King v THURSBY-PELHAM
[2001] WASC 364
•10 DECEMBER 2001
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | KING & ANOR -v- THURSBY-PELHAM [2001] WASC 364 |
| CORAM | : MURRAY J | ||
| HEARD | : 10 DECEMBER 2001 | ||
| DELIVERED | : 10 DECEMBER 2001 | ||
| FILE NO/S |
| ||
| BETWEEN | : FRANK CHARLES JAMES KING |
SHEILA VIOLET KING (Executors of the Estate of
JOHN PHEASANT (DEC))Plaintiffs
AND
CRESSETT ANTHONY VAUGHAN
THURSBY-PELHAMDefendant
Catchwords:
Wills and succession - Proof of Will in solemn form - Turns on own facts
Legislation:
Nil
Result:
Declaration as to validity of Will
[2001] WASC 364
Category: B
Representation:
Counsel:
| Plaintiffs | : | Mr P J M Kelly |
| Defendant | : | Mr G M Townsend |
Solicitors:
| Plaintiffs | : | Godfrey Virtue & Co |
| Defendant | : | Stables & Scott |
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bailey v Bailey (1924) 34 CLR 558
Battan Singh v Armichand [1948] AC 161
Boreham v Prince Henry Hospital (1955) 29 ALJ 179
Bull v Fulton (1942) 66 CLR 295
In the Will of Key (decd) [1892] 18 VLR 640
In the Will of Severs (1887) 13 VLR 572
In the Will of Walsh (decd) (1892) 18 VLR 739
Jones v Jones [1930] GLR 662
Kenny v Wilson (1911) 11 SR (NSW) 460
Landers v Landers (1914) 19 CLR 222
Marshall v Public Trustee [1916] NZLR 969
Parker v Felgate (1883) 8 PD 173
Perera v Perera [1901] AC 354
Re McCaffrey [1938] SASR 403
Re Munn [1943] SASR 304
In the Estate of Tucker (decd) [1962] SASR 99
Re White (decd) [1951] NZLR 393
In re Worth (decd) [1951] SASR 188
Timbury v Coffee (1941) 66 CLR 277
[2001] WASC 364
Watkins v Public Trustee [1960] NZLR 326
West Australian Trustee Executor & Agency Company Ltd v Holmes [1961]
WAR 144
Wharton v Tuohy (1862) 1 W&W (L) 217
Wilkie v Wilkie (1915) 17 WALR 156
Worth v Clasohm (1952) 86 CLR 439
[2001] WASC 364
MURRAY J
MURRAY J: These proceedings are brought in terms of an amended statement of claim which pleads that the deceased, Mr John Pheasant, when his will was executed on 10 September 2000, knew and approved the contents of the will. The relief sought is an order that probate of the will in solemn form be granted to the plaintiff; effectively that the will be admitted to probate. That statement of claim attracted a defence from the defendant, a stepson and adopted son of the deceased. The significant pleading by way of defence is merely, in par 3, that at the time of signing the document which purported to be the will dated 10 September 2000 the deceased lacked testamentary capacity. There is a counterclaim for an order that probate be granted in respect of an earlier will, one dated 27 May 1994, and I shall refer again to that in due course.
2 The matter continued in that form until, very recently, the court was
advised that the defendant did not wish to further partic ipate in the proceedings, would withdraw the caveat over probate dated 16 October 2000 and would not seek to prosecute further the counterclaim for the 1994 will to be admitted to probate.
3 The view that the solicitors have taken however, with which I
respectfully agree, is that in a case of this kind, the matter having been pleaded in the terms to which I have referred, it is incumbent upon the court not to accept, even by consent, that the will proposed to be admitted to probate is a will which was made by a testator exhibiting full testamentary capacity, but the court is obliged to form its conclusion about whether in fact that was the case before granting the relief sought in the action.
4 I accept the framework of law in which that task is put before me to
be that the plaintiff bears the onus of establishing that the will ought to be admitted to probate. I accept that the burden of proof in that regard is the civil standard of proof on the balance of probabilities, but it is also the case that the court should recognise, in my opinion, that by reason of the gravity of the issue placed before the court the variable content of the civil standard of proof results in the view that the court should be persuaded by clear and cogent testimony and conclude, it if is to be the case that the will is to be admitted to probate, that testamentary capacity is established to a high degree of persuasion.
5 That is the basis upon which I approach the matter and I have regard
for the content of the notion of testamentary capacity of an adult in the present circumstances as being that the deceased ought to be established to have fully appreciated the nature of the task of making his will, that he
[2001] WASC 364
MURRAY J
ought to be established to have fully appreciated the nature of the property which was the subject of his testamentary act, and that he ought to be established to be proceeding from a factual basis and a sound understanding which was not adversely affected by any delusional process, illness or anything of a kind to demonstrate incapacity to fully understand the nature and effect of what he was about.
6 In this case there is some material which would cause concern in that
regard and I shall come to that in a moment. One starts however, by referring very briefly to the initial will, that which was dated 27 May 1994. By that will the deceased left his whole estate to his then wife, who indeed predeceased him, she having died on 18 May 2000. When the first will was made, she was the sole beneficiary. The defendant was in that document the residuary beneficiary and otherwise the terms of the document are unremarkable.
7 There the matter rested until Mrs Pheasant's death in May 2000, or
indeed shortly after that event. Mr Pheasant was diagnosed with a cancer of the brain. It was a fatal disease as, it seems clear, he appreciated and very shortly, on 21 August 2000, it led to his admission to the Swan Cottage Hospice where he was, with some brief outings, to remain until the date of his death which occurred on 20 September 2000.
8 Shortly after his admission on 25 August 2000, because of the
proposal that the deceased would make a new will revoking the previous will and making different disposition of his estate, he was visited, under an arrangement that he be reviewed, by a psychiatrist, Dr De Felice. The process of interview and testing was, I am satisfied, comprehensive, lengthy and complete. It led to a report which the Court has received in evidence as exhibit C, that document being dated 28 March 2001.
9 I am satisfied that when Dr De Felice reviewed Mr Pheasant to
assess his mental capacities on 25 August 2000 it was in the context, as both men appreciated, of the proposal that Mr Pheasant would make a new will and that it was his testamentary capacity which was under investigation. He expressed at that time clear ideas which lead him to the view that a new will was appropriate both for the purpose of making specific gifts, to which there was some passing reference, as I understand it, but particularly because he had formed a view about the defendant's entitlement to benefit from his estate as a result of relatively recent events which were described and discussed not only on that occasion but on a number of occasions with others, and particularly with the solicitor instructed to prepare the will, Mr Carija.
[2001] WASC 364
MURRAY J
10 Returning, however, to Dr De Felice, his conclusion was a clear one,
that the deceased had testamentary capacity. I am satisfied that in arriving at that opinion, Dr De Felice maintained an appropriate objectivity and arm's-length consideration of the situation. He recognised that the concerns expressed about the defendant by Mr Pheasant might have had their origin in paranoid ideas and might have been representative of a degree of confusion or delusional thought but he could find no evidence for that, and his testing of Mr Pheasant's mental capacities left him with clear confirmation from a clinical point of view that mentally Mr Pheasant was functioning soundly.
11 At the same time, it seems not to have escaped Dr De Felice's
attention that the position might be one in which by reason of the nature of the disease from which Mr Pheasant was suffering and by reason of the medication, including morphine which was available to him on demand, Mr Pheasant might have exhibited at different times a degree of confusion, a degree of incapacity. But no such situation was exhibited to Dr De Felice and importantly, in my opinion, he expressed the view that although that might be the case from time to time, those occurrences would not of themselves have led Dr De Felice to the view that there was any incapacity to give appropriate instructions for the preparation of the will, any incapacity to understand the contents of such a document, any incapacity to understand proper motivation within the deceased's own terms for the content of the document or anything which would, in other words, lead to concern about testamentary incapacity. And, I think importantly, Dr De Felice expressed the view that whatever be the rights and wrongs of the situation as between the deceased and the defendant, the deceased, he was satisfied, would have in his own terms sound reasons for the exclusion of the defendant from the largesse of his estate which he proposed and that, in my opinion, is an appropriate factual context within which to consider the question of testamentary capacity.
12 At other times, as I say, concerns have been expressed. Apparently,
Dr Dean, a palliative care physician having knowledge of and an involvement in the deceased's case, expressed such concerns on 5 September 2000. No detail is before the Court in relation to that matter. There is a rather less expert view, it should be said, than either of the opinions of Dr Dean or Dr De Felice, expressed in a report from a Mr Duggan, a clinical nurse and team leader having care of the deceased.
13 That is dated 11 September 2000, the day after the will was finally
executed, and contains, in relation to Mr Pheasant's mental state, the
following observations:
[2001] WASC 364
MURRAY J
"John does appear confused. First noted on 26 August 2000 from date of admission to current date. Difficulty following instructions. Over-estimates his ability (numerous falls). Lacks insight into his condition. Conversations variable, at times sensible and at other times has difficulty following the conversation. Very drowsy at times."
I would not wish to detract from the genuineness of concerns of that kind and the significance potentially of observations of that kind in relation to the deceased's relevant mental state, but it seems to me that the opinion expressed by Dr De Felice is of much more persuasive power particularly in the context of his view to which I have referred, that the deceased might at times exhibit such affectations as are described in general terms, apparently by Dr Dean, but also by Mr Duggan, and yet be in a perfectly sound state at appropriate and important times having regard to his mental capacity. In relation to that there is nothing but hearsay information in respect of Dr Dean's opinion.
14 The significance of the process to which I have referred is I think
made clear by the evidence given by Mr Carija, the solicitor who was instructed to prepare the will. He first interviewed Mr Pheasant on 27 August 2000. He received instructions at that time which resulted in a draft which he then sent to Mr Pheasant and he followed that up on 31 August with a second interview where changes were made and discussion occurred in what seems to be to be ordinary and lucid terms. He noted the changes which were required; he prepared a second draft and sent that.
15 On 4 September he had a further interview with Mr Pheasant, as a
result of which again the process of taking instructions was repeated. A third draft was prepared and sent. As I say, that was the day before the deceased was apparently assessed by Dr Dean and Mr Carija's observations, I think, are of persuasive force in relation to the satisfactory circumstances of the interview on 4 September from the point of view of testamentary capacity of the deceased.
16 There was a further interview on 9 September. Mr Carija thought the
deceased appeared depressed, but Mr Pheasant focused his mind upon his concerns in relation to this draft, made changes and a final draft was prepared. Mr Carija returned on the following day, 10 September, with that document and went through a process which seems to me to be, in the circumstances, entirely satisfactory. His evidence about that is confirmed by the second attesting witness, Mrs Champion, Mr Carija being the first witness who was to attest the will.
[2001] WASC 364
MURRAY J
17 Mr Carija read the document over to the deceased in its entirety. He
paused from time to time and he asked for agreement as to the accuracy of the content of the will, in other words, as to whether it accurately reflected the instructions which the deceased had given, and as to whether the deceased understood the effect of what was being done. He received affirmation, either orally or by affirmative nods, that that was the case as he proceeded with the process of reading the will.
18 Only upon the conclusion of that process, part of which was
witnessed by Mrs Champion, was the process of executing the will undertaken. It was executed in appropriate and correct legal terms. It was dated 10 September 2000. Mr Pheasant signed it, completely willingly, on each page. Mr Carija then performed the task of signing each page and entered his particulars under the attestation clause. Mrs Champion followed suit.
19 Mrs Champion, it should be said, as in the case of Mr Carija, has no
interest in the estate, no knowledge of or friendship with any person who is by that document a beneficiary of the estate and no interest in giving testimony which was other than clear and accurate.
The process of giving instructions for this will took place over a considerable period between 27 August 2000 and 9 September 2000. That enables the court to have the benefit of Mr Carija's evidence in relation to the way in which the deceased conducted himself over that period of time. The process of instruction was not completed, as has been seen, until shortly before the will itself was executed.
21 I am perfectly satisfied that testamentary capacity on the part of the
deceased has been established to a high degree of proof, both in relation to the process of giving instructions at times when that occurred and at the time of the final execution of the will. I would be prepared to make the orders sought in this case.
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