Wallis v Miller
[2006] WASC 7
WALLIS -v- MILLER & ANOR [2006] WASC 7
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 7 | |
| Case No: | CIV:2048/2004 | 12 JANUARY 2005 | |
| Coram: | HASLUCK J | 12/01/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Decree made for probate of Will in solemn form | ||
| B | |||
| PDF Version |
| Parties: | IRENE FRANCIS VALERIE WALLIS SANDRA IRENE MILLER DESMOND GOBBY |
Catchwords: | Wills, probate and administration The making of a Will Construction and effect of testamentary dispositions Testamentary intention and capacity Will executed in presence of one witness only Decree made for grant of Will in solemn form |
Legislation: | Wills Act 1970 (WA) s 8, s 34 Non-Contentious Probate Rules 1967 (WA) O 20A r 2 |
Case References: | Bailey v Bailey (1924) 34 CLR 558 Estate of Hines v Hines [1999] WASC 111 Mittoni v Bradley [2003] WASC 114 West Australian Trustee Executor and Agency Company Limited v Holmes (1961) WAR 144 Wheatley v Edgar (2003) WASC 118 Worth v Clasohm (1952) 86 CLR 439 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SANDRA IRENE MILLER
First Defendant
DESMOND GOBBY
Second Defendant
Catchwords:
Wills, probate and administration - The making of a Will - Construction and effect of testamentary dispositions - Testamentary intention and capacity - Will executed in presence of one witness only - Decree made for grant of Will in solemn form
(Page 2)
Legislation:
Wills Act 1970 (WA) s 8, s 34
Non-Contentious Probate Rules 1967 (WA) O 20A r 2
Result:
Decree made for probate of Will in solemn form
Category: B
Representation:
Counsel:
Plaintiff : Mr J C Curthoys
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Slee Anderson & Pidgeon
First Defendant : No appearance
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Estate of Hines v Hines [1999] WASC 111
Mittoni v Bradley [2003] WASC 114
West Australian Trustee Executor and Agency Company Limited v Holmes (1961) WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439
Case(s) also cited:
Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535
(Page 3)
1 HASLUCK J: The plaintiff, Irene Francis Valerie Wallis (also known as Staveley), applied for grant of probate of the Will of Beryl Veronica James who died on 21 December 1999. The Will in respect of which a grant of probate was sought was a Will executed by the deceased, dated 1 June 1999, with the plaintiff being named as executrix. A copy of the subject Will was received in evidence for hearing before me, and marked as Exhibit 6.
2 The application for a grant of probate of the subject Will was made pursuant to a motion lodged by the plaintiff's solicitors with the Probate Division of the Supreme Court on 6 July 2001. This application gave rise to a requisition dated 25 October 2002 which was expressed as follows:
"In light of the contents of the medical reports, there is doubt as to whether the deceased had testamentary capacity as at the date of execution of the will. The will must be proved in solemn form."
3 On 13 August 2004 the plaintiff issued a writ of summons in which it was pleaded that on or about 1 June 1999 the deceased executed a document embodying her testamentary intentions by signing it in the presence of Desmond Gobby. The plaintiff sought an order that the Court decree probate of the contents of the subject Will in solemn form.
4 For reasons which will become apparent in due course, Sandra Irene Miller and Desmond Gobby were joined as the first and second defendants respectively. The defendants have been served but have not entered appearances. It is against this background that the matter has been referred to me as a Judge of the Supreme Court for determination.
5 There are various issues to be resolved and, accordingly, I must turn to the circumstances giving rise to the proceedings in question. By order dated 18 August 2005, the matters in issue are to be resolved by way of affidavit.
6 The relevant circumstances are set out in certain affidavits on the probate file, being the affidavits of the plaintiff sworn 27 June 2001, 26 April 2002, 14 June 2002, 1 August 2002 and 26 September 2002. Exhibited to the last-mentioned affidavit are the reports of certain medical practitioners, being the report of Roderick D Mason dated 16 June 2000 and the report of Lois Achimovich dated 1 August 2000.
7 Further affidavits were filed following the commencement of legal proceedings. The relevant affidavits are set out as follows on the
(Page 4)
- plaintiff's list of documents to be tendered: that is, the affidavit of Roderick Denis Mason sworn 14 September 2005, now marked as Exhibit 1; the affidavit of Desmond John Gobby sworn 14 September 2005, now marked as Exhibit 2; the affidavit of scripts of Irene Francis Valerie Wallis sworn 20 September 2005, now marked as Exhibit 3; copy affidavit of Irene Francis Valerie Wallis sworn 20 September 2005, now marked as Exhibit 4; affidavit of Lois Mary Achimovich sworn 29 September 2005, now marked as Exhibit 5.
8 It appears from the evidentiary materials before me that the deceased was an elderly woman of 77 years of age at the time of her death, with a history of mental disturbance. However, as appears from the affidavit of Roderick Denis Mason sworn 14 September 2005, being now marked as Exhibit 1, in the opinion of Dr Mason she did have testamentary capacity at the time the subject Will was executed on or about 1 June 1999.
9 I note in passing that the cause of death as it appears from the certificate appears to be smoke inhalation, suffered accidentally, in a woman with valvular and arteriosclerotic heart disease, as determined at Bunbury on 18 July 2005 by the Coroner. I note also that the application for relief, as I have described it, is not opposed.
10 I understand from the evidentiary materials that prior to the deceased's execution of the subject Will on 6 November 1995, an administration order was made pursuant to provisions of the Guardianship and Administration Act 1990 (WA) concerning her affairs. However, it appears that the administration order was revoked by a subsequent order dated 28 October 1997.
11 The evidentiary materials include an affidavit of scripts sworn by the plaintiff on 20 September 2005. It seems that the deceased executed various Wills in the years preceding her death apart from the subject Will. I understand that of these the deceased had most recently executed a Will dated 29 December 1998 in which Sandra Irene Miller was named as executrix of the Will. By that prior Will the deceased purported to give the residue of her estate to Sandra Miller.
12 Six months later, on or about 1 June 1999, the deceased executed the subject Will in the presence of a witness, being her neighbour at that time Desmond Gobby of 4 Palm Street, Bunbury. The evidence before me includes affidavit evidence by Mr Gobby in which he describes the circumstances in which the Will came to be executed. This is set out in his affidavit sworn 14 September 2005.
(Page 5)
13 The tenor of Mr Gobby's evidence is that the deceased was determined to revoke her prior Will; that is, the Will dated 29 December 1998, and thus exclude Sandra Miller from any benefit and the deceased appeared to be cogent and clear as to her intentions at the time she executed the subject Will. I must pause here to emphasise that the subject Will was executed in the presence of one witness only, namely, Mr Gobby. This represents a failure to comply with s 8 of the Wills Act 1970 (WA) requiring the presence of at least two witnesses.
14 However, s 34 of the Wills Act provides that a document purporting to embody the testamentary intentions of a deceased person is a Will of that person notwithstanding that it has not been executed in accordance with s 8 if the Supreme Court is satisfied the deceased intended it to constitute his Will.
15 It appears from the affidavit evidence that persons who will be prejudiced if the subject Will dated 1 June 1999 is admitted to probate because it revokes the prior Will of 29 December 1998 will be Sandra Irene Miller, Desmond John Gobby, Kathy Palfreyman and Nicholas Palfreyman, being beneficiaries under the prior Will.
16 Order 20A rule 2 of the Non-contentious Probate Rules 1967 requires that the plaintiff obtain the consent of all persons who may be prejudiced by the application of the remedial provision. I understand that consents were obtained save for the consent of Sandra Miller and Desmond Gobby. It is for this reason that they have been named as defendants. However, it is apparent from the materials before me that Mr Gobby has no active opposition to the order sought in respect of the subject Will. This is borne out by the fact that he has been prepared to swear an affidavit describing the circumstances in which the subject Will was executed which obviously is supportive of the plaintiff's case.
17 It emerges then that the issues before me are first whether the subject Will which was executed in the presence of one witness only can be characterised as an operative Will having regard to the relevant provisions of the Wills Act. Secondly whether the deceased had testamentary capacity at the time the subject Will was executed.
18 Against this background it will now be useful to look at legal principles bearing upon an application for orders of the kind I have described. Those principles are conveniently summarised by EM Heenan J in Wheatley v Edgar [2003] WASC 118. His Honour at par 17 noted that Wills can be proved in two ways, being in common form
(Page 6)
- or in solemn form. In the former case the grant of probate is revocable. In the latter case with two exceptions concerning fraud or discovery of a later will the grant of probate is irrevocable.
19 Wills are approved in solemn form in a probate action where the main and generally the sole question for the determination of the Court is whether a will is or is not either in whole or in part valid as a testamentary instrument.
20 His Honour went on to indicate that the different consequences gives rise to evidentiary implications. He observed at par 24 that for there to be a grant in solemn form the Court must be satisfied on evidence adduced by the party propounding the will in question or by any other party to that suit whether joined or cited of the formal validity of the will. The issue will be decided on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at the relevant time.
21 As to the matter of formal validity, as I have indicated, the plaintiff seeks to rely on s 34 of the Wills Act. In the Estate of Hines v Hines [1999] WASC 111 at par 12, Owen J identified the relevant elements of s 34. He said that first there must be a document purporting to embody the testamentary intentions of the deceased; that is, whether the deceased knew and approved of the contents of the document in question. Second, the document must not have been executed in accordance with s 8. Third, the Court must be satisfied that the deceased person intended the document to constitute his or her Will.
22 In the Hines case (supra) Owen J said this at par 22:
"Inquiry is not directed at whether the deceased's intention was that a document constitute a will as such. It is directed at whether the deceased intended the document to have effect as a testamentary instrument."
23 In the same case his Honour Owen J went on to say this at par 26:
"But seems to me that the court must be able to infer from the circumstances that the deceased adopted or authenticated the document such as to show that he or she intended the document to take effect as a testamentary instrument. The availability of independent evidence, (and by that I mean evidence apart from the document itself) makes the task of proving the will considerably less difficult."
(Page 7)
24 In Mittoni v Bradley [2003] WASC 114 par 59 Hasluck J said this:
"As to this question it has to be said immediately that prima facie the document does purport to record the deceased's testamentary intentions. The document is described in its opening words (which are printed in large and bold print) as a last Will and Testament. In bold print, reference is then made to the revoking of all other wills. The person appointed as executor is directed that "my funeral and testamentary expenses and all my debts shall be paid as soon as conveniently may be after my decease." Those words must have conveyed to the deceased, as they would convey to any ordinary member of the community that this was a formal document that was intended to take effect as a Will upon the death of the person signing the document. "
25 Further, in Mittoni's case Hasluck J said this at par 67:
"Weight must also be given to the fact that it was signed by the deceased in the presence of witnesses who were obviously summoned to act in that capacity."
26 As to the issue of testamentary capacity the propounder 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 of understanding. If there is evidence to the contrary it is for the proponent to establish affirmatively that the testator was of sound mind. There must be proof at least to this extent on the civil standard to justify a grant in solemn form, West Australian Trustee Executor and Agency Company Limited v Holmes (1961) WAR 144.
27 In Bailey v Bailey (1924) 34 CLR 558 Isaacs J at 570 summarised the effect of certain decided cases. He said that the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it. The propounder's duty is, in the first place, discharged by establishing the prima facie case. A prima facie case is one which satisfies the court judicially that the Will propounded is the last Will of a free and capable testator. It is not the integrity of the body but of the mind that is requisite in testaments.
28 Isaacs J went on to say that the quantum of evidence must always depend upon the circumstances of each case including reference to the complexity of the relevant provisions, the exclusion of persons naturally having a claim on the testator, the presence of any person having a motive
(Page 8)
- and opportunity and exercising undue influence or taking a substantial benefit.
29 Once the proponent establishes a prima facie case of sound mind, memory and understanding then the onus of proof lies on the party impeaching the Will to show that it ought not to be admitted. Mere proof of serious illness is not sufficient. There must be clear evidence that undue influence was in fact exercised or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.
30 In Worth v Clasohm (1952) 86 CLR 439 the High Court held that the effect of a doubt initially is to require a vigilant examination of the whole of the evidence, however, the examination having been made a residual doubt is not enough to defeat a claim for probate unless it is thought by the court to be substantial enough to preclude a belief that the document is the Will of a testator who possessed sound mind, memory and understanding at the time of its execution.
31 Let me now return to the circumstances of the present case. I will look firstly at the testamentary intentions issue. The subject document dated 1 June 1999, is a standard Will form with the blanks completed in Beryl James' handwriting, that is, the handwriting of the deceased. I pause there to observe that the observations made by myself as the presiding Judge in Mittoni v Bradley (supra) which I mentioned earlier, therefore can be seen to be applicable to the circumstances of the present case.
32 As I review the evidence I note that there is evidence before me that the deceased asked Desmond Gobby to witness the subject document as her Will and to keep it in his safe. Desmond Gobby's affidavit evidence sworn 14 September 2005 includes the following passages and I quote:
"(26) Beryl then prepared a will and she requested me and my wife Karen to sign as witnesses to that will.
(27) When I did not immediately go over and sign as a witness Beryl 'hounded me' until I went over and signed.
(28) I found that the best way to deal with Beryl was to be co-operative with her.
(Page 9)
- (29) Beryl was a very demanding lady. When she wanted something to be done for her and that something was not done for her almost right away.
(30) I went across to her premises to sign the Will without Karen who refused to go to her house. It was during the afternoon.
(31) Beryl gave me her Will to witness which had already been signed and dated by her.
(32) She told me that this was her last Will and that she had excluded Toni from her Will..."
33 I will pass over an exclamation of personal animosity bearing upon the decision to exclude, however, Mr Gobby went on to say that he read the subject Will and signed the same as a witness. His signature was done on a day after 1 June 1999 but he could not recall what date or how long after that he signed as a witness. The deceased asked him to keep the Will in his safe.
34 In my view the Court can infer that the deceased Beryl James intended the subject document to constitute her Will, that is to take effect as her testamentary instrument manifesting her testamentary intentions.
35 Such an inference can be drawn from the facts that the document was a standard Will form; that it was completed by the deceased in her handwriting and signed by her; that she requested Desmond Gobby to witness it; that she spoke of the document as having an effect on the distribution of her assets after death; that she requested Desmond Gobby to keep it in a safe place.
36 As to the testamentary capacity issue I consider that weight must be given to Mr Gobby's evidence that the deceased was on medication and rational and calm when the subject Will was prepared and executed.
37 The affidavit of Dr Roderick Mason serves to establish that the deceased had testamentary capacity. The affidavit of Lois Mary Achimovich, who is a consultant psychiatrist, excludes a demented state. The latter deponent said in her report dated 1 August 2000, being a report directed to the issue of testamentary capacity, that the deceased was not demented when examined by Ms Achimovich reasonably close to the time at which the subject document was executed.
(Page 10)
38 According to Ms Achimovich the deceased's mental state with regard to organic brain function was said to be normal. There is no persuasive evidence that the illness of the testatrix affected her mental faculties as to make her unequal to the task of disposing of her property.
39 For these reasons I am satisfied that the Court should decree probate of contents of the document dated 1 June 1999 in solemn form of law. I will also make an order that the costs of the application be paid out of the estate of the deceased.
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