Virgin v Virgin
[2024] WASC 101
•9 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: VIRGIN -v- VIRGIN [2024] WASC 101
CORAM: FORRESTER J
HEARD: ON THE PAPERS
DELIVERED : 9 APRIL 2024
FILE NO/S: CIV 1399 of 2021
BETWEEN: PATRICIA DAWN VIRGIN
Plaintiff
AND
JUSTIN ANTHONY VIRGIN
First Defendant
VICTOR ALBERT VIRGIN
Second Defendant
Catchwords:
Wills - Probate - Application for grant of probate in solemn form - Seeking order pronouncing force and validity of will
Legislation:
Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)
Result:
Will pronounced as having force and effect in solemn form of law
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Robson Legal |
| First Defendant | : | MGD Law |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Banks v Goodfellow (1870) LR 5 QB 549
Estate of Rofe [2021] NSWSC 257
Fairclough v Cvitan [2019] WASC 370
Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435
Scaffidi v Scaffidi [No 2] [2022] WASC 227
Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1
FORRESTER J:
Introduction
The late Victor Anthony Virgin (the Deceased) died on 8 March 2020. He left a will dated 8 June 2005, appointing Patricia Dawn Virgin as the sole executor and beneficiary of his estate (the Will).
Ms Virgin, in her capacity as executor of the Deceased's estate, has applied for an order pronouncing the force and validity of the Will and a grant of probate in solemn form in her favour.
For the reasons which follow, I will make the order sought.
Proceeding
This proceeding arose on 18 May 2021 after the filing of Ms Virgin's application for a grant of probate in common form (PRO 2038/2021) and as a result of probate caveats lodged in the probate jurisdiction of this court by Justin Anthony Virgin (CAV 20/2020 and CAV 39/2021).
The writ was lodged on 18 May 2021. The first defendant filed a defence and counterclaim on 10 June 2021.
On 8 November 2021, orders were made by consent by a registrar joining Victor Albert Virgin as the second defendant to the proceeding.
On 1 June 2023, orders were made by consent by a registrar which included orders that:
(a)The first defendant's defence dated 10 June 2021 be withdrawn and his counterclaim dated 10 June 2021 be dismissed;
(b)The plaintiff be granted leave to enter the matter for hearing on an undefended basis pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA) and for the matter to be dealt with on the papers.
Evidence adduced at the uncontested trial
Ms Virgin relies on the following affidavits filed in the proceeding:
(a)Affidavit of Patricia Dawn Virgin sworn 31 March 2021 (First Virgin Affidavit);
(b)Affidavit of Scripts of Patricia Dawn Virgin sworn 8 October 2021 (Affidavit of Scripts);
(c)Affidavit of Patricia Dawn Virgin sworn 28 June 2023 (Second Virgin Affidavit);
(d)Affidavit of Joseph Hai Tuyet Ho sworn 22 March 2021 (Ho Affidavit); and
(e)Affidavit of Natasha Luisa Waugh sworn 7 June 2023 (Waugh Affidavit).
The defendants were given notice of the affidavits upon which Ms Virgin intended to rely and no objections have been raised or submissions filed on their behalf.
Factual background
The facts, as taken from the affidavits, are not in dispute.
The Deceased was born on 3 January 1944, and was 76 years old when he died.
The Deceased was survived by his wife, Patricia Dawn Virgin (Ms Virgin), whom he married in 1997. He was also survived by his two children from a previous marriage, Justin Anthony Virgin and Victor Albert Virgin, who are respectively the first and second defendants in this proceeding.
In 2005, the Deceased and Ms Virgin drove across Australia and up to Queensland from New South Wales. The Deceased did most of the driving.[1]
[1] Affidavit of Patricia Dawn Virgin sworn 28 June 2023 [5], [7] (Second Virgin Affidavit).
The Deceased executed the Will on 8 June 2005 while he and Ms Virgin were travelling in Queensland. The Will was prepared in circumstances in which Ms Virgin was to be admitted to hospital to undergo surgery and both the Deceased and Ms Virgin considered it appropriate to make wills before that occurred.[2]
[2] Second Virgin Affidavit [9] - [12].
At the same time, the Deceased and Ms Virgin each signed an enduring power of attorney.[3]
[3] Second Virgin Affidavit [18] (PDV-4).
The Will was prepared on the Deceased's instructions by Ms Janet Williamson (Ms Williamson), a lawyer practising in Townsville, Queensland. The Will was executed on the same day instructions were provided for its preparation.[4]
[4] Second Virgin Affidavit [13] - [17].
At the time of the execution of the Will, the Deceased owned a number of parcels of land and had money in the bank. He was not a company director, or a trustee of any trust.[5]
[5] Second Virgin Affidavit [22].
On 10 July 2020, the State Administrative Tribunal (SAT) determined that the Deceased did not have legal capacity and declared that an enduring power of attorney made by the Deceased on 7 May 2009 in favour of the first defendant was in force.[6]
The Will
[6] Second Virgin Affidavit (PDV-5).
The Will is relevantly a mirror of the will executed by Ms Virgin on the same date.[7] By the Will, the Deceased bequeathed all of his modest estate to Ms Virgin if she survived him, and by her will, Ms Virgin bequeathed all of her estate to the Deceased if he survived her.
[7] Second Virgin Affidavit (PDV-3).
The Will was executed validly in accordance with s 8 of the Wills Act 1970 (WA) on 8 June 2005. Ms Williamson (a solicitor) and Ms Kim Stevenson (a legal secretary) were independent witnesses to the execution of the Will.
Ms Williamson is said to be deceased. Evidence has been adduced confirming that Ms Stevenson was a witness to the Will.[8] The Will was held in safe custody by Ms Williamson until she ceased working as a solicitor, and was thereafter held in safe custody by Giudes & Elliott Solicitors & Notary.[9]
[8] Affidavit of Joseph Hai Tuyet Ho sworn 22 March 2021[13] (JHTH-4) (Ho Affidavit).
[9] Ho Affidavit [8] (JHTH-1).
The Will has not been revoked by a subsequent will, marriage or termination of marriage, or by destruction or otherwise. There is no codicil to the Will.
Medical evidence
At the time he executed the Will in 2005, the Deceased was 61 years old. His cause of death is recorded on his death certificate as:
Advanced alzheimer's dementia (2012), Alzheimer's dementia (2004) (Contributory Cause) Slowly progressive ischaemia of right toes (3 months).[10]
[10] Affidavit of Natasha Luisa Waugh sworn 7 June 2023 (Attachment A) (Waugh Affidavit).
On 13 and 19 January 2004, the Deceased was examined by Dr Claudia Hoeltje, Senior Clinical Psychologist, to whom the Deceased was referred with a two-year history of short-term memory impairment. Dr Hoeltje reported on 21 January 2004 that the Deceased's performance on sub‑tests of intellectual functioning was highly variable, with his lowest scores in the domains of symbol‑number substitution/speed of information processing, and highest scores in the domain of abstract reasoning/concept formation and general knowledge. His performance on tests of memory function was uniformly poor.[11]
[11] Affidavit of Patricia Dawn Virgin sworn 31 March 2021 (Attachment A) (First Virgin Affidavit).
Dr Hoeltje was of the view that the Deceased's neuropsychological test profile was abnormal and showed:
… significant deficits in executive and memory functions … in line with cognitive deficits … including slowing, superficial encoding strategies, intrusions (semantic), simplistic problem solving, decreased flexibility in thinking, lack of organisational skills, poor recall, deficient motor inhibition, perseveration, loss of spatial orientation and mental flexibility.[12]
[12] First Virgin Affidavit (Attachment A).
On 6 July 2007, Mandy Vidovich saw the Deceased. Dr Vidovich is a clinical neuropsychologist. She reported on 11 July 2007 that his results were consistent with a dementia process, most probably of the Alzheimer type. She observed cognitive slowing and executive dysfunction, with marked memory impairment. Dr Vidovich recommended consideration be given to the Deceased's driving capacity, that the Deceased establish an enduring power of attorney and undertake the necessary organisation of his financial affairs while he remained capable.[13]
[13] First Virgin Affidavit (Attachment B).
A CT scan of the Deceased's brain carried out on 11 October 2005 was reported by Dr Susanne Guy to show 'no significant involutional change', and 'Minor small vessel ischaemic change only'.[14] A further CT scan of the Deceased's brain on 27 April 2007 by Dr Steve Cartoon detected no abnormality.[15]
[14] Waugh Affidavit (Attachment B).
[15] Waugh Affidavit (Attachment D).
On 5 July 2007, Dr Mark Khanghure of SKG Radiology reported the results of a cranial MRI carried out in relation to the Deceased, finding that there was evidence in keeping with a degree of generalised atrophic change, but no features of ischaemia or focal abnormality.[16]
[16] Waugh Affidavit (Attachment E).
On 6 April 2009, Dr Christopher Beer of the Mercy Medical Centre, reported that there had been progression of the Deceased's cognitive dysfunction, evidenced in deterioration of his Mini Mental State Examination score. At that stage, the Deceased was cautioned to curtail his driving.[17]
[17] Waugh Affidavit (Attachment F).
No other relevant medical information has been provided or, it seems, was able to be obtained.
Applicable principles
Grant of probate in solemn form
The difference in effect between a grant of probate in common form and a grant of probate in solemn form is that the former is revocable and the latter, with some limited exceptions, is irrevocable.[18]
[18] Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1 [18].
The application has proceeded on an unopposed basis. Whilst that position is a consideration to which the court gives weight in determining whether to grant relief of the kind sought, a grant of probate in solemn form cannot be made only as a result of the consent of the parties.[19]
[19] Fairclough v Cvitan [2019] WASC 370 [26].
In order to make a grant of probate for a will in solemn form, the court must be independently satisfied on the evidence adduced that the documents sought to be propounded constitute the last will and testament of a free and capable testator.
In so doing I must consider whether sufficient evidence has been adduced to:
(a)satisfy the minimum requirements for validity of the testamentary document sought to be proved requiring, at least, proof of due execution;[20] and
(b)demonstrate that the testator had capacity and knew and approved of the contents of each of the testamentary documents at the time they were executed so that it can be said that the testator understood the effect of what he was doing.[21]
Presumptions arising from due execution
[20] Wheatley [26] - [27].
[21] Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435 [11].
In Scaffidi v Scaffidi[No 2],[22] Hall J (as his Honour then was) outlined the two presumptions of fact which arise in the proof of wills for probate purposes (citations omitted):
[94]If the propounder of a will proves that the will is regular on its face and has been duly executed (that is, signed by the testator and two witnesses) a presumption arises that the testator had testamentary capacity. In these circumstances the evidentiary burden shifts to the party challenging the will to point to circumstances that raise a suspicion that the testator did not have testamentary capacity. If suspicious circumstances are established the onus is put back on the propounder of the will to satisfy the court that the testator had testamentary capacity.
[95]If testamentary capacity is proved, due execution of the will also raises a presumption that the testator knew and approved of the contents of that will at the time of execution. This presumption can be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the true intentions of the testator. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved the contents of the will.[23]
Testamentary capacity
[22] Scaffidi v Scaffidi[No 2] [2022] WASC 227.
[23] Scaffidi [94] - [95].
The four requirements for testamentary capacity are well established and are set out in Banks v Goodfellow:[24]
(1)the testator must understand the nature of the will and its effects;
(2)the testator must understand the extent of the property of which he or she is disposing;
(3)the testator must be able to comprehend and appreciate the claims to which he or she ought give effect; and
(4)no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[24] Banks v Goodfellow (1870) LR 5 QB 549, 565.
As Hall J observed in Scaffidi,[25] the test in Banks v Goodfellow does not require perfect mental balance and clarity in the testator. The testator's mental power may be reduced below the ordinary standard, provided that they retain sufficient cognitive ability to understand and appreciate the testamentary act in its different bearings. Hall J outlined the following further principles in Scaffidi (citations omitted):
[88] The relevant time at which the existence of capacity is necessary is the time when the testator made the will, not years or decades earlier. Evidence of earlier or later events will only be relevant to the extent that they are capable of supporting inferences as to the capacity of the testator at the relevant time.
[89] The question whether a person had testamentary capacity at the time of making a will is a legal rather than a medical question. Accordingly, the question must be decided by the court, not experts. Nonetheless the determination of the legal question can, and often will, be greatly assisted by the evidence of medical experts.
[90] A conclusion that a person had a condition which may fit the diagnostic criteria used by psychiatrists to identify a mental disorder may inform consideration of the legal question whether the testator had testamentary capacity, but it does not itself deny testamentary capacity. The question turns on the extent of the testator's capacity rather than the reason for any lack of capacity.
[91] There will be many persons who may meet the diagnostic criteria for a currently recognised psychiatric condition but who retain testamentary capacity. The critical questions are always whether the testator understood the nature and effect of the will, whether the testator understood the nature of the property they were disposing of, and whether they understand the claims of those who are excluded from the will, not whether the testator meets the current criteria which a psychiatrist may employ to diagnose a mental disorder.
[92] As to the requirement that the testator understand the nature of what he or she is doing and its effects, it is not necessary to establish that the testator was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will is not necessary. However, it does need to be shown that the testator was capable of understanding the nature of the act of making a will and of understanding the 'practical effect of the central clauses' of the will.
Knowledge and approval
[25] Scaffidi [85].
The concept of 'knowledge and approval' is directed to whether the testator truly knew the terms of a will and intended to give effect to them.[26]
[26] Estate of Rofe [2021] NSWSC 257 [129(b)].
This requirement is distinct from the requirement to prove testamentary capacity and the two concepts must not be conflated, although the evidence relied upon to demonstrate each requirement may overlap.
Plaintiff's submissions
There is no evidence which indicates that the Will was not duly executed. The Will is rational on its face and there is nothing to suggest otherwise.
The question of the validity of the Will arises from whether the Deceased had testamentary capacity at the time of giving instructions to Ms Williamson on 8 June 2005.
The relevant medical evidence of the Deceased's condition between 21 January 2004 and 11 July 2007 does not indicate that the Deceased lacked testamentary capacity when the Deceased signed his Will on 8 June 2005.
Dr Vidovich's opinion, expressed in July 2007, that the Deceased could execute a power of attorney, indicates the doctor was satisfied that the Deceased had testamentary capacity at that time.[27]
[27] Plaintiff's submissions filed 13 July 2023 [43], [50] (Plaintiff's submissions).
As to knowledge and approval, in 2005 the Deceased's financial affairs were not complex.[28]
[28] Plaintiff's submissions [59].
The Deceased was born in Australia, and there was a low risk of any language related miscommunication between the Deceased and the solicitor when the Deceased gave instructions, particularly where the Deceased's affairs were not complex.[29]
[29] Plaintiff's submissions [63].
Mr Justin Virgin and Mr Victor Virgin had not raised by some evidence a suspicion or doubt that the Deceased lacked testamentary capacity in relation to the Will.
Disposition
While the Will contains some minor deficiencies and typographical errors, they are merely reflective of the use of a template and, in my view, there is no evidence which indicates the Will was not properly executed. I am satisfied that the Will was duly executed.
The plaintiff has adduced what is deposed to be all of the available evidence in relation to the Deceased's testamentary capacity at the date of the execution of the Will.
The only medical evidence relating to the Deceased's capacity prior to the making of the Will is the report of Dr Hoeltje dated 21 January 2004. As set out above, Dr Hoeltje is a clinical psychologist. She conducted testing on the Deceased in January 2004 after he was referred to her for neuropsychological assessment following a two‑year history of short-term memory impairment.
Dr Hoeltje's assessment revealed clear issues with the Deceased's cognitive functioning, with significant deficits in executive and memory functions. The Deceased's lowest test results were 'borderline', and in the domains of 'symbol-number substitution/speed of information processing'.[30] The report does not refer to the test for testamentary capacity and does not suggest that the Deceased lacked testamentary capacity.
[30] First Virgin Affidavit (Attachment A).
In my view, the contents of Dr Hoeltje's report fall far short of demonstrating impairment to such an extent as to suggest the Deceased lacked testamentary capacity at the time he executed the Will.
The Will was prepared and witnessed by a lawyer. The Deceased was the one who located and engaged the lawyer for the purposes of him and his wife making their wills, having regard to the health issues then being faced by Ms Virgin. At the time, the Deceased and Ms Virgin were driving around Australia.
The Will is a simple document, which mirrors the will which Ms Virgin executed on the same date as the Deceased executed his. The Deceased's financial affairs were not complex. There is nothing radical about the provisions of the Will.
The best information as to the Deceased's cognitive impairment is from 2007, when he was examined by Dr Vidovich. That is, of course, well after the date of execution of the Will.
Dr Vidovich's report reveals that the Deceased's condition was progressive, with the Deceased and his wife being aware of 'memory impairment with continued, gradual decline over time…'[31] This is consistent with the fact that the death certificate records 'Alzheimer's dementia' in 2004 and 'advanced alzheimer's dementia' in 2012.[32] It is also consistent with the report of Dr Beer in April 2009 that there had been 'progression of his cognitive dysfunction'.[33]
[31] First Virgin Affidavit (Attachment B).
[32] Waugh Affidavit (Attachment A).
[33] Waugh Affidavit (Attachment F).
Dr Vidovich's opinion was not being sought for the purpose of establishing testamentary capacity, and she did not refer to the test for testamentary capacity to be established. However, she did express her view that the Deceased was then capable of organising his financial affairs and establishing an enduring power of attorney.
The determination of the SAT to the effect that in July 2010 the Deceased lacked legal capacity is only capable of informing the court that at some point prior to that time the Deceased lacked that capacity. It does not establish when he ceased to have the capacity.
However, the declaration by the SAT that an enduring power of attorney made by the Deceased on 7 May 2009 had force was a finding that, as at that date, the Deceased had testamentary capacity. Given that the Deceased's cognitive decline was progressive, commencing in or about 2004, this strongly gives rise to an inference that, in 2005, he had testamentary capacity.
Having regard to the progressive nature of the Deceased's condition, and the totality of the assessments done as to the extent of the Deceased's cognitive impairments in January 2004, July 2007 and by the SAT in July 2010, I am satisfied that the presumption of testamentary capacity on the part of the Deceased has not been displaced.
Even if I were wrong in that assessment, I would be satisfied that the plaintiff had established, on the balance of probabilities that the Deceased had testamentary capacity. The Deceased has been shown to have retained sufficient cognitive functioning for some time after the first assessment done in January 2004. There was nothing complex or unusual about his financial affairs, and the Will was a simple document, which dealt in a rational way with his assets.
There being no evidence to the contrary, I am also satisfied that the Deceased knew and approved of the contents of the Will.
In those circumstances the force and validity of the Will will be pronounced.
Orders
1.There will be a pronouncement of the force and validity of the last will and testament of Victor Anthony Virgin executed on 8 June 2005.
2.The Probate Registrar is directed to issue (or seal) a grant of Probate in solemn form in favour of the plaintiff Patricia Dawn Virgin.
3.There be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
9 APRIL 2024
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