Monks v Monks - [2019] WASC 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MONKS -v- MONKS [2019] WASC 16
CORAM:   MASTER SANDERSON
HEARD:   25 - 26 OCTOBER 2018
DELIVERED          :   7 FEBRUARY 2019
FILE NO/S:   CIV 1407 of 2017
BETWEEN:   WAYNE JOHN MONKS
Plaintiff
AND
KIMBERLEY MONKS
First Defendant
STUART KIMBERLEY MONKS
Second Defendant
JULIE YUSOP
Third Defendant
ROBERT MONKS
Fourth Defendant
DIANA GAYE NICOL
Fifth Defendant
JENNIFER MONKS
Sixth Defendant
DARREN WAYNE MONKS
Seventh Defendant
DAVID IAN COOMBES
Eighth Defendant
SIR CHARLES GAIRDNER HOSPITAL
Ninth Defendant
THE CAT HAVEN
Tenth Defendant
THE SHENTON PARK DOGS HOME
Eleventh Defendant
RSPCA WA INC
Twelfth Defendant
THE SWAN ANIMAL HAVEN INC
Thirteenth Defendant
THE ROYAL SOCIETY FOR THE BLIND
Fourteenth Defendant
WA STROKE FOUNDATION (INC)
Fifteenth Defendant
THE WILDERNESS SOCIETY INC
Sixteenth Defendant
THE ANIMAL PROTECTION SOCIETY OF W.A. INC
Seventeenth Defendant
SARAH PRINGLE
Eighteenth Defendant
HARRY PRINGLE
Nineteenth Defendant
RYAN PRINGLE
Twentieth Defendant
OAY MONKS
Twenty-First Defendant

Catchwords:

Probate - Claim testator lacked capacity when will signed - Turns on own facts

Legislation:

Nil

Result:

Declaration testator lacked capacity

Category: B

Representation:

Counsel:

Plaintiff	:	Mr D F Beere
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	In person
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance
Seventeenth Defendant	:	No appearance
Eighteenth Defendant	:	No appearance
Nineteenth Defendant	:	No appearance
Twentieth Defendant	:	No appearance
Twenty-First Defendant	:	No appearance

Solicitors:

Plaintiff	:	Latro Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	In person
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance
Seventeenth Defendant	:	No appearance
Eighteenth Defendant	:	No appearance
Nineteenth Defendant	:	No appearance
Twentieth Defendant	:	No appearance
Twenty-First Defendant	:	No appearance

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

Sawyer v McKenzie [2011] WASC 215

MASTER SANDERSON:

This is a probate action. The plaintiff seeks essentially a declaration that a will made by Bethel Patricia Monks (the deceased) is invalid due to the deceased not having testamentary capacity at the time it was made. The only defendant who appeared at trial of the action was the eighth defendant who I will refer to as Mr Coombes. All of the other defendants either did not enter an appearance or indicated they would abide by the decision of the court. Mr Coombes represented himself at the hearing and in the conduct of the trial and in preparation of these reasons I have made due allowance for that fact. That said Mr Coombes had a clear understanding of the issues in the case and presented his arguments with some care and skill.
It is appropriate to start with the pleadings. By a further amended statement of claim filed 27 January 2018 the plaintiff pleads the deceased died on 25 April 2016. Reference is then made to three wills. The first was made 8 December 2011. The second was made 13 August 2014. The third will was dated 21 December 2015. There is no doubt that when the first two wills were made the deceased had testamentary capacity. It was the plaintiff's position that the 2014 will revoked the 2011 will. That position was not contradicted by Mr Coombes and is clearly correct.
It was the plaintiff's position that there was a presumed revocation of the 2014 will. In making this submission counsel relied upon the decision of E M Heenan J in Sawyer v McKenzie [2011] WASC 215. His Honour said at [41]:
In this situation, I consider that the observations of Murphy J in Re Grey Smith [1978] VR 596 apply with appropriate adaptations to the situation where, as in this case, the claimant is seeking letters of administration, and where there is doubt about the existence or validity of a former testamentary document which could not be found. As I observed in Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [2010] WASC 301, with appropriate adjustments to the circumstances of this case, the counterclaiming defendant has disclosed to the court and to all beneficiaries entitled under it the existence of the July 1996 will and a copy of that testament has been produced to the court. The executor named in that will is a party to these proceedings and all the residuary beneficiaries are on notice of them, as appears from the fact that they are parties to the deed of family arrangement. Neither the plaintiff nor any of those beneficiaries now wishes to propound that will or to oppose the application for letters of administration. All the circumstances support the existence of a well founded suspicion as to lack of effect of the July 1996 will because of presumed revocation and, as all concerned were on notice of these matters, I do not consider that it is necessary or appropriate for the court to carry the issue of the presumed revocation of that will any further than the decision of the parties themselves.
Mr Coombes did not allege that the 2014 will had not been revoked. It was his position the 2015 will was a valid testamentary document. In the circumstances it has to be concluded that the parties agreed the 2014 will had been revoked. That being the case and in conformity with the reasoning of E M Heenan J that position can be accepted and there is a presumed revocation of the 2014 will.
Insofar as it is necessary to do so I will therefore make declarations to the effect that the 2011 and 2014 wills of the deceased have been revoked.
That then leaves the 2015 will. It was the plaintiff's case this will was invalid because at the time of making the will - that is December 2015 - the deceased lacked testamentary capacity. Particulars of that lack of testamentary capacity are set out in par 12 of the further amended statement of claim. They are as follows:
12.At the time of the execution of the December 2015 Will the deceased was not of sound mind, memory and understanding and did not know and understand the contents of the December 2015 Will.
Particulars of lack of sound mind, memory and understanding
a.The deceased was 92 years of age;
b.The deceased was physically frail and needed assistance with self care, mobility, health care tasks, preparation of meals and interacting with the community;
c.In April 2015 the deceased had an ACAT Assessment at which assessment she scored 7/10 on an abbreviated mental test;
d.From, at the latest August 2015, the deceased suffered from confusion and regular short term memory problems;
e.On 28 September 2015 the deceased was admitted to Sir Charles Gairdner Hospital (SCGH) emergency department with delirium;
f.On 29 October 2015 the deceased was transferred to Osborne Park Hospital with non‑alcoholic delirium including hallucinations along with congestive cardiac failure, ischaemic heart disease, functional decline and malnutrition;
g.In November 2015 the deceased had an ACAT Assessment during which she undertook two Montreal Cognitive Assessment tests (MOCA tests) resulting in a score of 10/30 and then 13/30 and with her main difficulties being memory recall, confusion and a lack of insight into her health; and
h.The deceased was, after her release from hospital, at the time of executing the December 2015 Will, dependent on assistance in her activities of daily living.
By par 13 of the further amended statement of claim the plaintiff appears to allege undue influence. This claim was not pursued during the course of the trial and was abandoned by counsel in his closing address. That concession was properly made. There was no evidence at all that Mr Coombes in any way unduly influenced the deceased so that the terms of the will did not reflect her actual wishes. Paragraph 13 specifically refers to Mr Coombes and in the interests of fairness I should make it plain there was really no suggestion that he was anything other than a loyal carer for the deceased.
In due course I will detail the evidence led by the plaintiff about matters referred to in the particulars. At this point it is enough to note the evidence supported each of the particulars given. So the real question was whether given those findings of fact it could be concluded the deceased lack testamentary capacity. In determining that question a number of issues arose. They can be summaries as follows:
(1)Given the evidence supports the pleaded particulars, did that establish that as at December 2015 the deceased lacked testamentary capacity?
(2)Was the evidence of Mr Coombes, who cared for the deceased on a daily basis, that she had testamentary capacity decisive?
(3)Did the medical evidence which was to the effect that the deceased lacked testamentary capacity as at December 2015 determinative of the question?
(4)If the answer to question 3 was no, would the issues raised by the particulars taken together with the medical evidence establish the deceased did not have testamentary capacity in December 2015.
For the sake of completeness I should mention the defence filed by Mr Coombes on 28 June 2017. The pleading was filed in response to an earlier version of the statement of claim and was not amended after the further amended statement of claim was filed. By par 5 of the defence Mr Coombes pleads the deceased did take two Montreal Cognitive Assessments and scored 10/30 and 13/30. He then says by par 6:
Montreal Cognitive Assessments are a tool for measuring cognitive impairment. A score of 26/30 is considered normal, a score of 22 indicates a mild cognitive impairment and a score of 16 indicated the patient suffers from Alzheimer's disease.
Mr Coombes goes on to plead that in fact the deceased was not suffering 'mental illness' although he gives no particulars to justify that conclusion. What he does say (by par 8) is that the day she undertook the tests she was unwell and frustrated with intrusions into her life. It was his position that would explain the results that were obtained. The only plea of testamentary capacity to be found in the defence is par 10 which reads as follows:
Evidence of sound mind of the deceased at the time of the preparation of the December 2015 will is demonstrated by the fact that the deceased was aware of the changes in property values at the time and amended her will to reflect the changed value of her estate.
Turning then to the evidence, the plaintiff swore three affidavits, the first on 16 June 2017, the second on 29 September 2017 and the third on 17 January 2018. The first and third of these affidavits can be put to one side. The first concerns only service of the writ on various defendants. The third deals with the whereabouts of the 2014 will and that is not an issue in these proceedings.
The second affidavit identifies the plaintiff as the nephew of the deceased. The plaintiff is a retired accountant who worked mainly in rural Western Australia. He maintained a relationship with the deceased by visiting her from time to time when he was in Perth. He returned to live in Perth in 1991 and he visited the deceased approximately every three weeks. He spoke with her by telephone every week or two and occasionally visited her at home and took her out for a meal.[1] He was aware that the deceased attended the Dalkeith Medical Centre but up until 5 September 2015 he appears to have had no particular concerns about her mental condition.
[1] Affidavit of Wayne John Monks sworn 29 September 2017 pars 6 – 7.
On 5 September 2015 he received an email from Annie Murtagh‑Monks, the wife of the first defendant - the first defendant being a nephew of the deceased. The email appears as attachment WJM‑04 to the plaintiff's affidavit. The email recounts a phone call Ms Murtagh‑Monks had received from Dr Linley Mitchell. Dr Mitchell along with Dr David Flynn, was a general practitioner who saw the deceased from time to time. Ms Murtagh‑Monks said Dr Flynn expressed some concerns about the deceased's mental condition and suggested an ACAT assessment. Dr Flynn also suggested the deceased might need transfer to a nursing home. Ms Murtagh‑Monks then went on to detail a visit she had with the deceased which suggested the deceased was having memory difficulties.
The plaintiff responded to that email the following day. He detailed his recent contact with the deceased and mentioned he had recently visited the deceased in the company of his own mother and father. Dealing with the deceased's mental condition he said:
To us Pat's mind seemed okay but I will contact her Dr anyway and discuss the concerns below with him.[2]
[2] Attachment WJM‑05 to affidavit of Wayne John Monks sworn 29 September 2017.
There is nothing in the plaintiff's evidence which would support a conclusion as at December 2015 regarding the deceased's lack of mental capacity. Given the limited contact he had with the deceased the plaintiff was not really in any position to draw conclusions from his own observations. The quote above from his email to Ms Murtagh‑Monks really sums up his evidence. He was aware the deceased was aging, was frail and her capacity was declining. He was not convinced she was ready for aged care and he certainly did not find her to be significantly cognitively impaired.
The plaintiff was cross‑examined by Mr Coombes but nothing emerged from that cross‑examination which advanced the position one way or the other. In reaching a conclusion in this matter I have taken into account the fact the plaintiff observed some deterioration in the deceased's overall state of health but had not concluded that she was of limited intellectual capacity or that she required nursing care.
The plaintiff relied on an affidavit of Dr Mitchell sworn 13 September 2017. Attached to that affidavit is a letter dated 15 August 2017 prepared by Dr Mitchell.[3] She says she was Ms Monks' general practitioner from 22 May 2013 until 14 August 2015. Dr Mitchell practises at the Claremont Medical Centre. She says she became aware the deceased was confused around 14 August 2015 when the deceased came in for an injection which had been administered a month earlier by Dr Flynn at the Dalkeith Medical Centre. It was subsequent to this visit Dr Mitchell contacted Ms Murtagh‑Monks by telephone on 3 September 2015. Dr Mitchell says she never administered a test to the deceased to ascertain whether she suffered from dementia. Dr Mitchell concludes her letter as follows:
I was not her treating GP on 21 December 2015 when she made her will but I think she was suffering from dementia in August 2015.
I do not think she would have had testamentary capacity in December 2015.
[3] Attachment LM‑01 to affidavit of Dr Linley Mitchell sworn 13 September 2017.
Dr Mitchell was cross‑examined by Mr Coombes but did not in any way qualify or alter her evidence. Clearly this evidence supports the plaintiff's case. Dr Mitchell impressed as an experienced and competent general practitioner who deals with elderly patients on a regular basis. She was not able to rely on any empirical testing to justify her conclusion the deceased suffered from dementia as of August 2014. But the clinical observations of a seasoned professional must carry great weight when all of the evidence is weighed in the balance.
Further medical evidence was led from Dr Flynn. Dr Flynn swore an affidavit dated 23 August 2017. He attaches to his affidavit a letter dated 22 July 2016 addressed to the plaintiff's solicitors.[4] Dr Flynn says that at no time did he undertake any cognitive testing of the deceased. He does recount the incident in August 2015 when the deceased presented at the Claremont Medical Centre after he had given her an injection a month earlier. He also recounts the deceased's admission to Osborne Park Hospital on 29 October 2015 and her discharge on 17 November 2015. He notes the ACAT assessment which was undertaken and the results of the cognitive testing administered as part of that assessment. He concludes his letter as follows:
In view of the above sufficient doubt exists regarding Ms Monks' cognitive abilities and I am unable to confirm she would have had the requisite cognition to make a valid will as at 21 December 2015.
[4] Attachment DF‑01 to affidavit of Dr David Flynn sworn 23 August 2017.
The comments above I made in respect of the assessment of Dr Mitchell apply equally to the assessment made by Dr Flynn. Again an experienced medical practitioner has assessed the deceased only by observation in a clinical setting. His views must be accorded great weight.
Other evidence was led on the part of the plaintiff - various affidavits being admitted into evidence with two of the deponents being cross‑examined. Really nothing of significance emerges from this evidence. The plaintiff's case rests squarely on the evidence of Dr Mitchell and Dr Flynn and on the evidence of testing undertaken as part of the ACAT process. Overlaid with that evidence is the picture of an elderly woman whose capacity was gradually declining. While the hospital admission in October/November 2015 was not directly associated with any declining mental capacity it was clear evidence her health was failing. The picture painted by the plaintiff was to the effect that by 15 December 2015 the deceased simply did not have the mental capacity to properly understand any will she may have signed.
Evidence was given by Mr Coombes. He swore two affidavits, the first dated 6 June 2018, the second dated 13 July 2018. Much of Mr Coombes' evidence is argumentative. However it is clear the deceased and Mr Coombes had a close relationship. They first met in 2009 when Mr Coombes was attending the deceased's residence to do odd jobs. He became a regular helper assisting her one day a week. In November 2015 he took up full time residence in her home. On that basis at least it must be accepted Mr Coombes had the perfect opportunity to observe the deceased at close quarters and to make his own assessment of her mental capacity.
Mr Coombes makes it plain he had no doubt the deceased had the capacity to know and understand what was in her will. That emerges from a reading of his affidavit as a whole rather than any particular statement. However at par 30 of his first affidavit Mr Coombes notes that between December 2015 and April 2016 the deceased explained to him reasons why she had made various amendments to her previous will. By implication at least - and perhaps even expressly - Mr Coombes points out the deceased not only knew what was in her will but was able to explain why the will was drafted in the way it was. That, he suggests, shows clearly she had the requisite mental capacity. Mr Coombes was an impressive witness. He dealt competently with a fair but pointed cross‑examination. Taking his evidence as a whole and making due allowance for the fact the affidavits were not drafted by a lawyer I accept that he firmly believed the deceased had testamentary capacity. Moreover, there can be no suggestion he was motivated by anything other than ultraism in assisting and caring for the deceased. During the course of cross‑examination he explained he was comfortably placed and the benefit he was to receive in the deceased's 2015 will would not make any real difference to his lifestyle. He said, and I accept, he was opposing the plaintiff's application on the basis that he believed the 2015 will actually represented the wishes of the deceased and he wanted to see those wishes realised.

The defendant also relied on an affidavit of Stefano Rando sworn 11 October 2018. Mr Rando is a very experienced solicitor and his practice seems to focus on wills and probate. He first met the deceased in August 2014 when she attended his offices with Mr Coombes. The deceased provided instruction for her will. A copy of those instructions appears as attachment SR1 to his affidavit. By par 8 of his affidavit Mr Rando says:
To establish her capacity to instruct me I engaged the deceased in conversation during which she told me that she had not been married, had no children and had worked as a registered nurse. The deceased spoke clearly, had good eye contact and was able to give clear and precise answers to whatever I asked of her.
The will was duly prepared and the deceased and Mr Coombes attended Mr Rando's office so the will could be signed. About this meeting Mr Rando says (par 14):
Prior to me meeting with the deceased on 13 August 2014 the deceased and Mr Coombes spent time in an adjoining office during which the deceased read the will and indicated to my secretary and myself she was happy with its contents.
Mr Rando next had contact with the deceased on 24 February 2015. She attended his office and instructed him to make a new will for her. Mr Rando prepared the will in line with the deceased's instructions. However, it appears that will was never signed. Mr Rando has no record of the deceased attending to sign this will nor does he have a signed copy of the will. Quite what took place is unclear. What can be said is there was never any will which reflected the instructions given on 24 February 2015.
Mr Rando did see the deceased again on 17 August 2015. She attended his office on a matter which had nothing to do with a will. The next time he saw the deceased was on 14 December 2015 when she gave him instructions to prepare what became her last will. Again she attended with Mr Coombes. She also instructed Mr Rando to prepare an enduring power of attorney and enduring power of guardianship in favour of the plaintiff.
Mr Rando prepared the new will and the deceased attended at his office on 21 December 2015 in the company of Mr Coombes. Mr Rando says (par 22):
The deceased was placed in an adjoining office where she read all three of those documents. She indicated to my secretary and later to myself she was happy with the contents of those documents. She was then ushered into my office and in the presence of my secretary … she signed all three documents and myself and [my secretary] placed our names as witnesses.
Mr Rando concludes his affidavit with the following (par 24):
In the time I knew the deceased from 6 August 2014 to 21 December 2015 I did notice a minor deterioration in the deceased's general presentation however, in my dealings with the deceased in December 2015 I remained of the opinion that she still had the necessary capacity to make a Will.
Counsel for the plaintiff cross‑examined Mr Rando and put it to him that the way in which he had gone about taking instructions and the circumstances in which the will was signed did not allow him to make any assessment of the deceased's capacity to know and understand the contents of the will. Mr Rando hotly denied that was the case. He pointed out he was very experienced in interviewing testators and he felt that experience allowed him to make an assessment of the capacity of the individual concerned. He saw nothing wrong with the process he had adopted prior to the will being signed. It was put to him by counsel first, it was inappropriate to have Mr Coombes and the deceased read through the contents of the will without anyone present and second, that not actually reading the contents of the will to the deceased to ensure she understood its provisions was inappropriate. Not surprisingly Mr Rando rejected both suggestions.
In his closing submissions counsel for the plaintiff was highly critical of Mr Rando. He submitted any solicitor who was taking instructions from an elderly frail individual should obtain medical advice as to whether or not the testator was capable of making a will. Leaving that to one side he further submitted not reading the will to the testator and ensuring she understood its contents was poor practice. He further submitted that the presence of Mr Coombes, while it may not have influenced the deceased, should have alerted Mr Rando to the need for extra care given Mr Coombes was a beneficiary of the will.
It is not my role in these reasons to set out what best practice might be for taking instructions for a will from an elderly client. What I have to determine is whether the way Mr Rando went about taking instructions allowed him to make a fully informed assessment as to whether or not the deceased had testamentary capacity. On balance I am not satisfied Mr Rando's approach allows me to conclude the deceased did have such capacity. Mr Rando had no way of knowing whether, when the deceased and Mr Coombes were in an adjoining office reading the will, the deceased demonstrated a clear understanding of the contents of the will and how it would operate. Mr Coombes says she did have such an understanding and that direct evidence must be accepted at face value. But it cannot be confirmed by Mr Rando because of the approach he adopted.
It must be acknowledged that Mr Rando did take instructions and in the course of doing so he necessarily interacted with the deceased. Nothing in that interaction suggested to him she lacked capacity. Moreover he had seen her in August 2014, February 2015 and August 2015 before he took instructions in December 2015. In other words he had the chance to observe the deceased over a period of time. He says while he noted a limited physical decline there was nothing to suggest she was mentally incapacitated. But that is as far as his evidence goes.
To summarise then, on the part of the plaintiff, there is the medical evidence of Dr Mitchell and Dr Flynn and the assessment of mental capacity undertaken as part of the ACAT assessment. All of that suggests a lack of testamentary capacity as at December 2015. On the other hand there is the evidence of Mr Coombes as supplemented by the limited evidence of Mr Rando. It is a matter of weighing all of this evidence in the balance.
In the end I am satisfied that the deceased did lack mental capacity. The crucial evidence is the empirical assessment on the Montreal Cognitive Assessment. These tests cannot simply be explained away by suggesting the deceased was unwell or uncooperative when the tests were administered. These are well recognised empirical diagnostic tools and great weight must be given to their results. Once that is added to the evidence of experienced clinicians the conclusion the deceased lacked capacity as at December 2015 is in my view irresistible.
Accordingly, I will make a declaration that the 2015 will is of no force and effect. That will result in an intestacy, an outcome which, I accept, is to be avoided if at all possible. In my view there is no other alternative given the facts of this case.
I will hear the parties as to the precise form of orders and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson
7 FEBRUARY 2019