McDonald v Birnie

[2024] WASC 174

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MCDONALD -v- BIRNIE [2024] WASC 174

CORAM:   FORRESTER J

HEARD:   ON THE PAPERS

DELIVERED          :   15 MAY 2024

FILE NO/S:   CIV 1059 of 2023

BETWEEN:   ZACHARY STEVEN MCDONALD

Plaintiff

AND

TAMARA BETH BIRNIE

Defendant

Catchwords:

Wills - Probate - Uncontested application for proof of will in solemn form - O 73 r 19 of the Rules of the Supreme Court 1971 (WA)

Legislation:

Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Will pronounced as having force and effect in solemn form of law

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Lawton Gillon
Defendant	:	Avon Legal

Cases referred to in decision:

Fairclough v Cvitan [2019] WASC 370

Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435

Scaffidi v Scaffidi [No 2] [2022] WASC 227

Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1

FORRESTER J:

Introduction

1. The late Terry Verdun McDonald (the Deceased) died on 1 October 2022.  He left a will dated 8 September 2022 appointing Zachary Steven McDonald as the sole executor and beneficiary of the estate (the Will).

2. Zachary McDonald (Mr McDonald), in his capacity as executor of the Deceased's estate, has applied for an order pronouncing the force and validity of the Will and a grant of probate in solemn form in his favour.

Proceedings

1. Mr McDonald lodged an application for probate on 11 November 2022, following which a registrar caused a Notice of Requisition to be issued advising that the defendant had lodged a caveat in relation to the estate of the Deceased.

2. The writ was lodged on 24 January 2023.  It was amended on 9 May 2023.  The defendant filed a defence and counterclaim on 22 June 2023.

3. The parties have consented to an order pronouncing the force and validity of the Will and a grant of probate in solemn form in Mr McDonald's favour.

4. On 16 April 2024 orders were made by me, by consent, that:

   (a)the defendant have leave to wholly withdraw the defence and to discontinue the counterclaim;

   (b)the matter be set down for an undefended trial pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA); and

   (c)the matter be determined on the papers.

Evidence adduced at the undefended trial

1. Mr McDonald relies on the following affidavits filed in the proceedings:

   (a)affidavit of Zachary Steven McDonald sworn 7 March 2023;

   (b)affidavit of Petrus Stephanus Venter sworn 28 February 2024; and

   (c)affidavit of Zachary Steven McDonald sworn 1 March 2024.

2. Written submissions were filed on behalf of the plaintiff. 

3. The defendant was informed of the affidavits upon which Mr McDonald intended to rely and no objections have been raised or submissions filed on her behalf. 

Factual background

1. The facts, as taken from the affidavits, are not in dispute.

2. The Deceased was born on 18 February 1962.

3. On 18 February 2012, the Deceased married his second wife, Kaye Maree Birnie.  At the time he had two children from his first marriage, Zara Jade Edwards (born in 1988) and Zachary Steven McDonald (born in 1990).[1]

   [1] Affidavit of Zachary Steven McDonald sworn 7 March 2023 [5] - [6] (First McDonald Affidavit).

4. The marriage was also Kaye Birnie's second marriage.  The defendant, Tamara Beth Birnie, is a daughter of Kaye Birnie's first marriage.[2]

   [2] First McDonald Affidavit [8].

5. Kaye Birnie died on 6 April 2022.[3]

   [3] First McDonald Affidavit [7].

6. On 22 August 2022, the Deceased attended the office of Petrus Venter, solicitor, of the firm Groven Legal.  The Deceased gave instructions for the preparation of a will.  At the time, the Deceased informed Mr Venter that he had cancer for which he was undergoing treatment, and had been for some time.  At the time, the Deceased did not exhibit to Mr Venter any signs of cognitive impairment.[4]

   [4] Affidavit of Petrus Stephanus Venter sworn 28 February 2024 [4] - [6], [8] (Venter Affidavit).

7. A draft will was prepared and sent to the Deceased on the same day.[5]  On 24 August 2022, the Deceased requested that the address for Mr McDonald be amended.  That amendment was made and the amended draft will was emailed to the Deceased on 24 August 2022.[6]

   [5] Venter Affidavit [11].

   [6] Venter Affidavit [12] - [13].

8. On 8 September 2022, the Deceased requested that Mr Venter attend on him at Bunbury Hospital for the purposes of executing the Will.  Mr Venter and Lizelle Botha, an employee of Groven Legal, attended on that date.[7]

   [7] Venter Affidavit [14] - [15].

9. At the hospital, the Deceased identified that the draft will provided to him was the same as that previously sent to him.  When asked if he had any questions about the draft will or its contents, he said 'no'.[8]

   [8] Venter Affidavit [18] - [19].

10. The Deceased then signed the Will on the last page and at the foot of each preceding page, witnessed by Mr Venter and Ms Botha, who each then signed the Will as witnesses.[9]

    [9] Venter Affidavit [20].

11. At the time the Deceased signed the Will, Mr Venter saw nothing suggesting that the Deceased was suffering any cognitive impairment or to cause him to doubt the Deceased's capacity to sign the Will.[10]

    [10] Venter Affidavit [21].

12. Mr McDonald observed the Deceased on 8 September 2022 and considered him to be in full command of his mental faculties, including in interactions with family members and hospital staff.[11]

    [11] Venter Affidavit [21].

13. The Deceased died on 1 October 2022 at the age of 60 years.[12]

    [12] First McDonald Affidavit, Annexure A.

The Will

1. Under the Will, after payment of all liabilities of the estate, the remainder and residue was to be given equally to the Deceased's two children in the event they survived him (which they did).[13]

   [13] First McDonald Affidavit, Annexure B.

2. The Will was executed validly in accordance with s 8 of the Wills Act 1970 (WA) on 8 September 2022. Petrus Stephanus Venter (a solicitor) and Lizelle Botha (an assistant) were independent witnesses to the execution of the Will.

3. The Will was held in safe custody by Mr Venter until it was lodged with the Supreme Court at the time of Mr McDonald's application for probate of the Will.

4. There is no suggestion that the Will was revoked by a subsequent will, marriage or termination of marriage, or by destruction or otherwise. There is no codicil to the Will.

Medical evidence

1. At the time he executed the Will in 2022, the Deceased was 60 years old.  He was terminally ill.

2. In the period leading up to his death, the Deceased was under the care a palliative care specialist, Dr Carolyn Masarei.  Dr Masarei has provided a report, dated 29 January 2024.  In it, she states that she saw the Deceased in her outpatient clinic on 5 September 2022, at which time he was well.  She was of the view that at that time, he had testamentary capacity.[14]

   [14] Affidavit of Zachary Steven McDonald sworn 1 March 2024, Annexure ZM-1 (Second McDonald Affidavit).

3. Dr Masarei further states that as at 22 August 2022, the Deceased was under her care in the palliative care ward at St John of God Bunbury.  She reviewed him on 19 and 22 August 2022, at which time she saw no evidence of cognitive impairment or confusion.  While he was prescribed opioid medication, she saw no evidence to suggest any effect of that medication on the Deceased's cognitive skills, including his testamentary capacity.[15]

   [15] Second McDonald Affidavit, Annexure ZM-1.

Applicable principles

Grant of probate in solemn form

1. The difference in effect between a grant of probate in common form and a grant of probate in solemn form is that the former is revocable and the latter, with some limited exceptions, is irrevocable.[16]

   [16] Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1 [18].

2. The application has proceeded on an unopposed basis.  Whilst that position is a consideration to which the court gives weight in determining whether to grant relief of the kind sought, a grant of probate in solemn form cannot be made by the consent of the parties.[17]

   [17] Fairclough v Cvitan [2019] WASC 370 [26].

3. In order to make a grant of probate for a will in solemn form, the court must be independently satisfied on the evidence adduced that the documents sought to be propounded constitute the last will and testament of a free and capable testator.

4. I must consider whether sufficient evidence has been adduced to:

   (a)satisfy the minimum requirements for validity of the testamentary document sought to be proved requiring, at least, due execution;[18] and

   (b)demonstrate that the testator had capacity and knew and approved of the contents of each of the testamentary documents at the time it they were executed so that it can be said that the testator understood the effect of what he was doing.[19]

Presumption arising from due execution

[18] Wheatley v Edgar [26] - [27].

[19] Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435 [11].

1. Two presumptions of fact arise in the proof of wills for probate purposes:

   (a)if the propounder of a will proves that the will is regular on its face and has been duly executed, a presumption arises that the testator had testamentary capacity; and

   (b)if testamentary capacity is proved, due execution of the will also raises a presumption that the testator knew and approved of the contents of that will at the time of execution.[20]

   [20] Scaffidi v Scaffidi[No 2] [2022] WASC 227 [94] - [95].

2. In the present case, no party seeks to satisfy the evidentiary burden required to displace those presumptions and the evidence adduced does not give rise to any cause for concern in that regard.

Disposition

1. I am satisfied that the Will is regular on its face and was duly executed, that is, signed by the Deceased and two witnesses.

2. The Deceased is accordingly presumed to have had testamentary capacity, and it is presumed that he knew and approved of the Will.  Those presumptions have not been displaced.

3. The parties have consented to an order pronouncing that the Will has force and validity in solemn form.

4. In those circumstances I will make the orders sought.

Order

(1)It is pronounced that the last will and testament of Terry Verdun McDonald executed on 8 September 2022 (the Will) is valid and has force and effect in solemn form of law. 

(2)The Probate Registry of this Court is directed to issue (or seal) a grant of probate of the Will in solemn form in favour of the Zachary Steven McDonald.

(3)There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SI

Associate to the Honourable Justice Forrester

15 MAY 2024