question whether a testator has testamentary capacity is clear.  Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.

    [12] (1955) 29 ALJ 179.

    [13] (1955) 29 ALJ 179 at 180.

14. The authorities establishing and applying these principles recently have been subject to extensive analysis by Gray J in Wade v Frost.[14]Gray J said:[15]

    The effect of these authorities is that, in cases such as the present, notwithstanding the presumption of testamentary capacity, once appraised of allegations or evidence of a lack of testamentary capacity, the court should carefully assess the evidence to affirmatively satisfy itself that the deceased was of sound mind when making his or her will.  The deceased’s testamentary capacity is a question of fact on which the court must ultimately come to its own conclusion on the evidence, though it may be assisted by expert evidence.  Before making a finding that the deceased had testamentary capacity, the court should be satisfied that the deceased was aware of the significance of making a will, the assets comprising his or her estate – in general terms – and the persons who might expect to inherit under the will and the basis for their expectations.  Further, the court should be satisfied that, at the time of making the will, the deceased’s judgment in deciding how to dispose of his or her estate was not overborne, for example by a medical condition, age or the influence of another person. 

    [14] [2014] SASC 162 at [25] – [36].

    [15] [2014] SASC 162 at [37].

    Testamentary capacity of the deceased

15. The plaintiff swore an affidavit on 22 July 2014.  In his affidavit the plaintiff states that the 1989 will is in his custody.  The plaintiff produced the 1989 will to the Court.  In his affidavit he refers to the existence of the 2007 will, a copy of which is in his possession.  He states he is unaware of the whereabouts of the 2007 will but believes it to be in the possession of the defendant.  The plaintiff is unaware of any other will or testamentary disposition having been made by the deceased.  The plaintiff states that he is not aware of any other living blood relative of the deceased apart from himself and the defendant or any other blood relative who survived the deceased by any period but who has subsequently died. 

16. The plaintiff gave evidence that he knew the deceased as “Uncle Pat”.  The deceased was the brother of the plaintiff’s father.  The deceased’s wife died in about 1985.  At this time, the deceased resided in Adelaide.  The plaintiff resided in Port Lincoln with his wife.  Following the death of the deceased’s wife, the plaintiff’s father provided emotional support to the deceased.  They took holidays together and visited each other.  They spoke to each other weekly.  The plaintiff’s father died in about 1997.  The deceased missed his brother and telephoned the plaintiff because he “had no one else to call”.  Thereafter, the plaintiff spoke with the deceased by telephone regularly.  The plaintiff and his wife would visit the deceased whenever they were in Adelaide and would do what they could to make him comfortable. 

17. The plaintiff said in evidence that some time in about 1990 or 1991 the deceased informed him that he had made a will appointing the plaintiff as his sole executor.  Shortly thereafter he received a copy of the 1989 will from the deceased. 

18. The plaintiff gave evidence that in late 2005 he was contacted by the Modbury Hospital to inform him that the deceased had been admitted with a severe shoulder injury that required surgery.  He spoke to a doctor because the hospital staff were concerned that the deceased was “demented” and they required permission from a family member to operate.  Following this, the plaintiff arranged for Anglicare to visit the deceased on a regular basis to assist in his care.  In 2006 the deceased suffered a fall which resulted in a further period of hospitalisation.  The plaintiff came to Adelaide to see the deceased in hospital.  The plaintiff described an incident in hospital where the deceased seemed vague and complained to him about a “bloke in Port Lincoln, Graeme Docking” who was trying to get his money.  The plaintiff asked the deceased whether he realised to whom he was speaking.  He explained that he was Graeme Docking.  The deceased looked surprised and then appeared to recognise the plaintiff and they continued to converse without any further reference to this matter.  The plaintiff concluded this visit apparently on good terms with the deceased.  Following this, the plaintiff described a number of telephone conversations with the deceased in which he sounded confused and vague.  He provided an example where in a discussion with the deceased, the deceased could not recall the plaintiff’s wife, notwithstanding that he had demonstrated great affection towards her on various occasions when she had visited the deceased.  The plaintiff considered that the deceased’s health deteriorated rapidly in early 2007.  The plaintiff was telephoned by staff from the Queen Elizabeth Hospital informing him that the deceased had been found wandering the streets confused and malnourished.  The plaintiff described the deceased at this time as being “in his own little world”.  Accordingly, in about April or May 2007 the plaintiff took steps to apply to the Guardianship Board for orders for the care and management of the deceased’s affairs.  On 9 January 2008 the Guardianship Board made an order that the Public Trustee be appointed as the full administrator of the affairs of the deceased.  Before that order was made it appears that the deceased was placed in some form of residential care and lived for a time with the defendant.  This appears to have occurred in 2007 although the plaintiff’s evidence as to the dates when this occurred and the sequence in which these events occurred was confused.  The plaintiff also gave evidence that in about August 2007 the deceased was again admitted to the Modbury Hospital.  The plaintiff visited him there.  During that visit the deceased referred to changing his will and leaving everything to his granddaughter.  The deceased did not have a granddaughter.  The deceased had no children. 

1. In addition, I heard evidence from a clinical neuropsychologist, Dr Colin Field, who assessed the deceased at the request of the Guardianship Board on 19 October 2007. At the time the deceased was 90 years old. Dr Field was asked by the Board to determine whether the deceased had a mental incapacity within the meaning of s 3 of the Guardianship and Administration Act 1993 (SA), whether the deceased had testamentary capacity in June 2007 and whether the deceased had testamentary capacity on 10 September 2007 to enable him to enter into an Enduring Power of Guardianship in favour of the defendant.

2. Dr Field gave evidence that the deceased attended for assessment accompanied by a man who the deceased referred to as his cousin and guardian. He said that the deceased referred to this person as Mike but did not appear to know his surname.  Dr Field formed the view that the deceased was upset at having to attend for the purpose of this assessment.  He found him to be generally uncooperative but he participated in the assessment.  He interviewed the deceased alone.  The deceased told him that he was unhappy with the plaintiff for bringing an application to the Guardianship Board and preferred Mike to be his guardian.  The deceased said he moved in with Mike recently but was unable to provide that address.  Dr Field said that the deceased informed him he owned a house at 37 Packers Drive, Highbury, and that that house was currently empty.  The deceased told Dr Field that he previously lived at Modbury but he could not provide any more precise address.  He told Dr Field that his assets consisted of a house and around $2,000 at most.  The deceased told Dr Field that he did not believe that Mike had any interest in gaining a stake in his estate.  Dr Field said he asked the deceased if he had recently seen a lawyer.  Initially he replied that he had not but then said he might have seen one in the previous month.  When asked, he could not recall the name of the lawyer.  Dr Field asked him if the lawyer might have been Mr Schwarzkopf.  The deceased replied that he did not know but that might be the case.  Dr Field asked if the deceased saw the lawyer in connection with changing his guardianship arrangements and he said he thought this might be the case but was uncertain. 

3. Dr Field undertook certain neurological screening tests.  He found that the deceased had difficulty recalling his date of birth.  On formal neuropsychological assessment he formed the opinion that the deceased was well oriented in time although not in place.  Dr Field formed the opinion that the deceased showed evidence of a significant cognitive deficit consistent with an established dementia. 

4. Dr Field considered the deceased’s presentation demonstrated a severe amnesic syndrome together with significant decrements of organisational function.  While expressing reservations about the employment of screening tests to assess the presence of a dementia, Dr Field noted that the three independent assessment methods used by him all yielded evidence of an established dementia.  Apart from formal test results however, Dr Field found that the deceased’s presentation was inconsistent and vague with respect to his stated preferences and understanding of his recent guardianship arrangements.  This assessment may partly be attributable to Dr Field’s confusion about the identity of Mike.  At the time of the interview he laboured under the misapprehension that Mike and Mr Schwarzkopf were two separate individuals.  I consider it highly likely that the person accompanying the deceased to the assessment with Dr Field was in fact the defendant.  Nonetheless, it is the case that at the time of the assessment, the deceased was unable to refer to Mike by his surname, described him as his cousin when in fact he was his nephew, had no clear memory of seeing a solicitor in the recent past, nor of making a will or entering into any arrangement concerning his guardianship.  Dr Field considered the deceased was unable to describe clearly his medium to long-term intentions in respect of his estate.  I place considerable significance on the deceased’s statement to Dr Field that he did not believe “Mike” had any interest in gaining a stake in his estate.  I am satisfied that the deceased was referring to the defendant.  I find the deceased had no memory or did not understand that four months earlier he had made a will leaving his entire estate to the defendant. 

5. Dr Field concluded that the deceased suffered a mental incapacity as defined in s 3 of the Guardianship and Administration Act, namely, an established dementia, probably vascular subtype.  Further, Dr Field concluded that this dementia had been present for some considerable period of time, possibly one or more years, and was severe.  On that basis he was of the opinion that the deceased in June 2007 lacked testamentary capacity in accordance with the principles in Banks v Goodfellow.[16]  That is to say that Dr Field was of the opinion that the severity of the deceased’s symptoms of vascular dementia were such that for a period of some months, if not a year, prior to his assessment, the deceased was incapable of understanding the meaning and effect of a will, the nature and extent of his assets and the person or persons who might have had a legitimate claim on his estate. 

   [16] (1870) LR 5 QB 549.

   Consideration

6. On its face, the 2007 will appears to have been executed in accordance with the formalities prescribed by the Wills Act 1936 (SA). It was signed by the deceased as testator. It appears on the face of the document that the deceased intended by his signature to give effect to the document as his will. His signature was witnessed by two solicitors. There is no evidence, however, that they were present at the same time or that they also attested and signed the will in the presence of the deceased. Nonetheless, in circumstances where the witnesses appear to have been solicitors, I am prepared to infer that was so.

7. In the absence of evidence to the contrary, the 2007 will would be presumed to have been made by a person with the requisite testamentary capacity.  However, there is evidence to the contrary.  On the basis of the evidence of the plaintiff and Dr Field, I am satisfied that circumstances exist to excite suspicion that the deceased lacked testamentary capacity at the time of the execution of the 2007 will. 

8. The evidence of the plaintiff establishes that from some time in 2006 the deceased was suffering from periods of confusion such that he was deluded into thinking that the plaintiff was trying to take his money. [17]  I am satisfied that the plaintiff was not trying to take the deceased’s money.  From that time the deceased had episodes where he could not recognise the plaintiff or his wife.  By 2007 the deceased’s thinking was so disordered that approximately two months after executing the 2007 will he informed the plaintiff that he had changed his will to leave his entire estate to a non-existent granddaughter. 

   [17]   I use the term “deluded” in the sense described by Gleeson CJ in Re Estate of Griffith (1951 – 2002) 217 ALR 284 at 291.

9. The evidence of Dr Field establishes that by June 2007 the deceased was suffering from a vascular dementia that deprived him of the capacity to understand properly the nature and extent of a will and the persons who might have a legitimate claim on his estate.  While Dr Field considered that the deceased lacked the capacity to understand the nature and extent of his assets, that seems to me less clear.  The deceased was able to tell Dr Field that his estate consisted of a house in Highbury and money in the bank.  This appears to be correct.  However, there is support for Dr Field’s opinion in that the deceased seemed to think that at the most he had $2,000 in the bank when the evidence suggests that the figure was more like $20,000.[18]  On balance, I accept Dr Field’s opinion in this regard.  In any event, I am satisfied on the basis of Dr Field’s evidence that the deceased lacked testamentary capacity in accordance with the test in Banks v Goodfellow[19] at the time of the execution of the 2007 will. 

   [18]   Transcript p 34.

   [19] (1870) LR 5 QB 549.

10. Neither the defendant nor any other party has come forward to tender any evidence or make any submission that the deceased did have capacity at that time.  While it is not uncommon in a case such as this for evidence to be called from the solicitor who took instructions for the impugned will and from those who witnessed the execution of the document concerning testamentary capacity, the plaintiff did not call the solicitors involved, Mr Twiggs and Ms Temnoff.  Having regard to the principles set out in Levy[20] and Spoehr[21] referred to above, I do not consider it is incumbent upon the Court to call any witnesses itself or require the plaintiff to call those witnesses. 

    [20] (1957) VLR 662.

    [21] [2014] SASC 171.

11. The authorities emphasise that the power freely to dispose of one’s assets by will is an important right and a determination that a person lacks testamentary capacity is a grave matter,[22] nonetheless in this case I am satisfied not just that there is a well founded suspicion that the deceased lacked testamentary capacity at the time of the making of the 2007 will but that, in fact, that proposition has been affirmatively established on the evidence.

    [22]   Re Estate of Griffith (1951 – 2002) 217 ALR 284 at 290.

12. In these circumstances, I consider it appropriate to make an order pronouncing against the validity of the 2007 will. 

13. Unsurprisingly, there is no issue as to the deceased’s testamentary capacity at the time of the making and execution of the 1989 will.  Guy White, the deceased’s solicitor for the purposes of the making of the 1989 will, swore an affidavit on 23 October 2014.  In his affidavit Mr White states that he is one of the subscribing witnesses to the 1989 will.  He further states that on 27 April 1989 the deceased executed the will by signing his name at the foot or end of the document and on each page in his presence and that of Ms L Stephens, the other subscribed witness, both being present at the same time, and they then attested and subscribed the 1989 will in the deceased’s presence at his request.  Mr White states that at the time of the execution of the 1989 will, the deceased told him he had read and understood the document and had full knowledge of its contents. 

14. In the circumstances, the plaintiff has the advantage of the presumption arising from the proper execution of the 1989 will that the deceased had testamentary capacity at that time.  Accordingly, I am prepared to make an order pronouncing in favour of the force and validity of the 1989 will. 

    Conclusion

15. For these reasons, I make orders pronouncing for the force and validity of the deceased’s will dated 27 April 1989 and against the document dated 19 June 2007.