Murphy v Lewis - [2021] WASC 251

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MURPHY -v- LEWIS [2021] WASC 251
CORAM:   SMITH J
HEARD:   23 JULY 2021
DELIVERED          :   23 JULY 2021
FILE NO/S:   CIV 2182 of 2020
BETWEEN:   HAYLEY SUSAN MURPHY
Plaintiff
AND
KYLIE JANE LEWIS
Defendant

Catchwords:

Wills – Probate – Proof in solemn form – Whether threshold met to make a grant in solemn form – Turns on own facts

Legislation:

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

Result:

Pronouncement of the force and validity of the will dated 9 April 2020 in solemn form

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M Curwood SC
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Frichot Lawyers
Defendant	:	Lynn & Brown Lawyers

Cases referred to in decision:

Fairclough v Cvitan [2019] WASC 370
The Public Trustee v Gerritsen [2012] WASC 201
Tolson v Hender [2009] WASC 319
Vandeleur v Franich (1991) 1 Qd R 481
Wheatley v Edgar [2003] WASC 118
Williams v Schwarzback [No 2] [2016] WASC 43

SMITH J:

Introduction

The plaintiff commenced this action by writ for proof of a will in solemn form.
The plaintiff seeks an order that the last will and testament executed on 9 April 2020 by the late Eileen Margaret Roberts (the deceased) who died on 14 April 2020 (aged 75 years) has force and effect in solemn form.
The action has been set down for trial on an unopposed basis, pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA), after the parties reached an agreement.
After hearing senior counsel for the plaintiff at the unopposed trial, I made the pronouncement, declaration and an order which reflect the terms agreed by the parties, in a minute of consent orders filed on 17 May 2021, as follows:
1.It is pronounced that the will and testament dated 9 April 2020 of the late EILEEN MARGARET ROBERTS (the deceased) referred to in the affidavit of scripts of Hayley Susan Murphy, sworn 26 February 2021 as attachment 'HSM-2' at pages 5 - 10 (the Will) is valid and has force in solemn form.
2.It is declared that the Will is the last will of the deceased, and that the Will was not revoked nor destroyed by the deceased or by any person in her presence, or by her direction with the intention of revoking it.
3.It is ordered that the Probate Registrar issue a grant of probate with the Will annexed in solemn form in favour of Hayley Susan Murphy.
The following reasons set out the reasons why I was satisfied the pronouncement, declaration and order should be made.

Background

The parties to the action are the surviving daughters of the deceased, who are each now adults.
Shortly prior to her death the deceased was diagnosed with terminal stage four lung cancer. Following her diagnosis, she made her will whilst an inpatient at Fiona Stanley Hospital on 9 April 2020. The will was executed in the presence of the deceased's regular general practitioner, Dr William Jonathan George Sands, and her rheumatologist, Dr Gino Louis Mastaglia.
The will appointed the plaintiff to be the executrix and trustee of the deceased's will, and after payment of all debts, funeral and testamentary expenses associated with the death of the deceased or the administration of the estate, left the balance of the estate to the plaintiff. No provision was made in the will for the defendant for reasons expressed in cl 5.
The plaintiff made an application dated 12 August 2020 to the court for the will to be admitted to probate in common form.
On 25 August 2020, the defendant lodged a caveat in probate claiming an interest in the estate of the deceased and disputing the validity of the will on various grounds including: (a) a lack of testamentary capacity by the deceased; (b) a lack of knowledge and approval of the contents of the will by the deceased; and (c) undue influence, by the plaintiff and her defacto spouse, Darren Geoffrey Kurrle, over the deceased with respect to the preparation of the will.
The writ was filed on 30 November 2020, and the defendant filed a memorandum of appearance on 9 December 2020. Orders were made by consent referring the matter to mediation which resulted in the parties reaching an agreement as to proof of the will, and orders being made by consent to permit the plaintiff to tender affidavits prepared for trial without calling the deponents for cross‑examination.

The evidence adduced at the uncontested trial

The evidence adduced at the trial comprised the following:
(a)an affidavit of scripts sworn 26 February 2021 by the plaintiff, Hayley Susan Murphy;
(b)a further affidavit of Hayley Susan Murphy affirmed 3 June 2021;
(c)an affidavit sworn 3 June 2021 by solicitor, Mathilde Josephine Broekhuysen, who drafted the will, now retired;
(d)an affidavit sworn 4 June 2021 by a subscribing witness, Gino Louis Mastaglia;
(e)an affidavit sworn 4 June 2021 by the other subscribing witness, William Jonathan George Sands; and
(f)an affidavit sworn 7 July 2021 by a solicitor and employee of the plaintiff's lawyers, James Galal Emil Tadros, annexing a copy of the death certificate of the deceased.

Relevant principles of law

A grant of probate in solemn form cannot be made simply by consent of the parties. The plaintiff is obliged to prove that the will is formally valid and made by a testator or testatrix who had the capacity to do so. However, the fact that the parties have agreed upon orders to resolve this matter is a relevant consideration.[1]
[1] Wheatley v Edgar [2003] WASC 118 [22] ‑ [26] (EM Heenan J); applied in Tolson v Hender [2009] WASC 319 [4] (Hall J); The Public Trustee v Gerritsen [2012] WASC 201 [14] (Beech J); Fairclough v Cvitan [2019] WASC 370 [26] (Kenneth Martin J).
For a grant in solemn form, the court must be satisfied on the evidence adduced by the party propounding the will, or by any other party to the suit of the due execution of the will by at least one of the attesting witnesses, and where the circumstances raise strong doubt as to the testamentary capacity of the deceased it is advisable to call medical evidence, if available, to show capacity.[2]
[2] Vandeleur v Franich (1991) 1 Qd R 481, 484 ‑ 485 (Macrossan CJ); applied in Wheatley v Edgar [2003] WASC 118 [25] (EM Heenan J); Williams v Schwarzback [No 2] [2016] WASC 43 (Chaney J).
However, the propounder of the will may take advantage of the rule that the will properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding.[3]
[3] Wheatley v Edgar [2003] WASC 118 [24] (EM Heenan J).
Thus, as senior counsel for the plaintiff points out, it is well‑established that two important presumptions of fact arise in the proof of the final will of a deceased. These are: (a) a duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding (or of testamentary capacity); and (b) unless suspicion attaches to the will, the testator's due execution of the will is sufficient evidence that the testator knew and approved of the terms of the will.

The facts established by the affidavit evidence

The deceased only ever made two wills. The first was made on 20 February 1980.[4] After that will was made the deceased married Gregory David Roberts on 28 March 1987.[5]
[4] Affidavit of scripts sworn by Hayley Susan Murphy on 26 February 2021.
[5] Recorded on the deceased's death certificate, affidavit of James Galal Emil Tadros sworn 7 July 2021, page 3.
The plaintiff had been the deceased's carer from about 2010. From about March 2020 the deceased was suffering a persistent cough and other respiratory symptoms. At about this time, the plaintiff moved into the deceased's home to take care of her mother. On 5 April 2020, the deceased's condition deteriorated which resulted in the plaintiff calling an ambulance. The deceased was admitted to Fiona Stanley Hospital. Later that day, a respiratory consultant, Dr Paula Johnson, telephoned the plaintiff and told her that her mother had terminal stage four lung cancer.[6]
[6] Affidavit affirmed by Hayley Susan Murphy on 3 June 2021, pars 3 ‑ 5.
On the following day when the plaintiff visited her mother in hospital, her mother asked her to call Frichot Lawyers to make an appointment to prepare a will. Whilst the plaintiff was with her mother, she telephoned Frichot Lawyers, spoke to a receptionist, informed the receptionist her mother was in hospital, and she would need to make a will as soon as possible. The receptionist later telephoned the plaintiff and told her that she had arranged for a teleconference appointment for 2.00 pm the following day.[7]
[7] Affidavit affirmed by Hayley Susan Murphy on 3 June 2021, pars 6 ‑ 7; An appointment for a lawyer to visit the deceased in hospital was not possible because at that time COVID-19 restrictions were in place; affidavit of Mathilde Josephine Broekhuysen sworn 3 June 2021, par 4.
The deceased asked the plaintiff and her partner, Mr Kurrle, to be present during the teleconference appointment the following day.[8]
[8] Affidavit affirmed by Hayley Susan Murphy on 3 June 2021, par 8.
On 7 April 2020 at approximately 2.00 pm, a solicitor employed by Frichot Lawyers, Ms Broekhuysen, telephoned the plaintiff's mobile phone. The plaintiff gave the mobile phone to her mother. Ms Broekhuysen, the solicitor who prepared the will, took the deceased's instructions to prepare her will whilst the telephone was on speaker. When giving those instructions, the deceased said to Ms Broekhuysen 'I want to leave everything to Hayley and for Hayley to be the Executor of my will'.[9]
[9] Affidavit of Mathilde Josephine Broekhuysen sworn 3 June 2021, par 5.
Ms Broekhuysen immediately prepared a draft will, and sent it by email to the plaintiff later that day at 4.57 pm.[10]
[10] Affidavit of Mathilde Josephine Broekhuysen sworn 3 June 2021, par 6.
On 8 April 2020, the plaintiff having printed a copy of the draft will prepared by Ms Broekhuysen, took the draft to the hospital and gave it to her mother. After watching her mother read the document, the plaintiff telephoned Ms Broekhuysen. The deceased then spoke to Ms Broekhuysen whilst the telephone was on speakerphone.[11] The deceased told Ms Broekhuysen that she was happy with the draft will but requested some changes to the will, in particular, a paragraph which noted that she and her estranged (and by then deceased) husband, Gregory Roberts, had previously provided for her daughter, Kylie.[12]
[11] Affidavit affirmed by Hayley Susan Murphy on 3 June 2021, pars 12 ‑ 14.
[12] Affidavit of Mathilde Josephine Broekhuysen sworn 3 June 2021, par 7.
After the telephone conversation the will was amended and finalised by Ms Broekhuysen who emailed the final document to the plaintiff later that day. On receipt of the email, the plaintiff printed a copy of the final document.
Whilst the plaintiff was still at the hospital with her mother, and before she had received the email containing the final document for her mother to execute as her last will, her mother requested the plaintiff to contact her treating general practitioner, Dr Sands, and her treating rheumatologist, Dr Mastaglia, and ask each of them to witness the execution of her will. The plaintiff subsequently telephoned each doctor and arranged for their attendance at the hospital on the following day to witness the deceased execute her will.[13]
[13] Affidavit affirmed by Hayley Susan Murphy on 3 June 2021, par 15.
On 9 April 2020, the plaintiff met Dr Sands and Dr Mastaglia outside the entrance to Fiona Stanley Hospital and they went together to the deceased's room. The plaintiff put the final version of the will on the table for her mother to read, and saw her mother looking through each page of the will with her glasses on. The plaintiff remained in the room whilst her mother executed the will.
At the time Dr Mastaglia and Dr Sands witnessed the deceased execute her will, Dr Mastaglia had known the deceased for approximately 6 years, and Dr Sands approximately 15 years.
Both Dr Mastaglia and Dr Sands saw the deceased sign the will in their presence, and they each signed the will as witnesses in the presence of the deceased, and each other.
At the time Dr Mastaglia and Dr Sands witnessed the deceased execute her will, Dr Mastaglia observed that: the deceased was sitting up in bed with her glasses on; she recognised both him and Dr Sands; she maintained eye contact with either Dr Sands, himself or her daughter, Hayley, when she spoke to each of them; she appeared to be fully aware as to what was going on; and when spoken to she made appropriate comments in response.[14]
[14] Affidavit of Gino Louis Mastaglia sworn 4 June 2021, par 5.
Dr Sands similarly observed that when the deceased executed her will; she was laying on her bed in a semi‑reclined position and that she conversed with each of them. He also observed that the deceased was alert, awake. He formed the opinion that she was well aware of her imminent demise and of her surroundings; she was in a normal frame of mind; and competent to sign the will.[15]
[15] Affidavit of William Jonathan George Sands sworn 4 June 2021, par 7.
Dr Sands also recalls that at the time the deceased executed her will, the deceased said words to the effect to him that she wanted to sign the will and that she 'didn't want to give it to that Kylie'. She also told him in jest, that she would not be seeing him again.[16]
[16] Affidavit of William Jonathan George Sands sworn 4 June 2021, par 6.

Disposition

Having considered the uncontradicted evidence, in particular the evidence of three independent witnesses, two of whom are medical practitioners, and the other, who was at the time of taking the deceased's instructions for her will, a certified legal practitioner, I am satisfied to the requisite standard that: (a) the deceased held full testamentary capacity; (b) she knew and approved of the contents of the will; and (c) the will was executed validly in accordance with s 8 of the Wills Act 1970 (WA).
For these reasons, I am satisfied that a grant of probate in solemn form, as proposed by the parties, should issue.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
23 JULY 2021