Re McDade
[2008] WASC 143
•16 JULY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE McDADE; EX PARTE HOLTON [2008] WASC 143
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 16 JULY 2008
FILE NO/S: P 1348 of 2008
MATTER :The Estate of GRACE McDADE (Dec)
EX PARTE
ANGELA MARGARET HOLTON
Applicant
Catchwords:
Letters of administration - Effect of citation - Whether open to make grant as on intestacy in face of apparently valid will
Legislation:
Nil
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr P D M Hughes
Solicitors:
Applicant: Jackson McDonald
Case(s) referred to in judgment(s):
Banks v Goodfellow (1870) LR 5 QB 549
Brown v McElhone (1883) 15 NSWR (B & P) 154
Bull v Fullton (1942) 66 CLR 295
Crosby v Noton (1867) 36 LJ (P & D) 55
Hoff v Atherton [2004] EWCA CIV 1554
In the Goods of Bootle (1901) 84 LT 570
In the Goods of George Dennis [1899] P 191
In the Goods of Quick [1899] P 187
Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1242; [1861 ‑ 1873] All ER Rep 1536
Nock v Austin (1918) 25 CLR 519
Vandeleur v Francich [1991] 1 Qd R 481
Western Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
REGISTRAR C BOYLE: Grace McDade died on 9 October 2006. She was survived by three daughters and two sons. One son has since died.
The present application is for letters of administration. The applicant is a daughter of the deceased. If the deceased died intestate, the applicant is one of the persons who would entitled in distribution on intestacy and therefore to apply for letters of administration.
The deceased left a will dated 28 October 2004. The applicant is one of the institute executors. The other is the brother who survived the deceased but has since died without proving the will. The applicant has cited all the persons who would be entitled to apply for letters of administration with the will annexed. None has responded to that citation by making any such application.
The applicant has lodged consents by her two sisters and by the legal personal representative of her deceased brother. The other brother, Stephen Gerrard McDade, has not consented: some light may be shed on the reasons by what follows.
By her original affidavit in support of the application, the applicant sought letters of administration 'on the basis that Will is invalid and that the Deceased died intestate' [9]. The will has been produced in compliance with r 13. It was prepared by solicitors and appears to have been regularly executed in compliance with s 8 of the Wills Act 1970 (WA) (the Act). It can be assumed to have been executed in compliance with the Act. It can also be assumed, in those circumstances, that the deceased knew and approved of the contents of the will: Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J). It can also be presumed from due execution that the deceased had testamentary capacity: Brown v McElhone (1883) 15 NSWR (B & P) 154; Bull v Fullton (1942) 66 CLR 295; Western Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144.
The applicant does not by her original affidavit specify on what grounds the will of 28 October 2004 ought to be held to be invalid: perhaps the better reading of her affidavit is that, by reason of the failure of the citees to respond, the will may be presumed to be invalid.
The question is whether the law allows the Court to go that far.
There is a line of cases in which a will (or possible will) of formal validity has been passed over, and either an earlier will proved or letters of administration granted, following citation of those with an interest in the last will.
The earliest of which there is a useful report is Morton v Thorpe (1863) 3 Sw & Tr 179; 164 ER 1242; [1861 ‑ 1873] All ER Rep 1536. In that case, a will of the deceased had been produced that named the deceased's brother and another person as executors. Those entitled on intestacy were the brother and his sister. They cited the executors to propound the will. In default of appearance, they moved for letters of administration. After some demurrer by Sir C Cresswell, he granted the application.
In Crosby v Noton (1867) 36 LJ (P & D) 55, the deceased had made a will in 1866 appointing the defendant executor and sole beneficiary. The defendant Noton obtained probate of that will. It subsequently became apparent that at the date of that will, the deceased would not have had testamentary capacity. The plaintiff, named as an executor in an earlier will, took out a citation calling upon Noton to bring in the probate granted him and show cause why it should not be revoked and the 1866 will declared void. The citation was served. Noton did not enter an appearance, but he did bring in the probate. On the application of the plaintiff, the probate was revoked and, although the later will was not formally declared invalid, probate in common form of the earlier will was granted.
In In the Goods of Quick [1899] P 187 the plaintiff claimed that he was the next of kin of the deceased, and sought a declaration against the validity of a will that had been produced, on the grounds of the insanity of the deceased at its execution. He also sought a declaration of his own legitimacy, and administration. The defendants included the brother and other relations of the deceased, and the legatees under the impugned will. The legatees were cited but failed to appear. The family defendants reached a settlement with the plaintiff, by which he conceded that he was not next of kin, and the brother would be granted administration as next of kin. The Court ordered that letters of administration be granted to the brother on proof that he was next of kin. The report carries a footnote quoting the following passage from the 11th edition of Tristram & Coote:
The Court will grant administration to the next of kin, notwithstanding that it is suggested that de facto there is a will, if the executor and the persons interested therein have been cited to propound such will and have not appeared to the citation.
In the Goods of George Dennis [1899] P 191 is a similar case. The deceased, when elderly and infirm, had executed a will leaving his entire estate to his nurse, and appointed her sole executor. Member of the deceased's family, not surprisingly in the circumstances, took a view adverse to the validity of the will. There were negotiations, as a result of which it was agreed that the next of kin would apply for administration. They cited the executor, who did not appear to the citation. The court, on the authority of Crosby v Noton, gave a grant of administration to the next of kin.
In the Goods of Bootle (1901) 84 LT 570 is the last in this line of cases to consider. Mrs Mary Bootle died in 1900. Her brother Mr John Frith later read over to the plaintiff Heaton, a niece of the deceased, a document which he said was Mary Bootle's last will, appointing him executor and residuary legatee. Ms Heaton and other nieces of the deceased were to receive small gifts. Mr Frith died without proving the will. Annie Heaton extracted a citation against the executor of Frith's estate and the other legatees under the supposed will, calling on them to prove the alleged will or show cause why administration should not be granted to her as if the deceased had died intestate. The citation was served but no appearance was entered. Administration was granted.
In all of those cases where a will was passed over in favour of an earlier will or a grant as on intestacy, there was always some positive reason to do so. In Moreton v Thorpe there was an affidavit sworn by one of the witnesses to the will that he had signed it on a date after the death of the deceased. In Crosby v Noton the executor of the later will surrendered the probate he had obtained, implicitly conceding the allegation of incapacity; and that allegation had been supported by evidence. In In the Goods of Quick all parties eventually agreed that the will was invalid, and again there was evidence to support that. In In the Goods of George Dennis the circumstances and content of the will pointed strongly to the conclusion that either the testator lacked testamentary capacity or that the gift to his nurse had been procured in circumstances where the presumption of undue influence applied: it was certainly executed in circumstances that fitted the description of 'suspicious circumstances' as outlined in Nock v Austin and other cases. In In the Goods of Bootle there was every reason to suppose that the suggested will was a fiction.
I consider the evidence concerning the deceased's will of 28 October 2004 in light of those authorities.
As indicated already, the applicant in her original affidavit put no flesh on the bones of the barest assertion that the 2004 will was invalid. By a supplementary affidavit sworn 22 June 2008 the applicant suggests that the deceased lacked testamentary capacity. By par 1 she deposes to that belief.
Of course, the mere assertion by the applicant that she believed the deceased lacked testamentary capacity would carry no weight. It is the Court that must form the belief. What matters is the ground for her belief.
The test of testamentary capacity is a legal one and not a medical one. Useful evidence of testamentary capacity can therefore come from anyone who was in a position to observe whether the deceased appeared to know what it was to make a will; whether she knew the nature and extent of her property; whether she understood who had a claim to her testamentary bounty; and whether she was affected by any disorder of mind, or delusion. That, of course, is a paraphrase of the test outlined in Banks v Goodfellow (1870) LR 5 QB 549 and other cases.
The applicant does not ground her belief that her mother lacked testamentary capacity at October 2004 on her own observations of the deceased. Instead, she specifically grounds her belief on the four documents identified at pars 1(a) to 1(d) of her supplementary affidavit. Those paragraphs respectively identify:
(a)an affidavit the deceased swore on 20 December 2004 in action CIV/2635/04 in this Court;
(b)an affidavit the deceased's son Michael David McDade swore on the same date in the same proceedings. It is Michael McDade who survived the deceased but has since died;
(c)the death certificate of the deceased; and
(d)an order of the State Administrative Tribunal made on 7 November 2005 appointing the Public Trustee plenary administrator of the estate of the deceased pursuant to the Guardianship and Administration Act 2000 (WA).
Two of those documents can be disposed of briefly.
Section 57(3) of the Birth, Deaths and Marriages Registration Act 1998 (WA) makes a death certificate evidence of any fact stated in it. The deceased's death certificate gives as a contributory cause of death 'dementia (2 years)'. The deceased, as noted, died on 9 October 2006. On the face of it, the death certificate is evidence that the deceased was suffering from dementia at the date of the will. But the weight of that evidence for present purposes is not great, for two reasons. First, it would be reading too much into a medical practitioner's certification of death and its causes (which is all that the death certificate records) to treat the period of two years as precise. Secondly, and more importantly, the question is not whether the deceased had dementia as at 28 October 2004, the question is whether she had testamentary capacity. The two are not mutually exclusive: see, for example, Hoff v Atherton [2004] EWCA CIV 1554.
The order of the State Administrative Tribunal can be disposed of even more briefly. That the tribunal made an order on 7 November 2005 says nothing of the capacity of the deceased as at 28 October 2004.
That leads to the two affidavits sworn in proceedings of this Court. Copies of those affidavits were attached to the applicant's supplementary affidavit. Those affidavits are not directly admissible as evidence of facts sworn to in them. But the affidavit of the applicant is evidence that the affidavits were sworn and filed. There are further uses to which the attachments can be put, which I consider in turn.
Before doing so, it is useful to explain the nature of the dispute in those proceedings. It would appear that at some time in early in 2003, the deceased's son Stephen McDade persuaded the deceased to transfer a piece of real property to him. The transfer was registered in April 2003. The proceedings were about the circumstances in which that transfer had been procured, and indeed whether it had been signed by the deceased at all. The capacity of the deceased at the time of that transaction was an issue. It was not her testamentary capacity that was then in issue, but rather the kind of capacity considered by a court of equity in dealing with questions such as undue influence and special disadvantage.
The affidavit of Michael McDade testifies to his mother's state of confusion in early 2003. However the affidavit also goes on to make clear the view of Mr McDade that since his mother had moved into a nursing home as she had at some unspecified time before the date of the affidavit, she was much improved. There is no suggestion in the affidavit that as of late 2004 the deceased was incapable.
The affidavit of the deceased at the same date is quite extensive, running to 26 paragraphs over seven pages. It refers to 11 annexures. The deceased deposes to her state of disadvantage and confusion in the early part of 2003 but goes on at par 17 to say:
I was put in the Osboine Contemporary Aged Care Nursing Home ('the Nursing Home') in early October 2004. Since I have been at the Nursing Home I have been getting the proper medication at the right times and I am feeling much better mentally. Before this I was often confused and open to suggestion by people and did not have very much control over my thoughts and actions. My medicine needed to be taken regularly and when I did not take it regularly I would become confused and open to suggestion by people dealing with me.
I return to the point that these copy affidavits are attached to a supplementary affidavit of the applicant, and are offered as grounding her belief that the deceased lacked testamentary capacity at October 2004. What the applicant may believe about that is not conclusive: that is the question for the court to determine. Nor is it in issue whether the applicant reasonably holds that belief by reference to what she offers in support of it. The question is whether what is offered in support, to the extent that it is admissible at all, supports a finding that the deceased lacked testamentary capacity at the date of the will.
The copy affidavits show by their covers that the solicitors who prepared the will of 28 October 2004 were acting for the deceased in her proceedings against her son Stephen. She was the plaintiff in those proceedings in her own right and not by a next friend.
It would appear that those solicitors, as officer of the Court, took the view that Mrs McDade was competent to give instructions in proceedings in this court of some complexity, and to make affidavits that dealt in detail with the factual history.
It was therefore certainly not the case that in late 2004 it was being put to the court that the deceased then lacked capacity. In fact, the assertion was very much to the contrary.
The principle of Moreton v Thorpe is notoriously the subject of some judicial disquiet as to how far it ought to be pressed. While an applicant for probate or administration does not have a positive duty to disclose all evidence, whether favourable or unfavourable to the motion being put, there can be a disturbingly short distance between conduct on the one hand that is a proper selection of material that favours one proposition and, on the other hand, the selection of material that taken out of context misleads by omission.
It seems to me that there is a difference between making a grant that is supported by the evidence before the court, even though there may be contradictory evidence that is not available, and on the other hand making a grant that is contradicted by the evidence. It does not seem to me that process of citing interested parties justifies ignoring the evidence.
Authorities that are directly in point seem hard to come by. There are some in the area of contentious practice and, although I am aware that there are reasons to distinguish between the two, I have found certain principles helpful. First, I refer to Vandeleur v Francich [1991] 1 Qd R 481. A lengthy passage of Macrossan CJ in that decision at 484 ‑ 485 was cited with approval by Heenan J in Wheatley v Edgar [2003] WASC 118. I refer, in particular, to the observations of his Honour in the latter decision at [28].
In this case, the supplementary affidavit of the applicant gives me no reason to believe that the deceased lacked testamentary capacity at 28 October 2004. While she may have lacked capacity in early 2003, and had almost certainly lost testamentary capacity well before she died, in late 2004 the deceased seems to have been in full control of her life. As I have mentioned already, in the cases cited above where a court has passed over an apparently valid in favour of an earlier will or a grant as on intestacy, it was a result of more than just citation of those with an interest in proving the later will: there was always some substantive reason, as well as the mere failure to respond to citation, that founded the ultimate order.
In this case, it seems to me that there is an air of contrivance or artifice surrounding the procedure and the evidence. If incapacity were clear, the applicant could have commenced contentious proceedings for a declaration that the deceased died intestate for a grant of administration to her. Even had she chosen not to do so, in this application she could have squarely said why the solicitors who not only prepared the will but at about the same time acted for the deceased in complex proceedings in this Court on the basis that she had the capacity to manage her affairs were mistaken.
In this case, there are presumptions, for reasons already explained, that the deceased had testamentary capacity at 28 October 2004 and that her will of that date is valid. Of the four documents the applicant relies upon to support her assertion that the deceased lacked testamentary capacity at the date of the will, three are of no assistance at all. The fourth, which is the affidavit of the deceased herself, strongly suggests that she had testamentary capacity. Add the surrounding circumstances that both that affidavit and the will itself were prepared by solicitors who would have been conscious of the requirements for capacity in various respects, and the conclusion is that the evidence the applicant relies upon to found her belief that the deceased lacked testamentary capacity at the date of the will does not tend to that conclusion. It does not rebut the presumption of validity. In fact, so far as it leads to any conclusion, that part of it that is admissible for present purposes supports the opposite conclusion.
I am not satisfied that it is open to me on the evidence to find that the deceased died intestate. The application is refused.
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