Richardson v Devine [No 2] - [2018] WASC 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RICHARDSON -v- DEVINE [No 2] [2018] WASC 59

CORAM: ARCHER J

HEARD: 15 JANUARY 2018 AND ON THE PAPERS

DELIVERED : 22 FEBRUARY 2018

FILE NO/S: PRO 4453 of 2016

MATTER :IN THE MATTER of the estate of the late Barry Richardson Hick (Dec)
AND
IN THE MATTER of a decision of the Registrar to grant Letters of Administration to Sandra Dorothy Devine

BETWEEN: KARL RICHARDSON
Appellant
AND
SANDRA DOROTHY DEVINE
Respondent

Catchwords:

Non-contentious Probate Rules - Caveat - Non-compliance with r 33(5) - Application under r 33(6) - Expiry of caveat - Appeal against grant of letters of administration

Legislation:

Administration Act 1903 (WA), s 64
Non-contentious Probate Rules 1967 (WA), r 3(1), r 5, r 6(1), r 33

Result:

Appeal allowed
Application under r 33(6) granted
Grant of letters of administration revoked

Category: B

Representation:

Counsel:

Appellant: Mr D H Solomon
Respondent: Mr R J Nash

Solicitors:

Appellant: Solomon Brothers
Respondent: McFarlane Lawyers

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

Chapman v Garrigan [2017] WASC 336
City of Kwinana v Lamont [2014] WASCA 112
Davis v Davis [2014] WASC 395
Gardiner v Hughes [2017] VSCA 167
In the Will of Young (1968) 70 SR (NSW) 386
La Russa v Carr [2014] WASC 497
Lacey v Attorney‑General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Priority Networking Pty Ltd v Peterson [2018] WASC 36
Re Estate of Hick; Ex Parte Devine [2017] WASC 317
Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85
Re the Will of Poland (Unreported, WASC, Library No 6795, 22 July 1987)
Stuart v Kirkland‑Veenstra [2009] HCA 15; (2009) 237 CLR 215
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412
Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152
Wheatley v Edgar [2003] WASC 118
ARCHER J:

Introduction

The appellant, Mr Richardson, appeals against a grant of letters of administration (the grant) with regards to the estate of his late father, Barry Richardson Hick. Registrar C Boyle of this Court made the grant to the respondent, Ms Devine, in the non‑contentious jurisdiction on 7 November 2017.[1]
[1] Re Estate of Hick; Ex Parte Devine [2017] WASC 317.
For the reasons which follow, I allow the appeal.

The death of Mr Hick

Mr Hick took his own life on 6 July 2015. The registrar summarised the circumstances of his passing in his reasons.[2]
[2] Re Estate of Hick; Ex Parte Devine [1] ‑ [4].
Mr Hick left behind a document which, the registrar found, he intended to constitute his last will (the alleged informal will).
In the alleged informal will, Mr Hick wrote that he left his gold watch to his son, Mr Richardson, and that he wished to leave the rest of his estate to Ms Devine.
Mr Richardson was Mr Hick's only child, from a dissolved marriage. Ms Devine, the registrar found, had been in a de facto relationship with Mr Hick for nearly 30 years. If Mr Hick had died intestate, Mr Richardson and Ms Devine would be the ones entitled to distribution.
The alleged informal will did not appoint an executor.

The history of the application for a grant

Ms Devine made an application for a grant of letters of administration with the alleged informal will attached (Grant Application). This was by ex parte motion, under r 6(1) of the Non‑contentious Probate Rules 1967 (WA) (Rules). The application was filed on 18 August 2016 and was supported by an affidavit sworn by Ms Devine.
On 5 September 2016, the court sent a requisition notice (Notice) to Ms Devine. Paragraph 3 of the Notice required her to give notice of the Grant Application to Mr Richardson. The Notice said 'The application will be dealt with without further reference to [Mr Richardson] unless within 14 days of service of the notice on him he either lodges a caveat or institutes contentious proceedings for a grant to him'.[3] Ms Devine did not send notice of the Grant Application to Mr Richardson until 18 July 2017.[4]
[3] Affidavit of Toby James Nicholls sworn 10 November 2017 (Nicholls' affidavit), annexure TJN‑3.
[4] Nicholls' affidavit [4], [8] and annexures TJN‑13, TJN‑14, TJN‑15.
On 28 April 2017, prior to receiving that notice, Mr Richardson lodged a caveat. The caveat claimed an interest in Mr Hick's estate to the extent that there was an intestacy or partial intestacy.[5] The caveat was accepted as filed as at 1 May 2017.[6] As will be seen, the registrar did not notify Ms Devine of the caveat until later.[7]
[5] Nicholls' affidavit, annexure TJN‑4.
[6] Nicholls' affidavit, annexure TJN‑5.
[7] Nicholls' affidavit, annexure TJN‑11.
On 18 July 2017, Ms Devine filed three further affidavits in response to the Notice.[8] The same day, her solicitors sent a letter to Mr Richardson's solicitors, giving notice of the Grant Application as required by the Notice.
[8] Nicholls' affidavit [14], annexures TJN‑13, TJN‑14, TJN‑15.
Mr Richardson's solicitors replied to this letter the same day.[9] The letter advised Ms Devine's solicitors of the existence of the caveat, and provided a copy of it.
[9] Nicholls' affidavit [9] and annexure TJN‑7.
Mr Richardson's solicitors also sent, the same day, a letter to the Probate Registry.[10] In that letter, they referred to having received the Notice that day. Mr Richardson's solicitors then noted that the purpose of the Notice was to give Mr Richardson the opportunity to lodge a caveat or to commence contentious proceedings within 14 days. The letter concluded:
Because our client has already lodged a caveat, we are perplexed as to why we have now received a notice from McFarlane Lawyers given that a period of nine months has passed since the Requisition was issued by the Court and our client has since lodged a caveat. Accordingly, we have written to McFarlane Lawyers in regard to this matter (copy enclosed).
[10] Nicholls' affidavit, annexure TJN‑8.
On 21 July 2017, the registrar wrote to Mr Richardson's solicitors to advise that, by oversight, the court had not notified Ms Devine of the caveat. The registrar then noted that the caveat prevented any grant being made on the non‑contentious application.[11] The registrar sent a copy of his letter, with a copy of the caveat, to Ms Devine's solicitors to remedy the oversight.[12]
[11] Nicholls' affidavit, annexure TJN‑11.
[12] This was conceded by counsel for Ms Devine in the hearing of the appeal, see ts 47.
On 31 July 2017, Ms Devine sent the further affidavits to Mr Richardson.[13]
[13] Nicholls' affidavit, annexure TJN‑12.
On 19 October 2017, Mr Richardson's solicitors again wrote to Ms Devine's solicitors. The letter foreshadowed that an application would be made under r 33(6) of the Rules if the parties were unable to settle the matter by 25 October 2017.[14] Mr Richardson's solicitors enclosed a draft of the letter they proposed to send to the court, by which the application would be made.
[14] Nicholls' affidavit [15], annexures TJN‑16 and TJN‑17.
On 25 October 2017, Ms Devine's solicitors replied.[15] They wrote that they did not dispute Mr Richardson's right to take the foreshadowed step and that, if he did send the draft letter to the court, it would leave Ms Devine with 'no choice but to commence solemn form proceedings'. Ms Devine's solicitors stated that, if Mr Richardson was willing to allow Ms Devine some time to consider the draft letter, 'it would enable all parties to make an informed decision as to how they might proceed'.
[15] Nicholls' affidavit, annexure TJN‑18.
The next day, 26 October 2017, Mr Richardson's solicitors wrote again to Ms Devine's solicitors to advise that they had delivered the draft letter, in final form, to the court. They explained that they had done that to protect their client's interest due to the imminent expiry of the caveat.[16]
[16] Nicholls' affidavit, annexure TJN‑20.
Earlier that day, Mr Richardson's solicitors had hand‑delivered the letter to the Probate Registry (Letter).[17] The Letter set out submissions as to the burden and standard of proof that applied to the Grant Application. It also made submissions as to the adequacy of the evidence provided by Ms Devine. The Letter concluded:
If (as in this matter) no steps are taken by the application for administration within one month after the notice of entry of the caveat the caveator may, pursuant to rule 33(6) of the Non‑contentious Probate Rules 1967, apply to Court for an order directing the applicant to proceed with the application, and a Judge or a Registrar may make an order upon such terms and conditions as he thinks fit.
Further, on application by the next of kin, the Court may always order that a Will (or other testamentary document) be proved in solemn form: Wheatley v Edgar [2003] WASC 118 at [19] per Heenan J.
In this matter, a period of nearly six months has expired since the caveat was lodged and the Applicant has not commenced contentious proceedings to prove the Document. Accordingly, the Caveator applies for an order directing that the Applicant proceed with the Application by proving the Document in solemn form.
[17] Nicholls' affidavit, annexure TJN‑19.
On its face, the Letter purported to be an application pursuant to r 33(6) of the Rules. It was open to Mr Richardson to make such an application by letter.[18] Ms Devine does not seek to argue otherwise.[19]
[18] Rule 3(1) of the Rules and O 4A r 5A and r 5B of the Rules of the Supreme Court 1971 (WA) (RSC).
[19] ts 46 ‑ 47.
On 1 November 2017, the caveat expired.[20]
[20] Rule 33(3) of the Rules, and s 62(1) of the Interpretation Act 1984 (WA).
On 7 November 2017, the registrar ordered that there be a grant of letters of administration. The order was made on the papers. The registrar published his reasons. In his reasons, the registrar noted that the Letter had been received before the caveat expired.[21] The registrar said, however, that an application in the non‑contentious jurisdiction is ex parte until and unless directed otherwise. The registrar had not directed that the matter not be dealt with ex parte. The registrar concluded, therefore, that nobody other than Ms Devine had a right to be heard by way of submissions or otherwise.[22] The registrar treated the Letter as merely a 'convenient aid to memory directing attention to those matters that need to be found in order to make a grant'.[23]
[21] Re Estate of Hick; Ex Parte Devine [5].
[22] Re Estate of Hick; Ex Parte Devine [6] ‑ [7].
[23] Re Estate of Hick; Ex Parte Devine [8].

Relevant legislative provisions

Rule 33 of the Rules provides:
(1)A person having any interest in an estate in which application is being made for a grant or the sealing of a grant, and intending to oppose the application, shall either personally or by his solicitor enter a caveat in the Registry.
(2)…
(3)Subject to subrule (4), a caveat shall remain in force for the space of 6 months only from the day it is entered and then expire and be of no effect, unless otherwise ordered.
(4)Notwithstanding that a period of 6 months has elapsed after entry of a caveat, the Registrar may require the applicant for a grant to give notice to the caveator before proceeding with his application.
(5)Where the applicant for a grant or for the sealing of a grant does not obtain an order under section 64 of the Act, he shall, within one month, or such extended time as a Judge or the Registrar may allow after notice of the entry of the caveat, commence contentious proceedings by issuing a writ against the caveator and proceeding in the ordinary manner.
(6)A caveator may, if no step is taken by the executor or applicant for administration within a period of one month after notice of the entry of the caveat, apply to a Judge or the Registrar for an order directing the executor or applicant to proceed with his application; and the Judge or Registrar may make an order upon such terms as he thinks fit.
Section 64 of the Administration Act 1903 (WA) (Administration Act) provides:
64Court may remove caveat
(1)In every case in which a caveat is lodged the Court may, upon application by the person applying for probate or administration, or for the sealing of any probate or letters of administration, as the case may be remove the same.
(2)Every such application shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat.
(3)Such application may be heard and order made upon affidavit or oral evidence, or as the Court may direct.

Is the appeal competent?

Mr Richardson filed a notice of appeal against the grant (Notice of Appeal). He submitted that it was an appeal under r 5 of the Rules.[24]
[24] Appellant's Outline of Submissions dated 24 November 2017 [1].
Rule 5(1) provides:
A person aggrieved by an order, decision or requirement of the Registrar may appeal therefrom to a Judge in Chambers.
Ms Devine initially argued, in her written submissions, that the appeal was not competent. She submitted that Mr Richardson had no standing to appeal because, at the time of the grant, he was not a party to the application before the registrar, as the caveat had expired. However, in written submissions filed after the hearing, with leave, Ms Devine conceded that Mr Richardson did have standing. This concession was, with respect, properly made.
At the time the registrar received the Letter, the caveat had not expired.
The Letter was an application under r 33(6) of the Rules.
Ms Devine received notice of the entry of the caveat in July 2017. She was notified by Mr Richardson on 18 July 2017 and by the registrar three days later.
After receiving notice of the caveat, Ms Devine did not seek an order extending the time within which she was required to issue a writ under r 33(5) of the Rules. She did not seek an order removing the caveat under s 64 of the Administration Act. Despite the requirements of r 33(5), she did not commence contentious proceedings by issuing a writ within one month (or at any time) after receiving notice of the caveat.
After a month had elapsed from Ms Devine receiving notice of the caveat, Mr Richardson had the right, under r 33(6), to apply to the registrar for an order directing Ms Devine to proceed with her application.
Mr Richardson did this by delivering the Letter to the registrar. At this time, the caveat was still in force.
Accordingly, Mr Richardson was entitled to have his r 33(6) application considered. It was not considered.
The circumstances in this case are significantly different to the circumstances in La Russa v Carr.[25] In particular, the appellant in La Russa was not a caveator, and he had not made an application under r 33(6).
[25] La Russa v Carr [2014] WASC 497.
Accordingly, the appeal is competent.

The appeal grounds

The grounds of appeal are:
1.The Registrar erred in law in determining that an application made by motion ex parte pursuant to rule 6(1) of the Non‑contentious Probate Rules 1967 ("NCPR") remains an ex parte application until and unless directed otherwise, and that no one else other than the applicant has a right to be heard in regard to the application, notwithstanding that the application had become contentious by the lodgement of a caveat and the making of an application under rule 33(6) of the NCPR and submissions in opposition to the application for the Order made by [Mr Richardson].
2.The Registrar erred in failing to determine an application made by the caveator pursuant to rule 33(6) of the NCPR by letter dated 26 October 2017 ("the Letter") before making the Order.
3.The Registrar erred in law by denying procedural fairness to [Mr Richardson], by determining the application for the Order ex parte without regard to the application and submissions made in the Letter, in circumstances where the interests of justice did not require the Order to be made ex parte.
The orders sought are:[26]
(1)the registrar's order be set aside and the grant pursuant to the order be revoked and delivered to the court for cancellation;
(2)Ms Devine be directed to proceed with her application by applying to prove the informal will in solemn form; and
(3)Mr Richardson be awarded costs.
[26] The Notice of Appeal was amended during the hearing of the appeal, without objection - ts 12.

Nature of an appeal under r 5

An appeal under r 5 of the Rules is an appeal de novo.[27]
[27] Re Estate of John William Henry Nicholls (Dec) [2003] WASC 85 [9] ‑ [14]; Davis v Davis [2014] WASC 395 [5] ‑ [6]. See also, in the context of appeals from registrars generally, Priority Networking Pty Ltd v Peterson [2018] WASC 36 [18] ‑ [28].
Accordingly, I am required to determine Mr Richardson's r 33(6) application afresh, and may overturn the decision of the registrar regardless of error.[28]
[28] Lacey v Attorney‑General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [57].

An irregularity?

As noted earlier, it was open to Mr Richardson to make the r 33(6) application by letter. However, if I am wrong about that, and if it is necessary to regularise any irregularity before the application can be acted upon,[29] I would regularise it, for the following reasons.
[29] See O 2 of the RSC and the discussion in The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [50] ‑ [52].
The justice of the case is clear. First, no prejudice was suffered by Ms Devine. She was aware that Mr Richardson claimed to have made an application under r 33(6). Second, if there was an irregularity, it was merely that Mr Richardson sent a letter instead of using a more formal process. Third, the Letter was not an absurd, frivolous or vexatious application. As discussed later, the Letter comprehensively set out Mr Richardson's substantive concerns.

Construction of r 33(6)

The parties' arguments

Rule 33(6) provides that, on an application by a caveator under this sub‑rule, the judge or registrar may make an order upon such terms as he thinks fit. Both parties agreed that, if the matters required to be established by r 33(6) were established, the court has a discretion whether or not to require the applicant for a grant to proceed, if he or she wishes to proceed, by contentious proceedings.[30]
[30] And see s 56(1) of the Interpretation Act 1984.
However, the parties disagreed on what the caveator was required to demonstrate before that discretion was enlivened.
Mr Richardson submitted that, to enliven the discretion, the court only needs to be satisfied that a caveat has been lodged and that no step has been taken by the applicant for the grant within the month following notice of the entry of the caveat.
Ms Devine submitted that, to enliven the discretion, the caveator must show the caveat is not vexatious, the opposition to the alleged informal will is based on genuine doubts and there are circumstances which the court might regard as warranting some investigation.[31] She appeared to contend that the caveator had to show these matters by affidavit evidence.[32]

Ms Devine's arguments

[31] Respondent's Further Submissions dated 22 January 2018 (Respondent's Further Submissions) [19].

[32] ts 43 ‑ 44; Respondent's Further Submissions [9] ‑ [19].

Ms Devine supported her proposition by relying on:
(1)the test that is applied to applications under s 64 of the Administration Act; and
(2)case management principles.
Ms Devine submitted that, if Mr Richardson's construction was adopted, it would 'potentially expose estates to the unnecessary cost and burden of contentious proceedings where they are not otherwise warranted'.
I do not accept that the test to be applied for applications under s 64 of the Administration Act should be the same as the test under r 33(6) of the Rules. Section 64 provides a specific procedure which enables a person seeking a grant to apply for the removal of a caveat. Rule 33(6) applies when the person applying for a grant has not sought to utilise the procedure under s 64 of the Administration Act. If the tests were the same, a person applying for a grant could ignore r 33(5) with impunity.

Nor do I accept that Mr Richardson's construction would 'potentially expose estates to the unnecessary cost and burden of contentious proceedings where they are not otherwise warranted'. If there is some reason to doubt the bona fides of a caveat, the procedure under s 64 of the Administration Act can be used.
For completeness, I note that, during the hearing, I raised with the parties the New South Wales Court of Appeal decision in In the Will of Young.[33] This case dealt with two provisions (under an Act no longer in existence) by which an applicant for probate could proceed when a caveat had been lodged. I raised the case as it discussed the court's power to revoke a grant if it decided to allow an appeal brought by a caveator. To the extent that the case described the appropriate test to be applied where a caveator appeared in opposition to a grant in similar terms to the test applied to applications under s 64 of the Administration Act, it does not assist Ms Devine. The words in r 33(6) and its context are very different to the provisions and context under consideration in In the Will of Young.

The statutory text

[33] In the Will of Young (1968) 70 SR (NSW) 386.

In City of Kwinana v Lamont,[34] the Court of Appeal said:
[T]he … starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text. The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision. (citations omitted)
[34] City of Kwinana v Lamont [2014] WASCA 112 [47].
The statutory text of r 33 is plain. If a caveat is lodged, r 33(5) requires the applicant for the grant to either bring an application under s 64 of the Administration Act to revoke the caveat or commence contentious proceedings. Rule 33(6) allows the caveator to force the issue if the applicant does not comply with r 33(5). There is nothing in the words of r 33(6), or in the context of r 33 as a whole, to warrant requiring the caveator to do anything other than bring the r 33(6) application. If the applicant for the grant considers the caveat to be vexatious, the procedure under s 64 of the Administration Act provides the remedy.
As was noted by Master Seaman in Re the Will of Poland,[35] r 33(5) plainly contemplates that, if the plaintiff cannot obtain an order removing the caveat within a short period, then contentious proceedings by writ must be commenced.
[35] Re the Will of Poland (Unreported, WASC, Library No 6795, 22 July 1987). See also Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [49] and La Russa v Carr [20], [29] ‑ [31].
Master Sanderson recently summarised the effect of r 33(4) ‑ (6) in these terms:[36]
Thirdly, sub‑rule (3) seems to anticipate that once a caveat expires the application for a grant can proceed as if the caveat had never been lodged. That of course is subject to the discretion given to the registrar by sub‑rule (4). But what is anticipated by sub‑rule (4) is simply giving notice to the person who lodged the caveat before proceeding any further with the grant. In practice the registrars consider the application for the grant in the light of the caveat and may determine, based upon what is in the caveat, that an application should be made for proof in solemn form. On the other hand, if the caveat contains little or nothing as to the basis on which it is lodged, the registrar may simply proceed with the grant.
Fourthly, sub‑rule (5) provides an alternative course of action to s 64 of the Administration Act. Under s 64 a person applying for probate when given notice of a caveat may apply to have the caveat removed. But if that step is not taken the party applying for probate must seek proof of the will in solemn form.
Fifthly, sub‑rule (6) gives a caveator an option of forcing the hand of the party seeking probate. The sub‑rule facilitates an action driven by the caveator rather than relying upon the party seeking the grant to take some action.
[emphasis added]
[36] Chapman v Garrigan [2017] WASC 336 [7] ‑ [9].
I respectfully agree with these remarks.
On its face, r 33(6) simply allows a caveator to force an applicant for probate to comply with r 33(5). On its face, if a caveat has been lodged and no step has been taken by the applicant for the grant within one month after notice of the entry of the caveat, the caveator is not required to prove anything else. There is no warrant for reading into the sub‑rule any additional requirements. Construing r 33(6) according to its ordinary meaning does not lead to an absurd result. On the contrary, this construction is consistent with, and promotes, the scheme of r 33 as a whole.

What evidence, if any, is required?

Mr Richardson submits that it is unnecessary for a caveator to adduce evidence that a caveat was lodged and no step had been taken within a month of notice of the caveat by the applicant for the grant. He submits that both of these matters would be apparent from the probate file. It is unnecessary to determine whether a caveator can rely on the court file in this way. That is because, in this case, it was not in dispute that a caveat had been lodged and no step was taken by Ms Devine within one month after notice of the entry of the caveat. It was also not in dispute that the caveat was still valid at the time the r 33(6) application was made.

Should the r 33(6) application be granted?

The critical question is whether I should exercise my discretion to make an order under r 33(6) requiring Ms Devine to, if she wishes to pursue the grant, proceed with her application by applying to prove the alleged informal will in solemn form.
Ms Devine submitted that, in exercising this discretion, the court should bear in mind modern case management principles. She further submitted that the court should take into account that the estate is relatively small, and that she has already gone to extensive lengths to satisfy the requisitions. In oral submissions, counsel for Ms Devine submitted that the evidence demonstrated that Mr Hick did intend the alleged informal will to be his will and did have testamentary capacity. I accept that, on the material available to me, Ms Devine appears to have a strong case in relation to the first issue and a reasonable case in relation to the second. However, in my view, this is an insufficient basis to decline to make an order, for the following reasons.
First, Ms Devine had notice of the caveat in July 2017. She did not comply with r 33(5). Within the month after receiving notice of the caveat, Ms Devine did not seek an order removing the caveat, did not issue a writ, and did not seek an extension of time. Indeed, she did not do any of those things during the three months between receiving notice of the caveat and the registrar's decision.
Second, the Letter that comprised the r 33(6) application cannot be characterised as vexatious or groundless. Mr Richardson is the son of Mr Hick. If Mr Hick died intestate, or partially intestate, Mr Richardson would be entitled to share in the estate. The Letter did not make mere bald assertions that there were issues in contention. The Letter set out in considerable detail various issues said to arise from the available evidence in relation to Mr Hick's intention and his testamentary capacity, and the results of Mr Richardson's preliminary investigations and enquiries. In particular, Mr Richardson noted the deficiencies in the evidence adduced by Ms Devine as to Mr Hick's testamentary capacity.
Third, the evidence adduced by Ms Devine did not inevitably lead to a conclusion that it was likely that Mr Hick had testamentary capacity, for the following reasons.
Ms Devine did not seek to argue that there was a presumption of testamentary capacity in non‑contentious proceedings.[37]
[37] ts 40.
It is common ground that Mr Hick committed suicide. While this does not create a presumption of testamentary incapacity, suicide may be reflective of mental illness.[38] I accept Mr Richardson's submission that suicide, while not conclusive by any means, may still be a factor warranting investigation in relation to testamentary capacity before a grant is made. Ms Devine did not seek to contend it could never be relevant.[39]
[38] Stuart v Kirkland‑Veenstra [2009] HCA 15; (2009) 237 CLR 215 [45], [46].
[39] ts 41.
In addition, the medical evidence adduced by Ms Devine was of little weight. In oral submissions, counsel for Ms Devine noted that Mr Hick was seen by a general practitioner, Dr Myers, the day before he made the alleged informal will. He took the court to pars 16 and 17 of Dr Myers' affidavit,[40] which said (formatting omitted):
The Brookroyd Surgery full patient records for Mr Hick do not indicate that Mr Hick suffered any lack of insight or judgment or any mental disorder that would have affected his ability to understand the nature and effect of executing a Will, appreciate the extent of the property of which he was disposing and comprehend and appreciate the moral claims to which he ought give effect.
It is also my opinion during the period from 26 June 2015 to 4 July 2015, being the date of his Will, Mr Hick was not suffering from a disorder of his mind and/or a mental delusion that was sufficient to poison his affections, pervert his sense of right or prevent the exercise of his natural faculties and influence his will in disposing of his property.
[40] Affidavit of Dr Nigel Andrew Myers sworn 26 April 2017.
Dr Myers then said, in pars 18 and 19:
I do not have any reason to question whether Mr Hick had the requisite mental capacity to make a Will on 4 July 2015. Therefore it is my opinion that Mr Hick did have the requisite mental capacity to make the Will dated 4 July 2015.
Counsel for Mr Richardson pointed out that Mr Hick had attended the Brookroyd Surgery only twice - on 26 June 2015, when he was seen by a Dr Ghosh, and 3 July 2015, when he was seen by Dr Myers. The 'Brookroyd Surgery full patient records' comprised only the consultation records for those two attendances.
When Dr Myers saw Mr Hick on his second attendance, Dr Myers treated him for an ear infection. The consultation note for this attendance does not indicate that there was any discussion of any issues beyond that.
From the notes of the first consultation, it appears that the first consultation, with Dr Ghosh, was about mental health issues. Mr Hick was treated for high blood pressure, low mood and insomnia. Dr Ghosh noted that Mr Hick appeared to be suffering from a 'stress and adjustment reaction'. Mr Hick referred to not having seen his son for eight years. The consultation with Dr Ghosh was on 26 June 2015, eight days before Mr Hick wrote the alleged informal will.
In oral submissions, counsel for Ms Devine pointed out that it is not common to be able to adduce evidence that the deceased saw a doctor the day before an alleged informal will is made. That is no doubt true. However, the consultation on 3 July 2015 was an inadequate basis for Dr Myers to express an opinion as to testamentary capacity. In addition, that consultation and the record of Dr Ghosh's consultation, even when taken together, were an inadequate basis to conclude that Mr Hick did not have mental health issues of the relevant kind. Further, Dr Myers appeared to reason that, because Mr Hick gave him no cause at the 3 July consultation to doubt Mr Hick's testamentary capacity, and because the record of the first consultation did not indicate to him that Mr Hick lacked testamentary capacity, he could conclude that Mr Hick had testamentary capacity. This is not, with respect, particularly persuasive.
Dr Ghosh, who treated Mr Hick for mental health issues, would have had a much better basis upon which to express an opinion. Ms Devine did not adduce any evidence as to why Dr Ghosh did not provide an affidavit.
I accept that the alleged informal will itself, and the earlier documents Mr Hick had written purporting to be wills, indicate that Mr Hick was not acting irrationally or erratically. I accept this is relevant to an assessment of testamentary capacity.
However, considering all of the circumstances, the evidence adduced by Ms Devine did not inevitably lead to a conclusion that it was likely that Mr Hick had testamentary capacity.
Mr Richardson's r 33(6) application was not vexatious or groundless. There are circumstances that warrant further investigation.
For these reasons, I consider it is appropriate to exercise my discretion to make an order under r 33(6).

Application by next of kin

In my view, this conclusion is further supported by the fact that, on application by the next of kin, the court may always order that a will (or other testamentary document) be proved in solemn form.[41]
[41] Wheatley v Edgar [2003] WASC 118 [19] (Heenan J).
Ms Devine accepted this principle. She also accepted that Mr Richardson was a next of kin of Mr Hick and had an entitlement to share in the estate in the event that Mr Hick had died intestate.[42]
[42] Respondent's Further Submissions [2] ‑ [5].
However, Ms Devine argued that this principle did not assist Mr Richardson as he had only challenged the alleged informal will that was the subject of the grant. Mr Richardson did not challenge two documents said to be earlier informal wills. Ms Devine argued that he therefore did not have an interest in the estate.[43] Ms Devine relied on Gardiner v Hughes[44] in support of this proposition. In the passages cited by her, the court in Gardiner discussed two situations: where the validity of more than one will was in issue and where there is a prior undisputed will. In this case, the only document sought to be established as an informal will is the alleged informal will. Ms Devine has not sought to suggest that any other document is a valid will. Further, in this case there is no prior undisputed will.
[43] Respondent's Further Submissions dated 22 January 2018 [6] ‑ [7].
[44] Gardiner v Hughes [2017] VSCA 167 [80], [91].

Revocation of the grant

Having decided that I should grant Mr Richardson's r 33(6) application, I have the power to make orders that will give effect to that decision. This includes revoking the grant.[45]
[45] In the Will of Young. See also, in relation to powers to revoke at first instance, La Russa [34]; The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 [23].
Ms Devine did not argue that I do not have the power to revoke the grant. However, she argued that I should not exercise that power in the circumstances. In particular, she submitted that the estate is relatively small and that the principle asset is Mr Hick's half share in the property in which she lives.
I am not convinced that these considerations are relevant to a revocation of the grant. The revocation simply follows from my decision to allow the appeal.
However, if I am wrong about that, I would still revoke the grant. Ms Devine had the option of making an application under s 64 of the Administration Act. She did not comply with r 33(5) of the Rules. Further, she was put on notice of this appeal within three days of the grant being made, when the Notice of Appeal was lodged. Finally, there is nothing to suggest that Mr Richardson's opposition to the grant was vexatious. In my view, the interests of justice require the grant to be revoked.

Conclusion

Accordingly, I allow the appeal. I would make an order under r 33(6) and would revoke the grant made by the registrar.
I will hear from the parties as to the appropriate orders to give effect to these reasons.