Gawned v Francine Madeline Bennetts

[2024] WASC 14

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GAWNED -v- FRANCINE MADELINE BENNETTS [2024] WASC 14

CORAM:   FORRESTER J

HEARD:   ON THE PAPERS

DELIVERED          :   22 JANUARY 2024

FILE NO/S:   CIV 1470 of 2022

BETWEEN:   GARY LEONARD GAWNED

First Plaintiff

DAVID ALAN STRICKLAND

Second Plaintiff

AND

FRANCINE MADELINE BENNETTS

First Defendant

DAVID ALAN STRICKLAND

Second Defendant

BETHWYN MARGUERITE GAWNED

Third Defendant

LALINE THERESE FORD

Fourth Defendant

MEAGHAN PAULINE ANDERSON

Fifth Defendant

TRAVIS ELTRINGHAM as executor of the estate of STEPHEN JAMES STRICKLAND

Sixth Defendant

MARNIE FORD

Seventh Defendant

KY STRICKLAND

Eighth Defendant

JEREMY GAWNED

Ninth Defendant

Catchwords:

Will - Application for grant of probate in solemn form

Legislation:

Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Will pronounced as having force and effect in solemn form of law

Category:    B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Philip Wyatt Lawyers
Second Plaintiff	:	Philip Wyatt Lawyers
First Defendant	:	David Stone Legal
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance

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

Wheatley v Edgar (2003) WASC 118; (2003) 4 ASTLR 1

FORRESTER J:

Introduction

1. Alan John Strickland (the Deceased) died on 15 October 2021, leaving a will dated 14 May 2020 (the Will). 

2. The first defendant lodged a caveat (CAV 19/2022) on 7 February 2022, which was amended on 17 February 2022.  She challenged the testamentary capacity of the Deceased to make the Will. 

3. The plaintiffs sought a grant of probate on 7 February 2022. 

4. On 13 May 2022 the plaintiffs filed a writ of summons seeking the following relief:

   1. An Order pronouncing for the force and effect of the will of the late Alan John Strickland dated 14 May 2020.

   2. An Order directing the Probate Registry of this Court to settle a Grant of Probate in solemn form of the will of the Alan John Strickland dated 14 May 2020 to Gary Leonard Gawned and David Alan Strickland.

   3. The Plaintiffs' costs of the action be paid from the estate of the late Alan John Strickland on a solicitor/client basis

5. The second to ninth defendants have each served a Notice of Intention to Abide. 

6. Pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA) (the Rules):

   Where at any stage of the proceedings in a probate action the parties agree to a compromise, the action may, with the leave of the Court, be set down for trial.

7. The first plaintiff has consented to the making of the orders sought.  While that is a relevant consideration, consent is not sufficient for the court to make a solemn form grant.  The court is required to be satisfied to the requisite standard on the evidence produced that there is a justifiable basis for the court to issue a grant in solemn form.[1] 

   [1] Wheatley v Edgar (2003) WASC 118; (2003) 4 ASTLR 1 [22] - [24], [25].

Evidence adduced at the uncontested trial

1. The plaintiffs rely on the following affidavits:

   (a)affidavit of Gary Leonard Gawned sworn 4 October 2023;

   (b)affidavit of Philip Leslie Wyatt, a subscribing witness, sworn on 4 October 2023;

   (c)affidavit of Eileen Rose Bairstow sworn 4 October 2023, the other subscribing witness;

   (d)affidavit of David Alan Strickland sworn on 4 October 2023; and

   (e)affidavit of David Alan Strickland sworn 6 November 2023.

2. The plaintiffs have also sought leave to rely upon their joint affidavit sworn on 24 January 2022 and filed in the non‑contentious probate application PRO/748/2022, together with the original Will of Alan John Strickland dated 14 May 2020 and his death certificate in the action.  I grant leave for them to do so.

Factual background

1. For the purposes of this application, it is sufficient to set out the following facts as deposed to in the affidavits.

2. The plaintiffs are the son-in-law and son of the Deceased, respectively.  They are the executors named in the Will. 

3. The first defendant is one of the daughters of the Deceased. 

4. The Deceased was born on 13 April 1923, and died on 15 October 2021 at the age of 98 years of age. 

5. The Deceased executed the Will on 14 May 2020, in circumstances set out in the affidavits. 

6. At the time of his death, the Deceased had a number of health problems, which affected his vision and mobility.  However, he appeared to retain his cognitive capacities. 

7. Medical records regarding the Deceased from Albany Health Campus[2] and the Deceased's general practitioner[3] do not indicate any cognitive impairment on the part of the Deceased, or illness which resulted in any cognitive impairment, apart from a diagnosis of an impairment in the last few weeks of the Deceased's life. 

   [2] Affidavit of David Alan Strickland sworn 4 October 2023, Annexure DAS-5, Annexure DAS-7.

   [3] Affidavit of David Alan Strickland sworn 4 October 2023, Annexure DAS-3.

8. On 23 March 2020, the Deceased arranged for his general practitioner to administer a Mini Mental State Examination test, on which he scored 28, indicating that no significant cognitive impairment was identified.[4]

   [4] Affidavit of David Alan Strickland sworn 4 October 2023, Annexure DAS-9.

The Will

1. The Will was executed validly in accordance with s 8 of the Wills Act 1970 (WA). Mr Wyatt (a solicitor) and Ms Bairstow (a legal secretary) were independent witnesses to the execution of the Will.

2. The circumstances of the execution of the Will are set out in the affidavits of Mr Wyatt and Ms Bairstow, who depose to the fact that the Deceased signed the Will in their presence, and they then signed the Will in the presence of the Deceased and each other. 

3. The Will has not been revoked by a subsequent will, marriage or termination of marriage, or by destruction or otherwise.

Disposition

1. The evidence as to the due execution of the Will is uncontested.  The Court is entitled to rely upon the presumption of testamentary capacity of the Deceased, and that he knew and approved of the Will.  However, for the avoidance of doubt, the evidence adduced by the plaintiffs satisfies me that there is no cause to doubt the fact that the Deceased had testamentary capacity at the time of execution of the Will.

2. All parties who have an interest in the estate have filed a Notice of Intention to Abide, with the exception of the first defendant, who consents to the grant of probate in solemn form.

3. I am therefore satisfied that a grant of probate in solemn form of the Will should issue.

Orders

(1)That the will and testament of the late Alan John Strickland dated 14 May 2020 (the Will) is pronounced as having force and effect in solemn form of law as the last will of the later Alan John Strickland (the Deceased).

(2)A Probate Registrar of this Court settle a grant in solemn form of law of the Will to the plaintiffs as executors.

(3)The plaintiffs' costs of this action, except in so far as they are of unreasonable amount or have been unreasonably incurred, be paid from the estate of the Deceased on a solicitor/client basis. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SI

Associate to the Honourable Justice Forrester

22 JANUARY 2024