Smurthwaite v Stratford
[2007] WASC 68
•27 FEBRUARY 2007
SMURTHWAITE & ANOR -v- STRATFORD [2007] WASC 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 68 | |
| Case No: | CIV:1793/2005 | 27 FEBRUARY 2007 | |
| Coram: | JENKINS J | 27/02/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiffs pronouncing Will in solemn form Defendant's counterclaim dismissed | ||
| B | |||
| PDF Version |
| Parties: | MONICA ERICA SMURTHWAITE JOHN CHARLES STEWART BOGLE PATRICIA STRATFORD |
Catchwords: | Succession Wills, probate and administration Proof of Will in solemn form |
Legislation: | Supreme Court Rules, O 73 r 2 |
Case References: | In Re Levy (2) [1957] VR 662 In the Will of Steward [1964] VR 179 Timbury v Coffee (1941) 66 CLR 277 Wheatley v Edgar [2003] WASC 118 Worth v Clasohm (1952) 86 CLR 439 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First plaintiff
JOHN CHARLES STEWART BOGLE
Second plaintiff
AND
PATRICIA STRATFORD
Defendant
Catchwords:
Succession - Wills, probate and administration - Proof of Will in solemn form
Legislation:
Supreme Court Rules, O 73 r 2
Result:
Judgment for the plaintiffs pronouncing Will in solemn form
Defendant's counterclaim dismissed
(Page 2)
Category: B
Representation:
Counsel:
First plaintiff : Mr P K Walton
Second plaintiff : Mr P K Walton
Defendant : Ms M E Breisch
Solicitors:
First plaintiff : Jackson McDonald
Second plaintiff : Jackson McDonald
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
In Re Levy (2) [1957] VR 662
In the Will of Steward [1964] VR 179
Timbury v Coffee (1941) 66 CLR 277
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439
(Page 3)
1 JENKINS J: The plaintiffs apply for orders whereby the Court pronounces for the force and validity of the Will of Mary Cargill, which was executed on 7 September 2004 ("the Will") and grants probate in solemn form of the Will. I will refer to Mary Cargill as "the deceased".
2 The defendant, who is a niece of the deceased, has filed a defence and counterclaim in the action. She alleges that at the time the deceased executed the Will the deceased was not of sound mind, memory and understanding. She alleges that, principally, this was due to the deceased being nearly 90 years of age and being affected by the strong drugs she was required to take for the cancer she was suffering at the time she executed the Will. The defendant's counterclaim requests the Court to pronounce in favour of an earlier Will of Ms Cargill, executed on 18 March 1999.
3 The defendant appears by counsel today. Her counsel has advised me that the defendant now does not oppose the application by the plaintiff and, in fact, consents to the orders being sought by the plaintiff. The reason for this change in position is that the parties have reached an agreement to resolve all issues relating to the estate on terms, including, that:
1. the parties or their legal representatives consent to the Will being pronounced in solemn form;
2. the costs of each party be paid from the estate; and
3. the net estate be distributed 30 per cent to Mary Wood, David Lees and Stewart Bogle and 70 per cent to the remaining six beneficiaries named in the Will of 7 September 2004.
4 I pause to note that Mary Wood, David Lees and Stuart Bogle are also beneficiaries named in the Will. The agreement states that the terms of the agreement are binding but will be more comprehensively embodied in a formal deed. I am advised today that that is not likely to occur. There is evidence before me that four of the beneficiaries, either in person or through their legal representatives, executed the original handwritten copy of the agreement. The remaining five residual beneficiaries under the Will have signed and confirmed in writing that they accept the terms of the agreement.
5 Despite the absence of any person who opposes the orders sought by the plaintiff, it is necessary for me to be satisfied of the validity of the Will before I make the orders sought by the plaintiff.
(Page 4)
6 The legal principles relevant to an application of this kind have been considered in a number of cases. Before I detail the propositions of law relied upon by the plaintiff, I note that it is unnecessary for me to deal with propositions that relate to whether or not a Will was validly executed. There is no dispute in this case that the deceased executed the Will, which is in writing, in the presence of two witnesses. The real issue, if there is one, is the mental capacity of the deceased at the time she executed the Will.
7 A Will may be proved in common form or in solemn form. Proceedings for a grant of probate in solemn form are commenced by writ pursuant to SCR O 73 r 2. Where the validity of a Will is not contested then the Court will commonly pronounce the Will in common form. Wills are pronounced in solemn form in a probate action where the main and generally the sole question for the determination of the court is whether a Will is or is not, either in whole or in part, valid as a testamentary instrument.
8 In this case there has been an issue raised by the pleadings as to whether the Will is valid as a testamentary instrument. As I have said, this is not because of issues relating to the execution of the Will but related to issues of the mental capacity of the executrix. Despite the fact that that challenge to the validity of the Will is no longer pressed, in my view it is appropriate for the Will, if it is to be pronounced, to be pronounced in solemn form.
9 In saying this I take into account those legal principles which establish that except for limited exceptions, a grant of probate in solemn form is irrevocable: Wheatley v Edgar [2003] WASC 118.
10 In respect to the way that I should approach this application, in In Re Levy (2) [1957] VR 662, at 665, Sholl J stated:
"Nor is it the duty of the court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the Will of which probate is sought."
11 There is a presumption that the testator knew the contents and effects of the Will. In In the Will ofSteward[1964] VR 179 at 185, it was said:
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- " … in the absence of evidence to the contrary such an inference may be drawn from the mere fact that a person of sound mind has duly executed a document declaring it to be his will."
12 There is also a reference to the presumption of capacity in Timbury v Coffee (1941) 66 CLR 277, at 283 where it was said:
"If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed in the absence of any evidence to the contrary, that it was made by a person of competent understanding."
13 Further, when opposition to a Will has been withdrawn, the executor may proceed to prove the Will by leading only evidence of due execution and such evidence as he may think proper with regard to capacity if he desires to rely on any such evidence to reinforce the ordinary presumption as to capacity: In Re Levy (supra), at 666.
14 In Worth v Clasohm (1952) 86 CLR 439 at 453, the High Court said:
"A residual doubt is not enough to defeat the plaintiff's claim to probate unless it is thought by the Court to be substantial enough to preclude a belief that the document propounded is the will of the testator who possessed sound mind, memory and understanding at the time of its execution."
15 The plaintiffs also rely upon other legal principles that are outlined by Heenan J in Wheatley v Edgar (supra). I have also taken these into account. With these principles in mind, I now turn to consider the evidence.
16 The evidence before me consists of the affidavit of John Charles Stuart Bogle sworn 22 November 2006, the affidavit of Brett Clement sworn 22 November 2006, the affidavit of Monica Erica Smurthwaite sworn 23 November 2006 and the affidavit of testamentary scripts sworn by Monica Erica Smurthwaite and John Charles Stuart Bogle on the 26th day of July 2005.
17 The evidence establishes that the deceased was born on 19 October 1914 and that she died on 11 November 2004. The deceased was married, but her husband predeceased her. The deceased, apparently, did not have children. Leaving aside her final months, there is no evidence that the deceased suffered any problem that would have affected her mental capacity to make a valid Will.
(Page 6)
18 During her lifetime the deceased made a number of Wills, these being a Will dated 9 July 1981, the first codicil to that Will dated 14 October 1981, a Will dated 18 March 1999, a Will dated 27 November 2003 and, finally, the Will dated 7 September 2004.
19 The circumstances in which the deceased made her 1999 Will are not known to me. In that Will when, as I have said, she had capacity to make a Will, she left her residuary estate to her trustees on trust for her husband if he survived her by 30 days and, if her husband did not survive her, for it to be divided equally among a number of people, these being June Allen, apparently a niece of the deceased, another niece Patricia Stratford, nephews William Priestman and Gerald Priestman, a great-niece Jacqueline Anne Smith and a great-nephew John Alan Gunther. I am advised that the latter two beneficiaries are two of the children of June Allen.
20 The evidence before me establishes that the deceased's second-last Will dated 27 November 2003 came to be executed in the following circumstances, they being that the deceased contacted Brett Clement, a solicitor, and left a message stating that she wished to change her nominated executor. This was following a meeting between Mr Clement and the deceased at her home on 6 November 2003 when she gave instructions to Mr Clement to prepare a Will.
21 Mr Clement drafted the Will and forwarded it to the deceased on 11 November 2003 but received no further instructions from the deceased until August 2004. Unbeknownst to Mr Clement the deceased executed the draft Will he sent to her on 11 November.
22 The Will, dated 27 November 2003, bequeathed the deceased's piano, together with her furniture and other items of household use and ornament, to her friend Josephine Veronica McMullen. I pause to note that Ms McMullen has shown no interest in these proceedings and there has never been any issue but that that bequest should be honoured. It appears, subsequently, in the Will of 7 September 2004.
23 In the Will of 27 November 2003, the balance of the deceased's estate was left to the deceased's niece, and the defendant, Patricia Stratford, her great-niece, Jacqueline Smith, her great-nephew Alan Gunther, her late husband's godson David Taylor and the deceased's nephews, William Priestman and Gerald Priestman.
24 Thus, it can be seen that the relevant difference between the 1999 Will and the November 2003 Will was to delete Ms Allen as a beneficiary
(Page 7)
- and to include the deceased's late husband's godson, David Taylor, as a residual beneficiary. There was also, of course, the change to leave personal effects to Ms McMullen.
25 Mr Clement goes on to depose that on 30 August 2004 he again attended on the deceased at her home at which time he found that she had executed the draft Will that he had forwarded to her in November 2003. At this time the deceased instructed him that she wanted to add three beneficiaries, namely, John Charles Stuart Bogle, Mary Wood and David Lees. Mr Clement says that he decided to prepare a new Will rather than a codicil, as the Will that the deceased had executed on 27 November 2003 had been marked by him as a draft.
26 On 7 September 2004 Mr Clement again attended on the deceased at her home at which time the deceased read through the 2004 Will and signed her name at the foot thereof, in the presence of Mr Clement, Annette Joan Kempton and another witness, the witnesses being present at the same time. Mr Clement deposes that in his meetings with the deceased he did not consider that she was not capable of providing him with proper instructions.
27 The terms of the Will are identical to those of the November 2003 will except for the addition of the three beneficiaries who I have already named. The executors of the Will are the plaintiffs, John Charles Stuart Bogle and Monica Erica Smurthwaite. They were also the executors of the 2003 Will.
28 In respect to the evidence of the mental capacity of the deceased at the time she made the 7 September 2004 Will, I have material before me in the affidavits of Mr Clement, Mr Bogle and Ms Smurthwaite.
29 The evidence of Mr Clement is brief and to the point. I have already outlined it.
30 The evidence of Ms Smurthwaite is to the effect that the deceased had been a great entertainer, she threw fabulous parties and appeared to be very popular. She was also very independent and always appeared to know her own mind.
31 Ms Smurthwaite says that the deceased asked her to be the executor of her Will approximately three years ago, as they were old friends. She says that the deceased did not discuss the contents of her Will with her at that time. She further says that the last time she saw the deceased was at her birthday party on 19 October 2004. Ms Smurthwaite says that she
(Page 8)
- spoke to the deceased a lot over the telephone, both before and after she saw her at the birthday party. She says that they had very good conversations right up until she was admitted to the hospice for the last time. Ms Smurthwaite deposes that there was never any indication to her during any of those telephone conversations that the deceased's mental ability was waning. She deposes that at the birthday party she noticed that the deceased had begun to look frail but when she spoke to her she was alert and appeared to be in full possession of her mental faculties.
32 Ms Smurthwaite deposes that nothing occurred during the course of the party that caused her to have any concerns about the deceased's physical or mental health and nobody at the party expressed any concern to her about the deceased's cognitive health or state of mind. I understand that the birthday party being referred to was the birthday of the deceased on 19 October 2004 when she turned 90 years of age. This was approximately six weeks after she signed the Will.
33 The evidence of Mr Bogle is to the effect that he did not often see or have contact with the deceased. He is a solicitor who had provided some legal assistance to the deceased over her lifetime. He knew the deceased because she was a friend of his mother-in-law. He had known the deceased for over 30 years. Mr Bogle deposes that he had contact with the deceased in 2003 when he visited her at her request to discuss her business affairs. After that visit, he discussed the affairs with her by telephone once or twice. He deposes that nothing occurred during the course of his visit in 2003 or his subsequent telephone conversations with the deceased that caused him to have any concern about the deceased's physical or mental wellbeing.
34 He deposes that he next had contact with the deceased in June 2004 when he again visited her in the company of his wife. He deposes that during this visit the deceased served food and drinks and appeared to be in very good spirits. She played the piano and sang extremely well, displaying her skills as an entertainer. He says that nothing occurred during the course of that visit that caused him to have any concerns about the deceased's physical or mental health. Neither did his wife express any such concerns to him.
35 He next visited the deceased in the company of his wife and his mother-in-law on 4 September 2004. Consequently, this was just some three days before the execution of the Will. Mr Bogle deposes that the deceased served tea and entertained them for a couple of hours with her conversation and musical talents. He deposes that the deceased was
(Page 9)
- immaculately groomed and dressed. He deposes that the deceased was alert and seemed to be in complete control of all her physical and mental faculties. He again deposes that nothing occurred during the course of that visit that caused him to have any concerns about the deceased's physical condition or state of mind. Neither did his wife or his mother-in-law express any such concerns to him.
36 Mr Bogle deposes that he next saw the deceased on 19 October 2004 for the celebration of her 90th birthday. He notes that the deceased was not dressed as smartly as usual and that she was confined to a wheelchair. He deposes that nevertheless she managed to play the piano and sing whilst playing, as was her custom.
37 He last saw the deceased a day or so before she died. He says that although she slipped in and out of sleep, she seemed to know that he was with her.
38 Whilst the Will added some new beneficiaries, it in no way could be described as an entire departure from the deceased's earlier Wills and it is not suggested that the deceased failed to make provision for anybody who legally or morally she was obliged to make provision for. Thus, there is nothing significant in the terms of the Will itself which would displace the presumption that the deceased was of competent mind and understanding at the time she made it.
39 Further, there is nothing in the evidence about her apparent state of mind, which would displace the presumption that the deceased was of sound mind and judgment at the time she executed the Will of 7 September 2004.
40 Taking all these matters into account, the absence of any evidence to displace the presumption and the presence of evidence which bolsters the presumption, I am prepared to make the orders as sought by the plaintiffs in their minute of proposed orders dated 21 February 2007. Thus, there should be judgment for the plaintiffs. The counterclaim will be dismissed.
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