Forde v Lee
[2013] WASC 328
•29 AUGUST 2013
FORDE -v- LEE [2013] WASC 328
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 328 | |
| Case No: | CIV:2860/2009 | 26 - 29 AUGUST 2013 | |
| Coram: | McKECHNIE J | 29/08/13 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs' claim succeeds Informal Will valid Grant of probate to executors | ||
| B | |||
| PDF Version |
| Parties: | SHIRLEY JUNE FORDE MARIE DIANE POPA as Executors of the Will of BRIAN ERNEST JOHN LEE JOHN CHARLES LEE JANET PATRICIA LEE RICHARD LEE SUZANNE DYSON MICHELLE LEE |
Catchwords: | Wills Will not formally executed Whether expressed testator's intention Whether informal Will Testamentary capacity Whether testator had capacity to execute Will Turns on own facts No new principles |
Legislation: | Wills Act 1997 (WA), s 34 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- MARIE DIANE POPA as Executors of the Will of BRIAN ERNEST JOHN LEE
Plaintiffs
AND
JOHN CHARLES LEE
First Defendant
JANET PATRICIA LEE
Second Defendant
RICHARD LEE
Third Defendant
SUZANNE DYSON
Fourth Defendant
MICHELLE LEE
Fifth Defendant
Catchwords:
Wills - Will not formally executed - Whether expressed testator's intention - Whether informal Will - Testamentary capacity - Whether testator had capacity to execute Will - Turns on own facts - No new principles
Legislation:
Wills Act 1997 (WA), s 34
Result:
Plaintiffs' claim succeeds
Informal Will valid
Grant of probate to executors
Category: B
Representation:
Counsel:
Plaintiffs : Mr R J Nash
First Defendant : In person
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
Plaintiffs : O'Connor Partners
First Defendant : In person
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Case(s) referred to in judgment(s):
- McKECHNIE J:
What this case is about
1 Mr Brian Lee was 80 when he died on 24 June 2007. As often happens in these cases many parties have the same surname so I will use first names for the Lee family hereafter. He thought he had left a valid Will. Whether it is valid is what this case is all about.
2 His marriage to Patricia was dissolved in 1967. He had not treated his first children well, having little contact after the split with his first wife.
3 He married Dorothy Pearl (Pearl) in 1976 and they lived together until her death in 1993. Brian did not remarry.
4 Brian had six children with Patricia. Later he became step-father to Pearl's three children although he did not like the term, referring to the girls as his children.
5 The document he left was not executed as it should have been under the Wills Act 1970 (WA) although it was witnessed. The signature has been proved to be that of Brian.
6 The version of the Wills Act then in force allowed a court to declare a document be a Will if satisfied that the deceased intended the document to constitute his Will: Wills Act s 34.
7 Brian's son, John, contests the validity of the document. He says that there are irrevocable and irreconcilable inconsistences and errors in the document so numerous that a declaration under s 34 cannot be made.
8 John says further that Brian was a violent alcoholic at times and lacked testamentary capacity.
9 Brian's step-daughters, Shirley and Marie, are named as executors in the document. They come to court to have the document declared to be Brian's last Will and probate granted to them accordingly. Apart from John, the other beneficiaries, Brian's natural children do not contest the Will and support the grant of probate.
The issues
10 There is much that might be said on all sides about the fairness of the Will. Even after seven years John still has strong emotions about his relationship with his father Brian, and a promise made and unkept.
11 However, the issues in this trial are narrower than that.
1. Was the document executed in accordance with the Wills Act s 8? The plaintiffs accept that it was not.
2. Did Brian intend that it constitute his Will? Yes.
3. Did Brian lack testamentary capacity when it was drafted and executed? No.
The contested document
12 The document (exhibit 10) is handwritten on a standard printed Will form. This is a significant guide to Brian's intention. The contents are found on the first page, the second and third pages are blank. The first page is not signed by either Brian or the witnesses. However, the third page is dated 21 May 1996 apparently signed by Brian and purportedly witnessed by Joan O Bridge and Barbara Patricia Brookes.
13 The body of the Will is in handwriting. Ms Nancy May Francis says that she wrote the Will at Brian's dictation:
I hereby revoke all Wills heretofore made by me, and declare this to be my last Will and Testament. I appoint Mrs Shirley Forde and Mrs Marie Popa of ... to be the Executors and Trustee of this my Will.
I Give Devise and Bequeath
To my sons John Charles Lee and Richard Lee. My personal belongings ie clothes jewelery cars, contents of the garage & sheds and other items not specifically mentioned.
To my stepdaughters Shirley Forde and Marie Popa. All furniture and household effects and half of the proceeds of my house which is to be disposed of and divided equally. All cash and moneys in my bank accounts to be shared equally.
To my children John, Richard, Janet, Michelle and Suzanne. The remaining half of the sale of the house to be shared equally.
I hope my family will see the fairness in this the disposal of my estate & will accept my decision without anger or rancour amongst themselves.
I may not have been the best of fathers but I have always strived to help as circumstances permitted.
I regret I did not live closer to you all to be able to share the love & affection that should be present in all families. Without reservation I have loved you all.
The evidence
14 The course of this litigation has been protracted. All the witnesses have previously sworn affidavits which became their evidence-in-chief subject to some deletions.
15 Most witnesses were cross-examined. In the summary which follows I have focussed on the evidence which relates to the issues in the trial. There is no real credibility question to be answered in respect of any witness. All appeared to be giving an honest account of their recollection of events, some of which occurred over 45 years ago. Although I have set some of it out, much of the evidence is irrelevant to the issues.
How the Will came to be written
16 Ms Francis gave evidence by affidavit sworn 19 August 2010 (exhibit 1) and gave further evidence de bene esse and recorded (exhibits 15A, 15B).
17 She deposed that her late husband and she were friends of Brian and Pearl. After Pearl died she kept in contact with Brian and occasionally used to visit him. On some of the occasions when she visited, mostly after Pearl died, he would ask her to assist him writing letters when he considered the matters were important. On one of the visits Brian produced a standard Will form and asked if she would help him write the Will. She said:
12. I can recall BRIAN telling me what he wanted to put in his Will. BRIAN was very clear in his instructions to me and I wrote down what he requested.
13. I recall that it took a long time but once BRIAN decided what he wanted to put in the Will I did not need to make any corrections or alterations as I wrote.
14. BRIAN told me the names of the persons who he wanted to give his estate to and I wrote them down as he gave the names to me.
18 She said that Brian also wanted her to add some additional comments to the Will which she wrote as he dictated them.
19 Brian did not tell her he had signed the Will.
20 In her evidence taken de bene esse on 15 May 2013 she explains why there is a slightly different style of handwriting in the last two paragraphs from the first three because she was scribbling everything down because she thought he was going to write it in his own handwriting.
It just came out of his, out of his mouth. 'This is what I want written', and I wrote it down and it was straightforward. There was no hesitation until the end, when I thought he'd finished. That was it.
...
[He] wasn't reading it off anything?---No. (ts 15/5/13, page 115).
21 Ms Francis thought that Brian would copy out what she had written in his own handwriting but he did not say so.
22 She was asked about his condition. She described it as, 'Well just - just normal':
I don't think he'd been drinking because it was too early in the morning any way for Brian, but no, he was just normal (ts 105).
23 He was dead sober while she wrote that, wrote the Will up.
24 She said 'he was very clear' and 'he knew exactly what he wanted me to write' down.
25 She gave evidence as to her contact with Brian's children. She met John once, probably twice. She met Richard a couple of times and also went to his wedding. She met Janet once. She does not remember meeting Michelle. She met the plaintiffs Shirley Forde and Marie Popa at Brian's house. Brian used to ring and say: 'The girls were coming to visit. They would like to see you. Please come down'. She thinks she saw them three or four times. Brian used to find them a job to do, probably in the garden and they usually went to the kitchen to make themselves a cup of tea or coffee and have a bit of lunch. Then they would stay for a while and then go home because she thought they had children to go home to.
26 She was cross-examined about the letters that she wrote on Brian's behalf. She did not know whether he sent them or not; 'it was his business, not mine' (ts 112). As to the Will:
More or less he rang me up and asked me to come down and help him with some paperwork. I didn't know what it was until I got there and he said, 'I want to write my will out. Would you please write it down for me' (ts 112).
27 She did not know the date that this was. She was asked in respect of the reference to the contents of the garage and sheds, whether they were existing. She said they were there.
The witnesses to the document (exhibit 10)
Joan Olive Bridge-Ward
28 In 1996 she was Ms Ward. In 2007 she married Mr Bridge and took his name. In an affidavit dated 16 October 2009 (exhibit 17) she deposed that:
6. The Deceased had been an old acquaintance of mine when we were both teenagers.
7. When the Deceased's wife died and my own husband of 45 years had died we renewed our acquaintance usually at the Innaloo Sportsman's Club.
29 Ms Bridge-Ward used to visit the deceased at his residence at 6 Hodges Street, Innaloo. On one of those occasions the deceased asked if she would sign his Will:
12. I can recall that when I arrived at the Deceased's residence, I knocked on the front door and then came into the Deceased's lounge room where the Deceased was standing in front of his television set.
...
15. I have no recollection of the exact date that the Will was signed by me but I have queried whether I witnessed the Will on 21 May 1996 which is the date endorsed on the Deceased's Will.
16. As the Deceased and I ceased to socialise for about 10 years prior to the Deceased's death on 24 June 2007, then it is likely that my visit to the Deceased's residence, when the Deceased asked me to sign his Will, occurred on or about the date of the Will but possibly a few months later.
30 Ms Bridge-Ward spoke of a disagreement between them about a sewing machine and so it is unlikely that the Will was witnessed after 2006:
19. I do not remember the exact circumstances or contents of the Will and I do not remember whether there was anyone else, other than the Deceased, present with me at the time that I signed the Will.
20. I also do not recall the Deceased signing the Will prior to my signing it or whether the Deceased had already signed the Will.
21. However, I recall that I signed the Will in the Deceased's presence.
31 In cross-examination she described how they had met as teenagers at Jolimont Sports Club.
32 Mrs Bridge-Ward said the date on the document, 21 May 1996, could not be correct as her husband passed away on 30 March 1996.
33 In cross-examination her recollection was that there was another lady there at the time of signing. Brian brought the document out and asked her to sign it. He told her it was a Will. She did not read it or anything like that.
34 She was unable to recall the date on which it was signed. She did recall that it was signed before she signed it. She does not recall if Brian signed it in her presence.
35 When she renewed her acquaintance with him for a time, although she did not particularly notice it, she was told he was a very heavy drinker. On occasions it appeared he had been drinking but did not drink while she was there.
36 His drinking problem was the reason why she did not continue the relationship.
Barbara Patricia Brookes
37 Ms Brookes swore an affidavit on 19 October 2009 (exhibit 9). Her evidence was taken de bene esse, and recorded (exhibits 16A, 16B).
38 In an affidavit dated 19 October 2009 she deposes that the deceased was a friend of hers for over 25 years. When the deceased retired, Ms Brookes used to drop in frequently to his house at 6 Hodges Street, Innaloo, on her way home from where she was then working at the TAB. She was also friends with the deceased's wife, Pearl:
6. On or about the date of the Will in 1996 on one of the occasions when I called in on the Deceased at his house, the Deceased handed the Will to me, which I recall was folded, and asked if I would sign it as a witness.
7. The Deceased did not discuss the contents of the Will with me, I respected the Deceased's privacy, but I did confirm that the document I was signing was a Will. I did not ask the Deceased anything specifically about the contents of the Will as I did not believe it was any of my business.
8. I have no recollection of the exact date that the Will was signed but I have no reason to doubt that the Will was signed on or about the date endorsed on it, being 21 May 1996.
39 In evidence de bene esse Ms Brookes cannot recall whether Brian had already signed it. There was no-one else present as far as she could recall. Brian told her it was his Will. He definitely did not appear intoxicated.
40 In cross-examination:
So, he presented you was it a Post Office-type will or was it a - - -?---Darling, I don't remember really what it was like. I just remember that he hand it to me. I did say to him, 'You've done the right thing, haven't you, Brian?' and he said he had, he'd thought about it and as I turned it to sign it, I saw one little part of it, but I didn't ask any more (ts 23/7/13, page 139).
41 She said that she read a part of the Will:
[I] closed it up because I didn't really want to know and that's when I said to him are you sure you thought about it? Have you been fair and he said, yes, he had (ts 140).
42 In cross-examination John pressed the witnesses to why his father would get another person to write his Will for him. She acknowledged his father was a smart man:
And would you think to be in that position, he’d be able to do writing and stuff for himself?---Yes, but what are you trying to get at, John? Are you trying to say that your father was not of sound mind and he couldn’t write his will out?
Well, that’s what people are thinking about, why wouldn’t he write his own will if he was such a smart - - -?---Your father was as sane as anybody (ts 144)
43 She said that she had never seen Brian drunk. Only once and that was at the football:
[A]nd that's the only time I'd ever seen him show any signs of alcohol. So, when he was doing this with me, he was sober (ts 144).
44 Ms Brookes did not know the other signatory to the Will, Mrs Ward. She might have met her at Brian's house but she does not know:
The disposure of the will is way out of my league because he told me I was the number 1 that only had any brains out of the whole family, you were going to cop it and divide it up amongst the family, but he didn’t say he had a will and you said he was as bright as a spark?---Too right he was. He knew exactly what he was doing, John.
And he knew the law?---Mm.
Now, why would he draw up something like this and knowing that it wouldn’t be kosher?---That was – that was your dad. He wasn't going to let the left hand know what the right hand was doing (ts 148 - 149).
First executor - Shirley June Forde
45 Ms Forde swore an affidavit of scrips and an affidavit of 19 April 2011 (exhibit 12).
46 Ms Forde's mother was Dorothy Pearl (Pearl) who had three children with Ronald Ferguson who died in 1973. The three children were:
• Shirley June Forde (nee Ferguson) born on 1 April 1955;
• Marie Diane Popa (nee Ferguson) born on 14 May 1962;
• Raymond Dennis Ferguson born on 3 September 1953.
47 In 1973 Pearl and Marie left Port Hedland for Perth. Brian and Pearl started dating after meeting at Ad Astra Drycleaners where they were both working. After dating for several months, Pearl and Marie moved into Brian's house at 6 Hodges Street, Innaloo.
48 Shirley remained in Port Hedland with her husband, Ashley, until moving to Perth in 1975.
49 In 1976 Brian married Pearl. Ashley and Shirley were witnesses at the marriage ceremony.
50 Brian's relationship with Marie and Shirley:
22. BRIAN became part of our family. BRIAN and PEARL would often visit our maternal grandparents HAROLD EDWARD BOOTH and BRENDA BOOTH and other relatives of our mother's at Manjimup, Pinjarra and Waroona including PEARL's sister DOREEN LOGAN, and husband EDWARD LOGAN, brothers RONALD BOOTH, KEVIN BOOTH and their wives, also PEARL's Uncles GEORGE PEARSON ('GEORGE') and BERT PEARSON.
23. When MARIE or I went out together with BRIAN he would always introduce us as his daughters, as he told us he did not like the term 'stepdaughters'.
24. When MARIE was married to GEORGE POPA, BRIAN walked down the aisle with her and gave her away as a father.
25. Attached hereto and marked with the letters 'SJF5' is a copy of a photograph of BRIAN and MARIE on MARIE's wedding day.
26. BRIAN was our father in all meaningful ways. He remembered our birthdays and we remembered his. We usually celebrated each other's birthdays by giving gifts and we always remembered BRIAN on father's day.
27. BRIAN helped me to celebrate my 50th birthday; BRIAN also helped us pay for our youngest daughter's wedding and attended the wedding.
51 In 1993 Pearl died after a short illness with liver cancer. During her illness, Shirley stayed with Brian and Pearl to assist in the care. Marie was living at Pannawonica with her family at that time. Brian was deeply upset when Pearl died:
33. MARIE and I then would take turns to take BRIAN food shopping, we helped him with cleaning the house and gardening and assisted him in other ways for several years after PEARL died. My husband ASHLEY also joined us sometimes on Sundays when we were all helping BRIAN mostly in the garden and we all had lunch together.
Brian's illness
34. In the last few months of his life, BRIAN started losing weight and although MARIE and I were worried about him and asked him constantly if he was alright, he would always assure us that he was fine.
35. Shortly before his death he would still refuse to go and see a doctor even when he began vomiting.
36. BRIAN became angry with me when I insisted that he see a doctor just for a check-up. It was not until I begged him and burst into tears that he finally agreed.
37. BRIAN wanted to go to Hollywood Hospital and I took him there where he had several tests. When he received the results, that he had stomach cancer, this was a terrible shock.
38. A doctor gave BRIAN advice about the treatment options available but BRIAN did not want any treatment. BRIAN only agreed to have treatment because MARIE and I were so upset.
39. MARIE and I moved into BRIAN's house and stayed with BRIAN alternately while BRIAN underwent chemotherapy. This went on for several weeks but it was not successful and BRIAN passed away on 24 June 2007.
40. I had contacted RICHARD in the meantime to tell him that BRIAN was seriously ill. I asked RICHARD if he could spend some time with BRIAN as the prognosis was not good, RICHARD agreed to stay a week with BRIAN. RICHARD contacted his siblings and I believe some were able to see BRIAN before he passed away. JANET rang me and thanked me for looking after BRIAN.
The Will
45. I believe that BRIAN intended the Will to be his last Will and Testament.
46. On or about 2003, BRIAN gave the Will to MARIE and I for safekeeping. I recall BRIAN saying to us 'take this home and put it in a safe place'.
47. MARIE and I decided that I would keep the Will at my home as we had a security system and we thought it would be safer there.
48. When BRIAN gave me the Will he did not discuss it with us. Afterwards either MARIE or I asked if we could read it and BRIAN said 'Yes'. I recall BRIAN laughing and saying words to the effect 'You girls will have fun sorting out everything in the house'.
Brian's capacity and demeanour
52 Ms Forde gave evidence that Brian was an organised person who was always neatly dressed. He was a sociable and charming person who was liked and was a loyal friend to many people over many years. He was intelligent and capable right up to the night of his death. At his death Marie and her partner Paul Conneely, Ashley, her daughter, Natasha and her husband Aaron Kennedy, were all with Brian on the night before he died.
53 After Pearl's death Brian had suffered an injury to his eye and received treatment for it. The difficulties did not appear to restrict him and did not stop him driving or reading and doing all his usual activities. There was no indication that he suffered from any other medical infirmity, mental illness or incapacity. She knows of no reason why Brian would not have been able to know, understand and approve the contents of his Will.
The nature of the Will
Executors Appointed
72. BRIAN told us that he had appointed MARIE and I as the executors of his Will because he trusted us to carry out his wishes.
Gift of Money
73. When our Uncle GEORGE died, as he was not married, he left PEARL a small inheritance.
74. When PEARL's mother died, she left her children, including PEARL, an inheritance of approximately $30,000.00 each.
75. When PEARL died, BRIAN inherited that money. However, from what I understand BRIAN did not spend that money as he kept reminding MARIE and I that 'Your mother's money is in the bank'.
Gift of Half the House Property
76. Although it was never a topic that MARIE or I raised with BRIAN, he told MARIE and I, quite frequently after PEARL'S death that 'half this house is your mother's'. When BRIAN referred to this house we understood him to mean the Property at 6 Hodges Street, Innaloo.
77. The bequest of the proceeds of sale of the Property in the Will, is consistent with BRIAN's wishes as expressed to MARIE and myself several times.
78. Attached hereto and marked with the letters 'SJF11' is a copy of the Certificate of Title of the Property.
Gift of Personal Effects and Furniture
79. To the best of my knowledge all of the furniture and household effects (except the single beds and wardrobes in the spare rooms) of the Property had been acquired by BRIAN and PEARL during their marriage.
80. It was consistent with BRIAN's wishes, as expressed to MARIE and I, that those effects of the Will were distributed between MARIE and I.
54 Ms Forde was cross-examined about Brian's relationship with her brother, Raymond. Raymond was not named as a beneficiary. Ms Forde explained that Brian had told her on a few occasions he was not happy with Ray. Ray lived in Port Hedland and only visited Perth occasionally. When he did he always visited his in-laws first and would leave Brian and his mother Pearl until last. Brian was upset with Ray because this hurt his mother. She thought he liked Raymond.
55 Pearl had inherited some money from her father, H E Booth. The other siblings received the same share. In respect of Pearl's inheritance, Brian told her:
'Your mother's money is in the bank and I haven't touched it'. He always told us he didn't touch the $30,000.
56 She described Brian as charming, always polite and an organised man. She did not see any violence. He was a sociable drinker.
Second executor - Marie Diane Popa
57 Ms Popa swore an affidavit of scripts (exhibit 11) and an affidavit on 19 April 2011 (exhibit 14):
22. BRIAN became part of our family. BRIAN and PEARL would often visit our maternal grandparents other relatives of our mother's at Manjimup, Pinjarra and Waroona including PEARL's sister DOREEN LOGAN, and husband EDWARD LOGAN, brothers RONALD BOOTH, KEVIN BOOTH and their wives, also PEARL's Uncles GEORGE PEARSON ('GEORGE') and BERT PEARSON.
23. When SHIRLEY or I went out together with BRIAN he would always introduce us as his daughters, as he told us he did not like the term 'stepdaughters'.
24. When I married GEORGE POPA, BRIAN walked down the aisle with me and gave me away as a father would. BRIAN was very proud that day as we passed people in the bridal car, he waved as if he was royalty.
25. Attached hereto and marked with the letters 'MDP5' is a copy of a photograph of BRIAN and myself on my wedding day.
26. BRIAN was a father to SHIRLEY and myself in all meaningful ways. He remembered our birthdays and we remembered his. We usually celebrated each other's birthdays by giving gifts and we always remembered BRIAN on Father's Day.
27. We had many family get togethers to celebrate birthdays and special occasions.
Looking after Brian
33. I returned to Perth in approximately 1995 when GEORGE changed jobs. SHIRLEY and I would take turns to take BRIAN food shopping, we helped him with cleaning the house and gardening and assisted him in other ways for several years after PEARL died. SHIRLEY's husband ASHLEY also joined us sometimes on Sundays when we were all helping BRIAN mostly in the garden and we all had lunch together.
58 Ms Popa was cross-examined. She said she was about 11 when Brian started to court Pearl. Pearl was living at Glendalough and working at a nearby drycleaners. Pearl moved into Brian's house about the time Ms Popa started at Scarborough Beach High School. The relationship was good. Brian was firm but good. You knew where you stood. He drank occasionally. She did not see him drunk.
59 She gave similar evidence to her sister about Ray who lived up north and did not visit Pearl a lot. This caused a rift.
No other Will
60 After his death both plaintiffs searched the house top to bottom but could not locate another Will. They made enquiries at the bank, at the trustee company, and with his accountant, to no avail. There is no evidence that Brian made a Will after the document. In his affidavit of scripts (exhibit 26), John deposed that he was not aware of any testamentary dispositions or instruments apart from the disputed Will.
Brian and Patricia's family
61 Brian married Patricia Lee on 5 May 1950. They were married until 1967 when they were divorced. They had six children:
• John Charles Lee born on 2 August 1961;
• Janet Patricia Lee-Brown (nee Lee) born 3 May 1953;
• Richard Lee born 11 September 1955;
• Suzanne Dyson (nee Lee) born 22 July 1957;
• Diane Bentley (nee Lee) born 11 September 1960;
• Michelle Lee born 14 October 1962.
62 All the children except Diane are named as defendants to the action. Apart from the first defendant John Charles Lee, each other defendant was called by the plaintiffs and support a grant of probate. Their affidavits were tendered. Diane also swore an affidavit and gave evidence on behalf of the plaintiffs.
Janet Patricia Lee-Brown
63 Janet is the second defendant and swore an affidavit on 15 March 2011 (exhibit 22):
17. Although I have not taken an active part in these proceedings, I support the action of the Plaintiffs to prove the Will in solemn form and will abide by any decision of the Supreme Court as to the validity of the Will.
The relationship with Brian
64 Her recollections of her father was that he was a strong-willed person, who liked to have things under his control. Unfortunately, he drank, and possibly as a result of the effects of this, he was prone to violent attacks upon Patricia during their marriage:
20. On or about 1967, on one evening after an argument, BRIAN physically attacked my mother very badly. The next morning, my mother PATRICIA decided to leave the house with her three youngest children SUZANNE, DIANE and MICHELLE and eventually resided in Geraldton for many years.
...
23. I did not have a close relationship with BRIAN. After the breakup of BRIAN and PATRICIA's marriage and until BRIAN's death, I spoke to BRIAN on the telephone several times and visited BRIAN in Perth 3 or 4 times. BRIAN did not ever come to Geraldton to visit me.
Contents of the Will
24. BRIAN did not discuss his financial affairs with me nor did he mention anything about his Will, except on one occasion when I recall he said words to the effect of 'don't worry you'll be looked after'. I understood this to mean that I might be included in his Will.
25. For some time I believe that BRIAN may have unreasonably blamed JOHN for the breakup of his marriage to PATRICIA. For this reason and because of BRIAN's comments in the paragraph above, I believe it would be unlikely that BRIAN ever intended to dispose of his estate mainly or entirely in favour of JOHN.
...
28. I understood from my conversations with BRIAN that he had a close relationship with SHIRLEY and MARIE and they with him. I believe that BRIAN's relationship with SHIRLEY and MARIE was close because they were part of BRIAN's life for over 30 years. At BRIAN'S funeral I noticed that SHIRLEY and MARIE were very upset.
29. As SHIRLEY and MARIE's mother PEARL had died before BRIAN, I believe it would be reasonable to expect that BRIAN would include SHIRLEY and MARIE in his Will.
...
31. At the times when I visited BRIAN and at all times when I spoke with BRIAN on the telephone, before and after the date of the Will, he was at all times, coherent and of sound mind. I have no reason to think that BRIAN did not know or understand what he was doing when he made his Will.
65 In cross-examination Janet described her relationship with Brian as fiery. She had stayed with him for about six months after the break up then returned to live with her mother to Geraldton for six months before going to Sydney for five years.
66 She did not see much of Brian and did not stay with him after he married Pearl.
67 Her recollection of the incident in 1967 is that Patricia was attacked because John was due to be home helping with babysitting the younger children and was not. Brian took it out on Patricia:
The old man blamed you [John] which was untrue. It was his doing. He was so out of order that night. It was a joke (ts 27/8/13, pages 214 - 215).
68 She described him as an alcoholic who would make promises that he never kept and was a violent alcoholic at times.
69 As to the reason for leaving Diane out of the Will, she believes it was because Diane did not help get Brian's mother into a nursing home in about 1996. They had an argument on the phone.
Richard Lee
70 Richard is the third defendant and swore an affidavit dated 16 March 2011 (exhibit 20):
16. Although I have not taken an active part in these proceedings, I support the action of the Plaintiffs to prove the Will in solemn form and will abide by any decision of the Supreme Court as to the validity of the Will.
71 Richard deposes following the physical attack by Brian upon Patricia in 1967, the next morning Patricia left the house with the three youngest children, Suzanne, Diane and Michelle. They travelled to Geraldton where they lived for many years. John, Janet and Richard, as the three eldest, stayed with Brian. Richard was about 12 years old at this time and lived with Brian until about 1976:
20. In 1976 I went to Geraldton and lived, at first with my mother PATRICIA, and then on my own. When I travelled to Perth I would either stay with BRIAN or visit him at his house in Innaloo. Overall I considered I had a reasonable relationship with Brian.
21. BRIAN did not discuss his financial affairs with me nor did he mention anything about his Will, except he did tell me in words to the effect of: 'You and JOHN can share the contents of the shed and the garage'. I note that these words are similar to those used in BRIAN's Will.
...
24. I can recall when BRIAN was ill in hospital and I was visiting him I asked BRIAN if JOHN knew that BRIAN was ill and BRIAN told me 'No'. I asked BRIAN if he wanted me to tell JOHN and BRIAN said 'No'.
25. For these reasons and because of BRIAN's comments to me in the paragraphs above, I believe it would be unlikely that BRIAN ever intended to dispose of his estate mainly or entirely in favour of JOHN.
...
28. I understood from my conversations with BRIAN that he had a very solid relationship with SHIRLEY and MARIE and thought very highly of them both. SHIRLEY and MARIE were part of BRIAN's life for over 30 years. I know that SHIRLEY and MARIE looked after BRIAN both before and after their mother PEARL died and they visited him regularly and genuinely cared about him. It was either MARIE or SHIRLEY's husband ASHLEY FORDE who called me to tell me that BRIAN was suddenly and seriously not well in the weeks before he died.
29. As SHIRLEY and MARIE's mother PEARL had died before BRIAN, I believe it would be reasonable to expect that BRIAN would include SHIRLEY and MARIE in his Will.
...
31. At the times when I visited BRIAN and at all times when I spoke with BRIAN on the telephone, before and after the date of the Will, he was at all times coherent and of sound mind even up until shortly before he died. I have no reason to think that BRIAN did not know or understand what he was doing when he made his Will.
72 Richard was not cross-examined.
Suzanne Dyson
73 Suzanne is the fourth defendant and swore an affidavit dated 17 March 2011 (exhibit 23):
16. Although I have not taken an active part in these proceedings, I support the action of the Plaintiffs to prove the Will in solemn form and I will abide by any decision of the Supreme Court as to the validity of the Will.
...
20. I was about 10 or 11 years old at this time. I did not have much to do with my father after that time. I have resided in Geraldton ever since. My father did not ever come to visit me when I lived in Geraldton.
21. After the breakup of BRIAN and PATRICIA's marriage and until BRIAN's death, I did occasionally speak to BRIAN on the telephone.
22. I recall that my sister JANET told BRIAN that I was in King Edward Hospital for the birth of my first child in 1989 and BRIAN visited me there with his second wife PEARL.
23. On another occasion when I was in Perth I rang BRIAN and said that I was going to visit him. I recall him saying words to the effect of 'I don't have any money for you'. I thought this was very strange because I had not asked him for any money.
24. BRIAN did not discuss his financial affairs with me nor did he mention anything about his Will, except on one occasion when I recall his words to the effect of 'I'll look after you'. I understood this to mean that on BRIAN's death, I might be included in his Will.
25. I do not believe that my father had a close relationship with any of his children from his first marriage to PATRICIA. I recall BRIAN as an angry and vindictive person. I believe that BRIAN blamed JOHN to some extent for the breakup of his marriage. For these reasons and because of BRIAN's comments to me in the paragraph above, I believe it would be unlikely that BRIAN ever intended to dispose of his estate mainly or entirely in favour of JOHN.
...
31. I had contact with BRIAN after PEARL's death which was on or about 1993, before the date of the Will, and occasionally afterwards until the date of his death in 2007.
74 In cross-examination Suzanne said she was about 11 when the family moved and her recollection of Brian was that he was quite a violent man for most of her childhood. He used to drink during the period they were at Innaloo. He had mood swings as most alcoholics have.
75 During her childhood until the break up she said that Brian was a disciplinarian who was pretty fair and she thought 'he loved us in the best way he could'.
76 He was violent to Patricia and they were scared of him. Even though he drank he still worked. He kept himself clean and he provided for the family, although not as much as he could have.
77 She had very little contact with him after the marriage break up. She visited him before she was married which was the occasion when he said, 'I don't have any money for you'. She thought this strange because she had not asked for money, but he said: 'But I'll look after you'.
78 In her opinion, Diane was left out of the Will because her then husband was Polynesian and Brian was a racist.
79 She visited Brian in the final weeks when he was sick and he was then in a good frame of mind and asked, 'How's your mum?'.
Michelle Lee
80 Michelle is the fifth defendant and sworn an affidavit on 17 March 2011 (exhibit 24):
16. Although I have not taken an active part in these proceedings, I support the action of the Plaintiffs to prove the Will in solemn form and will abide by any decision of the Supreme Court as to the validity of the Will.
17. My recollections of my father BRIAN are that he was a strong-willed person, who ruled his family with an iron rod.
18. Unfortunately, BRIAN did also drink and, possibly as a result of the effects of this, I recall at least one violent attack against my mother PATRICIA.
...
20. I was about 5 years old at this time. I did not have much to do with my father after that time. I resided in Geraldton from about 1967 to about 2005, then I moved to Kalgoorlie and came to Perth in 2007. My father did not ever come to visit me when I lived in Geraldton.
21. After the breakup of BRIAN and PATRICIA's marriage, and until BRIAN's death, I spoke to BRIAN on the telephone several times and visited BRIAN in Perth about 5 times.
...
23. I believe that my father had a close relationship with my brother RICHARD. I believe that BRIAN blamed JOHN to some extent for the breakup of his marriage. Further when BRIAN was ill in hospital, RICHARD informed me and I believe that BRIAN told RICHARD not to tell JOHN. For these reasons and because of BRIAN's comments to me in the paragraph above, I believe it would be unlikely that BRIAN ever intended to dispose of his estate mainly or entirely in favour of JOHN.
...
26. I understood from my conversations from BRIAN and with SHIRLEY and MARIE that they had had a close relationship. I believe that BRIAN mellowed as he got older and especially after PEARL died on or about 1993.
27. I met PEARL before she died and I thought she was a nice woman. I believe that BRIAN's relationship with SHIRLEY and MARIE was close because they were part of BRIAN's life for over 30 years and I believe they genuinely cared for him and looked after him when their mother PEARL died.
28. As SHIRLEY and MARIE's mother PEARL had died before BRIAN, I believe it would be reasonable to expect that BRIAN would include SHIRLEY and MARIE in his Will.
81 In cross-examination Michelle said she was about five and she remembered the night of the argument. The next morning her mum had black eyes. She thought that the argument with Diane and her then husband, Michael, would have been enough reason for him to exclude Diane from the Will.
82 Michelle met Pearl on a few occasions: 'She was great'.
83 She had a few phone calls with Brian, the last being in 2006. He was always sharp and coherent. When asked: 'Even though he had the problems of the drinking, you would still think he would be able to write his own will'. Michelle responded, 'Sure do' (ts 219).
Diane Bentley
84 Diane is not a party but is Brian's sixth child. Diane swore an affidavit of 30 May 2012 (exhibit 21):
6. After my parents separated and divorced I did not have much contact with my father the Deceased.
7. I spoke to the Deceased shortly before his death but other than that I possibly only spoke to my father about 2 or 3 times from the date of my parents' separation and divorce to the date of the Deceased's death in 2007.
8. When the Deceased died I was informed of the contents of the Will and I was initially saddened to learn that I was not a beneficiary.
9. Although I do not know for certain why I was excluded from the Will, I recall that at or about the date of the Will, the Deceased rang me to ask for my help to get his mother into a nursing home. I was at that time and still am a member of the Salvation Army. I recall telling the Deceased in words to the effect that although I was not in a position to 'pull any strings' I would assist him if I could. However, I did inform the Deceased of the formal requirements that I believed would need to be completed before his mother's application was processed. The Deceased was not happy that I was not able to assist him to a greater extent, he became angry and he hung up on me.
10. The fact that my father, who had not had much contact with me, should call me to ask for my help and then to have him speak angrily to me and hang up on me, upset me very much.
11. I told my husband what had happened. My husband was angry that the Deceased should upset me when I was pregnant with my first child. I understand from what my husband told me, that my husband immediately called the Deceased basically to tell the Deceased off. My husband and the Deceased then had a heated argument on the telephone and I believe that they both verbally abused each other.
12. Although, the Deceased did not tell me this was the reason I was left out of his Will, it would be consistent with my knowledge of the Deceased's vindictive personality that he should hold a grudge against me because of the argument between my husband and himself in that telephone call.
...
17. I do not wish to be a party to or join the action in the Proceedings.
18. Although I have not taken an active part in the Proceedings, I support the action of the Plaintiffs to prove the Will in solemn form and I will abide by any decision of the Supreme Court in the Proceedings.
85 In cross-examination she confirmed that she did not know of any other reason why she would have been left out of the Will. She did not have much contact with Brian after the age of seven.
The medical evidence
86 Brian had a general practitioner but she had closed her practice and destroyed all records more than 10 years ago.
87 In 1997 Brian had trouble with his eyes.
88 Dr David Watson was consultant physician with St John of God Health Care in Subiaco. He gave evidence. He swore an affidavit of 13 April 2011 (exhibit 25A). He did not note any mental disturbance or cognitive impairment when he examined Brian following a referral from Professor Ian Constable of the Lions Eye Institute. He concluded:
13. The purpose of Professor Constable referring Mr Lee to me, a consultant physician, was for a thorough physical examination. It would be expected that during the course of my examination of Mr Lee, if there were any evidence of mental disturbance or cognitive impairment, that this would have been noted in his file.
14. However, as I have stated above I did not find any evidence of cognitive impairment in my examination of Mr Lee.
15. Therefore it is my opinion based on my knowledge of Mr Lee's medical history on his medical file that there is nothing to indicate that on and during the period leading up to 21 May 1996 (the date of the Will) until at least the date of my consultation with Mr Lee on 24 November 1997 that Mr Lee would not have been:
15.1 capable of understanding the nature and effect of executing his Will;
15.2 capable of understanding the extent of the property of which he was disposing;
15.3 capable of comprehending and appreciating the moral claims to which he ought to give effect; and
15.4 [This passage was replaced by a supplementary affidavit].
16. It is my opinion that Mr Lee had the requisite testamentary capacity to make a Will during the period referred to above.
89 Dr Watson sworn a supplementary affidavit on 28 June 2012 (exhibit 25B) where he clarified paragraph 15.4 of his previous affidavit by reason of a double negative and wished to substitute the following:
Mr Lee was not suffering any disorder of his mind or any mental delusion that would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties or influence his will in disposing of his property and bring about a disposal of it which, if his mind has been sound, would not have been made (TB vol 5 page 26).
90 Dr Watson expanded on his affidavit in his evidence-in-chief:
I was aware that he was a moderately heavy drinker. I found no evidence of dementia which is, in a sense, a step beyond cognitive impairment. Normally when undertaking this sort of consultation, by way of explanation for the court, the nerves that supply the eye are unique in the body. They are a direct extension of the brain and so they mirror things that happen in the brain and when people like myself are asked to see these sorts of consultations it is about assessing brain function (ts 27/8/13, page 230).
91 When asked about the position in 1996 he said:
Look, cognitive impairment going on to dementia is a progressive problem almost invariably so that at the stage that I saw him and found no evidence according to my notes and my correspondence I would think it was inconceivable that it existed before (ts 230 - 231).
92 In cross-examination Dr Watson explained that in correspondence to Professor Constable he thought alcohol may have some problems with respect to Brian's health, but it was not in respect of cognitive function, because he found no evidence of disturbance.
93 He pointed out that alcohol dementia:
is not just a question of, as it were, losing your mind. The damage that occurs to the nervous system affects all of the nervous system, not just thinking and not just memory. So in people with alcohol dementia they will have evidence of damage to the peripheral nerves that carry information to hands, feet, arms and legs; also, significantly, damage to the coordination centre at the base of the brain so it’s a much more widespread problem (ts 232).
94 Dr Watson was taken to the death certificate and the cause of death which is recorded as: 'Gastric cancer (more than 6 months)'. Dr Watson disagreed that it was caused from alcohol and explained studies of gastric cancer in Japan and the United States. One of the big contributing factors to the rising incidence of gastric cancer is untreated and unrecognised infection. The studies in Japan showed it was all about both the food they ate and the way it was prepared including some of the chemicals that were in it. He did not think it was related in any way to alcohol.
Other evidence as to Brian's mental capacity
95 Ms Leila Margaret Spring swore an affidavit on 15 March 2011 (exhibit 18). Brian was a close friend. Brian and Ms Spring's husband were acquainted as neighbours. Her husband died in 1988 and Ms Spring met up with Brian again after his wife Pearl died in 1993. They would visit each other at their respective houses, have a cup of coffee and go for walks together almost daily for several years. They became very close friends until Ms Spring moved to Waikiki in June 2001. For a few years they talked almost daily on the phone until the last few years when their phone calls were once every two to three months.
96 Brian did not talk much about his children:
11. I know that he was very fond of his step-daughters Shirley Forde and Marie Popa. From what Brian told me I believe Shirley and Marie looked after Brian following Pearl's death and visited him regularly to make sure that he was alright.
97 In her oral evidence she described Brian's mental capacity:
[He] was very with it. You know, we talked about anything and everything and there was no problems with his talking ability, his mental ability, or anything else. He was 100 per cent with it (ts 27/8/13, page 201).
98 She was not cross-examined.
William Thomas Price
99 Mr Price swore an affidavit dated 16 March 2011 (exhibit 19).
100 Mr Price, who is an accountant, first met Brian in about 1972 at the Reserve Bank and they became friends. As part of his accounting practice, he assisted Brian with the preparation of his tax returns over the years. He and Brian kept in fairly regular contact and would catch up for a couple of beers, usually at his home at Innaloo. The visits depended on Mr Price's work commitments and sometimes several weeks might pass before they caught up. He described Brian as a bit of a rogue:
8. [I] have no doubt during the 25 years or so that I was his friend that he was mentally fit and capable of making and understanding a Will.
101 In cross-examination he said there is no doubt Brian had the capacity to write his own Will.
Defendants' evidence
102 John tendered a number of affidavits including the affidavit of scripts sworn 20 January 2010 (exhibit 26).
103 A statutory declaration dated 9 September 2010 (exhibit 27) together with an appendix and a statutory declaration dated 21 April 2011 (exhibit 28) and an affidavit sworn 9 May 2011 (exhibit 29).
104 Exhibits 28 and 29 depose or attest to the same matter. The affidavit of scripts (exhibit 26) is a formal document. Relevantly in relation to a statutory declaration sworn 9 September 2010 (exhibit 27), Appendix 1, John noted:
4. My father was previously a clerk of the District Court and a bailiff of the District Court and as such, had a greater understanding of legal matters than the average man.
105 The balance of the annexure sets out matters relevant to the litigation but not relevant to the issue for decision.
106 In the affidavit of 9 May 2011 (exhibit 29):
1. My father, Brian Lee and I met on or about October 14, 2006 to discuss his intentions in the event of his death. At that time Brian stated, John, when I die, you can move into this house and sort out the estate. I know I'll be dropping you into the deep end, but that's what I had to do with my own mother's estate. You are the oldest child of mine, and so you can deal with it all'.
2. My response was: 'Are you planning to leave me, Brian?'
3. His response was; 'Not if I can help it'.
4. At this meeting no mention of an existing Will was made. No mention of his intention to make a Will was made either. At a later meeting the following week, I mentioned to him my intention to purchase a home at 11 Butterworth Avenue in Koondoola for a deposit of just $2,000.00. He said: 'Don't bother - when I die, you can move in here'.
107 In cross-examination John said that his father was an alcoholic and when heavily intoxicated could be violent and erratic but 'without grog in him he was a sensible and caring man'. He was two individuals which John attributed to the fact that he had put his age up to join the army and thereafter was with men.
108 He was an organised and neat man which John attributed to the army which grooms you.
109 In relation to the conversation in October 2006 at which Sylvia Beck was present, John had pre-prepared, through Mr Mackenzie, a loan document. The document was pretty plain as was the arrangement.
110 When John put to Brian that he wanted a loan of $2,000 Brian said:
John, why don't you bulldoze the fuckin' joint. It’s a tip. Move in here when I die.
...
I will give you the money. The money's no question. But it's not worth it, that property (ts 247)
111 The conversation took place before 3.00 pm. Before Brian started drinking:
[O]ut the back he had all these wheels on the fence and he had a clock and it was set for 3 o'clock and I said to him, 'What’s that?' He said, 'That's when the bar opens,' and I said, 'What do you do?' He said, 'I get pissed' (ts 249).
112 He was not drunk at the time of the conversation. It did not matter to John whether he dealt with Brian when he was drunk because he had dealt with him all his life.
John's relationship with Brian
113 John remembered that as a 3-year-old his father would sit him on the bar of the Victoria Hotel to show him off to his mates, 'That's how proud he was of me. I was his favourite'.
114 In clarifying remarks following cross-examination, John eloquently and movingly explained the relationship with his father. I think it explains why John as persisted with this litigation despite all the evidence that is contrary to his assertions:
Well, your Honour, when you understand a complex human being as my father was he had all these different rainbows coming out of him. He used to take me to the Reserve Bank. He said, 'John, you're a great footballer. I want you to come up and play for the Reserve Bank.' We went up to Yanchep. Pearl was alive. We all went up there for a picnic for the Reserve Bank and I played for the Reserve Bank and I trained them. I could kick both feet. I was a superb athlete as a young child and my old man picked it up early, and things like that. I mean, it's part of your growing up, you know, your father and – and if he tells you stuff, you have got to believe the bloke. Who else am I going to believe? If you can't believe what your father tells you, who can you trust? Your own blood. I mean, I cracked up when he died, no-one else did (ts 251).
...
There's no-one else on this planet I could talk to. We used to discuss everything, pissed or not. My brothers and sisters never understood him because they took off early and I don’t blame them. I advised my mother, I said, 'Listen, he had whacked you a few times,' and he was having a full-time love affair with Mrs Rushton, and it was 1956 and he was with her for 15 years. And they had us out there, but that was it. So when he said to me, 'When I die you have this place,' I took it to heart and I (indistinct) a rental out there on my disability pension with nothing because I believed him, and I’ve been running around for six years by the courts (ts 251 - 252).
Lesley Anne Schilders
115 Ms Schilders swore an affidavit dated 12 September 2012 (exhibit 30). From about 1956 when she was 11 to 12 years old her mother had an affair with Brian which continued for approximately 15 years. He was married to Patricia at the time. She described various acts of violence towards her mother after Brian's drinking. She described excessive consumption of alcohol which seemed to be the catalyst for uncontrollable episodes and outbursts of violence. Brian was, in her opinion, a chameleon and there were times when he showed very little regard or respect to women in general.
116 In cross-examination she explained that she never had anything to do with Brian very shortly after her marriage in 1965. She had not met Pearl or her daughters, Shirley or Marie.
Sylvia Christine Beck
117 Ms Beck has a statutory declaration of 24 April 2011 (exhibit 35A and an affidavit to the same effect dated 9 May 2011 (exhibit 35B):
1. I … was present on or around 21 October 2006, at a meeting with John Charles Lee and Brian Earnest John Lee, at 6 Hodges Street, Innaloo, when a comment was made by John to his father, Brian, regarding his desire to purchase a home in Koondoola in Western Australia. Brian responded to his son, by saying, 'don't bother - when I die you can have this place'.
118 Ms Beck expanded on her statutory declaration to a degree in her oral evidence.
119 She said the conversation occurred in the course of a social visit. She and John arrived shortly after lunch. Brian was not drinking. She did not know if he had previously been drinking.
120 She said John on occasions did manual work and would fix things for Brian.
121 Ms Beck said she was introduced to others but has forgotten their names, although she remembered Roxane.
Gloria Roxane Morris
122 Ms Morris has sworn an affidavit of 21 April 2011 (exhibit 34). Ms Morris was a neighbour of Brian's at 6/6 Hodges Street, Innaloo, who formed a friendship with him shortly after moving into her new unit in 1999. They started a relationship in about November 2003 which continued until his death:
10. At about the same time, or shortly afterwards, I met Brian's son, John, and John's girlfriend, Sylvia. They regularly went to Brian's place on Thursdays. I played bridge at a club almost every Thursday afternoon. On most of those occasions I called in at Brian's place on my way home. I enjoyed the company of John and Sylvia.
...
12. I met Brian's stepdaughters, Shirley and Marie, either late in 2003 or early in 2004. Brian told me that they invited him to Shirley's place for Christmas but he refused to go. Brian didn't go to their places at any time during our relationship.
13. At some time I met Brian's son, Richard, and later met his daughter, Janet, who lived in the country.
14. John often went to his father's place to carry out various tasks for Brian.
15. Shirley and Marie came to Brian's place about once every two months and they usually stayed for about an hour.
16. Brian was a very independent man. He was very active in his garden but for heavy work he rang his son, John.
123 In her evidence-in-chief she described the relationship with John as fine. She explained that Shirley or Marie would visit every seven or eight weeks. Brian did not like to go anywhere really. He liked being at home and people coming to his place. He was a very outgoing person, a very charismatic person. He was a heavy drinker. He loved company. He did not like to be by himself and was best when people came. Brian could be aggressive. Ms Morris witnessed him hitting a friend of hers named Dell. He would flirt with other women. He was trustworthy in some ways but he could change his mind very quickly. He would get angry quickly. Everyone had to dance to his tune.
124 Ms Morris agreed in cross-examination that Brian was neat, clean, organised, vital and mentally alert until before the end. On one occasion they were standing in the backyard and he asked:
What do you think I should do with this? (277)125 Ms Morris said:
Well, it doesn't need anything done,' and he said, 'Well, I want your opinion because this is going to be yours' (ts 277).
Stuart Charles Mackenzie
126 Mr Mackenzie swore an affidavit on 18 May 2011 (exhibit 36):
I have known John Charles Lee for approximately 12 years.
To the best of my knowledge, I recall a conversation and a request to prepare and print an Affidavit on behalf of John Charles Lee sometime in 2006.
John came to me and asked if I could prepare a document between John Charles Lee and Brian John Ernest Lee (His Father) in regard to a two thousand dollar loan ($2000) in order that he could use that loan as a deposit for a KeyStart loan to purchase the premises at 11 Butterworth Ave Koondoola WA. I prepared that document at that time.
127 He was briefly cross-examined. His evidence confirms John's evidence as to the October 2006 conversation but does not advance the issue of Brian's intentions ten years before.
Disposition
128 The Wills Act s 8 provides:
A will is not valid unless -
(a) it is in writing;
(b) it is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will;
(c) the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
(d) the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.
129 While the document (exhibit 10) is in writing and is signed by the testator he did not make or acknowledge his signature in the presence of at least two witnesses present at the same time.
130 Mrs Brookes does not recollect whether the Will was already signed or whether Brian signed it but she does recollect it was dated and signed by him:
I didn't see him sign it, but I know that he was writing --- and he handed it to me and asked me would I witness it --- which I did --- because I trusted him (ts 142).
131 Mrs Bridge-Ward thought the Will was signed when she was asked to sign it.
132 Their recollections vary as to whether they were both together at the time of signing. I cannot be satisfied that they were.
133 The document (exhibit 10) is not a Will that complies with the formalities of the Wills Act. So much is not in issue as the plaintiffs concede the document is not a formal Will.
Is it an informal Will? Did Brian intend that it constitute his Will?
134 The version of the Wills Act in effect at the time provided by s 34:
A document purporting to embody the testamentary intentions of a deceased person as a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will.
135 The Wills Amendment Act 1987 (WA) introduced pt 10 relating to informal Wills. Section 34 was amended in a manner not material by the Wills Amendment Act 1989 (WA) and the Wills Amendment Act 1997 (WA).
136 The Wills Amendment Act 2007 (WA) which repealed s 34 only applied to persons dying on or after 9 February 2008.
137 I am quite satisfied that the deceased intended the document to be his Will. There are a number of indicia. It is on a Will form entitled as has been set out 'Will'. It makes dispositions of property, appoints executors and nominates beneficiaries. Although not present at the same time, Brian took the trouble to obtain two witnesses to his signature.
138 The circumstances in which he asked Ms Francis to write his Will indicates that he knew what he was doing was making a Will. His response to Ms Brookes when she asked whether it was fair also indicates that he knew the document was his Will and intended to be so.
139 Brian asked Mrs Francis to write the Will for him rather than writing it himself. This might be normally regarded as unusual, except that he had asked her to write letters for him before.
140 Some years later he gave the document to the plaintiffs with a request to keep it safe.
141 The deponent to a Will does not have an obligation to be fair except to the extent that a court might alter a disposition under the Inheritance (Family and Dependants Provision) Act 1972 (WA). Brian was free to include and exclude whoever he wished in his Will. He excluded his daughter Diane and Pearl's son, Raymond. Whether he was capricious to do so matters not. There is a plausible explanation why he excluded Diane. He had been upset with her at about the time of the Will because what he saw was her inability to help him find accommodation for his mother. He would hardly have forgotten her due to their conversation.
142 He was upset with Raymond because Raymond would come to Perth from Port Hedland and spend time at his wife's parents' place, only visiting Brian and Pearl towards the end of the visit. Brian had expressed the view that Pearl was hurt by this.
143 The terms of the Will are neither inconsistent nor irreconcilable.
144 There is evidence that the garage and sheds were in existence at the time the Will was written. He left his personal belongings to his two sons no doubt expecting they would share them. This does not demonstrate a vagueness sufficient to invalidate his clear intention.
145 A lot of evidence was led as to his relationship with the various beneficiaries. It is significant that the Will was made in 1996. Pearl had died in 1993. Ms Forde and Ms Popa have given evidence of their assistance to Brian for several years after Pearl's death. There is no contrary evidence about that period. His relationship with Pearl and her children and their care for him following Pearl's death would explain why in 1996 he would wish to make particular provision for them in his Will. It also explains why he would make them executors of the Will rather than his family from whom, it would appear, he was largely estranged.
The 2006 conversation with John
146 John's evidence is that on 14 October 2006, Brian indicated that John could move into the house and sort out the estate. No mention of an existing Will was made nor an intention to make another Will. The evidence appears to establish that John was close to his father.
147 John's evidence is confirmed by the evidence of Ms Beck. When a discussion was made about John purchasing a house in Koondoola, Brian responded by saying, 'Don't bother. When I die you can have this place'. It also finds support from the evidence of Mr Mackenzie.
148 The fact that in 2006 Brian may have contemplated making other arrangements for his estate does not impact on the Will drawn in 1996 if that document reflected his intentions at the time and was not revoked.
149 Nor does the fact that he indicated to Ms Morris at one stage the property would be hers. As Janet said he would make promises that he never kept.
150 The evidence overwhelmingly establishes that the deceased intended for the document (exhibit 10) to constitute his Will and I so find.
Did Brian lack testamentary capacity when it was drafted and executed?
151 There is an issue as to the extent to which Brian drank and whether he was an alcoholic. There seems little doubt that in the period leading to the marriage breakdown in 1967 the Lee children observed their father's violence and heavy drinking. He may have been an alcoholic.
152 Most went their own way thereafter and had little contact with him.
153 Their evidence then has limited value in assessing Brian's mental capacity due to alcohol in 1996, nearly 30 years after the night he assaulted Patricia and brought an end to the marriage.
154 Brian was described as a chameleon and the evidence would suggest this is an accurate description. There was no doubt he was violent at times which is a reflection of his heavy drinking. Some people saw him as a social drinker while others saw him as a heavy drinker.
155 The evidence of his children and Ms Schilders establishes that during his marriage to Patricia he was drunken and violent.
156 The evidence of Ms Morris establishes that during the years she knew him, from 1999 to his death, he was at least a heavy drinker capable of occasional acts of violence when drunk.
157 It is reasonable to assume that he was a heavy drinker in 1996. It does not follow that a person who is a heavy drinker lacks testamentary capacity.
158 Assuming that there were many occasions when he was affected by alcohol, there is no evidence that he was affected by alcohol at the time the Will (exhibit 10) was drafted or the time that it was executed. The evidence is to the contrary; that is, the evidence establishes that he was sober at each time.
159 There are other matters of significance. Ms Brookes, one of the witnesses, thought that he was sane. In the year following the execution of the Will, he was examined by Dr Watson in connection with the eye surgery to be performed by Dr Constable. Dr Watson made no note of any mental impairment in circumstances where it would be expected that he would make such a note if he observed any such issue. His accountant, Mr Price, who completed his taxation every year until Brian's death noted no issues or difficulties in obtaining instructions over the period.
160 The evidence of the plaintiffs' witnesses, which I have set out earlier, overwhelmingly establishes that Brian had mental capacity in 1996 to make a Will. Moreover, the evidence establishes he was sober at the time he made the Will and when his signature was witnessed.
161 The person who wrote the Will, Ms Francis, and the two witnesses, Ms Bridge-Ward and Ms Brookes, all deny that Brian was affected by alcohol at the time they either wrote the Will or witnessed his signature.
162 Moreover, there is abundant evidence from every witness who was asked, that Brian retained his mental capacity to the end.
163 The evidence more than satisfies me that Brian had testamentary capacity at the time that he made and executed his Will.
Conclusion
164 I accept that John has genuine and strong feelings about the Will and his relationship with his father Brian.
165 The Will lacked the necessary formality and it was right to draw attention to that fact. But once the true circumstances about the writing of the Will and the witnessing of the signature became known, his continued unreasonable opposition through to trial has only served to diminish a moderate estate by escalating legal costs. Both he and all his family as well as the plaintiffs are the losers. His opposition to the plaintiffs has been based largely on emotion not fact.
166 I find:
(1) The document entitled 'Will' dated 21 May 1996 (exhibit 10) though executed by Brian John Lee is not executed in compliance with the Wills Act s 8.
It is not a formal Will.
(2) At the time it was written and at the time it was signed by him, Brian John Lee had testamentary capacity.
(3) The document (exhibit 10) reflected Brian John Lee's intentions as to the disposition of his property and was intended by him to be his Will.
Orders
(1) I pronounce in favour of the force and validity of the Will of Brian John Lee dated 21 May 1996.
(2) There be a grant of Probate in solemn form of the Will dated 21 May 1996 to the plaintiffs.
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