Mott v Hill
[2021] WASC 43
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MOTT -v- HILL [2021] WASC 43
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS
DELIVERED : 19 FEBRUARY 2021
FILE NO/S: CIV 1529 of 2020
BETWEEN: TERENCE HAROLD MOTT
Plaintiff
AND
PAMELA ANN HILL
First Defendant
JULIE MARIE ZENOBY
Second Defendant
PAMELA ANN HILL
JULIE MARIE ZENOBY
Plaintiff by counterclaim
TERENCE HAROLD MOTT
Defendant by counterclaim
Catchwords:
Wills - Probate - Proof in solemn form - Whether threshold met to make a grant in solemn form - Letters of Administration - Turns on own facts
Legislation:
Wills Act 1970 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Plaintiff by counterclaim | : | No appearance |
| Defendant by counterclaim | : | No appearance |
Solicitors:
| Plaintiff | : | Haynes Robinson |
| First Defendant | : | Formbys Lawyers |
| Second Defendant | : | Formbys Lawyers |
| Plaintiff by counterclaim | : | Formbys Lawyers |
| Defendant by counterclaim | : | Haynes Robinson |
Case(s) referred to in decision(s):
Fairclough v Cvitan [2019] WASC 370
The Public Trustee v Nezmeskal [2018] WASC 394
Timbury v Coffee (1941) 66 CLR 277
Wheatley v Edgar [2003] WASC 118
KENNETH MARTIN J:
Introduction
This is the plaintiff's application by amended statement of claim dated 26 October 2020 (ASOC) seeking that the court make orders pronouncing the force and validity of the Will of his later mother, Noreen Patricia Mott dated 11 July 2018 (the Will).
By his ASOC, the plaintiff also seeks further orders granting, and that the Probate Registrar be directed to so grant, letters of administration to Mr Ian Torrington Blatchford in respect of the Will.
This application comes before me essentially uncontested, following what appears to have been a successful mediation outcome conducted before a Registrar of this court.
Given the uncontested status, it is unnecessary to advance too far into the history of this matter. However, for some level of context I will note that initially the defendants (the plaintiff's sisters) had contested the application and in fact had pursued a counterclaim against the plaintiff - seeking that an earlier will of their mother instead be pronounced as in force and valid. However, following mediation, the ASOC was filed and the defendants have all filed a notice to abide by the decision of the court upon the plaintiff's claim under the ASOC.
I will also note that Mr Blatchford has provided his consent to the court that letters of administration of the Will be granted to him.
Following all these events, the plaintiff's application was ordered to be determined on the papers by affidavit evidence. I now determine the application accordingly.
The plaintiff formally seeks the orders he does since prior to the commencement of the proceedings, the defendants had said that they were not satisfied the testator (Mrs Mott) knew of and approved the contents of the Will. However, the plaintiff submits that this Will was compliant with s 8 of the Wills Act 1970 (WA) and thus is a valid will. For the reasons that follow, I am satisfied by all the evidence now before me that the Will is indeed valid, and that the testator, Mrs Mott, held sufficient legal capacity to make the Will and knew and that she knew of and was satisfied with its contents.
Background
The late Noreen Patricia Mott (nee Clancy) was born on 9 July 1924 in Dumbleyung, Western Australia. She died at the age of 95 on 28 November 2019 at Redcliffe, Western Australia (see affidavit of Terence Harold Mott sworn 26 November 2020 ((Mott affidavit)), THM8).
At the time of her death, Mrs Mott was a widow, having survived her husband John 'Jack' Gilbert Mott who had died in 1949. She and Jack had four children, Mervyn John Mott, Pamela Ann Hill (the first defendant), Terence Harold Mott (the plaintiff) and Julie Marie Zenoby (the second defendant).
Over the years preceding her death, Mrs Mott had executed several will instruments, respectively of 10 May 2010 and 18 June 2014 (see affidavit of scripts of Terence Harold Mott sworn 3 June 2020, exhibits A and B).
The Will
Content
The Will (of 11 July 2018) is found attached to the Mott affidavit, at THM1.
By the terms of the Will, Mrs Mott appointed Rebecca Maia Walker, solicitor, and Patricia Mary Wallis, Mrs Mott's friend, as her joint executors and trustees and she directed that they be paid their usual professional fee out of the estate (cl 1 - 2).
On the evidence before me, Ms Walker and Ms Wallis have both renounced their right and title to seek probate (Mott affidavit, par 5) of the Will - hence Mr Blatchford's foreshadowed involvement in this action.
Mrs Mott, by her Will, made certain bequests of her estate, requesting as well that her executor(s) have regard to any lists she may have left designating the smaller items in her estate (cl 3).
Under cl 4, Mrs Mott made a devise of her whole right, title and interest in her property in Shelley, Western Australia, to the plaintiff. Mrs Mott also left the plaintiff various white goods (cl 5).
The residue of Mrs Mott's estate was left in equal shares to be shared as between the plaintiff and his sisters, namely the first defendant and second defendant (cl 6). This was made a subject of the discretionary powers given to the executor(s) pursuant to cl 3.
The Will also provided a coherent explanation as to why the first defendant, second defendant and Mervyn received either lesser gifts or no gift at all under the Will (cl 7 - 9).
By cl 10, Mrs Mott provided that if any of her children predeceased her, then their children (her grandchildren) should then take their parent's share of the inheritance, to be held on trust until they turn 21 years old.
The final clause in the Will conveyed Mrs Mott's wishes regarding her funeral and cremation (cl 11).
Preparation
Given that there has been some earlier contention, now quelled, that the Will may not be valid in accord with s 8 of the Wills Act, I will set out in some detail below the evidence before me as to the events surrounding the execution of the Will.
The Will was prepared by a local law firm, Kitto & Kitto.
Attached to the Mott affidavit at THM7 is an undated, unsigned file note document titled 'File Note - Instructions for Single & Simple Will Noreen Patricia Mott 10 July 2018 at 10am' (file note). It is related in the Mott affidavit that this document is a file note prepared by Kitto & Kitto following an appointment by a lawyer with Mrs Mott, prior to the preparation of the Will. Although the document does not explicitly state who it was prepared by, nor the date of preparation, given its content and the other surrounding documentary evidence before me, I am satisfied that it is in fact a file note prepared by Ms Walker, a lawyer employee of Kitto & Kitto, likely in the afternoon of 10 July 2018. I will turn to that surrounding evidence shortly.
The file note explains that '[t]his morning' (suggesting that the file note was prepared the afternoon of the same day), the writer attended the Aegis Retirement Village in Redcliffe to meet with Mrs Mott. The purpose of that meeting is said to be to prepare a simple will. The writer notes that they had met with Mrs Mott's son Terry (presumably a reference to the plaintiff), and her nephew Stan the day before. They informed the writer that Mrs Mott wished to prepare a new will as she was not happy with the one she had currently.
The file note goes on to recount the events of the meeting. The writer had asked Mrs Mott some questions to obtain personal information. The file note provides some commentary upon Mrs Mott's answers.
Mrs Mott is recorded as having told the writer about her children, which is all recounted by the file note. The information provided about her children coalesces with the information as was ultimately included in the Will (cl 7 - 9). Peppered through the file note are anecdotes and verbatim quotes recorded. For example, whilst discussing one of her daughters, the file note reads that the daughter (Mott affidavit, THM7 at page 17):
… spends her time giving talks and 'preaching'. Noreen says that she never really told her what she does for a living, Noreen says 'she tells women how to run their lives when she can't run her own life'.
The file note continues to record that Mrs Mott had explained, at some length, why she did not want the first and second defendant, who were at the time her Enduring Power of Attorney and Guardianship and executors of the then will, to be her attorneys and guardians under her new will.
The file note explains that the writer had worked through a copy of the 2014 will with Mrs Mott, taking instructions upon each clause. It is recorded that Mrs Mott said she did not want the first and second defendants to be her executors. After the discussion, Mrs Mott selected the writer and Ms Wallis to be her executors. This fact essentially confirms that the writer of the note is Ms Walker of Kitto & Kitto.
The file note then deals with the proposed division of Mrs Mott's estate. The note provides information on the discussion that ensued as to how Mrs Mott's estate would be divided and the legal advice provided to Mrs Mott concerning the way she had related that she had wished to divide the estate as between her children.
The file note records that the only health concern of Mrs Mott was her diabetes, and that she had said that no doctor has said anything to her about any other health concerns.
A final portion of the file note explains how the writer prepared a draft of the Will that day and had provided it to Mrs Mott to read over. Arrangements were made for the writer to return the next day and with witnesses so that the new will instrument could be executed.
The penultimate portion of the file note is headed 'Noreen's mental capacity'. Although the writer (assumed to be the lawyer, Ms Walker) cannot be asked to provide an expert opinion on Mrs Mott's capacity, or incapacity, some of the recorded passages are enlightening as to how the writer had perceived Mrs Mott's mental acuity and residual sense of humour at the time. The passages read (Mott affidavit, THM7, pages 18 - 19):
Noreen's mental capacity
I spent approximately 1.5 hours with Noreen. Throughout the consultation Noreen was about [sic] to speak clearly, provide her instructions, answers [sic] my questions and understand my general and legal advice to her.
…
Noreen and I also engaged in general conversation about her time at the retirement village. Noreen told me that she plays bingo, exercises, and [does] crosswords and competes in footy tipping. Noreen told me that she does not think she can keep supporting the Fremantle Dockers after their last 2 games (they lost). I noticed Noreen had a purple bed spread and I asked her if it was because she supported the Dockers - she laughed because she hadn't thought of that. I told Noreen that she should still support the Dockers because Lachie Neale was so handsome, she agreed but said they were still doing badly. Noreen then started talking about Nat Fyfe's hair (top knot/bun) and how she can't miss him for that reason.
…
Execution
As alluded to in the file note, it appears that the next day (11 July 2018) Ms Walker and the two independent witnesses (Michael Stulic, solicitor of Kitto & Kitto, and Justin Koleits, work experience law clerk of Kitto & Kitto) had attended upon Mrs Mott to assist her to formally execute her Will.
Two file notes, which in this case are evidently file notes, prepared by Ms Walker and Mr Koleits are also in evidence before me (Mott affidavit, THM7, pages 20 - 22). These file notes reflect the procedure by which the Will was executed. I detect nothing at all in those notes to suggest that Mrs Mott was either unware of the contents of the Will, or did not approve of the contents.
By her file note of 12 July 2018, Ms Walker relates that before the Will was executed, she had asked Mrs Mott some questions to verify further, in effect, that she was of sound mind and that the Will would be read aloud with each clause explained. This process was captured on a video recording. The questions and Mrs Mott's responses are outlined in Mr Koleits' file note of 11 July 2018 (Mott affidavit THM7, pages 21 - 22).
Mr Koleits relates in his file note that once the above process had occurred, Ms Walker left the room so that the Will could be signed by Mrs Mott and witnessed by himself and Mr Stulic.
Ms Walker further relates in the note (Mott affidavit, THM7, page 20):
Michael, Justin and I were all of the opinion that Noreen was of sound mind. Noreen did not know all of the answers to the question I have asked her but she was actively listening and asking question, and she confirmed that she understood the explanation I gave to her.
Mrs Mott's capacity at the time the Will was executed
I turn further to some more evidence before me concerning Mrs Mott's mental capacity at the time the Will was executed. Attached to the Mott affidavit are a variety of medical reports and notes relating to Mrs Mott. Because the defendants had initially challenged the validity of the Will, I record that there is some material before me that could support an argument that Mrs Mott did not have full testamentary capacity when the Will was created, by reason of an early stage Alzheimer's diagnosis. Nevertheless, as I explain below, I am satisfied on the basis of the materials before me as a whole that Mrs Mott did have sufficient testamentary capacity at the time the Will was executed.
The evidence relied on by the plaintiff is as follows.
First, the plaintiff relies on a review of Mrs Mott by Dr Fola Bello of Farrington Road Medi-Clinic conducted on 14 July 2018 (Mott affidavit, THM4). This occurred three days after the Will was executed. The medical certificate states that Dr Bello had assessed Mrs Mott and that 'she shows no significant cognitive impairment. I am of the opinion that she has no significant memory impairment'.
The plaintiff also relies on a later and more recent report of Dr Bello dated 31 March 2020 in which he replies to a request from the plaintiff for medical information on Mrs Mott (Mott affidavit, THM3).
The 2020 report provides further details as to a review conducted in July 2018. Dr Bello notes that Mrs Mott had attended to obtain an 'assessment of her fitness to make changes [to] her will' and that:
On the day Mrs Mott appeared well presented, lucid, witty and responded appropriately to simple conversation.
I carried out a Mini Mental State Examination (MMSE) on her and she scored 25/30 which indicated no significant cognitive impairment.
…
Based on the MMSE I made an opinion that she did not have a significant memory impairment at the time[.]
Attached to the Mott affidavit at THM2 is a further letter from Dr Bello attaching the second page of the MMSE report conducted upon Mrs Mott. A sample of a MMSE page is also provided.
The plaintiff also points to several notes written by Mrs Mott around the time of the execution of the Will to establish her testamentary capacity (Mott affidavit, THM5 and THM6).
Conclusions
Section 8 of the Wills Act provides:
8.Execution generally
Subject to sections 17 and 20 and Parts XA, X and XI, a will is not valid unless -
(a)it is in writing; and
(b)it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and
(c)the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
(d)the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.
Simply because the relevant participant parties consent to an order for the granting of Letters of Administration, or in this case, agree to abide a decision without contest, is an insufficient basis for the court to acquiesce to such a request or, stance. The court must still be independently satisfied by evidence to the requisite standard in order to issue a grant of probate in solemn form. Nevertheless, the fact of the consent of the parties as to how an estate should be administered is one relevant consideration for the court to weigh in the overall balance of considerations: see Fairclough v Cvitan [2019] WASC 370 at [25] - [26] where I refer to Wheatley v Edgar [2003] WASC 118.
Before I am able to grant letters of administration, I must first be satisfied that the Will is a valid instrument and that Mrs Mott held sufficient testamentary capacity at the time she executed that instrument.
As I have indicated here, I have in the end been left satisfied by the submitted evidence that the threshold is met. First, the Will, which was prepared by lawyers from Kitto & Kitto, is before me in writing, and it appears on its face to be regular and properly executed in accord with s 8(a) of the Wills Act.
There is also sufficient evidence before me relating to the process of executing the Will, whereby Mrs Mott was read aloud the contents of the Will, had understood its contents and had then duly signed the Will in the presence of two independent witnesses.
I therefore find and conclude that the Will is in accord with the formalities as required by s 8 of the Wills Act.
Given that finding, I accept that there arises a presumption as to testamentary capacity (Timbury v Coffee (1941) 66 CLR 277, 283: see also The Public Trustee v Nezmeskal [2018] WASC 394 at [39]).
However, the weight of the evidence before me as a whole also provides me with a reliable further basis to render a positive finding that Mrs Mott held the requisite testamentary capacity at the time. This is the evidence of Dr Bello, as to which it was observed that Mrs Mott had then suffered from no significant memory impairment. That unchallenged observation of Dr Bello was reached proximate to the time the Will was executed and assists to satisfy me that Mrs Mott held then the requisite testamentary capacity.
It is also abundantly clear from the evidence, particularly through the lawyer's file note of the 10 July 2018 meeting (which I again note is now unchallenged), that Mrs Mott was more than cognisant and aware of what was going to be contained in her new Will and that she not only approved of all that, but had requested that be done - given she was not satisfied with terms of her earlier Will. Mrs Mott clearly explained a coherent rationale underlying her choices for her estate's distribution and those choices were duly reflected in the terms of the Will.
With these findings the requisite threshold is met and it is appropriate to grant the plaintiff's application.
Final orders
Consequently, I accede to the plaintiff's application and now issue orders in the following terms upon the publication of these reasons:
1.The court pronounces the force and validity of the Will of the late Noreen Patricia Mott dated 11 July 2018.
2.There is a grant to Ian Torrington Blatchford of Level 1/16 Irwin Street, Perth, Western Australia of letters of administration with the Will annexed.
3.The court directs the Probate Registrar to issue a grant of Letters of Administration with the Will annexed, in favour of Ian Torrington Blatchford of Level 1/16 Irwin Street, Perth, Western Australia.
4.The parties each shall bear their own costs of these proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin
19 FEBRUARY 2021
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