Michelle Louise Chaplin as Executor of the Estate of Alice Elizabeth Vilips v Vilips - [2007] WASC 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MICHELLE LOUISE CHAPLIN As Executor of The Estate of ALICE ELIZABETH VILIPS -v- VILIPS [2007] WASC 225

CORAM: JENKINS J

HEARD: 6 SEPTEMBER 2007

DELIVERED : 6 SEPTEMBER 2007

FILE NO/S: CIV 1183 of 2006

MATTER :The Administration Act 1903, s 64
Estate of Alice Elizabeth Vilips of 18 Peel Street, Mandurah in the State of Western Australia, Retired, (Dec)
Probate Application No 4845/05

BETWEEN: MICHELLE LOUISE CHAPLIN As Executor of The Estate of ALICE ELIZABETH VILIPS
First Plaintiff
RAYMOND WEE HOCK TAN As Executor of The Estate of ALICE ELIZABETH VILIPS
Second Plaintiff
NEIL MONTEATH CHAPLIN
Third Plaintiff
AND
PAUL VILIPS
First Defendant
KRISS MATTHEW VILIPS
Second Defendant

Catchwords:

Succession - Wills, probate and administration - Declaration as to force and validity of a will - Grant of probate - Whether testatrix had testamentary capacity

Legislation:

Rules of the Supreme Court 1971 (WA), O 73 r 2

Result:

Grant of probate of the will dated 20 February 2004 in solemn form

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr R W H Tan
Second Plaintiff             :     Mr R W H Tan
Third Plaintiff                :     Mr R W H Tan
First Defendant              :     Mr L Chiat
Second Defendant         :     Mr L Chiat

Solicitors:

First Plaintiff                  :     Tan & Tan
Second Plaintiff             :     Tan & Tan
Third Plaintiff                :     Tan & Tan
First Defendant              :     DLA Phillips Fox
Second Defendant         :     DLA Phillips Fox

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

Crago v McIntyre (1976) 1 NSWLR 729
In the Will of Steward (decd) [1964] VR 179
Public Trustee v Kita [2004] WASC 38
Re Levy (decd) (No 2) [1957] VR 662
Timbury v Coffee (1941) 66 CLR 277
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439

JENKINS J: By originating summons dated 2 March 2006 the then plaintiffs, Michelle Louise Chaplin and Raymond Wee Hock Tan, sought an order that the caveat lodged, by the first defendant, Paul Vilips, on the estate of Alice Elizabeth Vilips (the deceased), be removed.
On 30 October 2006 a case management Registrar ordered that the action continue as if commenced by a writ of summons as an action for proof in solemn form of the last will of the deceased. The case management Registrar further ordered that the balance of the present parties be joined to the action.
On 14 May 2007, by agreement between the parties, the case management Registrar ordered that the plaintiffs have leave to enter the matter for trial on an undefended basis for proof in solemn form of the will dated 20 February 2004 of the deceased. Thus, the application before me is an undefended application by the plaintiffs for an order that the court pronounces for the force and validity of the will of the deceased which was executed on 20 February 2004, (the will), and a further order that probate be granted in solemn form in respect of that will.
The second-named first plaintiff, as the executor of the estate of the deceased, pursuant to the will, and indeed, pursuant to a latter will executed by the deceased in June 2004, has quite properly presented in his affidavit of scrips, evidence of a number of wills executed by the deceased over her lifetime.
The first defendant, who is a son of the deceased, has filed a defence in the action. In his defence he alleges that at the time the deceased executed the will the deceased was not of sound mind, memory and understanding. He alleges that this was due to the deceased being diagnosed with dementia in 2004; her suffering from periods of disorientation time and place; her memory being defective and untrustworthy; and her mind being so affected as to be unable to maintain a balance between the responsibilities relating to her property, and the objects of her bounty.
In that defence the first defendant requests the court to pronounce in favour of an earlier will of the deceased executed on 2 October 2003. Evidence of that will is contained in the first defendant's affidavit of scrips. The first defendant appears by counsel today. However, he does not appear to defend the application. This is because the parties have reached a compromise of this matter, including an agreement that the matter proceed today on an undefended basis.
Despite the absence of any person who opposes the orders sought by the plaintiffs it is necessary for me to be satisfied of the validity of the will before I make the orders sought by the plaintiffs.
The legal principles relevant to an application of this kind have been considered in a number of cases. Before I detail the relevant propositions of law I note that it is unnecessary for me to deal with propositions that relate to whether or not the will was validly executed. There is no dispute in this case that the deceased executed the will, which is in writing, in the presence of two witnesses. The real issue, if there is one, is the mental capacity of the deceased at the time she executed the will.
A will may be proved in common form or in solemn form. Proceedings for a grant of probate in solemn form are ordinarily commenced by writ pursuant to the Rules of the Supreme Court 1971 (WA) O 73 r 2. The orders of the case management Registrar mean that there is no problem arising from that procedure not being followed in this case.
Where the validity of a will is not contested the court will commonly pronounce the will in common form. Wills are pronounced in solemn form in a probate action where the main and generally the sole question for the determination of the court is whether a will is or is not either in whole or in part valid as a testamentary instrument.
In this case there has been an issue raised by the pleadings as to whether the will is valid as a testamentary instrument. As I have said, this is not because of issues relating to the execution of the will but because of issues related to the mental capacity of the deceased. Despite the fact that the challenge to the validity of the will is no longer pressed, it is appropriate for the will, if it is to be pronounced, to be pronounced in solemn form.
In saying this I take into account those legal principles which establish that except for limited exceptions a grant of probate in solemn form is irrevocable: Wheatley v Edgar[2003] WASC 118.
In respect to the way that I should approach this application, in Re Levy (decd) (No 2) [1957] VR 662, 665, Sholl J stated:
Nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought.
There is a presumption that the testator knew the contents and effects of the will. In In the Will of Steward (decd) [1964] VR 179, 185 it was said:
[I]n the absence of evidence to the contrary such an inference may be drawn from the mere fact that, a person of sound mind has duly executed a document declaring it to be his will.
There is also a reference to the presumption of capacity in Timbury v Coffee(1941) 66 CLR 277, 283 where it was said:
If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding.
Further, when opposition to a will has been withdrawn, the executor may proceed to prove the will by leading only evidence of due execution and such evidence as he may think proper with regard to capacity if he desires to rely on such evidence to reinforce the ordinary presumption as to capacity; In Re Levy 666.
In Worth v Clasohm(1952) 86 CLR 439, 453, the High Court said:
[A] residual doubt is not enough to defeat the plaintiff's claim to probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.
The plaintiffs also rely upon other legal principles that are outlined by Heenan J in Wheatley v Edgar. I have also taken these into account. Before a will can be pronounced as being a valid will it must be shown that a testator knew and understood how he left his property, or how he was going to leave his property, when he executed his will and he must also possess sufficient capacity to appreciate what his property was and to recognise the persons who had a moral claim upon him. He must also have a capacity to exercise a balance judgment as to such claims: Crago v McIntyre(1976) 1 NSWLR 729; Public Trustee v Kita[2004] WASC 38.
With these principles in mind I now turn to consider the evidence.
The evidence consists of the affidavits of the second-named first plaintiff sworn 2 March 2006 and 27 March 2007, the affidavit of the first-named first plaintiff sworn 2 March 2006, the affidavit of Yin Kwan Wong sworn 20 March 2007, the affidavits of Wayne Yu sworn 14 March 2006 and 21 March 2007, the affidavit of Alexander William Matthews sworn 20 March 2006, the affidavit of Susan Jackson sworn 20 March 2006, the affidavit of Neil Monteith Chaplin sworn 2 March 2006, the affidavit of Miranda Elizabeth Bresch sworn 28 June 2006 and the affidavit of Martina Britta Vilips sworn 5 July 2006. There are also affidavits of testamentary script sworn by the first-named first plaintiff on 20 November 2006 and the first defendant on 18 January 2007.
The evidence and the matters conceded in the pleadings establish that the deceased was born on 23 October 1938 and died on 27 September 2005. The deceased had been married but her husband, Carlos Vilips, predeceased her.
The deceased had a daughter, the first-named first plaintiff and two sons, the first and second defendants. The children of the deceased are all adults. The third plaintiff is the husband of the first-named first plaintiff and thus the son-in-law of the deceased.
There is no evidence that prior to 2003 the deceased suffered any problem that would have affected her mental capacity to make a valid will.
During her lifetime the deceased made a number of wills, these being dated 17 March 1988, September 1991, 27 March 1998, 2 October 2003, 20 February 2004 and 1 June 2004. The circumstances in which the deceased made the wills prior to 2003 are not known to me.
In the 1998 will, when I presume she had capacity to make a will, she gave her home which apparently was then situated at lot 60 Marsh Court, Jarrahdale to her trustee, the first defendant, to sell and divide the net proceeds of sale, 30 per cent to him and 70 per cent to her residuary estate. Her residuary estate was left to all her children, in equal shares. She left her jewellery to the first defendant.
In or around the beginning of 2004 the deceased and the first defendant apparently had a falling out over an allegation by the deceased that she had lent the first defendant approximately $115,000 and he had failed to repay it. She instructed her then solicitor, the second-named first plaintiff to commence an action in the District Court to recover the money.
The second defendant's wife, Martina Britta Vilips has deposed that between mid-2003 and March-April 2004 she observed that the deceased was at times confused and behaved in an irrational and uninhibited manner. Without being able to place dates on the events, she has deposed that the deceased would sometimes place uneaten, cooked meals in cupboards, walk around her house without clothes on and on one occasion urinated in public. She said that she sometimes said things out of context. No other deponent corroborates this evidence.
Alexander William Matthews is the deceased's brother. He has deposed that in the 12 months leading up to February 2004 he discussed with the deceased the contents of her will. He was aware that the relationship between the deceased and the first-defendant was at that time poor. He deposed that in Christmas 2003 the deceased told him that: first, she intended to leave part of her estate to the third plaintiff because of the bookwork and financial work he had performed for her over the years and secondly, of her then disgust for the first defendant over the non‑repayment of the money she had lent him, the condition of her home in which he was then staying and his refusal to allow her to see his son, her grandson.
Mr Matthews advised the deceased to leave a nominal sum of $10 in her will to the first defendant to indicate that she had considered him in the distribution of her estate. Mr Matthews's de facto wife, Susan Jackson corroborates this evidence.
In February 2004 the deceased instructed Mr Tan, the first-named first plaintiff to prepare a will for her. Mr Matthews and Ms Jackson accompanied the deceased to Mr Tan's offices on 20 February 2004 so that she could sign the will. Mr Matthews and Ms Jackson are both of the view that at that time she was competent in that she appeared to understand the effect of the will that she was to make on that date, the property she had to dispose of and the persons who may be appropriate beneficiaries of her estate.
The deceased also spoke to three legal practitioners at Mr Tan's office. They were Mr Tan, Dr Robert Wong and Wayne Yu. The first two persons spoke to the deceased about her testamentary wishes and satisfied themselves that the deceased understood the estate that she had to dispose of, the persons she wished to benefit, the extent of that benefit and that she had given consideration to the people who would in the ordinary course be expected to be beneficiaries pursuant to the will.
Mr Tan has deposed that the deceased did not display the odd behaviour that Martina Vilips has given evidence of in her affidavit. He says that the deceased was very clear as to her wishes and in particular to the manner in which she wished to benefit the first defendant. The evidence of Mr Tan is corroborated by Dr Wong who is not only a legal practitioner but a registered medical practitioner.
The will was then signed by the deceased at the offices of Mr Tan on 20 February 2004.
In the will, the deceased left the sum of $100 to Carlos Vilips. As will become clear, this was a misnomer and the deceased, apparently, intended to leave this sum to the first defendant. Carlos Vilips is the name of her husband who had predeceased her.
The deceased left the residue of her estate to her trustees, Mr Tan and her daughter, Mrs Chaplin, the first‑named first plaintiff to distribute in equal shares to Mrs Chaplin, her son-in-law, Mr Chaplin and her other son, the second defendant. Thus, by this will the first defendant who had been the major beneficiary under the 2003 will was effectively excluded as a beneficiary and Mr Chaplin was included for the first time as a substantial beneficiary.
On 31 March 2004 the deceased commenced an action in the District Court against the first defendant. Mr Tan had to see the deceased on a number of occasions in order to take instructions from her and represent her. The action in the District Court, was settled by consent orders. I do not know the date or the details of the settlement.
On 21 May 2004 the deceased was admitted to Fremantle Hospital and diagnosed with pulmonary emboli and associated right heart failure. She consequently had low oxygen levels. She was later diagnosed with a bacterial infection requiring intravenous antibiotics. She was discharged from hospital on 18 June 2004.
Her hospital notes indicate confusion and lack of orientation usually manifesting as a degree of lack of cooperation with nursing staff. On 31 May she was noted as 'vague, disoriented and inappropriate'.
On 4 June she refused to shower and was incontinent. She was noted to be alert and orientated on that date but when questioned was 'not always appropriate'. Her oxygen levels improved over the course of her stay and after 9 June there was further reference in the notes to the deceased being disoriented. By the time she was discharged she was assessed as being capable of looking after herself.
Whilst in hospital the deceased contacted Mr Tan and told him that the name of her deceased husband had inadvertently been inserted into the will instead of the first defendant's name. She gave instructions to alter the will. Mr Tan gave these instructions to Mr Yu who took a new will to the deceased in hospital where she signed it on 1 June 2004.
The only difference between the February and June wills was the substitution of the first defendant's name for that of the deceased's former husband. Mr Yu has deposed that the deceased was oriented and appeared to understand the effect of the change she was making to her will. However, it is clear that Mr Yu did not spend much time with the deceased and he was also influenced in his view of the mental capacity of the deceased by the presence of a doctor who did not suggest to him that the deceased was not capable of executing the June will.
A report has subsequently been received from a Dr Courtney who treated the deceased during a latter period of her life when she was diagnosed with dementia. Dr Courtney has reported that her conclusion is that, in respect to the will made on 1 June 2004, the deceased was suffering from a delirium at that time and it is unlikely that she had the capacity to make a valid will.
She makes no such comment in respect to the February will. In fact she says that at that time she had not seen the deceased and had no first‑hand information about her condition. She also said that there is no information in the Fremantle Hospital notes about the deceased's condition at that time.
It seems that on her release from hospital on 18 June the deceased went to live in a retirement village. On 2 October 2004 the deceased was readmitted to hospital and diagnosed with dementia with Lewy Bodies. It is unnecessary for me to go into the details of that diagnosis. It is sufficient for me to note that that resulted in her being confused, suffering from visual hallucinations and delusions.
There is no doubt that by this stage she was not capable of making a valid will. However, that is really irrelevant as she did not make a will at that time. As I have said, the deceased died on 27 September 2005.
The plaintiffs do not ask me to pronounce the validity of the June 2004 will. This is wise as the evidence of her mental state as at June 2004 satisfies me that the deceased did not have the capacity to make a valid will at that time. I would not declare the validity of the June 2004 will.
As to the deceased's capacity as at February 2004, the only evidence which may rebut the presumption that the deceased was of competent mind and understanding at the time she made it, is the evidence of Martina Vilips. There is evidence from other witnesses, namely Mr Matthews, Ms Jackson, Mr Tan, Dr Wong, Mr Yu and Mrs Chaplin to the effect that at that period of time the deceased was quite rational and that she positively understood the nature and contents of the will.
The medical evidence contained in Dr Courtney's report is to the effect that prior to October 2004 and prior to June 2004 the deceased 'may well have had capacity', when she was not confused due to her underlying problems. Dr Courtney suggests that the confusion seen during the admission in May-June 2004 may have been 'one of the early manifestations of the dementia syndrome'. This comment indicates to me that it is quite possible that the deceased did not have symptoms of dementia in February 2004.
The will on its face is quite rational. The only significant changes in the will from the earlier 2003 will, was to effectively delete the first defendant and add her son-in-law as a beneficiary. These changes would not of themselves indicate a lack of competence to make a will.

Further, there were apparently rational reasons for the deceased to make these changes. She had fallen out with the first defendant, and she wanted to thank Mr Chaplin, her son-in-law for the efforts he had made on her behalf. I also take into account that these were not changes that she made on the spur of the moment. She discussed the changes between her 2003 will and the will with her brother and his de facto wife at least two months earlier.
Taking all these matters into account I have decided the evidence of Ms Vilips is not such as to displace the presumption to capacity to make a will. The presumption of capacity to make a valid will as at February 2004 is bolstered by the evidence of the other witnesses to which I have referred. I am satisfied that, in respect to the will, the deceased knew and understood how she wished to leave her property. I am also persuaded that she possessed sufficient capacity to appreciate what her property was, to recognise the persons who had a moral claim upon her and had the capacity to exercise a balanced judgment as to such claims.
I am thus satisfied that the deceased was of sound mind and judgment at the time she executed the will of 20 February 2004. I am prepared to grant the orders as sought by the plaintiffs. I will hear the parties as to final orders.