Lock v Phillips
[2014] WASC 92
•20 MARCH 2014
LOCK -v- PHILLIPS [2014] WASC 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 92 | |
| Case No: | CIV:1347/2011 | ON THE PAPERS & 28 FEBRUARY 2014 | |
| Coram: | EM HEENAN J | 20/03/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Grant to plaintiff of probate in solemn form of will dated 26 June 2006 | ||
| B | |||
| PDF Version |
| Parties: | GREGORY EDWARD LOCK JEFFREY TRAVIS PHILLIPS |
Catchwords: | Probate Proof of will in solemn form Testamentary capacity Presumption of validity Plaintiff propounding latest will No party seeking to propound earlier will Capacity at time of later will Evidence of due execution Plaintiff entitled to probate in solemn form of will executed 26 June 2006 |
Legislation: | Supreme Court Act 1935 (WA) Trustees Act 1962 (WA) Wills Act 1970 (WA) |
Case References: | Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5QB 549 Corbett v Newey [1998] Ch 57 Dansereau v Berget [1954] 1 AC 1 Deeks v Greenwood [2011] WASC 359 In Re Munn (No 2) [1943] SASR 309 In the Estate of Langton (Dec) [1964] P 163 In the Estate of Vauk (Dec) (1986) 41 SASR 242 Newell v Weeks (1814) 2 Phillim 224 Proud v Proud [2012] WASC 134 Ratcliffe v Barnes (1862) 2 Sw & Tr 486 The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 Timbury v Coffee (1941) 66 CLR 277 West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144 Wheatley v Edgar [2003] WASC 118 Worth v Clasohm (1952) 86 CLR 439 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JEFFREY TRAVIS PHILLIPS
Defendant
Catchwords:
Probate - Proof of will in solemn form - Testamentary capacity - Presumption of validity - Plaintiff propounding latest will - No party seeking to propound earlier will - Capacity at time of later will - Evidence of due execution - Plaintiff entitled to probate in solemn form of will executed 26 June 2006
Legislation:
Supreme Court Act 1935 (WA)
Trustees Act 1962 (WA)
Wills Act 1970 (WA)
Result:
Grant to plaintiff of probate in solemn form of will dated 26 June 2006
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : De Vital Legal
Defendant : Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5QB 549
Corbett v Newey [1998] Ch 57
Dansereau v Berget [1954] 1 AC 1
Deeks v Greenwood [2011] WASC 359
In Re Munn (No 2) [1943] SASR 309
In the Estate of Langton (Dec) [1964] P 163
In the Estate of Vauk (Dec) (1986) 41 SASR 242
Newell v Weeks (1814) 2 Phillim 224
Proud v Proud [2012] WASC 134
Ratcliffe v Barnes (1862) 2 Sw & Tr 486
The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17
Timbury v Coffee (1941) 66 CLR 277
West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439
1 EM HEENAN J: Osborne Leonard Ritchie, late of Braemar House, 10 Windsor Road, East Fremantle in the State of Western Australia, supervisor died 4 September 2010. He was then aged 85 years having been born at Geraldton in 1924. At the date of his death Mr Ritchie was widowed having married twice. His first marriage on 21 November 1950 was to Elsie Irene Morton, and his second, on 11 March 1961, was to Mary Theresa Hamersley. He left one child, his daughter, Marie Osborne Hickey, born on 23 June 1952. In his death certificate the cause of death is recorded as being chronic obstructive airways disease (10 years); (contributory cause) Alzheimer's disease (four years); chronic pain - arthritis knee and back (nine years).
Non-contentious proceedings
2 By a motion filed in the non-contentious jurisdiction on 24 November 2010 Gregory Edward Lock, the present plaintiff, sought a grant of probate as the sole executor named in the last will of the deceased made on 26 June 2006 and apparently duly executed.
3 In support of that application Mr Lock swore an affidavit on 17 November 2010 in which he deposed that he was seeking probate of the will of the deceased dated 26 June 2006 which he believed to be the true last will of the deceased and unrevoked and that there was no codicil to that will. He also deposed to the death of Mr Ritchie on 4 September 2010 at Braemar House, 10 Windsor Road, East Fremantle and he explained that the true and correct name of the deceased is Osborne Leonard Ritchie as shown in the death certificate. The will incorrectly states his middle name as 'Lenard' but, nevertheless, the person named as Osborne Lenard Ritchie in the will of 26 June 2006 is one and the same person as Osborne Leonard Ritchie shown in the death certificate.
4 In his affidavit in the non-contentious jurisdiction Mr Lock also deposed that, at the date of the will of 26 June 2010, the deceased was married to Mary Theresa Hamersley, since deceased, and was over the age of 18 years. The affidavit also records that Mr Ritchie had not, since the date of the will of 26 June 2010, ended a marriage on or after 9 February 2008 by divorce or annulment and it also is common ground that he had not remarried. The 2006 will appointed the plaintiff as the sole executor. It was executed in the presence of two witnesses namely, Dr Claire Chapman of Bicton in the State of Western Australia, general medical practitioner and Jan Ward of Bayswater in the said State, medical receptionist.
5 Further, in that affidavit Mr Ritchie deposed that the deceased left property within the State of Western Australia and that if he were to be granted probate of the will he would administer the estate of the deceased according to law. He also deposed that he was over the age of 18 years and that to the best of his knowledge, information and belief no application for probate or administration of the estate had previously been made. He annexed to his affidavit a r 9(b) statement of assets and liabilities of the deceased at the date of death showing that the deceased owned real property situated and known as Unit 1, 133 Hope Road, Palmyra, some furniture and personal belongings and a Public Trustee cash account - the aggregate value of which was slightly less than $524,000 and that he then had no liabilities.
6 By the will of 26 June 2006 Mr Ritchie revoked all earlier wills and codicils. He left all his property to his executor on trust to pay all debts, testamentary and executorship expenses and any taxes or duties owed by him or payable in respect of his death. He then directed payment of a series of legacies to named beneficiaries on condition that they should survive him for a period of 30 days. There were 16 persons named as legatees and the total of the legacies to those beneficiaries is $182,000.
7 The residue of the deceased's estate under the will of 26 June 2010 is to be held by the executor and divided equally among three named residuary beneficiaries but with the proviso that if any pre-deceased the testator leaving children who survive him and who have reached the age of 21 years then those children would on reaching that age take, and if more than one in equal shares, the share which their deceased parent would have taken had that parent survived Mr Ritchie. These three residuary beneficiaries are Mr Lock's daughter, sister and brother-in-law respectively. There were provisions that if any particular gift failed it should be added to the residue.
8 There were further provisions in the will directing, for the sake of certainty, that any duty or tax was to be payable out of the residuary estate and also conferring specific powers upon his executor in addition to those conferred under the Trustees Act 1962 (WA). The will contains a conventional attestation clause and, as already noted, was executed by the two named witnesses. The attestation clause makes provision for the date of execution, being a day in June of 2006 to be inserted but that was not done. Nevertheless, Dr Chapman added the date, 26 June, below her signature as witness on the last page of the will and on each of the other pages below her signature.
9 In the non-contentious jurisdiction, because of the absence of the date in the attestation clause, a registrar issued a requisition requiring affidavits of due execution from both witnesses. Furthermore, because the death certificate recorded that the deceased suffered from Alzheimer's disease a further requisition required an affidavit to be lodged by the deceased's treating medical doctor deposing to his testamentary capacity at the time the will was made. Subject to compliance with those formalities, however, there appeared to be every reason to expect that a grant of probate would be made in the non-contentious jurisdiction in due course.
10 Even if the will had not been dated, or the exact date of execution could not be established, that would not be a fatal obstacle to proof of the testament. This is because there is no requirement in law that a will be dated: Corbett v Newey [1998] Ch 57, 64 (Waites LJ) and 68 (Morritt LJ); Deeks v Greenwood [2011] WASC 359 [67]; and Proud v Proud [2012] WASC 134 [31]. This is because, in the absence of a contrary intention, a will is to be construed and to take effect as if it had been executed immediately before the death of the testator – Wills Act 1970 (WA), s 26(1)(a).
Caveat against any grant
11 However, on 22 November 2010 the defendant, Mr Jeffrey Travis Phillips, by his solicitors lodged a caveat against a grant. By this caveat Mr Phillips claimed an interest as beneficiary under a former will of the deceased and asserted that Mr Ritchie did not have the requisite testamentary capacity to understand the nature and effect of his purported last will and testament the will of 26 June 2006. He thereby demanded that nothing be done on the application for probate without notice to him. In those circumstances the application for probate in the non-contentious jurisdiction did not proceed and no steps were taken for the removal of the caveat which remains.
Contentious proceedings
12 On 2 March 2011 Mr Lock commenced this action seeking probate and proof of the will of Mr Ritchie dated 26 June 2006 in solemn form. On 30 May the defendant filed a defence and counterclaim by which he claimed that the will of 26 June 2006 was executed in suspicious circumstances, namely: when the deceased was 81 years of age; suffering from Alzheimer's disease; and did not name the defendant Mr Phillips as a major beneficiary and did not comply with an agreement alleged to have been made between the deceased and his late wife as to his testamentary disposition. Further, the defence alleged that the deceased had suffered from Alzheimer's disease from no later than 2003 to such an extent that from that date his natural faculties were incapable of being exercised and that he was unable to understand the requirements for, or the effect of, making a will. By this pleading the defendant counterclaimed for proof of an earlier will made by the deceased on 2 July 2000 which appointed the defendant sole executor.
13 The contentious proceedings then followed the usual course with affidavits of scripts being filed. These revealed that the late Mr Ritchie made eight wills dating from 29 May 1979 to 26 June 2006, the originals or copies of the originals of the various wills all being in existence.
14 Three of these feature in these proceedings. The latest is the will which the plaintiff propounds that of 26 June 2006. There is then a previous will, undated except as to 2000, and a third will dated 12 July 2000, the subject of the counterclaim.
15 By his second last will, undated except as to the year 2002, the deceased appointed his daughter and his sister as joint executors and trustees provided that if they were unwilling or unable to act then he appointed his stepson, the defendant, as the sole alternative executor and trustee. That will then contained a series of specific legacies - to 13 named beneficiaries. Subject to those legacies the whole of the estate was left to the executor and trustee to be held upon trust for his daughter, Marie Osborne Hickey, and his step-son, Jeffrey Travis Phillips (the defendant) as tenants in common in equal shares with the provision that if either should predecease the testator leaving children who attain the age of 18 then such child or children should take and if more than equally between them the share of the residue which his or her deceased parent would have taken. Certain additional powers were conferred upon the trustee and the will was then duly executed by the deceased in the presence of two witnesses and with a conventional attestation clause.
The will of 12 July 2000
16 This is the third last will of the deceased, made on 12 July 2000. It is the will which the defendant initially sought to set up in his counterclaim.
17 By this will the deceased appointed his step-son the defendant, Jeffrey Travis Phillips, as his sole trustee but if he failed to survive the testator or was unwilling to act then he appointed his daughter Marie Osborne Hickey as the sole alternate executrix and trustee.
18 By this will the deceased provided a series of legacies to 12 named beneficiaries and, subject to those legacies, left the whole of his estate to his trustee to meet all debts, funeral and testamentary expenses and to hold the residue on trust for the defendant, Jeffrey Travis Phillips, absolutely provided that if the defendant should predecease the testator or die before attaining a vested interest in the trust estate leaving children then any such surviving children who should attain the age of 18 years should take, and if more than one equally between them, the share of the residuary estate which his or her father would have taken had he survived. Then again there were a series of additional powers expressly conferred upon the trustee. This will appears to have been duly executed in the presence of two witnesses and with a conventional attestation clause.
Pre-trial history
19 By a consent order made by a case management registrar on 6 July 2011 directions were given requiring service on each of the beneficiaries named in the 2006 will, the 2002 will and the 2000 will of notices of the existence of the action and copies of the writ of summons and statement of claim, the defence and counterclaim and copies of the three wills of 2006, 2002 and 2000. By that order it was also directed that each of the beneficiaries to whom notice was so given would be bound by the outcome of the action and any orders made notwithstanding that any such beneficiary might not take part in, or otherwise be joined or become a party to, the action. The order required service of the nominated papers on each of 20 named beneficiaries being either the specific legatees or residuary beneficiaries named in the three most recent wills. Proof of service of those materials on each of those beneficiaries was subsequently provided by an affidavit of the plaintiff's solicitor of 26 August 2011.
20 Notices to abide by the decision of the court have been filed and served by six of the named beneficiaries to whom notice had been given in accordance with the orders of the registrar.
21 By an order made by the case management registrar on 22 August 2011 it was directed that the parties should submit the dispute to mediation to be conducted by a mediation registrar on a confidential basis in accordance with pt VI of the Supreme Court Act 1935 (WA). Directions as to that mediation were then set out.
Counterclaim withdrawn
22 The next major step in the action was that on 4 September 2013 the defendant amended his defence and counterclaim. The whole of the counterclaim was abandoned and the defence, insofar as it challenged the validity of the will of 2006 which the plaintiff sought to prove, was also withdrawn. The amended defence, as it remained, contained nothing more than an admission of all the facts alleged in the statement of claim.
23 Earlier a consent order had been made by a registrar on 3 April 2013 that the action should proceed to trial on an undefended basis and that, subject to any contrary direction by the trial judge, evidence-in-chief should be adduced by affidavit, and that the affidavits filed in the non-contentious application (PRO 5366 of 2010) should stand as evidence in the action.
24 Two further affidavits have been filed in late 2013. The action was entered and listed for trial. By the consent of the parties and at my direction it was determined that the undefended action should then be tried on the papers. The case was listed for hearing on that basis on 28 February 2014.
25 The additional affidavit evidence consists of, first, an affidavit of Janette Fay Ward sworn 13 August 2013. She is one of the subscribing witnesses to the will of the deceased dated 26 June 2006 a copy of which is annexed to her affidavit. Ms Ward deposes that the testator executed that will on the day and date thereof by signing his name at the foot or end thereof, as appears from the copy, in the presence of herself and a Dr Claire Chapman, the other subscribing witness, both of whom were present at the same time and who thereupon attested and subscribed the will in the presence of the testator.
26 The second affidavit is from Dr Claire Louise Chapman and was sworn 18 December 2013. She deposes that she is a duly qualified medical practitioner and attained her degrees Bachelor of Medicine and Bachelor of Surgery in 1996 from the University of Sheffield in the United Kingdom. She completed her speciality training for general practice (MRCGP) in 2000 also at Sheffield University. Since then she has worked as a medical practitioner in hospitals and in general practice surgeries and has often been required to undertake capacity assessments. Dr Chapman met Osborne Leonard Ritchie in the course of her practice at the Point Walter Medical Practice in Perth on 23 December 2005 and from then on he was her patient until his death - except for one year in 2008 when she returned to the United Kingdom.
27 During the time that Dr Chapman was attending Mr Ritchie she saw him every one to three months for his medical needs except for the year when she was away in 2008. She says that she found him to be a delightful man with behaviour which was always very appropriate and that it was easy to converse with him.
28 Dr Chapman confirms that Mr Ritchie made a will on 26 June 2006 and that she was present and witnessed the will of 26 June 2006 as one of the two subscribing witnesses. In this respect she deposes that at the time of executing that will on 26 June 2006 Mr Ritchie signed his name at the foot or end thereof as appears from the copy document annexed to her affidavit in the presence of herself and Ms Janette Fay Ward the other subscribing witness both of whom were present at the same time and who then each attested and subscribed the will in the presence of the testator.
29 Dr Chapman had also attended on Mr Ritchie for medical consultations before and after the will of 26 June 2006 and had her own medical notes of those consultations. She saw him on 1 May 2006 for knee pain, on 14 June 2006 for a prescription, on 2 August 2006 for an eye problem and on 1 and 11 September 2006 for eye and knee problems. From those records and from her contact with Mr Ritchie, Dr Chapman has deposed that there was no indication that he was suffering any significant mental incapacity.
30 With respect to the meeting which Dr Chapman had with Mr Ritchie on 26 June 2006 for the purpose of signing his will she explains that before the will was signed or witnessed she:
(a) asked Mr Ritchie standard questions like where he was and who she was. She deposed that his presentation on that day compared with his presentation a few weeks before was the same;
(b) ascertained that it was his idea to do the will and that no one had put pressure on him;
(c) noted no acute medical confusion at the time;
(d) noted that Mr Ritchie came in with his sister, Shirley Lock. She was present when Dr Chapman was asking these questions. Dr Chapman does not recall ever seeing Mr Ritchie without his sister present and it appeared to her from her observations that he was very close to his sister;
(e) noted that Mr Ritchie answered her questions himself without prompting;
(f) clarified that he had the will drafted by a solicitor an no one else;
(g) looked through his will to make sure it was his. Dr Chapman read it through to Mr Ritchie to make sure that it was the correct document which he was signing and Mr Ritchie accepted it as so by agreeing saying, 'yes' and nodding;
(h) conducted a mini mental state examination (MMSE) which included answering questions about where she was, what he was doing and what day of the week it was. Although it was not a full MMSE, Dr Chapman had seen Mr Ritchie quite regularly and was not worried about his mental state. Nothing in his presentation on that day stood out as unusual or concerning. According to Dr Chapman Mr Ritchie was no different than when she had seen him before.
31 Dr Chapman then deposes that although Mr Ritchie did have a diagnosis of dementia in her opinion it was mild. The MMSE which she conducted and her knowledge and general observations of her patient satisfied her that Mr Ritchie was of sound mind at the time the will was signed. She added, however, that she noticed a marked deterioration in his mental state on 23 March 2009 after she had come back from her stay in the United Kingdom. Finally, Dr Chapman deposes that having conducted the examinations which she described Mr Ritchie was, in her opinion, on 26 June 2006 sufficiently competent to understand the nature and consequences of executing his will.
Applicable law
32 An applicant for a grant of probate whether in common form or solemn form will always need to prove, to the satisfaction of the court, that the deceased made the will being propounded of his own volition; without duress and with a fully comprehending mind; understanding the nature and effect of the will; its consequences, with a general knowledge of his property and the persons to whom consideration should be given when determining his testamentary intentions: Banks v Goodfellow (1870) LR 5QB 549; Timbury v Coffee (1941) 66 CLR 277; Bailey v Bailey (1924) 34 CLR 558; Worth v Clasohm (1952) 86 CLR 439. See also observations in Wheatley v Edgar [2003] WASC 118 [24] and my recent review of these and other leading authorities in The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 [167] - [190].
33 Proof of these matters will still be required even if, as in the present case, all opposition to the plaintiff's claim is withdrawn or discontinued. This is because any grant of probate or representation, even in common form, is a judgment of the court binding not only on the parties to those proceedings, but on all persons who had notice of the claim and had a right to intervene. Obviously the parties to the probate action and their privies are bound by the result of these proceedings: In the Estate of Vauk (Dec) (1986) 41 SASR 242, 248. But so are persons who have notice of the claim, as was given in this case: see Newell v Weeks (1814) 2 Phillim 224; Ratcliffe v Barnes (1862) 2 Sw & Tr 486; and Dansereau v Berget [1954] 1 AC 1, 8. A judgment in a probate action has a wider application and effect than an action in personam because it binds all those who have an actual or potential interest in the estate whether joined or not and it determines the legal ownership of estate property. So it is said that there are similarities between a probate action and an action in rem: see In the Estate of Langton (Dec) [1964] P 163, 175 (Danckwerts LJ). So it is that even in cases of compromises of contentious proceedings the compromise will be subject to the qualification that if a decree of probate of a will in solemn form is to be granted there must be proof of the will to justify the decree in accordance with solemn form practice: In Re Munn (No 2) [1943] SASR 309. As I said in Wheatley v Edgar [24], in this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144.
34 In the present case the requirements of due execution of the will of 26 June 2006 have been established. I am also positively satisfied from the evidence of Dr Chapman that the late Mr Ritchie had the capacity to make a will in June 2006 and that there is no reason to doubt that the will which he executed on that date was made while he was fully competent and understanding. Not only does the evidence support this but the presumption arising from due execution and a conventional attestation clause also supports it. There is no evidence to suggest otherwise nor is any party benefiting under any earlier will seeking to contend to the contrary.
35 In these circumstances I am satisfied that the plaintiff has established that the last will of Osborne Leonard Ritchie deceased was the will dated 26 June 2006 and that it is valid and effective. Consequently, I consider that the court should direct that there be a grant of probate in solemn form of law of that will in favour of the plaintiff, Gregory Edward Lock, the sole executor named therein. The form of the grant should be settled by a probate registrar. It also follows that the caveat lodged by the defendant and dated 22 November 2010 should be removed. There should be liberty to apply in respect to the form of the grant.
36 Subject to any submissions to the contrary, for which there will also be liberty to apply, I consider that the costs of these proceedings, including the costs of the non-contentious application, should be paid out of the estate.
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