The Public Trustee of Western Australia v Poole
[2008] WASC 55
•9 APRIL 2008
THE PUBLIC TRUSTEE OF WESTERN AUSTRALIA -v- POOLE [2008] WASC 55
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 55 | |
| 18/04/2008 | |||
| Case No: | CIV:1013/2007 | 9 APRIL 2008 | |
| Coram: | BEECH J | 9/04/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRUSTEE OF WESTERN AUSTRALIA CEDRIC POOLE GAYL BEISSEL ALAN WILLIAM DUNCAN as Administrator of Estate of WILLIAM JAMES DUNCAN JULIE ANNE MILLS CHARLES BARRINGTON WEBB |
Catchwords: | Wills and probate Application for grant of probate of will Testamentary capacity Turns on own facts |
Legislation: | Nil |
Case References: | Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Timbury v Coffee (1941) 66 CLR 277 West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144 Wheatley v Edgar [2003] WASC 118 Worth v Clasohm (1952) 86 CLR 439 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CEDRIC POOLE
First-named First Defendant
GAYL BEISSEL
Second-named First Defendant
ALAN WILLIAM DUNCAN as Administrator of Estate of WILLIAM JAMES DUNCAN
Third-named First Defendant
JULIE ANNE MILLS
Second Defendant
CHARLES BARRINGTON WEBB
Third Defendant
(Page 2)
Catchwords:
Wills and probate - Application for grant of probate of will - Testamentary capacity - Turns on own facts
Legislation:
Nil
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff : Mr D L Jones
First-named First Defendant : Ms A Plaisted
Second-named First Defendant : Ms A Plaisted
Third-named First Defendant : Ms A Plaisted
Second Defendant : Mr R I Fletcher
Third Defendant : Mr R I Fletcher
Solicitors:
Plaintiff : Public Trustee (WA)
First-named First Defendant : Stables Scott
Second-named First Defendant : Stables Scott
Third-named First Defendant : Stables Scott
Second Defendant : Butlers
Third Defendant : Butlers
(Page 3)
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Timbury v Coffee (1941) 66 CLR 277
West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439
(Page 4)
- BEECH J:
Introduction
1 The plaintiff applies for orders that the court pronounce for the force and validity of a will (the 2001 Will) executed by the late Rose Elaine Webb (the testatrix) on 4 April 2001.
2 The testatrix died on 27 November 2005 at St Andrew's Nursing Home at 20 Burwood Road, Balcatta.
3 The plaintiff is appointed as the executor under the 2001 Will. The first defendants are the beneficiaries of the estate under the 2001 Will.
4 The testatrix made an earlier will on 28 November 1997 (the 1997 Will). By this earlier will, the testatrix gave the whole of her estate to her husband, Charles Harry Webb, if he survived her. If he did not survive her, the testatrix gave her estate to her stepdaughter, who is the second defendant, and her stepson, the third defendant, in equal shares.
Procedural History
5 The plaintiff applied for a non-contentious grant of probate in respect of the 2001 Will. Because there was some medical evidence giving rise to doubt as to the testamentary capacity of the testatrix when she executed the 2001 Will, the Probate Registry of the court considered that the application was inappropriate to be the subject of a non-contentious grant.
6 The plaintiff then commenced these proceedings seeking an order that the court pronounce for the force and validity of the 2001 Will and that there be a grant of probate in solemn form to the plaintiff of the 2001 Will. Alternatively, the plaintiff sought corresponding orders in respect of the 1997 Will.
7 The proceedings were the subject of a mediation by this court at which the defendants were able to agree as to the distribution of the estate. The defendants appear by counsel but do not make any submissions in relation to the question of the grant of probate of the 2001 Will as against the 1997 Will.
8 Because the plaintiff seeks a grant of probate in solemn form, the court must be satisfied on the evidence adduced by the propounding party of the formal validity of the will and of the testamentary capacity of the testatrix. In the latter respect, the propounding party may rely upon the
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- presumption arising from due execution. The principles were explained by Heenan J in Wheatley v Edgar [2003] WASC 118 [24].
9 I am satisfied that all the interested parties have been joined in this action; all beneficiaries under the two wills are defendants in the action.
Formal Matters
10 I am satisfied that the 2001 Will was executed in accordance with s 8 of the Wills Act 1970 (WA). In that regard I refer to the affidavit dated 7 April 2008 of Mr McKenzie, who was one of the attesting witnesses.
11 It is established by the evidence that the testatrix died on 27 November 2005, leaving property in Western Australia so that this Court has jurisdiction to grant probate of her estate.
12 That brings me to the issue of testamentary capacity.
Testamentary Capacity - Principles
13 For the testatrix to have had testamentary capacity, she must have had sufficient mental capacity to comprehend the nature of the act of making a will and its effects, to understand the extent and character of the property being dealt with, and to comprehend and appreciate the claims which naturally ought to press upon her in making her will. In order to understand these matters, the testatrix's mind must be free to act in a natural, regular and ordinary manner: Banks v Goodfellow (1870) LR 5 QB 549, 565; Timbury v Coffee (1941) 66 CLR 277, 283.
14 The onus of proof of testamentary capacity lies upon the propounder of the will: Bailey v Bailey (1924) 34 CLR 558, 570. Where a will has been executed and attested in a normal manner, a presumption arises that the testatrix had the required mental capacity: Bull v Fulton (1942) 66 CLR 295, 343, West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144, 146.
15 The presumption has a practical operation only in circumstances in which there is an absence of evidence respecting testamentary capacity. Once there is evidence which is 'sufficient to throw a doubt upon the testator's competency', then the onus of persuasion is on the proponent of the will: Bull v Fulton (343). The question then is whether on the whole of the evidence the plaintiff has discharged its onus as to the testator's capacity: Worth v Clasohm (1952) 86 CLR 439, 453.
(Page 6)
16 The court is entitled to have regard to the contents of the will in assessing the question of capacity: Bailey v Bailey (571).
Testamentary Capacity - the Evidence
17 The plaintiff has properly put before the Court an affidavit of Dr Ainslie Waddell sworn 20 July 2006. Dr Waddell is a medical practitioner who was consulted by the testatrix about three or four times a year from 1992 until she died. He estimates that he observed the first signs of Alzheimer's disease in the testatrix during 1997. He 'estimates' that from 'about 2001 - 2002' the testatrix had progressed to the stage that she was not capable of making reasonable decisions in relation to her personal health care, her living situation and her financial affairs.
18 Dr Waddell expressed the belief that at the time she signed the 2001 Will, the testatrix would probably not have understood the nature of a will, would probably not have been aware of the extent of her assets, and would probably not have had the capacity to comprehend and appreciate the claims of those for whom she ought to provide. He concluded that he did not think she had testamentary capacity 'from about 2001 - 2002'.
19 It is unclear from the affidavit of Dr Waddell whether and to what extent, in forming the opinion he expresses in his affidavit, he consulted his medical notes of specific consultations that he had had with the testatrix in the period shortly before April 2001. The references in Dr Waddell's affidavit to an estimate from 'about 2001 - 2002' would suggest that consultation with his medical notes did not occur. No other details as to the facts and reasoning underlying his opinion are given.
20 Notwithstanding the evidence of Dr Waddell, for the reasons which follow I am satisfied that the testatrix had testamentary capacity when she made the 2001 Will on 4 April 2001.
21 On 14 March 2001 the testatrix signed and sent a letter to Mr Richard Rule in the wills department of the Public Trustee. The letter enclosed a copy of her previous will, namely the 1997 Will, which, as the letter said, appointed the Public Trustee as her executor. The letter stated that she wished to change the terms of her will but would still like the Public Trustee to act as executor. The letter also stated that as she was unable to read the will for herself because of her deteriorating eyesight, a new signing clause would be needed in the new will.
22 The letter requested that once the will was prepared, an appointment be made for her to come into the office with her carer, Mrs Gayl Beissel
(Page 7)
- (the second-named first defendant), to sign the will. The letter stated that Mrs Beissel assists the testatrix with her correspondence.
23 The letter set out the testatrix's wishes as to her estate, saying that she wanted the whole of her estate to be divided equally between the following three persons: (a) William J Duncan, her brother, but if he predeceased her, then his share should go to his wife, Gwen, and their children; (b) Cedric Poole, her brother-in-law, but if he predeceased her, then his share should go to his children; (c) Gayl Beissel, her carer, but if she predeceased her, then her share should go to her children.
24 That letter came to the attention of Mr Jeffrey McKenzie, an officer at the office of the Public Trustee. He took advice from a manager as to what should then occur. He was advised to meet with the testatrix alone to see that there were no indications of undue influence and to ensure that her testamentary capacity was 'okay'.
25 Mr McKenzie prepared the will and met with the testatrix on 4 April 2001. He does not recall the meeting but he made a file note at the time. His file note records that her capacity was 'fine', that she was interviewed alone, and that the testatrix had no children.
26 The testatrix then signed the 2001 Will in the presence of Mr McKenzie and another witness, Ms Rana Hunter, also an employee of the Public Trustee. The attestation clause in the will is in terms that the will had previously been read over to the testatrix by Mr McKenzie, she having poor eyesight and being unable to read it, and that she 'seemed thoroughly to understand and approve the document'.
27 The first-named first defendant, Mr Cedric Poole, the brother-in-law of the testatrix, has also sworn an affidavit. He was in regular contact with his sister-in-law, seeing her at Rosemount Retirement Centre (the previous residence of the testatrix) every week. The testatrix moved from the Rosemount Retirement Centre to St Andrew's Nursing Home in or about December 2001. Mr Poole believes that the testatrix was mentally capable at the time she entered St Andrew's in December 2001, and that thereafter she gradually deteriorated.
28 Mrs Beissel's evidence is consistent with that view. She says in her affidavit that at the time of executing the 2001 Will the testatrix had difficulty with reading, but was coherent and able to understand everything said to her.
(Page 8)
29 In December 2001, at the suggestion of the caretaker at Rosemount, the testatrix moved to St Andrew's. Mrs Beissel says that it was in the six to 12 months after the testatrix moved to St Andrew's that she observed a significant deterioration in the testatrix's condition.
Testamentary Capacity - Conclusions
30 In summary, those in regular contact with the testatrix say that it was after she moved into St Andrew's at the end of 2001 that the significant deterioration in the testatrix's condition occurred. The medical evidence of Dr Waddell is in general terms and does not identify any particular consultations prior to April 2001 as the foundation for the opinion he expressed. The evidence of Mr McKenzie was to the effect that he took steps to identify the testatrix's testamentary capacity before witnessing her will on 4 April 2001.
31 I also have regard to the contents of the will. The will was in simple terms. It left the estate in equal shares to three people; her brother, her brother-in-law, and a long-time friend and carer. The 1997 Will had left the whole of her estate to her husband. He had died before the 2001 Will was prepared and executed. The testatrix had no children. Those who benefit under the 2001 Will are not, on the evidence before me, surprising. There are no obvious and surprising omissions from those who benefit.
32 On the whole of the evidence, I am satisfied that as at 4 April 2001 the testatrix had testamentary capacity.
Conclusion
33 For these reasons, I would pronounce for the force and validity of the 2001 Will. I will hear counsel as to the precise form of orders.
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