HOLYOAK-ROBERTS v Ryder - [2009] WASC 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HOLYOAK-ROBERTS -v- RYDER [2009] WASC 341

CORAM: JENKINS J

HEARD: 19 MAY, 4, 26 AUGUST, 20 NOVEMBER 2009

DELIVERED : 20 NOVEMBER 2009

FILE NO/S: CIV 1557 of 2008

MATTER :The Will and Estate of Douglas Anthony Ryder

BETWEEN: CHARMAINE FRANCES HOLYOAK-ROBERTS
Plaintiff
AND
DOUGLAS ANTHONY RYDER
First Defendant
NORMA BARRON
Second Defendant
SONJA SANTOS
Third Defendant
STEPHEN DOUGLAS RYDER
Fourth Defendant
DARREN STUART RYDER
Fifth Defendant
BENJAMIN JOSEPH RYDER
Sixth Defendant
OLIVER DOUGLAS RYDER
Seventh Defendant

Catchwords:

Succession - Wills, probate and administration - Proof of will in solemn form - Undefended trial following Deed of Family Arrangement - Testamentary capacity

Legal proceedings by or against persons under a disability - Infants - Approval of compromise of a probate action

Legislation:

Rules of the Supreme Court 1971 (WA), O 70 r 10

Result:

Approval of compromise of the probate action
Grant of probate in solemn form of will dated 2 July 2007

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant             :     Dr J J Hockley
Second Defendant         :     Mr I T Blatchford
Third Defendant           :     No appearance
Fourth Defendant          :     Dr J J Hockley
Fifth Defendant            :     Dr J J Hockley
Sixth Defendant            :     Dr J J Hockley
Seventh Defendant        :     Dr J J Hockley

Solicitors:

Plaintiff:     Holyoak-Roberts Legal
First Defendant             :     Deborah Pearman
Second Defendant         :     Blatchfords Lawyers
Third Defendant           :     No appearance
Fourth Defendant          :     Deborah Pearman
Fifth Defendant            :     Deborah Pearman
Sixth Defendant            :     Deborah Pearman
Seventh Defendant        :     Deborah Pearman

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

Sosa v Carter [1978] WAR 123
The Public Trustee As Administrator of the Estate of Hilda Margaret Halley v McLean [2009] WASC 158
Wheatley v Edgar [2003] WASC 118

JENKINS J: Douglas Frederick Ryder died on 26 September 2007, aged 88. He made his third and final will on 2 July 2007. In Mr Ryder's last will he gave his home, his most valuable asset, to his friend Norma Barron and left the balance of his estate, after payment of some small bequests, equally to Ms Barron and another friend, Sonja Santos. Some of Mr Ryder's relatives disputed his capacity to make the last will. However, after a time, the parties sensibly agreed to a division of the estate, so that the family members no longer press their objections.
The plaintiff, who is the executor of the last will, asks the court to pronounce in solemn form the force and validity of the last will. Apart from Ms Santos, the parties consent to the orders sought by the plaintiff. Ms Santos abides by the decision of the court. I am also asked to approve the compromise of the probate action on behalf of two of Mr Ryder's great‑grandchildren; Benjamin Joseph Ryder aged 10 years and Oliver Douglas Ryder aged 7 years.
When the matter first came before me the plaintiff sought consent orders to approve the compromise between the parties. If I had made those orders I would have varied the terms of the last will and different trusts would have been created. I advised the parties that, as all the beneficiaries under the last will were competent adults, I did not believe that I had power to vary the trusts created by the last will.
After some consideration, the parties conceded that I did not have such powers. Instead they entered into a deed of family arrangement dated 17 September 2009. The parties now ask that the last will be proved in solemn form. If this is done, the plaintiff will call in and distribute the estate in accordance with the terms of the deed.
Although all parties who may have a claim to the estate of the deceased have agreed to the compromise of the action, the parties acknowledge that it must be approved by the court because two of the parties are infants pursuant to the Rules of the Supreme Court 1971 (WA) (SCR) O 70.
Thus, there are two issues before me. One is whether the compromise of the action on behalf of Benjamin Joseph Ryder and Oliver Douglas Ryder ought to be approved by the court. The other is whether I ought to grant probate in solemn form of the last will. The issues are interdependent on one another. Consequently, I will consider the circumstances relating to them together but make separate findings at the end of these reasons in respect to each issue.

The law

Despite the absence of any person who opposes the orders sought by the plaintiff, it is necessary for me to be satisfied of the validity of the will before I make the orders sought by the plaintiff.
There is no dispute in this case that the deceased executed the will, which is in writing, in the presence of two witnesses. The real issue, if there is one, is the mental capacity of the deceased at the time he executed the will.
A will may be proved in common form or in solemn form. Wills are pronounced in solemn form in a probate action where the main 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.
As there is an issue, raised by the evidence, as to whether the deceased had sufficient mental capacity when he executed the will, despite the fact that the challenge to the validity of the will is no longer pressed, it is appropriate for the last will, if it is to be pronounced, to be pronounced in solemn form. Except for limited exceptions, a grant of probate in solemn form is irrevocable: Wheatley v Edgar [2003] WASC 118.
The legal principles which I apply to determine whether probate should be granted of the last will are those summarised in The Public Trustee As Administrator of the Estate of Hilda Margaret Halley v McLean [2009] WASC 158 [11] ‑ [15]. I will not repeat them.
In deciding whether to approve the settlement of this action on behalf of Benjamin and Oliver, I must be satisfied that:
1.the proposed settlement will be for the benefit of Benjamin and Oliver;
2.all the facts relevant to the settlement of their claims have been brought together and considered by their legal advisers;
3.the proposed settlement is supported by the opinion of independent counsel who has given proper consideration to all aspects of the case; and
4.independent counsel's opinion has been considered, understood and approved by Benjamin and Oliver's father, their guardian.
I should be slow to disagree with the opinion of counsel and also be slow to force Benjamin and Oliver to take risks in the conduct of this action: Sosa v Carter [1978] WAR 123.

Background

Mr Ryder was not married at the time of his death. His living lineal relatives are:
1.his only son, Douglas Anthony Ryder;
2.his two grandsons, Stephen Douglas Ryder and Darren Stuart Ryder; and
3.his three great‑grandsons, Benjamin, Oliver and Toby.
Toby is not a party to this action and I know nothing of his circumstances.
During his lifetime, the deceased made three wills; the two earlier wills are dated 5 May 1985 (the first will) and 10 May 2005 (the second will). The plaintiff is the executor and trustee of the second and the last will.
In the first will, when I presume that the deceased had capacity to make a will, he gave his estate to his wife if she survived him, but if not he gave bequests to his grandchildren and the balance of his estate to his son and his wife, in equal shares.
In the second will, Mr Ryder gave small bequests to named persons. He left all his personal effects to Ms Barron and Ms Santos. He gave the balance of his estate, in trust, to Ms Barron, Ms Santos, his grandsons and Benjamin and Oliver in equal shares.
In the second will Mr Ryder stated that he had deliberately made no greater bequest to his son. It is unnecessary for me to mention the reasons he gave for this decision.
In March 2005 the deceased was assessed at Joondalup Hospital as appearing cognitively intact. However, there is evidence from his general medical practitioner that at this time Mr Ryder had periods of confusion over his relationship with his family.
Between 14 May and 19 June 2007 the deceased was under the care of Dr Richard Cordell, a consultant physician, at the Joondalup Health Campus. Dr Cordell saw the deceased daily from Monday to Friday and on occasions during weekends. During his admission to hospital Mr Ryder had constant short term memory loss. However, Dr Cordell is of the opinion that Mr Ryder had testamentary capacity during this period.
I know little of the circumstances in which the deceased came to make the last will. The plaintiff, a certified legal practitioner, has sworn that she prepared the will and supervised its execution. She has also deposed that in her view at the time of its execution Mr Ryder 'had a clear and lucid mind'. She based this opinion on the interview she conducted with him on 2 July 2007, the date she took instructions for the last will and supervised its execution.
The plaintiff has produced a memo relating to the appointment with Mr Ryder. It records an apparently normal conversation which she had with the deceased in his home. Ms Barron was present and staying with Mr Ryder to care for him. The plaintiff recorded that Mr Ryder was dressed in pyjamas, remained seated and was breathing with the assistance of oxygen. He was able to identify his assets as his bank accounts and his home. He was not able to state the balance of his accounts. Mr Ryder told the plaintiff that he had been estranged from his son and his family, including his grandchildren for a number of years, despite his attempts to rekindle the relationship. For this reason he wished to exclude them from his will and, instead, reward those who had assisted him during his latter life. The plaintiff advised Mr Ryder of the possible legal effects of not including his family in his will. Despite this advice Mr Ryder was adamant that he did not want to benefit his son in his will.
The plaintiff observed that Mr Ryder was frail but gave rational answers to her questions. He was alert and coherent during the 45 minute interview.
Mr Ryder was admitted to Hospital the following day, 3 July and remained in hospital until 27 August 2007. Dr Cordell was still his treating doctor. It is Dr Cordell's opinion that there was a significant decline in Mr Ryder's mental state between his two hospital admissions. He says that during his last stay in hospital, Mr Ryder was confused as to time, place and person. For example, on 5 July 2007 Mr Ryder asked a nurse where his wife was (she had died some years earlier) and whether he was in Scotland. This confusion progressed over time and he did not recover his mental alertness prior to his death.
Dr Cordell has concerns about his testamentary capacity during the latter admission. On the other hand, Dr Cordell confirmed that the bequests made by Mr Ryder in his last will were consistent with the testamentary wishes Mr Ryder had expressed to Dr Cordell at earlier times when he was in better health and that the terms of the will were probably within Mr Ryder's level of comprehension.
After Mr Ryder died, his son lodged a caveat opposing the grant of probate of the last will in common form. The plaintiff then commenced this action asking the court to pronounce the force and validity of the last will in solemn form. Mr Ryder's son filed a defence to the action alleging that Mr Ryder lacked testamentary capacity to make the last will. He counterclaimed asking the court to pronounce the force and validity of the second will in solemn form. Such an order would benefit Mr Ryder's grandsons and great‑grandsons as they are residuary beneficiaries under that will. At a later point the grandsons and great grandsons were joined as defendants to this action.
During the interlocutory phase of the action the parties reached an agreement which would settle this action. The terms of that agreement are, in essence, now contained in the deed. The deed states that with a view to settling all claims and disputes between the parties over Mr Ryder's estate that parties agree as follows:
2.The 2007 Will of the Deceased be varied so that:
(a)Clause 6(a) be amended by inserting after $1,000 'and to my stereogram, buffet, wedding and other photos and home movies'; and
(b)Clause 7 be deleted and the following clause be inserted in its place:‑
'I bequeath the residue of my Estate and the income arising there from ("my trust Estate") to my Trustee and I direct that my Trustee shall hold my trust estate on trust to provide as follows:‑
i.Norma Barron to receive 57.5%;
ii.Sonja Santos to receive 7.5%;
iii.Darren Stuart Ryder, Stephen Douglas Ryder, Benjamin Joseph Ryder and Oliver Douglas Ryder to receive in equal shares the remaining 35% of the residue of my Estate.
3.From the Estate and prior to division of the residual Estate the following shall be paid:
(a)The sum of $5,000 to Norma Barron in reimbursement to her of legal costs incurred in the Supreme Court proceedings;
(b)The sum of $22,000 to Douglas in reimbursement of his legal costs incurred in the Supreme Court proceedings;
(c)The sum of $21,500 to Charmaine in reimbursement of her legal costs incurred in the Supreme Court proceedings.
4.From the share of the residual Estate to be paid to Norma Barron and Sonja Santos pursuant to Clause 2 of this Deed, the sum of $2,500 shall be deducted from each of Norma and Sonja's share and be paid to Charmaine in further reimbursement to her of her costs incurred in the Supreme Court proceedings.
5.Charmaine's legal costs incurred in the Supreme Court proceedings shall be fixed in the sum of $26,500 and shall be paid as set out in the terms of this Deed.
6.Darren Stuart Ryder, as guardian of Benjamin and Oliver shall hold Ben and Oliver's share of the Estate upon trust and he shall be appointed the sole Trustee of the same until such time as they attain the age of eighteen years.
7.The parties hereby agree to indemnify Charmaine against any proceedings brought against Charmaine by any or each of them or any other person or persons under the Administration (Family and Dependants), Administration Act, Trustees Act or under any other statute or at common law or in equity arising out of the death of the deceased or with respect to monies paid to the parties pursuant to the terms of this agreement and hereby release Charmaine from all or any liability arising out of or connected with her Executorship and administration of the estate and Will of the Deceased.
8.The terms of this Deed may be pleaded in bar of any claim or action brought subsequent hereto by the Beneficiaries against Charmaine from any clause.

Analysis of the issues

There is evidence before me to support a finding that when Mr Ryder made his last will he knew how he wished to leave his property and understood the effect of him doing so in the manner he did. The evidence also supports a finding that he possessed sufficient capacity to appreciate what his property was. I accept that he did not know the balance in his bank accounts but this is not surprising given that his banking and everyday needs were attended to by others. Whatever his cognitive function was on 3 July 2007, the evidence before me is that on 2 July 2007, Mr Ryder was able to identify his family and friends as being the persons who had moral claims upon him. He had the capacity to exercise judgment as to such claims. The judgment may not have been what others would have considered balanced but the reasons he gave to the plaintiff for excluding his family as substantial beneficiaries under the last will were apparently rational. It is quite clear that when the plaintiff attended on Mr Ryder and he signed the last will, Mr Ryder understood he was making a will and the effect of it.
Therefore the evidence justifies me pronouncing the force and validity of the will dated 2 July 2007 in solemn form. If I do so, in accordance with the agreement between the parties, the deed of family arrangement will govern the disposition of the assets of the estate. Under the deed, 35% of the residue of the estate will be held in trust for the two minors, Benjamin and Oliver, until they reach the age of 18. The trustee will be their father, Mr Darren Ryder. This is undoubtedly to their benefit as under the terms of the last will they would not receive any benefit.
On the other hand I am aware that it is only because the parties have entered into the deed that the defendants have not continued to object to the last will and tendered evidence which may have bolstered the concerns which Dr Cordell has expressed as to Mr Ryder's testamentary capacity when he signed the last will. It is possible, although I make no finding in this regard, that such evidence may persuade a court that Mr Ryder lacked testamentary capacity when he made his last will and that probate ought to be granted of the second will. There is little likelihood that a court would grant probate of the first will and so I disregard that possibility.
Under the second will, 33.2% of the residue of the estate would be held in trust for Benjamin and Oliver to be divided equally between them when they turned 21. In addition, their father would receive a specific bequest of $500 and 16.6% of the residue of the estate. Their mother would receive a specific bequest of $500. Benjamin and Oliver would be likely to receive indirect benefits from those bequests.
In order to obtain any benefit under the second will this action would have to proceed to a defended hearing. There would be a substantial risk that the defence and counterclaim would fail, that Benjamin and Oliver would receive no benefit from the last will but would be ordered to pay a share of the plaintiff's costs, as well as incurring their own costs.
In my opinion, it is clear that those risks in the litigation are not worth taking. If the orders sought by the parties are made the residue of the estate will be much the same as it would be under the terms of the second will. Benjamin and Oliver will receive slightly more of the residue of the estate than they would under the second will. Further, they will receive it earlier than they would under the second will. Unfortunately, they will not receive the indirect benefit that they may receive under the second will from their parent's inheritance. However, the benefit to them of their parent's inheritance under the second will is not able to be quantified.
Dr John Hockley, independent counsel, provided a written opinion dated 15 January 2009 as to the benefit to Benjamin and Oliver in the agreement which formed the basis of the deed. Unfortunately, the opinion appears to have been based on an incorrect assumption that the parties had agreed to seek to have the second will propounded. Nevertheless, I take into account Mr Hockley's opinion that the agreement, which is now embodied in the deed, was to Benjamin and Oliver's advantage. I also take into account Dr Hockley's subsequent written and oral submissions. I do not see any benefit in delaying this matter further by requiring another opinion from independent counsel.
There is no direct evidence from Benjamin and Oliver's father but I have heard from his counsel in regards to his support for the orders sought by the plaintiff so that the terms of the deed can be put into effect for benefit of his sons. There is no benefit to their father in seeking to have this agreement approved, other than to ensure that his sons benefit from the estate.
Taking all these matters into account I am satisfied that the agreement between the parties is for the benefit of Benjamin and Oliver. To summarise, the agreement is that Mr Ryder's family, including Benjamin and Oliver, consent to the orders sought by the plaintiff on the basis that once probate is granted in solemn form of the last will the estate will be distributed in terms of the deed. I am also satisfied that all the facts relevant to the settlement of Benjamin and Oliver's claims on the estate have been brought together and considered by their legal advisers.

Pursuant to SCR O 70 r 10, I approve the agreement between the parties whereby Benjamin and Oliver Ryder, who are both under a disability, agreed to a compromise in terms which have now been recorded in the deed and agreed to consent to the plaintiff's application to have probate granted in solemn form of the last will.
On the basis of the evidence before me, I am prepared to grant probate in solemn form of the last will.
I will hear the parties as to final orders.