Fitzgerald v Fitzgerald - [2009] WASC 340

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FITZGERALD -v- FITZGERALD [2009] WASC 340

CORAM: HALL J

HEARD: 3 NOVEMBER 2009

DELIVERED : 3 NOVEMBER 2009

PUBLISHED : 18 NOVEMBER 2009

FILE NO/S: CIV 1708 of 2008

BETWEEN: GERALD NOEL FITZGERALD As Executor Of The Estate Of BENJAMIN FITZGERALD
Plaintiff
AND
ROBERT FITZGERALD
Defendant

Catchwords:

Probate - Proof in solemn form - Whether testator had testamentary capacity

Legislation:

Nil

Result:

Pronouncement for the force and validity of the will dated 5 September 2006
Grant of probate in solemn form

Category: B

Representation:

Counsel:

Plaintiff: Mr D L Jones
Defendant: No appearance

Solicitors:

Plaintiff: Hudson Henning Goodman
Defendant: Young & Young

Case(s) referred to in judgment(s):

Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Timbury v Coffee (1941) 66 CLR 277

HALL J:
(This judgment was delivered extemporaneously on 3 November 2009 and has been edited from the transcript.)

Benjamin Fitzgerald died on 17 March 2008 aged 80. He left an estate in Western Australia comprising cash in bank accounts and a share in a partnership with a brother. The plaintiff in these proceedings is one of the deceased's brothers and the executor appointed under the will of the deceased dated 5 September 2006. The defendant is another of the deceased's brothers.
The 2006 will left the estate of the deceased to be divided equally between his four brothers if they survived him. In the event that any brother predeceased him their share was to pass to any children of that brother. One brother, Patrick Fitzgerald, did predecease the deceased leaving children. The deceased made a prior will dated 16 February 1996. In that will the defendant was appointed executor and sole beneficiary.
At the time the deceased made the 2006 will he was residing at Bunbury Nursing Home and was subject to an order of the State Administrative Tribunal that the plaintiff be appointed plenary administrator of the estate of the deceased pursuant to the Guardianship and Administration Act 1990 (WA). That order was made on 21 September 2005 and was to be reviewed on 21 September 2010. The plaintiff has sought orders pronouncing the force and validity of the 2006 will and that there be a grant of probate of that will in solemn form. Given that the deceased was the subject of an order under the Guardianship and Administration Act when the 2006 will was executed there is an issue as to whether he had testamentary capacity at that time.
The defendant has an interest in these proceedings, although he is a beneficiary under the 2006 will, as sole beneficiary under the 1996 will he stood to receive a larger amount from the estate. However, the defendant has not filed a defence in these proceedings or sought to be heard on the hearing of this matter.
On 18 November 2008 a registrar made an order that unless the defendant filed and served an affidavit of scripts and a defence within 21 days the action was to proceed on an undefended basis. A copy of that order was sent by the plaintiff's solicitors to the defendant's solicitors both by facsimile transmission and by post. On 26 November 2008 the defendant's solicitors wrote to the plaintiff's solicitors enclosing a cheque for costs ordered by the registrar and enclosing a copy of the order of 18 November 2008. In those circumstances I am satisfied that the defendant was properly served with the order and has not filed any defence. I will therefore treat the matter as undefended.
Notwithstanding that the matter is undefended, the onus remains on the plaintiff to prove that the will is formally valid and made by a testator who had the capacity to do so. A grant of probate in solemn form cannot be made simply because an application is uncontested.
The evidence relied upon in these proceedings is as follows: the affidavit of Jonathon Charles Michael Spear sworn 24 March 2009; the affidavit of Marion Evelyn Panizza sworn 26 March 2009; the affidavit of the plaintiff, Gerald Noel Fitzgerald, sworn 9 April 2009; the will of 5 September 2006; and a certified copy of the death certificate of the deceased.
On the basis of that evidence I make the following findings. At the time the deceased made the 2006 will he was residing at Bunbury Nursing Home. Prior to making the will he was assessed by Dr Jonathon Spear, a consultant psychiatrist with a speciality in geriatric medicine, to determine the deceased's capacity to make a will. That assessment took place on 15 August 2006 and Dr Spear produced a report which is annexed to his affidavit. Dr Spear reported that there was no formal thought disorder and that speech and affect were normal. The deceased responded appropriately and was able to give instructions to his solicitor, who was also present at the time. In Dr Spear's view the deceased's judgment was sound, he was aware that he owned property in partnership with his brother Robert, the defendant, and had money in the bank. He was aware he had four brothers and a number of nephews and nieces. He expressed a wish to leave his property to his brothers in equal shares and to the children of any brother should they die before him. Dr Spear concluded that the deceased appeared capable of instructing his solicitor and understanding a document. Dr Spear said he could see no evidence of coercion or delusion involving family members.
A will reflecting the deceased's expressed wishes was then drawn up and executed on 5 September 2006. Dr Spear attended on that occasion and confirmed that the deceased understood the contents of the will. Dr Spear and Ms Marion Panizza, a justice of the peace, then witnessed the deceased sign the will. Each of them also signed the will and ascribed their names, addresses and occupations. Ms Panizza also deposes to the fact that the deceased was able to understand and respond to questions put to him regarding the will.
The 2006 will states that it revokes all former wills and testamentary dispositions. The plaintiff deposes that the deceased did not marry or execute any codicil to the 2006 will and there is no evidence of any later wills or instruments of revocation. I am satisfied that the 2006 will was executed in accordance with s 8 of the Wills Act 1970 (WA).
As to capacity the Full Court of this court in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268, took the view that the existence of an administration order under the Guardianship and Administration Act does not determine the testamentary capacity of a represented person and the test as to the testamentary capacity of a represented person is the same test as for all persons making wills. In EM Heenan J's reasons in that case his Honour stated:
A will of a deceased person will only be admitted to probate, or be the subject of a grant of letters of administration with the will annexed, if it is proved that at the time of its execution the testator had testamentary capacity. This issue is always one of fact [52].
His Honour then referred to a number of decisions and went to say:
The question for the tribunal of fact is whether the testator was of sound disposing mind and understanding when he made his will [52].
EM Heenan J then referred to the statement of Dixon J of High Court in Timbury v Coffee (1941) 66 CLR 277, 283 where his Honour held:
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.
Having regard to the evidence of Dr Spear and Ms Panizza I am satisfied that the deceased did have the understanding and capacity to make the 2006 will. Accordingly, I will make the orders that have been sought in the minute of proposed orders of today's date, 3 November 2009.