Re Edward William Sims - [2003] WASC 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE EDWARD WILLIAM SIMS; EX PARTE CARR [2003] WASC 166

CORAM: PULLIN J

HEARD: 19 & 20 AUGUST 2003

DELIVERED : 28 AUGUST 2003

FILE NO/S: PRO 1573 of 2002

MATTER :The Will of EDWARD WILLIAM SIMS late of 18 Bellevue Road, Bellevue in the State of Western Australia, Slaughterman deceased

EX PARTE
MICHELLE CLAIRE CARR
Appellant

Catchwords:

Succession - Wills, probate and administration - Appeal from decision of Registrar refusing grant of probate - Probate granted - Turns on own facts

Legislation:

Administration Act 1903

Non-Contentious Probate Rules 1967, r 5

Wills Act 1970, s 8

Result:

Time for appeal extended
Appeal allowed
Probate granted

Category: B

Representation:

Counsel:

Appellant: Ms M Van Der Kwast

Solicitors:

Appellant: Dwyer Durack

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

Banks v Goodfellow (1870) LR 5 QB 549
Cinnamon v Public Trustee of Tasmania (1934) 51 CLR 403
Re Estate of Nicholls (dec) [2003] WASC 85

Case(s) also cited:

Hawkwood Holdings Pty Ltd v Barrett-Lennard, unreported; SCt of WA (M Sanderson); Library No 980105; 9 March 1998
Reyburn & Anor [2002] WASCA 171
Shorten v Shorten [2002] NSWCA 73

PULLIN J: This is an appeal by Michelle Claire Carr, one of the executors named in a document purporting to be a last Will and testament of Edward William Sims, deceased, against the decision of a Registrar of the Court made 18 March 2003. The Registrar refused to grant probate of the Will of the deceased. The appeal is made pursuant to r 5 of the Non Contentious Probate Rules 1967 made under the Administration Act 1903.
I agree with the conclusion of Barker J in Re Estate of Nicholls (dec) [2003] WASC 85 that an appeal under r 5 of the Non Contentious Probate Rules is an appeal de novo. The time limit for an appeal is five days, but an extension may be granted. In this case, an extension should be granted because the appellant has changed solicitors and time has been taken up in locating the witnesses to the Will. No person will suffer prejudice by the delay.

Decision of the Registrar

The appellant and her husband, Anthony Peter Carr, moved by motion in the probate division of the Court that probate of the Will of the deceased be granted to them.
The Registrar who considered the motion and accompanying papers refused the motion on the basis that it was not suitable for a non-contentious grant. By letter to the solicitors for the appellant dated 18 March 2003, the associate to the Registrar advised that the Registrar's reasons were as follows:
"Operative provisions of the will have been amended in the course of its preparation or after execution. It is not possible to tell when, and it is said the witnesses will not give evidence.
The handwritten parts of the will are confused and confusing. In parts, they do not seem to respond at all to the written portions of the form. The will was executed three days before the deceased died of causes that do not appear from the death certificate.
The combination of circumstances is such that it is impossible to tell whether the deceased knew what the meaning and effect of his will was, or indeed whether he was capable of knowing that. The will is not suited to a non‑contentious grant."
The appellant appeals against that decision.
The document which the appellant seeks to prove is on a printed form entitled "Last Will and Testament". The first page of the Will has been completed to show that the document is the last Will of Edward William Sims of 18 Bellevue Road, Bellevue 6056, Western Australia. The printed form revokes all previous Wills and testamentary documents. The printed form then has a heading referring to the appointment of executor, and it commences with the words "I appoint". The following words have been written in "My daughter Michelle Claire Sims (Carr) (of) 745 Granite Road Parkerville 6081 (In the State of) Western Australia (and) Anthony Peter Carr (of) 745 Granite Road Parkerville 6081 (In the State of) Western Australia". The printed form indicates that these persons are to be the executors of the Will and trustees of the estate. An alternative executor is also nominated in the event of the death of one of the named executors before the death of the deceased.
There is a space for the signature of the testator and two witnesses at the foot of the first page. A signature appears in the space provided for the testator and two witnesses have signed.
On the second page, the printed form refers to special bequests and words have been written in:
"My home at 18 Bellevue Road Bellevue 6056 is not to be managed by the executor of this will until my youngest child Candace Belinda Sims reaches 18 years of age, (10‑5‑2008). My home is to be managed by a Real Estate Agent, overseen by the executor."
In this clause, the words "The share of the estate for Candace Belinda Sims is to be put into a trust account until she reaches 25 years of age. (10.5.2015)" but these words have been struck out by overscoring.
There is then a heading referring to residual estate. The printed form reads "I hereby leave the whole of my estate, both personal and real, subject to other provisions in this Will and after payment of my debts, funeral and administrative expenses associated with this will to". The following words have then been written in:
"My (5) children (1) Michelle Claire Sims (Carr), (2) David Edward Sims, (3) Adam Keith Sims, (4) Gary Alan Sims, (5) Candace Belinda Sims."
The addresses of those five persons are then written in. These persons are the five children of the deceased. The address of Candace was shown as 18 Bellevue Road, Bellevue, the same address as that of the testator. The printed form provides for the appointment of a guardian, and there is a deletion of some written letters before the names of the appellant and her husband are written in. I should also add that above the names of the five children under the clause relating to residual estate, the words are written: "My house is not to be sold until Candace is 18". Page 2 provides for the signature of the testator. A signature appears, along with the signatures of two witnesses. Page 3 contains "additional requests", and the written words "all vehicles" have been lined through. The Will was dated 8 February 2002, the signature of the testator appears, and the names of the witnesses are shown as Alexandria Kate Morton and Natasha Simone Wright. Both were said to have the occupation of registered nurse.
The deceased died on 11 February 2002, three days after the execution of the Will. He had been admitted to hospital 11 days before his death. Before his death, the deceased had lived at 18 Bellevue Road, Bellevue.
The death certificate records the death of the deceased on 11 February 2002, but in the panel relating to "cause of death" the words appear "incomplete registration: cause of death subject to coronial investigation". The original application for probate was supported by a short affidavit providing no details concerning the circumstances in which the Will was executed.
On 12 April 2002, one of the five children of the deceased, David Edward Sims, lodged a caveat. B W Duckham & Co acted for the caveator. A letter from B W Duckham & Co said that the matter of the validity of the Will was the subject of some dispute, and a Registrar of the Court wrote noting the comment about the validity of the Will being subject to dispute, noting also that the caveator claimed an interest under the Will, pointing out that there was some degree of inconsistency between those statements, and asking for the basis of the dispute as to validity. B W Duckham & Co responded by stating that their client had expressed doubts as to the validity of the Will and that those were being investigated. On 23 May 2003, the caveat was withdrawn.
The then solicitors for the appellant wrote to the Registrar in response to requisitions, stating that the two nurse witnesses had refused, declined or neglected to provide any assistance or information to assist in preparing the necessary affidavit of due execution, and that they had not replied to the solicitors' correspondence.
It was with this background that the Registrar's decision was made. Based on the information before him, the decision was correct.

New Evidence

The appellant then changed solicitors. The present solicitors instituted the appeal and have supplied much more information in the form of three supporting affidavits.
One of the affidavits is by one of the witnesses to the Will, Natasha Simone Wright. She deposes that the deceased executed the Will on 8 February 2002 by signing at the foot or end thereof in the presence of Ms Wright and the other witness who was present at the same time, and that they attested and subscribed the Will in the presence of the deceased. She deposes that she was a nurse at the Royal Perth Hospital, and that from her observations of the testator prior to the signing of the Will and subsequent thereto, she believed he was capable of understanding the nature of the document he was signing and the persons who he should benefit thereunder. She says in the affidavit, however, that she could not comment on the various alterations and interlineations which appeared on the copy of the Will exhibited.
The appellant has also sworn an affidavit, in which she deposes to the fact that she had contacted the other witness who said that she would sign an affidavit and that she had previously been reluctant to do so because "other persons associated with the estate" had been bothering her. A draft affidavit was sent to this witness, but she has not returned it.
The appellant's affidavit gives a detailed account about the writing out of the Will. The appellant says that on 7 February 2002 she sat alone with the deceased and wrote out the Will on his instructions. All of the alterations, interlineations and scoring through were made on 7 February 2002 or before the Will was signed on 8 February 2002 and, in my opinion, have been satisfactorily explained in the appellant's affidavit as reflecting either errors by the appellant when writing out the Will or changes of mind by the testator as he made his decision about what was to be in the Will. There was a written statement to the effect that the share of the estate of Candace was to be put into a trust account until she reached 25 years of age. This was again discussed on 8 February 2002, and the testator said that he had decided that Candace should get her share at 18 years of age instead of being put in trust until she was 25 years of age. As a result, the appellant made this change by putting a line through the earlier provision. The deceased saw this being done and signified approval.
The appellant deposes to the fact that the two nurses who were on duty on 8 February 2002 were located, and they agreed to act as witnesses. The deceased signed the Will in the presence of the witnesses, and the witnesses each signed in the presence of each other and the deceased.
The deceased gave the Will to the appellant and asked her to take it home to look after it. The appellant deposes that the Will has not been changed since the deceased signed in her presence.
The affidavit of the appellant deposes to the fact that the deceased was alert and understood what was happening when the Will was written out and signed. The appellant's affidavit also deposes to the fact that her family was not happy with the treatment that the deceased had in hospital and the failure to diagnose liver cancer until late. The appellant also claims that there was misdiagnosis of a brain tumour as benign when it was malignant. Her affidavit says that the family had asked for a coronial inquiry, which is why the "cause of death" is not complete on the death certificate.
An affidavit of a physician at the Royal Perth Hospital has also been sworn. Dr Krishna Somers deposes to the fact that the deceased was in her care from 30 January until 8 February 2002. Dr Somers expresses the opinion that the deceased would have understood the nature of a Will and his obligations to his family and the extent of his estate, despite the progressive metastatic cancer he was suffering. Dr Somers also deposes to the fact that he died as the result of the perforation of his bowel.
To have testamentary capacity, the testator must understand the nature of his acts and the effect, understand the extent of the property of which he is disposing, be able to comprehend and appreciate the content of the Will, and must not have a disordered mind. See Banks v Goodfellow (1870) LR 5 QB 549. In this case, the Will is rational on the face of it. The deceased died a single man with five children, and he disposes of his estate equally between those five children. I am satisfied on all of the evidence that the testator did have testamentary capacity.
The courts will presume that unattested alterations, amendments, interlineations and obliterations appearing in a Will were effected after the execution of the Will. This presumption may be rebutted by evidence to the contrary: Cinnamon v Public Trustee of Tasmania (1934) 51 CLR 403.
In my opinion, the evidence in the affidavits rebuts the presumption.
For the sake of the record, I should record the fact that the seven alterations, amendments or overscorings are as follows:
(a)the overstriking of the sentence "The share of the estate for Candace Belinda Sims is to be put into a trust account until she reaches 25 years of age (10.5.2015)";
(b)the overstriking of the printed sentence "If this person predeceases me or dies within 30 days of my death then I leave my estate to";
(c)the amendment of the letter "n" to the letter "c" in the word "Candace";
(d)the overstriking of the printed phrase "If my spouse/partner predeceases me or dies within 30 days I hereby appoint";
(e)the overstriking of the word "Suza";
(f)the overstriking of the word "All vehicles";
(g)the overstriking of the letter "B".
None of the amendments or overscorings have been signed or witnessed in compliance with the requirements of the Wills Act, but the affidavit of the appellant satisfies me that she was responsible for all of the amendments before the Will was executed and, as I have said, the deceased read and approved of the amendments.
I am satisfied that the Will complies with s 8 of the Wills Act 1970.
In view of the evidence, I am satisfied that time should be extended to allow the appeal to be instituted, the appeal should be upheld, and probate should be granted to the executors.