Rabski v Rabski - [2009] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RABSKI -v- RABSKI [2009] WASC 197

CORAM: EM HEENAN J

HEARD: 29 JUNE 2009

DELIVERED : 29 JUNE 2009

PUBLISHED : 20 JULY 2009

FILE NO/S: CIV 2583 of 2008

MATTER :The will of Frederick Joyce late of 7 Everlasting Crescent, Kambalda West, Western Australia (Dec)

BETWEEN: GALE MAREE RABSKI
Plaintiff
AND
DAVID JOHN PETER RABSKI
First Defendant
COLLEEN FAYE TUCKER
Second Defendant
STEVEN TUCKER
Third Defendant
BROCK TUCKER
Fourth Defendant
CALLAN TUCKER
Fifth Defendant
LEANNE MICHELLE JOYCE
Sixth Defendant
GEOFF FREDERICK JOYCE
Seventh Defendant
RYAN FREDERICK JOYCE
Eighth Defendant
GEOFF KRISTOPHER JOYCE
Ninth Defendant
DULCIE LYNETTE HANKS
Tenth Defendant
LEE COX
Eleventh Defendant

Catchwords:

Probate and administration - Proof in solemn form - Caveat against grant of grounds of alleged incapacity at date of proposed will

Legislation:

Nil

Result:

Will admitted to proof in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Ms K J Levy
First Defendant              :     No appearance
Second Defendant         :     Mr R A Zilkens
Third Defendant            :     Mr R A Zilkens
Fourth Defendant           :     Mr R A Zilkens
Fifth Defendant              :     Mr R A Zilkens
Sixth Defendant             :     Mr R A Zilkens
Seventh Defendant         :     No appearance
Eighth Defendant           :     No apperance
Ninth Defendant             :     No appearance
Tenth Defendant            :     No appearance
Eleventh Defendant        :     No appearance

Solicitors:

Plaintiff:     Ellery Legal
First Defendant              :     No appearance
Second Defendant         :     Zilkens & Co
Third Defendant            :     Zilkens & Co
Fourth Defendant           :     Zilkens & Co
Fifth Defendant              :     Zilkens & Co
Sixth Defendant             :     Zilkens & Co
Seventh Defendant         :     No appearance
Eighth Defendant           :     No appearance
Ninth Defendant             :     No appearance
Tenth Defendant            :     No appearance
Eleventh Defendant        :     No appearance

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

Bailey v Bailey (1924) 34 CLR 558
Donato v Mangravite, Estate of Donato [2005] NSWC 488
In the estate of Kazacos; Ryan Kazacos (2001) 183 ALR 506
Le Cras v Perpetual Trustee Co Ltd [1967] 2 NSWR 706
Phillpot v Olney [2004] NSWSC 592
Redroff v Miegoch [1996] NSWSC 68
West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118

EM HEENAN J: Leo Frederick Joyce died at Kalgoorlie Regional Hospital on 8 August 2008. At the date of death he was aged 76 years, having been born on 25 June 1932. He was a retired prospector and until his fatal illness he had lived at 7 Everlasting Crescent, Kambalda West. As his health deteriorated he stayed with various members of his family.
Mr Joyce died as the result of metastatic malignant melanoma, the approximate onset of which was 16 months before his death. He had been married on 27 September 1954 but was later divorced. He was survived by his four adult children:
•Gale Maree Rabski, born 25 April 1955;
•Colleen Faye Tucker, born 12 February 1957;
•Geoff Frederick Joyce, born 22 November 1958; and
•Leanne Michelle Joyce, born 14 March 1964.
This is a probate action for proof in solemn form of the alleged last will of the deceased made on 15 July 2008, a little over three weeks before his death. The plaintiff, the applicant for the grant of probate, is his eldest child, Gale Maree Rabski, the sole executor named in the alleged will. In November 2008 she prepared an application for a grant of probate of the will of 15 July 2008 in common form. However, that application could not proceed in view of a caveat which had been lodged against any grant. These proceedings for probate in solemn form were thereafter commenced by writ issued on 13 November 2008.
By the caveat and by the defence of the second and sixth defendants in the action they allege that the deceased was not of sound mind, memory and understanding at the time of making the alleged will of 15 July 2008 on the grounds of the effects upon him of his illness and other illnesses. It is alleged that as a result he had become confused, disoriented and lacked coherence.
By an affidavit of the plaintiff sworn 13 November 2008 Mrs Rabski deposes to the death of her father and identifies the alleged last will of 15 July 2008, which is said to be unrevoked. Mrs Rabski swore that there was no codicil to that will; that the deceased was over the age of 18 years at the date of execution of the will and had not married since that date, nor had ended a marriage on or after 9 February 2008 by divorce or annulment as defined by s 14A of the Wills Act 1970 (WA). She also deposed that the deceased appointed her to be executor of the alleged will, which was executed in the presence of Arthur Laurence Schneider of 246 Burt Street, Boulder in the State of Western Australia, and Lisa Michelle Ellery of 16 Galbraith Street, Kalgoorlie, the subscribing witnesses thereto. She also deposed that the deceased left property within the State of Western Australia and annexed a statement giving particulars of that property and its value at the time of death and of all debts owing by the deceased at the date of death. That statement revealed that at the date of death the deceased owned movable and immovable property within the State of Western Australia to a total value of $386,462.30, had no movable property outside the State and left no debts. Mrs Rabski swore that if she obtained a grant of probate she would administer the estate of the deceased according to the law, that she was over the age of 18 years and was a lawful daughter of the deceased. She also swore that to the best of her knowledge, information and belief no application for probate or administration of her father's estate had previously been made.
As required, affidavits of scripts were sworn and filed in this action and tendered at the trial. There were four such affidavits. Two are from the plaintiff, Mrs G M Rabski, and were sworn respectively 13 November 2008 and 23 June 2009. The first disclosed that as far as the plaintiff was aware the only testamentary dispositions or instruments made by the deceased were:
(a)the alleged will of the deceased dated 15 July 2008 (which she was propounding for proof); and
(b)an apparent will of the defendant dated 7 June 2008.
Copies of both testamentary documents were annexed to that first affidavit.
In her second affidavit of scripts of 23 June 2009 Mrs Rabski disclosed the existence of an apparent third will, a will made by the deceased on 14 April 1975, of which she had previously been unaware until she had received a copy of the 1975 will provided by the solicitor acting for the second, third, fourth, fifth and sixth defendants on 22 June 2009.
The second defendant, Mrs Colleen Faye Tucker, filed an affidavit of scripts sworn 23 February 2009 which deposed that to the best of her knowledge, information and belief she was only aware of two testamentary dispositions or instruments of the deceased, namely:
(a)a will dated 15 July 2008; and
(b)a will dated 7 June 2008
and annexed copies.
The fourth affidavit of scripts was sworn by Ms Leanne Michelle Joyce, the sixth defendant, on 23 February 2009 and she too deposed that to her knowledge, information and belief there were only two apparent testamentary dispositions or instruments of the deceased, namely the will of 15 July 2008 and the will of 7 June 2008, and again annexed copies.
Despite the allegations in the caveat and in the defence of the second and sixth defendants about the lack of testamentary capacity of the deceased at the time the will dated 15 July 2008 was made, neither of those defendants, nor any other party, has sought to counterclaim or to propound for proof either of the two earlier wills, namely the will dated 7 June 2008 or the will dated 14 April 1975. The original of the will of 14 April 1975, apparently made before the deceased was divorced, has not been brought into court or tendered in these proceedings, although a copy of it is annexed to the second affidavit of scripts of the plaintiff dated 23 June 2009, as earlier described. It seems to be the tacit assumption of all parties appearing that the will of 7 June 2008 revoked the 1975 will and any other previous wills.
Under the 7 June 2008 will the plaintiff was also appointed as executor subject to surviving the testator with a named substitute executor if she did not so survive him. It follows that if the will of 15 July 2008 which the plaintiff is propounding were not valid then it would be the plaintiff who would be entitled to propound the will of 7 June 2008 if she chose to do to. This, presumably, explains the lack of any counterclaim.
By an order made by Registrar S Boyle on 17 June 2009 and with the consent of the parties it was ordered that the matter should then be entered for trial and that the plaintiff should file and serve any witness statements intended to be relied upon at the trial and that these statements should stand as the evidence‑in‑chief of the witnesses, subject to any objections to any part of them made by the defendants within a specified time. That was done and no objections were made to the receipt of any part of those statements at this trial.
I was informed by both counsel that before the trial the parties represented had reached an agreement as a result of mediation about the fate of these proceedings subject to the execution of a deed of family arrangement which had already been entered into between those parties on agreed terms but which was conditional upon a grant of probate being made of the will of 15 July 2008. Accordingly, the second and sixth defendants did not seek to oppose a grant of probate of that will, nor did they seek to cross‑examine any of the witnesses who gave evidence in support of the plaintiff's claim nor did they adduce any evidence in opposition to the grant being sought.
The deed of family arrangement mentioned by counsel was not put in evidence nor, except in a general way, was I informed of its terms. What I was informed by counsel, and which I accept, is that the effect of that deed is only upon the interests of the parties to the proceedings who are represented and who have executed the deed and that the interests of the parties to this action who have not appeared and who are not represented have not been altered or modified by that deed in any way. It is evident, therefore, that an agreement on some compromise acceptable to all parties directly affected by the compromise has been reached within the family and that, accordingly, there has been agreement that, subject to proof to the satisfaction of the court, there should be a grant of probate of the will of 15 July 2008. Nevertheless, as the caveat stands, because the defence of the second and sixth defendants remains on the record and because, in any event, the court requires acceptable proof of the validity of any testamentary document which is to be admitted to probate, it is necessary for the plaintiff to establish the validity of the will propounded: see generally Wheatley v Edgar [2003] WASC 118 [17] ‑ [30].
Notwithstanding that a grant in solemn form cannot be made simply by consent of the parties, the fact that the parties have agreed upon orders for the resolution of the issues in the case is of relevance: Phillpot v Olney [2004] NSWSC 592. In discharging the obligation of proving the validity of the proposed will the plaintiff must establish, on the probabilities, that the will propounded is the last will of the deceased and that it was made by him as a free and capable testator: Bailey v Bailey (1924) 34 CLR 558. His testamentary capacity can be proved by establishing that he knew and approved the contents of his will as a matter of free and capable choice: Le Cras v Perpetual Trustee Co Ltd [1967] 2 NSWR 706. The ultimate decision in regard to testamentary capacity is one of fact which must be determined on all the evidence: Donato v Mangravite, Estate of Donato [2005] NSWC 488 [29]. The presumption of testamentary capacity which arises in the case of a properly executed will (West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144) is not displaced merely by establishing that the testator suffered from a serious illness: In the estate of Kazacos; Ryan Kazacos (2001) 183 ALR 506 516 and Redroff v Miegoch [1996] NSWSC 68. In short, the question is whether or not the will was made by the deceased when possessed of sound mind, memory and understanding at the time of execution: Worth v Clasohm (1952) 86 CLR 439, 452 ‑ 453.
It is necessary to describe, briefly, the terms and the effects of each of the wills dated 15 July 2008 and 7 June 2008. I shall start with the will which is being propounded.
This is the will dated 15 July 2008. As the evidence disclosed, this is a formal testament prepared by the deceased's solicitor, Ms L M Ellery, as a result of instructions given to her on the morning of 15 July 2008 when she visited the deceased in Kalgoorlie Hospital at his request, conveyed to her by the plaintiff. Ms Ellery conferred with the deceased alone, in his hospital room. In the absence of any members of the family, she obtained his instructions and returned to her office to prepare the testament. She returned to the hospital later that day and by arrangement met the deceased's friend, Mr Arthur Laurence Schneider, the other witness to the will. She then met the deceased again in the hospital with Mr Schneider being the only other person present. She asked the deceased to confirm the instructions which he had given earlier that morning, which he did, and she then explained and read the terms of the draft will to him, which he approved. Having expressed his acceptance of the terms of the will as drafted, the deceased then proceeded to execute the will, signing each page and the attestation clause on the last page, in the presence of both Ms Ellery and Mr Schneider, who thereupon in the presence of the testator and of each other subscribed their names as witnesses to the attestation and to each of the pages of the will.
The will of 15 July 2008 makes a number of detailed provisions and bequests. I shall mention only the principal provisions and bequests. The deceased expressed a wish to be cremated and specified his desire for the disposition of his ashes. He appointed the plaintiff as his sole executor and trustee but made provision that if she was unable or unwilling so to act a substitute executor be appointed, being the same substitute executor as named in the 7 June 2008 will. The disposition of his estate was to be:
(1)his household chattels and personal effects to the plaintiff subject to the wish that she give one or two items to each of the other members of the family in her absolute discretion;
(2)that his Mazda Bravo one-tonne utility and his trailer be given to his son‑in‑law, David John Peter Rabski, the first defendant;
(3)that personal goods and chattels not situated within his house, including but not limited to the contents of his shed and his tools, also be given to the first defendant subject to the wish that the first defendant should, at his absolute discretion, give one or two items from such effects to each of the other members of his family if so requested;
(4)that there be a series of pecuniary legacies, namely:
(a)a legacy of $15,000 to his daughter, Colleen Faye Tucker, the second defendant;
(b)a legacy of $5,000 to his son‑in‑law, Steven Tucker, the third defendant;
(c)a legacy of $5,000 to his grandson, Brock Tucker, the fourth defendant;
(d)a legacy of $5,000 to his grandson, Callan Tucker, the fifth defendant;
(e)a legacy of $10,000 to his daughter, Leanne Michelle Joyce, the sixth defendant;
(f)a legacy of $10,000 to his son, Geoff Frederick Joyce, the seventh defendant;
(g)a legacy of $5,000 to his grandson, Ryan Frederick Joyce, the eighth defendant;
(h)a legacy of $10,000 to hs grandson Geoff Kristopher Joyce, the ninth defendant;
(i)a legacy of $2,500 to his sister, Dulcie Lynette Hanks, the tenth defendant; and
(j)a legacy of $5,000 to his niece, Lee Cox, the eleventh defendant;
(5)all other money held by the deceased in any bank or other financial institution in his name should be divided equally between such of his four children (the plaintiff, the second defendant, the sixth defendant and the seventh defendant) as should survive him as tenants in common in equal shares;
(6)his real property at 7 Everlasting Crescent, Kambalda West be sold and the net proceeds of sale be distributed as to:
(a)50% to the plaintiff, Gale Rabski;
(b)12.5% to the second defendant, Colleen Tucker;
(c)25% to the seventh defendant, Geoff Joyce; and
(d)12.5% to the sixth defendant, Leanne Cox;
(7)the residuary estate should be held on trust for the plaintiff absolutely if she survived the deceased by 30 days.
The will then included extensive express powers and discretions which may be exercised by the executor but these need not be mentioned here.
It is apparent that all the beneficiaries, including the specific legatees, under the will of 15 July 2008 have been joined as parties to this action.

The will of 7 June 2008

This will does not appear to have been prepared or drawn by a solicitor. It is completed in manuscript on a printed will form obtainable from a commercial stationer but nevertheless appears to be complete and properly executed by the deceased in the presence of two witnesses, the friend and substitute executor, Mr Emin, and Mr Rickert, a hospital orderly. It appoints the plaintiff as the sole executor and trustee on condition that she survives the testator but otherwise a substitute executor, the friend, Mr Emin. It records a wish to be cremated and for the ashes to be disposed of in the same way as in the later will. By the dispositions in that will the testator:
(a)gives his Mazda Bravo one-tonne utility to the first defendant;
(b)gives all the contents of his shed and tools to the first defendant; and
(c)gives his trailer to the first defendant.
There is then a series of pecuniary legacies:
•$10,000 to Colleen Faye Tucker, the second defendant;
•$5,000 to Steven Tucker, the third defendant;
•$10,000 to Brock Tucker, the fourth defendant;
•$15,000 to Callan Tucker, the fifth defendant;
•$40,000 to Leanne Joyce, the sixth defendant;
•$10,000 to Geoff Joyce, the seventh defendant;
•$10,000 to Ryan Joyce, the eighth defendant;
•$10,000 to Geoff Joyce Junior, the ninth defendant;
•$5,000 to Dulcie Lynette Hanks, the tenth defendant; and
•$5,000 to Lee Cox, the eleventh defendant.
The residuary estate is left to the plaintiff and to the first defendant without expressing the shares in which they should hold the residue but which, in the circumstances, amounts to a bequest to be shared equally between them.
As can be seen, the principal differences between the will of 7 June 2008 and the will being propounded of 15 July 2008 are to be found in the amounts of the pecuniary legacies, the absence of any provision for the sale of the real property at 7 Everlasting Street, Kambalda West, and the provision for the residuary estate (which might include the property at Everlasting Crescent, Kambalda West or some portion of its proceeds) to be divided between the plaintiff and the first defendant rather than go to the plaintiff entirely.
No attempt has been made to measure or calculate the financial effects, of the distributions proposed by the 7 June 2008 will when compared with the 15 July 2008 will and it is quite unnecessary for me to embark on any such task. It is enough to say that the fundamental structure of both wills is very similar but that the will drawn by the solicitors and dated 15 July 2008 provides for more detailed and measured distributions of the proceeds of the house and land and that this probably accounts, to some degree at least, for the differences in the amounts of the pecuniary legacies. Further analysis is pointless but the significance of the comparison is to realise that there has been no dramatic or radical change nor the exclusion of any beneficiary or the inclusion of a new beneficiary by the second will. The changes, such as they are, are entirely consistent with more detailed and careful thought being given by the testator to his wishes for the disposal of his estate. There is nothing whatever to suggest caprice, confusion, lack of understanding or incoherence in the testament of 15 July 2008.

By consent the materials contained in a bundle of documents dated 29 June 2009 were accepted into evidence as the evidence for the plaintiff. They consist of:
(a)the plaintiff's solicitors' application for access to the deceased's medical records at the Kalgoorlie Regional Hospital dated 30 March 2009;
(b)exhibit 2, the notice from the State Department of Health to the plaintiff's solicitors giving access to those medical records dated 11 May 2009;
(c)exhibit 3, copies of the various medical records;
(d)exhibit 4, the statement of the plaintiff, Gale Maree Rabski;
(e)exhibit 5, the statement of the solicitor, Lisa Michelle Ellery;
(f)exhibit 6, the statement of the subscribing witness, Arthur Lawrence Schneider.
In addition, the solicitor, Lisa Michelle Ellery, was called and gave oral evidence. She confirmed the contents of her statement, exhibit 5, and then elaborated upon how she had been called to visit the deceased at Kalgoorlie Hospital, had been introduced to him and then taken his instructions from him alone in private, prepared the will, returned, then met the witness, explained the contents of the will to the deceased, obtained his approval and was present when he executed the documents and when she and Mr Schneider witnessed the testament. I have already set out more details of this process earlier in these reasons.
I am satisfied on all this evidence that the will of 15 July 2008 is in all respects the valid and subsisting last will of the testator, that it was properly executed and witnessed, and that at the time it was made the testator was of full age, sound and comprehending mind and appreciated the nature and extent of the property of which he had a right to dispose and the identities of those persons for whom, for any reason, he could be expected to provide or for whom he wished to provide. That will revokes all earlier wills and codicils and itself is unrevoked.
Accordingly, I consider that the plaintiff is entitled to an order and declaration that the testament dated 15 July 2008 is the last valid will of the deceased and that a grant of probate in solemn form of that testament should be made to her, the sole executor named therein, she having sworn to administer the estate according to law. Accordingly, I pronounce that there should be such a grant. It should take effect from the date of the short judgment I gave on 29 June 2009. The details should be settled by the probate registrar and in the event of any controversy should be referred to me.
The costs of all parties should be paid out of the estate.