Public Trustee v Alzheimer's Australia WA Ltd [No 2] - [2014] WASC 337

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PUBLIC TRUSTEE -v- ALZHEIMER'S AUSTRALIA WA LTD [No 2] [2014] WASC 337

CORAM: PRITCHARD J

HEARD: 15 SEPTEMBER 2014

DELIVERED : 22 SEPTEMBER 2014

FILE NO/S: CIV 2063 of 2010

BETWEEN: PUBLIC TRUSTEE
Plaintiff
AND
ALZHEIMER'S AUSTRALIA WA LTD
First Defendant
THE PRINCESS MARGARET HOSPITAL FOR CHILDREN FOUNDATION INC
Second Defendant
ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA INC
Third Defendant
AUSTRALIAN RED CROSS SOCIETY (WESTERN AUSTRALIA DIVISION)
Fourth Defendant
TRACEY DALE KITTELTY
Fifth Defendant
SHANE BURNETT KITTELTY
Sixth Defendant

Catchwords:

Probate - Proof of will in solemn form - Principles in relation to establishing testamentary capacity - Proof of testamentary capacity - Plaintiff propounding latest will

Legislation:

Wills Act 1970 (WA)

Result:

Grant to plaintiff of probate in solemn form of will dated 12 August 2009

Category: B

Representation:

Counsel:

Plaintiff:     Ms C F Holyoak-Roberts
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance

Solicitors:

Plaintiff:     Public Trustee (WA)
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance

Cases referred to in judgment:

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Broadway Pty Ltd v Lewis [2012] WASC 373
Bull v Fulton (1942) 66 CLR 295
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 [2014] WASC 96
Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17
Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284
Re Estate of Hodges (dec'd); Shorter v Hodges (1988) 14 NSWLR 698
Re Levy (dec'd) (No 2) [1957] VR 662
Read v Carmody [1998] NSWCA 182
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161
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

PRITCHARD J: Mr Robert Arthur Kittelty died on 6 October 2009 at the age of 73 years. Mr Kittelty was never married, and had no children at the time of his death. At the date of his death, Mr Kittelty owned a house in North Perth (the Property) which was subject to a contract of sale, he had a modest amount of cash in a bank account, and owned some personal effects of modest, or no, commercial value.
On 12 August 2009, Mr Kittelty executed a will (the August 2009 Will). In the August 2009 Will, Mr Kittelty left one‑tenth of his estate to the first defendant, and three‑tenths of his estate to each of the second to fourth defendants. Under the August 2009 Will, the Public Trustee was appointed the executor and trustee of Mr Kittelty's will.
Earlier this year, the Public Trustee located another will executed by Mr Kittelty (the June 2009 Will). The June 2009 Will was drafted by an officer of the Public Trustee and sent to Mr Kittelty, under cover of a letter dated 8 June 2009, for his signature. The June 2009 Will was signed by Mr Kittelty on 12 June 2009 in the presence of two attesting witnesses. However, the June 2009 Will was then stapled to the Public Trustee's letter of 8 June 2009 before being returned to the Public Trustee. Consequently, an officer of the Public Trustee requested that Mr Kittelty sign a new will. That new will (the August 2009 Will) was in identical terms to the June 2009 Will.
As I noted in an earlier decision,[1] Mr Kittelty made a will on 8 December 1997 (the 1997 Will) in which he left his estate to the fifth and sixth defendants. The Public Trustee was appointed the executor and trustee of Mr Kittelty's will in the 1997 Will.
[1] The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [7].
The Public Trustee propounded the August 2009 Will as the last will of Mr Kittelty. The fifth and sixth defendants disputed the validity of the August 2009 Will on the basis that Mr Kittelty did not have capacity to make a will when he executed the August 2009 Will, and contended that the 1997 Will was the last valid will made by Mr Kittelty.
In those circumstances, the Public Trustee commenced the present action seeking that the Court pronounce the force and validity of the August 2009 Will, and that there be a grant of probate in solemn form of the August 2009 Will to the Public Trustee. Following the location of the June 2009 Will, the Public Trustee amended the Statement of Claim to seek, in the alternative, that the Court pronounce the force and validity of the June 2009 Will, and that there be a grant of probate in solemn form of the June 2009 Will.
For the reasons outlined below, I find that Mr Kittelty had testamentary capacity when he made the August 2009 Will, and that that Will is valid.
In these reasons for decision I deal with the following matters:
(a)The parties to the action and the trial;
(b)The evidence relied upon by the Public Trustee;
(c)The requirements for a valid will;
(d)The principles in relation to establishing the testamentary capacity of a testator;
(e)Why the evidence at trial supports the conclusion that Mr Kittelty had testamentary capacity at the time of his execution of the August 2009 Will;
(f)Other issues; and
(g)Orders.

(a) The parties to the action and the trial

The Amended Statement of Claim pleaded that Mr Kittelty executed the August 2009 Will on 12 August 2009, that that was the last will made by Mr Kittelty, that Mr Kittelty also executed the June 2009 Will and the 1997 Will, that the Public Trustee was named as the executor in each of those Wills, that Mr Kittelty was not married at the time of his death, and set out which defendants were the beneficiaries under each will.

The first to fourth defendants

The first defendant admitted each paragraph of the Statement of Claim. The second to fourth defendants admitted each paragraph of the Statement of Claim, and further pleaded that Mr Kittelty had testamentary capacity at all relevant times to make the August 2009 Will, and that the Public Trustee was entitled to the relief claimed in the Statement of Claim.
In April 2014, the first to fourth defendants each filed Notices of Intention to Abide by the Decision of the Court and did not take any further part in the action.

The fifth defendant

The fifth defendant entered an appearance to the action on 23 August 2010, but did not file a defence. Although she was initially represented by solicitors, the fifth defendant filed a notice of acting in person on 30 April 2012. Since about mid‑2013 the fifth defendant has not participated in the action, and has not attended any directions hearings. On my instruction, my associate wrote to the fifth defendant on 30 June 2014 to advise of the provisional listing of the trial of the action, and to request that if the fifth defendant wished to participate she should notify the Court of that intention, and attend a forthcoming directions hearing. The fifth defendant was specifically advised that if she did not attend the trial, the matter may be decided in her absence.
The fifth defendant did not appear at the trial. No application was made by, nor received from, the fifth defendant for an adjournment of the trial, nor did the Court receive any notification that the fifth defendant was unable to attend the trial for any reason.
At the commencement of the trial, the Public Trustee tendered an affidavit sworn by Ms Yasmin Salleh on 8 September 2014, the solicitor with the conduct of this action on behalf of the Public Trustee, who deposed that on 31 July 2014, 7 August 2014, 15 August 2014, 25 August 2014 and 27 August 2014, she wrote to the fifth defendant advising of the documents that the Public Trustee intended to tender at the trial, and provided copies of various documents including an outline of the evidence the Public Trustee intended to adduce from Mr Kittelty's general practitioner, Dr Papaelias, a copy of the entry for trial and notice of trial and of the papers for the judge. Ms Salleh deposed that in her letter to the fifth defendant of 27 August 2014, she advised the fifth defendant of the dates for which the trial had been listed, and advised that if the fifth defendant intended to participate in the action she would need to attend on the dates listed for the trial of the action.

The sixth defendant

The sixth defendant entered an appearance, and filed a defence and counterclaim to the action. The counterclaim was struck out by Master Sanderson on 27 November 2013 with leave to replead. An Amended Defence and Substituted Counterclaim was filed by the sixth defendant on 6 January 2014. A summary of the matters pleaded in that document is as follows:
(i)Mr Kittelty was a person with a legal disability. He had been diagnosed with probable Alzheimer's disease in 2006.
(ii)The sixth defendant was appointed the plenary administrator for Mr Kittelty following a hearing before the State Administrative Tribunal (SAT) on 24 June 2009;
(iii)In the hearing before the SAT, the tribunal member presiding at the hearing indicated that Mr Kittelty did not have capacity to make a valid will;
(iv)Pursuant to s 77(1)(a) of the Guardianship and Administration Act 1990 (WA) (the GA Act) Mr Kittelty did not have capacity to execute the August 2009 Will;
(v)The drafting and execution of the August 2009 Will was undertaken without either the consent of the sixth defendant as Mr Kittelty's administrator, or of the SAT;
(vi)Mr Kittelty's General Practitioner expressed the opinion ‑ in a letter dated 13 January 2010 - that Mr Kittelty did not have testamentary capacity to make a will between April and the end of June 2009;
(vii)Accordingly, the August 2009 Will is invalid;
(viii)Mr Kittelty executed the 1997 Will on 8 December 1997, and had legal capacity to do so;
(ix)The sixth defendant did not consent to the commencement of the action;
(x)The Public Trustee is a Board Member and Director of the first defendant;
(xi)The Public Trustee has not pleaded in which capacity he has commenced the action, and has no standing to bring the action;
(xii)The Public Trustee is not entitled to propound the validity of the August 2009 Will as to do so contravenes the orders made by the SAT on 24 June 2009 and as Mr Kittelty did not have legal capacity to execute the August 2009 Will;
(xiii)The Public Trustee has a fiduciary duty to the fifth and sixth defendants under the 1997 Will;
(xiv)The Public Trustee did not obtain a medical opinion concerning Mr Kittelty's capacity to make a valid will prior to taking Mr Kittelty's instructions to prepare a will in May 2009;
(xv)The instructions taken for the preparation of the August 2009 Will were not set out on a standard form;
(xvi)The instructions to prepare the August 2009 Will, and the August 2009 Will, were not prepared in accordance with policy documents used by the Public Trustee in relation to testamentary capacity;
(xvii)The instructions to prepare Mr Kittelty's will, and the August 2009 Will, were drafted by the Public Trustee at no charge;
(xviii)Mr Kittelty did not agree to any charges which would be made by the Public Trustee in acting as the executor of his estate;
(xix)The action commenced by the Public Trustee should be dismissed and the Court should declare that the 1997 Will is valid, and issue a grant of probate to the fifth and sixth defendants.
Earlier this year, the sixth defendant applied to strike out the action commenced by the Public Trustee. The grounds for that application overlapped with many of the contentions advanced by the sixth defendant in his Amended Defence and Counterclaim. I dismissed that application.[2]
[2] Public Trustee v Alzheimer's Australia WA Ltd [2014] WASC 96.
Since April 2014, shortly after his application to strike out the action was dismissed, the sixth defendant has not attended any directions hearings or otherwise actively participated in the action.
The sixth defendant did not appear at the trial. No application was made by, nor received from, the sixth defendant for an adjournment of the trial, nor did the Court receive any notification that the sixth defendant was unable to attend the trial for any reason.
In the affidavit of Ms Salleh to which I referred at [14], Ms Salleh also deposed that on 31 July 2014, 7 August 2014, 15 August 2014, 25 August 2014 and 27 August 2014, she wrote to the sixth defendant and advised of the documents that the Public Trustee intended to tender at the trial, and provided copies of various documents including an outline of the evidence the Public Trustee intended to adduce from Mr Kittelty's general practitioner, Dr Papaelias, a copy of the entry for trial and notice of trial and of the papers for the judge. Ms Salleh deposed that in her letter to the sixth defendant of 27 August 2014, she advised the sixth defendant of the dates for which the trial had been listed, and advised that if the sixth defendant intended to participate in the action he would need to attend on the dates listed for the trial of the action.

The trial

Notwithstanding the absence of the fifth and sixth defendants, I permitted the trial to proceed. It is appropriate to set out my reasons for doing so.
Subject to the provisions of O 73 of the Rules of the Supreme Court 1971 (WA) (RSC), the RSC generally apply to probate causes and matters.[3] Order 34 r 2 RSC provides that if, when a trial is called on, one party does not appear the judge may proceed with the trial of the action in the absence of that party. I discussed the principles relevant to the exercise of the Court's discretion under O 34 r 2 RSC in Broadway Pty Ltd v Lewis.[4]
[3] Rules of the Supreme Court 1971 (WA) O 73 r 1(1).
[4] Broadway Pty Ltd v Lewis [2012] WASC 373 [43] ‑ [53].
Having regard to those principles, and to the history of the participation of the fifth and sixth defendants in the action as set out above, I determined that it was appropriate to proceed with the trial, notwithstanding that neither the fifth nor the sixth defendant had attended, for the following reasons.
First, this was not a case in which defendants who had actively participated in the action throughout its preparation for trial, had unexpectedly failed to appear at the trial without any explanation. The fifth defendant has not actively participated in the action for over a year and has never filed a defence. The sixth defendant has not attended a directions hearing in the action since April this year, after his application to strike out the action was dismissed.
Secondly, having regard to the affidavit of Ms Salleh, to which I referred at [14] and [19], I was satisfied that both the fifth and sixth defendants had been notified of the trial dates, and of the material on which the Public Trustee intended to rely. I was satisfied that each of the fifth and sixth defendants has had ample time and opportunity to ascertain the case advanced by the Public Trustee and to prepare any case they wished to advance, in response, at the trial.
Thirdly, there had been no indication from either of the fifth or sixth defendant that they sought an adjournment of the trial.
Fourthly, broader case management considerations supported proceeding with the trial: the Public Trustee had attended the trial and was ready to proceed, this action has been on foot for some time and, since earlier this year, has been closely case managed. In these circumstances, an adjournment of the trial would not have been consistent with the system of positive case flow management in accordance with which litigation is managed in this Court pursuant to RSC O 1 r 4B.

(b) The evidence relied upon by the Public Trustee

On 11 March 2014 I made orders that the evidence at the trial be on affidavit, and granted leave to the Public Trustee to adduce expert evidence from Mr Kittelty's general practitioner, Dr Papaelias, at trial. At the trial, the Public Trustee tendered the following affidavits and documents in support of the relief sought:
•The August 2009 Will;
•The June 2009 Will;
•The death certificate for Mr Kittelty;
•Affidavit of scripts of Shaun William Conlin sworn 17 September 2010;
•Affidavit of scripts of Shaun William Conlin sworn 28 March 2014;
•Affidavit of Shaun William Conlin sworn 25 August 2014;
•Affidavit of Ivor Alan Knight (one of the subscribing witnesses to the August 2009 Will) sworn 24 May 2012;
•Affidavit of Ivor Alan Knight sworn 27 May 2014;
•Affidavit of Danielle Jayne Davenport (the other subscribing witness to the August 2009 Will) sworn 11 June 2012;
•Affidavit of Jeffrey Alan McKenzie (the officer who took Mr Kittelty's instructions to prepare a will, on 28 May 2009) sworn 2 April 2014;
•Affidavit of Donna Buckovska sworn 24 June 2014;
•Affidavit of John Robert Littler sworn 28 May 2014 (one of the subscribing witnesses to the June 2009 Will);
•Affidavit of Christine Patricia Gundry sworn 29 May 2014 (the other subscribing witness to the June 2009 Will).
In addition, the Public Trustee called Dr Papaelias to give evidence. In the course of his evidence, Dr Papaelias confirmed that a statement of his evidence which had been set out in a draft affidavit was true and constituted the evidence he wished to give. That document was tendered in evidence. Dr Papaelias also answered a number of questions clarifying that evidence.
It goes without saying that as the sixth defendant did not attend the trial, no evidence was tendered in support of the case advanced by him in his Amended Defence and Substituted Counterclaim.

(c) The requirements for a valid will

An applicant for a grant of probate whether in common form or solemn form must prove, to the satisfaction of the court, that the deceased made the will being propounded of his own volition, without duress and with a fully comprehending mind.[5]
[5] Lock v Phillips [2014] WASC 92 [32] (EM Heenan J).
Proof of these matters will be required even if all opposition to the plaintiff's 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.[6]
[6] Lock v Phillips [2014] WASC 92 [33] (EM Heenan J).
In addition, under s 8 of the Wills Act 1970 (WA), a will is not valid unless:
(a)it is in writing;
(b)it is signed by the testator or 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;
(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 latter formal requirements were clearly met in this case. There was no suggestion that Mr Kittelty made the August 2009 Will other than of his own volition, and no suggestion that he was under duress when he made it. The only issue bearing on the validity of the August 2009 Will about which any controversy had been raised was whether Mr Kittelty had testamentary capacity at the time he made that will.

(d) The principles in relation to establishing testamentary capacity of a testator

The test for testamentary capacity

In short, testamentary capacity requires that a testator be of sound mind, memory and understanding when the will is made.[7] The traditional formulation of the test for determining testamentary capacity is that stated by Cockburn CJ in Banks v Goodfellow,[8] 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.
[7] Bailey v Bailey (1924) 34 CLR 558, 559 (Knox CJ & Starke J); Banks v Goodfellow (1870) LR 5 QB 549, 568 (Cockburn CJ).
[8] Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ); see also Lock v Phillips [2014] WASC 92 [32] (EM Heenan J).
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.'[9] 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.[10]
[9] Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn CJ).
[10] Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 290, 292 (Gleeson CJ, Handley JA agreeing, referring to Harwood v Baker (1840) 3 Moo PC 282), see also at 295 (Kirby P).
In Read v Carmody,[11] Powell JA elaborated upon what testamentary capacity requires. His Honour noted that the testator must be aware, and appreciate the significance, of the act in the law upon which he is about to embark, must be aware at least in general terms of the nature, extent and value of the estate over which he has a disposing power, must be aware of those who may reasonably be thought of to have a claim upon his 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.[12] It is not necessary that the testator know precisely the value of his individual assets, or even of certain classes of assets, particularly in the case of a large and complex estate.[13]
[11] Read v Carmody [1998] NSWCA 182 (Powell JA, Meagher & 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).
[12] See also Collins by her next friend Poletti v May [2000] WASC 29 [52] ‑ [62] (Owen J).
[13] 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). .
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.[14] Indeed, it is important to bear in mind that in Goodfellow Cockburn CJ was at pains to point out that testamentary capacity does not require perfect mental acuity and memory:
Mental 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. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. … The question is not so much what was the degree of memory possessed by the testator as this: Has he a disposing memory? Was he capable of recollecting the property was about to bequeath; the manner of distributing it; and the objects of his bounty? 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?[15]
[14] Bailey v Bailey (1924) 34 CLR 558, 560 (Knox CJ & Starke J); Re Estate of Griffith (dec'd);Easter v Griffith(1995) 217 ALR 284, 295 (Kirby P citing Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, 565).
[15] Banks v Goodfellow (1870) LR 5 QB 549, 566, 568 (Cockburn CJ), quoted with approval in Bailey v Bailey (1924) 34 CLR 558, 566 ‑ 567 (Knox CJ, Starke J); see also Timbury v Coffee (1941) 66 CLR 277, 280 (Rich ACJ), 283 (Dixon J).
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.[16]
[16] Bull v Fulton (1942) 66 CLR 295, 299 (Latham CJ); Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 295 (Kirby P) citing Banks v Goodfellow (1870) LR 5 QB 549, 558 (Cockburn CJ).
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 influenced by a beneficiary,[17] 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.[18]
[17] Bailey v Bailey (1924) 34 CLR 558, 571 (Isaacs J, Gavan Duffy & Rich JJ agreeing).
[18] See, for example, Timbury v Coffee (1941) 66 CLR 277, 285 (McTiernan J).
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.[19]

Proof of testamentary capacity

[19] Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 295 - 296 (Kirby P).

The power freely to dispose of one's assets by will is an important right, and 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.[20]
[20] Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 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.[21] The onus on the propounding party will, in the first place, be discharged by establishing a prima facie case.[22]
[21] Bailey v Bailey (1924) 34 CLR 558, 570 (Isaacs J, Gavan Duffy & Rich JJ agreeing); Bull v Fulton (1942) 66 CLR 295, 299 (Latham CJ); Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb & Kitto JJ); Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 289 (Gleeson CJ, Handley JA agreeing), 294 (Kirby P).
[22] Bailey v Bailey (1924) 34 CLR 558, 571 (Isaacs J, Gavan Duffy & Rich JJ agreeing).
The propounder of a will may take advantage of the rule that a will which is properly executed, and which is rational on its face, will be presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding.[23] Further, the party propounding the will is entitled to put forward only evidence that is in its favour.[24]
[23] Timbury v Coffee (1941) 66 CLR 277, 283 (Dixon J); Lock v Phillips [2014] WASC 92 [33] (EM Heenan J); see also Burrows v Burrows (1827) 1 Hagg Ecc 109; 162 ER 524; Re Estate of Hodges (dec'd); Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J).
[24] Re Levy, (dec'd) (No 2) [1957] VR 662, 664 ‑ 665 (Sholl J).
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 mental faculties as to make them unequal to the task of disposing of his property.[25]
[25] Bailey v Bailey (1924) 34 CLR 558, 571-2 (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.[26] 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.[27]
[26] Bull v Fulton (1942) 66 CLR 295, 343 (Williams J); Lock v Phillips [2014] WASC 92 [33] (EM Heenan J); West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144; Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb & Kitto JJ).
[27] Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, 289 (Gleeson CJ, Handley JA agreeing); Worth v Clasohm (1952) 86 CLR 439, 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. And while the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.[28]
[28] Bailey v Bailey (1924) 34 CLR 558, 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.[29]
[29] Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb & Kitto JJ).
I turn to consider the evidence relied upon by the Public Trustee at the trial.

(e) Why the evidence at trial supports the conclusion that Mr Kittelty had testamentary capacity at the time of his execution of the August 2009 Will

The fact that the August 2009 Will is properly executed, and is rational on its face, gives rise to a presumption that Mr Kittelty was a person of competent understanding when he executed that will. In the absence of any evidence adduced by the fifth or sixth defendants to cast doubt on Mr Kittelty's testamentary capacity at that time, it is arguable that there is no evidence to displace the prima facie case established by the Public Trustee, and so there is no need to examine the question of Mr Kittelty's testamentary capacity further. However, that course holds little attraction in the present case for two reasons. First, the Public Trustee adduced some evidence that Mr Kittelty had been diagnosed with early signs of Alzheimer's disease, or showed signs of mild dementia, prior to the execution of the August 2009 Will. Secondly, the dispute between the Public Trustee and the fifth and sixth defendants in relation to Mr Kittelty's capacity (both legal and testamentary) has existed for some time. It is preferable that the question of Mr Kittelty's testamentary capacity be squarely examined and determined, so as to resolve that dispute.
Having carefully considered all of the evidence bearing on Mr Kittelty's testamentary capacity, I am satisfied that he had testamentary capacity when he executed the August 2009 Will. I am satisfied that Mr Kittelty appreciated the significance of the act of making a will, was aware in general terms of the nature, extent and value of his estate, was aware of those who might reasonably be thought to have a claim upon his testamentary bounty, and was able to discriminate between the claims of such persons. I have reached that view for the following reasons.
First, as I explained in Public Trustee v Alzheimer's Australia WA Ltd[30] the fact that Mr Kittelty was the subject of an administration order made by the SAT at the time he executed the August 2009 Will does not preclude the conclusion that Mr Kittelty had testamentary capacity at that time.
[30] Public Trustee v Alzheimer's Australia WA Ltd [2014] WASC 96 [19] ‑ [22].
Secondly, the medical evidence at the trial did not exclude the possibility that Mr Kittelty had testamentary capacity to make the August 2009 Will. Dr Papaelias was Mr Kittelty's general practitioner from January 2008 until his death on 6 October 2009, and during this period Dr Papaelias had regular contact with Mr Kittelty, visiting him about once a month at the nursing home where he lived. Dr Papaelias' evidence was that in 2006 Mr Kittelty had been diagnosed with Alzheimer' disease, and in 2009, Dr Papaelias expressed the view that Mr Kittelty was suffering from mild dementia.
In a letter dated 13 January 2010 to the Public Trustee, Dr Papaelias indicated that he could not be sure that Mr Kittelty had testamentary capacity on 12 August 2009 although he felt that in the period 'from April to the end of June [2009] he would not have had the testamentary capacity to make a will'[31]. I digress to observe that in so far as Dr Papaelias expressed his opinion as to whether Mr Kittelty had testamentary capacity at particular points in time, I do not give weight to those statements of his opinion. Those opinions amounted to a legal conclusion, in circumstances where the criteria on which this conclusion was based were not clear, and where Dr Papaelias acknowledged that he had not conducted any test to assess Mr Kittelty's testamentary capacity. Furthermore, Dr Papaelias' evidence was that he could not be 'totally sure' that Mr Kittelty had testamentary capacity on 12 August 2009[32] and Dr Papaelias accepted that even during the period between April and June 2009, Mr Kittelty's condition fluctuated, depending on his medication.
[31] Exhibit 15, attachment LP1.
[32] Exhibit 15, attachment LP1.
However, two other aspects of Dr Papaelias' evidence were of greater significance. The first is that Dr Papaelias gave evidence of his observations of Mr Kittelty in the months prior to his execution of the August 2009 Will. Dr Papaelias' evidence was that Mr Kittelty 'would normally function to a reasonable degree although his memory was sometimes vague',[33] and that while Dr Papaelias was 'not confident that [Mr Kittelty] was fully cognisant of what he was doing all the time',[34] 'he had good days and bad days'.[35] In addition, Dr Papaelias' evidence was that in the period between April and June 2009 Mr Kittelty was being treated with narcotic medication and the high dosage of this medication resulted in Mr Kittelty suffering a period of confusion during the two weeks prior to 29 June 2009. However, that medication was stopped or reduced between June and August 2009, after which Mr Kittelty's confusion ceased.
[33] Exhibit 15 [10].
[34] Exhibit 15 [11].
[35] Exhibit 15 [11].
The second aspect of Dr Papaelias' evidence which was of particular significance was his view that during the period between June and August 2009, Mr Kittelty probably would have had the ability to understand that in making a will he was giving instructions for the disposition of his estate after his death, and to understand who would be the beneficiaries under his will. In other words, Dr Papaelias' evidence supported the conclusion that between June and August 2009 Mr Kittelty enjoyed periods of lucidity when it is likely that he was able to understand the nature of the act of making a will, and to distinguish between different beneficiaries under his will.
Thirdly, the evidence of the attesting witnesses for the August 2009 Will was that Mr Kittelty's demeanour on that day did not cause them to have any doubt about Mr Kittelty's capacity to understand the August 2009 Will. Mr Knight's evidence was that prior to witnessing the August 2009 Will, he followed his usual procedure which was to ask whether the testator was fully aware of the contents and nature of the will, and was prepared to sign the will, or required additions or alterations to it. Mr Knight's evidence was that he would refuse to witness a will if he had any doubt as to the person's capacity to understand or sign the will. Mr Knight's evidence was that Mr Kittelty was in a wheelchair and apparently physically frail, but that he was not worried or agitated, and appeared to be cognisant of his surroundings. Mr Knight deposed that Mr Kittelty had confirmed that he was the person making the will, and that he was willing to sign the August 2009 Will without any alteration or addition being made to it.
Ms Davenport confirmed that Mr Kittelty answered Mr Knight's questions with respect to whether Mr Kittelty understood and approved the contents of the August 2009 Will, and that he appeared to have a clear understanding of those questions. Ms Davenport's recollection was that Mr Kittelty 'was pleasant and appeared to be fine' on the day that he executed the August 2009 Will.[36]
[36] Exhibit 8 [7] ‑ [9].
Fourthly, Ms Buckovska's evidence supported the conclusion that during May and June 2009 Mr Kittelty's mental capacity was such that he was able to understand aspects of his personal and financial affairs in relation to his decision to sell the Property.[37] Ms Buckovska's evidence was that during the period between mid May 2009 and mid June 2009 she met with Mr Kittelty on four occasions (with each meeting lasting more than an hour), and spoke with him by telephone on a number of occasions, in relation to his decision to sell the Property, to engage her to sell the Property for him, and in relation to his decision to accept an offer for the purchase of the Property. Ms Buckovska's evidence was that in the meetings and telephone conversations that she had with Mr Kittelty he was 'chatty and interactive'[38] and that 'there was nothing in his presentation or demeanour that caused [her] to question his ability to understand what was going on'.[39] Ms Buckovska stated that she 'had no reason to believe [Mr Kittelty] was not cognisant of the implications of his decision to sell his property … and in his instructions and directions to [her] in relation to the sale of [the Property]'.[40]
[37] In The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161, I concluded that Mr Kittelty had legal capacity to sell the Property.
[38] Exhibit 13 [10].
[39] Exhibit 13 [10].
[40] Exhibit 13 [10].
Fifthly, Ms Buckovska's evidence also touched on Mr Kittelty's understanding of the terms of his will. Ms Buckovska deposed that Mr Kittelty told her that:
[H]e had decided to change his will to leave his estate to charity as he had no children and he was unhappy with [the fifth and sixth defendants] who were due to inherit his estate. With respect to [the fifth defendant] I recall the Deceased said he was unhappy with the way she was looking after the Property because she was not paying rent, she was having boarders at the Property and not returning the Deceased's telephone calls. The Deceased also said to me that [the sixth defendant] owed him money and the Deceased was unhappy with how he was being treated by [the sixth defendant].[41]
[41] Exhibit 13 [9].

Ms Buckovska's evidence was that in the meetings and telephone discussions she had with Mr Kittelty she 'had no reason to believe he was not cognisant of the implications of his decision to … change his will. His discussions with me left me with no doubt that he was clear as to his reasoning and motivation for changing his will.'[42]
[42] Exhibit 13 [10].
Ms Buckovska's evidence supports the conclusion that in May and June 2009 Mr Kittelty understood the significance of making a will, that he understood in general terms the nature and value of his estate (which primarily comprised the Property), that he was aware of the fifth and sixth defendants who might expect to receive part of his estate upon his death (and who were the beneficiaries under the 1997 Will) and that he made a deliberate decision to alter the terms of his will, preferring to leave his estate to charity rather than to the fifth and sixth defendants.
Sixthly, the evidence given by Mr McKenzie supports the conclusion that Mr Kittelty understood the terms of the August 2009 Will and the value of his estate, and that he knew of and was able to discriminate between the claims of potential beneficiaries. Mr McKenzie was a wills officer at the Public Trustee in 2009. On 28 May 2009, Mr McKenzie met with Mr Kittelty and took his instructions in relation to the preparation of his will. Mr McKenzie asked Mr Kittelty a series of questions relating to his personal details, his assets, his family members, his intended beneficiaries and instructions for his will. Those instructions were recorded on an instructions form which Mr Kittelty signed. That instruction form was in evidence. It indicates that Mr Kittelty instructed Mr McKenzie about his assets (which then comprised the Property, some funds in a bank account and some personal effects), identified the beneficiaries of his will and their respective shares in his estate, and provided instructions as to whether there were persons who might have an expectation about provision from his estate.
Mr McKenzie's evidence was that he had no reason to doubt that Mr Kittelty was of sound mind, memory and understanding at the time, and was able to understand and approve the contents of the August 2009 Will.
Seventhly, the August 2009 Will is a simple document. The meaning of its terms is clear. This is not a case where the complex terms of a will might themselves cast doubt on whether a testator sufficiently understood its terms.
Eighthly, the exclusion of the fifth and sixth beneficiaries from the terms of the August 2009 Will does not of itself give rise to a concern as to Mr Kittelty's understanding of the effect of that document. Mr Kittelty had no children. There is nothing remarkable about a testator in his position choosing to leave his estate to charity. Although Mr Kittelty had provided for the fifth and sixth defendants in the 1997 Will, they were not persons recognised by the law as having a claim upon Mr Kittelty's bounty,[43] and he was free to decide not to make provision for them in his will.
[43] Compare Family Provision Act 1972 (WA) s 7.
Ninthly, the fact that on 12 June 2009 Mr Kittelty executed a will in the same terms as the August 2009 Will also tends to support the conclusion that Mr Kittelty understood, and was satisfied with, the terms of the August 2009 Will.
Having regard to all of the evidence, I am satisfied that it is more likely than not that Mr Kittelty had testamentary capacity when he executed the August 2009 Will, and that that will is valid.

(f) Other issues

Given my conclusion that the August 2009 Will is valid, it is unnecessary to consider the Public Trustee's alternative case that the June 2009 Will is valid.
For the sake of completeness, and ignoring for the moment the fact that the sixth defendant did not attend the trial to advance the contentions pleaded in the Amended Defence and Counterclaim, I make the following observations about those contentions. Using the numbering set out in par [15] above, the substance of contentions (ii), (iii), (iv), (v), (x), (xi) and (xii) was addressed in my reasons in Public Trustee v Alzheimer's Australia WA Ltd. Those matters cannot result in the invalidity of the August 2009 Will.
The substance of contentions (i), (vi), (vii) and (xviii) has been addressed in the course of the reasons set out above. Further, in relation to contention (xiv), although there was nothing to suggest that the Public Trustee obtained a medical opinion in relation to Mr Kittelty's capacity to make a will prior to taking his instructions in 2009, it was not necessary to do so.
There was no evidence at the trial to support the contentions in (xv), (xvi) and (xvii) but even if they had been made out on the evidence, those contentions are, on their face, irrelevant to the validity of the August 2009 Will. Similarly, contentions (ix) and (xiii) are irrelevant to the validity of the August 2009 Will.
Finally, because the August 2009 Will is valid, no basis arises for exploring the validity of any earlier will, as contended in contentions (viii) and (xix).

(g) Orders

As the August 2009 Will was the last valid will executed by Mr Kittelty, there will be a grant of probate in solemn form to the Public Trustee in respect of that will.
I will hear from the parties as to the orders which should be made.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PUBLIC TRUSTEE -v- ALZHEIMER'S AUSTRALIA WA LTD [No 2] [2014] WASC 337 (S)

CORAM: PRITCHARD J

HEARD: 14 OCTOBER 2014

DELIVERED : 14 OCTOBER 2014

PUBLISHED : 28 OCTOBER 2014

FILE NO/S: CIV 2063 of 2010

BETWEEN: PUBLIC TRUSTEE
Plaintiff
AND
ALZHEIMER'S AUSTRALIA WA LTD
First Defendant
THE PRINCESS MARGARET HOSPITAL FOR CHILDREN FOUNDATION INC
Second Defendant
ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA INC
Third Defendant
AUSTRALIAN RED CROSS SOCIETY (WESTERN AUSTRALIA DIVISION)
Fourth Defendant
TRACEY DALE KITTELTY
Fifth Defendant
SHANE BURNETT KITTELTY
Sixth Defendant

Catchwords:

Costs - Question of testamentary capacity of testator - Whether costs should be paid from estate - Turns on own facts

Legislation:

Supreme Court Act 1935 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

The plaintiff's and first defendant's costs be paid out of the estate

Category: B

Representation:

Counsel:

Plaintiff:     Ms C F Holyoak-Roberts
First Defendant             :     Mr M W Fatharly
Second Defendant         :     Ms K Oaten
Third Defendant           :     Ms K Oaten
Fourth Defendant          :     Ms K Oaten
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance

Solicitors:

Plaintiff:     Public Trustee (WA)
First Defendant             :     Kott Gunning
Second Defendant         :     King & Wood Mallesons
Third Defendant           :     King & Wood Mallesons
Fourth Defendant          :     King & Wood Mallesons
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance

Cases referred to in judgment:

Clay v Karlson [2001] WASC 141
De Angelis v Laundy [2014] NSWSC 456
Mitchell v Gard (1863) 3 Sw & Tr 275; (1863) 164 ER 1280
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Public Trustee v Alzheimer’s Australia WA Ltd [No 2] [2014] WASC 337
Re Estate of the Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
PRITCHARD J:
(This judgment was delivered extemporaneously on 14 October 2014 and has been edited from the transcript.)

These proceedings concerned an action commenced by the plaintiff seeking that the Court pronounce the force and validity of the will of Robert Arthur Kittelty, deceased, dated 12 August 2009 (the 2009 Will). On 22 September 2014, I delivered reasons for decision in this matter,[44] pronounced the force and validity of the 2009 Will, and made orders that there be a grant of probate in solemn form of law of the 2009 Will to the plaintiff.
[44] Public Trustee v Alzheimer’s Australia WA Ltd [No 2] [2014] WASC 337. These reasons should be read in conjunction with those earlier reasons for decision.
The plaintiff now seeks an order that his costs be paid from the estate. The first defendant seeks an order that its costs be paid out of the estate. The second to fourth defendants do not seek any order in relation to costs. There is no appearance today, and no application, by the fifth and sixth defendants with respect to costs.
The general position is that the Court has a wide discretion under s 37 of the Supreme Court Act 1935 (WA) and O 66 of the Rules of the Supreme Court 1971 (WA) to make costs orders. Of course, that discretion has to be exercised judicially and in accordance with established principle. Probate cases are no different to other cases in the sense that the ordinary starting point on questions of costs is that the general rule is that costs follow the event.[45]
[45] Clay v Karlson [2001] WASC 141 [147] (Roberts‑Smith J).
In some probate cases, however, it is not appropriate to adopt that approach and that there are some well recognised exceptions to the general rule in the probate jurisdiction. One of those is that costs may be ordered to be paid out of the estate if the reason for the litigation is the fault of the testator.[46] In referring to 'fault', I am not referring to any question of moral culpability,[47] but to situations such as those that existed in this case, where as a result of the conduct or situation of the testator, some issue arises in relation to testamentary capacity.[48] The second exception is where the circumstances reasonably led to an investigation of the execution of the will or the testator's capacity.[49]
[46] Mitchell v Gard (1863) 3 Sw & Tr 275, 277; (1863) 164 ER 1280, 1281 (Sir James Wilde).
[47] De Angelis v Laundy [2014] NSWSC 456 [59] (Hellen J).
[48] Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 [14] (Giles JA & Brownie AJA).
[49] De Angelis v Laundy [2014] NSWSC 456 [56] ‑ [57] (Hellen J) and the cases cited therein.
In the present case such an issue arose. Mr Kittlety’s dementia or Alzheimer’s diagnosis led to a question in relation to his testamentary capacity on the day that he executed his final will. In those circumstances, it was proper for the plaintiff to commence proceedings for the grant of probate in solemn form. There is nothing unreasonable in relation to the conduct of the plaintiff which would in any way cast doubt on whether his costs should be paid from the estate.[50] The same observation in general terms appears to pertain to the position of the first defendant who quite properly, and necessarily, had to be joined to the proceedings, and has adopted a more confined position in respect of the issues, appearing only when it was, in fact, necessary to ventilate some particular position.
[50] Re Estate of Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 [32] (Campbell J).
Accordingly, I propose to make the orders that are sought by the plaintiff and the first defendant. As I have said, the second to fourth defendants do not seek an order in relation to costs. It has been suggested that I should make an order that the fifth and sixth defendants bear their own costs. No order is sought by the fifth and sixth defendants in respect of costs. They have been on notice of today’s application and hearing. Were there to be any late application made by either of them, there would be an issue as to why it was not brought today. In those circumstances, there is no need for an order to be made that the fifth and sixth defendants should not be the beneficiaries of any costs order or that no order as to costs should be made or in respect of them.
It remains, though, for me to deal with a further aspect of the application made by the first defendant, namely that the costs reserved on 13 August 2013 should be paid out of the estate as well. Having considered the submissions of counsel, and having regard to the relatively limited information before me as to what took place on that occasion and on relevant earlier occasions, I have formed the view that it is not appropriate to make an order that the costs to be paid from the estate should include the costs reserved on that date. I have reached that view for two reasons. First, on one view the costs reserved on 13 August 2013 might well have been costs that arguably should properly have been paid by the sixth defendant if, as appears to have been the case, the need for the determination of issues at the hearing on 13 August 2013 arose from the failure by the fifth and sixth defendants to pay costs orders previously made against them. Secondly, it is not entirely clear whether a costs order made by the learned Master on 27 November 2013 which also referred to reserved costs, in fact included the costs reserved on 13 August 2013. In view of that lack of clarity I am not minded to make an order which might otherwise constitute a doubling up of costs orders with respect to the same costs event.