GOLDING as one of the Executors of the will of ANNIE PATRICIA GOLDING -v- SHEPANIAK

[2007] WASC 241

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GOLDING as one of the Executors of the will of ANNIE PATRICIA GOLDING -v- SHEPANIAK [2007] WASC 241

CORAM:   McKECHNIE J

HEARD:   8 OCTOBER 2007

DELIVERED          :   8 OCTOBER 2007

FILE NO/S:   CIV 2331 of 2006

BETWEEN:   LEON JOHN ANTHONY GOLDING as one of the Executors of the will of ANNIE PATRICIA GOLDING

Plaintiff

AND

CHRISTIAN ANTHONY SHEPANIAK
Defendant

Catchwords:

Wills - Proof of will in solemn form - Turns on own facts

Legislation:

Nil

Result:

Declaration made

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J C Curthoys

Defendant:     In person

Solicitors:

Plaintiff:     Michael Whyte & Co

Defendant:     In person

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

Nil

1. McKECHNIE J:  The plaintiff seeks a grant of probate in solemn form of the will of Annie Patricia Golding, dated the 11 August, 2003.  That grant is opposed by the defendant who claims that the deceased was his de facto and that they were living together as husband and wife for an uninterrupted period of 12 years.  They also shared real estate.

2. The circumstances of the execution of the will are set out in the affidavit of the deceased's solicitor, Mr Rodney Griffiths.  It is significant that the she attended a solicitor to draw a will.  She sought the advice of Mr Griffiths because his partner, Mr Anthony Robert Godecke, had drafted a will for her some nine years earlier.  Her instructions for the will and her property were similar to those of her will of May 1994.  The solicitor says in an affidavit dated 3 March 2005, tendered in these proceedings:

   On 6 August 2003 Annie Patricia Golding (the Deceased) attended my office to instruct me to prepare a new Will and to seek advice regarding her mode of holding the land situate at 21 Frape Street, Yokine; that was, as a joint tenant with the co-registered proprietor or whether she held it as tenant in common. 

   In particular, the Deceased wanted to ensure that she held the land as a tenant in common so that it could be dealt with by her Will. 

3. Mr Griffiths then took instructions from her.  It is significant, to my mind in considering the capacity of the deceased, that this was a matter of concern for her.  I can see it might be a matter of concern having regard to the history in relation to the land, which is identified in exhibit C tendered by the defendant, where the title appeared to have been lost or destroyed and further documents were prepared.

4. In any event it is not an unreasonable thing for people to be unsure about the legal status in which they hold land.  The enquiry to her solicitors indicates that the deceased knew what she was doing.

5. She later dropped off a copy of the certificate of title to enable her solicitor to check her assumption relating to whether she held the land as a tenant in common.  The solicitor advised her that she did and then drafted the will.  The solicitor says:

   At the time of taking instructions the Deceased understood the nature and effect of the instructions which she was providing me relating to the disposition of her assets and the persons who were to benefit by her Will.

6. After drafting the will, the solicitor sent the will to her at her daughter's address

   under cover of a letter in which I requested her to peruse it carefully to satisfy herself that it met with her requirements and thereafter to make an appointment to call on our offices for the purposes of executing the will.

7. She attended to execute the will on 11 August 2003 and executed it in the presence of the solicitor and the office manager for the practice, Ms Cooper, whose affidavit is exhibit B.  Ms Cooper gave evidence this morning, and was not cross‑examined. 

8. The defendant is in person.  It is always difficult for a party in person in an area of law sometimes strewn with pitfalls.  The defence filed raised a number of matters in relation to the will and asserted that there was a further will in operation that post‑dated the will under consideration.  However, the assertion has now fallen away as that post-dated will has been shown to be, and accepted as, a forgery.

9. In essence, the defendant asserts questions about the capacity of the deceased to make her will.  He points to the death certificate which is dated 16 September 2004 and shows as the cause of death:

   Disseminated breast cancer (4 years)

   (Contributory Cause) Dementia, Ischaemic heart disease, Hypertension, Asthma.

10. I make the observation: perhaps not unexpected in a lady of 80 years.

11. The defence asserts that at the time the will was executed the deceased had evident dementia.  It is, however quite possible for a person with dementia, nevertheless, to have the capacity to give instructions for a will to reflect their desires and in this case, as against the defendant's assertion, the clear evidence from Mr Griffiths, which I entirely accept, is of a woman who knew what she wanted to do, carried out the wise course of seeking the advice of a solicitor to draw a will, drew a will in substantial terms the same as her earlier will.  The will was itself sensible.  There was nothing about the will which would of itself excite any question as to her dementia.

12. There is a presumption of regularity when it is proved that the will is regularly executed.  In this case, however, I do not rely on the presumption; I am entirely satisfied that at the time the deceased executed the will on 11 August 2003 she had sufficient capacity to know and understand what she was doing.  I make an order in terms of the application.