McDonald as Executor of the Estate of Arnolds LEIPA v Latvian Relief Society of Australia DAUGAVAS VANAGI Perth Branch Incorporated
[2007] WASC 66
•23 MARCH 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: McDONALD as Executor of the Estate of ARNOLDS LEIPA -v- LATVIAN RELIEF SOCIETY OF AUSTRALIA DAUGAVAS VANAGI PERTH BRANCH INCORPORATED [2007] WASC 66
CORAM: McKECHNIE J
HEARD: 21 & 22 MARCH 2007
DELIVERED : 23 MARCH 2007
FILE NO/S: CIV 1979 of 2004
BETWEEN: SEVENDER McDONALD as Executor of the Estate of ARNOLDS LEIPA
Plaintiff
AND
LATVIAN RELIEF SOCIETY OF AUSTRALIA DAUGAVAS VANAGI PERTH BRANCH INCORPORATED
Defendant
Catchwords:
Wills - Whether Will properly executed - Whether testamentary intention established if Will not property executed - Turns on own facts
Legislation:
Wills Act 1970 (WA), s 8, s 34
Result:
Plaintiff's claim dismissed
Defendant's counterclaim allowed
Declaration in favour of Will dated 26 April 1994
Category: B
Representation:
Counsel:
Plaintiff: Mr G A Lacerenza
Defendant: Mr K E-F Yin
Solicitors:
Plaintiff: G A Lacerenza & Associates
Defendant: H F M Legal
Case(s) referred to in judgment(s):
Nil
McKECHNIE J:
The issues on the pleadings
The plaintiff claims as the sole executor and beneficiary in a Will dated 8 December 2002 made by Arnolds Liepa who died on 23 March 2004. She seeks a declaration that the Court pronounce for the force and validity of the Will and decree probate thereof in solemn form of law.
In further and better particulars of the statement of claim it is asserted that the Will was executed on 8 December 2002 in early to mid‑afternoon between 1.30 pm to 2 pm at 28 Dawson Avenue, Forrestfield (the plaintiff's home) in the presence of Rodney George Sefton‑Bellion and Eileen Joan Sefton‑Bellion.
The defendant puts in issue the presence of the witnesses at the time the deceased executed the Will and further asserts that the deceased did not know or approve the contents of the document because the deceased did not draft the document. The deceased had poor eyesight and was not capable of reading the document. The deceased was a very heavy drinker and likely to have been under the influence of alcohol at the time of the purported execution of the Will.
The defendant in turn seeks by counterclaim that the Court pronounce for the force and validity of the Will dated 26 April 1994 in which the deceased appointed the defendant his sole executor and left his entire estate to it.
The plaintiff admits the existence of the 1994 Will but asserts that it was revoked by the Will of 8 December 2002.
By an amended reply the plaintiff raises an alternative claim under s 34 of the Wills Act 1970 (WA) in the event of a finding that the Will was not property executed.
The Will
The 2002 Will (indeed both Wills) are of common printed form. The 2002 Will written by the plaintiff relevantly reads as follows:
"I appoint Sevender McDonald of 28 Dawson Avenue, Forrestfield, WA, to be Executrix and Trustee of this my Will.
I give my very good friend Sevender McDonald of 28 Dawson Ave, Forrestfield, the whole of my estate which mainly includes my property at 15, Briggs Street, Bassendean, W.A, and all monies in my bank accounts.
I also give permission to Sevender McDonald of 28, Dawson Ave, Forrestfield W.A, to write my last Will and testament for me."
The signature is indecipherable but, following a report from a document examiner, the defendant admits that the 2002 Will was signed by the deceased.
The dispute about the 8 December 2002
The plaintiff's evidence was consistent with the further and better particulars and is supported by evidence from her children Jacqui, Damian and Brenton. Kirsty was not called to give evidence. The other person said to have been present was Sudha Devi Hunt. In cross‑examination (t/s 25) the plaintiff explained that Sudha's "marriage break off and lost contact with her". The plaintiff was asked why she did not ask Sudha to be one of the two witnesses as she was already present. Her response was: "I just know Sudha for a few weeks. … She is my new friend" but that there was no reason. The evidence of the length of acquaintanceship with Sudha is at some variance with that of her children who placed it longer.
The plaintiff and her witnesses gave evidence of a somewhat longer and more detailed contact with Mrs Sefton‑Bellion in particular than that to which she or her husband were prepared to concede. Mrs Sefton‑Bellion did walk for a time with the plaintiff although over a shorter period than the plaintiff would assert. They discussed their children and general matters.
The stark divergence between the plaintiff and the defendant comes in the evidence of Mr and Mrs Sefton‑Bellion however as to the circumstances in which their signature came to be on the Will. Each is adamant that they were not present when the deceased executed the Will. Each has said that they never met Mr Liepa and that they did not visit the plaintiff's house on 8 December 2002 in the afternoon for the purpose of witnessing the Will. In determining whether the plaintiff has established on the balance of probabilities the fact that the Will was properly executed, it is first necessary to make an assessment of her credibility having regard to all her evidence.
The credibility of the plaintiff and her witnesses
In her evidence the plaintiff says that over a period of time she began to do the deceased's cooking and care for him and that she continued to clean and care for him up until he died. She said she used to cook meals at the weekend and take them around. She started doing his washing and ironing and took him to the hairdressers. She agreed that Mr Liepa never bathed but denied that he smelled badly. She denied that the house did not look as though it had not been cleaned. She insisted that she had washed and ironed for him. She denied that the deceased had really bad legs. She did not observe that he was a heavy drinker. She never saw him appear drunk. Her evidence on all these points is disputed by the defendant's witnesses: Arthur Gabilikis, Christiaan Hofman and Kerry Anne Ingram. Each of these witnesses was impressive. None of them has any interest under the Will. They are also independent of each other. None was materially shaken in cross‑examination. It was not put to them that they had fabricated their evidence. There is no reason to doubt Mrs Ingram's evidence as to the extent to which she was involved in the life of the deceased which commenced at a time when she lived in the same street and continued until he died. She and Mr Hofman, and to a lesser extent Mr Gabilikis, were in a very good position to observe the deceased, his cleanliness, the state of his clothes and the state of his house. By reason of long years of friendship with him it is likely that the deceased took them into his confidence about his testamentary intentions. It is clear from the evidence of these three witnesses that the house did not look as if it had ever been cleaned. Moreover, they are adamant that the deceased's clothes were not washed, much less ironed. I accept their combined evidence on this point. Each said that the deceased smelt. As he never bathed and changed his clothes only rarely this is logical; yet both the plaintiff and her witnesses denied the fact.
It is clear from their evidence that the deceased was a heavy drinker. I note that Mr Hofman considered that despite the deceased being a heavy drinker his mind was always fairly clear and that in the last seven or eight years before his death he never saw the deceased really drunk. The deceased was certainly a practised drinker and in weighing the plaintiff's evidence I do not adversely take into account her denial as to the extent of the deceased's drinking. Her credibility and that of her witnesses is however adversely affected by the fact, as I find it to be, that the deceased was smelly and his clothes were filthy. His clothes were not tidy (Damian McDonald at t/s 55) or clean and casual (Brenton McDonald at t/s 60).
The plaintiff gave inconsistent answers as to the availability of hot water in the house. She was asked (t/s 10) "Did you ever use hot water to wash up" and she answered "Yes". She denied Mr Hofman's evidence that Arnolds did not have hot water. In re‑examination she was taken back to the hot water system that she said was a wood fire. She was asked to explain the answer I have just quoted. Her answer was:
"There is hot water but he had to put the wood. It's an old‑fashioned one.
Did you ever see him operate the hot water system or the wood fire system?---No, because he had to chop the wood.
Okay. Do you know if the system was working?---Yes.
How do you know that?---He told me".
Mr Hofman's evidence, which I accept, is that the wood heater was not connected nor was an electric heater connected.
The evidence of Mrs Ingram and Mr Hofman is that the deceased had difficulty getting about and did not like to go out. I accept this evidence. It is improbable that the deceased lunched regularly with the plaintiff especially when Mr Hofman was in the habit of visiting him on Sundays, nor did the deceased ever mention such visits to the defendant's witnesses. In view of their general contact with the deceased, I consider it likely that he would have mentioned such visits. These matters adversely affect the credibility of Jacqui McDonald and Damian McDonald as to visits made by the deceased to the McDonald house as well as the credibility of the plaintiff.
No realistic motive as to why the defendant's witnesses would lie has been advanced.
Findings about 8 December 2002
These matters affecting general credibility are relevant as I return to 8 December 2002. I accept the evidence of Mr and Mrs Sefton‑Bellion on the balance of probabilities and prefer their evidence to that of the plaintiff and her witnesses whom I do not find credible. Each said they did not know at the time about the formalities of witnessing a Will and witnessed the document as a favour when the plaintiff came over with the documents in hand. Mr Sefton‑Bellion (who is a Production Manager) gave evidence that it was unlikely that the document would have been executed in mid‑afternoon in any event because between 2000 and 2004 he was working mostly seven days a week and 12 hours a day. Of course he could not positively exclude the possibility that he was not working on Sunday, 8 December 2002, but I accept the probabilities are that he was. Likewise, Mrs Sefton‑Bellion denied being approached by the plaintiff to witness the Will on 7 December during the course of an evening walk because of her practice to attend bingo every Saturday night. It was clear that Mr Sefton‑Bellion is embarrassed by his casualness in witnessing a signature without ever meeting the deceased. This, in my mind, strengthens the credibility of his evidence. The easier course might have been to simply agree that he had properly complied with the requirements under the Wills Act.
Unlike the plaintiff, who has an obvious stake in the outcome of the litigation, Mr and Mrs Sefton‑Bellion have no interest, direct or indirect, in the estate. I do not accept the plaintiff's evidence about the events of 8 December 2002. Standing by itself it is plausible. However, in the context of the whole case, and my considerable reservations about her credibility on other matters, I am not prepared to accept the plaintiff's evidence or that of her witnesses.
On the other hand, I do not consider the credibility of Mr and Mrs Sefton‑Bellion is in any doubt.
Because their evidence satisfied me on the balance of probabilities, I find that the Will of 8 December 2002 is not a valid Will under s 8 of the Wills Act.
Is the document nevertheless a Will: s 34
The defence raises issues of testamentary capacity, as I have earlier set out. It is not in issue that the plaintiff wrote all the words on the Will except for the signature. It is only her evidence as to earlier conversations with the deceased wherein she asserts that he intended to leave his property to her. Mrs Sefton‑Bellion denies being told that the deceased wanted Mrs McDonald to be in his Will.
My acceptance of Mr and Mrs Sefton‑Bellions' evidence necessarily involves rejection of the plaintiff's evidence as improbable that in front of everybody the deceased expressed his intention to give all his property to her, that she wrote it down and then read what she had written down to the deceased who agreed with what had been stated. The rejection applies also to the evidence of Jacqui McDonald. Neither Damian McDonald nor Brenton McDonald spoke directly about the witnessing of documents although each gave evidence, which I reject, that the Sefton‑Bellions came across that afternoon.
I turn then to the matter raised by the reply; namely that the document is still a valid testamentary disposition pursuant to s 34 of the Wills Act in that it embodies the testamentary intentions of the deceased person.
The only evidence that the deceased intended to give his property to Mrs McDonald comes from the plaintiff and the Will she wrote on his behalf. It is true that the deceased has signed it. However, I have rejected the plaintiff's account as to how the Will came to be signed and in consequence the fact of the signature, without more, does not carry the matter further. There are no statements immediately contemporaneous to December 2002. However, I take into account, to a limited degree, the evidence of Mrs Ingram which I accept, and the evidence of Mr Hofman which I also accept, that the deceased intended his estate to pass to the Latvian Club. The use to be made of Mrs Ingram's evidence in this regard is limited, not because I do not accept it but because the time at which the deceased spoke leaves open the possibility that he may have changed his mind. It is relevant however that Mrs Ingram was to play a part in the arrangements with the defendant after the death of the deceased in 2002, she going to the extent of writing down phonetically the name of the person at the Latvian Club whom she was to contact when the deceased passed away. Mrs Ingram was trusted with the deceased's financial affairs as well and it is likely he would have told her if his testamentary disposition had altered. However, the evidence of Mr Hofman is that when he saw the deceased in hospital not long before he died they had a conversation about the Will and he said that "that's settled and that the Latvian Club would get it". He never mentioned a Will other than the one where the Latvian Club was to get his estate. The evidence of Mr Gabilikis is also relevant. He says that in 2002 he went with the plaintiff to the deceased's house and that there was a discussion on one occasion about leaving the money to the Latvian Club and he said that he was Latvian and he wanted everything to go to the Latvian Club. He also gave evidence about a conversation with the plaintiff when she suggested getting the deceased to sign a Will when he was drunk. Although the plaintiff denied this conversation I accept that it occurred. However, there is nothing to indicate the context in which it was said, whether in jest or otherwise, so I do not act on this evidence.
I accept the evidence of the defendant's witnesses that the deceased's eyesight was failing and that he had difficulty in reading and used a magnifying glass to do so, a fact denied by the plaintiff. This means that he would have had difficulty reading the Will prepared for him. In fact the plaintiff said that she read the Will to him.
The burden is on the plaintiff to establish the deceased's testamentary intention.
For all these reasons I am not persuaded on the balance of probabilities that the deceased did intend the document dated 8 December 2002 to be his testamentary disposition in favour of Mrs McDonald.
That being so, the plaintiff's claim is dismissed. The only matter raised in the defence to counterclaim is that the 1994 Will in favour of the Latvian Club was revoked by the deceased in the document dated 8 December 2002. I have held that the document dated 8 December 2002 is not a valid document nor is it an informal Will under s 34. The consequence is that I allow the counterclaim and make the declarations sought.
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