Gent v Robbins
[2008] WASC 179
•22 AUGUST 2008
GENT -v- ROBBINS [2008] WASC 179
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 179 | |
| Case No: | CIV:1925/2007 | 15 AUGUST 2008 | |
| Coram: | HASLUCK J | 22/08/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Order that grant of probate in solemn form be issued on will dated 19 December 2003 Declaration that will dated 23 July 2004 is invalid and of no force and effect | ||
| B | |||
| PDF Version |
| Parties: | CAMERON ROBERT GENT EDWIN ROBBINS JULIE DOLS |
Catchwords: | Wills, probate and administration Proceedings by executors Application for grant of probate and proof of will in solemn form Assessment of testamentary capacity upon execution of will Whether earlier will was later revoked by subsequent will Turns on own facts |
Legislation: | Wills Act 1970 (WA), s 15 |
Case References: | Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow [1870] LR 5 QB 549 Roebuck v Smoje [2000] WASC 312 The Public Trustee in and for Western Australia v Churches of Christ Homes and Community Services Inc [2005] WASC 289 West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144 Wheatley v Edgar [2003] WASC 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
EDWIN ROBBINS
JULIE DOLS
Defendants
Catchwords:
Wills, probate and administration - Proceedings by executors - Application for grant of probate and proof of will in solemn form - Assessment of testamentary capacity upon execution of will - Whether earlier will was later revoked by subsequent will - Turns on own facts
Legislation:
Wills Act 1970 (WA), s 15
(Page 2)
Result:
Order that grant of probate in solemn form be issued on will dated 19 December 2003
Declaration that will dated 23 July 2004 is invalid and of no force and effect
Category: B
Representation:
Counsel:
Plaintiff : Mr S J Penrose
Defendants : Mr P S Murray
Solicitors:
Plaintiff : Tottle Partners
Defendants : Marks & Sands
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow [1870] LR 5 QB 549
Roebuck v Smoje [2000] WASC 312
The Public Trustee in and for Western Australia v Churches of Christ Homes and Community Services Inc [2005] WASC 289
West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
(Page 3)
- HASLUCK J:
Introduction
1 The plaintiff, Cameron Robert Gent, is the sole executor of a will dated 19 December 2003 executed by George Boag Bond who died on 2 August 2007 leaving property in the State of Western Australia. The plaintiff seeks an order that the court pronounce the force and validity of the 2003 will. An issue has arisen as to the effect, if any, of another, subsequently executed will dated 23 July 2004.
2 An order was obtained prior to the trial date that evidence at trial was to be given by way of affidavit. I have before me various affidavits filed on behalf of the plaintiff including two affidavits sworn by the plaintiff himself, an affidavit from the deceased's brother and the affidavit of Stephen Lyall Brabazon, being a medical practitioner practising in the Mandurah area who treated the deceased towards the end of his life.
3 I have before me also various affidavits filed on behalf of the defendant. These include affidavits from the defendants themselves referring to the circumstances in which the 2004 will was brought into existence and executed.
4 I note in passing that the first-named defendant, Mr Robbins, knew the deceased for some 25 years as a fellow member of the Swan Valley Sportsmen's Club. The second-named defendant, Julie Dols, is a social trainer who met the deceased while working with the Disability Service Commission at a time when the deceased was in the habit of visiting his son Owen Bond who had cerebral palsy.
5 I have before me also a notice dated 21 July 2008 signed by the solicitors for the defendants to the effect that the defendants in this matter agree to abide by the decision of the court. I was informed by counsel for the defendants at the hearing that as a consequence of arrangements made after mediation the defendants do not seek to rely upon their affidavits and will not contend for the 2004 will.
6 Nonetheless, now that the defendants' affidavits have been brought into existence and are before me, it is clear that I must rule as to the status and effect of the two wills in question. I must resolve the factual and legal issues raised by the pleadings and will proceed accordingly.
(Page 4)
Background
7 It appears from the affidavit of the deceased's younger brother that the deceased was born on 28 July 1921. The deceased's first wife died in 1975. There were two children of the marriage being Wendy Kay Gent (nee Bond) who died in 1983 and a son Owen Alexander Bond, who was physically disabled by cerebral palsy. The deceased had one grandchild, Cameron Robert Gent, who is the plaintiff in these proceedings.
8 I understand that from about 1978 onwards the deceased lived at Herne Hill and throughout his life took a close interest in the welfare of his disabled son, Owen Bond. Thus, the second-named defendant, Julie Dols, met the deceased in or about 1992 at a time when she was working with the Disability Service Commission at the Bennett Brook Hostel in Eden Hill. She was involved in the care and support of the deceased's son who at that time lived in a unit in Bayswater.
9 In or about 1993 the deceased married Christine Bain, who died in or about 2002. It seems that after the death of his second wife the deceased moved to a home in Gosnells called Riverside Gardens. He was then assisted by his brother to move to a unit in Mandurah in Stevenson Street, Dudley Park, close to his brother's residence. The deceased paid about $60,000 for the unit and the brother paid the balance of the price, being around $110,000.
10 The deceased's brother said in his affidavit that shortly after the deceased moved into his Mandurah unit there was an incident one evening when the deceased could not seem to manage the task of using a key to get into his unit so arrangements were made for the deceased to see Dr Brabazon. The deceased's brother referred to certain other incidents which suggested that the deceased was having some difficulty recalling details and coping with his daily affairs.
The 2003 will
11 The 2003 will of the deceased was prepared by a local legal practitioner and executed in the presence of two witnesses at the practitioner's office.
12 By the 2003 will the deceased appointed the plaintiff, who was a medical practitioner, to be the sole executor. He directed that his principal residence be sold and certain specific bequests be paid to the plaintiff and his children. The residue of the estate was to be held on trust
(Page 5)
- for the deceased's disabled son, Owen Bond, during his life with the balance thereafter to the plaintiff.
13 The 2003 will was executed in the presence of the deceased's solicitor, Mr Eastwood, and a member of his secretarial staff. No issue has been raised as to these formalities or as to the testamentary capacity of the deceased at that time.
The Robbins affidavit
14 In an affidavit sworn 16 January 2008 the first-named defendant, Mr Robbins, referred to his previous association with the deceased as a fellow member of the Swan Valley Sportsmen's Club. He described visits to the deceased in his unit at Mandurah. This and other affidavits relied upon by the defendants were to the effect that the deceased was a neat and tidy person who was capable of carrying on a normal conversation and appeared to be careful and meticulous in his personal habits.
15 Mr Robbins said in his affidavit that towards the end of 2003 the deceased referred to a concern that his grandson (the plaintiff) had arranged for him to sign a will and an enduring power of attorney. The deceased was not happy with these documents and wished to change them. He wanted his estate to go to his son Owen, and if Owen was not alive when he died then he wanted his estate to go to breast cancer research. Mr Robbins's understanding was that both the deceased's wives had suffered from cancer and the deceased had a brother who had died of cancer.
16 It emerges that arrangements were then made for a will to be signed at the Pinjarra Hotel on 23 July 2004. Various friends and acquaintances were in attendance. It appears from the affidavit of Claude William York that he is a retired Deputy Shire Clerk and has been a Justice of the Peace since 1984. A friend of the second-named defendant, Elizabeth Cilento, arranged for Mr York to attend at the Pinjarra Hotel.
The York affidavit
17 Mr York said that when he arrived at the hotel he met the deceased who gave him a blank will form and asked if Mr York would write out on it the terms of the will. When Mr York asked if there were any specific reason as to why he wished to write a new will, Mr York was informed that the deceased no longer wanted his grandson as a beneficiary of the estate although he did want to make a small provision for his great-grandson. He primarily wanted to provide for his son Owen to the
(Page 6)
- intent that on Owen's death his estate was to be given for research for breast cancer.
18 Mr York said in his affidavit that he filled out a blank will form in accordance with the instructions he received from the deceased. He did not prompt the deceased. He did not have any knowledge of the deceased's affairs or his intentions prior to the meeting at the Pinjarra Hotel. He said that there was nothing in the demeanour speech or conduct of the deceased which caused him to think he was not fully alert and aware of what he was doing.
19 Mr York read the will to the deceased paragraph by paragraph after it had been written and asked him on each occasion if he understood what he was saying in the will. The deceased affirmed that he did. Mr York was aware from his previous experience that a person executing a will should be of sound mind, aware of their actions and fully comprehend their intentions. He said that he had no doubt that the deceased clearly understood what he was doing. The terms as written in the 2004 will were as advised to Mr York by the deceased.
20 I note in passing that Mr York had also met with the deceased on 6 July 2004 when he witnessed the revocation by the deceased of an enduring power of attorney dated 19 December 2003 whereby the plaintiff was appointed as the deceased's attorney. The deceased's demeanour on that occasion, as when Mr York had first met him two years earlier, was that of a man who was well dressed, clean shaven and well spoken. The only difference Mr York noticed in the two year period was that in July 2004 his walking was slower.
The 2004 will
21 The 2004 will, which was executed at the Pinjarra Hotel in the presence of Mr York and another witness purported to appoint the defendants as executors. It provided for the deceased's three great-grandchildren to be left the sum of $2,500 each. The residue of the deceased's estate was to be held in trust for his son, Owen Alexander Bond, until his death. It then provided 'after all accounts are paid the remainder of my trust fund is to be given to research for breast cancer'.
22 The deceased's brother said in evidence that he was not aware that the deceased had made the 2004 will and did not see this will or any copy of it until after the deceased died.
(Page 7)
Subsequent events
23 It was common ground at the hearing before me that the deceased's son, Owen Bond, died in 2006. The deceased, himself, died on 2 August 2007. Prior to his death he had moved out of his unit in to a retirement village. He left a comparatively small estate consisting primarily of a refund due from the retirement village where he was housed and an amount in a bank account.
24 It appears from an affidavit of scripts sworn 24 October 2007 by the plaintiff that in addition to the 2003 and 2004 wills mentioned earlier the plaintiff found amongst the deceased's personal effects a copy of an unexecuted and undated will with a covering letter from Clayton Utz dated 22 July 2002 directed to the deceased at his address in Herne Hill.
25 The unsigned will reflects the proposed appointment of the first-named defendant and one other as executors. There are specific bequests for the plaintiff and his children. The residue of the estate is to be held for the deceased's son and upon his death for the first-named defendant absolutely if he were to survive the deceased.
Pleadings
26 By his statement of claim the plaintiff pleaded that he is the sole executor of the 2003 will. It is said the deceased knew and approved the contents of the 2003 will.
27 The plaintiff pleaded further that the 2004 will was found by the plaintiff. He goes on to plead that at the time of making the 2004 will the deceased was not of sound mind, memory and understanding by reason of the facts that on or about 24 January 2004 he suffered a stroke and at no time after the stroke was the deceased possessed of testamentary capacity.
28 The plaintiff seeks an order that the court pronounce the force and validity of the 2003 will and direct the Probate Registrar to issue a grant of probate in solemn form in favour of the plaintiff.
29 By their defence and counterclaim the defendants joined issue with the plaintiff as to his assertions concerning the 2003 will. They referred to the execution of the 2004 will and asserted that it revoked all previous wills made by the deceased.
30 The defendants pleaded also that while on or about 24 January 2004 the deceased suffered a stroke he was subsequent to that stroke possessed
(Page 8)
- of testamentary capacity. The defendants denied that the plaintiff is entitled to the relief claimed or any relief.
31 The defendants sought an order that the plaintiff produce to the court the 2004 will. Further, they sought an order that the court pronounce the force and validity of that will and a direction that the Probate Registrar issue a grant of probate in solemn form in favour of the defendants in respect of the said will.
32 However, as appears from earlier discussion, at the hearing of the matter counsel for the defendants indicated that his clients had changed their stance as a consequence of mediation. They did not consent to the orders sought by the plaintiff but did not wish to contend for the 2004 will. They applied for leave to discontinue their counterclaim. I will return to this aspect of the matter in due course.
Legal principles
33 Against this background, it will now be useful to look at legal principles bearing upon an application for orders of the kind I have described. Those principles are conveniently summarised by EM Heenan J in Wheatley v Edgar [2003] WASC 118. His Honour, at [17], noted that wills can be proved in two ways; being in common form or in solemn form. In the former case, the grant of probate is revocable. In the latter case (with two exceptions concerning fraud or discovery of a later will) the grant of probate is irrevocable. Wills are approved in solemn form in a probate action where the main and generally the sole question for the determination of the court is whether a will is or is not either in whole or in part valid as a testamentary instrument.
34 His Honour went on to indicate that the different consequences give rise to evidentiary implications. He observed at [24] that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will in question or by any other party to that suit, whether joined or cited, of the formal validity of the will. The issue will be decided on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at the relevant time.
35 The law requires that a testator be of sound disposing mind both at the time when the instructions for the will are given and when the will is executed. If the will is shown to have been drawn in accordance with instructions given while the testator was of sound disposing mind, it is sufficient that, when he executes it, he appreciates that he is being asked to execute as his will a document drawn in pursuance of those
(Page 9)
- instructions, though he is unable to follow all its provisions: Williams on Wills (5th ed) at 24.
36 It appears from Banks v Goodfellow [1870] LR 5 QB 549 at 565 that a testator must understand the nature of the act and its effect; understand the extent of the property of which he is disposing; 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, and 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. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to.
37 This reasoning was approved by the High Court in Bailey v Bailey (1924) 34 CLR 558. In that case Isaacs J noted at 570 that the onus of providing that an instrument is the will of the alleged testator lies on the party propounding it. This onus continues during the whole of the case and must be determined upon the balance of the whole evidence. The proponent's duty is, in the first place, discharged by establishing a prima facie case, that is to say, one which satisfies the court judicially that the will propounded is the last will of a free and capable testator. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances.
38 The learned judge went on to cite as instances of material circumstances (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions; its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit. Once the proponent establishes a prima facie case, then the burden of proof lies upon the party impeaching the will to show that it ought not to be admitted to proof.
39 Isaacs J said further that in order to displace a prima facie case of capacity and due execution mere proof of seriousness illness is not sufficient; there must be clear evidence that undue influence was, in fact, exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. While
(Page 10)
- the opinions of the attesting witness that the testator was competent are not without some weight, the court must judge from the facts they state and not from their opinion.
40 I approved and acted upon reasoning of this kind in Roebuck v Smoje [2000] WASC 312 and The Public Trustee in and for Western Australia v Churches of Christ Homes and Community Services Inc [2005] WASC 289. It follows that mere proof of a serious illness will not necessarily lead to a conclusion of want of testamentary capacity, there must be evidence that the illness affected the testator's mental faculties to a degree sufficient to deprive the testator of testamentary capacity.
41 It emerges, then, in the present case, that the crucial question is whether the deceased had testamentary capacity of the kind defined by the decided cases as at 23 July 2004 when he executed the 2004 will at the Pinjarra Hotel. If that will is found to be a valid and effective instrument then it will constitute a revocation of the 2003 will and represent a valid expression of the deceased's testamentary intentions. The onus of proving that the 2004 will is the will of the testator lies on the party propounding it, being in this case the defendants.
42 The pleadings contain a formal joinder of issue as to the validity of the 2003 will. However, no issue was raised on the evidence as to the formalities or testamentary capacity of the deceased at the time the 2003 will was executed. Accordingly, in the absence of evidence as to any suspicious circumstances, the requisite capacity and approval of the testator can be presumed by the court from the due execution of that will. Accordingly, unless the 2003 will is found to have been revoked by the execution of a later will, namely, the 2004 will, the finding must be made that the 2003 will is valid and effective: West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144.
43 Accordingly, let me now return to the evidence, with a view to ascertaining whether I have been satisfied upon the balance of probabilities by the defendants as the proponents of the 2004 will that the deceased had testamentary capacity at the time the will was made. No issue has been raised as to the formalities or any lack of clarity in its provisions.
The plaintiff's evidence
44 A writ of summons was issued in this matter on 10 September 2007 to which was annexed a statement of claim in the terms previously described. Thus, it has been apparent since that time that on the plaintiff's
(Page 11)
- case the deceased was not of sound mind, memory and understanding when the 2004 will was made in that he lacked testamentary capacity after suffering a stroke on or about 24 January 2004.
45 On 13 January 2008 the plaintiff filed and served the statement of Dr Brabazon setting out his qualifications and describing the treatment afforded to the deceased over a number of years. This was essentially reproduced in a formal affidavit sworn 27 June 2008. It follows that the defendants have been on notice as to the nature of the medical opinion against them since mid-January 2008. All of the defendant's affidavits were filed and served after that time.
The Brabazon affidavit
46 Dr Brabazon said in his affidavit that he has practised as a general practitioner for 27 years in the Mandurah area. His original training was in aged care at Royal Perth Hospital. The bulk of his patients are geriatric and he is the Chairman of the Peel Division Aged Care Panel.
47 Dr Brabazon said that he was the deceased's general practitioner for three years from January 2004 until his death on 2 August 2007. In forming his opinion as to the mental capacity of the deceased he has relied on recollections of the consultations as well as the notes that he took in relation to the consultations as reproduced in a patient history executed to his affidavit.
48 He said that he first met the deceased on 22 January 2004. On 24 January 2004 the deceased brother urgently arranged for the deceased to see him as the deceased had suddenly become confused and was unable to manage living at home. That consultation occurred at the deceased's residence with the deceased brother being present throughout the examination. It was said that at the consultation the deceased presented with symptoms of confusion, inertia, a lack of insight to events concerning him and difficulty performing the acts of everyday living. The deceased's score on the mini mental state examination or MMSE test was 22 which indicated that he had an impaired state of higher mental function. No obvious non-neurological cause for his symptoms could be found.
49 The results of a CT scan performed later indicated that there was a poorly defined low density change seen in the left external capsule, possibly representing a focus of acute ischaemia. Put shortly, in layman's terms, this meant that the deceased had an area of dead brain (stroke) with evidence of poor blood flow to his brain. He also had global cerebral
(Page 12)
- atrophy (ie shrinkage of the brain as a whole) and disease of the small blood vessels of the brain. This was a typical effect of a stroke and can only be caused by poor blood flow to the brain.
50 Dr Brabazon saw the deceased quite frequently following the first visit and reached a diagnosis that, in addition to his apparent permanent brain damage, he was depressed with the result that an anti-depressant was prescribed. He said that the deceased's mental and physical condition continued to deteriorate until he passed away on 2 August 2007.
51 More specifically, Dr Brabazon was of the opinion that the deceased had suffered an acute cerebral infarction (stroke) in a background of chronic poor cerebral perfusion, shortly prior to being seen on 24 January 2004.
52 Having regard to considerations of the kind enunciated in the decided case of Banks v Goodfellow mentioned earlier, in the opinion of Dr Brabazon, as at and at all times after 24 January 2004, the deceased did not have testamentary capacity. In his opinion, based on both the results he obtained and the tests he ordered, and his observations of the deceased, at no time on or after 24 January 2004 did the deceased have the ability to care for himself independently or to make decisions in regard to his life planning and affairs.
53 I note in passing that at the time of the initial consultation Dr Brabazon was told by the deceased that he did not know the identity of a lady in a photograph nearby, although the lady (as confirmed by the deceased's brother) was in fact the deceased's second wife. The deceased said also in answer to a question that he did not know who owned the unit in which they were sitting.
The defendants' evidence
54 I referred to some of the affidavit evidence relied upon by the defendants in earlier discussion. However, I must now turn to those parts of the evidence which bear more specifically upon the crucial issue of the deceased's testamentary capacity as at 23 July 2004. I note in passing that no medical or expert opinion has been adduced by the defendants in answer to the opinion expressed by Dr Brabazon which was first advanced on 13 January 2008.
55 In an affidavit sworn 17 January 2008 Jocelyn Bright said that she is a registered nurse, having qualified as such in South Africa in 1979. She first met the deceased when he came to South Africa to marry her aunt in
(Page 13)
- 1992. She visited them in 1996 and came to Western Australia to live in September 2000. She had close contact with him thereafter, although her aunt died in July 2001.
56 When the deceased moved to his unit in Mandurah she visited him once prior to mid-July 2004 and spoke to him on the telephone every three to four weeks. She described him as well groomed, courteous and able to carry on what would be called a normal conversation with her. While he did mention he was becoming a little forgetful, up until the end of July 2004 there was nothing she observed or heard to suggest that he was in any way not able to comprehend and understand what he was doing.
The Cilento affidavit
57 Elizabeth Jane Cilento said in her affidavit sworn 17 January 2008 that as a friend of the second-named defendant she knew the deceased since approximately 2001. She became a carer for the deceased's son and after the deceased moved to Gosnells she drove the son to his father on visits of approximately two hours duration. The deceased was at Gosnells for a short period before moving to Mandurah in what she described as approximately April 2004.
58 The deponent described the deceased as a quiet, gentle, articulate man. He was always well groomed and had impeccable manners. The only physical ailment he seemed to have was a slight shudder mainly in his hands. On her observation he became a little forgetful.
59 She said that up until the time of making the 2004 will he was living in his unit in Mandurah and seemed quite capable of looking after himself. He was neat and well dressed. His unit was always neat and tidy. He always seemed to have read the newspaper and would discuss current affairs.
60 She said that on 16 January 2004 in a telephone call the deceased indicated that he was not happy with the plaintiff being his power of attorney. On two occasions in February 2004 she had contact with the deceased in the course of taking his son to him and at no time did she notice any change or difference in the deceased's demeanour, speech, dress or general disposition. He was able to conduct a conversation, was aware of his surroundings and knew what he was doing.
61 The deponent described various moments of contact in April, May and June 2004 in which the deceased appeared to be no different than he had previously been.
(Page 14)
62 She said that on 2 July 2004 she had lunch with the deceased and his son and the former said he wanted to change his enduring power of attorney and his will. Elizabeth Cilento helped him with these matters by contacting Mr York who resided in Pinjarra and was known to her as a Justice of the Peace. She was also instrumental in obtaining a will form and arranging for various of those associated with him and the caring of his son to attend the Pinjarra Hotel for the will to be executed.
63 The deponent said that in the course of a conversation at this time the deceased indicated that his prime concern was for his son Owen. He wanted the plaintiff's children to get something and he wanted the Cancer Foundation to get the rest. He indicated that he had done enough for the plaintiff himself by assisting financially during his university studies. He referred to some issue concerning an amount which the plaintiff had received and an argument between the plaintiff and the deceased's former wife.
64 Elizabeth Cilento drove the deceased home after the signing of the 2004 will. He asked her to stop at the ANZ Bank in Mandurah because he wished to leave his will there. It was his idea to go to the bank and as she drove he directed her to the bank. He said that he wanted the will to be held at his bank because he was concerned about papers which had gone missing from his unit. He had copies of the will made and he gave a copy to her to give to his son and to the second-named defendant.
65 A further affidavit by Elizabeth Cilento sworn 18 April 2008 addressed a matter raised in the Brabazon affidavit concerning the lady in the photograph placed in the deceased's unit at Mandurah. On her account, up until the time the deceased left the unit to go to the nursing home he would quite often refer to that photograph and to the fact that it was of his second wife.
66 As to the ownership of the deceased's unit, she said that on her understanding the deceased's brother had contributed to the purchase of the deceased's unit. This evidence was put up to rebut a possible inference to be drawn from the Brabazon affidavit that the deceased was in a state of confusion in saying that he did not know who owned his unit.
Further affidavits
67 The affidavit evidence on the defendant's side included an affidavit of reply sworn by the first-named defendant bearing upon the issues just mentioned. Mr Robbins said that the deceased did not have any issue with identifying the woman in the photograph as his wife, Christine.
(Page 15)
- Exhibited to the affidavit is a search of a certificate of title showing that the transfer of the unit into the name of the deceased was registered on 21 January 2004.
68 By her affidavit sworn 16 January 2008 the second-named defendant, Julie Dols, recalled that she first met the deceased when he was living in Herne Hill, as mentioned earlier. He moved to Gosnells and then to Mandurah. She said that she has dealt with people with disabilities since 1981. In her role as a social trainer she assists people with both intellectual and physical disabilities.
69 It was said in this affidavit that during 2004 the deceased would say that his memory was on occasions not the best and that he would forget things such as where he put his car keys and where he parked his car at the supermarket. However, in her meetings with him she did not see anything to suggest he was not able to follow and hold a conversation, or to comprehend and understand what was occurring in his daily life. The only thing she noticed was that by 2004 he would, on occasions, have spasms in one hand.
70 Julie Dols said that she was not involved in any discussion concerning the contents of the deceased's will or its signing. She was invited to the Pinjarra Hotel by Elizabeth Cilento and joined others there who were known to the deceased. On that occasion there was nothing unusual in the deceased's manner or speech. He was, as usual, well groomed, displayed his impeccable table manners and was the total gentleman.
71 She said that while she is not a medical practitioner she has, in the course of her employment, seen many people with intellectual and physical disabilities. She did not consider that the deceased was suffering from any disability likely to affect his understanding of the will he was making. The only time she saw the deceased in the state that might be described as confused was at his son's funeral in 2005.
Findings
72 As I indicated in earlier discussion, it became apparent at the hearing that the defendants did not wish to contend for the 2004 will. However, as their affidavits and the 2004 will are before me, I cannot make the orders sought by the plaintiff without being satisfied that the 2003 will was not revoked by a later will and is a valid expression of the deceased's testamentary intentions.
(Page 16)
73 With that thought in mind, I received further evidence at the hearing from the plaintiff himself directed to the issues raised by the affidavits. There is no need for me to run through the plaintiff's evidence in its entirety. He is a medical practitioner and I am satisfied that he is a truthful and credible witness. By reference to his own observations he referred to various facts and matters that supported Dr Brabazon's opinion as to the deceased's lack of testamentary capacity when the 2004 will was executed.
74 In the end, I am satisfied that with the assistance of his brother and other family members and friends the deceased was able to maintain an outward appearance of normality. However, the fact was that as at 23 July 2004, as a consequence of his stroke, he did not have a sound disposing mind. He did not fully understand the nature of his act and its effect in executing the 2004 will. There is a persuasive medical opinion to that effect from Dr Brabazon, and no medical opinion to the contrary.
75 I am therefore of the view that the 2004 will, being of no force and effect, did not revoke the prior 2003 will. As to the 2003 will I find that the will in question was duly executed. There is no evidence before the court that the deceased lacked testamentary capacity at that time. The evidence before the court is directed to the effect of a stroke upon the deceased's testamentary capacity, being a stroke that occurred after the 2003 will had been executed. A presumption of validity arises in respect of the 2003 will. To my mind, this presumption is consistent with and supported by the evidence and can safely be acted upon.
76 Accordingly, for these reasons, and having regard to the decisions mentioned earlier, I will grant leave to the defendants to withdraw their counterclaim and make the orders sought by the plaintiff including an order that the court declares the force and validity of the will of the late George Boag Bond dated 19 December 2003.
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