Power v Smart
[2018] WASC 168 (S)
•13 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: POWER -v- SMART [2018] WASC 168
CORAM: DERRICK J
HEARD: 9-12 APRIL 2018
WRITTEN CLOSING SUBMISSIONS FILED ON 26 & 27 APRIL 2018
DELIVERED : 13 JUNE 2018
FILE NO/S: CIV 2665 of 2016
BETWEEN: ROBYN LOUISE POWER
First Plaintiff
MICHAEL JOHN PERKUSICH
Second Plaintiff
AND
SUSAN FAYE SMART
AINSLIE JOY PERKUSICH
Defendants
Catchwords:
Wills - Probate - Whether testator had testamentary capacity - Whether testator knew and approved of contents of will - Whether testamentary undue influence
Legislation:
Nil
Result:
Plaintiffs' claim for probate of will in solemn form made out
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr M S Macdonald |
| Second Plaintiff | : | Mr M S MacDonald |
| Defendants | : | Mr G A Rabe |
Solicitors:
| First Plaintiff | : | Macdonald Rudder |
| Second Plaintiff | : | Macdonald Rudder |
| Defendants | : | Summers Legal |
Case(s) referred to in decision(s):
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Brown v Wade [2010] WASC 367
Easter v Griffiths (1995) 217 ALR 284
Fisher v Kay [2010] WASC 160
In the Will of Wilson (1897) 23 VLR 197
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
McKinnon v Voigt [1998] 3 VR 543
Nicholson v Knaggs [2009] VSC 64
Nock v Austen (1918) 25 CLR 519
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Romascu v Manolache [2011] NSWSC 1362
Saunders v The Public Trustee [2015] WASCA 203
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81
Veall v Veall [2015] VSCA 60
Vernon v Watson; Estate Clarice Isabel Quigley Dec'd [2002] NSWSC 600
Wingrove v Wingrove (1885) 11 PD 81
DERRICK J:
Introduction
On 23 September 2011 Ms Irene Jean Okle (the deceased) executed a Last Will and Testament (the 2011 Will). The first plaintiff and the second plaintiff (the plaintiffs), who are the Executors under the 2011 Will, seek an order that the court pronounce the force and validity of the 2011 Will in Solemn Form.
The defendants dispute the validity of the 2011 Will. The defendants deny that the 2011 Will was the Last Will and Testament of the deceased on the following grounds:
1.The deceased lacked testamentary capacity at the time of making the 2011 Will; and/or
2.The deceased did not know and approve of the contents of the 2011 Will and its effect; and/or
3.The deceased was prevented by the undue influence of the first plaintiff from exercising her free will when making the 2011 Will.
The defendants claim that the valid will of the deceased is a will executed by the deceased on 14 February 1998 (the 1998 Will). The defendants seek an order that the court pronounce the force and validity of the 1998 Will in Solemn Form.
It follows from the grounds on which the defendants deny the validity of the 2011 Will that the questions for my ultimate determination are as follows:
1.Did the deceased lack testamentary capacity at the time of making the 2011 Will?
2.Did the deceased know and approve of the contents of the 2011 Will and its effect?
3.Was the deceased prevented by the undue influence of the first plaintiff from exercising her free will when making the 2011 Will?
I will return to deal directly with each of these questions in due course. However, before doing so it is necessary to deal with the factual and evidential background in light of which the questions must be addressed.
The deceased and her family
The deceased was born on 4 July 1920. She died on 23 August 2013 at the age of 93.
The deceased left school at the age of 14.
On 28 October 1939, when she was 19, the deceased married Mr Cyril Okle (Cyril).
In 1943 Cyril and the deceased bought a property at 11 Bateman Way in Mt Pleasant. The deceased and Cyril lived at this address together until Cyril died in 1975.
In 1986 the deceased subdivided the land at 11 Bateman Way. From this point on she lived at 11B Bateman Way. She remained at this address for the rest of her life, save for when she was living in aged care homes.
The deceased and Cyril had two daughters, the defendants Ainslie Joy Perkusich (Ainslie) born in 1941, and Susan Faye Smart (Susan) born in 1951.
Ainslie has three children, namely Stevan Perkusich (Stevan), born in 1963, the first plaintiff, Robyn Louise Power (Robin), born in 1965, and the second plaintiff, Michael John Perkusich (Michael), born in 1973.
Stevan, Robyn and Michael all have their own children. Stevan has two children, Robyn has two children and Michael has four children. One of Stevan's children is a daughter called Bethany. Bethany was born in 2003.
Susan has two children, Andrew Smart (Andrew) born in 1973 and Meagan Smart (Meagan) born in 1975. Meagan has one child of her own who was born in 2014, that is, after the death of the deceased.
As is apparent from the above summary of the deceased's family tree, the deceased, at the time of her death, had two children, five grandchildren and eight great grandchildren.
As is also apparent from my above summary of the deceased's family tree, I propose to refer to members of the deceased's family by their first names. I will do the same for some of the non‑family member witnesses called to give evidence in the trial. I propose to adopt this approach solely for ease of reference. No disrespect is intended by my use of the first names of the deceased's family members or witnesses.
The witnesses and closing submissions
At trial Robyn gave evidence as part of her and Michael's case. They also called as witnesses Mr Paul Haynes, solicitor, Ms Natasha Haynes (who is Mr Haynes' daughter), Ms Alyson Haynes (who is Mr Haynes' wife), Dr Rudolf Bohmer, general practitioner, and Dr Olivia Lee, consultant psychiatrist.
Both Susan and Ainslie gave evidence in support of their case. In addition, they called as witnesses Meagan and Dr C Nick De Felice, consultant psychiatrist.
The evidence‑in‑chief of the witnesses was adduced by the tendering of their previously prepared witness statement or report supplemented by some brief oral examination.
The parties' closing submissions were made by way of written submissions.
The making of the 1998 Will, the 2011 Will and the enduring powers of attorney - non‑contentious facts
As I have already stated, on 14 February 1998 the deceased made the 1998 Will. By the 1998 Will the deceased appointed Susan as her Executor and Trustee, and in the event that Susan did not survive her, Meagan as her Executor and Trustee.
Clause 5 of the 1998 Will relevantly provides that upon the deceased's death and after payment of all her debts, funeral and testamentary expenses, she gives the residue of her estate as follows:
My property known as unit B 11 Bateman Road Mount Pleasant … to my daughter Susan Faye Smart of 952 Pinjar Road Pinjarra Western Australia. To my daughter Susan Faye Smart of 952 Pinjar Road Pinjarra WA the proceeds of the AMP Personal Insurance Policy number W4001906‑K.
My furniture, personal effects and money in my Commonwealth Bank Account number 7661025584 to be divided equally between my Daughters Ainslie Joy Perkusich and Susan Faye Smart.
On 28 September 2006 the deceased made an Enduring Power of Attorney by which she appointed Susan and Meagan jointly and severally as her Attorneys.
On 27 September 2007 the deceased revoked the Enduring Power of Attorney previously given to Susan and Meagan.
On 26 August 2010 the deceased made an Enduring Power of Attorney by which she appointed Robyn as her Attorney. On the same date Robyn executed a document by which she recorded her acceptance of the appointment as the deceased's Enduring Power of Attorney.
Some relatively short time after 31 March 2011 the deceased told Robyn that she wanted to make a will. The deceased asked Robyn to find someone who could make a will for her.
On 7 July 2011 Robyn, as a result of the deceased's request, contacted the law firm Haynes Legal. Robyn had never had any prior dealings with Haynes Legal. Robyn arranged for the principal of Haynes Legal, Mr Paul Haynes, to meet with the deceased on 15 July 2011 for the purpose of taking the deceased's instructions for the preparation of her will.
On Friday 15 July 2011 Mr Haynes met with the deceased (who was at the time 91 years old) at Anchorage Aged Care (Anchorage) in Mindarie. Anchorage was the high level aged care facility in which the deceased was living at the time. At the time the deceased was very frail, virtually blind and had a very significant hearing impairment. During the meeting Mr Haynes took instructions from the deceased for the preparation of a will for her. The instructions that the deceased ultimately provided to Mr Haynes were that she wanted her grandchildren Robyn and Michael to be her executors and for her estate to be held on trust for her great grandchildren in equal shares until they reached the age of 21.
At the end of his meeting with the deceased Mr Haynes obtained from the nurse at Anchorage the details of the deceased's doctor. He ascertained that the deceased's general practitioner was Dr Rudolf Bohmer of Brighton Beach Medical Practice in Merriwa.
On 16 July 2011 Mr Haynes sent a letter to Dr Bohmer. In his letter Mr Haynes stated that he had been instructed by the deceased in connection with the preparation of her will. Mr Haynes requested confirmation from Dr Bohmer that in his opinion the deceased had the necessary testamentary capacity to make her will. He informed Dr Bohmer that testamentary capacity consists of:
1.appreciating the effects of will‑making and the consequences thereof;
2.having regard to the extent of the assets being disposed of by the will;
3.having regard to all potential claims that may be made against the estate; and
4.being of sound mind.
By 16 August 2011 Mr Haynes had not heard back from Dr Bohmer. Accordingly on that date his firm sent a follow up facsimile to Dr Bohmer.
On 6 September 2011, as a result of receiving the correspondence from Haynes Legal, Dr Bohmer met with the deceased to undertake a testamentary assessment of her. Having assessed the deceased Dr Bohmer concluded that the deceased did have the necessary testamentary capacity to make a will. Accordingly, on 6 September 2011 he sent a letter to Mr Haynes that was in the following terms:
Thank you for your letter dated, 16/07/2011, requesting a report for the above named patient. My apologies for the delay in the report.
I visited [the deceased] on the 6th of September to determine if she is capable of making a will. I had a long discussion with [the deceased] in the presence of Eva, one of the nursing staff.
[The deceased's] assets included the sale of her house in Mt Pleasant, the contents of that home and funds that she has in her bank account. She has 2 daughters, Susan Smart and Ainslie Perkusich. Her granddaughter Robyn is her power of attorney. Her wish is to leave all her assets to her great granddaughter Bethany Perkusich.
My opinion is that she appreciates the effects of Will making and the consequences thereof. She seems to have a clear understanding of the extent of her assets. She also have [sic] an understanding of potential claims that may be made against the estate. I am of the opinion that she is of sound mind.
After receiving Dr Bohmer's letter Mr Haynes made an appointment to see the deceased at Anchorage on 22 September 2011 for the purpose of having her sign the will that he had prepared for her.
On 22 September 2011 Mr Haynes met with the deceased at Anchorage. He read to the deceased the will that he had prepared for her which reflected the instructions ultimately given to him during his meeting with the deceased on 15 July 2011. During this process he made one handwritten amendment to the will at the request of the deceased for the purpose of making clear that the beneficiaries under the will were to be the 'biological' great grandchildren. Mr Haynes did not question, or speak to, the deceased about the statement that she had made to Dr Bohmer that she wanted to leave all her assets to her great granddaughter Bethany.
After he had read the will Mr Haynes told the deceased that he would find a witness. However, he was unable to find anyone to be a second witness. He then returned to the deceased and said, in substance, that he could not find a witness, that he or somebody from his office would have to come back, and that he would get the deceased to sign the will now as he was there. He then had the deceased sign the will and the amendment and he signed the document as a witness.
During the meeting Mr Haynes told the deceased that he had received a report from Dr Bohmer in which Dr Bohmer confirmed her capacity to make a will. The deceased responded by saying, 'I knew I hadn't lost my marbles'.
When Mr Haynes returned to his office he prepared a further typed version of the will which incorporated the handwritten amendment that he had made to the will that the deceased had signed earlier that day (that is, which incorporated the words 'who are the biological children of my grandchildren').
The next day, 23 September 2011, Mr Haynes arranged for his wife Ms Alyson Haynes (Alyson), and his daughter Ms Natasha Haynes (Natasha), both of whom worked as assistants in his firm, to attend on the deceased and to have her sign the amended will, that is, the 2011 Will, in their presence.
On 23 September 2011 Alyson and Natasha attended Anchorage and arranged for the deceased to sign the 2011 Will. Natasha and Alyson witnessed the execution of the 2011 Will.
Clause 1 of the 2011 Will is in the following terms:
I REVOKE all former Wills and Codicils made by me AND DECLARE this to be my last Will and Testament.
By cl 2 of the 2011 Will the deceased appoints Robyn and Michael to be the Executors and Trustees (referred to thereafter in the document as 'My Executor') of her estate.
Clause 3 of the 2011 Will provides:
I GIVE all of my real and personal estate, wherever situated (my estate) to my Executor UPON THE FOLLOWING TRUSTS:
(a)to pay from my estate all my just debts, funeral and testamentary expenses, probate, unpaid taxes and other like duties and taxes payable on or in respect of my estate and the costs involved in the execution of the trusts of my will; and
(b)to HOLD the balance then remaining (the residue of my estate) on trust for such of my great grandchildren who are the biological children of my grandchildren who survive me and attain the age of 21 years and if more than one as tenants in common in equal shares.
Clause 4 of the 2011 Will specifies the powers that Robyn and Michael have as Executors and Trustees in addition to powers conferred by law. One of the powers, which is specified in cl 4(f), is as follows:
[T]o apply the whole or any part of the income and capital of the vested or contingent share of any beneficiary toward the maintenance, education, medical needs, evolving needs, welfare, advancement, benefit or support of such beneficiary…'
Clause 5 of the 2011 Will, which is headed 'Declaration', is in the following terms:
I have considered my daughters AINSLIE JOY PERKUSICH and SUSAN FAYE SMART. Both daughters have been adequately provided for by me during my lifetime and I feel sure they will both agree to my estate being held in trust as directed for the benefit of their own grandchildren.
Once the 2011 Will had been signed by the deceased Mr Haynes destroyed the will that had been signed by the deceased in his presence on 22 September 2011.
The assessments of the deceased's abilities and mental state from 2006 to 2011
At this point it is convenient to refer to a number of the various assessments of the plaintiff's abilities and mental state that were undertaken during the period from 2006 up until the time that she executed the 2011 Will. The evidence in this regard revealed the following.
On 29 August 2006 the deceased was admitted to St John of God hospital Murdoch (SJGH Murdoch) with back pain which she suffered when she moved a brick paver at her home (exhibit 13). It was ultimately ascertained that she had a compression/crush injury to her lumbar spine (exhibit 16). The deceased remained in SJGH Murdoch until 14 September 2006.
On 14 September 2006 the deceased was, at the instigation of Susan and Meagan, transferred from SJGH Murdoch to the Joondalup Health Campus (JHC) for rehabilitation and ongoing care. JHC was closer to where Susan was living at the time.
On 18 September 2006 the deceased, while a patient at JHC, underwent a standardised Mini Mental State Examination (MMSE) and Geriatrics Depression Scale (GDS) test. The deceased scored 26/30. She lost two points on delayed recalls and a point on each of the day and date. Her GDS was 5/15 which was within normal range.
On 19 September 2006 Susan and Meagan in effect expressed concerns to medical staff at JHC about the deceased's ability to care for herself in her own home (exhibit 15). They told the medical staff that they had in the last six months noticed a decline in the deceased's cognition and that she was suffering from short term memory loss. They expressed the view that it would be unsafe for the deceased to return to live at her home by herself. They requested that the deceased be assessed so that the option of residential care for the deceased could be considered.
During the period 20 September 2006 to 10 October 2006 the deceased, while still a patient at JHC, was assessed by an Aged Care Assessment Team (ACAT) (exhibit 62). The record of the ACAT assessment listed the plaintiff's diseases and disorders to be dementia, macular degeneration, deafness, osteoporosis, shingles and a crush injury to the lumbar spine. In the course of the ACAT assessment the deceased sought approval as a care recipient to access residential aged care.
The conclusion expressed in the record of the ACAT assessment was that it was no longer safe for the deceased to live alone due to her dementia, and that the deceased had been assessed and approved for low level residential care. The deceased had never previously been formerly diagnosed as suffering from dementia. The basis for the identification of dementia as being one of the deceased's disorders is not clear from the record of the ACAT assessment.
During the deceased's time at JHC Susan and Meagan continued to inform medical staff, in substance, that the deceased was not capable of living by herself in her home. They also informed medical staff that the deceased was not capable of managing her own finances.
On 23 November 2006 the deceased was discharged from JHC to Brightwater Kingsley Interim Care (KIC) pending the finding of a suitable low level residential aged care facility for her. At this point in time the deceased was content to be placed in residential care.
In a letter to KIC dated 23 November 2006 Dr Jake Harper, a consultant physician in rehabilitation and aged care who was attached to JHC, listed the deceased's diagnoses to be osteoporosis, an L1 crush fracture, dementia, hypertension, depression, mild liver function abnormalities and hyponatraemia (exhibit 19). Dr Harper stated in his letter that the deceased had some mild paranoia and agitation and had agreed that it would be in her best interests to seek residential care.
On 15 January 2007 Meagan provided further information about the deceased to medical staff at KIC (exhibit 39). She in effect repeated the concerns of her and Susan about the deceased's cognitive decline over the last six months and short term memory loss (STML). She also reported unwarranted and out of character emotional and verbally aggressive outbursts by the deceased directed towards family members. She stated that she and Susan had given consideration to all of these matters before accepting the previously made decision that the deceased should be placed into residential care.
On 15 January 2007 the deceased was, on referral by her general practitioner Dr Daryl Hollingworth, assessed by the Joondalup Older Adult Mental Health Service (JOAMHS) due to her having expressed suicidal thoughts (exhibit 20). The assessment was carried out by Dr Prakriti Gopinathan, a psychiatric registrar attached to the JOAMHS. On assessment it was found that the deceased had expressed the suicidal thoughts out of frustration due to the fact that she did not want to be placed into care and wanted to return home.
During the assessment the deceased obtained a score of 23/27 on MMSE. She lost a point on date and day, a point on calculation, a point on orientation of space and a point on delayed recall. She was found not to exhibit any deficits in attention and concentration and to be orientated to place, time and person. She made clear that although she did initially accept that she would not go home, she did so because she was not fully recovered from her injury, and that she now was recovered and wanted to go home.
On 25 January 2007 the deceased was reviewed by Dr Gopinathan. The review was for a competence assessment (exhibit 39). Dr Gopinathan found that the deceased was orientated, alert and coherent, that she was able to tell him the reasons behind her stay at KIC and that she was able to tell him her next of kin details. There was no evidence of depressive symptoms, psychosis or major cognitive decline. During the assessment the deceased was adamant that she wanted to return home.
On or about 16 February 2007 Dr Gopinathan arranged for the deceased to be reviewed by a consultant psychiatrist, Dr Mathew Samuel (exhibit 74). Dr Samuel decided that due to the deceased's mild dementia she did not have the capacity to decide whether she could go home. At the time of the assessment the deceased was still adamant that she wanted to go home, and Susan and Meagan were still adamant that the deceased needed placement in a residential aged care facility.
On 6 March 2007 Ms Michelle Kay, an occupational therapist at KIC, conducted a full cognitive assessment of the deceased (exhibit 75). During the assessment the deceased obtained a Hierarchic Dementia Scale Score of 107/190 which was well within normal age related limits. A Modified Barthel's Index (MBI) score of 98/100, based on Ms Kay's interview with the deceased, indicated potential and motivation for the deceased to return to community living with support services.
Shortly after the cognitive assessment carried out by Ms Kay, and in any event prior to 14 March 2007, Meagan and Susan sent a relatively lengthy letter (written by Meagan on behalf of both of them) to KIC (although the letter was addressed to 'To whom it may concern') (exhibit 85). In the letter Meagan and Susan, in effect, expressed their strong disagreement with any suggestion that the deceased was capable of returning to live by herself in her home. They set out in considerable detail their account of the deceased's cognitive, emotional and behavioural deterioration from a point in time prior to the deceased's admission to SJGH Murdoch.
On 14 March 2007, as a result of the letter sent by Meagan and Susan, Ms Angela Murphy, a social worker employed at KIC, requested that JOAMHS carry out a further assessment of the deceased.
On 29 March 2007 the requested JOAMHS assessment of the deceased took place. Following the assessment Dr David Brown, consultant psychiatrist, concluded that the deceased was 'quite capable of deciding to return home'. He conveyed this opinion to Dr Hollingworth in a letter dated 29 March 2007 (exhibit 17).
At around the same time Dr Brown prepared an undated and unsigned report to be used in a previously foreshadowed guardianship application to be made by Susan and Meagan with the support of KIC to the State Administrative Tribunal in relation to the deceased (exhibit 86). In his report Dr Brown stated his diagnosis of the deceased to be 'mild cognitive impairment insufficient for a diagnosis of dementia of any type' (exhibit 18). The guardianship application was not proceeded with.
On 3 April 2007 Dr Hollingworth, in a letter addressed to 'To whom it may concern', certified that he considered the deceased to be 'totally sound of mind and quite capable of making her own decisions and returning to live in her own home' (exhibit 25).
On 4 April 2007 the deceased was referred for an assessment by Osborne Park Hospital ACAT. The assessment was completed on that date (exhibit 63). As a result of the assessment it was arranged that the deceased would be discharged to her home on 13 May 2007 with comprehensive community services being put in place (exhibit 23).
On 13 May 2007 the deceased was discharged from KIC to her home. Support services were put in place for the deceased.
On 23 July 2007 the deceased was assessed by Dr Alison Smith, a medical officer attached to the South Metropolitan Area Health Service Fremantle Older Adult Mental Health Service (FOAMHS) (exhibit 27). The assessment occurred at the deceased's home at the request of Susan. At the time of the assessment Dr Smith had been informed by Susan that since the deceased had returned home she had shown verbal aggression and one episode of physical aggression towards her, that is, Susan.
Dr Smith found the deceased to be well presented, pleasant and cooperative. She was deaf. She was reactive and her speech was normal in speed and volume. She described her mood as 'good' with no thoughts of deliberate self‑harm or suicidal ideation. She did recall telling her daughter on one occasion, whilst she was in KIC, that she would kill herself if she was not allowed to go home. However, she had no plans to deliberately self‑harm. There was no formal thought disorder and no hallucinations. She expressed the belief that her daughter had been stealing from her since she gave her daughter an enduring power of attorney. On a MMSE, which was limited by deafness and Senile Macular Degeneration, the deceased's score was 25/28.
Dr Smith concluded that the deceased was an 87‑year‑old woman with possible mild dementia and verbal aggression towards family, notably around financial issues.
Dr Smith reported the results of her assessment of the deceased to the deceased's general practitioner, Dr Leonie Nulsen, in a letter dated 24 July 2007 (exhibit 22).
On 21 August 2007 and again on 10 September 2007 the deceased was, at the request of Dr Smith, assessed by clinical neuropsychologist and special clinical psychologist Dr Michelle Reid (exhibits 28 and 29). The assessment occurred in the deceased's home.
On assessment the deceased's total camcog‑r score was 86/105. This placed her equal to or above the '70th % of her age/education peers'. However, her performance on tasks of executive functioning suggested some difficulties in this area most particularly in her inability to inhibit. Other areas of executive difficulty included 'Borderline Impairment' in deductive reasoning with some mild stimulus bound tendencies. Her 'Low Average' performance on an inductive reasoning task also suggested that she had some mild difficulties with abstract reasoning. The deceased demonstrated adequate conceptual reasoning.
Dr Reid concluded that the deceased had the capacity to make a decision to remain at home and that 'past occupational therapy assessment confirmed her ability to use her conceptual reasoning ability in a practical sense'.
During the period 17 October 2007 to 24 October 2007 the deceased was assessed by FOAMHS. As part of this assessment Dr Smith attended on the deceased on 17 October 2007 (exhibit 26). During this attendance the deceased provided to Dr Smith what was, in effect, a description of her family tree, and her account of her family situation and her relationships with her family members including Susan, Ainslie and Meagan. She described in some detail how she had in the past assisted various members of her family (including Susan and Meagan) financially. She said, in effect, that she had made a will in which she had left most of her property to Susan but that she was going to make a new will, and that she did not want to leave all of her property to Susan because Susan's partner was a 'parasite'.
On the basis of the FOAMHS assessment Dr Smith formed the view that the deceased was competent to deal with her financial affairs, and that there was no evidence of an affective or psychotic disorder.
Dr Smith reported the results of the FOAMHS assessment to Dr Nulsen in a letter dated 29 October 2007 (exhibit 30). In her letter Dr Smith advised that FOAMHS had offered the deceased's family the opportunity to discuss the assessment at a family meeting although it was at that stage unclear whether they would accept this option.
On 14 November 2007 the FOAMHS discharged the deceased from its service to the care of Dr Nulsen (exhibit 31).
On 12 May 2008 Dr Nulsen requested the Fremantle Hospital ACAT to carry out an assessment of the deceased (exhibit 33).
On 28 May 2008 the deceased was, as a result of Dr Nulsen's above referred to request, assessed by Dr Mark Wilson, geriatrician, from the Fremantle Hospital and Health Services Department of Community and Geriatric Medicine (exhibit 34). The assessment was carried out by way of a home visit. During the assessment the deceased did demonstrate some paranoid ideation towards some family members by stating that she believed that one of her daughters had 'sabotaged' her Webster medication pack, and also that they were not actually concerned for her safety but were rather concerned about how she was dealing with her money and how she would distribute her assets when she died. The deceased demonstrated no obvious hallucinations. Dr Wilson found that although the deceased's opinions regarding her family members' motives were quite intense it was difficult to conclude that they were in fact of a delusional character. His impression was that the deceased was not in fact psychotic.
On examination of the deceased there were no focal neurological signs. Her MMSE score was 26/30. She lost two points for short term memory, a point for being unable to read the written instruction and a point for being unable to see the intercepting pentagons well enough to copy them. She was fully orientated to time and place and scored 5/5 on a spelling exercise. She would not attempt the maths exercise.
It appeared to Dr Wilson that the deceased did have some short term memory loss although she was good on most details. She appeared to have negative ideations about some family members although it was not clear that these ideations were of delusional strength.
On 23 June 2009 the deceased was assessed by a Ms Laura Johnson, social worker, attached to the Fremantle Hospital ACAT on the referral of her general practitioners Dr Nulsen and Dr Yin Wee (exhibit 37). During the assessment the deceased presented as alert, orientated and conversant. She answered most questions appropriately, demonstrating insight, good long term memory and an ability to describe events with dates in detail. There was evidence of fixation on issues surrounding family conflict and her previous institutionalisation at KIC. Some mild paranoia or negative ideation towards her daughter Susan and her granddaughter Meagan was demonstrated but this did not appear to be of delusional strength. The deceased also demonstrated a high degree of negativity in regards to her home services and reported lack of consistency.
The deceased scored 28/29 on a MMSE for both calculation and spelling. One question was omitted due to visual impairment and one point was lost for recall.
Functionally the deceased presented as alert and orientated, demonstrating insight into risk factors and cognitive function within normal range. The deceased was continuing to participate in personal care but required increased supervision due to visual impairment and declining confidence. She continued to ambulate and transfer independently with a walking stick or trolley, although osteoarthritis impacted upon her ease of movement. Most of her domestic duties were being completed via formal services due to her visual impairment.
With respect to her continued care the deceased expressed the belief that her progressive loss of vision was impacting upon her ability to continue safely residing at home. She described experiencing social isolation and no longer felt confident completing her activities of daily living. She felt that a residential environment would provide companionship and safety while ensuring that her ongoing care needs were appropriately met.
On the basis of her assessment Ms Johnson concluded that the deceased was suitable, and should be approved, for low level residential care.
On 19 November 2009 the deceased was admitted into full‑time care at a residential facility in Salters Point.
On 5 March 2010 the deceased was admitted to the Frederick Guest Hostel aged care facility (FGH).
On 11 March 2010 the deceased underwent an Aged Care Funding Instrument Psychogeriatric Assessment Scales (PAS) Cognitive Impairment Scale assessment (exhibit 69). She obtained a score of 13 with the normal score being between 16 and 21.
On 13 July 2010 the deceased was assessed by Dr Peter McCarrey, a doctor associated with FGH (exhibit 38). The assessment was carried out in response to a request from a firm of solicitors who had been instructed by the deceased to deal with the sale of her house at 11B Bateman Road Mount Pleasant. Dr McCarrey assessed the deceased as having full legal decision making capacity.
On 1 February 2011 the Case Manager at FGH requested an ACAT review of the deceased. The request was made on the basis that the hostel's assessment of the deceased was that she now required a high level of care.
On 14 February 2011 the deceased was assessed by the Bentley ACAT (exhibit 42). The assessment revealed that since the deceased had been residing at the FGH she had become very frail, her eyesight and mobility had deteriorated and she was now requiring two people to assist with transfers out of bed and chairs, as well as the use of a hoist occasionally. There had been numerous falls. It was concluded that given the deceased's increase care needs the deceased was approved for high level residential permanent care.
On 14 February 2011 a delegate of the secretary of the Department of Health and Ageing approved the deceased as eligible to receive permanent residential care at a high level (exhibit 42).
On 31 March 2011 the deceased was admitted to Anchorage.
On 15 April 2011 the deceased underwent an occupational therapy assessment (exhibit 44). The assessment was carried out by Ms Belinda Ryan. During the assessment the deceased was quietly spoken but able to maintain appropriate conversation with some initiation. She had good comprehension but could become confused due to her hearing loss. She demonstrated a mild impairment in cognition, although a full assessment was not completed due to visual impairment. She had impaired short term memory and orientation. She was orientated to person only not to time or place. She was able to recall two of three objects after one minute and was able to recall four of five objects after three minutes. She was able to recall information in relation to the past and family, although she demonstrated some confusion in relation to the number of her grandchildren and great grandchildren.
On 31 May 2011 the deceased was assessed for aged care funding by a clinical nurse manager at Anchorage (exhibit 45). On assessment the deceased obtained a PAS Cognitive Impairment Scale score of 6.8 which equated to a moderate cognitive impairment. The assessment revealed the deceased to have significant problems in the performance of everyday activities, that she required supervision and some assistance with personal care, that she rapidly lost her memory of new material and retained only highly learned material, that disorientation to time and place was likely, and that she would possibly communicate with only fragments of sentences. The clinical nurse manager assessed the deceased as having a moderate cognitive impairment.
The lay witnesses
I turn now to the evidence given by the lay witnesses that bears upon the previously identified questions for determination.
The first plaintiff - Robyn Power
Evidence
Robyn made two statements, one dated 31 July 2017 (exhibit 78) and the other dated 27 September 2017 which was prepared in response to the statements of Susan, Meagan and Ainslie (exhibit 79).
Robyn's relevant evidence‑in‑chief was as follows.
Her mother Ainslie and her father Stevan Gledich split up when she was a baby. Her mother married John Perkusich in about 1970.
When her parents split up her mother, her older brother Mick (Michael) and her moved in with her grandparents and lived with her grandparents until her mother married John Perkusich. After this her family would visit her grandparents regularly. She used to spend some of her school holidays with her grandparents.
After her grandfather died she visited the deceased regularly with her family.
The deceased often said to her that Michael would be alright because he would inherit his father's property.
Her mother stopped seeing the deceased. She does not know when her mother stopped seeing the deceased. She does not know why her mother stopped seeing the deceased. Her mother and the deceased were still talking when her parents moved to Dongara in about 1988. She was about 23 at the time.
Aunty Sue (Susan) visited the deceased on the weekends until Aunty Sue started to see a man called Harvey. She thinks this was in the early 2000s. Aunty Sue took Harvey to visit the deceased occasionally until the deceased told her that she had told Aunty Sue that she did not want Harvey in her home.
She knows that Aunty Sue visited the deceased on weekends because she also visited the deceased about once a week and would call the deceased to organise the day. The deceased would tell her the day Aunty Sue was visiting and they would fix another day for her to visit.
The deceased did not like Harvey. The deceased called him the 'Sniffer Dog'. The deceased said something to her like:
I don't want him in the house. Now [Aunty Sue's] got Sniffer Dog she doesn't want anything to do with me. She said she was going to look after me.
For the same reasons that she knew that Aunty Sue called on the deceased, she knows that after Aunty Sue had met Harvey Aunty Sue would rarely visit the deceased.
The deceased was very active until her eyesight started to fail in the early 2000s. Until then the deceased was very active and independent.
In around 2002 she noticed that the deceased did not like using the stove. The deceased told her that she was afraid that she might not see that it was still on. The deceased also told her that her eyesight was failing.
The deceased received two fortnightly payments. One was from GESB, a superannuation fund. The other was a war widow's pension. In total the deceased received about $1,300 per fortnight.
The deceased kept cash in the house to pay for things she needed or work that had to be done around the house. She knows this because from time to time the deceased asked her to take cash from an envelope that the deceased would keep in a pocket of a jacket in her wardrobe to pay workmen or to give as a Christmas present. She observed the deceased with money. The deceased was always very careful with her money. The deceased would never leave money lying around the house.
When the deceased was in JHC in 2006 the deceased told her that Aunty Sue and Meagan were telling the hospital staff that she was 'demented'. At this time Aunty Sue was managing the deceased's money. The deceased said that she was angry with Aunty Sue and Meagan for saying these things.
In or around early to mid‑2007 the deceased moved back into her own home. At some point the deceased asked her to find out if the defendant and Meagan still held her Enduring Power of Attorney.
The deceased liked her (that is, Robyn's) brother Stevan. Soon after the deceased returned home the deceased gave Stevan and his then wife Samantha the job of paying her bills.
In early 2009 Aunty Sue called her and said something like, 'Nanna's bills are not being paid will you talk to Nan to find out why?' She then spoke to the deceased. The deceased did not know why the bills were not being paid. She took the deceased to the Commonwealth Bank. She found out that all the money that the deceased was receiving from her superannuation and her pension was being withdrawn from the deceased's account on the same day that the payments were being deposited into the account. She helped the deceased open a new bank account and arranged for the payments to be deposited into the new account. She did this to stop Stevan and Samantha taking the deceased's money.
The new account was opened on 30 March 2009 (exhibit 80). She took the deceased straight to the bank without first discussing the matter with Stevan because she knew that the deceased had already given Stevan about $40,000 from an AMP insurance policy account. She knows this because it was discussed at a family meeting between her, the deceased, Aunty Sue, Meagan, Stevan and Samantha that was held at the deceased's home.
She contacted the deceased's service providers who required money to be paid immediately to continue the deceased's services as nobody had yet arranged payment. She paid this money herself as the deceased had literally no money left. The deceased later reimbursed her what she had paid and caught up on the overdue payments very quickly as the deceased's payments were no longer being siphoned by Stevan.
On the day or the day after the payments were due to be paid into the deceased's old account (the one that was being closed), the deceased told her that Stevan had called her and abused her for stopping the money. The deceased said that she told Stevan that he had not paid her bills. She then took over the payment of the deceased's bills.
At the deceased's request she arranged for the deceased to give her an Enduring Power of Attorney. She does not remember when the deceased made this request. She used the Enduring Power of Attorney to apply for placements in care facilities for the deceased.
When the deceased first moved into FGH she was able to walk with the aid of a walking frame from her room to the sitting area albeit very slowly. The deceased's loss of mobility was part of the reason the deceased was required to move to a high care facility.
When the deceased was at FGH she visited the deceased at least three times a week. Since 2007 she had been working at Harvey Norman and City West which was not that far from FGH. She was the contact for the deceased for the deceased's entire time at FGH.
The deceased was moved to Anchorage because it was a high care facility and 'because Aunty Sue told her that she wanted the deceased to be close' to Aunty Sue.
On a date that she no longer remembers, but not long after the deceased was admitted to Anchorage, the deceased said to her that she wanted to make a will. The deceased said something like, 'Can you get someone to make a will for me?'
She googled 'mobile wills service' or something similar. She selected a site that read 'Wills at Home'. This brought up information about Haynes Legal.
She does not remember ringing Haynes Legal and making an appointment. However, she must have done because she met Mr Paul Haynes with the deceased not long afterwards. She had never had any dealings with Haynes Legal or Mr Haynes before this time.
She remembers the conversation that she had with the deceased and Mr Haynes on the day that she met Mr Haynes. She thinks both she and Mr Haynes were seated either side of the foot of the deceased's bed.
Mr Haynes went up to the deceased and introduced himself to the deceased. She does not remember if Mr Haynes and the deceased shook hands.
Mr Haynes had a pad and was writing things down. She does not remember the exact words used. The thrust of the meeting was as follows:
1.The deceased said to her that she wanted to leave everything to her. She said that she did not want it. The deceased said that she trusted her to decide 'who gets it'. She said that she did not want that responsibility. The deceased then said that she would leave 'it' to Bethany. She said that she did not think that was fair on the other kids 'but that if that is what you want to do'. By using the word 'kids' she meant the deceased's great grandchildren;
2.Mr Haynes said to the deceased that it would not be unusual for her (Robyn) to get something because she had been responsible for the deceased. She said, 'No, then they'll be saying you're ok', meaning that she had looked after herself;
3.The deceased paused and looked like she was thinking. The deceased then said, 'Alright, I'll leave it to all great grandchildren; my blood related great grandchildren';
4.At some point Mr Haynes suggested that the great grandchildren share on the basis of an equal distribution to the grandchildren. Mr Haynes gave as an example that if the estate was worth 'say $300,000 [t]his would mean that my two children would receive $150,000 and that Mick's four children would each receive $75,000'. The deceased rejected this idea. The deceased wanted each great grandchild to take an equal amount;
5.At one point Mr Haynes asked what age the great grandchildren would get funds. The deceased said '21'. She said, '25 would be a good age'. The deceased disagreed and said, '21, that is the age';
6.Mr Haynes then asked the deceased about her assets. The deceased said she had money from the sale of her house;
7.At some point Mr Haynes said, 'Why are you not leaving anything to your children? The deceased responded that she had given her children her property in Dunsborough in equal shares. The deceased said that Susan had given her share to Meagan and that Ainslie had sold her share to Meagan for only $50,000 when the property was worth over $300,000. The deceased said that she had already given her children enough. The deceased said that she wanted the great grandchildren to use the money as a deposit on a house. She recalls Mr Haynes saying that it could not be stipulated in the will what the great grandchildren could use the money for; and
8.At this point she left the meeting. She does not recall whether or not Mr Haynes asked her to leave.
She thinks that Mr Haynes mentioned at the meeting that he would arrange for the deceased to see the deceased's doctor prior to completing the will.
She did not discuss the will or its contents with either Mr Haynes or the deceased after this meeting.
She received a letter from Mr Haynes dated 9 November 2011 with the attachments specified in the letter, namely the original will (that is, the 2011 Will), a copy of a letter from Dr Bohmer and an invoice from Haynes Legal. She read the will, the letter from Dr Bohmer and the invoice which she paid. The original version of the will was the only version of the will that she ever saw. She did not see any drafts. She did not arrange the appointment with Dr Bohmer and was not present when Dr Bohmer saw the deceased.
She kept the original will at her home. She told the deceased that the will had arrived.
She does not recall calling Mr Haynes after she had met him at Anchorage or receiving a call from his office.
The deceased always spoke to her normally. The deceased never got upset with her in anyway.
At no stage during the deceased's life did she get the impression that the deceased had any memory or other mental problems. The deceased's eyesight and hearing became quite bad towards the end of her life but she was always able to deal with this in order to communicate with the deceased. She talked louder and made sure that she was facing the deceased. On one to one the deceased could hear. The deceased had hearing aids but told her that she did not like wearing them because they sometimes made a buzzing noise in her ear. This was mainly caused by an issue with the battery. The deceased rarely used the hearing aids in her presence and they were always able to communicate fine.
The deceased loved listening to the football on the radio and watching the football on the television. She noticed when the deceased was in Anchorage that the deceased could not distinguish the players. She would therefore sit by the deceased and give her a commentary of who had the ball and who scored which the deceased enjoyed.
She did not try to apply for a grant of probate of the deceased's will for a while because she wanted to delay the time the older great grandchildren received the money. She thought 21 was too young. The money in the deceased's estate could just earn interest while the children waited.
She did not tell her mother or Aunty Sue about the will because they were not in it.
From dealing with the deceased's finances when she had held the deceased's Enduring Power of Attorney she knows that the deceased has funds of about $800,000, made up of a $300,000 bond with Anchorage and $500,000 with the Commonwealth Bank.
Her memories of the deceased were of an independent woman who cared for her family. She was generous and always willing to help all of them.
The deceased never held a driver's licence but this never stopped her getting around by walking or public transport. The deceased's loss of mobility was her loss of independence.
Her mother, Ainslie, only visited the deceased four or five times in the year that the deceased was at FGH. On one occasion her mother said to her words to the effect that she did not visit the deceased on her own.
On one occasion she picked up her mother to take her to visit the deceased at Anchorage. On the way she said to her mother words to the effect of, 'why do you only visit Nanna with other people?' Her mother said something like she was not comfortable visiting the deceased on her own.
When she took over managing the deceased's money she explained to the deceased that as she was a single working mum it would be simpler to make payments via the internet as that was how she paid her own bills. She explained to the deceased that she and the deceased would both have a card for this new account and that she would print out statements to show the deceased that her bills were being paid and so she could see where her money was going. The deceased said something like, 'that is good' or words that made it clear to her that she wanted the internet account.
She and Meagan were not with the deceased when the deceased passed away. Meagan left early in the evening and she left very late. She had just got home and into bed when Aunty Sue called to say that the deceased had passed. She drove back and stayed with the deceased until the deceased was taken away.
The deceased never mentioned to her that someone was going through her house and stealing.
The family meeting in late 2007 was called to discuss the money taken by Stevan. However, the deceased did say at this meeting words to the effect that she intended to leave her property to her great grandchildren. She recalls saying something like, 'What about Meagan?' because as that time Meagan did not have any children.
At no time while she was at the meeting did the deceased demand or request that everyone go into the spare room to see the spare bed. Stevan and Samantha arrived at the meeting after her and left before her. She was sitting near the deceased during this meeting and did not hear the deceased mention anything about the mattress or the spare room at any time.
During the time that she was at the meeting the deceased did not make any statement to the effect that she was going to get a lawyer and have a will drafted leaving everything to Bethany. However, she (Robyn) had a big argument with Stevan over an unrelated matter and she left the meeting shortly after Stevan and Samantha left, and before Susan and Meagan left.
She never found the deceased to be 'spaced out' or not being aware of what was happening around her. She would knock on the door and the deceased would answer the door. They would sit and chat. She would make the deceased a cup of tea. The deceased told her about Samantha visiting and taking her shopping.
She took the deceased to see FGH prior to accepting the placement. The deceased said words to the effect that she liked that she was still in the area she had spent so much of her life in, and that she liked the large open activities room. From observing the deceased at FGH the deceased enjoyed the walk to and from her room to the activity room, as when she was at Salters Point she never liked that she was on the first floor and rarely left her room.
At Anchorage the deceased did not require help to the dining room because she was disorientated. She required the assistance due to her mobility issues.
The deceased knew she was at Anchorage and never said anything to her about being anywhere else. At one point when the deceased first moved to Anchorage she thought that the deceased might like to go for a drive to see the new area she had moved to. The deceased said that she did not because the beach was too windy.
The deceased was a very proud woman and had always been so strong and independent. Therefore, for the deceased not to want to participate in activities in which she was not able to excel due to her mobility and sight deterioration could hardly come as a shock to anyone who understood her.
In cross‑examination Robyn gave the following additional evidence.
She remembers parts of the conversation that occurred in the deceased's room with Mr Haynes.
She does not remember whether she arrived before or after Mr Haynes. She does not remember whether she was already in the room with the deceased when Mr Haynes arrived. She can just remember Mr Haynes going up to the deceased and introducing himself and shaking her hand. It is possible that she introduced Mr Haynes to the deceased.
She does not know if Stevan, when he took the money out of the deceased's bank account, stole the money or took the money with the deceased's permission. The deceased wanted her to change the bank account because her bills were not being paid. The deceased did not want Stevan to have the responsibility of paying her bills.
She knows that at the meeting that took place at the deceased's house the deceased said that she had given the AMP insurance policy money to Stevan. She is 100% sure that the deceased said at the meeting that she had agreed to Stevan cashing in the AMP insurance policy. Aunty Sue and Meagan were at the meeting.
She could not say how often the deceased had said to her that 'Mick will be alright because he will inherit his father's property'. The deceased said this to her when she was younger. The last time the deceased said this to her was many years ago, prior to the time that she took over responsibility for looking after things for the deceased and probably prior to 2006. The deceased said this in general conversations when she was visiting the deceased at home and when the deceased was still living at home.
The only time she remembers having any discussion during the period 2006 to 2011 with the deceased about who she was going to leave her estate to was at the family meeting that Meagan and Aunty Sue were at.
She agrees that she was the closest grandchild to the deceased before the deceased signed the 2011 Will. She was looking after the deceased's finances at that time. After the deceased had been put into a facility in 2006, Susan and Meagan were trying to keep the deceased in the facility. They were unsuccessful. Up until the time that the deceased was allowed to go back home Susan and Meagan had been looking after the deceased's bank account.
During the meeting with Mr Haynes she knows that she left and that she definitely did not go back into the deceased's room.
She was in the room when the deceased said that she wanted to leave everything to her. She said to the deceased that she did not want that responsibility. She believes that the deceased then said something about leaving her estate to Bethany. When the deceased said this, she said, 'well that's up to you but I didn't think it was fair'. It is not her memory that the deceased then persisted with her expressed intention of leaving the estate to Bethany.
She does not remember there being any discussion with the deceased about secret trusts when she was in the room.
She does not know if the deceased agreed with her that she should not leave the estate to Bethany. The deceased did not agree or disagree. She does not know if the deceased agreed or disagreed. However, the deceased then changed her mind from Bethany to the great grandchildren.
She had not told Mr Haynes anything about her relationship with the deceased. She does not know how Mr Haynes knew about her relationship with the deceased. However, it would have come from that meeting because she had not met Mr Haynes before. Her relationship with the deceased may have come up in the conversation while they were all in the room but she does not remember.
After she had said to the deceased that she did not think that it would be fair for all of the estate to be left to Bethany, Mr Haynes did say to the deceased that it would not be unreasonable for the deceased to leave her (Robyn) money because she had been responsible for the deceased. It was at this point that she (Robyn) said, 'No. Then they will be saying "you're ok"', meaning that she had looked after herself.
She thinks that the correct sequence was first the deceased said she wanted to leave all her the estate to her, secondly all of the estate to Bethany, and thirdly to her 'blood great grandchildren'.
From what the deceased said, she was going to leave her estate equally to her great grandchildren. She does not know if there was a mention of how many great grandchildren there were. The deceased thought that the estate was going to be distributed into equal parts to her great grandchildren.
She does not accept that during the meeting she was in a very controlling position over the deceased. Nobody controlled the deceased. She did not instruct the deceased to do something different. She said that she would not accept the estate. What the deceased chose to do after that was up to the deceased. She does not accept that the deceased regarded her views on what she should do with her estate as very important. The deceased was a strong woman. She knew her own mind.
She does not recall there being any discussion about her and Michael being co‑executors. However, the deceased must have said that she and Michael were going to be co‑executors because she feels that she knew that she and Michael were going to be co‑executors when she left the room. This makes her think that the conversation about this occurred although she does not actually remember it.
It may have been the deceased or it may have been Mr Haynes who suggested that she and Michael were to be the executors. She knows that it was not her who suggested it.
She does not know what the deceased said during the meeting about how many great grandchildren she had. She does not have any recollection of the deceased telling Mr Haynes that she had eight great grandchildren.
As to her recollection of the questions that Mr Haynes asked during the meeting, she thinks that Mr Haynes asked the deceased what assets the deceased had to leave. She does not recall telling Mr Haynes what the deceased's assets were but it could have been either her or the deceased. She does not know. It was just a conversation.
The deceased did tell Mr Haynes that she had given the Dunsborough property to her daughters. She remembers this because Mr Haynes asked the deceased why she was not leaving money to her children and the deceased told Mr Haynes that she had given the Dunsborough block to her children and that they were taken care of. The deceased told Mr Haynes this while she was in the room. She definitely recalls this.
She knows that Mr Haynes asked the deceased about why she was not leaving anything to her grandchildren and that the deceased answered this question although she cannot recall 'anything sort of specific'.
She does not recall the specifics of the deceased explaining what she had left to her grandchildren or how she had dealt with her grandchildren over the years because it was a conversation that the deceased and Mr Haynes were having. She was just there. If she had realised what was going to happen she would have paid a lot more attention. But to her it was pretty straight forward. She just sat with the deceased because the deceased did not know Mr Haynes. She sat with the deceased and when the deceased was comfortable and Mr Haynes seemed good and could communicate with the deceased she left the room.
She cannot remember how long she was in the room for. She knows that she left before anything was finalised.
While she was in the room she would be 'in and out' in the sense that she was not focussing on the conversation. If she was asked something then she would obviously answer, but she was not sitting there having a conversation.
She was in the room to look after the deceased. She was not in the room to make sure the deceased did not do anything which would not be appropriate.
Before she went into the meeting with the deceased and Mr Haynes, she had no idea that she might be a beneficiary of the deceased's estate. It made no difference to her. The only thing that she probably would not have been particularly happy about is that if the deceased had left her property to Stevan.
She did not tell the deceased what to do. The deceased did not get told what to do.
When she left the meeting she did not understand that there had been a discussion about her being a trustee. She does not actually know what a trustee is.
When she left the deceased in her room with Mr Haynes, all that she remembers is going out to have a cigarette. She does not know if she spoke to Mr Haynes again. She does not recall if she went back into the room.
She was not in the room when the deceased made final decisions on anything. She did not know what was in the will until it was sent out. She was just there for a conversation that covered things, but she does not know what was finally decided because she was not there.
She did not discuss with Susan, Ainslie and Meagan the existence of the 2011 Will. She waited until they raised it with her. She did not notify them of the 2011 Will because they were not in the will. She does not understand why she would tell them.
She did not think that she should notify people who may be interested in knowing about the 2011 Will. She only notified people who were in the 2011 Will because that is what she thought she was meant to do. She was not at all concerned that if she notified Susan, Ainslie and Meagan about the 2011 Will and that they were not in it they would challenge it. Susan had specifically said to her that she would not contest the will unless the deceased's property was left to Stevan. Susan said this to her at the family meeting at the end of 2007.
General observations on Robyn's evidence
Although I do have some reservations about the credibility of Robyn's evidence as to her reasons for not informing Susan and Ainslie about the details of the 2011 Will at an earlier point in time than she did (an issue to which I will return later in these reasons), my overall general assessment of Robyn was that she was an honest and reliable, that is, credible witness.
There were, as will become apparent, some discrepancies between aspects of Robyn's evidence and aspects of the evidence given by other witnesses, specifically Mr Haynes, Susan and Meagan. However, where in the case of the discrepancies I state my preference for the evidence of the other witness or witnesses to the evidence of Robyn, I do so on the basis that Robyn's evidence on the matter in question was the result of an honest mistake in recollection or perception.
The defendants make a number of criticisms of Robyn's evidence in support of their contention that on important issues of fact she was not a credible witness, and that as a consequence her evidence does not support a finding that the deceased had testamentary capacity or knew and approved of the contents of the 2011 Will. Despite my above expressed view as to the credibility of Robyn's evidence I will, for purposes of completeness, at this point deal with the defendants' principal criticisms of her evidence and explain why I do not accept that they provide a basis for finding Robyn to be a witness lacking in credibility.
First, it is argued by the defendants that Robyn deliberately down played in her evidence, and more specifically in her witness statements, the deteriorating physical and mental condition of the deceased after 2006. Having watched Robyn give evidence I do not accept this to be the case. As I have said, to the extent that Robyn's evidence in relation to the deceased's physical and mental state in the last few years leading up to the deceased's death differs to the evidence of other witnesses, most particularly Susan and Meagan, to which I will refer in due course, my view is that the differences arise from honest mistakes on the part of Robyn in her recollection and/or perception. I note in this context that Robyn was clearly devoted to the deceased, and towards the end of the deceased's life was the relative who was closest to the deceased, and who spent most time with the deceased and most time looking after the deceased. In these circumstances I do not find it surprising that Robyn's recollection of the deceased's abilities and personality is perhaps more favourable to the deceased than the recollections of witnesses such as Susan, Meagan and Ainslie. Further, given the companionship and assistance that Robyn was providing to the deceased in the later part of the deceased's life, and the fact that Robyn was not involved in attempting to keep the deceased in residential care following her initial admission to hospital in 2006, I think it probable that the deceased would have been more favourably disposed to Robyn than to Susan, Meagan and Ainslie and hence would have been far less likely to expose Robyn to some of the 'less endearing' aspects of her personality to which others were exposed.
Second, it is said by the defendants that the evidence that Robyn gave during examination‑in‑chief by way of clarification of a paragraph in the first of her witness statements reflected adversely on her credibility. In the relevant paragraph of her witness statement Robyn, in stating that Mr Haynes during his meeting with the deceased suggested to the deceased that the great grandchildren share on the basis of an equal distribution to the grandchildren, went on to say that Mr Haynes gave an example that if the estate was worth 'say $300,000' this would mean that her two children would receive $150,000 and Mick's four children would each receive $75,000. When questioned about this paragraph in examination‑in‑chief Robyn said that she had not explained the situation clearly. She said that Mr Haynes did give an example but that she did not know if the example she had referred to was the 'exact example'. She said, in effect, that what she was intending to convey was that if the estate was worth $300,000 and there were two grandchildren, the $300,000 would be split between the two grandchildren so that her two children would get $75,000 and her brother's four children would get $37,500.
The defendants contend that the 'arithmetic involved in [Robyn's] change of position is not the point' and that what is relevant is the late change of position by Robyn which is 'strongly suggestive of intervention by the plaintiffs' legal advisers to invite a reconsideration by [Robyn] of her sworn testimony': defendants' closing submissions, [32(a)].
I do not accept the defendants' contention. In my view all that Robyn was doing in this aspect of her evidence was correcting the arithmetical error that was apparent on the face of the paragraph in the statement. She was not changing her evidence as to the substance of the suggestion that she said Mr Haynes made to the deceased, namely that the great grandchildren share on the basis of an equal distribution to the grandchildren.
Third, it is said by the defendants that Robyn's evidence given in cross‑examination after she was shown a letter (exhibit 81) written by Haynes Legal to a firm of solicitors called Summers Legal dated 18 May 2016 (which was written not by Mr Haynes but by a solicitor employed in his firm at the time) in which it was stated that Robyn's recollection of the meeting between Mr Haynes and the deceased was that she introduced Mr Haynes to the deceased, she was present for a short period thereafter, she left Mr Haynes with the deceased and left the building, she was not present when instructions in relation to the will were taken, and she did not attend at the execution of the will was inconsistent with her evidence‑in‑chief and reflected an attempt on her part to bring her evidence more into line with what she had said to the solicitor who had written the letter. The evidence given by Robyn after being shown the letter was the evidence referred to above that when she left the deceased with Mr Haynes all that she remembers is going out to have a cigarette, that she does not know if she spoke to Mr Haynes again, that she does not know if she went back into the room, and that she was not present in the room when the deceased made final decisions. Robyn's evidence was that the reference in the letter to her having told the solicitor that she was not present when instructions in relation to the will were taken was a reference to the fact that she was not present when the final decisions concerning the content of the will were made. Robyn's evidence was also that although she did not dispute what she is recorded in the letter as having said to the solicitor, she could not recall providing the information.
I accept that after Robyn was shown the letter her evidence did change in that whereas before being shown the letter she had said in her evidence that she did not go back into the deceased's room, after being shown the letter she said that she did not know if she had gone back into the room. However, I do not consider this change in her evidence to be of such significance as to warrant the conclusion that she was making a dishonest attempt to bring her evidence more into line with what had been said in the letter. Further, I do not find it inherently implausible (or to use the term put forward by the defendants 'transparently devious': defendants' closing submissions, [32(c)]) that Robyn's statement apparently made to the solicitor employed by Haynes Legal that she was not present when instructions in relation to the will were taken was a reference to the fact that she was not present when the final decisions concerning the content of the will were made. This is particularly so given that a little earlier in her cross‑examination, before she was shown the letter, Robyn had said that she did not know for how long she was in the room for and that she left the room before 'anything was finalised'. In short, Robyn may in her evidence have been mistaken as to the extent to which she was present at the meeting, and indeed based on Mr Haynes' evidence to which I will shortly refer I am satisfied that she was so mistaken. However, I am not persuaded that she deliberately attempted in cross‑examination to tailor her evidence so as to attempt to make it more consistent with the terms of the letter from Haynes Legal to Summers Legal.
In summary, and for the reasons I have stated, I do not accept that the criticisms made by the defendants about Robyn's evidence warrant the conclusion that she was not a generally honest and reliable witness. Nor do I accept that the defendants criticisms levied at Robyn provide a basis for concluding that her evidence does not support a finding that the deceased had testamentary capacity or knew and approved of the contents of the 2011 Will.
Paul Haynes
Evidence
Mr Haynes made his statement on 19 July 2017 (exhibit 56).
Although Mr Haynes did, during his evidence, indicate that he had some independent recollection of his dealings with the deceased, he gave much of his evidence of his meeting with the deceased on 15 July 2011 by reference to his handwritten notes of the meeting and a typed 'attendance note' which he dictated after the meeting. Similarly, Mr Haynes gave the majority of his evidence of his meeting with the deceased on 22 September 2011 by reference to a typed 'attendance note' which he dictated after the meeting.
Mr Haynes' evidence‑in‑chief (omitting those portions to which I have already referred above in setting out the non‑contentious facts) was as follows.
He started his firm Haynes Legal in 2006. He has worked as a sole practitioner in the firm since that time. He has, since his establishment of the firm, practised almost exclusively in wills, inheritance and probate matters.
He made his handwritten notes of the meeting on 15 July 2011 during the meeting. He dictated his attendance note of the meeting on 15 July 2011 either on the day of the meeting or on the day after the meeting. Similarly, he dictated his attendance note of his meeting with the deceased on 22 September 2011 on the day of the meeting or on the day after the meeting.
His handwritten note of his meeting with the deceased on 15 July 2011, his attendance note of his meeting with the deceased on 15 July 2011 and his attendance note of his meeting with the deceased on 22 September 2011 are a 'faithful and true' record of his meetings with the deceased. His attendance note of his meeting with the deceased on 15 July 2011 has a little more detail than his handwritten notes of the meeting because in his attendance note he supplemented his handwritten notes with his recollection of what happened.
When he arrived at Anchorage to meet with the deceased on 15 July 2011 he was met by Robyn who showed him to the deceased's room. He had not previously met Robyn or the deceased.
After being taken to the deceased's room he took instructions from the deceased alone in the absence of Robyn. During the meeting the deceased told him, among other things, the following:
1.Over the years she had helped both her daughters and all of her grandchildren;
2.She had given her half acre block of land in Dunsborough to her daughters Ainslie and Susan, that Susan had transferred her half of the block to Meagan and that Ainslie had sold her half of the block to Meagan;
3.Meagan is one of the children of Susan;
4.The grandchildren are Stevan, Robyn, Michael, Andrew and Meagan;
5. She does not know where Stevan is. She let Stevan look after her money at one point and bought him a car. He used her money to pay debts and to get himself out of bankruptcy;
6.Robyn is the daughter of Ainslie and the one who in the main comes to see her and looks after her. She gave Robyn $5,000 20 years ago for a deposit on a house and $3,000 for a carport;
7.Michael is the third child of Ainslie. He is a 'nice man'. She does not see him much. He lives in Dongara and she gave him money for a car;
8.She cannot remember giving Andrew money but she did buy him a ride‑on lawnmower. Andrew has gone 'off the rails'. She does not know where Andrew is;
9.Meagan, Ainslie and Susan do come to see her sometimes. Robyn comes and sees her more;
7.She knows that she has about $450,000 or probably more in the bank and that she has bond money from where she is living which is about $290,000 but this will reduce; and
8.She wanted to leave her entire estate to Robyn and Robyn could then do what she liked with the money.
He gave the deceased advice in relation to making an outright gift to Robyn, making a gift to Robyn into a half secret trust and making a gift to Robyn under a secret trust.
He made clear to the deceased that in his opinion if she gave all her money to Robyn she was in all probability going to cause discontent in the family, and with an estate of over $700,000 her daughters may very well be put out by this and may look at pursuing a claim under the 'Inheritance Act'. He said to the deceased that he was not saying that her daughters would be able to succeed in any such claim, but they would have the right to consider making such a claim.
At this point during his meeting with the deceased Robyn came and spoke with him and the deceased. The deceased told Robyn that she wanted her whole estate to go to Robyn. Robyn made absolutely clear that she did not wish to have the whole estate. Robyn said that it would not be fair on all the others and she was also equally concerned that she should not have the responsibility of deciding how to distribute the estate.
After Robyn had expressed her views on the matter the deceased stated that she felt that her daughters and her grandchildren had all benefited from her one way or another, and that she therefore wanted to secure her estate to help her great grandchildren.
He then spoke to the deceased again alone. He told her that her daughters would not necessarily be happy about her leaving her estate to her great grandchildren. He advised the deceased that her grandchildren have no right to be unhappy and they only have rights to pursue any claim should their parents predecease her. The deceased stated that her daughters would not, or should not, be unhappy with her securing money for their own grandchildren and therefore they would no doubt be quite happy with what she was proposing to do.
The deceased made it absolutely clear to him that she wanted Robyn and Michael to be the executors of her will, and that she wanted all of the estate to be left in trust for her great grandchildren until the age of 21.
He then discussed with the deceased whether she wanted the estate split into fifths so that the great grandchildren would share equally the one‑fifth that their parent as a grandchild might have had. The deceased stated that she just wanted all of the grandchildren to have exactly the same and the estate was therefore to be divided equally between all of the eight great grandchildren. The deceased instructed him to make clear in the will that the great grandchildren were to be the biological children of her own grandchildren.
The deceased instructed him to incorporate in the will a declaration of her reason for not leaving the estate to her daughters, namely that her daughters had always been looked after and that she is sure that they will agree to the estate being divided between their own grandchildren.
At this point Robyn re‑joined him and the deceased. He advised Robyn what the deceased wanted to do. Robyn stated that she was happy to be the executor of the deceased's will.
He discussed the possibility of instructing a trust company because it was going to be quite a responsibility for Robyn and Michael to be the executors. However, Robyn indicated that she and her brother could look at this once they had commenced the administration of the deceased's estate. The deceased was happy with this and indicated that she would rather have Robyn and Michael as executors than a trust company being formally instructed. The deceased said that she understood that it would be wise for Robyn and Michael to instruct a trust company such as Perpetual Trustees to manage the trust as it is clearly quite a responsibility to hold all the money for several years for the children until they are 21.
During his meeting with the deceased he formed the view that the deceased, although an elderly lady, was clear and coherent in her conversation with him, could understand what he was saying to her, and was clear in her instructions to him. He formed the view that the deceased clearly had full testamentary capacity. However, despite being left in no doubt that the deceased was competent to make a will, he regarded her decision to leave her estate to her great grandchildren as unusual because in doing so she was not only cutting out her children, but also her grandchildren. For this reason he thought that it was best to have the deceased's doctor confirm her capacity to make a will. It was against this background that he arranged for Dr Bohmer to provide his opinion as to the deceased's testamentary capacity.
Later on 6 September 2017 the defendants' solicitors sent a responsive letter to the plaintiffs' solicitors bearing that date in which they advised the plaintiffs' solicitors that they did not consider that the matters referred to by them in their letter of that date required Dr De Felice to prepare a revised report. They stated that they would not be requesting Dr De Felice to prepare a revised report.
Later again on 6 September 2017 the plaintiffs' solicitors sent a further letter to the defendants' solicitors bearing that date. In their letter they notified the defendants' solicitors that they may at a later stage seek to rely upon the 'communications of 5 September 2017', which was presumably intended to be a reference to the 'communications of 6 September 2017', on the question of costs, 'particularly if it becomes apparent that Dr De Felice's conclusions had no regard to the material referred to in our letter (the G.P and lawyer's witness statements and the lawyer's notes) but should have'.
The plaintiffs' solicitors reference in their above mentioned letter dated 6 September 2017 to the 'lawyer's notes' was a reference to the handwritten notes and typed file notes made by Mr Haynes of his meetings with the deceased on 15 July 2011 (the day on which he took instructions from the deceased) and 22 September 2011 (the day on which he took the deceased through the terms of the Will).
On 26 October 2017 Chaney J, on the application of the plaintiffs, ordered the defendants to 'forthwith disclose to Dr De Felice the witness statements sought to be relied upon by the plaintiffs and the documents referred to therein'. His Honour also ordered that the defendants provide the plaintiffs with any further report prepared by Dr De Felice by 23 November 2017.
On 8 December 2017, by which time the plaintiffs' solicitors had provided to the defendants' solicitors a copy of an expert report they had obtained from psychiatrist Dr Olivia Lee dated 19 September 2017, the plaintiffs' solicitors sent a letter to the defendants' solicitors bearing that date. In their letter they stated that given that expert evidence had now been disclosed the plaintiffs considered it appropriate to review the strength of the action and to address the issue of whether it could be resolved so as to avoid further substantial legal costs. They then set out what in their view were the strengths of the plaintiffs' case and the weaknesses of the defendants' case. In the course of doing so they expressed the view that the defendants had alleged undue influence against the first plaintiff without any evidence to support the allegation. They expressed the further view that the plea of undue influence was enough by itself to justify a costs order against the defendants in the event that the Will was proved. A little later in their letter they stated:
6.It is possible that a court might find that until 23 August 2017, by which time you had the file notes and witness statement of Mr Haynes, and the statement of [the first plaintiff], that the defendants were justified in requiring the executors prove the will in solemn form (although in our view the defendants have gone way beyond that position). But after that time the defendants, properly advised, should have, in our view, appreciated the futility of their position. If you are of the view we are or might have it wrong on the costs issue should the defendants fail, please give us your reasons.
The plaintiffs' solicitors then concluded their letter by making what they expressed to be a Calderbank offer, namely that if the defendants withdrew the Defence and Counterclaim and took no further part in the action and the Will was proved in solemn form, the plaintiffs would not seek costs against the defendants in either the action or the counterclaim, and the plaintiffs as executors would consent to an order that the deceased's estate pay to the defendants an amount (which was specified) as a contribution towards the defendants' costs of the action.
On 15 January 2018 the defendants' solicitors sent a letter to the plaintiffs' solicitors bearing that date in response to the letter from the plaintiffs' solicitors dated 8 December 2017. In their letter they advised that the Calderbank offer made by the plaintiffs was rejected by the defendants, and that they (that is, the defendants' solicitors) regarded the offer as 'extremely unreasonable'. They advised that the defendants were on an entirely 'without prejudice basis' prepared to settle the action on terms more favourable to the plaintiffs than the terms of the offer made by the defendants as set out in their letter dated 21 August 2017. They then set out the terms of the defendants' settlement offer, which they expressed to be a Calderbank offer and to be open for 28 days.
Having set out the terms of the defendants' settlement offer, the defendants' solicitors stated that the offer had been made 'in regard to matters' which in their view 'adversely impacted on the chances of [the plaintiffs] being successful' in the action. They then proceeded to set out in some detail the matters which they considered did adversely impact on the plaintiffs' likelihood of success in the action. In the course of doing so they stated that the plaintiffs' solicitors' earlier assertion that the defendants had alleged undue influence against the first plaintiff without any evidence to support it was 'ill advised and … rejected'.
On 30 January 2018 the plaintiffs' solicitors sent a letter to the defendants' solicitors bearing that date. In their letter they expressed the view that no further analysis of the merits was called for given that the defendants did not accept the prima facie case outlined in their letter dated 8 December 2017. They expressed the view that the prudent and costs sensible course was for the defendants to drop their defence in the action and allow the plaintiffs to proceed on an unopposed basis without conditions. They stated that the way would then be open for the defendants to bring a FPA claim after the grant of probate if they wished to do so. They stated that if the defendants wished to accept the plaintiffs' offer of 8 December 2017 they could advise of this and the plaintiffs' solicitors would take instructions.
Applicable legal principles
It is trite law that the court has a wide discretion in determining by whom the costs of an action should be borne: Supreme Court Act 1935 (WA), s 37. Some guidance on the exercise of the discretion is provided by the statement in O 66 r 1 of the RSC that costs generally follow the event.
The general rule that costs follow the event applies in probate actions. However, in probate actions the courts have recognised two categories of cases in which the general rule may be departed from. The two categories are as follows:
1.Where the testator or a residual beneficiary is the cause of the litigation; and
2.Where there are sufficient and reasonable grounds to propound or challenge the purported will.
In cases falling within the first category the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate. In cases falling within the second category the costs may be left to be borne by those who incurred them.[3] The two categories of cases in which the general rule may be departed from are a reflection of the public interest that doubtful wills should not pass easily into proof because of the cost of opposing them.
[3] See generally Mitchell v Gard (1863) 3 Sw & Tr 275, 277; (1863) 164 ER 1280, 1281; Re Green (dec'd) [1969] WAR 67, 83; Clay v Karlson [2001] WASC 141 [147] - [158]; Paraskov v Paraskos [2002] WASC 109 [66] - [67]; Oreski v Ikac [2007] WASC 195(S) [2]; Oreski v Ikac [2008] WASCA 220 [68]; Vincent v Close [2014] WASC 5(S) [3]; Prichard v Prichard [2015] WASC 170(S) [4] ‑ [5]; Saunders v The Public Trustee [2015] WASCA 203 (S) [6].
Although the discretion to award costs must be exercised judicially, the classes of case in which the judicial discretion may appropriately be exercised to make a costs order which departs from the general rule should not be regarded as closed. In every case it is necessary to have regard to all the circumstances.[4]
[4] Saunders v The Public Trustee [9].
As to the relevance to the issue of costs of a party in a probate action unsuccessfully alleging undue influence, in Re Cutcliffe's Estate[5] Hodson LJ (with whom Omerod LJ agreed), said the following:
[5] Re Cutcliffe's Estate [1959] P 6; [1958] 3 All ER 642, 648 ‑ 649.
It seems to me a strong thing, and a thing to which I should be slow to listen, to maintain that people whose evidence has been found … to have been wholly false and who have lost their case … should be heard to say that an order for costs should be made wholly or in part in their favour because the court normally exercises its discretion in these cases along certain lines and in accordance with certain principles … In the Probate Division, notwithstanding exceptions to be found in the books, the probability is that people who unsuccessfully make pleas of undue influence and of fraud will be condemned in the costs not only of that charge but of the whole action.
The evidence in this case was the evidence of…the first defendant and his wife, and it was directed not only to the question of want of knowledge and approval but also to the question of undue influence. A great deal of evidence was directed to both these matters. It was not one of those cases where the defendants merely put the plaintiff to proof that the testator knew and approved of the contents of the will. They took on themselves the task of proving, if they could, that not only was that onus not discharged, but the will itself was brought into existence by the undue influence of the plaintiff. That they wholly failed to do. Having failed, and having failed because they were disbelieved, it seems to me almost inevitable that an order for costs would be made against them. I think that the order was rightly made and that this appeal should be dismissed.
Similarly, in Veall v Veall[6] Santamaria JA (with whom Beach and Kyrou JJA agreed) said:
[6] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123 [166] footnote 67.
By pleading want of knowledge and approval alone, the person challenging the will puts the burden of proof on those who propound the will, without assuming the difficult task of proving undue influence. Moreover, even if those propounding the will succeed in satisfying the court as to knowledge and approval they will not necessarily be given costs against their opponents, whereas if undue influence is unsuccessfully pleaded, those who do so only rarely escape having to pay the costs.
Nonetheless, it is not the position that in every case in which a party fails to prove an allegation of undue influence they will be required to pay the costs of the opposing party.[7] Indeed, in some circumstances the party that alleges undue influence may not be required to pay the costs of the opposing party even if the allegation is tenuous or weak. It will all depend on the particular circumstances of the case. Thus in Hornsby v Hornsby [No 3][8] the defendant challenged wills made by the testator, his mother. In doing so he advanced a case of lack of testamentary capacity and undue influence upon the testator by the testator's accountant who took instructions for, and arranged the preparation and execution of, both wills. The allegation of undue influence was strongly pursued against the accountant by lengthy cross‑examination at trial. The plaintiff sought an order that the defendant pay the costs of the action and for the costs to be taxed on an indemnity basis. The plaintiff's principal basis for seeking this order was that the defendant had unreasonably opposed proof of the last of the wills and did so without proper enquiry into the facts and without reasonable grounds. However, the plaintiff also contended in support of the application for costs that the defendant had unsuccessfully made an allegation of undue influence. In refusing the plaintiff's application and deciding that there should be no order against the defendant requiring him to pay costs E M Heenan J made the following statements:[9]
[7] Re Herbert Brothers (1990) 101 FLR 279, 313 ‑ 317.
[8] Hornsby v Hornsby [No 3] [2015] WASC 159.
[9] Hornsby v Hornsby [No 3] [22] ‑ [28], [31] ‑ [32], [36] ‑ [38].
22The defendant refers to the exceptions to the event rule recognised in Middlebrook v Middlebrook, Re Green deceased, and also in Clay v Karlson [2001] WASC 141 [147] and submits that he had reasonably been led into this litigation by a bona fide belief in his case and has therefore felt that it was desirable to enquire into the testamentary dispositions of his mother and as a consequence should be relieved of his burden as to costs to the extent that there should be no order that pay the plaintiff's costs.
23As to the plaintiff's submissions that the defendant, having an advanced an unsuccessful claim for undue influence, should be ordered to pay the costs associated with that claim, the defendant submits that an unsuccessful claim of undue influence is not of itself a basis for excluding the party making the allegation from the second exception ‑ Re Herbert (1990) 101 FLR 279, 303, 311 ‑ 313 applying Mitchell v Gard (1863) 164 ER 1280, 1281.
24I accept that there were circumstances in the present case which called for a vigilant examination of circumstances leading to Mrs Hornsby making and executing her wills of 29 May 1996 and of 1 December 2008 and that the validity of either will could not be presumed simply from evidence of due execution and of apparent capacity by the testatrix. The reasons for that conclusion have been set out extensively in the reasons for judgment in the case itself. Consequently, I consider that there were grounds which warranted the plaintiff being required to prove her mother's last will in solemn form and that the defendant was justified in requiring strict proof of his mother's testamentary capacity, due execution and to examine the circumstances which led to the execution of the wills of 1996 and 2008.
25From the defendant's point of view, of course, it was not sufficient merely to challenge the will of December 2008 because he was seeking, by his counterclaim, to propound the will of 1988 which had the most favourable dispositions to him. Hence, he needed to prove that the 1996 will was invalid and therefore had not revoked the will which he was propounding.
26Had the defendant simply required strict proof of the 2008 will and in doing so availed himself of the opportunity to raise issues of lack of testamentary capacity or even undue influence or unconscionability having regard to the circumstances under which that will was made and the contemporaneity of the inter vivos dispositions I would have had little hesitation in concluding that there were grounds for him to require that degree of scrutiny without being liable in costs should that last will be proved.
27The real issue, so it seems, is whether the defendant's challenge to the 1996 will, on similar but not identical grounds and his counterclaim propounding the 1988 will made before the controversies between himself and his mother and the litigation in 1994 over the Lakeview farm constituted 'a bridge too far'.
28… The case for undue influence or unconscionable conduct by the accountant was weak arising from little more than a perceived lack of sympathy entertained by the defendant against the role of the advising accountant,…, arising from protracted negotiations and disputes about the financial provisions made by [the deceased] to [the defendant] in relation to his decision to acquire a farm at Denmark and to disengage from his involvement in Quinns Farm.
…
31I consider that, in some respects, the challenges by the defendant to his mother's wills of 1996 and 2008 were, so far as they alleged undue influence, unconscionable conduct and to the extent that they did, as I am satisfied they did despite the defendant's submissions, challenge the deceased's mental and cognitive capacities, went considerably beyond any evidence adduced, whether in chief or by cross-examination, to support them. Those challenges did expand and extend both the preparation for and the conduct of the trial.
32However, it is difficult and somewhat artificial to attempt to dissect the preparation for and the conduct of this trial into separate issues each with their finite limits in order to attempt some apportionment of the costs or to identify some particular issue or issues upon which the defendant should be liable for costs. Difficult and artificial while it would be to attempt to categorise any such subdivisions, the complexity would inevitably become compounded if, by doing so, it became necessary to tax costs and apportion claims for costs as a result of some such categorisation. Rather, I consider that it is more realistic and a better recognition of the true contest between the parties to acknowledge that, for reasons which were given in the decision itself, this was a case where full scrutiny of the will or wills being propounded by the plaintiff for probate was not only justifiable but necessary.
33That conclusion will not allow this case to be fitted neatly into any of the categories identified in Re Green as being the types of cases where the general rule that costs should follow the event may be departed from. Rather it shows that those categories are indeed neither exhaustive nor rigidly prescriptive and that every case must be examined according to its own circumstances.
…
36I must confess to reservations as to whether or not the challenge to the 1996 will and the counterclaim propounding the 1988 will were justifiable on objective standards from the standpoint of a reasonably well informed and advised litigant in possession of the facts known at the date of the commencement of these proceedings. However, this appears to be a matter upon which there is scope for reasonable differences of opinion and I do not think that it would be proper, in the exercise of a discretion such as this, to reach a conclusion with substantially adverse consequences on an issue so finely balanced. It is better, I consider, to treat this as an occasion when a substantial challenge to the deceased's 2008 will was justifiable and, once that is acknowledged, to realise that the challenge would inevitably bring with it a scrutiny of earlier wills ...
37I do not consider that a trial limited to the validity of the 2008 will would have avoided…examinations of earlier wills made by the deceased. So a search for savings in time and effort if this trial had been confined to issues dealing with the 2008 will alone would be unlikely to return much in the way of economy.
38In the circumstances, therefore, I consider that there should be no order against the defendant requiring him to pay costs of the proceedings, except for such interlocutory orders for costs which have already been made. Should any party wish to pursue the matter, where costs of interlocutory applications have been reserved, in the absence of agreement, there can be liberty to apply.
As to the principles relating to indemnity costs, I refer to, without repeating, my statements of the relevant principles in Harvey Industries Group Pty Ltd v Jones [No 2].[10]
[10] Harvey Industries Group Pty Ltd v Jones [No 2] [2017] WADC 160 [15] ‑ [22].
The parties' submissions
The principal submissions made on behalf of the plaintiffs in support of the application for the costs order that they seek can be summarised as follows:
1.By the time that the plaintiffs made their first Calderbank offer in the letter from their solicitors to the defendants' solicitors dated 22 January 2017 the defendants knew or ought to have known that:
(1)an independent lawyer, Mr Haynes, who had taken instructions for and prepared the Will, had no doubt about the deceased's capacity;
(2)they had made allegations which were false or for which they had no evidence, one of which was the allegation of undue influence and the second of which was an allegation that the first plaintiff knew Mr Haynes before arranging for him to meet with the deceased so that he could take instructions for the preparation of the Will; and
(3)without evidence to impugn the testimony of Mr Haynes their defence was 'doomed to fail'.
2.By 23 August 2017 the defendants had all of the plaintiffs' witness statements, save for the report of the psychiatrist Dr Olivia Lee dated 19 September 2017, as well as discovered documents including the file notes of Mr Haynes. In the absence of any evidence to impugn the testimony of Mr Haynes, 'any reasonable defendant, properly advised, should at this point have realised that their defence was doomed to fail'.
3.In the letter from the plaintiffs' solicitors to the defendants' solicitors dated 8 December 2017 the plaintiffs 'laid out' their entire case to be made at trial and made a further Calderbank offer which was rejected;
4.The defendants refused to give any of the plaintiffs' evidence to Dr De Felice until ordered to do so by Chaney J on 26 October 2017 and consequently forced the plaintiffs to engage their own expert;
5.The defendants failed to request Dr De Felice for his opinion as to the deceased's testamentary capacity as at 15 July 2011, the day Mr Haynes took instructions from the deceased, despite being aware, as is apparent from their solicitors' letter to the plaintiffs' solicitors dated 1 June 2016, that where instructions for a will are taken before the will is signed, the date the instructions are given is an important date. Under cross‑examination Dr De Felice 'openly conceded that [the deceased] had testamentary capacity on 15 July 2011'. Properly briefed Dr De Felice 'would no doubt have made this concession and saved the expense of a trial and much of the getting up for trial';
6.The defendants rejected the plaintiffs' request that they identify some of the documents referred to by Dr De Felice in his report dated 1 August 2017;
7.At trial the defendants sought to 'impugn the professional integrity of Dr Lee and the professional competence of Mr Haynes'; and
8.In their written closing submissions the defendants alleged, without any evidence, and without notice to Mr Haynes, that Mr Haynes had acted 'fraudulently'.
The defendants, for their part, do not suggest that this is a case which falls within the first of the above identified categories of cases in which the general rule related to costs may be departed from. Rather, they submit that this is a case falling within the second category, that is, a case in which there were sufficient and reasonable grounds for them to challenge the Will. They identify the circumstances which they assert justify this conclusion.
The defendants further submit that the fact that they unsuccessfully alleged undue influence does not of itself provide a basis for concluding that the case does not fall within the second category of cases in which the general rule may be departed from. They argue that they have brought themselves within the second category because there was a direct and expressly pleaded strong link between the allegations of lack of testamentary capacity and lack of knowledge and approval on the one hand, and undue influence on the other. They submit that the evidence relied upon by them to prove undue influence was 'inextricably linked' to the evidence supporting the defences of lack of testamentary capacity and absence of knowledge and approval. They submit that the evidence adduced at trial was no different to the evidence that would have been adduced if the allegation of undue influence had not been pleaded.
I note that the defendants' assertion that they are entitled to their costs being paid out of the deceased's estate despite the fact that they are not contending that the present case falls within the first category of cases in which the general rule may be departed from is founded on a reference made by E M Heenan J in Hornsby v Hornsby [No 3][11] (without any express adoption thereof) to a statement made by the authors of Law of Succession (Lexis Nexis Butterworths) (2013)[12] to the effect that if a party can bring themselves within the second category either no order as to costs will be made, or costs will be allowed, either wholly or partly, out of the estate. As is apparent from my above statement of the relevant legal principles, I am not persuaded that this statement accurately reflects the current state of the law in this jurisdiction.
[11] Hornsby v Hornsby [No 3] [19].
[12] Law of Succession (Lexis Nexis Butterworths) (2013) [23.5].
Analysis and decision
Were there reasonable grounds for challenging the Will?
I do not accept the plaintiffs' submission that the defendants should, by 22 January 2017 or any later date, have realised that their defence, at least in so far as it was based on allegations of lack of testamentary capacity and lack of knowledge and approval, was 'doomed to fail'. Rather, and as I think is apparent from the Judgment, I am satisfied that the defendants did, despite having been provided with the plaintiffs' evidence including the witness statement and file notes of Mr Haynes, have sufficient and reasonable grounds to challenge the Will on the grounds of lack of testamentary capacity and lack of knowledge and approval. To put it another way, I am satisfied that there were circumstances in the case which called for a vigilant examination of the circumstances leading to the deceased making and executing the Will: Hornsby v Hornsby [No 3].[13] In my view the relevant circumstances included the following:
[13] Hornsby v Hornsby [No 3] [24].
1.The deceased's very advanced age, frailty and very significant health difficulties (including almost total blindness and a severe hearing impairment) at the time that she gave instructions for, and executed, the Will;
2.In or around 2007 and 2008 the deceased held intense unfounded beliefs that Susan and Susan's daughter, Ms Meagan Smart (Meagan), had been stealing from her;[14]
[14] Judgement [535], [630].
3.From 2006 the deceased on occasions exhibited unusual and/or aggressive behaviour towards Susan and Meagan;[15]
[15] Judgment [628].
4.From 2007 onwards the deceased suffered from a mild cognitive impairment;[16]
[16] Judgment [546].
5.From 2008 onwards the deceased exhibited confusion and worsening problems with her memory;[17]
[17] Judgment [628].
6.From 2010 the deceased suffered from dementia;[18]
[18] Judgment [607].
7.In April 2011 the deceased, during an occupational therapy assessment, exhibited some confusion in relation to the number of her grandchildren and great grandchildren;[19]
[19] Judgment [97], [641].
8.The Will excluded two generations of family members (children and grandchildren);
9.A period of a little over three months passed between the deceased giving her instructions for the Will on 15 July 2011 and her execution of the Will on 23 September 2011;
10.When the deceased saw her general practitioner Dr Bohmer on 6 September 2011 (that is, during the period between giving instructions for the Will and executing the Will) for the purpose of undergoing an assessment of her testamentary capacity, she told Dr Bohmer that she wanted to leave her entire estate to her great granddaughter Bethany, which statement was inconsistent with the instructions that she gave to Mr Haynes and her confirmation of those instructions at the time that she executed the Will;[20] and
[20] Judgment [650].
11.Prior to the trial of the action the defendants had obtained four reports from Dr De Felice dated 1 August 2017, 13 November 2017, 23 November 2017 and 1 December 2017 which, when read together, provided support for their contentions that the deceased lacked testamentary capacity at the time of giving instructions for, and executing, the Will.
Although the above circumstances did not, for the reasons that I set out in the Judgment, ultimately cause me to conclude that the deceased did not have testamentary capacity or did not know and approve of the contents of the Will, the circumstances were such, in my view, as to make it reasonable for the defendants to challenge the Will on these grounds.
I hold a different view, however, so far as the undue influence allegation is concerned. The allegation as pleaded was in essence based on the age and infirmity of the deceased, the first plaintiff's relationship with the deceased, the first plaintiff's role in facilitating the deceased meeting with Mr Haynes on 15 July 2011, the role that the first plaintiff played during the deceased's meeting with Mr Haynes on 15 July 2011, and the fact that the first plaintiff's children would benefit under the Will. However, in my opinion the defendants should have appreciated, at least from the time that they were provided with the first plaintiff's witness statement and the witness statements and file notes of Mr Haynes, that the allegation of undue influence, that is, the allegation that the deceased's mind was overborne by undue pressure or coercion exerted by the first plaintiff, was extremely weak if not untenable. My reasons for holding this opinion are apparent from [700] ‑ [711] of the Judgment. I do not accept the submission made by the defendants that there was a direct and strong link, pleaded or otherwise, between the alleged lack of testamentary capacity and lack of knowledge and approval on the one hand, and the allegation that the deceased's mind was overborne by undue pressure or coercion exerted by the first plaintiff on the other. In short, I do not consider that there were sufficient and reasonable grounds for the defendants to challenge the validity of the Will on the ground of undue influence.
I accept the submission made by the defendants that the evidence adduced at trial was no different to the evidence that would have been adduced if the allegation of undue influence had not been pleaded. However, this in my view just serves to demonstrate the lack of any real evidentiary foundation for the allegation of undue influence.
Conduct of the defendants
Putting to one side for the moment the defendants' conduct in pursuing the undue influence allegation, there were, in my view, some troubling aspects about the way in which the defendants, through their legal representatives, conducted themselves during the course of the litigation and at trial.
First, the defendants' conduct in refusing to identify for the plaintiffs some of the documents referred to by Dr De Felice in his first report dated 1 August 2017 was entirely unreasonable.
Second, the defendants' conduct in refusing to comply with the plaintiffs' request for the plaintiffs' evidence, and in particular the witness statement and file notes of Mr Haynes, to be provided to Dr De Felice, and to effectively require the plaintiffs to seek an order from the court compelling the defendants to disclose these materials to Dr De Felice, was also totally unreasonable. Although I do not accept the assertion made by the plaintiffs that it was this refusal that made it necessary for them to seek their own expert report from Dr Lee - in my view this would have been necessary in any event in light of the contents of Dr De Felice's report dated 13 November 2017 which he prepared after having been provided with the plaintiffs' evidence - there was simply no good reason for the defendants to have adopted the position that they did.
I note further in this context that it is the position, as the plaintiffs assert, that the defendants did not, in requesting Dr De Felice to prepare the first of his reports, ask him to consider the issue of the deceased's testamentary capacity as at 15 July 2011, the day on which the deceased first gave her instructions to Mr Haynes. Nonetheless, I do not accept the submission made by the plaintiffs that if Dr De Felice had been 'properly briefed' he would have conceded prior to trial that the deceased did have testamentary capacity as at 15 July 2011 with the result that there would have been no need for a trial. I do not accept this submission because the fact is that after he had been 'properly briefed' Dr De Felice expressed the view, in his second report dated 13 November 2017, that 'he could not conclude from the documentation provided that [the deceased] had testamentary capacity when she gave instructions and executed [the Will]' (emphasis added). In any event, I do not think that it is correct to say, as the plaintiffs do, that Dr De Felice ultimately 'openly conceded' at trial that the deceased had testamentary capacity as at 15 July 2011. The extent of Dr De Felice's concessions as to the deceased's testamentary capacity as at 15 July 2011 are set out in the Judgment.[21]
[21] Judgment [585], [588] ‑ [589] and [648].
The third aspect of the defendants' conduct which is in my view concerning is that the defendants did in their written closing submissions in substance allege against Mr Haynes that he had fraudulently created part or all of the file notes of his attendances on the deceased, and had deliberately given false evidence about his dealings with the deceased and his assessment of her testamentary capacity.[22] No allegations to this effect were put to Mr Haynes during cross‑examination so he was never given the opportunity to respond to them. In my view there was simply no basis in the evidence adduced at trial for such serious allegations to have been made against Mr Haynes by way of closing submissions.
[22] Judgment [257] ‑ [265].
As I have pointed out, another of the complaints made by the plaintiffs about the defendants' conduct in this case is that they maintained the allegation that the first plaintiff knew Mr Haynes before she made contact with him to arrange for him to meet with the deceased for the purpose of taking instructions and preparing the Will. It is true that the defendants did plead this allegation.[23] However, the allegation was not maintained at trial. In fact the defendants' counsel expressly disavowed the allegation during the plaintiffs' counsel's opening address.[24] Therefore, I do not consider that this is a matter of significance in determining the question of costs.
[23] Defence and Counterclaim, [4(a)(ii)(2)].
[24] Trial transcript, page 21.
The appropriate costs order
As I have already indicated the plaintiffs submit, in essence, that the defendants' failure to make out their grounds for objecting to the validity of the Will, the defendants' maintenance of the undue influence allegation, and the defendants' other conduct to which I have just referred, warrants the conclusion not only that the general rule as to costs should apply, but also that from 27 January 2017 the defendants should be ordered to pay their costs on an indemnity basis.
Consistently with the cases to which I have referred, I do not overlook the significance of the defendants taking to trial the undue influence allegation when there were not, in my view, on the available evidence sufficient and reasonable grounds for them to do so. Nor do I overlook the significance of the other aspects of the defendants' conduct which I have found to be unreasonable. However, when I weigh these factors against my finding that the defendants did have sufficient and reasonable grounds for objecting to the validity of the Will on the grounds of lack of testamentary capacity and lack of knowledge and approval, and that the case was one which called for a substantial and vigilant examination of the circumstances leading to the deceased making and executing the Will, I consider that it would be an unduly harsh outcome to require the defendants, in the exercise of my discretion, to pay all of the plaintiffs' costs of the action even solely on a party and party basis. This is particularly so, in my view, given the conduct of the defendants in attempting to settle the action and the fact that despite my findings against the defendants on the case they advanced, I took a generally favourable view of the honesty and reliability of the evidence given by them and the other non‑expert witness called by them, Meagan.
Further, I do not consider that this is a case in which it is appropriate to order that the defendants pay the costs of the plaintiffs on the issue of undue influence alone. The allegation of undue influence made against the first plaintiff did not significantly alter the way in which the litigation was conducted, or lengthen the course of the litigation, or add to the evidence that needed to be adduced by either party, or alter the way in which either party presented its case at trial, or alter to any significant extent the nature of the cross‑examination that the first plaintiff was subjected to. In short, and not dissimilarly to the situation that existed in Hornsby v Hornsby [No 3] it would, given the way the case was run, in my view be artificial to make an order requiring the defendants to pay the plaintiffs' costs of meeting the undue influence allegation.
For the reasons I have stated, I decline to make an order in the terms sought by the plaintiffs or an order that the defendants pay the plaintiffs' costs of the action on a party and party basis.
That leaves the question whether the defendants should be able to recover their costs from the deceased's estate. The fact that the defendants do not contend that they have brought themselves within the first of the categories of cases in which the general rule as to costs may be departed from is, on my statement of the applicable legal principles, of itself a sufficient basis for refusing their request for their costs to be paid out of the estate. However, even if contrary to my understanding of the applicable law it is open to the court, in the exercise of its discretion, to order that the costs of an unsuccessful party in a case which falls within the second category of cases are to be paid out of the estate, I do not consider that this is a case in which any such discretion should be exercised in the defendants' favour. In my opinion the defendants' conduct in unsuccessfully pursuing the undue influence allegation and in engaging in the other unreasonable conduct to which I have referred, compels the conclusion that this is not a case in which the defendants should be permitted to recover their costs from the estate. I therefore decline to order that the defendants' costs be paid from the deceased's estate.
Conclusion
For the reasons I have given, and subject to hearing from the parties, I would make orders as follows:
1.There be no order for costs against the defendants; and
2.The defendants bear their own costs of the action.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
ASSOCIATE TO THE HONOURABLE JUSTICE DERRICK27 JULY 2018
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