Vincent v Close
[2014] WASC 5
•15 JANUARY 2014
VINCENT -v- CLOSE [2014] WASC 5
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 5 | |
| Case No: | CIV:1111/2011 | 11 DECEMBER 2013 | |
| Coram: | McKECHNIE J | 15/01/14 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Declaration for force and validity of 1969 Will | ||
| B | |||
| PDF Version |
| Parties: | EDGAR WILLIAM VINCENT NORMAN ROSS VINCENT HEATHER LORAINE CLOSE MARGARET IRIS VINCENT ROSEMARIE MARJORIE STILLITANO DONALD JOHN VINCENT JANICE ELIZABETH FARRALL RICHARD BRUCE VINCENT CHRISTINE CHERYL MUNDIE BARBARA GRACE HENDRIKS JEDALEE MESHELL DEMPSKY JULIUS TREVOR DEMPSKY JENNIFER MARIE MEGNA |
Catchwords: | Wills and estates Whether 1969 Will is valid Whether necessary or appropriate to rule on other testamentary instruments Matters in issue despite admission about the Will |
Legislation: | Births Deaths and Marriages Registration Act 1998 (WA), s 57(2) Supreme Court Act 1935 (WA), s 24 |
Case References: | Bird v Perpetual Executives & Trustees Association of Australia Ltd (1946) 73 CLR 140 Wheatley v Edgar [2003] WASC 118 Willison v Van Ryswky (1961) WAR 87 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
NORMAN ROSS VINCENT
Second Plaintiff
AND
HEATHER LORAINE CLOSE
First Defendant
MARGARET IRIS VINCENT
Second Defendant
ROSEMARIE MARJORIE STILLITANO
Third Defendant
DONALD JOHN VINCENT
Fourth Defendant
JANICE ELIZABETH FARRALL
Fifth Defendant
RICHARD BRUCE VINCENT
Sixth Defendant
CHRISTINE CHERYL MUNDIE
Seventh Defendant
BARBARA GRACE HENDRIKS
Eighth Defendant
JEDALEE MESHELL DEMPSKY
Ninth Defendant
JULIUS TREVOR DEMPSKY
Tenth Defendant
JENNIFER MARIE MEGNA
Eleventh Defendant
Catchwords:
Wills and estates - Whether 1969 Will is valid - Whether necessary or appropriate to rule on other testamentary instruments - Matters in issue despite admission about the Will
Legislation:
Births Deaths and Marriages Registration Act 1998 (WA), s 57(2)
Supreme Court Act 1935 (WA), s 24
Result:
Declaration for force and validity of 1969 Will
Category: B
Representation:
Counsel:
First Plaintiff : Ms W F Gillan
Second Plaintiff : Ms W F Gillan
First Defendant : Dr P R MacMillian
Second Defendant : No appearance
Third Defendant : Dr J J Hockley
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Solicitors:
First Plaintiff : Lynn Hudson
Second Plaintiff : Lynn Hudson
First Defendant : Friedman Lurie Singh & D'Angelo
Second Defendant : No appearance
Third Defendant : Evangel Legal Services
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : Curwood & Co Pty Ltd
Seventh Defendant : Curwood & Co Pty Ltd
Eighth Defendant : Curwood & Co Pty Ltd
Ninth Defendant : Curwood & Co Pty Ltd
Tenth Defendant : Curwood & Co Pty Ltd
Eleventh Defendant : Curwood & Co Pty Ltd
Case(s) referred to in judgment(s):
Bird v Perpetual Executives & Trustees Association of Australia Ltd (1946) 73 CLR 140
Wheatley v Edgar [2003] WASC 118
Willison v Van Ryswky (1961) WAR 87
1 McKECHNIE J: Edgar Charles William Vincent died on 17 April 2010 late in his 101st year.
2 Since 2010 his surviving son has been fighting with two of the three surviving daughters over what document constitutes his last Will and testament. With the exception of the first defendant, Ms Close, and Ms Vincent, the second defendant, who has now withdrawn, all other defendants support the plaintiff. Even the first defendant now supports the plaintiff's application for probate to be granted for a Will dated 3 September 1969.
3 The second plaintiff supports the first plaintiff but takes no part in the action so I shall refer to the first plaintiff as 'the plaintiff' hereafter.
The trial
4 By agreement between the parties no witness gave oral testimony. The plaintiff's amended witness statement was tendered without objection. Ms Gillan tendered 30 exhibits and Dr Hockley for the third defendant tendered one exhibit, a copy of her birth certificate. The first defendant did not adduce evidence.
The issues and the answers
• There is an overarching question: Should the following issues be resolved in these proceedings? Yes.
• Are the plaintiff and the third defendant, Rosemary Marjorie Stillitano, children of the deceased? Yes.
• Is the document dated 10 June 2005 purporting to be a Will a valid testamentary disposition? No.
• Is the document dated 15 April 2005 purporting to be a gift of land to the first defendant a valid gift? No.
Should the issues be decided?
5 The plaintiff says the issues are open on the pleadings and should be decided. The first defendant says it is unnecessary to decide and I should not do so.
6 A motion for probate was filed on 10 June 2010 (PRO 2557/10).
7 This action was commenced on 20 January 2011.
8 The plaintiff and the first and second defendants are estranged. The first defendant has from time to time been represented by lawyers. Her present firm of solicitors and counsel, Dr MacMillian, have only been engaged since a directions hearing on 8 November 2013. Until their engagement, the first defendant's position on several issues shifted and was inconsistent. As late as a directions hearing on 8 November 2013 the first defendant's position on the issues remained confusing.
9 The Supreme Court Act 1935 (WA) s 24(7) provides:
The Court, in the exercise of the jurisdiction vested in it by this Act, in every cause or matter pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them in such cause or matter; so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.
10 This empowers the court in the widest sense to grant such remedies as the parties to an action may be entitled in any claim brought before it: Willison v Van Ryswky (1961) WAR 87, 89.
11 That is the guiding principle by which I approach Dr MacMillan's submission that the three issues are not necessary to be determined, especially in light of the first defendant's final position.
12 Dr MacMillan submitted that it was unnecessary for me to deal with the three outstanding issues. In written submissions Dr McMillian said:
3. There is no contest that the Deceased lacked testamentary capacity at the time of making the 2005 Will.
…
27. It is unnecessary for the Court to deal with the invalidity of the 2005 Will. It is sufficient for the Court to be satisfied, on the evidence before it, that there is a well-founded suspicion that the Deceased did not have testamentary capacity at the time of execution of the 2005 Will.
…
32. The 2005 Statement is, on its face, not a testamentary instrument. It is inappropriate that the Court makes any finding as to whether the Deceased had capacity as to the making of the 2005 Statement. Whatever relevance the 2005 Statement may have, it is not relevant to this action, which seeks to propound a testamentary instrument, the 1969 Will.
33. The plaintiffs plead in the further amended statement of claim ([4] and [8]) that the first plaintiff and the third defendant are the natural children of the Deceased. The first defendant in her substituted defence does not admit these allegations. ([2] and [4] of the defence). Aside from this, there is no further pleading as to the identity of the beneficiaries to the 1969 Will, being the natural children of the Deceased. No relief is sought in this respect.
34. There is no evidence before the Court as to this issue save, perhaps, for birth certificates.
13 At the directions hearing on 8 November 2013 the first defendant, Ms Close, described the family as dysfunctional. That description comes clearly through in the plaintiff's amended witness statement. If as many matters as possible are not resolved in these proceedings there are prospects that they will have to be decided in further proceedings by the administrator. That does not fit within the Supreme Court Act s 24 or within the principles of case management: Rules of the Supreme Court 1971 (WA) O 1 r 4B.
14 The first two issues are directly related to the validity of the Will. The third issue, relating to the gift of land is an instrument acknowledged by the first defendant as a testamentary instrument albeit not a valid testamentary instrument. For reasons explained later it is not a testamentary instrument.
15 However the plaintiff would be entitled to a binding declaration of right as to that document. It directly affects his potential entitlement as a beneficiary under the 1969 Will. All necessary parties are present. Dr MacMillian suggested that was not so because the administrator is not a party. I disagree. The administrator would have no interest other than the resolution of the validity of the gift. The plaintiff has an interest as beneficiary under the Will in what may constitute the deceased's property. A gift during the deceased's lifetime to the first defendant may be called into question if its effect is to diminish that property. This court can grant relief and remedies to settle all the matters in controversy.
16 In view of the confusing stance taken by the first defendant, both in the pleadings in the submissions advanced on her behalf, and in her statements at case evaluation conferences, I have little confidence that an order pronouncing for the force and validity of the 1969 Will will bring an end to disagreements. Failure to resolve the other issues will leave the first defendant the opportunity to fight another day. It is time for this dispute to come to an end.
The pleadings and the issues
Are the plaintiff and the third defendant the children of the deceased?
The plaintiff's further amended statement of claim pleads:
4. The First Plaintiff is the son of the Deceased.
…
8. The Third Defendant is the daughter of the Deceased.
The first defendant's substituted defence
2. The First Defendant does not admit paragraph 4 of the Statement of Claim.
…
4. The First Defendant does not admit paragraph 8 of the Statement of Claim.
17 The plaintiff acknowledges that the first and second defendants, Heather Loraine Close and Margaret Iris Vincent, are children of the deceased. The first defendant does not admit that the plaintiff and third defendant are the deceased's children. Why such an obvious fact is not admitted is one of life's little mysteries. On 10 October 2012, the first defendant's then solicitors wrote to the Public Trustee answering a series of questions posed. The letter listed parties related to the deceased:
(a) First Plaintiff - Edgar William Vincent - Son
…
(e) Third Defendant - Rosemary Marjorie Stillitano - Daughter
18 There is abundant evidence that the first plaintiff, Edgar William Vincent, and the third defendant, Rosemary Marjorie Stillitano, are children of the deceased.
19 The Births, Deaths and Marriages Registration Act 1998 (WA) s 57(3) provides:
A certificate under subsection (1)(a) is admissible in legal proceedings as evidence of -
(a) the entry to which the certificate relates; and
(b) the facts recorded in the entry.
21 Exhibit 1 is the death certificate of Edgar Charles William Vincent. The names of the children are listed. Included in the list are William Edgar 25/5/1935, Rosemary Marjorie 22/10/1946. Exhibit 2 is the birth certificate of Edgar William Vincent detailing his father as Edgar Charles William Vincent, aged 27 years, motor mechanic. The date of birth is 25 May 1935.
22 Exhibit 31 is the birth certificate of Rosemary Marjorie (Vincent) born on 22 October 1945 to Edgar Charles William Vincent, taxi driver, 37 years.
23 From what appears to be an early Will dated 15 May 1954 the deceased left a residuary bequest to three children in equal parts:
The names of the three children who are the youngest of my family are Rosemary, Margaret and Heather Vincent.
24 The plaintiff's amended witness statement, received into evidence as exhibit A states:
2. I am the son of the deceased Edgar Charles William Vincent. I attach a copy of my birth certificate which is marked 'A'.
3. My mother was Dulcie Elizabeth Vincent, nee Coulthard.
4. I have three surviving sisters being Heather Close, Margaret Vincent and Rosemary Stillitano who are the first, second and third defendant's respectively.
25 It is abundantly clear that the first plaintiff and the third defendant are two of the deceased's children and the first defendant is mischievous to suggest otherwise.
The validity of the document purporting to be a Will dated 10 June 2005
The plaintiff's further amended statement of claim
20. The First Defendant has produced a document dated on or about 10 June 2005 which purports to be executed by the Deceased as the last Will of the Deceased ('2005 Will').
Particulars
(a) The 2005 Will is in writing;
(b) The 2005 Will purports to be signed by the Deceased on each page;
(c) The 2005 Will purports to be signed in the presence of 2 attesting witnesses, namely one Pauline Margaret Riches and one Belinda Marie Nicholls;
21. By the 2005 Will the Deceased purported to appoint the First Defendant executrix of the Deceased's estate.
[Paragraphs 20 and 21 are admitted: First defendant's substituted defence par 1]
22. The Deceased did not know and/or approve of the contents of the 2005 Will.
Particulars
(a) The Deceased was born on 8 May 1908, and was 97 years of age at the time of the 2005 Will;
(b) The Deceased was blind at the time of the 2005 Will;
(c) The Deceased suffered from dementia, Alzheimer's type at the time of the 2005 Will;
(d) The Deceased did not reside at 10 Waroonga Road, Nedlands in the State of Western Australia at the time of the 2005 Will;
(e) From in or about 23 November 2004 to in or about November 2007 the Deceased resided at the Concord Nursing Home at 21 Anstey Street, South Perth in the State of Western Australia;
(f) The purported signature of the Deceased on the 2005 Will does not appear on its face to be the usual signature of the Deceased, and it can be inferred from such signature that the maker could not read or write properly;
(g) The 2005 Will is typewritten at a time when the Deceased neither had access to a typewriter or computer, nor could operate the same.
Full particulars will be provided prior to trial.
23. The Deceased at the time when the 2005 Will was purportedly executed lacked testamentary capacity and was not of sound mind, memory or understanding.
Particulars
(a) The Deceased was born on 8 May 1908, and was 97 years of age at the time of the 2005 Will;
(b) The Deceased was blind at the time of the 2005 Will;
(c) The Deceased was unable to write at the time of the 2005 Will;
(d) The Deceased suffered from dementia, Alzheimer's type at the time of the 2005 Will;
(e) The Deceased was unable to care for himself and required full time nursing care at the time of the 2005 Will;
(f) The 2005 Will omits any reference to the majority of the children and descendants of the Deceased.
(g) The Deceased did not reside at 10 Waroonga Road, Nedlands in the State of Western Australia at the time of the 2005 Will;
(h) The purported signature of the Deceased on the 2005 Will does not appear on its face to be the usual signature of the Deceased, and it can be inferred from such signature that the maker could not read or write properly;
(g) The 2005 Will is typewritten at a time when the Deceased neither had access to a typewriter or computer, nor could operate the same.
The first defendant's substituted defence
7. The First Defendant denies paragraph 22 of the Statement of Claim.
8. The First Defendant does not admit paragraph 23 of the State of Claim.
…
10. The First Defendant does not admit paragraph 25(a) of the Statement of Claim.
27 The 2005 document (exhibit 27) purports to be a Will being entitled, 'This is the last Will and Testament of me Edgar William Charles Vincent' described as 'Retired Engineer, 10 Waroonga Road, Nedlands'. The document has the appearance of a normal Will. There are three matters which are unusual. The first is that the deceased gives his address as 10 Waroonga Road, Nedlands, which he later describes as 'my current home'. At this time the deceased had been living in a nursing home for months and prior to that would appear to have been living with his daughter Margaret Vincent. The second is the date of the Will. In typescript the Will is dated 'Two thousand and one'. However, it appears to be executed on 'this 10th day of June Two thousand and five', the 'five' replacing the 'one' in manuscript and initialled by each apparent testator. The signature bears no resemblance to the deceased's signature on a purported Will in 1954 or his Will in 1969. The wavery scrawl on the 2005 document is similar to that on the purported gift of 15 April 2005.
28 These three matters give rise to a suspicion about validity. That suspicion hardens to a certainty when regard is had to the evidence of the deceased's mental state in 2005.
The plaintiff's evidence
29 The plaintiff is 78. His mother was Dulcie Elizabeth Vincent (nee Coulthard). He has three surviving sisters, Heather Close, Margaret Vincent and Rosemary Stillitano. His parents divorced in the 1960s. His mother remarried on 24 December 1968, dying on 27 June 1986. Since 1959 Edgar has lived in Melbourne. The plaintiff's evidence describes effectively an estrangement between he, and the first and second defendants.
30 After he moved to Melbourne, the deceased and the plaintiff corresponded by letter and occasional telephone calls and he travelled to Perth, usually in May, to be with the deceased on his birthday. From 1970s on, the plaintiff came to Perth a little less frequently because he was getting older and when he did he stayed in a hotel.
31 However, from the early 1990s he visited the deceased annually for his birthday, which was in May, until he died. On his visits he and the deceased often had lunch in the city. The plaintiff describes the deceased as quite eccentric, stubborn and miserly. On visits he would buy clothing and toiletries for his father.
32 The plaintiff had two brothers, Trevor and Victor, who died aged in their thirties, and a sister June who died in 1997.
33 Victor's children are some of the defendants.
34 Before Victor died he and his wife and children lived for a while with the deceased at Waroonga Street in Nedlands.
35 From the late 1990s, the plaintiff observed the deceased to be deteriorating both mentally and physically and gave examples as to why he formed that opinion.
36 The Waroonga Road house in Nedlands was eventually condemned as unfit for human habitation and the council obtained a demolition order. After that the deceased went to live with the second defendant.
37 In a telephone call on 3 November 2004, the first defendant told the plaintiff that the deceased had been in Sir Charles Gairdner Hospital for nearly two weeks, having been found disoriented and wandering the streets. The plaintiff was unable to get any information from the hospital, apart from learning that the deceased had been discharged to a nursing home called Concorde.
38 The plaintiff visited the nursing home from 1 to 7 December 2004 and visited in May 2005 for the deceased's birthday and every year thereafter until he died.
39 The deceased had received a pension from the Department of Social Security after being assessed as legally blind with bilateral cataracts. The deceased was given white cane training for the vision impaired at Shenton Park (probably in the 1990s). Heather and Margaret were based in Perth and seemed to do a lot of running around on behalf of the deceased.
29. I can say from my own observation of my father in the Nursing Home when I visited him in December 2004 and May 2005 and on every visit thereafter that he was unable to hold a conversation and that he would fall asleep almost anytime. I observed that he was aggressive and would strike out at staff. I was told this was part of his dementia. I cannot recall which member of staff told me that. My father was nearly deaf and he was legally blind. He was very weak and frail. I don't mean any unkindness or disrespect to my late father but it was my view back in December 2004 when I visited at the Nursing Home that he no longer had control of his thinking ability and indeed he did not know who I was or that I was there. The main reason I visited my father was to offer assistance as best I could to the staff and to my sisters in caring for our father.
…
33. I believe that my sister Margaret stopped using the surname of Levy sometime in the 1990s and Levy was not a surname she used in 2005.
40 In the purported Will the second defendant is referred to as 'Levy' not 'Vincent'.
Report of Dr Andrew Granger - 6 March 2012
41 Dr Granger is a Consultant Geriatrician and General Physician. Assessing the mental capacity of patients is a routine part of his practice. Assessment is standardised and the process to be followed is clear in both medical and legal terms. It is task specific. In the present case it related to the capacity of the deceased to make a decision about signing an Enduring Power of Attorney or Will. The person being assessed would be required by Dr Granger to demonstrate an understanding of the document to be signed; an understanding of the different options available to them regarding signing or not signing that document, and the different ramifications and consequences of those various decisions.
42 Dr Granger does not believe that the mini mental status examination (MMSE) plays a great role in decisions about capacity. A score of 12/30 in the deceased's case indicated quite severe cognitive impairment but no aspect of that test demonstrated the ability or inability to make reasoned judgments or have testamentary capacity.
43 Dr Granger notes that there was evidence in the medical notes of his assessment on at least two occasions demonstrating very clearly that he did not believe the deceased had testamentary capacity to sign an Enduring Power of Attorney which was the task for which he was being assessed. Specifically the notes on 26 October 2004 record:
Discussed with relatives Margaret and Heather severe dementia, wandering risk, likely to need secure nursing home, NOT CAPABLE OF SIGNING EPOA ON TODAY'S ASSESSMENT. Unable to name his children, unable to name address, requires guardianship application. Family disagree with our opinion therefore second opinion requested from Psychogeriatric Service.
18/11/2004: discussion about Enduring Power of Attorney; unable to name his four living children; uncertainty about decisions regarding his living arrangements.
44 A second opinion was sought from the Psychogeriatric Services and the deceased was assessed on two occasions. The key entry from the report of the Senior Psychogeriatrics Registrar on 27 October 2004:
Unable to understand the concept or aim of interview ... suspicious and refused to cooperate ... unable to provide an explanation about giving an EPOA to his family. UNABLE TO PROVIDE ALTERNATIVE CHOICES AND CONSEQUENCES OF CHOICES, THEREFORE INCOMPETENT.
45 He was reviewed by Dr Paul O'Hara, psychiatric consultant, on 27 October 2004 who noted:
Today, however, I could not demonstrate competence in Mr Vincent.
46 Notes of previous competence assessments demonstrated the deceased's inability to make a decision regarding an Enduring Power of Attorney. These notes go back to 2002, prior to Dr Granger's involvement.
47 Dr Granger:
4. With that in mind, there would be no expectation that his testamentary capacity would improve after discharge. Indeed, the evidence from the notes at the nursing home would suggest that his mental state remained the same or indeed deteriorated. For example:
(a) 27.11.04 - patient voiding inappropriately on the floor
(b) 28.11.04 - threatening to staff
(c) 29.11.04 - aggressive and threatening towards staff
(d) 30.11.04 - verbally and physically aggressive
(e) 11.12.04 - verbally aggressive when being changed
(f) 17.12.04 - Diazepam introduced for aggressive behaviour
(g) 16.2.05 - non-compliant and resistive, physically aggressive
5. I note the Will is said to have been signed in the nursing home on 10th June 2005. It is important to note that this is some seven months after I last saw Mr Vincent. As stated above, however, there is nothing to suggest from my dealings with him that neither his mental state nor testamentary capacity would have improved, and the expectation and documentation suggest that they would have become worse. There are no notes in the nursing home records on the day of signature (10th June 2005). On the 8th June, two days prior, there was mention of wandering; the next entry on the 17th June mentions him having been wandering and intrusive.
48 Dr Granger noted that the deceased was consistently assessed as being unable to demonstrate capacity to sign an Enduring Power of Attorney. No mention was made about a Will and he was not specifically assessed for testamentary capacity to sign a Will. However, it is Dr Granger's opinion that the deceased would absolutely not have had testamentary capacity to sign a Will. This can be inferred from the other assessments of his capacities. Dr Granger believes the lack of capacity existed from the time of his first assessment and capacity would have deteriorated such that it is his opinion that the deceased would most definitely not have had testamentary capacity or competency at the time of the signature of the Will on 10 June 2005.
Dr Andrew Forward
49 On 5 April 2012, Dr Forward wrote to the plaintiffs' solicitor noting that a score of less than 20 on the MMSE would indicate lack of testamentary capacity, but scores can vary without an obvious cause and certainly vary with the cooperation of the patient, any delirium or pain management issues. A patient with established dementia would almost inevitably have deterioration in a cognitive capacity. Having read the nursing notes and his own notes relating to the deceased's health around June 2005, Dr Forward believes he would not have had testamentary capacity at that date. When he completed an affidavit on 10 November 2010 he was advised that the health record was unavailable. He finishes by saying:
I believe a patient with established dementia would almost inevitably have deterioration in their cognitive capacity.
The impression that I gained from reading progress notes commencing 23 November 2004 from Concorde Nursing Home is that there is deterioration in his mental capacity over the following eight months.
Now I have read the nursing notes and my own notes relating to Mr Vincent's health on and around June 2005, I believe he would not have had testamentary capacity on and around 10th June 2005. When I completed the affidavit on November 2010 regarding his testamentary capacity I was advised that his health record was unavailable, and I now have a different view to the affidavit I completed in November 2010 when I relied on memory alone.
50 On 13 September 2004 the deceased was discharged from Sir Charles Gardiner Hospital where he had been a patient for four days following an accidental fall. Noted in other conditions problems were bilateral cataracts. 'On examination he was pleasantly confused'.
51 On a referral to Homelink the hospital notes past medical history:
Bilateral cataracts; very poor vision; blindness in left eye.
…
Significant cognitive impairments … and visual impairment.
52 Information obtained on 29 October 2004 notes:
Discussed with daughter patient already has a blind pension.
53 I have read the patient notes from Sir Charles Gardiner Hospital and Concorde Nursing Home. It is unnecessary to set them out in any further detail than that referred to by Dr Granger. The notes from both institutions show a similar picture of an elderly gentleman with significant cognitive impairment and lack of visual acuity. Detailed reproduction of the patient notes is unnecessary. They reveal a patient with obvious significant cognitive defects and a variety of medical ailments and conditions including loss of vision.
54 Dr Granger's recorded meeting with hospital staff and the first and second defendant dated 18 November 2004 is highly instructive:
We again discussed the issue of the Enduring Power of Attorney. This has been discussed by myself with the two daughters on at least three occasions; it has been discussed on multiple other occasions by other members of the team. The findings of the other consultants involved have been relayed. As the daughters previously disagreed with our assessment that he does not have capacity to sign the form I insisted on getting a further opinion from Dr Paul O'Hara, Psychogeriatrician (the daughters were reluctant to get a further opinion but given the disagreement with previous opinions I insisted on this). Dr O'Hara has similarly agreed that Mr Vincent does not have capacity to sign the Enduring Power of Attorney. We again today at the meeting went over this in detail as to why he does not have this capacity. In particular I have again reiterated the strict and specific criteria, which are required to be fulfilled for him to sign an Enduring Power of Attorney. They understand that this is a legal document. The alternative, which is Application to the Guardian and Administration Board, has been discussed and they are firmly against this. This is in spite of repeated explanations that the Board generally try's to specify a family member as being legally responsible.
At this point both daughters became verbally aggressive and physically threatening. When asked what they would like the team to do to resolve the situation they stated that they just wish to sign an Enduring Power of Attorney; nothing else would be acceptable for them. When told that this was not possible the degree of verbal aggression and physically intimidating behaviour necessitated that the meeting be ceased. Sometime after the completion of the meeting one of the daughters continued to follow me around the Department shouting angrily.
55 The deceased was referred for a second opinion to Dr O'Hara who on 27 October 2004 said:
Mr Vincent is 96 years old with significant cognitive impairment. He showed no understanding of the concept of EPA, or willingness to allocate responsibility to his family. However he was somewhat guarded and suspicious of my motives in exploring his financial arrangements. It may be that he would be more forthcoming if he felt that his interests were not being compromised, eg, if his family were present. This may introduce other problems however I suspect that he is happy for the family to continue handing the finances - he did say that they are already handling the bills and seemed happy at this (reportedly Dr Abdvrachman). Today however I could not demonstrate competence in Mr Vincent.
Conclusions
56 The degree of cognition and understanding to enter into an Enduring Power of Attorney is similar to that required to execute a valid Will. It is clear that at least from 2004 the deceased lacked sufficient understanding. His condition did not improve: indeed it followed the general pattern of further deterioration. In June 2005 the deceased did not have testamentary capacity and the document dated 10 June 2005 is not a valid Will.
The purported gift of land dated 15 April 2005
The plaintiff's further amended statement of claim
26. The First Defendant has produced a document dated on or about 15 April 2005 which purports to be executed by the Deceased as a testamentary Statement of the Deceased ('2005 Statement').
Particulars
(a) The 2005 Statement is in writing;
(b) The 2005 Statement purports to be signed by the Deceased;
(c) The 2005 Statement purports to be signed in the presence of an attesting witness, namely one Norman William Plummer of 12 Waroonga Road, Nedlands.
[Paragraph 26 is admitted: First defendant's substituted defence par 11]
27. The Deceased did not know and/or approve of the contents of the 2005 Statement.
Particulars
(a) The Deceased was born on 8 May 1908, and was 96 years of age at the time of the 2005 Statement;
(b) The Deceased was blind at the time of the 2005 Statement;
(c) The Deceased suffered from dementia, Alzheimer's type at the time of the 2005 Statement;
(d) The Deceased did not reside at 10 Waroonga Road, Nedlands in the State of Western Australia at the time of the 2005 Statement;
(e) From in or about 23 November 2004 to in or about November 2007 the Deceased resided at the Concord Nursing Home at 21 Anstey Street, South Perth in the State of Western Australia;
(f) The purported signature of the Deceased on the 2005 Statement does not appear on its face to be the usual signature of the Deceased, and it can be inferred from such signature that the maker could not read or write properly;
(g) The 2005 Statement is typewritten at a time when the Deceased neither had access to a typewriter or computer, nor could operate the same.
28. The Deceased at the time when the 2005 Statement was purportedly executed lacked testamentary capacity and was not of sound mind, memory or understanding.
Particulars
(a) The Deceased was born on 8 May 1908, and was 96 years of age at the time of the 2005 Statement;
(b) The Deceased was blind at the time of the 2005 Statement;
(c) The Deceased was unable to write at the time of the 2005 Statement;
(d) The Deceased suffered from dementia, Alzheimer's type at the time of the 2005 Statement;
(e) The Deceased was unable to care for himself and required full time nursing care at the time of the 2005 Statement;
(f) The 2005 Statement omits any reference to the majority of the children and descendants of the Deceased;
(g) The Deceased did not reside at 10 Waroonga Road, Nedlands in the State of Western Australia at the time of the 2005 Statement;
(h) The purported signature of the Deceased on the 2005 Statement does not appear on its face to be the usual signature of the Deceased, and it can be inferred from such signature that the maker could not read or write properly;
(i) The 2005 Statement is typewritten at a time when the Deceased neither had access to a typewriter or computer, nor could operate the same.
Full particulars will be provided prior to trial.
…
30. By virtue of the matters pleaded herein:
(a) the 2005 Will is invalid and of no force or effect; and
(b) the 2005 statement is invalid and of no force or effect.
12. The First Defendant does not admit paragraphs 27 and 28 of the Statement of Claim.
…
14. The First Defendant does not admit paragraph 30(a) of the Statement of Claim.
15. To the extent that it is implicitly alleged in paragraph 30(b), the First Defendant admits that the 2005 Statement is not a valid testamentary instrument, but otherwise denies paragraph 30(d) of the Statement of Claim.
57 In an affidavit prepared at a time when the first defendant had engaged solicitors (not her present solicitors), she swore an affidavit of scripts dated 13 August 2012 which included the following paragraph:
2. The testamentary documents of which I have knowledge are as follows:
1) Will of the deceased dated 15th May 1954.
2) Will of the deceased dated 3rd September 1969.
3) Statement of the deceased dated 15th April 2005.
4) Will of the deceased dated 10th June 2005.
59 In Bird v Perpetual Executives & Trustees Association of Australia Ltd (1946) 73 CLR 140, (Starke J):
But a document is not testamentary if it takes effect immediately upon its execution though the enjoyment of the benefits conferred thereby be postponed until after the donor's death (In the Goods of Robinson 1867 L.R. 1 PD 384). The document here under consideration is not testamentary in form but it is the substance and effect of the document that is important and not its form. … No obligation was created upon the execution of the document; its operation and effect depends upon the death of Parker. Such a document however is testamentary in character and to be effective must be executed in accordance with the Wills Act. (145).
60 Dixon J:
[A] covenant for payments to be made by the covenantor's executors or administrators is perfectly good. If the instrument containing such a covenant is executed so as to take effect as his deed during the covenantor's lifetime, it is no objection that his death is the event upon which the obligation is to be fulfilled. That does not make it a testamentary instrument. The only point at which in the present case the fact becomes material that the document has not been executed in accordance with the Wills Act 1928 (Vict.) is with reference to the direction to 'my trustees executors or administrators'. If that be considered as amounting to no more than a direction to personal representatives, then it cannot be carried into effect by the administrator as a direction he is bound or entitled to obey. In that aspect it would be but a testamentary direction. …
If, however, from the direction and from the rest of the document an implied covenant with the plaintiff can be spelt out, that is an intention on the part of the intestate immediately to bind himself and his estate towards her, then the liability affects the administrator as such, notwithstanding that considered as a bare direction to him that part of the instrument could not have been efficacious (146).
61 McTiernan J:
[The] direction to Parker's personal representative was clearly not intended to have any operation or effect until his death. The direction is in substance a testamentary gift. The formalities required by the Wills Act 1928 (Vict.) were not observed in making this document and the plaintiff is therefore not entitled under the direction to receive any payment from the administrator out of the estate (148).
62 The document (exhibit 28) is in large type and is headed in the name of the deceased at 10 Waroonga Road, Nedlands and reads:
I, Edgar Charles William Vincent hereby gift my parent's estate at 13 The Avenue Crawley, to my daughter Heather Close. I have gifted her this property because she has shown a caring and unconditional support to me, over many years. I have verbally gifted this to her in the past but I am now confirming this agreement with written authorisation.
63 There follows what might be described as a signature and the date is 15/4/2005. The witness Norman William Plummer gives an address of 12 Waroonga Road, Nedlands. I was informed from the bar table he is now deceased.
64 It is not a testamentary instrument. It purports to confirm previous (oral) gifts and the plain meaning is that the gift should take effect immediately.
65 However this document suffers from the same defect as the purported Will. The evidence overwhelmingly establishes that at the time of his execution of the Will, the deceased would have had no understanding of what he was doing. It cannot give rise to a valid disposition of property. Though it is not a testamentary instrument, the plaintiff is entitled to a declaration of invalidity.
The second defendant writes a letter
66 Ms Vincent it will be remembered, withdrew from the action sometime before trial, by letter received 25 March 2013. Nevertheless, she felt 'compelled' to write directly to me on 11 January 2014.
67 Although the letter was marked 'Private & Confidential', I immediately made copies available to the other parties' solicitors. There are no confidential communications by a party to a judge in adversarial proceedings. Ms Vincent knows this. When she wrote an earlier letter to a registrar it was returned and she was advised in writing on 18 June 2013:
I must remind you of the important role of the court in this matter. Any communication you have with the court must also be forwarded to all parties.
68 Insofar as the letter consists of assertions of fact, I have ignored them. The first defendant had the opportunity to put on evidence as to any relevant matters. Neither the first nor second defendant chose to traverse the evidence of the plaintiff. That is the end of it.
69 Aspersions about the conduct of counsel for the plaintiff are without merit. From my observation, counsel appeared to be scrupulous in her duty. The correspondence from the solicitor for the plaintiff in the trial bundle does not support the assertions made against her.
Will dated 3 September 1969
70 All parties are agreed that this document should be pronounced as having force and validity and probate granted in respect of it. It appears to be a regular Will, duly executed. The document nominates Perpetual Executors Trustee and Agency Company (WA) as executors. It is not now possible to identify the witnesses. Nor could they reasonably be expected to remember the details of a document executed so long ago. Their occupations indicate they were both employed by the executor company. At the time of execution of the Will the deceased was 61 and there is no evidence that he was then mentally incapacitated.
71 He was visited by the plaintiff around his birthday for about ten years from 1959. Thereafter visits were less frequent. The plaintiff does not give explicit evidence as to the deceased's mental state in 1969. His observation of his father's physical and mental deterioration dates from the late 1990s.
72 The first defendant supports the grant of probate for this Will. Had she any information concerning a lack of capacity in 1969 it would have been open for her to have brought that evidence to court. The lack of any such information reinforces my view that this was a Will executed in accordance with the requirements of the Wills Act 1970 (WA) by a man who had full testamentary capacity.
73 In the absence of evidence to the contrary I can presume that the Will was made by a person competent and understanding: Wheatley v Edgar [2003] WASC 118 [24].
74 I have had regard to the fact that the Will submitted for probate had been executed nearly 40 years before death. The only alternative document produced subsequent to 1969 is the document dated 10 June 2005 when the deceased lacked testamentary capacity.
75 I declare that the document dated 3 September 1969 is the last Will and testament of Edgar Charles William Vincent, the deceased, and the grant of probate should issue accordingly.
76 The executor named in the Will has renounced. The Public Trustee has declined appointment.
77 The parties have agreed that a solicitor, Mr Ian Torrington Blatchford, be appointed as executor of the Will. As he will bring an independent professional mind to bear on the administration of the Will, I think his appointment is appropriate and will so order if he consents.
Conclusion and orders
1. The court pronounces for the force and validity of the Will of Edgar Charles William Vincent (deceased) dated 3 September 1969 and directs a grant of probate to issue.
2. Ian Torrington Blatchford is appointed the executor of the Will in place of Perpetual Executors Trustee and Agency Company (WA) Ltd.
3. The document dated 10 June 2005 purporting to be a Will of the deceased is not a valid Will.
4. The document dated 15 April 2005 purporting to be a gift of land is not a valid gift.
4