The Public Trustee v Hinkley
[2007] WASC 271
•24 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE PUBLIC TRUSTEE -v- HINKLEY [2007] WASC 271
CORAM: McKECHNIE J
HEARD: 24 OCTOBER 2007
DELIVERED : 24 OCTOBER 2007
FILE NO/S: CIV 2068 of 2006
MATTER :Will and Estate of FLORENCE BEATRICE HINKLEY (dec)
BETWEEN: THE PUBLIC TRUSTEE as Executor of the Estate of FLORENCE BEATRICE HINKLEY
Plaintiff
AND
WILLIAM WILFRED HINKLEY
EUGENE ROSSLYN HINKLEY
RONALD JAMES HINKLEY
LEONARD ROY HINKLEY
REGINALD ROBERT HINKLEY
REUBEN EDWARD HINKLEY
WALTER DAVID HINKLEY
FLORENCE LEAH JOYCE MCKENZIE
RHONDA DOROTHY JEAN HINKLEY
MARLENE BEATRICE MAY HINKLEY
Defendants
Catchwords:
Wills and probate - Testatrix suffering from dementia - Whether lacking in testamentary capacity - Turns on own facts
Legislation:
Nil
Result:
Pronouncement for force and validity of will
Category: B
Representation:
Counsel:
Plaintiff: Mr D L Jones
Defendants: No appearance
Solicitors:
Plaintiff: Public Trustee (WA)
Defendants: No appearance
Case(s) referred to in judgment(s):
Roebuck v Smoje [2000] WASC 312
McKECHNIE J: Florence Beatrice Hinkley was nearly 84 when she died on 28 July 2005. On 13 February 1996 she had attended the Bunbury Courthouse and given instructions for a simple will which was subsequently prepared for her by the Public Trustee and executed on 8 March 1996. The Public Trustee seeks an order that the court pronounce for the force and validity of the will in solemn form.
The issue
The issue is the testamentary capacity of the deceased to make the will in 1996. This arises because of a telephone call to the Public Trustee from one of the deceased's nine children indicating doubts about her testamentary capacity. The Public Trustee has received a number of medical reports which have been put into affidavit form and which form part of the evidence in this case.
The medical evidence
Dr Klimaitis
Dr Klimaitis is a consulting physician who saw the deceased on one occasion in March 1995 when she had come from her home in Narembeen to Perth for surgery. He performed a mini mental state examination and the deceased scored 22 over 30. This is within the dementia range. Dr Klimaitis was a little surprised that she scored as well as she did given her history and observed behaviour during interview. In 1995 he was of opinion that she was 'clearly incompetent at managing her financial affairs'. He concluded that there was little doubt that Mrs Hinkley was suffering from dementia on 8 March 1996 when she made the March 1996 will. He was also of the view that there was reasonable evidence she was suffering from dementia in July 1994, the date of an earlier will. In his opinion, the deceased did not have testamentary capacity at the time of the March 1996 will. I recognise that is a question for me but, nevertheless, his opinion is useful in forming my judgment.
Dr Goldswain
Dr Goldswain is a clinical associate professor and physician at Royal Perth Hospital, Department of Geriatric Medicine. He saw the deceased at the Narembeen Hostel on 18 April 1997; that is one year after the execution of the will. The deceased was suffering from dementia. In his opinion:
It is very difficult to confirm whether at the time she signed the 1996 will Mrs Hinkley would have understood the nature of the will, would have been aware of the extent of her assets, and would have had the capacity to comprehend and appreciate the claim for those for whom she ought to provide.
Both Dr Klimaitis and Dr Goldswain saw the deceased at around about the time of the will.
Dr Lines
Dr Lines is a general practitioner in Narembeen who looked after the deceased from March 2001 until her death. He did not know her when she made the will but perused records from her general practitioner and records of the Health Department. In summary, Dr Lines is of the opinion 'it would seem that Mrs Hinkley was not capable of making the 1996 will'.
Dr Poh‑Kooi Loh
Dr Loh is a consultant physician in geriatric medicine who saw Mrs Hinkley on 31 March 2003 for a one‑off assessment. Dr Loh's opinion is based on what was documented by Dr Klimaitis at the earlier visit and pointed out that there is a difference between not being able to manage her financial affairs and having the capacity to make decisions for the 1996 will.
14.At the time Mrs Hinkley signed the 1996 will it is unlikely that she would have been able to comprehend and appreciate the financial implications of distributing her assets. However, this does not mean that she was not able to indicate who should inherit her assets. There is a possibility that she might have been able to indicate who should inherit her assets. However, based on the letter by Dr Klimaitis, she was just unable to appreciate the financial implications of how much she should give and how it should be received by those she was going to be providing for.
15.In the 1996 will there are no complicated financial manipulations or complicated formulas for distribution of Mrs Hinkley's assets. She has simply stated that all her children will receive equal sums of her estate after expenses. It is very possible that although she was not able to manage her own financial affairs she would be able to indicate that her property should be equally divided amongst all her loved ones.
The non‑medical evidence
Mr Crawford is now retired but was employed in the Public Trust Office and although he has no independent recollection of the matter he was the person who took instructions from the deceased for her will, noting her instructions. It was his standard procedure to assess, as best he could, a person's testamentary capacity. He refused to make a will for a person he considered did not exhibit a sound mind, memory or understanding. If uncertain that the person had the requisite capacity, he requested a medical certificate from the person's medical practitioner. There is no evidence on the file of any such query and he had no reason to doubt that the deceased was of sound mind, memory and understanding and had the required testamentary capacity to understand and approve the contents of the will.
The will itself
The deceased executed two wills. The first will was executed on 24 July 1994. It left the estate to be divided evenly to all of her children, except for Ronald James Hinkley whose name was crossed out. The subsequent will, that under consideration now, included Ronald James Hinkley with all the other children for equal distribution, after the bequest of a signet ring to her grandson, and articles of personal use, including jewellery, to three of the nine children, the balance to be divided equally among the children.
It is, I think, of some significance that both in the 1994 will and the 1996 will, Mrs Hinkley was sufficiently alive to what she was doing to make specific provision of the signet ring to her grandson, it obviously having some special significance to her.
The estate is a modest estate of some $43,000 and there is nothing about the will itself which raises suspicions concerning testamentary capacity; indeed, one might be permitted to say it is a fairly standard will that might be expected of a lady in advancing years to have made.
Findings
I make the following findings:
•On the balance of probabilities at the time that the deceased gave instructions for the 1996 will, she was suffering from dementia. Dementia is a global decline in brain function. In the case of the deceased she was not able to function well in the community.
•When the deceased attended to give instructions for the will, her general demeanour did not raise questions in an experienced wills officer as to her capacity to understand what she was doing.
•The will itself is a sensible disposition which generally, though not entirely, is consistent with the disposition provided for in the 1994 will at a time when she was also probably suffering from dementia.
There is, in summary, medical evidence which points to a lack of testamentary capacity generally. There is evidence of a known medical condition and there are the contents of the will itself to suggest that at the time she gave instructions for the will, shortly before its execution, notwithstanding the medical condition, the deceased understood what she was doing - that is, making a will - and understood the nature of her dispositions and that they were of her property.
The legal principles are comprehensively discussed in Roebuck v Smoje [2000] WASC 312 per Hasluck J, [85] ‑ [104]. It is not necessary to repeat them. When a will is executed and attested in a normal manner the presumption arises that the testator had mental capacity at the time the will was made. As against that presumption, clearly the medical evidence in this case is sufficient to excite a suspicion that the deceased lacked testamentary capacity. I have carefully reviewed the evidence and reached the conclusion that while doubts remain, on balance, I consider that, at the time she gave instructions and subsequently executed the will, the deceased had testamentary capacity.
I therefore pronounce for the force and validity of the will of Florence Beatrice Hinkley dated 8 March 1996.
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