Hearn v La Housse
[2007] WASC 99
•4 MAY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HALL -v- LANGLEY & ORS [2007] WASC 99
CORAM: HASLUCK J
HEARD: 26 & 27 FEBRUARY 2007
DELIVERED : 4 MAY 2007
FILE NO/S: CIV 1978 of 2005
BETWEEN: VANESSA HALL
Plaintiff
AND
CASSIDY LANGLEY
First DefendantCAITLIN CAREY
KOURTNEY CAREY by their guardian ad litem JULIE KENNEDY HAYES
Second DefendantsJULIE KENNEDY HAYES
Third DefendantVANESSA HALL
Fourth Defendant
Catchwords:
Succession - Wills, probate and administration - Construction and effect of testamentary dispositions - Proceedings by executors and administrators - Application for order that Court pronounce force and validity of disputed Will and for grant of probate - Duties of proponent of a disputed Will - Question of testamentary capacity at time of making of Will - Validity of Will witnessed by only one witness - Elements required in proving informal Will - Decree made for grant of probate of the subject Will in solemn form - Turns on own facts
Legislation:
Wills Act 1970 (WA), s 8, s 34
Result:
Decree made for grant of probate of subject Will in solemn form
Category: B
Representation:
Counsel:
Plaintiff: Mr B W Ashdown
First Defendant : Mr T Lampropoulos
Second Defendants : Mr A P Hershowitz
Third Defendant : Mr A P Hershowitz
Fourth Defendant : Mr B W Ashdown
Solicitors:
Plaintiff: Arvind C Pillay
First Defendant : G A Lacerenza & Associates
Second Defendants : Holborn Lenhoff Massey
Third Defendant : Holborn Lenhoff Massey
Fourth Defendant : Arvind C Pillay
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Gellatly v Curtin [2006] WASC 88
Mittoni v Bradley [2003] WASC 114
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
The Estate of Kevin John Hines v Hines [1999] WASC 111
The Public Trustee v Head [2003] WASC 91
West Australian Trustee Executor and Agency Company Ltd v Homes [1961] WAR 144
Worth v Clasohm (1952) 86 CLR 439
HASLUCK J:
The names and identifying details of all persons associated with, or concerned in, the proceedings have been changed.
Introduction
The plaintiff, Vanessa Hall, is the person named as executrix in a printed form Will dated 8 May 2004. This purports to be the last Will and Testament of Joshua Anthony Carey who died by committing suicide on the day the Will in question was allegedly executed by him.
The second defendants, Caitlin Carey and Kourtney Carey are the infant daughters of the deceased. The third defendant is the mother of the second defendants and the former wife of the deceased, Julie Kennedy Hayes. These defendants dispute the force and validity of the Will in question. The plaintiff has therefore been obliged to commence these proceedings with a view to obtaining a grant of probate in solemn form in favour of the plaintiff in respect of the disputed Will.
The principal asset in the estate is the residence occupied by the deceased at the time of his death known as the Suburb C property. There is a separate but related dispute between the parties as to whether the deceased's daughters have an equitable interest or claim against the Suburb C property with the result that it cannot be properly regarded as an asset of the estate.
A separate judgment will be delivered in respect of each matter in dispute. However, for ease of reference, and with a view to avoiding unnecessary repetition, I will call CIV 2193/2005 the "trust action"; I will call the present action CIV1978/2005 the "probate action". In both judgments I will refer to the children of the deceased as "Caitlin" and "Kourtney" respectively and will call their mother "Julie Kennedy Hayes". I will call the first defendant, Cassidy Langley, who is the other principal party, "Ms Langley".
The background to the two actions is described at length in the judgment to be handed down in respect of the trust action. I will not repeat the entire narrative because the issues in the probate action are more narrowly defined. However, I will proceed upon the basis that the narrative in the judgment concerning the trust action has been incorporated into this judgment by reference. Thus, in this judgment, I will present the background to the matters in issue between the parties in a summary form.
Background
The deceased, Joshua Anthony Carey, married Julie Kennedy Hayes on 28 July 1990. There were two children of the marriage being Caitlin Carey who was born on 28 February 1992 and Kourtney Carey who was born on 2 December 1994.
The deceased and Julie Kennedy Hayes were divorced in early 1997. After the divorce, the deceased owned and lived in a house at 24 C Road, Suburb A.
The deceased kept in touch with his daughters, Caitlin and Kourtney. The deceased's aunt, Vanessa Hall (the plaintiff in the probate action) resided nearby at Lot 502 H Road, Suburb B.
The deceased had a bank account in his own name with Police & Nurses Credit Society. On 1 July 1999 the deceased opened two new bank accounts with the Credit Society being an account in the name of "Joshua Anthony Carey Trust for Caitlin Carey" (account number [redacted]) and an account in the name of "Joshua Anthony Carey Trust for Kourtney Carey" (account number [redacted]). The deceased deposited $50 in each of the subject bank accounts. There were further small deposits and earnings of interest in due course.
Evidence was adduced at the trial that in late 2002 the deceased met Ms Langley and entered into a relationship with her. In late January 2003 the deceased entered into a contract to sell the Suburb A property for $171,000. On 13 March 2003 the deceased deposited in each daughter's bank account the sum of $82,167.73, being amounts derived from the proceeds of sale.
Two days later the deceased made an offer to purchase in his own name as sole proprietor a property known as 47 B Road, Suburb C for the sum of $171,000. In due course, he completed the purchase of the Suburb C property by borrowing $10,000 from the Credit Society and transferring into his own account the sum of $82,500 drawn from Caitlin's account and the sum of $82,500 drawn from Kourtney's account.
It was common ground that after the settlement the deceased and Ms Langley lived together for a period at the Suburb C property. However, it is apparent from various letters written by the deceased prior to his death that Ms Langley left the deceased in early May 2004. The deceased expressed and apparently continued to harbour a strong feeling of emotional attachment to Ms Langley and made it plain that he was deeply distressed by her departure.
On 8 May 2004 the deceased completed a printed form which purported to be his last Will and Testament. This is the "disputed" Will. At midday on the day in question he called upon Josie Mia Little who had been his next door neighbour at Suburb A. He signed the disputed Will in her presence and she added her signature as a witness.
The document was not signed by the deceased in the presence of two witnesses present at the same time in the manner required by s 8 of the Wills Act 1970 (WA).
The printed form Will reads as follows:
"This is the last Will and Testament of me, Joshua Anthony Carey (name) of 47 B Road, Suburb C, [redacted] (address) in the State of Western Australia
1.I revoke all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament.
2.I appoint Vanessa Hall (Ph. [redacted]) (name) of 540 H Road, Suburb B, Western Australia to be Executor or Executrix and Trustee of this my Will.
3.I give Cassidy Langley my house and land at 47 B Road, Suburb C, Western Australia, [redacted], Certificate of Title, Volume [redacted], Folio [redacted], Register No. [redacted], to dispose of, as she feels fit, to provide financial security to her and her children.
My A.M.P. Flexible Lifetime Super Plan [redacted], which includes an extra Death Benefit nominates my daughters, Caitlin Carey and Kourtney Carey, as joint beneficiaries. In the event of my death, I bequeath the Chinese Silk Print to Ms. Julie Kennedy Hayes. I also request that all of the contents of my home and garage be disposed with to pay associated funeral expenses, my ashes to go to Mundaring Cemetary [sic]. I also bequeath Vanessa Hall, my savings in Police & Nurses Credit Society, member [number A] B.S.B. [redacted], A/c. No. [redacted]. The remaining personal loan of less than $5,000.00 for the purchase of this home is to be repaid by Cassidy Langley.
Dated this 8th day of May in the year two thousand 04 (sic)
SIGNED by the Testator/Testatrix )
as and for his/her last Will and )
Testament in the present of us both )
present at the same time who at ) J Carey (J.A. Carey)
his/her request in his/her presence )
and in the presence of each other )
have hereunto subscribed our )
names as attesting witnesses )J M Little
Witness: Miss J.M. LITTLE
26 C ROADSUBURB A W.A. [redacted]"
I note in passing that the disputed Will runs over two pages. In reproducing the terms of the Will, for the sake of clarity, I have omitted the deceased's signature and the signature of Ms Little on the first page, and the printed form instructions to the effect that blank spaces are to be ruled out and the directions as to where the testator and witnesses are to sign.
The deceased conveyed to Ms Little that he intended to have the Will signed by his aunt as a second witness. As it happened, the deceased went to his aunt's home, and spent a part of the afternoon with her, but he did not produce or have her sign the printed form Will.
Later in the day the deceased took his life. There are two written communications signed by the deceased and dated 8 May 2004 which arguably cast light upon his state of mind. The communications include a lengthy letter dated Saturday, 8 May 2004 ("the Saturday, 8 May letter") which reads in part as follows:
"I saw Mum, Vanessa, Mavis and my former neighbour, Josie. I asked Josie today, to witness my will, one signature will suffice. I did not want to tell Mum, Vanessa, Mavis or Josie, how I felt, so I didn't. I did tell Josie, that I wanted to marry you, how kind you were to me and the girls and how much I loved you. I did not [sic] Josie that you had left. My will is my gift to you, Brad and Sally, to give you either a home to live in or sell it, pay off all of your debts, including the car, buy a unit and remember that I loved you more than you will ever know. Please give Brad, the watch, it is in the wardrobe."
The Saturday, 8 May letter includes also a further passage to this effect:
"… There is goodness in all and every living thing is linked in this world by the same thing, we are one and the same. I will see you in heaven and my soul will look over you, my spirit will be with you, with goodness in every way. My gift to you, my home, is because somebody has to give Cassidy something, you deserve it, I felt so sorry for what had happened in the past. Treat future men differently, be more open with your feelings and dislikes, communication is everything. Love you, Josh."
It was common ground at the trial that no Will of the deceased was found other than the disputed 8 May Will. The evidentiary materials before me include a record of investigation into death signed by the Deputy State Coroner which reads as follows:
"I, Evelyn Felicia Vicker SM, Deputy State Coroner, having investigated the death of Joshua Anthony CAREY, without holding an Inquest, find the deceased was 50 years of age and that death occurred on 8 May 2004 at 47 B Road, Suburb C as a result of Combined Effect of Drugs and Alcohol in the following circumstances:
The deceased lived alone at 47 B Road, Suburb C.
Late on the evening of Saturday 8 May 2004 the deceased's parents attended at the deceased's home to check on his welfare after he had made a disturbing call to his former partner. After entering the house they found the deceased collapsed next to his bed.
The deceased's father commenced resuscitation and an ambulance was called. On their arrival the officers could find no signs of life.
A search of the house located two notes written by the deceased, along with two empty medication bottles and an empty scotch bottle.
A post mortem examination, including toxicological analysis, detected a large quantity of residue of the deceased's medications in his stomach and showed a blood alcohol level of 0.287% at the time of death.
On the information available to me I am satisfied the deceased consumed a quantity of his medications in combination with a large quantity of alcohol with the intention of taking his life.
I find the death arose by way of Suicide."
As I have indicated, the deceased's aunt, Vanessa Hall, seeks a grant of probate in respect of the disputed Will upon the basis that she is the person named as the executor and trustee of the deceased's estate in that Will.
In support of her application, Vanessa Hall relied upon her own affidavit sworn 1 July 2004 which included a passage to the effect (at par 8) that the deceased died leaving an estate within Western Australia to a gross value of approximately $382,915 which included the Suburb C property ($180,000), an AMP Flexible Lifetime Super Plan Member No [redacted] ($200,000), Police & Nurses Credit Society Member No [number A] ($1600) and furniture and personal effects ($5000). There are various debts amounting to $22,685. Further evidence was given at the trial of the action.
I must now turn to the pleadings in the probate action.
The pleadings in the probate action
The plaintiff, Vanessa Hall, pleaded in her statement of claim that on 8 May 2004 the deceased died leaving property in Western Australia. It was said at par 2 of the claim that on that date the deceased executed his last Will by signing it at the foot of each page in the presence of J M Little being the only witness who was present at the time of signature and who attested the Will in the presence of the deceased.
It is said further that the deceased knew and approved the contents of the Will. It is said that Vanessa Hall is the sole executor named in the Will.
The statement of claim contains a plea in par 5 which is expressed in this way:
"5.The following dispute has arisen in respect to the Will:
5.1The Deceased signed the Will in front of only one Witness.
5.2The Deceased also left a letter written prior to his death on the 8th May 2004 addressed to the First Defendant wherein he requests the First Defendant to give 'the watch' to 'Brad'. This could also be a testamentary document.
5.3The cause of death shown in the Deceased's Death Certificate is 'combined effect of drugs and alcohol, Ischaemic heart disease suffered when he consumed a quantity of drugs and alcohol with the intention of taking his life. (As determined at Perth on the 16th February 2005 by E.F. Vicker, Coroner)'. It is claimed by the Second and Third Defendants that the Deceased may have lacked testamentary capacity."
It is against that background that the plaintiff seeks an order that the Court pronounce the force and validity of the disputed Will dated 8 May 2004. A direction is sought that the Probate Registrar issue a grant of probate in solemn form in favour of the plaintiff in respect of the disputed Will.
The first defendant, Ms Langley, admits the various allegations contained in the statement of claim save for what is said in par 5.2 and 5.3 of the claim.
Ms Langley pleads in par 2 of her statement of defence that the deceased at all material times on 8 May 2004 during the making and execution of the disputed Will had testamentary capacity. It is said further in par 3 that if it is claimed by the deceased's daughters and Julie Kennedy Hayes that the deceased lacked testamentary capacity then Ms Langley denies the same as if it was set out seriatim and specifically traversed.
Julie Kennedy Hayes and her daughters, Caitlin and Kourtney, in the statement of defence of the second and third defendants admit that the deceased died as alleged. They admit that on 8 May 2004 he executed a document which purported to be a Will. They admit that the deceased purported to name Vanessa Hall as the sole executor in the disputed Will.
As to par 5 of the statement of claim, these defendants say that they do not admit that the disputed Will is a Will; they do not admit the allegations referred to in par 5.1 and par 5.2 of the statement of claim.
Julie Kennedy Hayes and her daughters admit par 5.3 of the statement of claim and thereby appear to assert that the deceased may have lacked testamentary capacity. These defendants say that in the premises they require the disputed Will to be proved as a valid Will of the deceased in solemn form.
Having regard to the pleadings (although they are not entirely clear), and to the way the matter was argued at trial, I understand that there is an issue as to whether the disputed Will, which was undeniably executed in the presence of one witness only, can be characterised as a valid Will of the deceased. This will obviously require consideration of those provisions of the Wills Act concerning execution of Wills and informal Wills. I must also determine an issue as to the testamentary capacity of the deceased.
Accordingly, against this background, it will be useful now to look at certain statutory provisions and legal principles bearing upon the issues before me.
Statutory provisions and legal principles
Section 8 of the Wills Act 1970 provides that a Will is not valid unless it is in writing, it is signed by the testator, the testator makes or acknowledges his signature in the presence of at least two witnesses present at the same time and the witnesses attest and subscribe the Will in the presence of the testator.
The provision just mentioned is expressly made subject to a later provision of the Wills Act concerning informal Wills. Section 34 of the Act provides that a document purporting to embody the testamentary intentions of a deceased person is a Will of that person, notwithstanding that it has not been executed in accordance with s 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his Will.
In The Estate of Kevin John Hines v Hines [1999] WASC 111 at [12], Owen J reviewed s 34 and summarised the ingredients allowed for by that provision. His Honour observed that, first, there must be a document purporting to embody the testamentary intentions of the deceased; that is, whether the deceased knew and approved of the contents of the document in question. Second, the document must not have been executed in accordance with s 8. Third, the Court must be satisfied that the deceased person intended the document to constitute his or her Will.
His Honour went on to say at [22] that the enquiry of the Court is not directed at whether the deceased's intention was that a document constitute a Will as such. It is directed at whether the deceased intended the document to have effect as a testamentary instrument.
His Honour made these further observations at [26]:
"But it seems to me that the court must be able to infer from the circumstances that the deceased adopted or authenticated the document such as to show that he or she intended the document to take effect as a testamentary instrument. The availability of independent evidence (and by that I mean evidence apart from the document itself) makes the task of proving the will considerably less difficult."
I remind myself that in Mittoni v Bradley [2003] WASC 114 I gave weight to the fact that the relevant document in that case by its very nature purported to record the deceased's testamentary intentions. The document was described in its opening words (which were printed in large and bold print) as the last Will and Testament. In bold print, reference was then made to the revoking of all other Wills. I noted that the person appointed as executor was directed that the deceased's funeral and testamentary expenses and all his debts were to be paid as soon as conveniently may be after his decease. I observed that those words must have conveyed to the deceased, as they would convey to any ordinary member of the community, that this was a formal document that was intended to take effect as a Will upon the death of the person signing the document.
In Mittoni's case (supra) I gave weight also (at [67]) to the fact that the document was signed by the deceased in the presence of witnesses who were obviously summoned to act in that capacity.
These observations are not directly applicable to the circumstances of the present case because the printed form Will in the present case does not include reference to funeral and testamentary expenses and the payment of debts as soon as possible after the deceased's demise. There was only one witness. However, the printed form does set out in bold print that the document is the last Will and Testament of the person filling in the form. The other printed clauses and the attestation clause are also strongly suggestive that this is a formal document designed to permit the person completing the form to express his testamentary intention.
As to the burden of proof, the decided cases indicate that it is the plaintiff as the propounder of the Will who bears the onus of proving that the deceased intended the document to constitute his Will. The onus must be satisfied on the balance of probabilities: The Public Trustee v Head [2003] WASC 91 at [36].
As to the issue of testamentary capacity the propounder may take advantage of the rule that a Will properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and of understanding. If there is evidence to the contrary it is for the proponent to establish affirmatively that the testator was of sound mind. There must be proof at least to this extent on the civil standard to justify a grant in solemn form: West Australian Trustee Executor and Agency Company Ltd v Homes [1961] WAR 144.
In Bailey v Bailey (1924) 34 CLR 558 Isaacs J at 570 summarised the effect of certain decided cases. He said that the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it. The propounder's duty is, in the first place, discharged by establishing a prima facie case. A prima facie case is one which satisfied the Court judicially that the Will propounded is the last Will of a free and capable testator. It is not the integrity of the body but of the mind that is requisite in testament.
Isaacs J went on to say that the quantum of evidence must always depend upon the circumstances of each case including reference to the complexity of the relevant provisions, the exclusion of persons naturally having a claim on the testator, the presence of any person having a motive and opportunity and exercising undue influence or taking a substantial benefit.
Once the proponent establishes a prima facie case of sound mind, memory and understanding then the onus of proof lies on the party impeaching the Will to show that it ought not to be admitted. Mere proof of serious 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.
In Worth v Clasohm (1952) 86 CLR 439 the High Court held that the effect of a doubt initially is to require a vigilant examination of the whole of the evidence. However, the examination having been made, a residual doubt is not enough to defeat a claim for probate unless it is thought by the Court to be substantial enough to preclude a belief that the document is the Will of a testator who possessed sound mind, memory and understanding at the time of its execution.
It has been held that these principles apply to an informal Will once the Court is satisfied of the requirements of s 34 of the Wills Act which allows for proof of an informal Will: Gellatly v Curtin [2006] WASC 88 at [11].
In Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 it was held that the suicide of a testator following upon the execution of a Will does not give rise to any presumption of testamentary incapacity. Further, the cognitive changes that occur with a severely depressed state do not come within the concept of a disorder of the mind such as to deprive a person of testamentary capacity.
Thus, in that case, in circumstances where a testator, being in a state of severe depression, wrote and executed a Will in the presence of two friends, leaving his property to a de facto wife, and within a short time thereafter shot himself, the Will was nonetheless held to have been duly executed and at the time of execution the testator had testamentary capacity.
I must now return to the circumstances of the present case.
Conclusion
It is clear from the evidence adduced at trial that the disputed Will did not comply with the requirements of s 8 of the Wills Act concerning the execution of a Will. It was not signed by the deceased in the present of at least two witnesses present at the same time. It was signed in the presence of Josie Little only. It follows from this that Vanessa Hall, as the plaintiff in the probate action and as the propounder of the disputed Will, must rely upon s 34 of the Wills Act concerning informal Wills.
I dealt with the elements of s 34 in the course of reviewing the principles applicable to a case of this kind. The Court must be satisfied that the deceased intended the document to constitute his Will. The plaintiff, as the propounder of the Will, bears the onus of proof in that regard.
It emerges from the decided cases that the Court must be able to infer from the circumstances that the deceased adopted or authenticated the document in question such as to show that he intended the document to take effect as a testamentary instrument.
In the present case, I am satisfied on the evidence before me that the deceased did intend the document in question to constitute his Will. As in Mittoni's case (supra), the printed form in bold print emphasises for the benefit of the person completing the form that this is to be the last Will and Testament of the person. This message is reinforced by the other printed components of the form.
When one turns to the contents of the disputed Will it is apparent that the deceased is endeavouring to address the disposition of his assets. Moreover, it is consistent with the evidence as a whole, that he should appoint his aunt, Vanessa Hall, as executrix, having regard to their close association in the years prior to his death. In addition, the letters written by the deceased on 8 May 2004 are consistent with and underpin the inference that he intended to express his testamentary intentions in a Will. The disputed Will in its terms is consistent with the expression of his testamentary wishes in the Saturday 8 May letter.
For all these reasons, I am satisfied that the deceased intended the disputed Will to constitute his Will in the manner allowed for by s 34 of the Wills Act. This brings me to the question of the testator's testamentary capacity.
I am obliged to observe immediately that there is no expert evidence before me casting doubt upon his testamentary capacity or providing a basis for any inference to be drawn that he lacked capacity.
The terms of the Will, and the terms of the accompanying letters, are coherent and indicate that the deceased was well aware that he was making a Will, that he had knowledge of his property, that he had brought to mind the objects of his bounty, and that he was in a position to and did give consideration to the claims of those within his domestic circle.
It is true that he preferred the claims of Ms Langley, as the woman he had been living with, over the claims of his daughters. However, that aspect of the matter has to be viewed within the context of an estate that was not large and bearing in mind that the deceased was distraught and seemed determined to make amends to the woman who was so important to him.
When I draw all these considerations together, I consider that I must give weight to the proposition that a duly executed Will, coherent on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding.
It follows that I am prepared to make the orders sought by the plaintiff. However, the final orders and directions to be made must be considered in conjunction with the orders to be made in the trust action. I will hear from the parties in that regard.
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