In the Estate of LEONA JOHNSON (DECEASED) - [2015] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of LEONA JOHNSON (DECEASED)
[2015] SASC 51
Reasons for Decision of The Honourable Justice Gray
30 March 2015
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION WITH WILL ANNEXED - GENERALLY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - EVIDENCE - CIRCUMSTANCES AROUSING SUSPICION
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - EVIDENCE - GENERALLY
Application of the Public Trustee for a grant of letters of administration with a copy will annexed. The deceased died 15 October 2012. The deceased made a will on 20 April 2004. The original will cannot be found. The matter was referred by the Registrar of Probates to a Judge of this Court as a result of a medical report which expressed the opinion that the deceased was not of testamentary capacity at the time of making the will.
Whether the Court should conduct investigations in an unopposed common form matter where evidence brought forward by applicant in support of application raises real doubt as to capacity.
Held (granting the application):
1. In non-contentious probate proceedings, the court should maintain an oversight considering the validity of a will.
2. Where it appears from material before the court that there is a well-founded suspicion that the document is not valid, then the court should conduct such investigations as is appropriate in the circumstances to dispel that suspicion.
3. Where circumstances give rise to a well-founded suspicion that the deceased lacked testamentary capacity, the proponents of the will bear the burden of removing the suspicion.
4. The further affidavit material filed at the direction of the Court demonstrated that the deceased had testamentary capacity at the time she executed the will.
5. It was appropriate to admit the copy will to probate.
Public Trustee Act 1995 (SA) s 9(1)(h), referred to.
Re Buschel [1930] QWN 45; Tyrrell v Painton [1894] P 151; Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62; Nock v Austin (1918) 25 CLR 519; Wade v Frost [2014] SASC 162; Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul (2009) 4 ASTLR 16; Re Levy (Dec) (No 2) [1957] VR 662; Wheatley v Edgar [2003] WASC 118; Tsagouris & Anor v Bellairs & Ors [2010] SASC 147, considered.

In the Estate of LEONA JOHNSON (DECEASED)
[2015] SASC 51
Testamentary Causes Jurisdiction
GRAY J.

This is an application of the Public Trustee for a grant of letters of administration with a will annexed. On 4 March 2015, I made an order for a grant as sought. My reasons follow.
The deceased, Leona Johnson, died on 15 October 2012. The deceased made a will on 20 April 2004. The will was professionally drawn. Ann-Marie Therese Hamilton, a solicitor, as witness to the will, has sworn an affidavit of due execution. The original will cannot be found and, as a consequence, a grant of letters of administration with the will annexed is sought. The annexure is a copy of the duly attested will. The Public Trustee’s involvement has come about by reason of a request under section 9(1)(h) of the Public Trustee Act 1995 (SA).
As discussed below, the deceased had been found to have lacked capacity at a date after she made the will on 20 April 2004. In the ordinary course, the grant would have been made by the Registrar. The circumstances do not give rise to a presumption of revocation. A difficulty has arisen, however, as a result of a medical report of Stephen Roy Blanch of 5 December 2013, in which information was provided that, as at 21 June 2006, the deceased was diagnosed with dementia and the opinion was expressed “Mrs Johnson’s dementia was significant at least two years earlier than this date”.
The Registrar referred the application to me for consideration of the approach that should be taken by the court in an unopposed common form matter where the evidence brought forward by the applicant in support of the application raises real doubt as to capacity.
As stated in Australian Succession Law:[1]
Circumstances where doubt raised
...
A Registrar of Probates may question the validity of a will because of the state of the document when it is presented for a grant of probate or be put on alert because of the cause of death of the testator as stated in the death certificate.
Where circumstances give rise to a well-founded suspicion that the deceased lacked testamentary capacity, the proponents of the will bear the burden of removing the suspicion. These observations are supported by Tristam & Coote’s Probate Practice where the following appears:[2]
Suspicion as to will
Where a will is propounded which raises the suspicion of the court that it does not express the mind of the testator, the onus is on those who propound it to remove the suspicion.
[1] Thomson Reuters, Australian Succession Law, vol 1 (at Update 15) [135.130].
[2] RR D’Costa, JI Winegarten and T Synak, Tristam & Coote’s Probate Practice (LexisNexis Butterworths, 30^th ed, 2006) 82.
Similar circumstances to those of the present proceeding arose in Re Buschel.[3] E A Douglas J granted probate in common form after the Registrar referred the matter to him in non-contentious circumstances. The deceased died on 23 December 1929. The deceased made a will on 5 October 1929, under which his wife was named executor and sole beneficiary. The wife, as executor, petitioned for a grant of probate. In the certificate of death, the cause was stated to be “paralysis of the insane” and the duration of the last illness was stated to be “months”. E A Douglas J made a grant of probate in common form after attestations from a doctor and the solicitor who prepared the will as to the deceased’s mental condition at the time of the deceased signing the will and shortly thereafter.
[3] Re Buschel [1930] QWN 45.
In Tyrrell v Painton, Lindley LJ observed:[4]
The rule in Barry v. Butlin, Fulton v. Andrew, and Brown v. Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.
[Footnotes omitted. Emphasis added.]
Davey LJ said:[5]
It must not be supposed that the principle in Barry v. Butlin is confined to cases where the person who prepares the will is the person who takes the benefit under it-that is one state of things which raises a suspicion; but the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed.
[Footnotes omitted.]
These statements of law were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand.[6]
[4]    Tyrrell v Painton [1894] P 151, 157.
[5]    Tyrrell v Painton [1894] P 151, 159-160.
[6]    Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62.
The High Court considered the question in Nock v Austin,[7] and concluded that the circumstances surrounding the preparation of the will were suspicious and that this led to an inquiry as to whether the testator knew and approved of the contents of the will. The Court agreed with the trial Judge that the suspicions were dispelled. In doing so, Isaacs J summarised the relevant law to include the following:[8]
The relevant law is not doubtful. It may be thus stated: —
(1)In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v. Butlin; Fulton v. Andrew).
(2)Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v. Batt; Tyrrell v. Painton; Shama Churn Kundu v. Khettromoni Dasi).
(3)If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v. Batt; Fulton v. Andrew).
(4)The circumstance that a party who takes a benefit wrote or prepared the will, is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will (Barry v. Butlin and Fulton v. Andrew; per Lord Shaw in Low v. Guthrie).
[Footnotes omitted. Emphasis added.]
[7] Nock v Austin (1918) 25 CLR 519.
[8] Nock v Austin (1918) 25 CLR 519, 528.
In contentious probate proceedings that become undefended, the court maintains oversight when considering the validity of a will. I had reason to consider the relevant authorities in Wade v Frost,[9] in circumstances where the deceased made wills in 1990 and then in 2005. The defendants pleaded that the deceased lacked capacity at the time of making the 2005 will, but subsequently reached a compromise at mediation. I concluded:[10]
The effect of these authorities is that, in cases such as the present, notwithstanding the presumption of testamentary capacity, once appraised of allegations or evidence of a lack of testamentary capacity, the court should carefully assess the evidence to affirmatively satisfy itself that the deceased was of sound mind when making his or her will.
[9] Wade v Frost [2014] SASC 162.
[10] Wade v Frost [2014] SASC 162, [37].
In doing so I referred to my earlier decision in Tsagouris v Bellairs,[11] where the deceased’s capacity at the time of making her will was raised but not pursued. In Tsagouris, I concluded:[12]
As observed, an issue regarding the deceased’s testamentary capacity at the time of the making of the document propounded was raised, but not pursued at the hearing of this matter. In proceedings such as the present, the court cannot ignore issues regarding testamentary capacity once raised inter partes.[13] Despite withdrawal, the allegations still warrant a vigilant examination by the Court of the whole of the evidence which the parties place before it.[14]
[11] Tsagouris & Anor v Bellairs & Ors [2010] SASC 147.
[12] Tsagouris & Anor v Bellairs & Ors [2010] SASC 147, [12].
[13] See Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 (Simmonds J); Wheatley v Edgar [2003] WASC 118 (EM Heenan J).
[14] Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 at [39].
Although several authorities suggest that the court does not have a duty to conduct that investigation,[15] in my view, where it appears from material before the court that there is a well-founded suspicion that the document is not valid, then the court should conduct such investigations as is appropriate in the circumstances to dispel that suspicion. A grant of probate is an important matter; it provides authority to an executor and trustee to allow an estate to be administered. Third parties are entitled to act in reliance on the grant.
[15] Re Levy (Dec) (No 2) [1957] VR 662, 665; Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul (2009) 4 ASTLR 16, 22.
When this proceeding was first called on, I gave directions concerning the filing of further material addressing the question of capacity. That material included an affidavit from Dr Blanch explaining that, at the time of his earlier report of 5 December 2013, the comment made that the dementia was significant at least two years earlier than 21 June 2006, was made without specific reference to his notes, as he had moved to a new medical practice. In his affidavit, Dr Blanch deposes:
To be clear, whilst it is true that Leona was exhibiting some short term memory issues dating back to around 2004, I do not consider that the extent of her issues were such to say that she did not have capacity to make a Will in early 2004 and, in particular, in April 2004.
I am aware that testamentary capacity requires the consideration of specific factors and, briefly, requires a person to be able to understand the nature of a Will, the extent of their assets and the competing claims that may be brought against their estate.
Leona’s decline in capacity was rapid and, in my opinion, she was unlikely to have had testamentary capacity from some time in 2005 onwards.
An affidavit sworn by Ms Hamilton on 13 February 2015 provides a detailed account of Ms Hamilton’s dealings with Mrs Johnson in the period from early April to 28 May 2004, and in particular, the taken instructions for the will of 20 April 2004. Ms Hamilton’s affidavit concludes with the following:
Having met with the deceased and Horace on at least three occasions in April and May 2004 and having discussed the deceased’s wishes in detail with her, I believe that the deceased clearly understood the nature and effects of the Will for which she gave instructions and that she executed on the 14^th day of April 2004 and again on the 20^th day of April 2004.
My investigation of the matter satisfied me that Mrs Johnson had testamentary capacity at the time she executed her will on 20 April 2004. I was also satisfied having regard to the Registrar’s report that it was appropriate to admit the copy will to probate.