Laidler v Foley - [2007] WASC 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LAIDLER -v- FOLEY [2007] WASC 253

CORAM: MURRAY J

HEARD: 24 OCTOBER 2007

DELIVERED : 24 OCTOBER 2007

PUBLISHED : 30 OCTOBER 2007

FILE NO/S: CIV 2200 of 2006

BETWEEN: JANET PATRICIA LAIDLER as Executrix of the Will of VERNA BEECROFT
Plaintiff
AND
JANET PATRICIA LAIDLER
First Defendant
PAMELA FOLEY
Second Defendant

Catchwords:

Wills - Testamentary capacity - Claim and counter-claim to prove wills in solemn form - Turns on own facts

Legislation:

Nil

Result:

Declaration of validity of will

Category: B

Representation:

Counsel:

Plaintiff:     Ms M J Elliott
First Defendant             :     Mr B H Taylor
Second Defendant         :     Mr G J Coad

Solicitors:

Plaintiff:     Elliott & Co
First Defendant             :     B H Taylor
Second Defendant         :     G J Coad

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

The Public Trustee v Anglican Homes Inc [2007] WASC 204
The Public Trustee v Stretch [2002] WASC 147

MURRAY J: Ms Verna Beecroft was born on 24 November 1925. She was a single woman who, when she died on 3 March 2006, was aged 80 years.
During her lifetime she had made a number of wills, all by instructing the same firm of solicitors, and so the wills are in a common form. The first is dated 3 September 2004, and the second in time was dated 1 August 2005. The terms of the first will need not be noticed, and the purpose of the second was to appoint the plaintiff, a daughter of Ms Beecroft's cousin, as executor of the will and a residuary beneficiary. I need not discuss the terms of that will in any detail.
The third will was made shortly after the second. It is dated 11 August 2005. It repeats the appointment of Ms Laidler as executor of the will and trustee of the estate, the whole of which is given to her, with a general power of appointment among her siblings. I shall return to the significance of that in due course, but I note in passing that, properly, because of the terms of that will, Ms Laidler was separately represented before me as first defendant in the action in respect of her interest as a beneficiary. Ms Laidler was one of four girls, the daughters of Ms Beecroft's cousin, Vita Watts, who also had two sons.
Finally, in circumstances which it will be necessary to discuss in more detail, Ms Beecroft made yet another will on 20 October 2005. By this will, the appointment of Ms Laidler as the executor of the will and trustee of the estate is repeated. Ms Beecroft by this will gives her estate to be divided in two halves, the first half was to be disposed of to Ms Laidler with the power of appointment in the terms provided for in the will of 11 August 2005. However, on this occasion the remaining half of the estate is given to Ms Beecroft's friend, Pamela Foley, the second defendant. Ms Foley has survived Ms Beecroft and so that gift would take effect, but in respect of that half of the estate there was a gift over, if Ms Foley should predecease the testator, to 'such of her children as shall survive me and, if more than one, equally between them'.
I note in passing and inconsequentially that Ms Beecroft, until her retirement, was a horse trainer. The last two wills of August and October 2005 expressed the wish that Ms Beecroft be cremated and her ashes sprinkled over the grave of her horse 'San Pareil' on her property - obviously a much‑loved animal.
The two wills with which I am concerned both have the appearance of being valid wills in a formal sense. Both appear to comply with the formal requirements as to execution contained in s 8 of the Wills Act 1970 (WA). Indeed, as to the will dated 11 August 2005, I have the affidavit of a Ms Paduano, a legal secretary in the office of the solicitors who drew the will. She was an attesting witness whose evidence as to the process of execution of that will confirms its formal validity.
Ms Laidler was obviously close to Ms Beecroft. She knew that Ms Beecroft intended to make the will dated 11 August 2005 in the terms in which it is expressed. Ms Laidler explains that the rather odd provision of the power of appointment among her siblings after Ms Beecroft's death to enable siblings to share, but also to exclude any one or more of them from sharing in the estate, results from Ms Beecroft's insistence that no male member of her family, and indeed no male person at all, should receive an identifiable benefit directly as a result of the vesting process under the will and arising out of the terms of the will.
Ms Beecroft expressly discussed with Ms Laidler whether her two brothers might benefit from the estate. She said that she would not provide for it, but the power of appointment was to empower Ms Laidler to enable them to share by her actions after Ms Beecroft's death and after the estate had vested in Ms Laidler as the sole nominated beneficiary.
After Ms Beecroft's death, Ms Laidler had her attention drawn to the will dated 20 October 2005 and she noticed that although the terms of the August will were repeated, so far as her half share of the estate was concerned, the gift over, if the bequest of the other half of the estate to Ms Foley should fail, was directly for such of Ms Foley's children as should survive the testator, if more than one equally. Ms Laidler deposes that Ms Foley had four children, three daughters and a son. Ms Laidler considered it odd, in view of the firmness with which Ms Beecroft had previously expressed her view about having no male beneficiaries, even potentially, under her will, that this part of the will should be so expressed.
She instructed the issue of a writ. The endorsed statement of claim contests the validity of the October will, asserting that when she executed the will the testator, 'did not know, understand, nor approve of the contents of the will'. The writ seeks to have the Court pronounce for the validity of the 11 August 2005 will. A grant of probate in solemn form in relation to that will is sought. Not surprisingly, in her capacity as the first defendant, Ms Laidler has always taken the view that she would abide the order of the Court.
The second defendant, Ms Foley, originally sought to uphold the validity of the will of 20 October 2005. She counter‑claimed for an order that the Court pronounce for the validity of that will and that probate in solemn form issue in respect of it. However, the counter‑claim was not ultimately pursued and the matter was listed for trial on an undefended basis. The court was advised that the parties had reached a settlement, but it could not be implemented unless the Court granted the relief sought by the plaintiff and pronounced for the force and validity of the will dated 11 August 2005.
This it could not do unless the Court was prepared to hold that the October 2005 will was legally ineffective on the ground that, as the statement of claim asserted, Ms Beecroft lacked the necessary testamentary capacity on 20 October 2005 at the time when she executed the last will. If the Court was prepared to so find, then it is clear that all the evidence showed that in August 2005, and specifically on 11 August, Ms Beecroft possessed full testamentary capacity, and the will of 11 August 2005 having been duly executed, the Court would declare its validity, thereby, having regard to its terms, disposing of the earlier wills of `1 August 2005 and 3 September 2004.
If that point was reached, I was told that Ms Laidler, both in her capacity as executor of the August will and as the sole beneficiary under its terms, had agreed that within six weeks of the grant of probate of the will she would pay Ms Foley the sum of $225,000, effectively in lieu of the benefit of a half‑share in the estate which would have accrued to her under the invalid will.
Having heard the evidence, all in affidavit form by the agreement of the parties, I did find that at the particular time on 20 October 2005 when the last will was executed by Ms Beecroft, she lacked the requisite testamentary capacity within the meaning of the law. I therefore, in view of the findings referred to above in relation to the August will, declared its force and validity and ordered a grant of probate in solemn form to the plaintiff as the executor of that will. I ratified the settlement between the parties and ordered the plaintiff to pay the second defendant the sum of $225,000 within six weeks of the grant of probate.
I approved the view of the parties that the plaintiff's costs should be taxed and paid out of the estate. She acted reasonably in accordance with her responsibility as the appointed executor of the will and, although in her own interest as the sole beneficiary under the will, she acted in a way which was consistent with the preservation of the estate. In the outcome, she will not be required to administer the estate under the terms of a will which she felt and I have found was invalid, and yet, as the beneficiary of the estate, by the agreement made to pay Ms Foley the sum of $225,000, she will make a substantial gift out of the estate to Ms Foley in accordance with the evident wishes of the deceased. It is right then, in accordance with the general law and the terms of the Rules of the Supreme Court1971 (WA), O 66 r 9(2), that the plaintiff's costs should be paid out of the estate. Because she is the sole beneficiary of the estate the effect of that order, of course, is that the net estate available for distribution to her will be diminished to that degree.
On the other hand, I thought it right and the parties agreed that the costs of the defendants, particularly those of the second defendant who would have incurred more substantial costs in the initial defence and counter‑claim, should be borne by them personally. I made no order as to their costs.
These are my reasons for making the orders to which I have referred above. In particular, these are my reasons for the conclusion to which I have come about the invalidity of the October 2005 will. In The Public Trustee v Stretch [2002] WASC 147, after referring to earlier authorities, at [8] ‑ [10] I set out what I understood to be the law generally in relation to the establishment of testamentary capacity:
It can be seen that, firstly, what is being spoken of is a capacity rather than the exercise of it. The question is whether the testator had the capacity of sound judgment rather than that he or she in fact made the judgment about the disposition of the estate by will soundly and for reasons which might appear to the observer to be good.
Secondly, it should be understood that the testator need only be able to understand the general nature and effect of the testamentary act. There need not be understanding of the precise terms and effect of particular provisions of the will but the testator needs to understand that this is to be a disposition of the estate upon his or her death. There must be some general understanding of the nature of the property the subject of that disposition and a capacity to make a rational decision about who the beneficiaries of the estate ought to be. One sees in the cases an emphasis on the consideration of a causal relationship between the incapacity and the testamentary act so that a will will be held to be validly made if made during a lucid interval, although testamentary incapacity might otherwise be generally found.
If a will appears to be validly made on its face, an evidentiary onus falls upon the party who would seek to establish its invalidity to adduce evidence to cast doubt upon the testator's testamentary capacity. That being done, the legal onus again falls upon the party who propounds the validity of the will to affirmatively establish the existence of testamentary capacity at the time of its execution and the giving of instructions in relation to it: Worth v Clasohm (1952) 86 CLR 439.
In that case I went on to discuss the law in respect of a contention of testamentary incapacity allegedly resulting from the fact that the deceased held various delusionary beliefs, and I made the point of the necessity of being able to find that the ground of any incapacity was causally related to the making of the will and its terms.
It is useful also to refer to the very recent decision of Beech J in The Public Trustee v Anglican Homes Inc [2007] WASC 204 where, at [15] ‑ [19], his Honour reviewed relevant authorities and discussed the principles applicable.
So far as is necessary for the decision of this case, I note that the plaintiff having gone into evidence of a persuasive kind in relation to the question of the testamentary capacity of the deceased as at the time when the will of 20 October 2005 was executed, there can be no presumption operating that a will, apparently duly executed and valid on its face, was in fact the product of decisions made by a testator having the necessary testamentary capacity. The onus effectively fell on the plaintiff to establish relevant testamentary incapacity at that time.
If, as I have found, she was able to do that, then, as I have mentioned, the second defendant, as the original propounder of the validity of that will, offered no evidence to discharge the ultimate onus to establish the existence of testamentary capacity at the time of the execution of the will.
Here, as will appear, the evidence was not calculated to establish that at the time of the execution of the will in question Ms Beecroft did not understand the general nature and effect of making a will. Indeed, the evidence would suggest that she wished to make a will in the sense that she understood it to be a document which would dispose of her property upon her death. In addition, there is nothing to suggest that she would not have understood that it was the whole of her property which would be disposed of in accordance with the terms of the will when she died. It is clear also, I think, that she wanted the immediate beneficiaries, who if they survived her would each take a half share in her estate, to be Ms Laidler and Ms Foley. The real question is whether she understood that in the event that Ms Foley predeceased her, but Ms Foley's children survived her, a share of the net estate would accrue to Ms Foley's son.
As to that, there was the evidence of Ms Laidler, which I accept and to which I have referred, that when the will was made in August 2005 Ms Beecroft spoke firmly about her settled view that under no circumstances should any will she made provide by its terms a benefit to a male person. The extraordinary lengths to which the testator went to prevent any such an outcome in relation to the brothers of Ms Laidler, by creating a power of appointment which might be exercised by her once her interest vested and Ms Laidler became the beneficiary, is testament to the firmness of Ms Beecroft's belief.
Yet a different course was taken in relation to the gift over in the event that Ms Foley did not survive the testator. That raises the question whether Ms Beecroft, at the time of the execution of the will on 20 October 2005, understood the potential effect of this gift to Ms Foley newly introduced into the disposition of her estate. The way in which this part of the will is written raises a doubt in my mind in that regard. But the cogent evidence establishing the probability of testamentary incapacity at the relevant time is that concerning the circumstances surrounding the execution of the will.
I received into evidence by consent an affidavit of the plaintiff's solicitor adducing hearsay evidence that she had spoken to a solicitor in the firm which prepared all Ms Beecroft's wills. He said that he took instructions for the will over the telephone on 19 October 2005. He prepared the will. He apparently knew that Ms Beecroft was to be admitted to the Mount Hospital on the following day. She was to have a bronchoscopy. He drew the will and attended at the hospital, where it was executed at some time between about 12 30 pm and 1.30 pm on that day. He was present at the time and was one of the subscribing witnesses to the will, the other being a member of the hospital staff. The solicitor did not himself give evidence or provide an affidavit. There is nothing to indicate directly what Ms Beecroft's state was at the time, what discussion was had with her, how closely she read the will, if at all, and what the solicitor's impression of her in respect of her testamentary capacity was
Ms Beecroft was admitted to the hospital at about 8.30 am. The evidence is that the bronchoscopy was performed in the morning. She was a day patient and was discharged at 4 pm. The hospital records show that the procedure was undertaken commencing at about 10 am. When Ms Beecroft was discharged, she was accompanied by her daughter.
The critical evidence is that of Associate Professor Joyce, a physician, clinical pharmacologist and toxicologist. He reported on 4 June 2007, having had the opportunity to peruse the hospital records. Ms Beecroft had apparently been treated, at the end of September 2005, for what appeared to be a chest infection. A CT scan of her chest identified the presence of lung cancer. It was this condition which was shortly to prove fatal.
Following her admission to hospital on 20 October 2005, at 9.30 am in preparation for the procedure to follow she was given injections of morphine, maxolon and atropine, shortly followed by a local anaesthetic for her mouth and airways. At 10.30 am she was given midazolan. The procedure was performed and she was observed until 1.30 pm, at which stage she was recovering. As I have said, she was ultimately discharged at 4 pm and the hospital records note that she was walking at the time.
Given the execution of the will during this recovery phase, at some time between 12.30 pm and 1.30 pm, Professor Joyce noted that the drugs Ms Beecroft had been given, particularly the morphine, would inevitably lead to a period of substantial impairment of cognitive function for a period after the intramuscular injections, for the duration of the procedure and for some time afterwards. Professor Joyce gave as his opinion that Ms Beecroft 'would not have had the cognitive capacity to understand all the significant aspects of a document she was signing'. The drug most substantially having this effect was, of course, the morphine although, at the relevant time, there would be possible contributions from the atropine and midazolan.
Professor Joyce spoke of 'a substantial likelihood' that Ms Beecroft would not be able to fully understand the contents of the will, whether she read it for herself or it was read to her. He added, 'It may remain incompletely understood even if efforts were made to give explanations'. Professor Joyce thought that, although during the recovery period until the discharge at 4 pm she would be regaining cognitive functions, 'there is a reasonable likelihood that she would still have some impairment of complete understanding of the process up until the time of hospital discharge'.
On that evidence I was satisfied that in all probability she would not have understood the terms of the will and whether they reflected her intentions. I find that she lacked the relevant testamentary capacity at the time when the will was executed. It was therefore not a legally valid and effectual will, and it follows from that that the operative will was that in respect of there was no such doubt, executed on 11 August 2005. Hence the orders to which I have referred.