Re Curtis

[2009] WASC 254

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE CURTIS; EX PARTE CLARK [2009] WASC 254

CORAM:   MASTER SANDERSON

HEARD:   19 AUGUST 2009

DELIVERED          :   19 AUGUST 2009

PUBLISHED           :  9 SEPTEMBER 2009

FILE NO/S:   P 4021 of 2007

MATTER                :In the matter of the estate of BERTHA CATHERINE CURTIS

EX PARTE

ALBERT ERNEST CLARK
Appellant

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :REGISTRAR C BOYLE

File No  :P 4021 of 2007

Catchwords:

Appeal from referral of registrar to grant probate of will and codicil - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed.
Probate of will and codicil granted.

Category:    B

Representation:

Counsel:

Appellant:     Mr J C Curthoys

Solicitors:

Appellant:     A E Clark

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

Banks v Goodfellow (1870) LR 5 QB 549

Kantor v Vosahlo [2004] VSCA 235

Nicholson v Knaggs [2009] VSC 64

Re Estate of John William Henry Nicholls (dec) [2003] WASC 85

Worth v Clasohm (1952) 86 CLR 439

1. MASTER SANDERSON:  This was an appeal from a decision of a registrar of this court.  At the conclusion of the hearing of the appeal I set aside the decision of the learned registrar and ordered that there be a grant of probate of the will and codicil of the deceased dated 14 March 2001 and 26 February 2004 respectively.  I indicated that I would publish reasons for my decision.  These are those reasons. 

2. The appeal was brought under r 5(1) of the Non‑contentious Probate Rules 1967 (WA). In his decision delivered 14 July 2009, Registrar C Boyle refused the applicant's application for a grant of probate of the will and codicil of Bertha Catherine Curtis (the deceased).

3. An appeal from a registrar to a judge or master in chambers under r 5(1) is an appeal de novo and the decision in the appeal is made on the basis of the evidence which was before the registrar. In effect, I was to hear the application afresh and it was open to me to allow the appeal whether or not I found that the registrar had fallen into error: see Re Estate of John William Henry Nicholls (dec) [2003] WASC 85 [2] ‑ [14] (Barker J).

4. The facts can be shortly stated.  The deceased was a widow.  She did not have any children.  She died on 13 September 2007 aged 101.  She left an estate in an amount of $508,524.

5. The deceased's will is dated 14 March 2001.  She executed a codicil on 26 February 2004.  The codicil appointed Albert Ernest Clark as the executor in place of John Francis William Steers.  The codicil also varied the will by distributing more of the estate to certain individuals and less to seven charities who were the residual beneficiaries.  In terms of value, the change to her estate represents a change of about 28%.

6. The sole issue is, did the deceased have testamentary capacity as at 26 February 2004?  The evidence of Dr Bronwyn Angela Bennett, the deceased's general practitioner, was that she did have capacity.  Dr Bennett examined the deceased for the specific purpose of determining whether she had capacity.  At the date of that examination the deceased scored 29/30 on a test designed to test cognitive function.  I will deal more fully with Dr Bennett's evidence below.  It is appropriate first, however, to deal with the law.

7. The law is accurately and conveniently summarised in the recent decision of Vickery J in Nicholson v Knaggs [2009] VSC 64. As a starting point, if a will appears to have been regularly drawn on its face and duly executed then the presumption of due execution will usually be sufficient to justify a grant of probate.

8. If the court is satisfied that a doubt has arisen as to the testamentary capacity of the testatrix at the time she gave instructions for and executed any of the testamentary instruments which are under challenge, then the propounders of the will and codicils should bear the burden of establishing that probate should be granted to them.  This statement of principle is supported not only by Nicholson [87] ‑ [89] but by Worth v Clasohm (1952) 86 CLR 439, 453 and Kantor v Vosahlo [2004] VSCA 235 [3].

9. The standard of proof is upon the balance of probabilities.  In reaching a conclusion the court must exercise caution.  It is appropriate to examine the whole of the relevant evidence.  If the process results in the court being affirmatively satisfied that the testatrix had the necessary testamentary capacity at the appropriate time to make the propounded will then a grant of probate should be made. 

10. As to testamentary capacity, Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 explained the law in the following terms:

    [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 delusion 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 (565).

11. In comprehending the nature of what the testatrix was doing and its effects, it is not necessary to establish that the testatrix was capable of understanding all the clauses of the will.  An appreciation of the legal effect of every clause in a will is not necessary.  However, it does need to be shown that the testatrix understood that she was executing a will and the practical effect of the central clauses in the instrument, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it. 

12. In summary, in order to establish that the testatrix was of sound mind, memory and understanding when she executed the will or, if the instructions for the will proceeded its execution, when instructions were given, a propounder must show that the testatrix knew what she was doing and understood the effects of her will including the effect of the principal clauses within it.  It must also be shown that she had a general knowledge of the nature of her property in its value and that she knew which persons might have a legitimate claim upon it.

13. The essential feature of the principle where it applies is to cast the ultimate burden on the propounder to establish knowledge and approval of the will by doing more than merely establishing that the testatrix executed in the presence of witnesses after it had been read to or by him.

14. Nicholson (supra) has a useful discussion on the nature of Alzheimer's disease.  The evidence given in Nicholson was that dementia is a neurodegenerative condition characterised by the development of multiple cognitive deficits usually including memory impairment.  It does not, however, impair consciousness and most dementias are characterised by progressive decline.  A diagnosis of dementia does not necessarily preclude testamentary capacity.  In some cases, a person suffering severe Alzheimer's disease may retain testamentary capacity while in other cases a person with mild dementia may not.  What this means is that testamentary capacity must be assessed at the time the will or codicil (as the case may be) is executed.  It is not to be determined by reference to a general diagnosis.  These matters are discussed in Nicholson [366] ‑ [367] and [378].

15. Turning then to the evidence of Dr Bennett, Dr Bennett has approximately 20 years of clinical experience.  She was one of the deceased's general practitioners from 5 February 2003 to 15 February 2006.  Dr Bennett saw the deceased on seven occasions between 5 February 2003 and 25 February 2004.  Dr Bennett was aware that the deceased had been admitted to Selby Lodge following the removal of a brain tumour.  Dr Bennett saw her on 5 February 2003 when she had been discharged home.  Dr Bennett reported that the deceased was fairly stable on medication.

16. Dr Bennett saw the deceased on 26 February 2004 and administered what is known as a mini‑mental state examination (MMSE).  Dr Bennett was aware that the purpose of the examination was to test the deceased's testamentary capacity.  As I have indicated, this test was designed to assess the mental capacity of the deceased in the context of her signing the codicil.  As the deceased scored 29/30, and as a score of 27 or above out of 30 is considered normal, the result of the MMSE indicated the deceased had proper cognitive function.

17. After the MMSE was administered, Dr Bennett read the codicil to the deceased who then outlined it to Dr Bennett in her own words.  Dr Bennett and Ms Veronica Mary Harvey, a medical receptionist, then witnessed the codicil. 

18. Ms Harvey was present when Dr Bennett read the codicil to the deceased.  She was also present when the deceased explained back to Dr Bennett its contents.  She said she had no reason to doubt that the deceased understood the contents of the codicil.  It was on that basis that she was prepared to witness the document. 

19. When this matter was before the learned registrar, the Public Trustee supplied copies of a number of reports without being requested to do so which were obtained when the Public Trustee was managing the affairs of the deceased.  Presumably this was done because the Public Trustee had concerns about the testamentary capacity of the deceased.  Given the nature of the enquiry that is to be undertaken, it is entirely appropriate to consider these reports. 

20. The reports disclosed that it was highly probable that the deceased did not have testamentary capacity between at least 11 September 2002, when she admitted to Selby Lodge, and 3 June 2003, when she was examined by Dr Helena Piirto.  Dr Piirto's report discloses that on 3 June 2003 the deceased scored 18/29 on a MMSE.  Dr Piirto described her impairment as mild to moderate.

21. However, there is nothing in Dr Piirto's report that is inconsistent with the deceased being lucid and having testamentary capacity on 26 February 2004.  Dr Bennett reviewed Dr Piirto's report and still concluded that, based on her examination of 26 February 2004, the deceased had testamentary capacity on that date.

22. In my view, the medical evidence provided by Dr Bennett is overwhelming.  It establishes the deceased had testamentary capacity on 26 February 2004.  I am satisfied the deceased knew and understood the contents of the codicil.  That being so, the propounder of the will and the codicil discharged the burden of proof and probate in common form should have been granted.

23. It was for these reasons that I allowed the appeal.