The Public Trustee in and for the State of Western Australia v Ferguson - [2006] WASC 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THE PUBLIC TRUSTEE in and for THE STATE OF WESTERN AUSTRALIA -v- FERGUSON & ORS [2006] WASC 180

CORAM: MURRAY J

HEARD: 8 AUGUST 2006

DELIVERED : 8 AUGUST 2006

FILE NO/S: CIV 1234 of 2003

BETWEEN: THE PUBLIC TRUSTEE in and for THE STATE OF WESTERN AUSTRALIA
Plaintiff
AND
LINDSAY TERRENCE FERGUSON
First Defendant
AUSTRALASIAN CONFERENCE ASSOCIATION LIMITED
Second Defendant
CAROLINE SONTER
MERELYN JANET TRIGWELL
LAUREL CURNUCK
HELEN OLIVER
PUBLIC TRUSTEE OF SOUTH AUSTRALIA as Administrator for GRACE FERGUSON, HEATHER RALPH and LINDSAY TERRENCE FERGUSON
Third Defendants

Catchwords:

Wills - Testamentary capacity - Application to prove Will in solemn form - Turns on own facts

Legislation:

Nil

Result:

Declaration of validity of Will

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendants          :     No appearance

Solicitors:

Plaintiff:     Public Trustee
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendants          :     No appearance

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

Banks v Goodfellow (1870) LR 5 QB 549
In the Will of Wilson (1897) 23 VLR 197
Public Trustee v Stretch [2002] WASC 147

Case(s) also cited:

Bull v Fulton (1942) 66 CLR 295
Worth v Clasohm (1952) 86 CLR 439
Bailey v Bailey (1924) 34 CLR 558
Levy (Dec) (No 2), In re [1957] VR 662
Wheatley v Edgar [2003] WASC 118

MURRAY J: This is an action brought by the Public Trustee which may be sufficiently described as an action to cause the Court to pronounce for the validity of a particular Will in solemn form, and if that should occur, that is a Will which would overtake and revoke an earlier Will.
The facts may be briefly recounted sufficient for present purposes. The deceased, a Mrs Ferguson, died on 20 June 2000, and she left what has been described as a relatively small estate. She was a widowed lady and was 82 years of age at the date of her death. Relatively shortly before she died she made and executed a Will which bears the date 23 November 1999.
As to its due execution, there is before the Court an affidavit, which I accept, made by one of the two witnesses to the Will, a Mr Roy Maxwell, that affidavit having been sworn on 22 March 2001. Mr Maxwell describes the process of the execution of the Will.
He was a friend of the deceased and he and his wife were to be the witnesses to the process of execution of the Will. The Will was prepared and brought to the three people, the deceased and the two persons who were to be witnesses, Mr Maxwell and his wife, by Pastor Ian Royce, a minister of the Seventh‑Day Adventist Church. I shall return to the significance of that. It is perfectly apparent, when one observes the Will and reads the account of its execution given on oath by Mr Maxwell, that it was executed in a way which provides its formal validity, subject to the question of testamentary capacity which the proceedings require to be addressed.
That Will, as I say, revoked an earlier Will. The earlier Will was executed on 23 November 1987. Whereas the plaintiff is the nominated executor of the second Will of 1999, the sole executor of the 1987 Will was the first defendant, Mr Lindsay Ferguson. He is a son of the deceased. The third defendants are all seven of her children, subject to the fact that one of the third defendants is the Public Trustee of South Australia, the administrator of the estate of one of the deceased's daughters, her name being Grace Ferguson. The second defendant is a principal beneficiary under the Will, the Australasian Conference Association.
The Court accepts in evidence the affidavit of Mr Ian Royce, who, as I have said, is a minister of the Seventh‑Day Adventist Church. His affidavit bears the date 27 March 2001. As I have indicated, he was involved in the preparation of the Will for the deceased, who was not only a parishioner but a friend whom he had known for about 12 years. It was at her request that he visited her on 17 November 1999, a mere six days prior to the execution of the Will, and took her instructions for the preparation of the Will.
There was discussion about who the executor should be and the decision was taken that it should be the Public Trustee. That decision was taken for logical family reasons. After the Will had been prepared, Mr Royce contacted Mrs Ferguson to arrange for its execution and it was she who organised the attendance of the two persons, Mr Maxwell and his wife, who were to be the witnesses to the execution of the Will.
During the course of the contact there had been between Mr Royce and the deceased, she had said that she was aware that there were those in the family who were concerned that she was not competent to make the Will. For that reason, she consciously chose witnesses she believed would have integrity and standing in the community and I have discussed the affidavit provided by Mr Maxwell as to the process which was actually adopted.
Mr Royce's affidavit contains the statement that the process of execution involved Mrs Ferguson reading the Will and Mr Royce explaining each clause of it. As that process continued he said she appeared to him to clearly understand the contents, and it is clear from Mr Royce's affidavit that there was discussion about her satisfaction with some of the provisions of the Will.
In particular, she expressed satisfaction that she had been able to provide not only for her children, but for the charitable organisation connected with her church, the second defendant. She had a history which made that significant. It is, it would seem, an organisation which works among the peoples of the islands of the South Pacific, and Mrs Ferguson and her late husband had been missionaries in the area and had a continuing interest in providing financial contributions to church and welfare operations in that area.
Mr Royce's affidavit concludes with the expression of the opinion, which is admissible in such matters, that it seemed to him that Mrs Ferguson understood the nature of her assets; that she knew how she wanted to distribute those assets after her death, and was aware that the preparation of her Will was the process by which that distribution after her death would take place.
Mr Royce says that he is of the view that the decisions she made were consciously made and rationally made and she was not under any duress in so doing. Those are matters which, as will soon appear, are those which commonly need to be addressed by the Court in determining whether it is open to the Court to pronounce for the Will in solemn form.
The other significant evidence before the Court is in the form of an affidavit by Dr Nikellys, a local medical practitioner, who was the deceased's general practitioner. He saw her regularly four or six times a year. He gives the start of their relationship with some precision as 19 October 1981, and the last occasion upon which he saw her prior to her death on 20 June 2000 was 31 May 2000.
During that period, indeed in 1998, Mrs Ferguson had been involved in a motor vehicle accident and there was some concern about her competence, mentally, to drive. Dr Nikellys undertook a test, a mental score test, which satisfied him that her cognitive skills and her abilities were quite sufficient for her to be regarded as competent to drive, but soon after that she suffered a stroke. She was hospitalised between 22 November and 31 December 1998 and there were apparent, as a result of the stroke, multiple ischaemic infarcts in the brain.
A diagnosis of chronic dementia was raised but it seems to me, having regard to the terms of Dr Nikellys' affidavit, that it was not confirmed, because subsequently two tests, two months apart, were conducted to measure her mental capacity and on those occasions she scored first 24 out of 30 and then 26 out of 30. The second score she achieved on 19 July 1999, four months prior to her execution of the Will.
Dr Nikellys explains that the particular examination is one in which a score of 0‑7 would suggest dementia; 8‑23 would suggest brain dysfunction; and a score of 24‑30 would be suggestive of an absence of any dysfunction of the brain. It is apparent therefore that even shortly after the stroke that she suffered which caused her hospitalisation the test suggested that she had suffered no permanent dysfunction.
In addition, the doctor says that in his opinion the cause for the concern immediately after the stroke was her disorientation and reduced functioning as an immediate consequence of the stroke. It had the appearance of dementia, but that was not proved to be the case. She recovered over time and, in particular after six months following her injury, Dr Nikellys says her memory and capacity to understand her environment markedly improved.
Dr Nikellys is able to speak, and does in his affidavit, of her state from his own observations and his knowledge of her and expresses the opinion that she had the necessary capacity required to execute her Will in November 1999, that she would have been sufficiently oriented and would understand the details put before her and she would certainly, he thinks, have understood the nature of the Will, be aware of the extent of her assets, and would have had the capacity to comprehend and appreciate the claims of those for whom she ought to provide.
As I say, that is an opinion which is admissible in proceedings of this kind, particularly given by a medical practitioner who has personal knowledge of the patient and can speak of his own understanding and from his own contact with her. In addition, his opinion has the support of confirmatory testing in the manner in which I have described.
Mr Jones has put before the Court submissions which refer to a number of the decided cases. If he will forgive me for quoting myself, I think I might content myself with one citation, the case of the Public Trustee v Stretch[2002] WASC 147, a decision I gave in a case of this kind, and in particular at [7] ‑ [15] of the reasons given in that case, I discuss the legal concepts involved and the matters which the Court must address when it is asked to pronounce upon a Will in solemn form. I commence there by referring to what I describe as the classical exposition of the common law in relation to testamentary capacity, that of Cockburn CJ giving the judgment of the Court in Banks v Goodfellow (1870) LR 5 QB 549 at 565. In the judgment in Stretch I quote the restatement of the law by Hood J in In the Will of Wilson (1897) 23 VLR 197 at 199 and I go on to add that what the Court is concerned with is testamentary capacity and the concept, it should be recalled, is capacity rather than the exercise of it.
The question is whether the testator had the capacity of sound judgment rather than that he or she in fact made a judgment about the disposition of the estate by a Will soundly and for reasons which might appear to the observer to be good, but there is no problem of that kind raised in this case. There is no demonstration in the evidence before me of anything other than sensible and sound decision‑making on the part of the testator.
The important part of it is that the testator needs to be able to understand the general nature and effect of the testamentary act, and I have no doubt that Mrs Ferguson had the necessary understanding in this case.
Indeed, she understood not only that this was to be a disposition of her estate upon her death, but she understood what the general nature of her property was and had the capacity to make and did make a rational decision about to whom the benefit of the distribution of the estate should be provided. The Will is validly made on its face. It is supported by what I regard as direct evidence of testamentary capacity and there is little to put against it except the expressions of concern arising out of what seemed to me to be able to be established to be no more than the sequelae immediately following the stroke which caused her hospitalisation some months before the execution of the Will. I am satisfied that to the extent that that might have been regarded as interfering with testamentary capacity the cause for that concern was gone by the time this Will was executed in November 1999.
The legal onus of establishing testamentary capacity which falls on the plaintiff as the proponent of the Will has in my opinion been discharged. I am therefore prepared to make the orders set out in the minute in these terms: the Court pronounces in solemn form for the force and validity of the Will of 23 November 1999 made by Mrs Phyllis Nellie Elsie Ferguson. There shall be a grant of probate to the plaintiff and the costs of these proceedings, necessarily brought in my opinion, are to be paid out of the estate.