Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul - [2009] WASC 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THE PUBLIC TRUSTEE OF WESTERN AUSTRALIA -v- THE PARISH OF SAINTS APOSTLES PETER AND PAUL [2009] WASC 75

CORAM: SIMMONDS J

HEARD: 5 MARCH 2009

DELIVERED : 5 MARCH 2009

PUBLISHED : 30 MARCH 2009

FILE NO/S: CIV 1648 of 2007

BETWEEN: THE PUBLIC TRUSTEE OF WESTERN AUSTRALIA
Plaintiff
AND
THE PARISH OF SAINTS APOSTLES PETER AND PAUL
First Defendant
ALEKSANDRA BJEDOV
JOVO BJEDOV
Second Defendants
TONIA OLSZEWSKI
Third Defendant
SOFIA KUNJASICH
STANISLAW DREJA
RICHARD HENRY DREJA
CHRISTINE DEVENEY
JAN DREJA
Fourth Defendants
AUSTRALIAN RED CROSS SOCIETY WESTERN AUSTRALIAN DIVISION
Fifth Defendant

Catchwords:

Succession - Wills, probate and administration - Proof of will in solemn form - Undefended trial following Deed of Compromise - Presumption the will was the will of a testator who possessed sound mind, memory and understanding at the time of its execution - Raising of a doubt as to testamentary capacity - Whether residual doubt substantial enough to preclude a belief that the document propounded is the will of a testator who possessed sound mind, memory and understanding at the time of its execution

Legislation:

Evidence Act 1906 (WA), s 79B, s 79C

Result:

Judgment for plaintiff propounding will in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Mr M F Rynne
First Defendant              :     No appearance
Second Defendants        :     No appearance
Third Defendant            :     No appearance
Fourth Defendants         :     Mr D L Jones (no appearance for 4th named defendant)
Fifth Defendant              :     No appearance

Solicitors:

Plaintiff:     Public Trustee (WA)
First Defendant              :     No appearance
Second Defendants        :     No appearance
Third Defendant            :     No appearance
Fourth Defendants         :     Holyoak-Roberts Legal (no appearance for 4th named defendant)
Fifth Defendant              :     No appearance

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

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
In the Estate of Griffith (1995) 217 ALR 284
In the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
In the Estate of Kirs (1990) 55 SASR 61
In the Will of Steward [1964] VR 179
Kinleside v Harrison (1818) 2 Phill Ecc 449
Martin v Fletcher [2003] WASC 59
Public Trustee v Stretch [2002] WASC 147
Re Levy deceased (No 2) [1957] VR 662
Shaw v Crichton (Unreported, NSWSC, Library No 113127/92, 22 July 1994)
Silvester v Tarabini (Unreported, WASC, Library No 960062, 13 February 1996)
Smurthwaite v Stratford [2007] WASC 68
Timbury v Coffee (1941) 66 CLR 277
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439

SIMMONDS J:

Introduction

These are the reasons for judgment on a trial on proceedings by an application by writ of summons for the court to pronounce for the force and validity of a will executed in 2000 (the 2000 will), and that there be a grant of probate to the plaintiff of the 2000 will; or in the alternative such a pronouncement and grant in respect of a will of the testator executed in 1998 (the 1998 will). At the conclusion of the trial I delivered my judgment, which was that I should so pronounce and that there be such a grant in relation to the 2000 will. I had indicated at that time that I would later provide reasons. These are those reasons.
The trial raised only one substantial issue. That issue was whether or not the testator had testamentary capacity at the time she executed the 2000 will.
I first provide the relevant background to these proceedings, before describing the proceedings in more detail (including the directions for this trial) and the evidence in the trial. I then review the applicable principles, before applying them to the evidence. The final section of these reasons is my conclusions, from which the orders I made follow.

Background

This background is drawn from the evidence and is uncontradicted.
Teodozja Kowalewicz (the testator) was born on 20 November 1907 in Belarus, then in Russia. She died on 10 December 2003 when she was living at an address in Innaloo in this state. She had had two sons, both of whom had pre‑deceased her.
I have evidence that the testator made three only wills, one in 1975 (the 1975 will), as well as the 1998 will and the 2000 will. I have evidence that the last two wills were executed by the testator in the presence of two witnesses who duly attested their signatures. The 1998 will purportedly revoked all previous wills and testamentary writings. The 2000 will did the same. All three wills named the plaintiff as executor.
The 1975 will was executed on 15 September 1975. By the 1975 will and subject to provision for payment of debts and expenses the testator gave her whole estate to such of Olga Dreja and the fourth defendants as should survive her, in equal shares.
The 1998 will was executed on 4 December 1998. By the 1998 will the testator provided as follows.
She gave $50,000 to pay for a headstone for her grave and the remainder to the first defendant.
She gave $10,000 each, and such items as they might select from certain chattels, to the second defendants, described in the 1998 will as 'my friends'.
She also gave a further $1,000 to one of the second defendants, Alexandra (spelled Aleksandra in the style of cause) Bjedov, on trust to pay the 'traditional burial dinner' and for 'the remembrance dinner' one year after the date of the testator's death.
She gave $2,000 each to the third defendants, described in the 1998 will as 'my goddaughters'.
Subject to provision for payment of debts and expenses she gave the residue of her estate to such of 'Olga Dreja' and the fourth defendants as should survive her, equally.
Some time between the dates of execution of the 1998 will and of the 2000 will Olga Dreja died.
The 2000 will was executed on 21 December 2000. By the 2000 will the testator provided as follows.
Subject to provision for payment of debts and expenses including payment for a headstone for her grave she gave her residual estate to the first defendant.
She gave $40,000 to such of the second defendants as should survive her and if both survived her in equal shares and if both did not to such of their children as should survive her, if more than one in equal shares. She also gave the second defendants their selection of chattels as described in the 1998 will.
She gave the sum of $2,000 each to the third defendants. She gave $10,000 to each of the fourth defendants. She gave $1,000 to the fifth defendants. She gave $20,000 to 'Zoja (Sophia) Pochikailik', described in the 2000 will as 'my niece'.
It will be seen that all of the beneficiaries under all three wills are joined as defendants in the present proceedings. This is except for Olga Dreja, the gifts to whom under the 1975 will and the 1998 will had of course lapsed, and who was not a beneficiary under the 2000 will, and except for Zoja Pochikailik, who is not named as a beneficiary in the 1975 will or the 1998 will but who is named as a beneficiary in the 2000 will.
I pause to note that there would appear on the authorities to be no need in proceedings of the present kind to join all of the parties interested under the 2000 will, but rather a necessity to join the parties interested under another will which the will to be propounded would affect. See In the Estate of Kirs (1990) 55 SASR 61, 68 (Legoe J), as quoted with apparent approval in Wheatley v Edgar [2003] WASC 118 [17] (E M Heenan J).

These proceedings

By motion dated 5 July 2004 in P2578 of 2004 the plaintiff applied for probate of the 2000 will in what appears to be common form.
On 13 October 2004 Registrar Powell refused that motion. I accept that the basis for that refusal was the issue as to the testamentary capacity with which I must deal.
By writ of summons with statement of claim dated 27 June 2007 the plaintiff commenced the present proceedings. Those proceedings may be described as proceedings for probate of the 2000 will, or alternatively of the 1998 will, in solemn form. See on those forms of probate Wheatley [18].
Only the first defendant and the fourth defendants entered appearances in these proceedings.
By the most recent case management orders in the present proceedings, orders dated 18 April 2008, the plaintiff was given leave to enter the action for trial on an undefended basis with evidence in chief to be by affidavit.
By deed of compromise dated 28 October 2008 (the deed of compromise) between the first defendant and the fourth defendant, those parties agreed not to oppose the application in the present proceedings.
In the event there was an appearance at the trial for the plaintiff and for the fourth defendants except Christine Deveney. Counsel for the fourth defendants except Christine Deveney made it clear he was not appearing in opposition to the grant of the orders sought in the present proceedings, but to offer supplementary submissions.

The evidence in this trial

Counsel for the plaintiff tendered into evidence originals of the 2000 will (exhibit 1) and the 1998 will (exhibit 2) as well as the death certificate for the testator (exhibit 3).
Counsel for the plaintiff also tendered into evidence the following affidavits filed in P2578 of 2004: the affidavit of Stephen Gerard Boehm, medical practitioner, sworn 20 May 2004 (the Boehm affidavit, exhibit 9); of Peter Robin Tyson Goldswain, medical practitioner, sworn 14 June 2004 (the Goldswain affidavit, exhibit 12); of Aneta Yegorov sworn 24 June 2004 (the Yegorov affidavit, exhibit 7); of Stewart Wayne Davies of 18 June 2004 (the Davies affidavit, exhibit 6); of John Johnstone sworn 5 July 2004 (the Johnstone affidavit of 5 July 2004, exhibit 8); and of Alexandra Bjedov, one of the second defendants, sworn 6 October 2004 (the Alexandra Bjedov affidavit, exhibit 5: the Alexandra Bjedov affidavit was wrongly described for the purposes of its tender as 'sworn 6 August 2004').
Counsel for the plaintiff also tendered into evidence the following affidavits filed in CIV 1648 of 2007: the affidavit of George Atartis, medical practitioner, sworn 18 August 2004 (the Atartis affidavit, exhibit 11); the affidavit of Jim Gim Seng Ang, medical practitioner, sworn 7 September 2004 (the Ang affidavit, exhibit 10); the affidavit of scripts of Shaun William Conlin sworn 15 February 2008 (exhibit 4); and the affidavit of Shaun William Conlin sworn 26 February 2009 (exhibit 13).
In addition counsel for the plaintiff tendered into evidence in this trial the affidavit of John Johnstone sworn 4 March 2009 (the Johnstone affidavit of 4 March 2009, exhibit 14). The Johnstone affidavit of 4 March 2009 was by a witness to the execution of the 1998 will, and is sufficient in my view, on the law considered below to establish due execution of the 1998 will. Further, and also in accordance with the law I will consider below, the 1998 will appears to me to be rational on its face. Those two matters together would be sufficient to raise the presumption I describe below. However, it is unnecessary for me to go further into the basis for making the orders sought in the alternative as to the 1998 will. This is in view of my conclusions as to the 2000 will.

The applicable principles

The burden of proof that a will is that of the alleged testator is on the proponent of the will, and, if the burden is not discharged, the court must pronounce against the will: In the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 704 (Powell J). That burden includes that of showing testamentary capacity: see below. Notwithstanding the absence of any person who opposes the orders sought in respect of the will, whether because of an agreement like the deed of compromise or otherwise, I must still be satisfied the will is that of the testator as the authorities indicate: Smurthwaite v Stratford [2007] WASC 68 [5] (Jenkins J).
A very useful review of the principles in relation to the way the burden of proof may be discharged in a case such as this one is in my view to be found in Martin v Fletcher [2003] WASC 59 [6] ‑ [10] (Commissioner Johnson QC, as she then was), referring to the leading authorities of Bailey v Bailey (1924) 34 CLR 558, Worth v Clasohm (1952) 86 CLR 439, In the Estate of Griffith (1995) 217 ALR 284 (CA NSW), Banks v Goodfellow (1870) LR 5 QB 549 and Shaw v Crichton (Unreported, NSWSC, Library No 113127/92, 22 July 1994) (Bryson J) as follows:
The standard of proof required of the proponent of a will is the ordinary civil standard of proof: see Bailey … per Isaacs JA at 570 ‑ 571. A residual doubt is not enough to defeat the plaintiff's claim for probate unless it is thought by the Court to be substantial enough to preclude a belief that the document propounded is the will of a testator who possessed sound mind, memory and understanding at the time of its execution: see Worth …at 453.
A duly executed will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding: see Griffith … per Gleeson CJ, Kirby P and Handley JA at 5 [(1995) 217 ALR 284 at 295]. In this case, there is evidence that the deceased was suffering from dementia, a medical condition affecting mental capacity. However, to displace a prima facie case of capacity and due execution, mere proof of serious illness is not sufficient. There must be clear evidence that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property: see Bailey …, above, at 571 ‑ 572.
The classic statement of testamentary capacity can be found in Banks … where Cockburn CJ said at 565:
'It is essential to the exercise of such a power [disposition by the execution of a will] 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; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties ‑ that no insane delusions 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.'
See also Maurier v Weschler [2001] NSWSC 4 at 39.
To comply with the requirement that the testator understands the extent of the property of which he is disposing, it is not necessary to establish that the testator recollected each and every item of property he or she possessed: Shaw ….
In respect of the last matter, of the testator's understanding of the extent of the property of which he is disposing, I note Public Trustee v Stretch [2002] WASC 147 [9] (Murray J) as follows:
… it should be understood that the testator need only be able to understand the general nature and effect of the testamentary act. There need not be understanding of the precise terms and effect of particular provisions of the will but the testator needs to understand that this is to be a disposition of the estate upon his or her death. There must be some general understanding of the nature of the property the subject of that disposition and a capacity to make a rational decision about who the beneficiaries of the estate ought to be. One sees in the cases an emphasis on the consideration of a causal relationship between the incapacity and the testamentary act so that a will will be held to be validly made if made during a lucid interval, although testamentary in capacity might otherwise be generally found.
Counsel for the plaintiff also referred me to the following paragraphs from Smurthwaite, referring to In the Will of Steward [1964] VR 179, 665 and Timbury v Coffee (1941) 66 CLR 277, [11], [12]:
There is a presumption that the testator knew the contents and effects of the Will. In … Steward … at 185, it was said:
'… in the absence of evidence to the contrary such an inference may be drawn from the mere fact that a person of sound mind has duly executed a document declaring it to be his will.'
There is also a reference to the presumption of capacity in Timbury … at 283 where it was said:
'If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed in the absence of any evidence to the contrary, that it was made by a person of competent understanding.'
As I understand counsel's submissions, he sought to meet a suggestion that the propositions of law in Smurthwaite [11] and [12] might be seen to be contradictory. However, in my view those propositions are not contradictory: the presumptions are different, and the presumption in [11] follows from the conditions for the presumption in [12]. The latter presumption, but not the former, is referred to in the extract from Martin above.
I further note, from Re Levy deceased (No 2) [1957] VR 662 at 665 (Sholl J), quoted with approval in Wheatley [21], that it is not
the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought.
That seems to me to be of particular significance to a hearing such as this one, where no contradictor sought to be heard, and the only evidence was presented by affidavit by the plaintiff.
Finally, I note that if there is evidence sufficient to raise a doubt as to testamentary capacity, then the task of the court is as described in Worth at 453 (see also Griffith at 289 per Gleeson CJ):
The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is thought by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.
I will refer to some other authority with a bearing on this case in due course.

The application of these principles

In my view, it is not open to any reasonable doubt that the 2000 will was duly executed and was a document rational on its face sufficient to raise the presumption referred to in Martin.
There is evidence in the affidavits of the two attesting witnesses, the Yegorov affidavit and the Johnstone affidavit of 5 July 2004, that the testator executed the 2000 will at the foot or end of the document in the presence of both witnesses who were present at the same time and attested and subscribed the document in the presence of the testator. On these elements, which are proof of due execution see Hodges 704 - 705.
The degree of commonality of the beneficiaries between the 1998 will and the 2000 will, the relationships to the testator they describe and the overlap of some of those beneficiaries with those in the 1975 will in my view show the 2000 will (and indeed the 1998 will) to be rational on its face. On the relevance of the court's consideration of prior wills see Smurthwaite [38]. That appearance of rationality is strengthened by the evidence in the Alexandra Bjedov affidavit that the circumstances of the making of the 2000 will included the death of the testator's 'last relative [in Australia] Olga in Kalgoorlie' (who I would understand to be the Olga Dreja to whom a bequest was made by the 1998 will); the testator's concern 'about what was going to happen to everything when she died because there were no blood relatives here'; and the discussion between the two women about 'leaving something for her relatives in Russia and for the church' (the Alexandra Bjedov affidavit [4]). I return to this evidence as to the circumstances of the making of the 2000 will.

I turn now to the evidence which it might be said raises a doubt as to testamentary capacity such that the 'vigilant examination' of all of the evidence would be required, on Worth 453. That evidence is at least some of the evidence from the medical practitioners.
The strongest such evidence is that in the Goldswain affidavit. The Goldswain affidavit states that the deponent saw the testator on two occasions, 29 January 1998 and on 19 January 2001. The affidavit further states that the deponent was a 'physician in geriatric medicine' who was employed by the 'Department of Geriatric Medicine at Royal Perth Hospital'.
On the first occasion the matters reported to him of 'short term memory loss, deterioration of hygiene and poor self care' were 'relatively short lived, approximately 2 to 3 months', which he assessed as 'a little short to establish the diagnosis of dementia, but the suspicion was nevertheless there' [6].
Rather more significant for my purposes was the second occasion, 19 January 2001. The testator had been admitted to the Royal Perth Hospital because of a physical condition. However, the geriatricians there were consulted because of concerns about her mental status. The deponent saw the testator with a 'Polish/Russian interpreter in order to establish her mental capacity'.
In that meeting 'through the interpreter' the testator scored one correct answer of ten on 'an abbreviated mental test score', and
[w]hen asked about her assets she mentioned that she had money at home, then when pushed, she admitted that she had money in the bank, but could not say which bank or what amount. [The testator] also mentioned that she had a big home and when asked about dispersing this, she said she would 'give all her assets to the government' [9].
The Goldswain affidavit adds that '[a]t the time' the deponent 'felt [the testator] did not have testamentary capacity' based on the performance on the mental test and the answers to the questions about her assets [10]. I would understand the reference to 'at the time' as being to the time of the deponent's meeting with the testator, 19 January 2001.
However, the Goldswain affidavit also says the deponent did not believe the testator 'would have had testamentary capacity at the time she signed the will' ([12], emphasis supplied), adding:
I believe that at the time she signed the will, [the testator] would not have understood the nature of a will, would not have been aware of the extent of her assets and would not have had the capacity to comprehend and appreciate the claims of those for whom she ought to provide [13].
I note, as counsel for the plaintiff pressed on me, in respect of what appear to be the bases for his opinion as to testamentary capacity at the time of Dr Goldswain's meeting with the testator on 19 January 2001 and for his opinion as to testamentary capacity at the time of execution of the 2000 will, that the meeting was in what would seem for a 93‑year‑old woman with the language skills she appears to have possessed to be difficult circumstances. Those circumstances were the hospital environment in which she found herself.
I also note the law as to inferring lack of testamentary capacity from the testator's lack of knowledge as to their assets: Shaw and Stretch above.
In the first respect, that of the circumstances in which the testator found herself, I also note the following from the Goldswain affidavit itself where, after referring to what he saw as an apparently 'logical' will which was 'obviously at odds with what I found when seeing her a month later in January 2001', the deponent said:
This is a little unsettling. The only conclusion that I can come to is that when [the testator] was assessed in January 2001 there was still evidence of delirium and that she in fact had not settled back in to her normal mental state. Having said that, the indications from the nursing reports and medical observations are that the [the testator's] delirium had settled so that my conclusion is that it probably was an appropriate time to assess her testamentary capacity [15].
I consider that, altogether apart from the lack of other evidence as to the 'nursing reports', this paragraph indicates matter with which I must weigh Dr Goldswaith's opinions drawn from the meeting with the testator on 19 January 2001. As will shortly be seen there is further evidence as to delirium which the testator may have been suffering from in January 2001.
The evidence from the remaining medical practitioners is either somewhat equivocal (the Atartis affidavit and the Ang affidavit) or that the testator did not lack testamentary capacity at the relevant time (the Boehm affidavit). However, I must weigh with this evidence, not only certain other matters to which I will refer, but also that none of those medical practitioners saw the testator as close to the execution of the 2000 will as Dr Goldswain saw her, and Dr Boehm saw her at the greatest distance from that point in time.
The Atartis affidavit states the deponent saw the testator on 29 March 2001. He had done so on referral from Dr Ang when the testator was 'a relatively new resident at Belmont Nursing Home' (Atartis affidavit, annexure B, report dated 3 April 2001 to Dr Ang). The deponent saw that the testator was 'clearly uncooperative and there were also language problems' [9].
The deponent stated he was 'not sure as to whether she was aware of the extent of her assets or able to comprehend or appreciate the claims of those who might have claim to her estate' [9].
The deponent concluded as follows:
I cannot comment on the state of her mind other than to say the picture was suggestive of possibly a dementia, possibly Alzheimer's, possibly vascular or possibly alcohol. She did appear to be agitated and confused and a delirium could not be excluded. Unfortunately I do not have an impression of what her base-line functioning was or whether she was of sound mind, memory and understanding [10].
The Atartis affidavit also reports that it was 'most likely that she had dementia given that she was ACAT'd', apparently referring to testing at Royal Perth Hospital at the time of her admission in January 2001, and 'the collateral information from a friend indicated cognitive decline over at least 18 months' [5]. At the same time the deponent said:
Unfortunately it is also most likely that [the testator] had a superimposed delirium when I assessed her, which made assessment very difficult [6].
It will be recalled that the possibility of delirium in January 2001 which would have had the effect of making assessment of the testator's mental condition difficult then was considered in the Goldswain affidavit. I consider the evidence from the Atartis affidavit strengthens the likelihood of such an effect in January 2001.
The Ang affidavit states that the deponent saw the testator on two occasions, 3 February 2001 and 4 August 2001, after she was transferred from Royal Perth Hospital to the Belmont Community Nursing Home and while she was at that home [4]. The deponent noted in his medical notes for the first occasion that 'she had Alzheimer's, was confused at times', but deposes that 'no formal assessment of her mental state was made and I would not be sure of the degree of cognitive impairment at that time' [5]. The Ang affidavit concludes as follows:
As I had not started seeing [the testator] in December 2000 I would not be certain of her state of mind at the time she signed the will. I would not be certain about her mental capacity to make a will on 21 December 2000. She was suffering from dementia and behaviour disorder when I saw her [7].
I further note that both Dr Atartis and Dr Ang saw the testator, a 93‑year‑old woman with the language skills she appears to have possessed, under the circumstances represented by the nursing home environment in which she found herself. Particularly in view of the evidence in the Boehm affidavit which I will shortly reach I am of the view these circumstances might well have had an adverse impact on her mental condition at that time of a sort the home environment she had been in at the time of the execution of the 2000 will, and the times she saw Dr Boehm, would not have had. I consider I should weigh their evidence with that consideration.
The Boehm affidavit states that the testator had consulted the deponent from 4 May 1992 to 22 April 2000, on 18 occasions in all, and that in 1998 there was 'a suspicion of dementia' [7]. It would appear that these consultations were while she was living at her home. The deponent concluded that, '[a]lthough [the testator] may have demonstrated signs of short-term memory loss' [9], and '[i]t is possible [the testator] was suffering from mild dementia' [8], he was of the view 'she had testamentary capacity at the time of signing the will' [9], (emphasis supplied).
Counsel for the plaintiff sought to meet any suggestion that 'the will' referred to was, in the context of the earlier reference to a suspicion of dementia in 1998, a reference to the 1998 will. He did this by emphasising that the only will referred to in the Boehm affidavit was the 2000 will [1]. Counsel also sought to meet that suggestion by seeking to put into evidence, under the Evidence Act 1906 (WA), what appear to be file copies of a letter dated 14 April 2004 from an officer of the plaintiff to the practice manager of the practice in which Dr Boehm practised, and the reply dated 23 April 2004 from Dr Boehm. The only will referred to in that material was the 2000 will. I agreed that reference could be made to the file copies, and I would rule subsequently on their admissibility.
In my view it is unnecessary to rule on the admissibility of the file copies as it is clear from the Boehm affidavit that reference at [9] is being made to the 2000 will, and that the time of the execution of the 2000 will was the time to which the other quotations [8] from the immediate context to that reference related. I should add that, were it necessary to rule on the admissibility of the file copies, it is arguable that there is a basis for the admission of the file notes in the one counsel put forward, Evidence Act s 79C(1)(a) read with s 79C(2)(g) and s 79B 'qualified person'. I understood that basis to relate to the officer of the plaintiff who sent the letter to Dr Boehm, and Dr Boehm. However, as I have indicated, I do not consider I need to reach a final conclusion on the matter.
In evaluating the evidence of the medical practitioners, I note that the authorities indicate that the opinion of witnesses stated as an assessment of testamentary capacity is usually given little weight in deciding the issue: Kinleside v Harrison (1818) 2 Phill Ecc 449, 457 - 459; 161 ER 1196; referred to in Silvester v Tarabini (Unreported, WASC, Library No 960062, 13 February 1996) (Anderson J). What is of significance to the court is the basis for any such opinion.
In that regard, dementia is relevant to testamentary capacity (see Martin [7]), and in my view is so relevant because it relates to the understanding, comprehension and appreciation to which reference is made in Banks 565. At the same time, I need to remind myself that the presumption of testamentary capacity is not rebutted merely because it is shown a testator was suffering from dementia at the time of execution of their will (Martin [7]); and that a lack of understanding of the detail of a deceased's affairs does not necessarily call into question testamentary capacity: Shaw and Stretch [9].
On all of the medical evidence I have reviewed, I consider a doubt as to testamentary capacity arises such that the vigilant examination referred to in Worth must be undertaken.
While I must consider all of the evidence, in my view this doubt requires that I particularly focus on the evidence of the persons who were present either when instructions were given for the 2000 will and immediately after it was executed (see the Alexandra Bjedov affidavit), or when the document was executed (see the Johnstone affidavit of 5 July 2004 and the Yegorov affidavit).
The Alexandra Bjedov affidavit refers to the circumstances in which the testator called for changes to her will. I have already referred to those circumstances. The deponent provided instructions for the 2000 will to the deponent's son in law which he typed. The contents of the typed document (annexure A to the Alexandra Bjedov affidavit) substantially coincide with terms of the 2000 will, except that the former makes no provision for Zoja (Sophia) Pochikailik. However, the Alexandra Bjedov affidavit states that after the exchange with the son in law, the testator asked the deponent to write a 'hand written bequest' (annexure B), 'because [the testator] asked how her relatives would get the money if the Public Trustee did not know the address in Russia' [6]. The document annexed (annexure B) is mostly in what appears to be Cyrillic script, but includes the English legend '$20 000 to Zoja Pochikailik'. The handwritten document was posted to the Public Trustee [6]. An annotation on the typed document (annexure A) indicates that that document was also provided to the plaintiff.
The Davies affidavit of 18 June 2004 states the deponent was employed by the plaintiff as a wills officer whose duties involved among other things interviewing persons and taking instructions from them for the preparation of their wills and drafting their wills [1]. On 16 November 2000 the deponent went to the address of Jovo Bjedov, one of the second defendants, to take instructions for the will of the testator [3]. There he was given what appear from the annexures to the affidavit (annexures A and B, respectively) to be the typed and the handwritten documents [4]. The Alexandra Bjedov affidavit states that the testator was not present for this exchange, in part as the testator did not speak English [7]. I have previously referred to the difficulties on language grounds for one medical practitioner (Dr Atartis) in dealing with the testator and the use of an interpreter by another (Dr Goldswain).
The Alexandra Bjedov affidavit also states that for the last 20 years of the testator's life she and the testator were 'close friends', and that the deponent over that period took her to church; for the last 10 years of the testator's life, the deponent 'did everything for her, including her shopping, paid her bills and drove her everywhere', while the deponent's husband, who appears to be the other second defendant, Jojo Bjedov, 'looked after her house and garden', and both visited the testator at least once a week [2]. The Alexandra Bjedov affidavit also states:
I believe [the testator] understood and approved of the will because after it was signed she was much more content. The only time she was worried was when it took the officer from the Public Trustee so long to come out to the house. She was always asking when they were going to come out and finalise everything [8].
The Alexandra Bjedov affidavit adds:
I was not present when the will was signed, but when I came back into the room afterwards [the testator] was very happy and seemed relieved [9].
I must weigh this evidence with the fact Alexandra Bjedov and Jojo Bjedov were beneficiaries under the 2000 will who were taking larger bequests than under its predecessor, the 1998 will. However, I must also weigh the evidence in the Alexandra Bjedov affidavit as to the relationship between the second defendants and the testator, particularly in the last 10 years of the testator's life, for the light it casts both on the terms of the 2000 will, and on Alexandra Bjedov's knowledge of the testator.
As to the circumstances when the 2000 will was executed, the Johnstone affidavit of 5 July 2004 states the deponent was employed by the plaintiff as a wills officer with duties involving interviewing persons and taking instructions from them for the preparation of their wills, drafting wills and acting as a witness to the execution of wills [2]. The deponent was present at the home of the testator when Aneta Yegorov translated and read the 2000 will to the testator, who appeared 'thoroughly to understand and approve the same' [8]. The Johnstone affidavit of 5 July 2004 states it was the deponent's 'standard procedure' to 'assess as best I can a person's testamentary capacity' and if 'uncertain if a person has the requisite capacity' to 'request a medical certificate from the person's medical practitioner' [10]. There is no evidence from the deponent or of any other kind of any such request from the deponent.
The Johnstone affidavit of 5 July 2004 also states that at the time the deponent witnessed the will 'the deceased was of sound mind and had the required testamentary capacity to understand and approve the contents of the will' [11].
In respect of that last assessment, however, I note again that the authorities indicate that the opinion of witnesses expressed as an assessment of testamentary capacity is usually given little weight in deciding the issue: Kinleside 457 ‑ 459; Silvester. Of greater significance in my view is the evidence in the Johnstone affidavit of 5 July 2004 that the testator showed signs to him of thorough understanding of the document and that he saw no reason to seek a medical opinion as to her capacity.
The Yegorov affidavit states that she was contacted by the Translating and Interpreting Service to provide interpreting 'during a meeting between an officer from the Public Trustee … and [the testator]' [4]. From the context in the affidavit it is clear this was the occasion on which the 2000 will was executed. The Yedorov affidavit continues as follows:
I did not discuss the matter of a will or the contents of the will with [the testator] at any time either prior to or after signing the will.
[The testator] approved what I read and interpreted to her. She expressed her approval in short sentences and body language such as nodding.
In my capacity as an interpreter I am not in a position to express an opinion on [the testator's] understanding. Bearing in mind the age of [the testator] I made sure that she could hear my interpreting by speaking to her slowly, clearly and loudly.
[The testator's] demeanour was polite and approachable [5] - [8].
I consider that this evidence supports that as to the testator's testamentary capacity of significance to me in the Alexandra Bjedov affidavit and the Johnstone affidavit of 5 July 2004. The Yegorov affidavit is entitled to significant weight, as the deponent was not only independent of the testator's bounty but also because, for her ‑ alone of any of the deponents in this matter apart from Alexandra Bjedov ‑ there is evidence she was able to communicate readily with the testator in a language in which the testator was fluent.
The evidence from all three sources indicates that there were no signs that any dementia from which the testator may have been suffering at the time of the execution of the 2000 will was then affecting her testamentary capacity as that is described in the extract in Martin from Banks above.
I have reviewed all of the evidence before me in performance of the task described in Worth 453. Weighing that evidence, and particularly the entirety of the medical evidence, I am left with a residual doubt as to the testamentary capacity of the testator. However, after that same weighing that residual doubt is not, in the terms used in Worth 453, 'substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution'.

Conclusions

I have concluded that the testator did not lack testamentary capacity at the time she executed the 2000 will, which was otherwise duly executed. I have thus concluded that the plaintiff has discharged its burden of proof that the 2000 will was the will of the testator who possessed sound mind, memory and understanding at the time of its execution.