Thornhill v Thomas

[2010] WASC 297

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   THORNHILL -v- THOMAS [2010] WASC 297

CORAM:   EM HEENAN J

HEARD:   12 OCTOBER 2010

DELIVERED          :   12 OCTOBER 2010

PUBLISHED           :  27 OCTOBER 2010

FILE NO/S:   CIV 1144 of 2009

MATTER                :The Will of Maria Monika Hillbrick late of Annie Bryson McKeown Lodge, Angove Road, Albany, Home Duties, Deceased

BETWEEN:   MURRAY NOEL THORNHILL

First Plaintiff

SIMON ELWYN CREEK
Second Plaintiff

AND

IRIS THOMAS
Defendant

Catchwords:

Probate - Proof of will in solemn form - Subsequent will made by deceased during a period of incapacity - Grant of probate in solemn form of earlier will

Legislation:

Administration Act 1903 (WA), s 7
Wills Act 1970 (WA)

Result:

Order for grant of probate of will of the deceased dated 2 April 2004

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr D L Jones

Second Plaintiff            :     Mr D L Jones

Defendant:     No appearance

Solicitors:

First Plaintiff                :     Hudson Henning & Goodman

Second Plaintiff            :     Hudson Henning & Goodman

Defendant:     No appearance

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

In Re Levy (No 2) [1957] VR 662

In the Estate of the Late Leo Rene Raig [2006] ACTSC 96

Re Grey Smith (decd) [1978] VR 596

Wheatley v Edgar [2003] WASC 118

1. EM HEENAN J:  This is an action seeking a grant of probate in solemn form of law of the will dated 2 April 2004 of Mrs Maria Monika Hillbrick (dec), who died on 12 September 2007.

2. The will of the deceased dated 2 April 2004 appears to have been regularly made and executed and has been prepared by the Albany Community Legal Centre in conventional form.  By that document the deceased appointed each of the persons practising as partners of the firm of solicitors of Hudson Henning & Goodman of Albany to be her executors and trustees.

3. After directing the payment of just debts, funeral and testamentary expenses provided for a series of personal bequests for small items of her jewellery and other personal property to friends and relatives, some of whom were living in Germany, where the deceased had been born.  Her major asset was an entitlement to a deposit at the retirement village where she had been living and Mrs Hillbrick provided that two‑thirds of that entitlement should be paid to a named beneficiary and that the residue of her estate should then be distributed among four named beneficiaries, including the person to whom two‑thirds of the retirement home deposit had been left.  The will included a reference to the fact that the deceased had omitted any provision for her daughter from whom the deceased had then been alienated for 25 years. 

4. The plaintiffs in this action were the persons who are the partners in the firm of solicitors, Hudson Henning & Goodman, at the date of death.  The affidavit in support of the application for probate includes a statement of assets and liabilities showing that the deceased left movable property situated in the State of Western Australia to the value of a little over $104,000, comprising principally of bank or deposit accounts and a small amount of furniture and jewellery, plus the accommodation bond already mentioned.  There is no immovable property listed and the deceased left no liabilities. 

5. The evidence also establishes that the deceased was over the age of 18 years, having been born on 13 October 1914, and had not been married or had a marriage dissolved since the date of execution of the will propounded.  The will was duly executed in the presence of two named witnesses and Mr Thornhill has sworn that if he were granted probate he would administer the estate according to law.

6. The death certificate shows that Maria Monika Hillbrick, late of Annie Bryson McKeown Lodge, Angove Road, Albany in the State of Western Australia died on 12 September 2007 and that the cause of death was a cardiac respiratory arrest (the pathology of which was of some months' duration), frailty (again of some months' duration) and dementia.

7. She had been born on 13 October 1914 in Hannesreud, Germany and had married in 1937 to one Anton Pilz at Sulzbach, Rosenberg, Germany.  She had married again on 15 May 1976 to Osborne Duncan Hillbrick in Perth in the State of Western Australia and her second husband pre‑deceased her.  The evidence satisfies me that the person named in the death certificate is one and the same as the testator of the will being propounded dated 2 April 2004 in which she is described as living at unit 9, Glenn-Craig Village, Beaufort Road, Albany in the State of Western Australia, widow.

8. Although this action has been brought by the two named plaintiffs, as I have said, both partners in the firm of solicitors named in the will at the date of death, only the first‑named plaintiff, Mr Murray Noel Thornhill, has sworn an affidavit in support of the application by which he says that he is seeking to prove the will of the deceased and by which he swears that if he obtains probate he will administer the estate according to law.  There is no such affidavit from the second‑named plaintiff, Mr Simon Elwyn Creek, nor any evidence from him that he is seeking to obtain probate or that he would administer the estate according to law if granted probate jointly with Mr Thornhill, notwithstanding that, as already said, he is a co‑plaintiff in the proceedings. 

9. While there is no reason to infer that Mr Creek is not eligible to be granted probate jointly with Mr Thornhill, or by himself should he be the sole applicant, or any doubt about his capacity to administer the estate, it is evident that in the absence of sworn evidence from him expressing a desire to obtain probate and a willingness to administer the estate according to law, no grant should be made to him at present.  The evidence is that, at the date of death, there were two partners in the firm of solicitors named in the will and I must, therefore, treat the present application as being an application for a grant by one of those two.  In the circumstances, it appears to me that if I am satisfied that there should be a grant of probate of this will then it should be made to Mr Thornhill alone but with liberty reserved to Mr Creek to come in and prove later should he ever wish to do so ‑ Administration Act 1903 (WA) s 7, which enables the court to make a grant to one or more of the executors named in any will, reserving leave to the other, who has not renounced, to come in and apply.

Later testamentary script

1. The need for these contentious form proceedings arises because there is a later testamentary document of Mrs Hillbrick in existence, an apparent will, undated but thought to have been prepared and signed some time in 2007.  A copy of that later will is annexed to the affidavit of scripts of the defendant, Mrs Iris Thomas, sworn 8 June 2010 by which the defendant deposes that the original of that will is in her possession and held by her solicitors, David Moss & Co, at Albany.  By that document, the deceased purported to revoke all previous wills and testamentary acts and declared that document to be her last will and testament.  By it, she appointed the defendant, Mrs Iris Thomas, to be her executor and trustee; directed that her body should be cremated; expressed wishes about having a simple funeral; provided for gifts of her pearl and opal rings to her relatives in Germany (unnamed); and concluded with a residuary bequest of the entire estate to the defendant. 

2. The will is in typewritten form and bearing the name of the solicitors acting for the plaintiffs but its contents, while specific and adequate, are unusually abbreviated.  The provisions of the will extend over two typewritten pages, the second of which contains provision for the date of the document, the usual execution and attestation clause by the testator followed by provisions for witnesses to sign.  Only the first page of the document is signed and witnessed, that is by the testatrix and two witnesses whose addresses are not given and whose full names are not apparent.  The signature of the testatrix is almost unrecognisable and is little more than a spidery scrawl, obviously written by a very shaky, aged hand.  So far as concerns legibility and form, that signature is vastly inferior to the signature of the testatrix on the will of 2 April 2004 which is being propounded in this action. 

3. Although the defendant is the sole executor and sole residuary beneficiary of the estate of the deceased under this later will, she has made no attempt to prove that will.  The plaintiffs have lodged a caveat in the Probate Registry dated 9 October 2008 claiming an interest as executors under the will of 2 April 2004 demanding that the alleged informal will of 2007 should not be propounded in common form without notice to them.  That caveat still stands, no attempts having been made by the defendant or any other to remove it, but it is, of course, not an impediment to a grant of probate of the will now being propounded.

4. The writ of summons in this action was served upon the defendant, Mrs Iris Thomas, who by her solicitors entered an appearance in the action on 19 February 2009.  However, no defence to the action was filed by the defendant nor have other proceedings been commenced by her in an attempt to propound the later alleged will.   Nevertheless, by her solicitors the defendant filed an affidavit of scripts which included a copy of the later will as previously described. 

5. Then on 24 June 2010 orders were made by the consent of the plaintiffs and the defendant that subject to the discretion of the trial judge the evidence at the trial should be by affidavit and that the action should proceed on an undefended basis.  I am satisfied, therefore, that the defendant has had notice of these proceedings, has had an opportunity to defend, but has decided against defending the action or seeking to propound the apparent 2007 will.  The submissions for the plaintiffs at the trial were that the later will was made at a time when, because of advanced age and deteriorating health, the deceased was not of sufficient mental capacity to make a valid will.  However, no evidence, medical or otherwise, has been advanced to attempt to establish any such proposition nor, for reasons which I will now address, is it necessary that that be attempted.

6. As set out in my reasons in the recent case of Hoare v Reyburn [2010] WASC 301, the plaintiffs are under no duty to establish that some testamentary document, subsequent in date to the will being propounded, was invalid or of no effect. It was established by Murphy J in Re Grey Smith (decd) [1978] VR 596 that the onus of proving the validity of a later will in circumstances similar to this case rests on any person seeking to propound it. Scholl J observed, in In Re Levy (No 2) [1957] VR 662 that it is not the duty of the court to make its own investigation of all the facts when an application is made for a grant of probate in solemn form. An executor seeking to propound a testamentary document for a grant of proof or other representation is under no duty to put forward an instrument if he or she is satisfied that it ought not to be put forward. I also refer to these authorities in Wheatley v Edgar [2003] WASC 118 observing, at [24] that in this regard the propounder of the will 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 understanding ‑ see also In the Estate of the Late Leo Rene Raig [2006] ACTSC 96. In the headnote to Re Grey Smith the observations of Murphy J are accurately summarised as:

   Where the executors establish circumstances giving rise to a well‑founded suspicion that the second document does not represent the true will of a capable testator then, provided that notice has been given to all interested parties and none have come forward to propound the later document and the will in solemn form, the court should ignore the later document.

7. In this case, the sole executor and residuary beneficiary of the later apparent will has been made a party to the proceedings, has entered an appearance and has signified that she does not wish to defend the proceedings.  No other person is seeking to propound the later will nor is there any person with an apparent interest under that document who might seek to do so.  In 2007 Mrs Hillbrick was aged 92 years and it is evident from the attributed causes of death, where she was living and the signature on the later document that she must then have been very frail.

8. In these circumstances, therefore, I consider that the court should make a grant of probate in solemn form of law of the will dated 2 April 2004 in favour of the first‑named plaintiff, Mr Murray Noel Thornhill, he being one of the two partners in the firm of solicitors named in the will at the date of death and being the only plaintiff who has sworn to his desire to obtain probate and of his readiness to administer the estate according to law.  Leave should be granted to the second plaintiff, Mr Simon Elwyn Creek, to apply and come in and prove should he subsequently choose to do so.  The form of grant is to be settled by a probate registrar but there will be liberty to apply to the court for any directions concerning the form of grant should it be necessary to do so.  These proceedings being necessary to obtain a grant of representation in the circumstances, the costs will therefore constitute testamentary expenses and should be paid out of the estate.