Public Trustee in and for the State of Western Australia v Attorney General of Western Australia
[2019] WASC 258
•17 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA -v- ATTORNEY GENERAL OF WESTERN AUSTRALIA [2019] WASC 258
CORAM: ACTING JUSTICE STRK
HEARD: 15 MAY 2019
DELIVERED : 17 JULY 2019
FILE NO/S: CIV 1966 of 2018
BETWEEN: PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA
Plaintiff
AND
ATTORNEY GENERAL OF WESTERN AUSTRALIA
First Defendant
THE ROMAN CATHOLIC ARCHBISHOP OF PERTH A CORPORATION SOLE WITHIN THE MEANING OF THE ROMAN CATHOLIC CHURCH PROPERTY ACT 1911
Second Defendant
ALDONA FOLEY
Third Defendant
Catchwords:
Wills and estates - Grant of probate in solemn form - Testamentary capacity - Principles in relation to testamentary capacity - Proof of testamentary capacity - Plaintiff propounding latest will
Legislation:
Roman Catholic Church Property Act 1911 (WA)
Wills Act 1970 (WA)
Result:
Grant of probate in solemn form in respect of the will dated 25 September 1992
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M Curwood |
| First Defendant | : | Mr J Bennett |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Public Trustee |
| First Defendant | : | State Solicitor's Office |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Case(s) referred to in decision(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Burnside v Mulgrew [2007] NSWSC 550
Burrows v Burrows (1827) 1 Hagg Ecc 109; 162 ER 524
Collins by her next friend Poletti v May [2000] WASC 29
Frizzo v Frizzo [2011] QCA 308
Frizzo v Frizzo [2011] QSC 107
Harwood v Baker (1840) 3 Moo PC 282
Kerr v Badran [2004] NSWSC 735
Lock v Phillips [2014] WASC 92
Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337
Public Trustee v Nezmeskal [2018] WASC 394
Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17
Re Estate of Griffith (Dec); Easter v Griffith (1995) 217 ALR 284
Re Estate of Hodges (Dec); Shorter v Hodges (1988) 14 NSWLR 698
Re Groffman (Dec) [1969] 1 WLR 733
Re Levy, (Dec) (No 2) [1957] VR 662
Read v Carmody [1998] NSWCA 182
Timbury v Coffee (1941) 66 CLR 277
West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
Worth v Clasohm (1952) 86 CLR 439
ACTING JUSTICE STRK:
By this proceeding, the Public Trustee seeks an order pronouncing that the will of Ona Rasymas, late of Gwenyfred Nursing Home, Gwenyfred Road, South Perth, executed on 25 September 1992 (1992 Will), has force and effect in solemn form of law as the will of the Deceased. The Public Trustee also seeks an order directing the Probate Registrar to settle a grant of probate of that will in favour of the Public Trustee.
In the alternative, the Public Trustee seeks an order pronouncing that the earlier will of the Deceased executed on 4 October 1991 (1991 Will), has force and effect in solemn form of law as the will of the Deceased, and associated orders directing the Probate Registrar to settle a grant of probate. Further in the alternative, the Public Trustee seeks to propound the will of the Deceased executed on 8 February 1990 (1990 Will).
On 15 May 2019, the proceeding was listed for trial. At the conclusion of the trial, I indicated that I was prepared to make an order pronouncing that the 1992 Will has force and effect in solemn form of law as the will of the Deceased, and that I would publish my reasons for decision.
In these reasons, I address the following matters:
(a)background;
(b) the history of the proceeding and the parties;
(c)the case management orders concerning the conduct of the trial and the evidence relied upon by the Public Trustee;
(d)the requirements for a valid will;
(e)the applicable principles concerning the requirement for, and proof of, testamentary capacity on the part of a testator;
(f) why the evidence at trial supports the conclusion that the Deceased had testamentary capacity at the time she executed the 1992 Will; and
(g)conclusion and orders.
Background
The Deceased was born in Lithuania on 9 November 1910 and died at Royal Perth Hospital on 16 November 1994. The Deceased died a widow with no children. She left property in Western Australia, such property having value of approximately $94,000.
The Deceased made six wills, the originals or copies of the originals all being in existence. In addition to the 1992 Will, the 1991 Will, and the 1990 Will, the Deceased made wills in 1988, 1985 and 1984. As there is no suggestion that the Deceased lacked testamentary capacity in February 1990, it is common ground that the earlier wills were revoked by the 1990 Will.
The 1992 Will
By the 1992 Will, the Deceased revoked all previous wills and testamentary writings, and appointed the Public Trustee as her executor.
The Deceased made two specific bequests. First, $1,000 to the Roman Catholic Archbishop of Perth for the benefit of the Pope in Rome; and secondly, $2,000 for the benefit of Reverend Father Mecys Burba in Rome. As to the residue of the estate, the 1992 Will provided that it be divided as follows. 45% to the Roman Catholic Archbishop of Perth for the benefit of 'orphaned children in Lithuania'; 45% to the Roman Catholic Archbishop of Perth for 'needy aged people in Lithuania'; and 10% to the Roman Catholic Archbishop of Perth for the benefit of 'the Church of the Resurrection at Kaunas in Lithuania'.
The 1991 Will
By the 1991 Will, the Deceased revoked all previous wills and testamentary writings, and appointed the Public Trustee as executor. The Deceased gifted the whole of her estate to Aldona Foley if Ms Foley survived the Deceased. If she did not, then the Deceased gifted her estate to 'the Parish Priest for the time being of the Prisikelimo Basnycia (Church) upon trust for the use and benefit of the said Church'. Ms Foley survived the Deceased.
The 1990 Will
By the 1990 Will, the Deceased revoked all previous wills and testamentary writings, and appointed Algis Malinauskas as executor.
The Deceased made five specific bequests. First, $5,000 'to the Prelate in charge for the time being of the Pontificijo College of St Kazimiro via Casalmonferrato 20 Rome, Italy for that said College to be used for the training of priests'; secondly, $2,000 to 'the Mother Superior for the time being of the Convent of Lituani Don Bosco at Frascati Rome Italy for that said Convent to be used for charitable purposes of the said Convent'; thirdly, $1,000 to 'the Pope of the Catholic Church in Rome, Henry John Paul II'; fourthly, $10,000 to 'the person in charge of the seminary in Lithuania known as Telsiai … such sum to be used for the training of priests'; and fifthly, $10,000 to 'the priest in charge of the Catholic Church in Nemaksiai Sv. Trjybes, Lithuania to rebuild the Church'. As to the residue of the estate, the 1990 Will provided that it be gifted to 'the Roman Catholic Church Prisikelimo Baznycia Lemaiciu Gatve Kaunas Lithuania'.
The history of the proceeding and the parties
On 9 May 2006, the Public Trustee was appointed interim administrator of the estate of the Deceased, with power to investigate which of the wills should be the subject of an application for proof.
The Public Trustee subsequently applied for a grant in common form of the 1992 Will. A requisition from a probate registrar directed that the 1992 Will be proved in solemn form.
The Public Trustee commenced the proceeding because a question had arisen as to whether the Deceased had testamentary capacity to make the 1992 Will, and therefore as to whether the 1992 Will was validly made. The Public Trustee propounds the 1992 Will and contends that the Deceased was of sound mind, memory and understanding at the time of execution.
Mr Malinauskas, who was appointed by the Deceased as the executor of the 1990 Will, has died. During his lifetime, Mr Malinauskas authorised and requested the Public Trustee to apply to this court for an order to administer the 1990 Will.
It is acknowledged by the Public Trustee that depending on which of the Deceased's wills is admitted to probate, construction issues may arise as to the proper meaning and interpretation of some gifts. However, for the purposes of the proceeding, the sole issue to be determined is which of the last three wills made by the Deceased is valid.
The defendants
The Attorney General of Western Australia was joined as first defendant to the proceeding to represent the prospective interests of general charity under the wills. As pleaded by the Public Trustee, the 1992 Will makes gifts which on the face of the 1992 Will are for charitable purposes. The first defendant was joined as a party to the proceeding to represent the charitable interests on the face of the 1992 Will; and in the alternative, the charitable interests on the face of the 1990 Will.[1]
[1] Statement of claim filed 7 June 2018 par 5; first defendant's submissions filed 10 May 2019 par 4.
Counsel appeared on behalf of the Attorney General at trial for the sole purpose of representing the prospective interests of 'general charity' under the wills, and did not seek to make any submissions about the testamentary capacity of the Deceased.
Joined as second defendant to the proceeding was the Roman Catholic Archbishop of Perth, a corporation sole within the meaning of the Roman Catholic Church Property Act 1911 (WA), on the basis that certain gifts in the 1992 Will purport to be made in favour of the Roman Catholic Archbishop of Perth. With respect to the 1992 Will, the second defendant advised the Public Trustee that the legal entity name of 'The Roman Catholic Archbishop of Perth', a corporation sole, only operates within the land boundaries of the Catholic Archdiocese of Perth, and all over the world each diocese operates independently.
Ms Foley was joined as third defendant to the proceeding on the basis that she was the sole beneficiary under the 1991 Will, having not predeceased the Deceased.
Prior to trial, the second and third defendants each gave notice that they did not intend to be heard and would abide by the decision of the court.[2]
The case management orders concerning the conduct of the trial and the evidence relied upon by the Public Trustee
[2] Second defendant's notice of intention to abide by the decision of the court filed 18 April 2019; third defendant's notice of intention to abide by the decision of the court filed 18 April 2019.
By orders made on 15 November 2018 by the Case Management Registrar, the parties were granted leave to tender at trial the following affidavits, without calling the deponents of the affidavits to give evidence (all of the affidavits having been sworn and filed in the probate division of the court with respect to the affairs of the Deceased):
(a) the affidavit of Dr Malcolm John Hoare, who was the Deceased's treating general medical practitioner from November 1988 to March 1992, sworn 27 February 1992;
(b) the affidavit of Dr Kenneth Henderson, a general medical practitioner who reviewed the Deceased on 29 October 1991, sworn 13 March 1992;
(c) the affidavit of Katherine Rosemary May, an articled clerk employed by the Crown Law Department (as it then was), acting under the supervision of the Public Trustee, sworn 22 October 1992. On 25 September 1992, Ms May attended Gwenyfred Nursing Home to take instructions for the making of a new will by the Deceased. Ms May had also visited the Deceased on 16 September 1992 and on 8 September 1992 with Dr Brown, who examined the Deceased;
(d) the affidavit of Dr David Brown, a consultant psychiatrist, sworn 13 November 1992. Dr Brown interviewed the Deceased in the presence of Ms May on three separate occasions in September 1992 for the purpose of assessing testamentary capacity;
(e) the affidavit of Regina May Sidaras, a Lithuanian interpreter, sworn 10 November 1992. Ms Sidaras interpreted for the Deceased on the three occasions the Deceased was interviewed by Dr Brown in September 1992. The 1992 Will was executed in the presence of Ms Sidaras and Ms May;
(f) the affidavit of Brynmor Thomas Hitchin, internal auditor for the Public Trustee, sworn 22 October 1992. On 25 September 1992, Mr Hitchin attended Gwenyfred Nursing Home to assist in preparing the 1992 Will;
(g) the affidavit of John Allen Mack, Deputy Public Trustee, sworn 8 December 1994 in support of the application made by the Public Trustee for a grant of probate;
(h) the supplementary affidavit of Dr Henderson, sworn 11 February 1995;
(i) the supplementary affidavit of Dr Hoare, sworn 6 October 1995; and
(j) the further supplementary affidavit of Dr Hoare, sworn 27 October 2005.
By orders made on 15 November 2018, the Public Trustee was also granted leave to tender at the trial the affidavit of scripts of Shaun William Conlin sworn 5 October 2018, without calling Mr Conlin to give evidence. Further, the Public Trustee was ordered to file a book of documents containing copies of each of the documents to be tendered at trial by the parties, including the affidavits referred to above. No objection was taken to the tender of any documents in the book.
As a consequence of the pre-trial orders and the agreement reached as to the tender of documents, no witnesses were called at trial to give evidence, or to be cross examined.
At trial, the Public Trustee tendered the book of documents; the affidavit of scripts of Mr Conlin sworn 5 October 2018; and the death certificate of the Deceased. In addition, the Public Trustee sought to rely on a chronology of events filed on 9 May 2019 and a written outline of submissions filed on the same date. The Attorney General sought to rely on a written outline of submissions filed on 10 May 2019.
The requirements for a valid will
The applicable principles concerning the requirements for a valid will were recently summarised by Pritchard J in The Public Trustee v Nezmeskal,[3] and are reproduced at [27] – [31] below.
[3] Public Trustee v Nezmeskal [2018] WASC 394 [31] – [34] (Pritchard J).
As noted by her Honour, there are two requirements for a valid will. The first is that the will complies with the applicable legislative requirements for its execution. The second is that the court must be satisfied that the testator had sufficient mental capacity to make the will. In other words, the court must be satisfied that the deceased made the will of his or her own volition, without duress and with a fully comprehending mind.[4]
[4] Public Trustee v Nezmeskal [31], citing Lock v Phillips [2014] WASC 92 [32] (EM Heenan J).
Proof of these matters will be required even if all opposition to an application for probate is withdrawn or discontinued. That is because the grant of probate is a judgment of the court binding not only on the parties to the proceedings, but on all persons who had notice of the claim and had a right to intervene.[5]
Formalities for execution
[5] Lock v Phillips [33] (EM Heenan J), cited in Public Trustee v Nezmeskal [32] (Pritchard J).
The formalities for the execution of a will in Western Australia are set out in the Wills Act 1970 (WA) s 8. That section provides that a will is not valid unless:
(a)it is in writing; and
(b)it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and
(c)the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
(d)the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.
The Wills Act came into operation on 1 July 1970 and applies to the will of any person dying on or after this date.[6]
[6] Wills Act s 5.
As noted by Pritchard J in The Public Trustee v Nezmeskal,[7] where a will has, on its face, been regularly executed – and especially if there is an attestation clause signed by the witnesses - there will arise a presumption of due execution of the will. That presumption is rebuttable by compelling evidence that the will was not duly executed, for example if the evidence revealed that the witnesses did not see the testator signing the will.[8] Where the presumption arises, unless there are grounds to question the will's authenticity or the testator's capacity, or any reason to believe that the will was not the product of the testator's free will, it will not be necessary to call the witnesses to the will to prove that it was executed in accordance with the statutory requirements. Instead, the court will proceed to grant probate.[9]
[7] Public Trustee v Nezmeskal [34] (Pritchard J), referring to the discussion and cases cited in Burnside v Mulgrew [2007] NSWSC 550 [18] - [22] (Brereton J).
[8] Public Trustee v Nezmeskal [34] (Pritchard J), referring by way of example to Re Groffman (Dec) [1969] 1 WLR 733, 739 (Sir Jocelyn Simon P).
[9] See the discussion in G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Butterworths,In this proceeding, there were grounds to question the Deceased's capacity with respect to both the 1992 Will and the 1991 Will.
The applicable principles concerning the requirement for, and proof of, testamentary capacity on the part of a testator
The requirement for testamentary capacity
The applicable principles concerning the requirement for, and proof of, testamentary capacity were also summarised by Pritchard J in The Public Trustee v Nezmeskal.[10] Again, the following summary of the applicable principles is drawn from her Honour's judgment.
[10] Public Trustee v Nezmeskal [35] – [47] (Pritchard J).
The requirement for testamentary capacity means that the testator must be of sound mind, memory and understanding when the will is made.[11] The general rule is that the testator must possess testamentary capacity at the time he or she executes the will.[12]
[11] Public Trustee v Nezmeskal [35] (Pritchard J), citing Bailey v Bailey (1924) 34 CLR 558, 559 (Knox CJ & Starke J); Banks v Goodfellow (1870) LR 5 QB 549, 568 (Cockburn CJ).
[12] Public Trustee v Nezmeskal [35] (Pritchard J), citing Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).
The traditional formulation of the test for determining testamentary capacity is that stated by Cockburn CJ in Banks v Goodfellow,[13] namely:
It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; [and] shall be able to comprehend and appreciate the claims to which he ought to give effect.
[13] Banks v Goodfellow, 565 (Cockburn CJ); see also Lock v Phillips [32] (EM Heenan J), as cited by Pritchard J in Public Trustee v Nezmeskal [36].
Cockburn CJ went on to note that the testator should not be compromised by a 'disorder of the mind [which] shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties' or by insane delusions which 'shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.'[14] However, mental infirmity of a kind which denies testamentary capacity need not necessarily involve what can be described as 'insane delusions', and it is not necessary to bring the evidence which raises doubt under the rubric of delusions at all.[15]
[14] Banks v Goodfellow, 565 (Cockburn CJ), as observed by Pritchard J in Public Trustee v Nezmeskal [37].
[15] Re Estate of Griffith (Dec); Easter v Griffith (1995) 217 ALR 284, 290, 302 (Gleeson CJ, Handley JA agreeing) referring to Harwood v Baker (1840) 3 Moo PC 282, see also 295 (Kirby P), cited by Pritchard J in Public Trustee v Nezmeskal [37].
In Read v Carmody,[16] Powell JA elaborated upon what testamentary capacity requires. His Honour noted that the testator must be aware, and appreciate the significance, in the law, of the act upon which he or she is about to embark, must be aware at least in general terms of the nature, extent and value of the estate over which he or she has a disposing power, must be aware of those who may reasonably be thought of to have a claim upon his or her testamentary bounty, and the basis for, and nature of, the claims of such persons, and must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.[17] However, it is not necessary that the testator know precisely the value of his or her individual assets, or even of certain classes of assets, particularly in the case of a large and complex estate.[18]
[16] Read v Carmody [1998] NSWCA 182 (Powell JA, Meagher and Stein JJA agreeing); see also Timbury v Coffee (1941) 66 CLR 277, 280 (Rich ACJ); Frizzo v Frizzo [2011] QSC 107 [21] (Applegarth J); and Frizzo v Frizzo [2011] QCA 308 [24] (Muir JA, Margaret McMurdo P & White JA agreeing), referenced by Pritchard J in Public Trustee v Nezmeskal [38].
[17] See also Collins by her next friend Poletti v May [2000] WASC 29 [52] - [62] (Owen J), as observed by Pritchard J in Public Trustee v Nezmeskal [38].
[18] Kerr v Badran [2004] NSWSC 735 [49] (Windeyer J); see also Frizzo v Frizzo [2011] QSC 107 [22] (Applegarth J); and Frizzo v Frizzo [2011] QCA 308 [24] (Muir JA, Margaret McMurdo P & White JA agreeing), as cited by Pritchard J in Public Trustee v Nezmeskal [38].
In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years, some of whom will display slowness, illness, feebleness and eccentricity to a greater extent than persons of a younger age. However, these characteristics are not ordinarily sufficient to disentitle the testator of the right to dispose of his or her property by will.[19] In Banks v Goodfellow, Cockburn CJ was at pains to point out that testamentary capacity does not require perfect mental acuity and memory:[20]
[M]ental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. … [The testator's] memory may be very imperfect; it may be greatly impaired by age or disease … and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. … To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?
[19] Bailey v Bailey, 560; Re, Estate of Griffin (Dec); Easter v Griffith, 295, citing Cockburn J in Banks v Goodfellow, 565. Also cited by Pritchard J in Public Trustee v Nezmeskal [39].
[20] Banks v Goodfellow, 566, 568 (Cockburn CJ), quoted with approval in Bailey v Bailey, 566 ‑ 567 (Knox CJ & Starke J); see also Timbury v Coffee, 280 (Rich ACJ), 283 (Dixon J), cited by Pritchard J in Public Trustee v Nezmeskal [39].
Partial unsoundness of mind, which does not operate on the relevant capacities of the testator to appreciate the extent of and dispose of the estate, will not necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval.[21]
[21] Bull v Fulton (1942) 66 CLR 295, 299 (Latham CJ); Re Estate of Griffith (Dec); Easter v Griffith, 295 (Kirby P) citing Banks v Goodfellow, 558 (Cockburn CJ), as cited by Pritchard J in Public Trustee v Nezmeskal [40].
In judging the will propounded, the court must consider all of the circumstances which are relevant to the testamentary capacity of the testator. By way of example, these may include the nature of the will itself (regarded from the point of simplicity or complexity, or of its rational or irrational provisions, or of its exclusion or non‑exclusion of beneficiaries), whether persons who naturally have a claim upon the testator have been excluded, the mental health of the testator (including factors such as extreme age, sickness and so on), whether there is any evidence of undue influence having been exercised by a beneficiary,[22] evidence of the testator's instructions for the preparation of the will and evidence relating to the testator's general ability in the conduct of his or her affairs.[23]
[22] Public Trustee v Nezmeskal [41], citing with approval Bailey v Bailey, 571 (Isaacs J, Gavan Duffy & Rich JJ agreeing).
[23] Public Trustee v Nezmeskal [41], and Timbury v Coffee, 285 (McTiernan J), referred to by Pritchard J by way of example.
There is nothing excessively technical in the considerations of whether the testator has appreciated the extent of the property to be disposed of, realised the various calls for disposition to which consideration should be given, and is able to evaluate those calls to give effect to the resulting dispositions by the provisions of the will.[24]
Proof of testamentary capacity
[24] Re Estate of Griffith (Dec); Easter v Griffith, 295 - 296 (Kirby P), cited by Pritchard J in Public Trustee v Nezmeskal [42].
The power of a testator to freely dispose of his or her assets by a will is an important right. Consequently, a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding, is a grave matter.[25]
[25] Public Trustee v Nezmeskal [43], referring to Re Estate of Griffith (Dec); Easter v Griffith, 290 (Gleeson CJ & Handley JA agreeing), 294 and 296 (Kirby P); see also Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 [216] (EM Heenan J).
The onus of proving that the will is a valid will, which is required to the civil standard, lies on the party propounding the will.[26] The onus on the propounding party will, in the first place, be discharged by establishing a prima facie case.[27] The propounder of the will may take advantage of the presumption that, in the absence of evidence to the contrary, a will which is properly executed, and which is rational on its face, is that of a person of competent understanding.[28] Further, the party propounding the will is entitled to put forward only evidence that is in its favour.[29]
[26] Public Trustee v Nezmeskal [44], referring to Bailey v Bailey, 570 (Isaacs J, Gavan Duffy & Rich JJ agreeing); Bull v Fulton, 299 (Latham CJ); Worth v Clasohm, 453 (Dixon CJ, Webb & Kitto JJ); Re Estate of Griffith (Dec); Easter v Griffith, 289 (Gleeson CJ & Handley JA agreeing), 294 (Kirby P).
[27] Bailey v Bailey, 571 (Isaacs J, Gavan Duffy & Rich JJ agreeing), cited in Public Trustee v Nezmeskal [44].
[28] Timbury v Coffee, 283 (Dixon J); Lock v Phillips [33] (EM Heenan J); see also Burrows v Burrows (1827) 1 Hagg Ecc 109; 162 ER 524; Re Estate of Hodges (Dec); Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J), cited in Public Trustee v Nezmeskal [44].
[29] Re Levy, (Dec) (No 2) [1957] VR 662, 664 - 665 (Sholl J), cited in Public Trustee v Nezmeskal [44].
Once the propounder of a will establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, then the evidentiary onus shifts to the person impeaching the will to show that it ought not be admitted to proof. To displace a prima facie case of capacity, mere proof of serious illness is not sufficient. There must be clear evidence that the illness of the testator so affected his or her mental faculties as to make them unequal to the task of disposing of his or her property.[30]
[30] Public Trustee v Nezmeskal [45], citing Bailey v Bailey, 571 ‑ 572 (Isaacs J, Gavan Duffy & Rich JJ agreeing).
If there is such evidence as to raise doubt as to the testator's mind, memory and understanding, then it is ultimately for the propounder of the will to establish that the testator was of sound mind at the time of executing the will.[31] A doubt of the testator's capacity is not enough unless it is substantiated by an examination of the evidence as a whole.[32] If, following a vigilant examination of the whole of the evidence, the doubt as to capacity is felt to be substantial enough to preclude a belief that the testator was of sound mind, memory and understanding at the relevant time, probate will not be granted.[33]
[31] Public Trustee v Nezmeskal [46], citing Bull v Fulton, 343 (Williams J); Lock v Phillips [33] (EM Heenan J); West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144; Worth v Clasohm, 453 (Dixon CJ, Webb & Kitto JJ).
[32] Public Trustee v Nezmeskal [45], citing Worth v Clasohm.
[33] Public Trustee v Nezmeskal [45], citing Re Estate of Griffith (Dec); Easter v Griffith, 289 (Gleeson CJ & Handley JA agreeing); Worth v Clasohm, 453 (Dixon CJ, Webb & Kitto JJ).
The opinion of witnesses as to the testamentary capacity of the testator is usually of little weight on the issue. The opinions of the attesting witnesses that the testator was competent are not without some weight, but it remains the case that the court must judge the testator's capacity from the facts stated by those witnesses, and not from their opinions.[34]
[34] Public Trustee v Nezmeskal [47], citing Bailey v Bailey, 572 (Isaacs J, Gavan Duffy & Rich JJ agreeing).
The general rule is that the testator must possess testamentary capacity at the time he or she executes the will.[35]
Why the evidence at trial supports the conclusion that the Deceased had testamentary capacity at the time she executed the 1992 Will
[35] Worth v Clasohm, 453 (Dixon CJ, Webb & Kitto JJ), cited in Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337 [47] (Pritchard J).
The formal requirements were met in respect of the 1992 Will, the 1991 Will and the 1990 Will.
The key factual issue requiring resolution at the trial is whether the Deceased had testamentary capacity when she executed the 1992 Will. Having carefully considered all of the evidence bearing on the Deceased's testamentary capacity, on the balance of probabilities I am satisfied that the Deceased had testamentary capacity when she executed the 1992 Will. I have reached that view for the following reasons.
Factual findings as to the circumstances in which the Deceased made the 1992 Will
The Deceased married Edvardas Rasymas on 30 March 1968. She died a widow and had no children.[36] The Deceased was born in Lithuania. Her second language was English. Following the death of her husband, the Deceased lived alone.
[36] Exhibit C.
It appears that the Deceased was becoming physically frail as early as 1988. In November 1988, following an admission to hospital from her home, the Deceased was discharged to Agmaroy Nursing Home, where she resided until November 1991.[37]
[37] Exhibit A.21 page 40.
On 4 October 1991, the Deceased was interviewed by Ms Cuttone, an officer of the Public Trustee, for the purpose of preparing the 1991 Will. Later that day, the Deceased returned to sign her will.[38]
[38] Exhibit A.11 page 23.
In October 1991, Dr Hoare and Dr Henderson certified that the Deceased was not capable of managing her own affairs,[39] and on 31 October 1991, the Public Trustee began managing the affairs of the Deceased.[40]
[39] Exhibits A.9 and A.10, pages 21 and 22, being certificates of medical practitioners made pursuant to the Public Trustee Act 1941 (WA) s 35 (as it then was).
[40] Exhibit A.12 page 24.
The Deceased's psychiatric state deteriorated. Major symptoms were present in March 1991 in the form of visual hallucinations and confusion. Her condition progressively worsened until she was admitted in an acutely psychotic state to Heathcote Psychiatric Hospital on 12 November 1991. The Deceased was subsequently transferred to Bentley Lodge (Psychogeriatric Unit), and then discharged back to Agmaroy Nursing Home on 6 December 1991, where she continued to take anti-psychotic medication.[41] From 10 July 1992, the Deceased resided at Gwenyfred Nursing Home.[42]
Investigations by the Public Trustee concerning the 1991 Will and gifts to Ms Foley
[41] Exhibit A.17 page 30.
[42] Exhibit A.26 page 71.
By December 1991, Ms Cuttone, an officer of the Public Trustee, had formed the view that it was necessary to ascertain whether the Deceased had testamentary capacity on 4 October 1991 (that is, when the Deceased made the 1991 Will).[43] As noted above, by the 1991 Will, the Deceased gifted the whole of her estate to Ms Foley if Ms Foley survived the Deceased.
[43] Exhibit A.12 page 24.
Ms Cuttone sought the opinion of Dr Henderson and Dr Hoare, who in October 1991 had certified that the Deceased was not capable of managing her own affairs, as to whether they considered that the Deceased had testamentary capacity on 4 October 1991.[44]
[44] Exhibit A.12 page 24.
Dr Henderson first responded by letter and, consistent with that response, Dr Henderson later deposed as follows:[45]
1.I am informed … that the [Deceased] made her last Will and Testament bearing the date the 4th day of October 1991.
2.I first examined the [Deceased] on the 29th day of October 1999 and ascertained that she was not of sound mind memory and understanding.
3.In my opinion in the absence of any intervening catastrophic mental deterioration it would be extremely unlikely that the [Deceased] would have had testamentary capacity at the date of the execution of the said Will.
[45] Exhibit A.13 page 25; and Exhibit A.18 page 32.
Dr Hoare also responded by letter and, consistent with that response, Dr Hoare later deposed as follows:[46]
1.I am informed … that the [Deceased] made her last Will and Testament bearing the date the 4th day of October 1991.
2.I have been the Medical Practitioner of the [Deceased] for some considerable time.
3.For several months prior to October 1991 the mental state of the [Deceased] had given rise to serious concern in that her thought processes were seriously impaired and distorted and she was at times demented and suffered severe visual hallucinations. Her short and long term memory were grossly impaired and she had great difficulty in effectively communicating with other people.
4.In my opinion at the date of execution of the said will the [Deceased] did not have testamentary capacity.
[46] Exhibit A.14 page 26; and Exhibit A.16 page 28.
By February 1992, the Public Trustee had also caused an investigation to be undertaken into certain gifts of money made by the Deceased to Ms Foley, namely gifts in the amount of $4,000 in February 1990, and $17,000 in May 1991. Both amounts were purportedly gifted before the Public Trustee began managing the affairs of the Deceased.[47]
[47] Exhibit A.15 page 27.
I make no finding concerning whether gifts were in fact given, nor as to the circumstances or appropriateness of the gifts. It is neither appropriate nor necessary for me to do so in the context of the matters to be determined in this proceeding. I record the fact of the investigation in these reasons because it informs the circumstances in which the Deceased made the 1992 Will.
The preparation and execution of the 1992 Will
On three separate occasions in September 1992, Ms May of the Public Trustee, Ms Sidaras, a Lithuanian interpreter, and Dr Brown attended the Deceased. On the three occasions, Dr Brown interviewed the Deceased for the purpose of assessing testamentary capacity.[48]
[48] Exhibit A.26 page 74.
On the first of the three occasions, being 8 September 1992, the Deceased expressed the desire to make a new will.[49]
[49] Exhibit A.26 page 72.
On the second occasion, being 16 September 1992, no will was drafted as the Deceased required more time to decide on the disposition of her estate.
On the third occasion, being 25 September 1992, Dr Brown attended the Deceased at Gwenyfred Nursing Home for one and a half hours during which the Deceased gave instructions for her will. Dr Brown formed the view that the Deceased had testamentary capacity and left after the instructions were given.
The 1992 Will was prepared and executed on that same day. The will was prepared by Mr Hitchin, in his own handwriting. Mr Hitchin deposes to having drafted the will in accordance with the instructions communicated to him by Ms Sidaras, interpreting for the Deceased.[50]
[50] Exhibit A.23 page 47. See also Exhibit A.24 page 57.
There is clear evidence of the Deceased's instructions for the preparation of the 1992 Will.
The two subscribing witnesses to the 1992 Will were Ms May and Ms Sidaras. Also present when the 1992 Will was executed was Mr Hitchin. Mr Hitchin says that he was present at the signing of the 1992 Will, and saw the Deceased sign in the presence of Ms May and Ms Sidaras. The Will records that it was translated into Lithuanian and read to the Deceased by Ms Sidaras before it was signed by the Deceased. This is also confirmed by Ms Sidaris, Mr Hitchin and Ms May.[51]
[51] Exhibit A.25 page 66; Exhibit A.23 page 47; Exhibit A.24 page 58.
It was observed by those present that the Deceased had some difficulty in gripping the pen and applying pressure to apply her signature to the 1992 Will.[52] However, I note that the Deceased was 81 years old when the 1992 Will was executed. There is no evidence of any undue influence having been exercised by a beneficiary, or otherwise. I am satisfied that the Deceased made the 1992 Will of her own volition and without duress.
Medical evidence
The evidence of the general practitioners
[52] Exhibit A.23 page 47; Exhibit A.24 page 58; and Exhibit A.25 page 66.
The evidence before the court includes that of two general practitioners, Dr Hoare and Dr Henderson. As noted above, both practitioners expressed the opinion that the Deceased did not have testamentary capacity when the Deceased made the 1991 Will. As to the question of whether the Deceased had testamentary capacity when she made the 1992 Will, Dr Hoare deposed as follows:[53]
4.I am sure that the said deceased was incapable of executing her Will on the 4th day of October 1991, and although I last saw the deceased on the 18th day of March 1992, from information I gained from the staff of Agmaroy Nursing Home, and the conversations I had with, and the general demeanour of the deceased, I am quite confident that the deceased was incapable of executing her last Will and Testament bearing date the 25th day of September 1992.
5.I had examined the deceased on numerous occasions prior to her executing her Will dated the 4th day of October 1991 and I did not require the services of an interpreter. Although the deceased was of middle European extraction and often spoke in her native tongue, she had a good working knowledge of the English language when she was prepared to use it.
[53] Exhibit A.29 pages 82 ‑ 83.
As to the same question, Dr Henderson deposed as follows:[54]
2.My only contact with the deceased was on the 29th of October 1991 when I certified that she was not of sound mind, memory and understanding.
3.It is my considered opinion that she would not have been able to execute a Will on the 25th of September 1992 since her mental deterioration was due to degenerative changes which would, if anything, advance in the intervening period.
4.Despite the deceased's limited mastery of the English language at the time of my examination, I was able to conduct a satisfactory interview without the services of an interpreter.
[54] Exhibit A.28 page 80.
Neither Dr Hoare nor Dr Henderson examined the Deceased proximate to, nor at the time she made the 1992 Will.
The evidence of Dr Brown
Dr Brown's evidence was received as an affidavit sworn 13 November 1992, to which was annexed a letter (in the form of a report) addressed to the Public Trustee dated 9 October 1992.[55]
[55] Exhibit A.26 pages 71 ‑ 76.
Dr Brown is a psychiatrist who worked at Bentley Lodge, which is a psychiatric hospital specialising in geriatric patients. The Deceased was a patient in Dr Brown's care at Agmaroy Nursing Home during November 1991 and subsequently at Bentley Lodge. Dr Brown deposes that on 10 July 1992, the Deceased was discharged to Gwenyfred Nursing Home. [56]
[56] Exhibit A.26 page 71.
Dr Brown states as follows.[57]
3.On 8th September 1992, 16th September 1992 and 25th September 1992 I visited Gwenyfred Nursing Home in order to give my professional opinion on [the Deceased's] capacity to comprehend and give proper instructions in relation to her affairs.
4.Also present on all these occasions were Mrs Regina Sidaras, an interpreter in the Lithuanian language and Ms Catherine May, an officer from the Public Trust Office. On the last named occasion, Mr Bryn Hitchin, another officer from the Public Trust Office was also in attendance.
5.On the occasion of the 8th September 1992, [the Deceased] expressed her desire to make a new Will. On 16th September 1992 and 29th September 1992. I formed the opinion that [the Deceased] was of testamentary capacity. By letter dated 9th October 1992 I explained my reasons for that finding. Annexed hereto and marked with the letter 'A' is a true copy of that letter.
6.On the occasion of 16th September 1992 no Will was drafted as [the Deceased] required more time to decide on the disposition of her estate.
7.On the occasion 25th September 1992 I stayed for about one and a half hours during which [the Deceased] gave instructions for her Will and then I left, as my presence was not required at the drawing up and the execution of the Will.
8.I am aware that [the Deceased] has been diagnosed as having a mental disorder known as 'psychosis' and on this basis she was considered incapable of managing her own affairs, which are in the hands of the Public Trustee. However, I am of the view that the reasons which continue to justify this arrangement do not render her incapable of giving proper instructions for the making of a Will.
[57] Exhibit A.26 pages 71 – 72.
As noted by Dr Brown at par 5 above, Dr Brown recorded his reasons for forming the opinion that the Deceased was of testamentary capacity in his letter dated 9 October 1992. Dr Brown's reasons are reproduced below:[58]
I have known [the Deceased] in the capacity as a Medical Practitioner since November 1991. At that time she was a resident in Agamroy Nursing Home and was subsequently admitted to Bentley Lodge for psychiatric assessment of difficulties in management. Following assessment she was discharged to the care of Gwenyfred Nursing Home where she currently lives.
I have interviewed [the Deceased] in the presence of an interpreter and an Officer of the Public Trustee on three separate occasions in September 1992, for the purpose of assessing testamentary capacity.
Hospital records indicate that [the Deceased] was becoming physically frail as early as 1988. In November 1988, she was admitted to Sir Charles Gairdner Hospital from her home for a perforated sigmoid colon. A colostomy was performed but she subsequently refused closure and has a permanent unclosed colostomy. At about the same time she had several falls with subsequent compression fractures of L1, L2 and a pubic ramus. She was too physically dependent to return home and was discharged to Agmaroy Nursing Home where she resided until November 1991. Her physical health has continued to decline with the development of impaired vision.
Prior to her developing physical frailty, she had lived alone following the death of her husband and had received support from friends, this support continuing following admission to Nursing Home. The pattern of relationships with friends appears to have been close and dependent with subsequent falling out and rejection.
During my interviews with [the Deceased] she gave the year as 1993 and the current place of residence as a Nursing Home in Bentley but was unable to name the Nursing Home. She was able to recall my name after a five minute interval and gave her birthday as 1910. She was unclear of her assets on the initial interview but when given a figure demonstrated good recall on subsequent interviews, and was able to recall details of a previous will. She was clear that she wished the bulk of her estate to be left to charities and a small amount to an individual. She was aware of relatives in Lithuania but felt they were well off and didn't wish to include them in her will.
During the interview [the Deceased] was mostly quite clear and definite in her answer. At times she was indecisive and requested suggestions as to what she might do. Further discussions over several interviews enabled her to be certain in her wishes. Her demeanour was mostly compliant but sometimes querulous and demanding. Mood was normal and affect showed a normal range. There was no evidence of hallucinations or delusions.
There are difficulties in being certain about mental state findings in a patient with poor command of English, even with a good interpreter. Nevertheless, it is my opinion that [the Deceased] shows some evidence of mild cognitive impairment in the setting of a dependent personality style. This personality style leads her to be excessively compliant in relationships but also to be excessively angry and rejecting when she feels let down. Despite mild cognitive impairment she has a reasonable knowledge of her Estate, is clear in her wishes regarding disposition, has knowledge of those who might have a claim in the Estate and does not have any delusional ideas that might impair her judgement regarding disposition.
In summary I believe [the Deceased] has testamentary capacity. As regards a sum of money she transferred to another in 1991, prior to my first contact I am less certain. During the interview [the Deceased] was clear she transferred a sum of money but unclear as to whether the transfer was a loan or a gift. I believe it is likely, her personality notwithstanding, that at the time she was well disposed to the person but has subsequently become disillusioned and regretted her actions.
[58] Exhibit A.26 pages 74 – 75.
I am persuaded by the opinion of Dr Brown. In reaching this view, I have weighed the following in the balance.
First, the timing of Dr Brown's observations of the Deceased. Dr Brown's opinion was drawn from observations made on three separate occasions, two prior to her making the 1992 Will, and the third on the day that she gave instructions and made the 1992 Will. In contrast, Dr Henderson only met with the Deceased on one occasion, being on 29 October 1991, and Dr Hoare had last seen the Deceased on 18 March 1992.
Secondly, the purpose of Dr Brown's examinations of the Deceased. Dr Brown visited the Deceased in order to give his professional opinion on the Deceased's capacity to comprehend and give proper instructions in relation to her affairs with a view to her making a further will.
Thirdly, Dr Brown's familiarity with the Deceased. The Deceased was known to Dr Brown prior to September 1992, in that the Deceased had been a patient in Dr Brown's care during November 1991 and subsequently at Bentley Lodge. I also had regard to Dr Hoare’s relationship with the Deceased, weighing in the balance that he was the Deceased’s treating general medical practitioner from November 1988 to March 1992.
Fourthly, Dr Brown’s qualifications. As a psychiatrist, Dr Brown was qualified to assess the effects of the Deceased's diagnosed mental disorder, known as 'psychosis', on her capacity.
Fifthly, the particulars provided by Dr Brown of his observations of the Deceased, and the more comprehensive nature of Dr Brown's reasons. Dr Brown's reasons were drawn from his direct observations of the Deceased at the relevant time. In setting out his reasons, Dr Brown particularised his observations of the Deceased. On balance, I preferred Dr Brown’s reasons to the reasons of Dr Hoare and Dr Henderson, which reasons were grounded on previous observations of the Deceased; information gained from staff of Agmaroy Nursing Home; and the expectation of degenerative change.
I am persuaded by Dr Brown's evidence concerning his observations of the Deceased on 25 September 1992. On the balance of probabilities, I am satisfied that the Deceased understood the nature of the act of making the 1992 Will and its effects; understood the extent of her property of which she was disposing; and comprehended and appreciated those who might have a claim on her estate, and turned her mind to the same. Although doubt has been raised as to the capacity of the Deceased at the time of making the 1992 Will, I do not find the evidence of Dr Hoare and Dr Henderson, assessed separately or together, sufficient to sway the balance.
In coming to this conclusion, I have had regard to the fact that the Public Trustee was administering the affairs of the Deceased at the time she executed the 1992 Will. For the reasons expressed at [39] above, this fact does not preclude the conclusion that the Deceased had testamentary capacity at the relevant time.
Non-medical evidence
The evidence of Mr Hitchin, Ms May and Mrs Sidaras, although non-medical evidence, is not without value.
Dr Brown's observations of the Deceased were generally consistent with the observations made by Mr Hitchin, Ms May and Mrs Sidaras. Further, to the extent that Mr Hitchin, Ms May and Mrs Sidaras record their observations of the Deceased’s demeanour, their observations do not suggest a lack of testamentary capacity on 25 September 1992.
The terms of the 1992 Will
I have also weighed in the balance the nature of the 1992 Will. As noted above, the 1992 Will was properly executed.
The terms of the 1992 Will are not in any way irrational and do not raise any independent concerns. The terms are consistent with the previous wills of the Deceased, with the exception of the 1991 Will. The wills make gifts to various institutions, bodies and persons associated with the Roman Catholic Church. A consistent object, being the advancement of the Roman Catholic religion, may be readily discerned.
I accept the Public Trustee's submission that the provisions in the 1992 Will are not unusual in the context of the Deceased, having been a Roman Catholic born in Lithuania, and being a widow with no children. No person who would naturally have a claim on the Deceased's bounty was excluded. The provisions do not raise a suspicion as to the Deceased's testamentary capacity.
Conclusion and orders
The evidence which records the process in which the 1992 Will was made, together with the opinion formed by Dr Brown are sufficient to discharge the onus carried by the Public Trustee to propound the 1992 Will.
For the reasons set out above, there will be judgment for the Public Trustee in this action.
Given my conclusion that the 1992 Will is valid, it is unnecessary for me to consider the Public Trustee's alternative case that the 1991 Will, or the 1990 Will are valid.
The validity of the 1992 Will will be pronounced in solemn form, and I will order that the Probate Registrar issue a grant of probate of the 1992 Will to the Public Trustee.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to Principal Registrar Strk
17 JULY 2019
Australia, 2013) [4.20] and [11.20], cited by Pritchard J in Public Trustee v Nezmeskal [34].
0
14
2