Stewart v Stewart
[2019] WASC 432
•6 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: STEWART -v- STEWART [2019] WASC 432
CORAM: CURTHOYS J
HEARD: 16 OCTOBER 2019
DELIVERED : 6 DECEMBER 2019
FILE NO/S: CIV 1102 of 2018
BETWEEN: PETER MCVEIGH STEWART
DAVID THOMAS STEWART
Plaintiffs
AND
IAN ALEXANDER STEWART
First Defendant
PAUL RUSSELL STEWART by guardian ad litem THE PUBLIC TRUSTEE
Second Defendant
Catchwords:
Testamentary capacity - Dementia - Grant of probate in common form revoked
Legislation:
Nil
Result:
Grant of probate in common form revoked
Category: B
Representation:
Counsel:
| Plaintiffs | : | Mr J R Birman |
| First Defendant | : | Not applicable |
| Second Defendant | : | Not applicable |
Solicitors:
| Plaintiffs | : | Birman & Ride |
| First Defendant | : | In person |
| Second Defendant | : | Public Trustee |
Case(s) referred to in decision(s):
Attwell v Morgan [2019] WASC 182
Power v Smart [2018] WASC 168
Rogers v Rogers [2009] WASC 358
Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007
Veall v Veall [2004] VSCA 204
CURTHOYS J:
Introduction
Ruth Peters Stewart died on 12 September 2017. She was predeceased by her husband Joseph William Stewart who died on 1 August 2008.
Ruth and Joseph were survived by their four children: Peter, David, Paul and Ian.
Paul Stewart (by his guardian ad litem) has notified the court that he will abide by the decision (save for the right to be heard in relation to the issue of costs).
On 14 September 2009, Ruth made a will nominating Ian as her executor and sole beneficiary (the 2009 Will). On the same day she also executed an enduring power of attorney.
Ruth died on 12 September 2017.
The issue in this matter is whether Ruth had testamentary capacity on 14 September 2009 when she made her will.
For the reasons set out below I have concluded that Ruth did not have testamentary capacity as at 14 September 2009 and accordingly that the 2009 Will is invalid.
The terms of the 2009 Will
The relevant terms of the 2009 Will were:
Executors
1.I APPOINT my son IAN ALEXANDER STEWART of 98 Lakelands Road, Barragup in the State of Western Australia as executor and trustee (hereinafter called 'my Trustee') which term shall where the context permits mean the trustee or trustees for the time being whether original or substituted.
Residue
2.I GIVE the whole of my estate to my Trustee on trust to sell call in and convert into money with power to postpone such conversion and from the proceeds of such sale calling in and conversion after payment of my debts funeral and testamentary expenses to hold the rest and residue of my estate for my son IAN ALEXANDER STEWART.
The 2009 Will was witnessed by Amanda Liston, a lawyer, and Jessica Louise Podmore, a legal secretary. The witnesses were both employees of Clement & Co - Lawyers. Neither of the witnesses were called to give evidence as to circumstances of the execution of the will.
The common form grant of probate
On 25 October 2017 this Court granted probate of the 2009 Will in common form to Ian, the first defendant.[1]
[1] Exhibit A, page 58.
The plaintiffs, David and Peter Stewart, contend that:
1.the grant of probate of the 2009 Will in common form issued on 25 October 2017 should be revoked because Ruth lacked testamentary capacity at the time she made the 2009 Will; and
2.the grant of letters of administration in common form issued on 27 December 2017 to Ian Stewart should also be revoked because the grant was made to Ian on the basis that he was the executor of Ruth's estate.
The critical question for the court is whether Ruth had testamentary capacity when she executed the 2009 Will on 14 September 2009.
The law
The legal principles relating to testamentary capacity are well‑known and are conveniently summarised in Ryan v Dalton; Estate of Ryan.[2]
[2] Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007; referred to in Attwell v Morgan [2019] WASC 182 [67]; also see Power v Smart [2018] WASC 168.
There was no dispute between the parties about the applicable legal principles. I summarised them in my judgment in Philips v Philips [2017] NSWSC 280, 129 ‑ 134:
'129The classic expression of the test for testamentary capacity was stated by Cockburn LCJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:
"It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
130The Court's attention was then drawn to the judgment of Meagher JA (with whom Basten JA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285:
"44.The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a 'free and capable' testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657 ‑ 658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528.
45.If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of 'sound disposing mind': Waring v Waring [1848] EngR 693; (1848) 6 Moo PC 341 at 355; [1848] EngR 693; 13 ER 715 at 720; Sutton v Sadler [1857] EngR 738; (1857) 3 CB NS 87 at 97 ‑ 98; [1857] EngR 738; 140 ER 671 at 675 ‑ 676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453.
…
48.In this context the statements prescribing 'vigilance' and 'careful scrutiny' and referring to the court being 'affirmatively satisfied' as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995."
131The parties also relied on the helpful summary of the law by Hallen ASJ (as his Honour then was) in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275:
"246It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, 'the mental power may be reduced below the ordinary standard' provided the deceased retains 'sufficient intelligence to understand and appreciate the testamentary act in its different bearings'.
247In Re Griffith; Easter v Griffith, Kirby P (as his Honour then was) articulated, at 295, this principle as follows:
'In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.'
248In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that he or she was capable of understanding all the clauses of the disputed will. An appreciation of the legal effect of every clause in a will is unnecessary. However, it does need to be shown that the deceased understood that he or she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs at [97].
249Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the deceased's mental state did not influence the will: Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295.
250In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, at 571, per Isaacs J.
251I also note that in Bool v Bool [1941] St R Qd 26 at 39 (Full Ct, Macrossan SPJ) it was said:
'A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation.'
252A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether she, or he, in fact, made the judgment about her, or his, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate.
253As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]:
'Mr Willmott referred in this context to the three 'R's' adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason:
"He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them."
Mr Willmott emphasised that his Honour went on to say:
"It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other." '
254In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the 2004 Will was made invites the examination of the position at the time the Will was executed (since the deceased gave no instructions to Ms Zlatevska prior to that time): Smith v Tebbitt (1867) L.R. 1 P&D 398, at 436 ‑ 437. Ultimately, whether the deceased possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight (1873) LR3P&D 64 at 67."
132Mr Morrissey also relied on the observation by Windeyer J in Loupos v Demirgelis [2008] NSWSC 1207 at [55] that "[c]ognitive failure does not of itself mean there is no capacity to make a will. It is the extent of the failure which bears upon this". To that I would respectfully add his Honour's observations at [54] that:
"In a matter such as this it is important when considering the opposing medical opinions to have close regard to the evidence of lay witnesses, to a large extent unchallenged, and the evidence of medical practitioners who examined the deceased, and to consider the specialist opinions by those who had never seen the deceased bearing in mind the evidence of those other witnesses."
133In Loupos, Mr Morrissey submitted, his Honour had found the deceased had the requisite capacity to make his will, notwithstanding the evidence that eleven weeks after executing that will the deceased had an MMSE score of 13/30 which indicated severe cognitive impairment. However, the Court notes that in Loupos his Honour was primarily influenced by the unchallenged evidence of a large number of lay witnesses, especially on the topic of the deceased's memory. That is not this case.
134Finally, I have also relied upon Lindsay J's recent summary in Estate Stojic, Deceased [2017] NSWSC 168:
"84.The concepts of 'testamentary capacity' (classically explained by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565) and 'knowledge and approval' are distinct. A testator might have the capacity (ability) to understand but not, in fact, understand a Will and its effect. Nevertheless, an application of each concept to particular facts generally draws upon a common factual matrix because a court's determination must be made on the whole of the available evidence. That is so, particularly, where, as in these proceedings, the parties have not adduced expert medical evidence on the specific question of 'capacity'.
85.In any event, the Court needs to be satisfied that the testator had the capacity to remember, to reflect and to reason and, generally, that he did so in a rational way: King v Hudson [2009] NSWSC 1013 at [50] ‑ [51]; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159]; Estate of George Aeneas McDonald [2015] NSWSC 1610 at [53] ‑ [70]. Decisions about 'testamentary capacity' and 'knowledge and approval' are necessarily fact sensitive.
86.The ultimate question, on the facts of the particular case, is whether the Court is satisfied that a particular testamentary instrument represents the last Will of a free and capable testator: Woodley Page v Symons (1987) 217 ALR 25 at 35. The proponents of a Will bear the onus of proving that fact on the balance of probabilities, taking into account the nature of the case and the gravity of matters alleged: Evidence Act 1995 NSW, section 140; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361. The effect of an initial doubt about the validity of a Will is to require a vigilant examination of the whole of the evidence which the parties place before the Court; that examination having been made, a residual doubt is not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the last Will of a free and capable testator: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 452 ‑ 453." '
In Veall v Veall[3] Santamaria JA set out the following passages explaining the shifting evidential burdens of proof in testamentary capacity and knowledge and approval of a will as follows:
[3] Veall v Veall [2004] VSCA 204 (Veall) [166] ‑ [171].
Capacity, knowledge and approval
Where a will is sought to be admitted to probate, the onus of proving the will lies on the propounder. The propounder must prove that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution. By contrast, where fraud or undue influence is alleged, the onus of proof lies on the party alleging it.
In Kantor v Vosahlo, Buchanan and Philips JJA (with whom Ormiston JA agreed) said:
'… a propounder must show that at the relevant time a testatrix knows what she is doing and the effect of her dispositions; she must know what estate she has to dispose of and what persons might have a claim upon her bounty.
The "relevant time" is the time at which the will is executed. The ability of a testator to make a will may fluctuate. A testator who is aged and infirm may suffer from dementia or some other form of impairment. But, if such a testator has lucid intervals, the inquiry must be directed to whether the will was made in such an interval.'
If the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity. The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent. If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity: that is that the testator was of 'sound and disposing mind'.
Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.
The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof. The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder. But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will's legitimacy.
In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator. In Bailey v Bailey, Isaacs J (with whom Gavan Duffy and Rich JJ agreed) summarised the law thus:
(1)The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.
(2)This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.
(3)The proponent's duty is, in the first place, discharged by establishing a prima facie case.
The medical evidence
The principal evidence was given by Dr Kitchin, a geriatrician, who saw Ruth on 5 November 2008 and 12 March 2009. He saw Ruth for the purposes of assessing her, and not for the purpose of providing expert evidence. On each occasion he administered a mini mental state examination to Ruth. There is consistency between the two mini mental state examinations in that the same person administered them.
Dr Kitchin prepared a report addressed to Dr Buters dated 5 November 2008. The report relevantly stated:
…
Financial capacity
I spoke to Mrs Stewart at some length about her finances and assets. Mrs Stewart told me that she was a pensioner but could not indicate what the current pension was. She was quite unclear about her bank account details. She states that she has been paying bills but the mechanism and the magnitude of these bills could not be explained. She was unable to tell me the costs of basic food stuff. I questioned her about her house but she really could not give me even a ball park figure of its value.
I later spoke to Ian who confirmed that he has actually been paying the bills and running the finances. He knows his mother's PIN number as she forgets it. He confirms that she does in fact own a second property which she had not mentioned to me. The situation is also quite complicated by the fact that his father died intestate and now he has clear concerns about his mother's capacity to make financial decisions.
Based on today's assessment I did not consider Ruth to have the capacity to make decisions regarding finances and donating Enduring Power of Attorney. My recommendation today to the patient's son was that he look at an application to the State Administration Tribunal for Administration.
History
I reviewed Mrs Ruth Stewart at her Barragup house where she has lived with her husband up until his recent death. They are living with their son Ian who moved in as his father's health deteriorated and he was increasingly providing hands on support for both his mother and father. Today we looked at the two main issues, the first being inflammatory illness and secondly cognitive changes that have been occurring in Ruth.
Unfortunately Ruth is not able to give me a cohesive history regarding the events and symptoms leading up to her review by the Neurologist and Rheumatologist. Ian remembers his mother becoming unwell with aches and pains in the final month or so of his father's life. In July she had an episode of collapse and was transferred to the Peel Health Campus. Ian felt that this may have been a reaction to stress more than a true physical illness at that stage.
…
A number of investigations were undertaken with a bone scan showing widespread arthropathy with more focal inflammatory componenets as well as bilateral greater trochanteric bursitis. The CT scan of the brain showed an extra axial calcified mass consistent with either a Meningioma or Osteoma. It also showed the temporal lobe atrophy. Ross River serology, Rheumatoid factor and investigations for multiple myeloma/Bence Jones protein were negative. There was very mild elevation of the serum calcium. B12 and folate were normal and treponemal serology was also negative. Vitamin D was just adequate at 70 and the mid stream urine was negative.
…
The other main issue has been Ruth's cognitive decline. Ian does in fact feel that the minor lapses in her short term memory and the repetitiveness appeared over the last year or so but things declined rapidly in the context of his father's terminal illness.
Most of the time she presents reasonably coherently but there is certainly some degree of fluctuation. We spent some time discussing the two recent episodes where she has wandered. The first time she locked herself out of her house and ended up in your surgery. The second episode, only one week prior to this assessment seemed to be similar. She locked herself out of her house and then was found on a nearby road by a neighbour who bought her back to her front gate. She then refused to trust her son to let her in and demanded the Police be called and stated that her son Ian was trying to steal her house and keys. The Police attended and she calmed down and returned to the house. The confusion and paranoid themes seem to be surprisingly worse in the morning and better by the late afternoon and evening, particularly worse when she first wakes up. There have been no overt hallucinations. Overall Ian feels that his mother is overwhelmed easily and the recent bereavement plays heavily on her mind. Various small triggers remind her of her husband and she will then cry and seems to be cognitively a lot worse.
In the house Mrs Stewart is having difficulties. She would not be compliant with her medications without Ian's presence. She has difficulty using electrical items around the house including the television and the phone. As stated she is dependent on Ian for paying the bills. He reports that at times she needs prompting to complete tasks. She is quite distractible. She will start cleaning and stop halfway. She has been moving furniture around in a non-purposeful way. She is no longer doing her artwork nor cooking. Overall Ian feels that she is continuing to deteriorate.
…
Cognitively she scored 25/30 losing points for orientation to time as well as short term recall. Surprisingly she did very well with serial sevens however this may also reflect superior pre morbid cognitive function. Her timed naming of animals (categorical fluency was really reduced at only seven animals in 60 seconds). Her Clox 1 and Clox 2 were likewise mildly impaired and she had some minor difficulties with the Luria test but not the go, no go test looking at motor sequencing and inhibition respectively. I found her to have considerable difficulty keeping on track with conversations. She would frequently speak tangentially and had to be redirected. She seemed to retain some awareness into this. Today the GDS was 3/15 which is below the arbitory cut off for depression.
Management Plan (Prioritisation of Social & Medical Issues)
1.Dementia
It would appear that Mrs Stewart has an emerging dementia although the MMSE score is relatively preserved, possibly reflecting better than average pre morbid intellectual function. The degree of fluctuation is not typical for Alzheimer's disease but in the absence of any other brain pathology and with the temporal lobe atrophy this remains the most likely diagnosis. Unfortunately there appears to be some early behavioural psychiatric symptoms of dementia with the intermittent paranoid ideation and wandering. The situation is complicated by the recent bereavement and physical illness.
I spoke to Ian and Ruth about the possibility of an anti-depressant given the bereavement but Ian was a little bit reluctant although he acknowledges that this may reflect his own personal experience and he is happy to be guided about his mother's treatment. She would probably be a candidate for cholinesterase inhibitor medication as well. My feeling is that I would probably give her another month or two to settle down, repeat the MMSE examination score and I would be happy for you then to trial Reminyl, Aricept or an Exelon Patch. You could use my name as the diagnosing Physician and today's date as the date of diagnosis. It may be some benefit in reducing the behaviour disturbance.
With respect to the financial matters, things sound very convoluted. It sounds like there is some potential for conflict and I do not feel happy in supporting Mrs Stewart donating Enduring Power of Attorney. I think she is financially incapable and this would be best handled by referring through to the State Administration Tribunal for a deliberation on administration. I explained to Ian that they have the option of involving a third party for financial management such as Public Trustee. The family have some experience with the two siblings having previously had some involvement with the guardianship board.
…
Dr Kitchin prepared a further report, dated 12 March 2009, addressed to Dr Vorster, dated 12 March 2009. The report relevantly stated:
Thank you for referring Ruth Stewart who I last saw in November 2008. At that point I felt she had an emerging dementia with some mild paranoia. She had a CT scan showing temporal lobe atrophy and although not the most typical presentation, the most likely cause for her decline is Alzheimer's Disease. In November she was also recovering from an inflammatory disorder which had responded well to Prednisolone. She has now been admitted to Peel Health Campus having walked into your surgery in a distressed state, stating that she is unhappy with her interaction with her son Ian. I spoke to Mrs Stewart at some length today and there was a mild persecutory theme to her discussion. This mainly centered on her son Ian whom she felt was 'making her life a misery' and that he had 'gone beserk and locked himself in his room'. However she also was quite preservative about being unable to charge her phone and indicated that her other sons were unhappy with her failure to keep in contact. (I did not completely this wit the patient). Today Ruth denied hallucinations and there was no overt delusional content. Her MMSE score was 22/30 having fallen three points from November. She had problems with orientation to time and lost all three points for short term recall.
…
… I think her mild dementia is likely to progress and her care requirements will increase in the future.
Dr Kitchin prepared a report to the plaintiffs' solicitors dated 14 November 2018.[4] The report relevantly stated:
[4] Exhibit A, pages 141 ‑ 143.
…
In response to the question regarding Mrs Stewart's ability to comprehend and appreciate the significance of what she was doing signing a will on 14 September 2009, I do not believe that she retained testamentary capacity. Likewise, I do not think Mrs Stewart had the ability to comprehend the nature and extent and the value of the property she was dealing with executing the will. I would base this on the assessments of November 2008 and March 2009. I identified that Mrs Stewart had dementia that was most likely to be Alzheimer's disease. Initially her Mini Mental State Examination score had been 25/30 but had fallen to 22/30 by March 2009. I made the comment that I considered the scores to be higher than what I would have expected from the history which was suggesting a significant impact of cognitive impairment on Mrs Stewart's function in the home. I believe that Mrs Stewart's pre-morbid academic function (she was Dux of the Women's College back in Scotland) is relatively protective in terms of her achieving a higher score on the tests than I would have otherwise expected.
During the course of my initial interview on 5 November 2008, Mrs Stewart could not tell me the value of her pension nor details about her bank account. She stated that she had been paying bills but could not explain how she was paying them or the monetary value of these bills. She could not give me the values of basic food items which is significant considering she used to be a manger of a Woolworths store. I later confirmed that Mrs Stewart was not paying the bills and her son Ian was doing this. Mrs Stewart could not give me a valuation of her house. I also confirmed later with Mrs Stewart's son that she had a second property which she had not mentioned when I had spoken to her about her assets.
Based on my questioning I formed the opinion that Mrs Stewart did not have capacity to make financial decisions nor donating Enduring Power of Attorney. Whilst I was not directly asked about testamentary capacity I feel I can be quite definite that she did not have testamentary capacity when I reviewed her in 2008. By virtue of her progressive cognitive decline I do not think this would have improved to any appreciable extent by the time she wrote her will on 14 September 2009.
I do not believe Mrs Stewart had the ability on 14 September 2009 to comprehend and be aware of those who may reasonably be thought to have a claim on her estate. Likewise I do not think Mrs Stewart would have the ability to evaluate and discriminate between the respective strengths of the claims of such persons. I believe on 14 September 2009 Mrs Stewart was suffering from dementia with the last objective scoring of 22/30 on a Mini Mental State Examination score in March of 2009 underestimating the severity of her dementia considerably.
On both occasions when I reviewed Mrs Stewart there were paranoid and persecutory themes to her thinking. On 12 March 2009 her son Ian was the focus of her persecutory ideation believing that he was making her life a misery and also later stating that he had gone berserk. I conclude on 12 March 2009 that Mrs Stewart was exhibiting behavioural psychiatric symptoms of dementia as evidenced by her paranoid ideation. Reading through my notes on the hospital file dated 12 September 2009 I had noted that some of Mrs Stewart's speech had not been goal directed and the logical progress of some of her sentences could not be followed.
During the course of Mrs Stewart's admission she had investigations carried out to look for causes of possible cognitive impairment. I note that the usual geriatric screen including blood tests and urine test did not identify any factors that were likely to be impacting on her cognition. I therefore did not think that Mrs Stewart was suffering from delirium or any transient worsening of her cognitive state. I think that Mrs Stewart would have continued to deteriorate in the six months following my assessment on 12 March 2009 and the signing of the will on 14 September 2009.
When I did see Mrs Stewart in hospital on 12 March 2009 I did not undertake any further evaluation of her financial capacity and I had no reason to expect things to have improved from my initial evaluation back in November 2008.
In coming to my conclusions about Mrs Stewart's testamentary capacity, my initial questioning in November 2008 was focussed on her understanding of her current financial situation. It was clear that she could not provide me with an accurate valuation of her assets, pension, banking details or even the cost of basic food items. On both occasions when I assessed Mrs Stewart, she had evidence of paranoia and persecutory themes. I think that these sorts of things can just as easily be directed against other family members as it was directed against Ian.
My commentary is based mainly on my own observations including my objective testing on the Mini Mental State Examination. Whilst there are reports from social work in the files, these did not make a great deal of impact on my assessment.
In cross‑examination Ian put to Dr Kitchin that Ruth's diminished mental capacity may have been a temporary reaction to the grief arising from her husband's death. Dr Kitchin did not accept that it was a temporary reaction. He specifically tested her for depression and she was within the normal scale (GDS 3/15), ie. the evidence was that she was not suffering from depression. Accordingly, Ruth's diminished mental capacity was not as a result of depression arising from grief over her husband's death.
Between December 2008 and August 2011, Dr Vorster was Ruth's general practitioner and saw her on 36 occasions. Dr Vorster prepared a report to the plaintiffs' solicitors dated 30 January 2019.[5] The report relevantly stated:
[5] Exhibit A, pages 144 ‑ 146.
I have met Ruth Stewart on 4 December 2008 as a patient at the Dudley Park Medical Centre. I have seen her 36 times at the Medical Centre and admitted Ruth Stewart to Peel Health Campus on 9 March 2009 to 13 March 2009. Dr Kitchin evaluated Ruth Stewart in hospital during this admission.
I have moved to Pinjarra Doctors in January 2011 and Ruth Stewart had seven consultations with me from 10 March 2011 to 18 August 2011.
I have seen Ruth Stewart for the last time on 18 August 2011 at Pinjarra Doctors.
Ian Stewart told me it was too difficult to bring her to see me at Pinjarra Doctors and transferred back to Dudley Park Medical Centre under care of Dr J Buters.
I was not present when Ruth Stewart signed the Will on 14 September 2009. If I was consulted about the signing of the Will I would have stated that she was unable to make a decision about any aspects of a Will.
On 3 April 2009, I made recommendations that it would be appropriate and in the best interest of all parties to get an independent organisation to execute any changes in the Will and that she needs support from an independent advisor with her financial affairs.
On this day 3 April 2009, I discussed with Ruth Stewart and Ian Stewart her full time carer that we need to treat Ruth for her confused state of mind. This decision was based on careful observation from consultation on the changes of her mental awareness as well as the events of 9 March 2009. Both parties agreed and I started her on Risperdal. (Risperidone is for psychosis).
My reasoning for this was based on the five consultations I had with Ruth Stewart accompanied by Ian Stewart and my consultation I had with Ruth Stewart (alone) without Ian Stewart on 9 March 2009.
On this day Ruth Stewart walked from her home to the practice (please note 9.2 km). Ruth looked confused and agitated and stated that she needed to tell me that Ian Stewart would not let her do her own shopping and that she does not have access to her bank account. I did not know if this was the truth or not.
I do not know if Ian Stewart did not give her access to her bank account or did not want her to do shopping based on her confused state or/and he perceived her as unable to make financial decisions. I also did not know if Ruth Stewart was paranoid and if she believed falsely that Ian Stewart did not want her to have access or believed falsely that he did not want her to do shopping.
Based on the events on 9 March 2009 Ruth was admitted to Peel Health Campus and evaluated by Dr John Kitchin.
Dr Kitchin was forwarded a report dated 12 March 2009 and addressed to myself. In this report there is a comprehensive discussion and again he noted that an independent company should oversee Ruth Stewart's financial affairs and this report is made available to the court.
Dr Kitchin states clearly that he had advised the family to approach the State Administration Tribunal for consideration of an Administration Order. An even more comprehensive report was available in Ruth Stewart's file dated 5 November 2008, addressed to Dr J Buters. This report is also available to the court.
Therefore, I base my opinion on my own experience and observations in dealing with Ruth Stewart during consultations and on facts of the additional reports of a well‑known Geriatrician Dr J Kitchin.
My opinion is thus that Ruth Stewart was unable to comprehend and appreciate the significance of what she was doing by signing the Will and its implications on 14 September 2009.
My opinion is that Ruth did not have the ability to comprehend the nature and extent and value of the property she was dealing with by executing the Will.
Both Dr Kitchin and Dr Vorster correctly applied the test for assessing testamentary capacity.
Ian did not call any medical evidence.
I am satisfied that the medical evidence establishes overwhelmingly that Ruth did not have testamentary capacity at the time she executed the 2009 Will.
The lay evidence
Peter McVeigh Stewart (exhibit B), David Thomas Stewart (exhibit C), Gloria Cecilia Miryam Stewart (exhibit D) and Mary Stewart (exhibit E) each gave evidence of Ruth's declining mental capacity from about 2007/2008. Their evidence confirms the medical evidence. These witnesses were not cross‑examined.
Ian's case
Ian has not sought a pronouncement of the 2009 Will in solemn form. He did not lead evidence that the 2009 Will was duly executed.
As noted above Ian has not adduced evidence from those who prepared and witnessed the 2009 Will. Accordingly no presumption arises as to capacity in the absence of evidence of the due execution of the 2009 Will.
Ian stated that he had looked after his parents until their death and had maintained the house. Whatever legal entitlements, if any, that conduct might give rise to is not relevant to an assessment of Ruth's testamentary capacity at the time she executed the 2009 Will. That is the sole question that arises in this case.
Appropriate orders
It is appropriate to make the following orders:
1.The court pronounces against the validity of the will of the late Ruth Peters Stewart dated 14 September 2009.
2.The grant of probate of the estate of Ruth Peters Stewart made by the Supreme Court of Western Australia on 25 October 2017 to the first defendant, be revoked and cancelled.
3.The first defendant deliver up the grant of probate to the Central Office of the Supreme Court within 14 days of 6 December 2019.
Other orders sought by the plaintiffs
In addition to the orders stated above the plaintiffs sought the following orders:
1.The grant of letters of administration of the estate of Joseph William Stewart made by the Supreme Court of Western Australia on 27 December 2017 to the first defendant be revoked and cancelled.
2.The first defendant shall within 10 days deliver to the Central Office of the Supreme Court an affidavit describing his administration of both estates and identifying estate assets which remain unadministered and papers, documents, accounts, receipts or other documents relating to estate assets.
3.Upon the application of any party, the first defendant shall appear before a registrar of the Supreme Court of Western Australia at a date to be fixed for examination on oath or affirmation by or at the instance of the co‑beneficiaries of the estate to answer questions about the nature and extent of his administrations and the location of unadministered assets or documents relating to them.
4.The court directs the Probate Registrar to issue a grant of letters of administration in respect of both estates to Peter McVeigh Stewart.
I can see no basis upon which to revoke the grant of letters of administration of Joseph William Stewart to Ian. There is no evidence as to Ian's conduct of that administration.
In Rogers v Rogers[6] the court did make orders of the type sought in pars 3, 4 and 5. However, in that case the executor had delayed in responding to a request to pass accounts and there had been a delay in administering the estate. There is no evidence of any delay in administering the estate in this case similar to that which occurred in Rogers v Rogers.
[6] Rogers v Rogers [2009] WASC 358.
An application for letters of administration of Ruth's estate should be made in the normal way.
Orders
It is appropriate to make the following orders:
1.The court pronounces against the validity of the will of the late Ruth Peters Stewart dated 14 September 2009.
2.The grant of probate of the estate of Ruth Peters Stewart made by the Supreme Court of Western Australia on 25 October 2017 to the first defendant, be revoked and cancelled.
3.The first defendant deliver up the grant of probate to the Central Office of the Supreme Court within 14 days of 6 December 2019.
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MDM
Associate to the Honourable Justice Curthoys5 DECEMBER 2019
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