McHugh Pettit v Waters-Pettit
[2024] WASC 328
•9 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MCHUGH PETTIT -v- WATERS-PETTIT [2024] WASC 328
CORAM: MASTER RUSSELL
HEARD: 20 AUGUST 2024
DELIVERED : 9 SEPTEMBER 2024
FILE NO/S: CIV 1466 of 2024
BETWEEN: STORME JACQUELINE MCHUGH PETTIT
First Plaintiff
FINN JOSEPH MCHUGH PETTIT
Second Plaintiff
CHLOE NANCY MCHUGH PETTIT
Third Plaintiff
AND
LEANNE CAROL WATERS-PETTIT
Defendant
Catchwords:
Probate - Application for removal of caveat - Section 64 of the Administration Act 1903 (WA) - Whether caveat vexatious - Whether circumstances that warrant further investigation - Undue influence - Testamentary capacity - Application to remove caveat dismissed - Turns on own facts
Legislation:
Administration Act 1903 (WA) s 63(1), s 64, s 64(1)
Result:
Plaintiff's application to remove caveat dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | Ms T M Watson |
| Second Plaintiff | : | Ms T M Watson |
| Third Plaintiff | : | Ms T M Watson |
| Defendant | : | Mr P F Chambers |
Solicitors:
| First Plaintiff | : | Douglas Cheveralls Lawyers |
| Second Plaintiff | : | Douglas Cheveralls Lawyers |
| Third Plaintiff | : | Douglas Cheveralls Lawyers |
| Defendant | : | Mountains Lawyers Legal |
Cases referred to in decision(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Brockhurst v Andre Das [2023] WASC 226
De Bruin v De Bruin [2004] WASC 20
Hayden v Bond [2003] WASC 96
In the Will of Key (Dec) (1892) 18 VLR 640
In the Will of Young (1968) 70 SR (NSW) 386
Pearse v Michael & Anor [2002] WASC 135
Re Hughes [2021] WASC 157
Roebuck v Smoje [2000] WASC 312
West Australian Trustee Executor and Agency Co Ltd v Homes [1961] WAR 144
West Australian Trustees Ltd v Poland, unreported; SCt of WA; Library No 7000; 6 January 1988
MASTER RUSSELL:
Overview
By originating summons filed on 26 April 2024, the plaintiffs apply, pursuant to s 64 of the Administration Act 1903 (WA) (Act), for removal of a caveat lodged by the defendant on 3 April 2024 (Application).
The first plaintiff, Storme Jacqueline McHugh Pettit, the second plaintiff, Finn Joseph McHugh Pettit, and the third plaintiff, Chloe Nancy McHugh Pettit are the lawful children of Kevin Philip Pettit, who died on 24 February 2024 (Deceased).
The defendant, Leanne Carol Waters-Pettit, is the Deceased's widow. She is not the plaintiffs' mother. She and the Deceased married on 19 May 2017.
As the parties share the same or similar surname, with no disrespect to any of them, I refer to them by their first names. When I refer to all the plaintiffs together, I refer to them as the plaintiffs.
In about September 2022, the Deceased was diagnosed with lung cancer. After treatment and a period of remission, he was diagnosed with stage four terminal cancer in November 2023. He died only three months later.
The Deceased executed his last will on 21 February 2024 (2024 Will), three days before he died, appointing the plaintiffs as the executors and trustees.
The 2024 Will is said to be made in contemplation of the Deceased ending his marriage to Leanne and provides that the whole of his estate, after payment of all debts, funeral, and testamentary expenses, is to be divided equally among the plaintiffs.
The plaintiffs applied for probate of the 2024 Will on 28 March 2024.
Leanne lodged a caveat on 3 April 2024, claiming an interest as the named executor and beneficiary of an earlier will of the Deceased dated 20 October 2020 (2020 Will), and as his legal wife at the time of his death.
On 4 April 2024, a notice of requisition was issued to the plaintiffs, stating that until such time as the caveat lapses, is removed or withdrawn, the application for probate (in relation to the 2024 Will) may not proceed in the non-contentious jurisdiction. The plaintiffs were required to either make an application to remove the caveat under s 64 of the Act or commence contentious proceedings pursuant to r 33(5) of the Non‑Contentious Probate Rules 1967 (WA) (NCPR).
In support of the Application, the plaintiffs rely on:
(a)affidavits sworn by:
(i)Finn Joseph McHugh Pettit on 26 April 2024;
(ii)Storme Jacqueline McHugh Pettit on 14 June 2024;
(iii)Patrick James Kearney on 17 June 2024;
(iv)John Bochat on 18 June 2024; and
(v)Dr Margherita Nicoletti sworn on 23 July 2024; and
(b)an outline of submissions filed on 2 July 2024.
In opposition to the Application, Leanne relies on an affidavit sworn by her and filed on 31 May 2024, and an outline of submissions filed on 25 June 2024. The jurat in Leanne's affidavit states the affidavit was sworn on 31 January 2024. This is clearly a typographical error, given that it pre-dates the Deceased's passing. I accept that it was sworn on 31 May 2024.
Having considered the material filed and counsel's submissions, for the reasons that follow, I have determined that the caveat should not be removed.
Legal principles applicable to an application under s 64 of the Act
The caveat sought to be removed was lodged under s 63(1) of the Act, which provides, relevantly, that any person may lodge with the Principal Registrar a caveat against an application for probate, at any time before such probate is granted or sealed.
A caveat may be removed under s 64(1) of the Act, which provides:
In every case in which a caveat is lodged the Court may, upon application by the person applying for probate or administration, or for the sealing of any probate or letters of administration, as the case may be remove the same.
The legal principles that apply to an application under s 64 of the Act to remove a caveat were not in dispute. They were recently summarised by Whitby J in Brockhurst v Andre Das.[1] As stated by her Honour in that decision, an application to remove a caveat pursuant to s 64 of the Act is a summary procedure.[2] The onus is on the defendant, who bears the evidentiary burden of proving, on the balance of probabilities, that the caveat application is not vexatious.[3]
[1] Brockhurst v Andre Das [2023] WASC 226 (Brockhurst) [18] – [20].
[2] Brockhurst [19].
[3] Brockhurst [20].
The threshold to maintain a probate caveat is a low one.[4] Still, there must be some material before the court which throws doubt on the will being taken at face value and which justifies the expense and delay of an application for a grant in solemn form.[5]
[4] Re Hughes [2021] WASC 157 [7] (Sanderson M).
[5] Brockhurst [20], referring to De Bruin v De Bruin [2004] WASC 20 (De Bruin) [14] ‑ [15] (Le Miere J); Hayden v Bond [2003] WASC 96 [17] (Barker J). See also Pearse v Michael & Anor [2002] WASC 135 [2].
The material must demonstrate that the caveator's opposition to the will is based upon doubt 'genuinely entertained' by them as to the validity of the will and that there are circumstances which warrant further investigation by the court before the sealing of a grant of probate in respect of the will.[6]
[6] De Bruin [15], referring to In the Will of Young (1968) 70 SR (NSW) 386, 392 (Walsh JA); West Australian Trustees Ltd v Poland, unreported; SCt of WA; Library No 7000; 6 January 1988 (Kennedy J); Hayden v Bond [16] - [17].
The 2024 Will
The 2024 Will was executed by the Deceased on 21 February 2024. It commences by stating:
THIS WILL executed the 21st day of February 2024 is made by me a married man KEVIN PHILIP PETTIT of [ ] in the State of Western Australia, Supervisor in contemplation of the ending of my marriage with LEANNE WATERS-PETTIT and shall not be void upon the ending of the said marriage.
1.1I revoke all my former Wills and Testamentary Dispositions and declare this to be my last Will and Testament.
…
The relevant background to lodgement of the caveat and the parties' respective positions
The following background to the lodgement of the caveat is derived from the affidavit sworn by Leanne on 31 May 2024.[7] Leanne's evidence is to the effect that she and the Deceased were in a long-term, 18‑year relationship up until the date of his death, having met in 2004 ‑ 2005. They married on 19 May 2017.[8]
[7] Affidavit of Leanne Carol Waters-Pettit sworn on 31 May 2024 (Leanne's Affidavit).
[8] Leanne's Affidavit [3] - [4].
During their relationship, Leanne and the Deceased lived together in various properties owned by one or other of them, shared various assets and properties, and had joint finances.[9] Leanne deposes that she and the Deceased had sold various jointly owned properties and used the joint proceeds of sale to repay the loan and discharge the mortgage on the property (which I refer to as the Valheru Property) that they lived in together up until the month before the Deceased died.
[9] Leanne's Affidavit [4] - [19].
The Deceased was the sole registered proprietor of the Valheru Property. Leanne deposes that she and the Deceased planned to put her name on the title to the Valheru Property.[10]
[10] Leanne's Affidavit [24] - [28], 'LCWP17', 'LCWP18'.
On 20 October 2020, Leanne and the Deceased made 'mirror wills' under which they were each the sole beneficiary of the other's estate if they survived each other and if they did not their estates would pass to their children. Leanne was named as the Deceased's executor in the 2020 Will.[11]
[11] Leanne's Affidavit [20] - [23], 'LCWP15' and 'LCWP16'.
The plaintiffs' position is that, about a month before the Deceased died, the Deceased and Leanne had separated, Leanne had moved out of the Valheru Property, the Deceased had contacted his lawyers in relation to the separation, and to arrange to change his will in contemplation of ending his marriage to Leanne.
Leanne disputes that she and the Deceased had separated. Leanne deposes that she and the Deceased's children had a difficult relationship and Storme was particularly hostile towards her. About a month before the Deceased died, in January 2024, Leanne moved out of the Valheru Property so that Storme, who had returned from interstate could stay and spend time with her father. Leanne did not expect the Deceased's health to deteriorate as quickly as it did.[12]
[12] Leanne's Affidavit [36] - [40].
Leanne contests the validity of the 2024 Will. In essence, she says the 2024 Will should not be taken at face value, and there are circumstances requiring further investigation before granting probate in respect of it, as follows:
1.Leanne believes that the Deceased was influenced or coerced by his eldest daughter, Storme, into preparing and executing the 2024 Will and revoking the 2020 Will on the basis his relationship with Leanne had ended, which was not the case, at a time when he was vulnerable due to his ill health, and on medication.
2.The Deceased lacked testamentary capacity when the 2024 Will was executed. Leanne relies on the proximity to his death, that he would have been in significant pain, on medication and unable to fully understand his actions and the true position as to his and Leanne's relationship. She also relies on communications sent close to the time the Deceased executed the 2024 Will, which raise questions as to his lucidity and state of mind.
3.Leanne and the Deceased were married and in a long‑term relationship at the time of his death. The 2024 Will does not take account of the 'mixing of assets' and, if the relationship was at an end (which Leanne denies), the property and interests acquired during the relationship and marriage, and Leanne's entitlements under the Family Law Act 1975 (Cth).
4.The 'preamble' to the 2024 Will, which states the will is made in contemplation of the Deceased ending his marriage to Leanne operates as a condition precedent to the revocation of the 2020 Will. It is submitted, in effect, that the condition of the marriage ending was not fulfilled and, as such the 2024 Will is invalid.
The plaintiffs refute the defendant's contentions and submit the caveat should be removed. They submit that the evidence adduced, particularly that of the independent witnesses, Mr Kearney, Mr Bochat and Dr Nicoletti, who engaged with the Deceased in the days leading up to and at the time he executed the 2024 Will:
(a)reveals a set of circumstances that are probable, and which ought to be accepted; and
(b)does not cause any reason for investigation or concern about the validity of the 2024 Will.
The plaintiffs submit that Leanne's evidence is speculative. She had not had contact with the Deceased since she moved out of the Valheru Property on 25 January 2024, and has not stated the facts relied upon to support the matters she says she believes as to the alleged undue influence or coercion of the Deceased and his capacity at the time he executed the 2024 Will.
Leanne's position is, as has been referred to, that she moved out of the Valheru Property as she could not remain there while Storme was living there, and she wanted to give her and the Deceased space and time together.[13] Leanne says that Storme took control of hospital visits to the Deceased, did not contact Leanne until the day before he died and allowed her to see him on his last day.[14]
[13] Leanne's Affidavit [36] - [40].
[14] Leanne's Affidavit [41].
Leanne deposes that she believes the Deceased's daughter, which I infer to be a reference to Storme, influenced the Deceased while he was vulnerable. She says she believes that he only signed the 2024 Will due to coercion of a vulnerable and very ill man on high pain relief medication just three days before his death.[15] Leanne does not elaborate as to the basis for her belief.
[15] Leanne's Affidavit [42].
The defendant's relationship with the Deceased
It is not in dispute that Leanne and the Deceased were lawfully married at the time of the Deceased's death. The plaintiffs rely on the following evidence in support of their contentions that the Deceased and Leanne had separated in January 2024, about one month before the Deceased executed the 2024 Will and subsequently died, and that he made the 2024 Will in contemplation of ending his marriage to Leanne:
1.The following emails, which Storme accessed and printed from the Deceased's computer after he died:[16]
[16] Affidavit of Storme Jacqueline McHugh Pettit sworn on 13 June 2024 (Storme's Affidavit) [31].
(a)an email from the Deceased to Leanne sent on 30 January 2024, informing Leanne her smart rider card had arrived and suggesting he leave it in the mailbox for her to pick up, and also asking if it was possible someone had picked up his battery drill and battery when she was moving;[17] and
[17] Storme's Affidavit 'SJMP9'.
(b)an exchange of emails between the Deceased and a lawyer, Michelle Lai, on 20 February 2024,[18] in which:
[18] Storme's Affidavit 'SJMP10'.
(i)at 5.06pm, Ms Lai emailed the Deceased, referring to the mortgage on his property having been discharged and asked the Deceased if he would like her to proceed with the transfer application to add Leanne to the title;
(ii)the Deceased replied at 6.46pm saying 'Things have changed for both myself and Leanne and we have separated so I will not proceed with the title change.
…'
2.A letter from Mrs Christine Heslin dated 11 March 2024,[19] which purports to be, but is not, a statutory declaration, in which Mrs Heslin states that Leanne left the Deceased in mid‑January 2024, and to the Deceased having told her this in a conversation she had with him at the time.
[19] Storme's Affidavit [33], 'SJMP11'.
3.The affidavit of Patrick James Kearney,[20] in which Mr Kearney, a lawyer of Rattigan, Kearney and Bochat, deposes that the Deceased attended at his office in Rockingham on 7 February 2024 to seek legal advice about his separation from his wife, Leanne. Mr Kearney deposes to having been informed by the Deceased that:
[20] Affidavit of Patrick James Kearney sworn on 17 June 2024 (Kearney Affidavit).
(a)he and Leanne had separated on a final basis on 25 January 2024, they no longer lived together and were no longer in a relationship together;
(b)he did not want Leanne to receive his house, superannuation or life insurance and instead he wanted his children to receive those; and
(c)he considered his relationship with Leanne was over, would take the necessary steps to divorce Leanne when he was able, and wished to separate financially from her.[21]
[21] Kearney Affidavit [5] - [6].
4.Mr Kearney also deposes to the Deceased asking him about changing his will given his separation from Leanne, and to informing the Deceased that John Bochat of his firm could better assist him with preparing a new will.[22] Mr Kearney states that he did not have any concerns about the Deceased's capacity to understand what they were discussing or to provide instructions.[23]
[22] Kearney Affidavit [7].
[23] Kearney Affidavit [9].
5.The affidavit of John Bochat,[24] in which Mr Bochat deposes, among other things referred to later in these reasons, that when he left the Rockingham General Hospital on 21 February 2024, the Deceased confirmed with him that he would be coming to his firm's office for an appointment on 7 March 2024 regarding his separation from Leanne, and to discuss enduring powers of attorney and guardianship.[25]
[24] Affidavit of John Bochat sworn on 18 June 2024 (Bochat Affidavit).
[25] Bochat Affidavit [39].
6.The affidavit of Dr Margherita Nicoletti,[26] a doctor and palliative medicine specialist who oversaw the Deceased's care at Rockingham General Hospital from 12 February 2024 to 14 February 2024 and from 17 February 2024 to 24 February 2024 (February Admissions).[27] Dr Nicoletti deposes, by reference to a letter written by her dated 11 March 2024,[28] that the Deceased:
(a) told her that his wife had walked out on him in January after diagnosis of his terminal cancer and that she no longer wanted anything to do with him; and
(b)asked that his daughter, Storme, be the person the hospital liaised with regarding his medical care.
7.Storme's evidence that the Deceased told her on or around 14 January 2024 that:
(a)he and Leanne had separated;
(b)Leanne had told him that she was moving out of the Valheru Property and had requested that he not be there while she removed her possessions on 25 January 2024; and
(c)Leanne had told him not to contact her by phone or text message after she had moved out and only to contact her by email, if required.[29]
[26] Affidavit of Dr Margherita Nicoletti sworn on 23 July 2024 (Nicoletti Affidavit).
[27] Nicoletti Affidavit [1], [4].
[28] Nicoletti Affidavit [5], 'MN1'.
[29] Storme's Affidavit [9].
It is not disputed that Leanne moved out of the Valheru Property on 25 January 2024.
I do not accept that the email from the Deceased to Leanne of 30 January 2024 by itself is evidence of a permanent separation, rather than a temporary move as Leanne contends.
I place no weight on the letter from Mrs Heslin dated 11 March 2024. Although it is signed by Mrs Heslin and witnessed, it is not a statutory declaration. There is nothing to verify that the witness is a person authorised to witness a statutory declaration. The contents of the letter are not sworn or affirmed by Mrs Heslin and the statements made are largely inadmissible.
The statement made by Dr Nicoletti in her letter dated 11 March 2024, states that the Deceased had told her that his wife had walked out on him in January, which supports a separation at that time, but does not say anything about the Deceased's future intentions concerning their relationship and marriage.
However, I am satisfied, for the purpose of the Application, on the basis of the other evidence adduced, that the Deceased and Leanne had separated and, as far as the Deceased was concerned, their relationship was at an end.
For the purposes of the Application, on the evidence adduced, I find that:
1.Leanne moved out of the Valheru Property on about 25 January 2024. Storme moved into the Valheru Property shortly after, when she and the Deceased returned from Dunsborough on 28 January 2024.[30]
2.Based on Mr Kearney's evidence, from the Deceased's perspective his relationship with Leanne had ended, he wanted to separate financially from her and, when he was able, he was going to take steps to end their marriage. This is supported by Mr Bochat's evidence that the Deceased said to him he was going to an appointment at his office on 7 March 2024 about his separation from Leanne.
[30] Storme's Affidavit [10].
The evidence relied upon by Leanne concerning her relationship with the Deceased does not give rise to any matter that casts doubt as to the validity of the 2024 Will at face value.
The 2024 Will is stated to have been made by the Deceased 'in contemplation of the ending of my marriage with [Leanne] and shall not be void upon the ending of the said marriage.' This is expressed in clear terms. It is consistent with the evidence of Mr Kearney that in the preceding weeks, the Deceased had stated his intention to end his marriage with Leanne when he was able and that the Deceased enquired about making a new will, saying he no longer wanted Leanne to receive anything.
I do not accept the submissions made on Leanne's behalf to the effect that the introductory words in the 2024 Will act as a condition precedent, such that the will should be revoked because the Deceased's marriage to Leanne had not ended when he died.
As was submitted on behalf of the plaintiffs, s 14A of the Wills Act 1970 (WA) provides that a will is revoked by the ending of a testator's marriage, except where a contrary intention appears in the will or there is other evidence establishing such an intention. The 2024 Will expresses a contrary intention - that the will 'shall not be void upon the ending of the said marriage'. The fact that the marriage had not yet ended does not operate, in my view, to revoke the 2024 Will.
That the 2024 Will does not deal with the mixing of the Deceased's and Leanne's assets, any entitlements Leanne may have under the Family Law Act, or whether adequate provision has been made for Leanne, are matters that may be the subject of separate proceedings. However, they are not matters that operate to defeat a grant of probate being issued. As such, they are not matters which support retention of the caveat.
Preparation and execution of the 2024 Will
Coercion or undue influence
It was submitted on behalf of Leanne that the plaintiffs took advantage of Leanne's acquiescence to the Deceased's request to move out of the Valheru Property so that Storme could move in and stay with him, and coerced or manipulated him into revoking the 2020 Will on the basis their relationship had ended, which was not the case. It was submitted that the Deceased had either been led to believe a lie that his marriage had ended, or he gave into the plaintiffs' pressure on him at a time when he was vulnerable.[31]
[31] Leanne's Affidavit [36] - [40]; Defendant's written submissions [9.11] - [9.12].
Leanne deposes that she believes the Deceased's daughter influenced him while he was vulnerable and that he only signed the 2024 Will due to coercion.[32] Leanne does not state the basis for her belief and there is no other evidence adduced to support these contentions.
[32] Leanne's Affidavit [42].
The only evidence Leanne gives about Storme exercising any control is in relation to the Deceased's hospital visits in the last few days of his life. Leanne deposes that Storme did not contact her until the second last day and allowed her to see the Deceased on his last day.[33]
[33] Leanne's Affidavit [41].
On the evidence adduced, as referred to, for the purpose of the Application, I find that:
1.Storme was living with the Deceased from 28 January 2024, spent time at the hospital with him during the February Admissions, and the Deceased had asked that Storme be the person the hospital liaised with regarding his medical care.
2.Storme called Mr Bochat's office on the morning of 20 February 2024 and left a message that the Deceased's condition was deteriorating rapidly, and he required a new will as soon as he could. Mr Bochat returned Storme's call on her mobile and then spoke to the Deceased. There is no evidence to suggest that the Deceased was under any pressure from Storme to make a new will.
3.Mr Bochat took instructions directly from the Deceased, albeit over the phone initially. He knew the Deceased, describing him as a long-standing client. He prepared the Deceased's earlier wills in 1998 and 2013 and discussed his 2013 will with him in 2016.
4.I do not find the fact that Mr Bochat does not refer to the 2020 Will in his evidence is a matter that supports the contention that the Deceased was influenced or coerced, or that Storme was involved in giving instructions in relation to the 2024 Will, as was submitted on behalf of Leanne. Mr Bochat refers in his evidence to previous wills he had prepared for the Deceased. He did not prepare the 2020 Will. It was prepared by another law firm.
5.When Mr Bochat met with the Deceased at the hospital, Storme was in the room with the Deceased when he arrived. She left the room while Mr Bochat spoke with the Deceased about the will. Storme was not present when the Deceased executed the 2024 Will.
6.As to Storme controlling hospital visits to the Deceased, there is no evidence of any messages to, or restrictions on, Leanne concerning her visiting the Deceased in hospital in the period before he executed the 2024 Will. There is evidence of messages exchanged between Storme and Leanne on 22 and 23 February 2024. Those messages do not indicate any control by Storme or preventing Leanne from visiting the Deceased, at that time. To the contrary, Storme said that Leanne was welcome to visit. In a message from Storme to Leanne at 10.29am on 22 February 2024, the day after the Deceased executed the 2024 Will, Storme informed Leanne that the Deceased was likely to pass that day and she would arrange for Leanne to have private time with him if she wished.[34]
[34] Storme's Affidavit 'SJMP2'.
The burden of proving undue influence rests upon the person asserting it. The burden cannot be discharged simply by showing a person had power enabling them to overbear the will of the testator, if that is the case. It must be shown that such power was exercised and that execution of the will was obtained by exertion of the power.[35]
[35] West Australian Trustees Ltd v Poland, unreported SCt of WA, Library No 7000 6 January 1988, page 9 (Kennedy J), and the authorities referred to.
As submitted by the plaintiffs, Leanne did not interact with the Deceased between 25 January 2024 and 23 February 2024. She did not observe the Deceased's interactions with Storme during that time.
I accept the submission made on behalf of the plaintiffs that Leanne's evidence is no more than speculation on this issue. There is nothing to indicate that Storme, or any of the plaintiffs, held any power over the Deceased, let alone that they exercised any influence over him that resulted in him executing the 2024 Will.
Speculation or suspicion that something may have happened is not a sufficient ground to maintain the caveat. In my view, there is insufficient evidence that this is a matter that warrants further investigation.
The Deceased's testamentary capacity
The plaintiffs contend that the Deceased was of sound mind at the time the Will was executed, which they submit is confirmed by the evidence of Dr Nicoletti. The plaintiffs also rely upon the evidence of Mr Bochat that when he met with the Deceased in person on 21 February 2024, he explained the contents of the will twice. He says that the Deceased looked well, was clear as to what he wanted in his will and how his estate was to be divided, and was able to identify typographical errors for amendment, specifically the date and missing middle names of his children.
The plaintiffs highlight that Mr Bochat is an experienced lawyer, who has previously prepared wills for the Deceased. They submit that if Mr Bochat had any concerns regarding the Deceased's capacity to execute the Will, they would have arisen during the three separate interactions he had with the Deceased on 21 February 2024.
Leanne's evidence
Leanne says very little in her affidavit about the Deceased's capacity at the time he executed the 2024 Will. She refers to him being coerced or influenced at a time when he was 'a very ill man on high pain relief medication just three days before his death.'
As has been referred to, Leanne had no contact with the Deceased between 25 January 2024 and 23 February 2024 and, as such, did not herself observe the Deceased at or about the time he executed the 2024 Will.
Mr Bochat's evidence
The evidence of John Bochat,[36] relevant to the preparation of the 2024 Will and the Deceased's capacity at the time he gave instructions to Mr Bochat, is as follows:
[36] Bochat Affidavit.
1.The Deceased was a long‑standing client of Mr Bochat's firm.[37]
2.Mr Bochat previously prepared wills for the Deceased, which the Deceased executed on 3 December 1998 and 19 September 2013.[38] The Deceased also consulted Mr Bochat about his will on 24 November 2016 but did not prepare a new will at that time.[39]
3.The Deceased contacted Mr Bochat through his daughter, Storme, after the Deceased had contacted Mr Kearney on about 7 February 2024 in respect of his matrimonial affairs, and an appointment was made for the Deceased to see Mr Bochat on 7 March 2024.[40]
4.Mr Bochat was given a telephone message taken on 20 February 2024 at approximately 10.06am from Storme saying that the Deceased required a new will as soon as he could as he was rapidly deteriorating.[41]
5.Mr Bochat telephoned Storme on her mobile, she answered the phone and he spoke to the Deceased, said he would take some instructions from him and arranged to meet with the Deceased to execute the will later that day at Rockingham General Hospital.[42]
6.Mr Bochat deposes that he took some preliminary instructions from the Deceased for the new will over the phone, He was satisfied that he was speaking to Kevin Philip Pettit, who provided clear instructions as to how his estate was to be divided, Mr Bochat states that the Deceased did not appear to have any cognitive deficit, was aware of his circumstances, and did not appear to be affected by any drug or medication.[43]
7.He prepared the will and attended the Deceased at Rockingham General Hospital with his secretary, Mira Timarac, in the afternoon of 21 February 2024, when he says he went over their telephone discussion and the Deceased read the will.[44]
8.The Deceased indicated there were some errors as to the date and his children's middle names were not included but otherwise confirmed the will was in order.[45]
9.Mr Bochat and Ms Timarac returned to the office, Ms Timarac corrected the names and date on the will and within an hour they returned to the hospital, where the Deceased, who was in bed, looked well, quite relaxed and appeared very comfortable.[46]
10.Storme left the room and he went over the will with the Deceased paragraph by paragraph, explaining each paragraph in broad terms and the Deceased executed the 2024 Will in his and Ms Timarac's presence.[47]
[37] Bochat Affidavit [5].
[38] Bochat Affidavit [6] - [7].
[39] Bochat Affidavit [8].
[40] Bochat Affidavit [9]. Mr Bochat states in his affidavit that the appointment was made for 7 March 2023. I accept this is a typographical error.
[41] Bochat Affidavit [10] - [11].
[42] Bochat Affidavit [12] - [16].
[43] Bochat Affidavit [17] - [22].
[44] Bochat Affidavit [23], [25] - [28].
[45] Bochat Affidavit [29].
[46] Bochat Affidavit [30] - [32].
[47] Bochat Affidavit [33] - [35].
In his affidavit, Mr Bochat refers to the Deceased being well aware of previous advice given to him but does not say what that previous advice was. His evidence is given in a summary way without specifics as to what was said by him and by the Deceased. It appears that his evidence to the effect that the Deceased did not appear to be affected by any cognitive deficit, drug or medication is based on his telephone call with him, not his personal attendance upon the Deceased later on 21 February 2024. He states as a conclusion that the Deceased was content with the will, approved it and agreed to sign it.
It is not entirely clear at what time on 21 February 2024, Mr Bochat attended the Deceased at the hospital. There are some inconsistencies between the evidence of Mr Bochat and Storme as to when Mr Bochat attended the hospital in relation to the preparation of the 2024 Will and when it was executed. Mr Bochat deposes that he and Ms Timarac went to the hospital in the afternoon of 21 February 2024. Storme deposes that Mr Bochat came to the hospital in the morning.[48]
[48] Storme's Affidavit [19].
These are matters of importance, in my view, given the proximity of the Deceased executing the 2024 Will and his decline and subsequent death. There is evidence, referred to below, that refers to the Deceased not being particularly lucid on the morning of 22 February 2024 and, on 23 February 2024, Storme described him as having been in a state of confusion/delirium for the last day and a half.
Dr Nicoletti's evidence
Dr Nicoletti deposes that, from her observations of and dealings with the Deceased during the February Admissions, and from her review of the internal hospital file regarding the Deceased at that time, he was of sound mind, apart from 23 February 2024 and 24 February 2024 when he suffered from terminal delirium.[49]
[49] Nicoletti Affidavit [5] - [7], 'MN1'.
The plaintiffs rely on Dr Nicoletti's evidence as a doctor specialising in palliative medicine, who spent time with and observed the Deceased regularly during the February Admissions and not as an expert as a doctor specialising in matters of the mind.
Concern was raised on behalf of Leanne that, although, Dr Nicoletti refers to having reviewed the Deceased's medical records, those records have not been produced by her or the plaintiffs and are not in evidence. It was submitted, in effect, that given the change of position by Dr Nicoletti from saying in her letter that the Deceased was of sound mind the whole time, to having delirium on 23 and 24 February 2024, the medical records ought to be produced. It was submitted that is a matter for further investigation.
In response, the plaintiffs' position, which I accept, is that while Dr Nicoletti was able to access and review the Deceased's hospital file and access his medical records, she does not have power to hand them over to any other party. Further, the plaintiffs have no right of access to, and cannot compel production of, the medical records.
It is also true, as submitted on behalf of Leanne, that in proceedings such as these, as the defendant, she is not permitted to seek discovery or issue subpoenas to seek access to medical records that may shed further light on the Deceased's capacity at the time of executing the 2024 Will.
There is some inconsistency between Dr Nicoletti's evidence and Storme's evidence. Dr Nicoletti says the Deceased was of sound mind, apart from on 23 and 24 February 2024.
Storme's evidence
Storme deposes that, at around 8.00am on 22 February 2024, Dr Nicoletti told her that the Deceased:
(a)had started to suffer from pre-death delirium overnight;
(b)should start receiving permanent sedation to help with restlessness, pain and distress; and
(c)was likely to die in the next 48 hours.[50]
[50] Storme's affidavit [22].
At 10.29am on 22 February 2024, Storme sent a text message to Leanne informing her that the Deceased was likely to pass away at some point that day and saying she would be happy to arrange some private time with him if Leanne wished. She ended the message stating 'You should know he's not particularly lucid, he's still conscious now but they will start to slowly sedate him across the day.'
On 23 February 2024, Storme sent a message to Leanne stating:
Hi Leanne,
Dad is in the process of being fully sedated now, he has been mostly unconscious or in a state of confusion/delirium for the last day and a half. He's sleeping now and they/we don't expect he'll become conscious again now. But you're still very welcome to visit. …
Leanne said she would visit the Deceased that day.
As observed by Master Sanderson in Re Hughes,[51] questions of testamentary capacity are notoriously difficult to prove and may be affected by the subjective views of individuals.
[51] Re Hughes [9].
As Holroyd J said In the Will of Key (Dec):[52]
To satisfy the Court [of the capacity of the testator] it will ordinarily be sufficient to prove the due execution of the will, as the presumption of sanity arises from the performance of an apparently rational act, and the absence of any evidence, or evidence strong enough, to throw doubt upon the competency of the testator.
[52] In the Will of Key (Dec) (1892) 18 VLR 640, 642.
In Hayden v Bond,[53] Barker J referred to the classic test in Banks v Goodfellow,[54] concerning the capacity a testator must possess when executing a valid will:
[22] … In order to exercise the power of disposition by the execution of a will, a testator must understand the nature of the act and its effects; understand the extent of the property of which he is disposing, be able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties…
[53] Hayden v Bond [22].
[54] Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn J).
As observed by Barker J in Hayden v Bond, in determining the capacity of a testator to make his will, 'it is the soundness of mind and not the particular state of the bodily health, that is to be attended to.' The onus of proving a lack of testamentary capacity lies with the party propounding it, and in order to displace a prima facie case of capacity, proof of serious illness alone is not sufficient. Instead, there must be evidence that undue influence was exercised or that a testator's illness so clearly affected his mental state that he could not reasonably dispose of his property.[55]
[55] Hayden [23] - [27], referring to Bailey v Bailey (1924) 34 CLR 558, 570 (Isaacs J).
Where there are no suspicious circumstances the requisite knowledge and approval of a testator will be presumed by the court from the due execution of the will.[56] Suspicious circumstances include where there is mental incapacity or severe physical conditions present, such as where a testator is blind or unable to read or write.[57]
[56] Hayden [28], referring to Roebuck v Smoje [2000] WASC 312 [93] (Hasluck J) (Roebuck v Smoje); Bailey v Bailey; West Australian Trustee Executor and Agency Co Ltd v Homes [1961] WAR 144.
[57] Roebuck v Smoje [94].
In this case, there is no suggestion of such physical incapacities. That the Deceased was very ill and in a poor state of physical health is not sufficient. What is said to raise suspicion, or a matter requiring further investigation, is the Deceased's mental capacity. That is, whether his ability to fully understand his actions, in the sense referred to, was affected by his condition and the medication he was on.
Other than in very broad terms, there is no evidence about the Deceased's condition at the time he executed the 2024 Will and there is no evidence as to what medication he was on and any relevant effect on his testamentary capacity.
As noted, in proceedings such as these, the defendant is not permitted to seek discovery of or issue subpoenas to produce the hospital records or documents that may shed further light on the Deceased's capacity at the time he executed his 2024 Will. Nor do the plaintiffs have any power to access such documents or records, or compel their production.
The messages referred to combined with the lack of specificity in the evidence, as outlined, are such that, in my view, the issue of the Deceased's state of mind and capacity at the time he executed the 2024 Will is a matter that should be examined in more detail.
That is not to say the evidence is such, at this stage, to prove the Deceased lacked testamentary capacity, but that the circumstances are such that they warrant further investigation before probate is sealed in respect of the 2024 Will.
The appropriate forum for determination of that issue is, in my view, by way of contentious proceedings to prove the will in solemn form, in which any necessary discovery may be given, subpoenas issued, and evidence can be given orally with the opportunity to test the evidence by cross examination.
Conclusion and orders
For these reasons, I am satisfied, on the balance of probabilities, that the caveat is not vexatious and there are circumstances which warrant further investigation by the court, as outlined, as to the Deceased's capacity before probate of the 2024 Will is granted or sealed. As such, the caveat should not be removed and the Application should be dismissed.
The findings I have made have been made on a summary basis for the purpose of the Application. They are not binding in any subsequent contentious proceedings in relation to the Deceased's estate.
Subject to hearing from the parties as to the final form of orders, I propose to make orders in the following terms:
1.The plaintiffs' application by chamber summons filed on 26 April 2024 pursuant to s 64 of the Administration Act 1903 (WA) for removal of the caveat lodged by the defendant on 3 April 2024 is dismissed.
2.Within one month of the date of these orders, the plaintiffs must commence contentious proceedings pursuant to r 33(5) of the Non-Contentious Probate Rules 1967 (WA) (NCPR) by issuing a writ against the defendant, failing which the defendant has liberty to apply pursuant to r 33(6) NCPR.
I will also hear from the parties in relation to costs.
If the parties agree orders, they are to file a minute of agreed orders by 16 September 2024. If they are unable to agree, they should each file minutes of proposed orders and brief submissions in relation to costs by that date.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
9 SEPTEMBER 2024
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