Kenneth Edward Guy (As Executor of the Will of Edward George Guy dated 8 April 2002) v Guy - [2004] WASC 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KENNETH EDWARD GUY (As Executor of the Will of EDWARD GEORGE GUY dated 8 April 2002) -v- GUY & ORS [2004] WASC 69

CORAM: PULLIN J

HEARD: 30 MARCH 2004

DELIVERED : 30 MARCH 2004

FILE NO/S: CIV 2667 of 2002

MATTER :In the Estate of EDWARD GEORGE GUY (Deceased)

BETWEEN: KENNETH EDWARD GUY (As Executor of the Will of EDWARD GEORGE GUY dated 8 April 2002)
Plaintiff
AND
PETER LAURENCE GUY
First Defendant
PURISIMA GUY
STEVEN GUY
Second Defendants

Catchwords:

Wills, probate and letters of administration - Testamentary capacity - Amendment to Will - Turns on own facts

Legislation:

Wills Act 1970, s 35

Result:

Grant of probate in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Mr M E Herron
First Defendant             :     No appearance
Second Defendants       :     No appearance

Solicitors:

Plaintiff:     Hammond King Touyz
First Defendant             :     No appearance
Second Defendants       :     No appearance

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

Bailey v Bailey (1924) 34 CLR 558
Crago v McIntyre [1976] 1 NSWLR 729
Public Trustee v Kita [2004] WASC 38
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439

Case(s) also cited:

Bull v Fulton (1942) 66 CLR 295
Collins by her next friend Poletti v May [2000] WASC 29
Public Trustee v Poulter [2003] WASC 233
Public Trustee v Stretch [2002] WASC 147
Seale v Cross [2003] WASC 237
West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144

PULLIN J: In this action, the plaintiff seeks an order for probate in solemn form in relation to the Will of the late Edward George Guy, the Will bearing date 8 April 2002. The deceased was born on 18 September 1906, and so he was 95 years old at the time he made his Will. The deceased died on 1 August 2002. His death certificate reveals that he died of bronchopneumonia and generalised arteriosclerosis.
The statement of claim pleads the following facts:
"1On 1 August 2002 Edward George Guy ("the deceased") died leaving property in Western Australia.
2On 8 April 2002 the deceased executed his last Will by signing it in the presence of Samara Nadine Rankin and Shane Anand Gangatharan who were both present at the time of signature and who subscribed the Will in the presence of the deceased.
3The deceased knew and approved the contents of the Will dated 8 April 2002.
4The Will dated 8 April 2002 appointed the Plaintiff as Executor.
5The Plaintiff and the First Defendant are adult children of the deceased.
6The first named Second Defendant is the wife of the Plaintiff and daughter in law of the deceased. The second named Second Defendant is the grandson of the deceased.
7On or about 22 August 2002 the First Defendant lodged a caveat at the Registry of the Probate Office of this Honourable Court claiming an interest in the estate of the deceased by reason that he is the son of the deceased and that the deceased did not have testamentary capacity at the date of execution of the Will on 8 April 2002."
The evidence before me proves, and I find, that the facts as pleaded in pars 1‑7 of the statement of claim have been established. In particular, par 2 was proved by evidence given by Dr Shane Gangatharan and Ms Samara Rankin via affidavits. They were both present at the time of signature, and they subscribed the Will in the presence of the deceased.
Dr Gangatharan was a doctor working in the Fremantle Hospital as an orthopaedic intern, and he had been involved in the treatment of the deceased. Ms Rankin is a registered nurse. She was working at Fremantle Hospital and was caring for the deceased during his stay in hospital. The deceased was in hospital, where he was being treated for a bone fracture after a fall at his home on 19 March 2002.
The Will dated 8 April 2002, after revoking previous testamentary dispositions and appointing the plaintiff as executor and trustee of the Will, contained clauses devising property in Western Australia, some to the plaintiff and some to the plaintiff and his wife, and some to the first defendant.
In particular, property devised included 3 Enright Circuit, Beeliar, which had been the home of the deceased at the time that he was admitted to hospital. In the Will, this was devised to the plaintiff and his wife. The residue was left to the plaintiff and the first defendant as tenants in common in equal shares. Usual powers were conferred on the trustee.
There is an alteration to the typed Will. It is an alteration to the address of the deceased. The address as typed was 46 Hope Street, White Gum Valley, and this has been altered in handwriting to read 3 Enright Circuit, Beeliar. The alteration was initialled by the deceased, but not by the witnesses.
Two witnesses deal with this. A solicitor, Elisia Giardina, explains in her evidence that she dealt with the deceased from December 2001. She says in her affidavit that her dealings with the deceased began on or about 12 December 2001, when Frichot & Frichot were nominated to act on behalf of the deceased in respect of the settlement of the sale of his property at 46 Hope Street, White Gum Valley. At the time, she was aware, from discussions with Mr Gregory Vellacott, a solicitor who worked for Frichot & Frichot, that the deceased lived at the White Gum Valley property with his son Kenneth Edward Guy, the plaintiff, and the plaintiff's wife and their two sons. In about January 2002, Frichot & Frichot were instructed to act on behalf of the deceased in relation to the settlement of the purchase by the deceased of the property at 3 Enright Circuit, Beeliar. In effect, the deceased was selling the White Gum Valley property in order to purchase the Beeliar property. The settlement of the sale of the White Gum Valley property and the purchase of the Beeliar property occurred simultaneously on 22 February 2002. In about the middle of March 2002, after the purchase of the Beeliar property, the plaintiff telephoned and informed Ms Giardina that the deceased was worried that the Will prepared for him earlier by Mr Vellacott in December 2000 should be changed to reflect the fact that the property he wanted to leave to the plaintiff and his wife was his new Beeliar property. A letter was sent by Frichot & Frichot dated 22 March 2002, stating that despite the belief that there was no real need to amend the Will made in December 2000, the firm could prepare a new Will to specifically refer to the Beeliar property. That advice was correct, that is, the advice that it was not strictly necessary to alter the Will because the Will as it stood at that time, in effect, provided for the disposition of real estate if the other house had been sold.
Ms Giardina then prepared the new Will for the deceased, because that is what the deceased wanted to do. He wanted to make it clear that his new house was to pass to the plaintiff and his wife. Ms Giardina used as a template the earlier Will which had been prepared by Mr Vellacott, and although she made the change to the description of the property being devised in cl 3, she overlooked the need to make the change to the deceased's address at the top of page 1 of the Will.
Ms Giardina went to the hospital when the Will was signed by the deceased and the two witnesses. Later on she received a telephone call from the plaintiff, and he informed Ms Giardina that the address at the top of the first page of the Will had not been changed to reflect his new residential address at Beeliar. Ms Giardina advised the plaintiff that this could be amended by placing a line through the incorrect address, replacing it with the deceased's new address, and then having all parties who witnessed the signing of the Will on 8 April 2002 witness the amendment. Ms Giardina later saw the new Will and noticed that the amendment had been made, but that it had been signed only by the deceased and not by the two witnesses.
The other evidence on this point is from the plaintiff's wife, Purisima Guy, and she explains in her affidavit that after the Will had been signed, it was noticed by the plaintiff that the address was no longer the residential address of the deceased because of the change to the Enright Circuit property. It was agreed that the incorrect address should be struck through and the correct address inserted, and that this should be done in the presence of the deceased and he should initial the change. Mrs Guy cannot recall the exact date when this happened, but it was when the deceased had recovered enough from his operations at Fremantle Hospital and was convalescing at a nursing home in Bicton.
He, the deceased, was shown the Will, and Mrs Guy mentioned the address was wrong on the first page. He agreed that Mrs Guy should alter the address to read 3 Enright Circuit, Beeliar. After this was done, the deceased initialled the alteration, and there has been no other alteration made to the Will.
This alteration does not invalidate the Will because I am satisfied that the deceased intended the Will, as altered, to constitute his Will. The alteration therefore has effect and forms part of the Will to be admitted to probate by reason of the operation of s 35 of the Wills Act 1970.
In order for probate in solemn form to be granted, the onus of establishing the entitlement to such a grant rests on the proponent, the person who propounds the Will. The principles are stated in Bailey v Bailey (1924) 34 CLR 558 in the judgment of Isaacs J at 570 to 572, and they are as follows. The onus of proving that an instrument is the Will of the testator is, in the first place, discharged by establishing a prima facie case that the Will propounded is the last Will of a free and capable testator. Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular Will, then the onus lies upon the party impeaching the Will to show that it ought not be admitted to proof. To displace a prima facie case of capacity, mere proof of a serious illness is not sufficient. There must be clear evidence that illness of the testator so affected his mental faculties as to make him unequal to the task of disposing of his property.
I also refer to Worth v Clasohm (1952) 86 CLR 439, where it was said that a residual doubt as to the existence of testamentary capacity is not enough to defeat the plaintiff's claim for probate unless it is substantial enough to preclude a belief that the document propounded is the Will of the testator who possessed sound mind, memory and understanding at the time of execution, and that the Will, properly executed, is, in the absence of evidence to the contrary, presumed to have been made by a person of competent understanding.
A testator must know and understand how he leaves his property when he executes his Will, and he must also possess sufficient capacity to appreciate what his property is, recognise the persons who have a moral claim upon him, and have the capacity to exercise a balanced judgment as to such claims: see Crago v McIntyre [1976] 1 NSWLR 729 and Public Trustee v Kita [2004] WASC 38.
In this case, a caveat was lodged by the first defendant asserting that probate should not be granted because the deceased was not of sound mind. The caveat was lodged in relation to the earlier application for a grant of probate in common form. The parties have now settled the dispute so that the first defendant no longer asserts in these proceedings a lack of testamentary capacity and does not appear before me to oppose the grant of probate in solemn form. In those circumstances, it was appropriate for the case to be set down for the Will to be proved in solemn form: see Wheatley v Edgar [2003] WASC 118.
There is some material in the hospital records which requires close scrutiny. The plaintiff has quite properly put this information before the court.
The information appears in note form on documents within the Fremantle Hospital records. It relates to the time after the deceased had been admitted to hospital on 19 March 2002 following his fall at his home in Beeliar, which resulted in an operation for the fracture that he received in the fall.
There are some notes where the word "dementia" appears in a medical history. In another place there is a reference to "vascular dementia". After the operation that had taken place, and when the deceased was transferred to a restorative ward, the word "normal" appears alongside the words "mental status", and further along the line appears the words "confused at times". There are some other brief references to dementia.
Notwithstanding this evidence, I am satisfied from other evidence that the deceased did have testamentary capacity. First, I refer to the evidence of Ms Rankin, the nurse, who said that when the deceased was admitted to hospital, he was aware of his surroundings and what was happening to him. He understood what was said to him, and he did not seem in any way upset or agitated when the Will was signed.
Ms Giardina gave evidence that she attended at this hospital with the Will on the day that it was signed. She asked the plaintiff to leave the room, which he did. In the presence of the witnesses, Ms Giardina read the Will to the deceased and explained to him the contents, and explained to him that the only difference between his former Will and this Will, was that the reference to his former White Gum Valley house had now been replaced with a reference to his Beeliar property.
That was correct. The earlier Will which had been signed by the deceased did refer to the White Gum Valley home rather than to the Beeliar property. Ms Giardina was present when the Will was signed. She said that the deceased said that he understood the contents of the new Will.
There is also the evidence of Mr Vellacott. While his evidence is earlier in time, it is relevant to the issue of testamentary capacity. Mr Vellacott had been contacted in December 2000 by a Northam‑based solicitor and told that the plaintiff had contacted the Northam solicitor because his father, the deceased, wanted to make a new Will where he would leave his house at White Gum Valley to the plaintiff and his wife. Mr Vellacott was also told that the deceased had been prevailed upon by his other son, Peter Laurence Guy, the first defendant, to make another Will with different effect some time before, and that the deceased was anxious to make a new Will to reflect what he had done in a still earlier Will, namely to leave his house at White Gum Valley to the plaintiff and his wife.
Because of the clear potential for disputation between the plaintiff and his brother, Mr Vellacott decided that the deceased should be the subject of a medical report on his mental state before a new Will was prepared. This was arranged. Dr McCutcheon, who is a specialist in geriatric medicine, examined the deceased on 6 December 2000, and his report indicates that the deceased was aware of the nature and extent of his estate, although not the precise monetary value. He was aware of the identity of people who might reasonably have expected to benefit from his estate, and he indicated a rational basis for wishing to leave his estate in an unequal fashion. The conclusion was that the deceased had testamentary capacity for the purposes of giving instructions concerning, and of executing, his Will.
Mr Vellacott then saw the deceased, and Mr Vellacott saw the report from Dr McCutcheon. Mr Vellacott himself formed an assessment about the capacity of the deceased, and he was satisfied that the deceased understood clearly that he wanted to leave his house in White Gum Valley, his then home, to the plaintiff and his wife in recognition of the love, care and attention that they had given him for many years since his wife had died.
He said that he had made a Will to that effect in the mid 1990s but that he had recently made another Will with different effect as a result of pressure from his other son, and he appeared agitated with himself that he had made this other Will which he was not happy about. So, as a result of this, Mr Vellacott formed the opinion that the deceased had testamentary capacity. This then led to the execution of the Will of 21 December 2000, which provided for the deceased's home to go to the plaintiff and his wife.
So although that is about two years before the execution of the Will in issue in this case, it is nevertheless relevant to the conclusion that I have reached.
Another factor that supports the conclusion that I have reached is the deceased's consistency in approach. The affidavits of scripts which have been filed reveal that there have been four Wills executed since 1993, including the Will in question in this case, and (with one exception) they show a consistent approach. They reveal the deceased's wish to leave the home to the plaintiff and his wife, the one exception being the Will that was made on 1 December 2000, to which reference has already been made.
There is also another report from Dr McCutcheon, prepared in September 2001, which contains a very full assessment of the deceased and his capacity, and that ends with a conclusion that the deceased had testamentary capacity to make a Will.
Based on the above evidence, I conclude that the deceased had full testamentary capacity at the time he signed his Will on 8 April 2002. I therefore conclude that the plaintiff is entitled to an order for probate in solemn form in relation to the Will of the deceased bearing date 8 April 2002.