Re Yates
[2008] WASC 211
•1 OCTOBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE YATES; EX PARTE THE PUBLIC TRUSTEE [2008] WASC 211
CORAM: REGISTRAR C BOYLE
HEARD: ON THE PAPERS
DELIVERED : 1 OCTOBER 2008
FILE NO/S: PRO 3830 of 2006
MATTER :THE ESTATE OF OLGA BETTY YATES
EX PARTE
THE PUBLIC TRUSTEE
Applicant
Catchwords:
Probate - Later informal document - Whether provable under pt X of the Wills Act 1970 (WA) - Testamentary capacity - Whether deceased intended later document to constitute her will
Legislation:
Guardianship and Administration Act 1990 (WA)
Non-contentious Probate Rules 1967 (WA), r 13
Wills Act 1970 (WA), pt X, s 8, s 34
Result:
1974 will admitted to probate notwithstanding later will
Category: B
Representation:
Counsel:
Applicant: Mr J Wilmot
Solicitors:
Applicant: Public Trustee (WA)
Case(s) referred to in judgment(s):
Baumanis v Praulin (1980) 25 SASR 423
Henwood v Public Trustee (1993) 9 WAR 22
In the Will of Lobato Sheilds v Caratozzolo (1991) 6 WAR 1
Re Estate of Frederick Raymond Perriman (Dec) [2003] WASC 191
The Application of Kencalo (In the Estate of Ruth Buharoff) (Unreported, NSWSC, Library No 110613 of 1991, 23 October 1991)
The Estate of Kevin John Hines v Hines [1999] WASC 111
REGISTRAR C BOYLE: Olga Betty Yates died at Joondalup on 5 July 2005. The Public Trustee as institute executor of a will of the deceased made 4 July 1974 applies for probate of that will.
The testamentary capacity of the deceased at the date of that will, and the validity of the will, may be presumed. The only obstacle to the grant sought is what is said to be an informal will of the deceased said to have been made in June 2005; that is, shortly before the deceased died. Copies of that have been produced under Non‑contentious Probate Rules 1967 (WA), r 13.
The affidavits filed in support of the application concentrate on the question of whether the deceased had testamentary capacity at the date of the supposed informal will. I believe there is a second issue of whether, even if the deceased had testamentary capacity at the date of the informal will, it would be capable of being admitted. I will return to that question below, but in the meantime consider the evidence as to testamentary capacity.
Testamentary capacity: the evidence
Dr Chris Pavlos was the deceased's medical practitioner from 1989. It was in that year that he took over the practice of Dr Don Paskos. Dr Pavlos had access to some earlier records.
The evidence Dr Pavlos gives of the deceased's capacity is therefore partly derived from his own observations, and partly from records of the practice. Those records would appear to include both notes made by other doctors in the practice when they saw the deceased, and notes or reports coming to the practice from external sources such as hospitals.
At [7] of his affidavit, Dr Pavlos refers to notes made by Dr Paskos in late 1997 that the deceased was depressed over her husband's death and was becoming withdrawn and 'not getting about much'. At [8], again drawing from notes made by Dr Paskos, Dr Pavlos refers to Mrs Yates' suffering from psychotic depressions with delusions of people tunnelling under her house and starting her garden reticulation. It was noted that she declined psychiatric review.
It is not clear from his affidavit when Dr Pavlos actually first saw Mrs Yates. It would appear from [10] and following that he did see her about once a month in 2004, commencing in or shortly after January. Dr Pavlos notes at [12] that he made no formal mental state examination of the deceased because that had been covered by two geriatricians at Glengarry Hospital. One of those geriatricians was Dr Nicole Lothe, of whom more later.
It would appear that from about December 2003, whenever the deceased came to the practice she was accompanied by her brother Don.
Dr Pavlos ventures the opinion at [12] and [16] that 'prior to her stroke of June 2005' the deceased would have had testamentary capacity.
The evidence of Dr Pavlos, considered by itself, would not be sufficient to satisfy me that the deceased had testamentary capacity shortly before she died.
In the first place, it is not clear from his affidavit when Dr Pavlos last saw the deceased. While he says at [10] that the deceased attended his surgery about once a month in 2004, it is not clear whether he saw her in 2005 at all.
Secondly, while Dr Pavlos saw the deceased fairly frequently at least during 2004, he saw her for specific problems ([14] and [15]) and did not have cause to make any systematic examination of her mental capacity. It would appear that the conclusion expressed in [16] of his affidavit is really based on the 'conversations with her on a general level in company with her brother Don' referred to in [15].
Again considering the evidence of Dr Pavlos in isolation, it would appear to me that his conclusion that the deceased would have had testamentary capacity in June 2005 cannot stand in the face of the deceased's long history of depression, delusional ideation and diagnosed dementia that could only get worse. It would be surprising if the deceased had testamentary capacity when her ability to manage her daily affairs was reduced to the point where she had to be accompanied on visits to her doctor by her brother. That one of the topics discussed between doctor and patient was the management of the deceased's medications is also, to me, a strong indicator of declining capacity.
Dr Siren Nicole Lothe is a consultant physician. When she saw the deceased she was practising at Glengarry Private Hospital.
The deceased was under Dr Lothe's care between 16 February and 26 March 2004, and saw her again on 5 May 2004. When the deceased was an inpatient at the hospital, Dr Lothe estimates that she would have seen her five days a week.
The evidence of Dr Lothe is that the deceased was suffering dementia when she first consulted her, which dementia Dr Lothe believed most likely to be of the Alzheimer's type. The deceased had already been admitted to Sir Charles Gardner Hospital in January 2004 where she was noted to have dementia and depression, and she had become aggressive as an inpatient. Her behaviour had needed the assistance of specialist psycho‑geriatricians. She had been treated with anti‑psychotic and anti‑depressant medication [7].
Dr Lothe further notes that when the deceased was an inpatient in the hospital, while her behaviour had been stabilised:
She had marked short term memory loss. She would pack her bags on a daily basis but was unable to organise how to leave the hospital or her room due to her advanced dementia. It also became clear from the nursing observations that a lot of assistance was required with self-care, including monitoring as to how she showered for she would mix up the hot and cold taps and was at risk of burning herself. Mrs Yates would require assistance on how to open an orange juice pack and how to get her knife and fork out. She needed quite a lot of setting up for meals. She needed prompts and assistance to shower and dress, otherwise she would not achieve these tasks and she persistently refused to allow her hair to be washed or brushed.
That is the bulk of [8] of Dr Lothe's affidavit.
Dr Lothe also notes at [11] that when she reviewed the deceased on 5 May 2004 she had to take a patient history entirely from the deceased's brother Donald Johnson, 'as Mrs Yates could not give an insightful history'.
That history included that the deceased 'had been unable to cook and was neglecting herself since towards the end of 2003' [12].
Dr Lothe concludes:
14.It is certain that Mrs Yates was suffering from dementia at the time it is claimed that the informal will came into existence. She had moderately advanced dementia already in March 2004, and dementia is a progressive condition.
15.In my opinion at the time it is claimed that the informal will came into existence, I doubt that Mrs Yates would have understood the nature of a will, I am certain she would not have been aware of the extent of her assets and I doubt she would have had the capacity to comprehend and appreciate the claims of those for whom she ought to provide.
16.I believe that Mrs Yates would not have had the capacity to make a will in 2004 and 2005.
Given that the conclusions Dr Lothe reaches in her affidavit are grounded in systematic observations of the condition and behaviour of the deceased both at the time she was an inpatient at Glengarry Hospital and then some months later, I believe they are greatly to be preferred to the less specifically grounded conclusions of Dr Paskos.
Dr Lindsay Arnold Stewart is the medical administrator at Sir Charles Gairdner Hospital. He swore an affidavit deposing to information contained in the medical reports kept at the hospital. These showed that the deceased was an outpatient at the hospital from 7 November 2002 until her admission on 21 January 2004. Dr Stewart concludes from the records ([7] and [8]) that the deceased's dementia had begun by November 2002. He says of a notation on that date that described the deceased as 'vague historian +++' that:
In retrospect one can be quite certain that that was a manifestation of early dementia.
After setting out further instances of such comments in the notes Dr Stewart concludes at [9] that by June 2005 the deceased's mental disability would have been 'profound', and that in his opinion the deceased 'could not possibly have had testamentary capacity in or after April 2004' [10].
Dr Stewart makes another point to which I shall return later when he observes, at [12] of his affidavit:
Considering the faultless wording and formatting of the informal will and the severity of Mrs Yates' memory defects documented in 2004, it is inconceivable to me that she could thereafter have had the capacity to formulate such a will.
Although the evidence of Dr Stewart is derived from hospital records it is admissible as evidence of the facts of the state of the hospital records. Those records are in turn evidence of observations made of the deceased. Those observations were made by qualified medical practitioner and, while not directly addressed to the elements of the legal test of testamentary capacity, indirectly evidence that the progressive deterioration of the deceased's mental capabilities was such that the deceased had lost testamentary capacity by June 2005.
There is no direct affidavit evidence to show that the deceased had testamentary capacity at June 2005. Attached to the supplementary affidavit of John Wilmot sworn 3 April 2008 is a copy of a letter dated 17 April 2007 that was addressed by the solicitors for the deceased's brother Mr Donald Johnson to the solicitors for the Silver Chain Nursing Association Inc. The Association is the universal beneficiary of the will dated 4 July 1974. Also attached is a letter written by the solicitors for Mr Johnson to the Public Trustee. Both letters are argumentative. I say that not in any pejorative sense, but rather to indicate that the purpose of those letters was to press an argument for the validity of the suggested informal will to which I shall shortly return.
The argument in favour of the validity of that document, which is obviously derived from instructions Mr Johnson gave to his solicitors (and once again there is no criticism intended by that observation) was that after the deceased was admitted to the Brightwater Hostel (presumably at Edgewater, that being given on the death certificate as the usual address of the deceased), her condition improved markedly. That letter, dated 21 June 2007, largely recapitulates arguments put in an earlier letter to the Public Trustee dated 9 December 2005 that is attached to an earlier affidavit of Mr Wilmot sworn 26 September 2006.
Even if there were in evidence an affidavit of Mr Johnson deposing to the facts concerning the condition of his late sister the deceased that formed the basis of his instructions to his solicitors, that would not dissuade me from the conclusion to be drawn from the combined weight of the medical evidence that I have canvassed. That conclusion, I repeat, is that the deceased could not have had testamentary capacity by June 2005.
The 2005 informal documents
I turn now to the suggested informal will, because I believe that a careful examination of the evidence (other than of the testamentary capacity of the deceased) that is available concerning the preparation of this document leads to the same conclusion that it is not capable of being admitted to probate.
For the purposes of examining this evidence, I will put the case against the present application at its highest by assuming that the facts set out in the letter that the then solicitors for Mr Donald Johnson wrote to the Public Trustee dated 9 December 2005 were deposed to on affidavit by Mr Johnson.
It would appear that in April and May 2004 Mr Johnson, on behalf of his sister and on her instructions, wrote to the Public Trustee advising that the deceased wished to change her will. By then, the deceased was subject to an administration order made under the Guardianship and Administration Act 1990 (WA). The Public Trustee indicated that it would not arrange a new will until it received written confirmation from a doctor that the deceased had testamentary capacity.
The paragraph in the letter of 7 December 2005 that follows that recital of history is, in my view, remarkable. I therefore set it out in full:
Regrettably, our client and the deceased did not then obtain any written confirmation from a Dr. Rather they simply adopted the position (mistakenly in our view) that it would not be possible for the deceased to execute a formal will through the Public Trustee and the best they could do was for the deceased to embody her wishes in a letter which she believed would take affect as her final testamentary instrument in light of her perceived inability to execute a formal will.
Some time passed. The deceased asked her brother to prepare 'a declaration of her testamentary intentions in the form of a letter to the Public Trustee'. Mr Johnson prepared this handwritten letter. A copy of that has been exhibited to Mr Wilmot's original application.
The deceased and her brother met on 3 June 2005. It is said that the deceased 'reviewed the draft letter and approved the contents.' She expressed a desire to sign it there and then. However, Mr Johnson suggested, and the deceased agreed, that he have the letter typed before she signed it. Mr Johnson then arranged for a typed document in precisely the same terms. That has also been attached to the affidavit of Mr Wilmot. The case for Mr Johnson is that before the deceased could sign the typed version she suffered a severe stroke, was hospitalised, and the typed version was never signed.
The law
There are numerous authorities on the requirements to prove a will under s 34 of the Wills Act, and in this jurisdiction those authorities are consistent and clear. For the moment, it is sufficient to refer to In the Will of Lobato Sheilds v Caratozzolo (1991) 6 WAR 1; The Estate of Kevin John Hines v Hines [1999] WASC 111; Henwood v Public Trustee (1993) 9 WAR 22, and Re Estate of Frederick Raymond Perriman (Dec) [2003] WASC 191.
These cases show that in order for s 34 to validate an otherwise invalid testamentary document, it must be established that:
1.There is a document purporting to embody the testamentary intentions of the deceased;
2.The document must not have been executed in accordance with s 8 of the Wills Act; and
3.The Court must be satisfied that the deceased intended the document to constitute his will.
The burden of proof is on the applicant: Hines.
In this case, it is clear that there is a document, and that was not executed in accordance with s 8 of the Wills Act. That is why there only remains the issue of whether the deceased intended the document under consideration to constitute his will.
Proof of a will
It is fundamental that what is admitted to probate is not a set of intentions but a testamentary instrument (or, at least, a copy or reconstruction of it as best possible). It is a document that must be proved. That was the fundamental reform effected by the Wills Act 1837 (Imp) from which the present Western Australian Wills Act is derived.
In The Application of Kencalo (In the Estate of Ruth Buharoff) (Unreported, NSWSC, Library No 110613 of 1991, 23 October 1991) (Powell J) observed:
[W]hile I accept that the provision [sic] of s 18A are remedial in nature, being intended to preserve, as valid, a testamentary act which would otherwise fail for want of compliance with the formal requirements of the Act, the passages from the NSW Law Reform Commission’s Report on 'Wills - Execution and Revocation' (LRC 47 1986) which I have set out in the judgment in Re Application of Brown (1991) 23 NSWLR 535 AT 540‑543, See also In Estate of Graham (1978) 20 SASR 198 at 202‑204; In Estate of Kelly (1983) 34 SASR 370 at 382, in my view, make it clear that it was not the intention of the Commissioners that the law should revert to the state in which it was prior to the passing of the Wills Act 1837 (Imp), thus reviving the very problems which the passing of that Act was designed to overcome - in particular, it is clear, in my view, that nuncupative wills (see, for example In Goods of Scott [1903] P 243; In Estate of Yates [1919] P 93) should not be reintroduced, nor so it seems to me, was it intended that there should be revived the former practice of admitting to Probate instructions for the making of a will in cases in which the coming into existence of the further document was prevented by the death of the intending testator.
Those comments were adopted with approval by Walsh J in Henwood v Public Trustee (25 ‑ 26).
In Baumanis v Praulin (1980) 25 SASR 423, Mitchell J considered circumstances where, in the language of the headnote:
A patient in hospital gave instructions for the preparation of his will and a typewritten will was prepared accordingly. After reading the document, the patient desired some small alterations to be made, and the document was taken away to be re-typed and brought back later that day for execution. Before the document could be re-typed and executed, the patient died.
Her Honour refused a grant, remarking (426):
There is no evidence here that the deceased intended the document which is before me to constitute his will. The evidence is quite to the contrary. He intended to execute another document in the like terms to the document which he had read but with the variations which he required. The Shorter Oxford English Dictionary gives as one meaning of the verb 'to constitute' 'to make (a thing) what it is.' That appears to me to be the sense in which the words 'to constitute' are used in s. 12(2). In order to admit the document to probate the court must be satisfied therefore that the deceased intended that document, not a document in similar form, to be his will.
In this case, it is clear that either of the handwritten or typed versions of the June 2005 document was a document for the purposes of pt X of the Wills Act, whether before or after the amendments affected by the Wills Act Amendment Act 2007 (WA). It can also be assumed (for the purposes of the hypothesis, putting aside for a moment the question of testamentary capacity) that the document expressed the testamentary intentions of the deceased.
Intention to constitute the document a will
The question remains whether the deceased intended either document to constitute her will. I think not.
The typewritten version can be disposed of more simply. There is no evidence that the deceased ever saw that document, or indeed that she knew it existed: what is put is no more than that it was prepared on what was said to be her instructions. She therefore cannot have formed any intention that the typewritten copy of the letter constituted her will. That is quite apart from any consideration of the text of the document itself.
The deceased did see the handwritten version of the letter. But I do not think that it could be found that she intended it to constitute her will. Indeed, the evidence is to the contrary. It is that she accepted her brother's advice not to sign it. That negates any intention that she intended the document to constitute her will, as distinct from an encapsulation of her testamentary intentions.
The text of the document itself also indicates, I think, that it was intended as instructions to the Public Trustee to prepare a will, and not intended to stand as a will itself. It is in form a letter and not a testamentary instrument. It begins, not by saying that the deceased revokes her will of 4 July 1974, but that, 'I wish to revoke my current will'.
The letter goes on to make assertions about the deceased's intentions in 1974, and her recollection of the existence of the 1974 will, which in fact can only reinforce the impression that by the date of this document she had lost capacity. Following that discursion (which would be irrelevant to a testamentary instrument), the document then continues in language that is very much that of instructions for the preparation of a will, not that of testamentary disposition.
The text of the handwritten version of the June 2005 document in my view itself precludes, despite what is said the deceased intended of it, the conclusion that the deceased intended it to constitute her will.
Results
The conclusion I reach can therefore be encapsulated as follows:
1.The deceased did not have testamentary capacity at June 2005.
2.Even if she had testamentary capacity at that date, she did not intend the handwritten document to constitute her last will, and it is therefore not capable of proof under pt X of the Wills Act.
The June 2005 document is therefore, in my view no impediment to making a grant of probate of 4 July 1974. The application for proof of that will is therefore granted.
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