The Public Trustee in and for the State of Western Australia v Churches of Christ Homes and Community Services Inc
[2005] WASC 289
•14 DECEMBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE PUBLIC TRUSTEE in and for THE STATE OF WESTERN AUSTRALIA -v- CHURCHES OF CHRIST HOMES AND COMMUNITY SERVICES INC [2005] WASC 289
CORAM: HASLUCK J
HEARD: 14 DECEMBER 2005
DELIVERED : 14 DECEMBER 2005
FILE NO/S: CIV 2636 of 2004
BETWEEN: THE PUBLIC TRUSTEE in and for THE STATE OF WESTERN AUSTRALIA
Plaintiff
AND
CHURCHES OF CHRIST HOMES AND COMMUNITY SERVICES INC
Defendant
Catchwords:
Succession - Wills, probate and administration - Proof of Will in solemn form - Turns on own facts
Legislation:
Public Trustee Act 1941 (WA), s 12
Result:
Order pronouncing for Will in solemn form
Category: B
Representation:
Counsel:
Plaintiff: Ms H Finch
Defendant: No appearance
Solicitors:
Plaintiff: Public Trustee
Defendant: Ilberys Lawyers
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Bull v Fulton (1942) 66 CLR 295
Western Australian Trustee Executor and Agency Company Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439
Case(s) also cited:
Nil
HASLUCK J: The plaintiff in these proceedings is the Public Trustee in and for the State of Western Australia. The plaintiff seeks an order to the effect that the Court pronounce for the force and validity of a Will dated 3 April 1969 in solemn form of law being a Will executed by the deceased, Mabel Gertrude Dawson, on 3 April 1969.
An order is sought also in par 2 of the prayer for relief that the Court pronounce against the force and validity of the said alleged Will dated 20 February 1990. I will come to the details of that Will in a moment.
The orders sought are set out in a writ of summons issued by the plaintiff on 21 December 2004. The plaintiff is acting pursuant to s 12 of the Public Trustee Act 1941 whereby the Public Trustee can be authorised to apply for orders of this kind. Section 12(1) provides:
"Any person or the majority of persons entitled to obtain administration (with the will of any testator annexed) of the estate of such testator may authorise the public trustee to apply to the court for and obtain an order to administer the estate."
An order was made in this matter by Master Newnes on 27 June 2005 for the evidence at the trial to be given by affidavit.
The sole defendant in the proceedings, Churches of Christ Homes and Community Services Inc, being the sole beneficiary named in the 1990 will, has filed a notice that the defendant will abide by the decision of this honourable court.
The relevant notice is dated 28 February 2005 and is to this effect:
"That the defendant, having entered an appearance in this action, shall abide by the decision of this honourable court and not seek to be heard in respect of the subject matter of the action save and except for any application or order requiring the defendant to pay costs."
I have before me various affidavits bearing upon this matter including affidavits of scripts concerning the Wills in question, that is, the 1969 Will and the 1990 Will. Some of these affidavits are to be found on the court file concerning the present proceedings and some of the affidavits are to be found upon the relevant probate files.
The affidavits include an affidavit sworn 20 November 1998 by a medical practitioner, Peter Martin Winterton, and an affidavit sworn 5 January 1999 by Barbara Evelyn Dunwoodie, who knew the deceased over a 15‑year period while the deceased was residing in self‑care units and eventually in the defendant's nursing home. I will come back to these affidavits in due course.
I have also the affidavit of Laurel Ruth Johnson sworn 8 August 2005. That deponent was an attesting witness to the 1969 Will and speaks of the circumstances in which she acted as witness. It emerges from the affidavits before me that as at 1990 the deceased had no living next of kin.
The deceased died on 7 March 1998. According to her death certificate the cause of death was terminal hypostatic pneumonia, generalised debility, and dementia of Alzheimer's type for eight years.
As I have indicated, the deceased left a Will dated 3 April 1969, being the Will sought to be proved. The relevant details in respect of that Will are that the executor named in the Will was the Perpetual Executors Trustees and Agency Co (WA) Ltd, now Perpetual Trustees (WA) Ltd. However, that body renounced its role as executor. The renunciation is evidenced by the affidavit of Michael Victor Satie sworn 6 March 2002.
The beneficiaries named in the 1960 Will were the British and Foreign Bible Society Inc, the Baptist Union of WA Incorporated, for the use of the Claremont Baptist Church and the Jewish Evangelical Witness of 816 Hay Street, Perth, in the said state.
I pause to note that the Bible Society in Western Australia Inc, formerly the British and Foreign Bible Society in Western Australia Inc and the Baptist Union of Western Australia Inc have authorised the Public Trustee to apply for proof pursuant to s 12 of the Public Trustee Act being the provision I mentioned earlier. This authorisation is evidenced by the affidavits of Philip Newton Oliver sworn 28 July 1999 and the affidavit of Michael James Carter sworn 9 August 1999.
As I have indicated there is also a later Will dated 20 February 1990. The executor named in par 2 of the 1990 Will is the Public Trust Office in the State of Western Australia and thus effectively the Public Trustee who is represented before me.
The beneficiary named in the 1990 Will is the defendant to these proceedings, Churches of Christ Homes and Community Services Inc. I note in passing that the signature of the deceased on the 1990 Will is clearly written in a very shaky and unstable hand. A comparison between the signature in 1990 and the signature on the earlier 1969 Will suggests that there had been a severe deterioration in at least the physical capacity of the testatrix. This is a matter which may have a bearing upon the state of her mental and testamentary capacity.
Against this background, it will now be useful to look at legal principles bearing upon an application for orders of the kind I have described. Those principles are conveniently summarised by EM Heenan J in Wheatley v Edgar [2003] WASC 118. His Honour, at [17], noted that Wills can be proved in two ways; being in common form or in solemn form. In the former case, the grant of probate is revocable. In the latter case (with two exceptions concerning fraud or discovery of a later Will) the grant of probate is irrevocable. Wills are approved 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.
His Honour went on to indicate that the different consequences give rise to evidentiary implications. He observed at [24] that for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the Will in question or by any other party to that suit, whether joined or cited, of the formal validity of the Will. The issue Will be decided on such evidence as the propounder decides to adduce that the testator had the capacity to make a Will at the relevant time.
In that regard the propounder may take advantage of the rule that a Will properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and of understanding. If there is evidence to the contrary, it is for the proponent to establish affirmatively that the testator was of sound mind. There must be proof at least to this extent on the civil standard to justify a grant in solemn form, see Western Australian Trustee Executor and Agency Company Ltd v Holmes [1961] WAR 144.
In Bailey v Bailey (1924) 34 CLR 558, Isaacs J at 570 summarised the effect of certain decided cases. He said that the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it. The propounder's duty is in the first place discharged by establishing a prima facie case. A prima facie case is one which satisfies the Court judicially that the Will propounded is the last Will of a free and capable testator. It is not the integrity of the body but of the mind that is requisite in testaments.
Isaacs J went on to say that the quantum of evidence must always depend upon the circumstances of each case including reference to the complexity of the relevant provisions, the exclusion of persons naturally having a claim upon the testator, the presence of any person having motive and opportunity and exercising undue influence taking a substantial benefit.
Once the proponent establishes a prima facie case of sound mind, memory and understanding then the onus of proof lies upon the party impeaching the Will to show that it ought not to be admitted. Mere proof of serious illness is not sufficient. There must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.
In Worth v Clasohm (1952) 86 CLR 439 the High Court held that the effect of a doubt initially is to require a vigilant examination of the whole of the evidence. However, the 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 is the Will of a testator who possessed sound mind, memory and understanding at the time of its execution.
In Bull v Fulton (1942) 66 CLR 295, Williams J said at page 343 that where the evidence as a whole is sufficient to throw a doubt as to the testator's competency then the Court must decide against the validity of the will.
Let me now return to the circumstances of the present case. I begin by noting that as to both Wills the deceased sought to benefit institutions rather than individuals, save for one small exception which is to be found in par 2 of the 1969 Will. There, the testatrix sought to bestow her personal effects upon her friend, Mary Neville.
It emerges then, that save for one small exception, this is not a case in which family members stand to benefit. There is nothing in the surrounding circumstances, having regard to the final years of the deceased, which arouse matters of doubt or inquiry concerning the action of any individual standing to benefit and there is nothing to suggest that the deceased harboured unreasonable suspicions about family members or anything of that kind.
There are no signs of undue influence, although as will become apparent from the affidavit I am about to come to, a query does arise concerning the circumstances in which the 1990 Will was executed. Put shortly, when one looks at the Wills in question the 1969 Will appears to be rational as to its contents. It is duly executed in a firm hand.
There is therefore room for the application of the presumption of capacity which I mentioned in my review of the decided cases. I mentioned earlier that I have before me an affidavit of due execution sworn by one of the witnesses to the 1969 Will, that is, the affidavit of Laurel Ruth Johnson sworn 8 August 2005.
Let me turn now to the 1990 Will. I mentioned the affidavit of the medical practitioner, Peter Martin Winterton, sworn 20 November 1998. It is a short affidavit and I consider that I should refer to it in its entirety. In its material parts it reads as follows and I quote:
"1.I am informed that the abovenamed MABEL GERTRUDE DAWSON ('Miss Dawson') died on the 7th day of March 1998 having made and duly executed her last Will and Testament bearing date the 20th day of February 1990, a photographic copy of which is annexed hereto and marked 'A'.
2.On reviewing the medical records regarding Miss Dawson it appears that she was attended to by my late father at the time she made her will. I never attended her personally.
3.Miss Dawson was admitted to Joondanna Nursing Home on the 25th day of July 1985 because she could no longer manage in the hostel. A note in the nursing home notes in July 1989 states that Miss Dawson 'remains disoriented and confused'.
4.I am not in a position to give an absolute opinion as to whether or not Miss Dawson had testamentary capacity on the 20th day of February 1990. However, based on the appearance of Miss Dawson's signature on the will and having examined the staff notes of Joondanna Hostel contemporaneous with her making her last will which state that she was no longer able to attend to he daily needs, there is reason to believe that Miss Dawson was suffering from a dementing illness and I would have doubts as to her overall ability to have had testamentary capacity at that time."
Let me turn now to the affidavit of the hostel supervisor, Barbara Dunwoodie. According to this deponent says she cannot say whether the deceased understood the Will as she suffered from dementia to some degree, exhibited sign of memory loss and was often vague. It is desirable that these observations be placed in context and for that reason I will refer to the material parts of the affidavit of Barbara Evelyn Dunwoodie. It reads as follows:
"1.I am informed that the abovenamed MABEL GERTRUDE DAWSON ('Miss Dawson'), died on 7 March 1998 having made and duly executed her last will and testament bearing date the 20 February 1990, a photographic copy of which is annexed hereto and marked 'A'.
2.I had contact with Miss Dawson over a period of approximately fifteen years through the Churches of Christ Homes, initially while she resided in the self care units and later in the nursing home.
3.Miss Dawson was well known by both the residents and staff of the village. It was known that Miss Dawson had no living next‑of‑kin, her only sister having died, and she was very much considered a part of the family at the Churches of Christ Homes.
4.It became evident that she wasn't coping on her own in the self care village whereupon she was moved into the nursing home.
5.A bank account passbook was located and it was noted that it had not been accessed for many years. As a result of this it was realised that Miss Dawson did not have a will. The matter was discussed with many of the staff of the Churches of Christ Homes and it was decided that it was in Miss Dawson's best interests to have a will and knowing her as well as we did we decided that she would likely wish to leave her estate to the Churches of Christ Homes where she had lived for many years rather that [sic] leave her estate to the State. She was a missionary herself and I believe she often made donations to the Churches of Christ Missions.
6.The matter of the will and its contents was then discussed with Miss Dawson and she agreed that she wanted to leave her estate to those that she considered her 'family' and the place that she lived. The will was read to Miss Dawson and she indicated both verbally and by her manner that she was happy with the contents of her will.
7.I cannot say how well Miss Dawson understood her will as she was suffering from dementia to some degree. She exhibited signs of memory loss and was often vague. I did feel, however, that we had made the best decision on her behalf."
I pause here to make certain observations about this affidavit. First, the assertion in par 5 that it was assumed Ms Dawson did not have a Will is of course a matter to be corrected in light of the other unequivocal evidence that the deceased did indeed have a prior Will being the 1969 Will I have referred to which was executed by the deceased on 3 April 1969.
Second, I have little doubt that all the matters described by Barbara Dunwoodie in her affidavit were steps undertaken in a spirit of goodwill and in a belief that the execution of a further Will was desirable and necessary in the circumstances. Nonetheless, there are indications in the affidavit that the execution of the 1990 Will was undertaken in circumstances which raise doubts as to whether it can be regarded as the uncomplicated expression of the deceased's testamentary wishes. This is perhaps indicated most succinctly in the final sentence of the affidavit in which reference is made to what was done being the best decision on the deceased's behalf.
One finds in that passage a suggestion that others contributed to and had some influence upon the decision to make a Will and the matters addressed by that Will. I must emphasise again that I do not impute any improper motives in that regard, but the fact remains that there is a query of the kind I have just described. That must be allowed for in dealing with the issues before me.
It follows from all of this that there is evidence before me that the deceased did not have testamentary capacity when she made the 1990 Will and there is a query as to whether the 1990 Will can be regarded as an exact expression of her wishes.
The principles I mentioned earlier indicate that the onus of proof lies on the person who would benefit from a Will being valid. It follows that in the circumstances of the present case the onus of proof as to whether the 1990 Will can be characterised as valid lies on the defendant.
It emerges from earlier discussion that the defendant, although represented by a firm of solicitors, has chosen not to present evidence and has not sought to discharge the onus I have mentioned. The defendant does not argue or contend for the validity of the 1990 Will and has not applied for proof of it.
Indeed, as I have indicated, the defendant has filed a notice by its solicitors that the defendant will abide by the decision of this Honourable Court. Put shortly, neither the executor nor the beneficiary of the 1990 Will seek to prove that Will.
There is evidence before me pointing to a lack of testamentary capacity on the part of the deceased at the time the 1990 Will was executed. This leads me to the conclusion, having regard to the legal principles mentioned earlier, that there is sufficient evidence before the Court to enable me to make a finding that the Will made in 1969 is valid and the Will made in 1990 is invalid.
The death certificate and the opinion of Dr Winterton point to such a conclusion. There is no persuasive evidence to the contrary. The medical opinion and the surrounding circumstances taken as a whole permit me to infer that there was a lack of testamentary capacity when the 1990 Will was executed.
It follows that I am prepared to make orders in the terms sought in the prayer for relief on the writ of summons. Orders will be made that the Court pronounce the force and validity of the Will dated 3 April 1969 in solemn form of law. The Court will pronounce against the force and validity of the alleged Will dated 20 February 1990.
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