Warner v Martin
[2024] WASC 149
•1 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WARNER -v- MARTIN [2024] WASC 149
CORAM: HOWARD J
HEARD: 16 APRIL 2024
DELIVERED : 16 APRIL 2024
PUBLISHED : 1 MAY 2024
FILE NO/S: CIV 1471 of 2022
BETWEEN: IAN KEITH WARNER
First Plaintiff
GARRY EDMUND MARTIN
Second Plaintiff
AND
ROBERT MARTIN
First Defendant
BRUCE MARTIN
Second Defendant
GRAEME JOHN MARTIN
Third Defendant
Catchwords:
Application to prove will in solemn form - Following Deed of Settlement and Release plaintiffs given leave to proceed on an undefended basis - Whether testator had testamentary capacity - Will proved in solemn form
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application allowed
Category: B
Representation:
Counsel:
| First Plaintiff | : | JB Hedges SC |
| Second Plaintiff | : | JB Hedges SC |
| First Defendant | : | No Appearance |
| Second Defendant | : | No Appearance |
| Third Defendant | : | No Appearance |
Solicitors:
| First Plaintiff | : | Minter Ellison |
| Second Plaintiff | : | Minter Ellison |
| First Defendant | : | Butlers Lawyers & Notaries |
| Second Defendant | : | Butlers Lawyers & Notaries |
| Third Defendant | : | Butlers Lawyers & Notaries |
Case(s) referred to in decision(s):
Banks v Goodfellow (1870) LR 5 QB 549
Saunders v The Public Trustee [2015] WASCA 203
Wheatley v Edgar [2003] WASC 118
HOWARD J:
(These reasons were delivered ex temporaneously and have been lightly edited from the transcript.)
By a writ endorsed with a statement of claim dated 13 May 2022, the plaintiffs seek to prove in solemn form, a will dated 30 November 2019 (2019 Will) of Betty Martin who died on 17 August 2021 (Deceased).
The following facts are taken from the evidence led by the plaintiffs at Trial and were not contested.
The Deceased was born 30 September 1927 and died in the State on 17 August 2021. She was 93 years old at the time of her death and had married only once. Her husband pre‑deceased her in March 2006. She had no children and had not entered into a de‑facto relationship.
She and her husband had in 1998 what can be described as 'mirroring' wills prepared by their solicitor, Mr Warner. This 'mirror' will of the Deceased's is referred to below as the '1998 Will'.
By those two wills, each had left their entire estate to each other, and then, on the death of the survivor, into 11 equal shares. Those were to be distributed:
1.to the Deceased's brother, William Martin, known as Harry Martin, and his wife Hazel Martin;
2.their five children, Robert Martin, who is the first defendant, Bruce Martin, the second defendant, Graham Martin, the third defendant, Margaret Harewood and Diane Blanchard;
3.the Deceased's husband's sister‑in‑law, Audrey Martin; and
4.her three children, Garry Martin, the second plaintiff, Alan Martin and Lindsay Martin.
I note that from the Deceased's husband's death in 2006, the company Takari Holdings 1998 Pty Ltd, which was the private company owned solely by the Deceased and her husband, was then directed by the Deceased and Mr Warner.
The plaintiffs were appointed joint executors and trustees of the 2019 Will by its cl 1. They are accordingly proper plaintiffs in this matter.
The first and second defendants, who are the Deceased's nephews, being children of the Deceased's husband's brother, Harry Martin, and his wife Hazel Martin, filed a Caveat with the Probate Registry on 10 March 2022. These proceedings were subsequently commenced by writ.
Initially, the defendants contested the Deceased's capacity to make the 2019 Will and disputed its validity. They did so by a Defence and Counterclaim filed 24 June 2022.
By that counterclaim, the defendants sought to prove an earlier will made 24 March 1998 (1998 Will) in solemn form. That was the will which was prepared by Mr Warner as noted above.
Under the 2019 Will, the Deceased nominated eight beneficiaries, being her nieces and nephews. The beneficiaries included the three defendants and the second plaintiff. The remaining three beneficiaries were given notice of the proceedings but elected not to participate in the proceedings.
The living beneficiaries of the 2019 Will were also beneficiaries in the 1998 Will. However, by the 2019 Will the Deceased reduced the legacies to the five children of Harry and Hazel Martin. As noted, three of those five beneficiaries are the defendants in this matter.
A reply to the Defence and Counterclaim was filed by the plaintiffs on 18 July 2022.
The parties provided discovery, and filed lay and expert evidence.
Expert reports were prepared by:
1.Dr Nick De Felice dated 6 September 2023;
2.Dr Olivia Lee dated 29 September 2023; and
3.Dr De Felice and Dr Lee dated 13 November 2023 (2023 Joint Report).
The 2023 Joint Report reported that the experts were agreed as to the following:
1.neither of the doctors had examined the Deceased;
2.they both were working from medical notes that they had been provided;
3.they both considered that the Deceased had some cognitive impairment and some dementia, and that the Deceased's judgement was most likely impaired at the time of making the 2019 Will;
4.however, both agreed that there was no information to determine accurately the Deceased's testamentary capacity based on the information available to them.
Notwithstanding that they agreed on those matters, they did have different levels of confidence in the Deceased's likely testamentary capacity.
From the medical reports, what I have taken is that the doctors - and I say this without criticism - were unable, notwithstanding their eminence and the material they had reference to, to put an opinion to the Court as to the Deceased's testamentary capacity at the time of making the 2019 Will.
Following the 2023 Joint Report, a Deed of Settlement and Release was entered into on 9 February 2024 between the plaintiffs and the beneficiaries of the 2019 Will, which agreed to the following orders in this action:
1.the defendants will file a notice of intention to abide by decision;
2.the plaintiffs will continue with this action for orders seeking leave for their action for proof in solemn form of the 2019 Will to an uncontested trial;
3.the defendants are to bear their own costs of the proceedings; and
4.the executors' costs of the proceedings be paid from the estate.
The defendants subsequently filed a Notice of Intention to Abide by Decision on 15 February 2024.
Following the defendants' filing of the Notice to Abide by Decision, Orders were then made by Registrar Hosking on 15 February 2024, by which the Registrar gave:
1.leave to the defendants to withdraw and discontinue their Defence and Counterclaim pursuant to O 23 r 2(4) of the Rules of the Supreme Court 1971 (WA) (Rules); and
2.leave to the plaintiffs pursuant to O 73 r 19 of the Rules to enter the action for trial on an undefended basis, with evidence by affidavit.
The plaintiff's evidence
At the trial on 16 April 2024, the plaintiffs read the affidavits of:
1.Mr Hackett, a solicitor employed by the plaintiff's firm, MinterEllison and working on this matter made and filed 8 March 2024 with annexures 'AH‑1' to 'AH‑11';
2.Mr Warner, the first plaintiff and joint executor made and filed 7 March 2024 and annexures 'IKW-1' to 'IKW-6';
3.Garry Martin, the second plaintiff and joint executor, made and filed 7 March 2024 with annexures 'GEM-1' to 'GEM-4';
4.Ms Thorpe, a witness to the 2019 Will, made and filed 7 March 2024;
5.Ms McLay, a witness to the 2019 Will, made 5 March 2024 and filed 7 March 2024;
6.(second affidavit of) Ms Thorpe made and filed 13 April 2024; and
7.(second affidavit of) Ms McLay made and filed 12 April 2024.
Evidence of the first plaintiff
For reasons I will come to, the evidence of Mr Warner is the most probative of the Deceased's testamentary capacity at the making of the 2019 Will.
As I indicated, Mr Warner has had a long association with the Deceased and her husband: he acted for them while he had been a practitioner at Jackson McDonald and then afterwards; and Mr Warner was the second director of the Deceased's family company after the death of her husband in 2006, and he had drawn her 1998 Will.
In short, Mr Warner gives evidence of his business, professional and personal dealings with the Deceased from at least 2006 in his affidavit and says that if the Deceased were suffering from some sort of dementia or other cognitive dysfunction in 2019, it was not evident to him.
Significantly, for present purposes, in June of 2019, Mr Warner was told by the Deceased that she wished to change or amend her 1998 Will and described it as updating her will. She wished to remove those beneficiaries who had already died by that point and to differentiate in terms of the gift made between what she described as the 'inner cousins' and the 'outer cousins'.
Mr Warner deposes that the Deceased referred to the second plaintiff, Alan Martin and Lindsay Martin as the inner cousins; being the children of her husband's sister‑in‑law, Audrey Martin. And, she referred to the five children of Harry and Hazel Martin as the outer cousins.
Mr Warner deposes that the Deceased told him that she wished to update the 1998 Will to 'better reflect the relationship she had with the inner cousins as compared with the outer cousins'. However, she told Mr Warner that she did not wish to leave the 'outer cousins' out of her Will altogether out of respect for her husband.
Mr Warner deposes to June of 2019 as being the first occasion on which the Deceased raised with him updating her will.
Mr Warner then deposes to further conversations and instructions he received as to the updating of the will, including that the Deceased wished for the second plaintiff to remain an executor but that he, Mr Warner, should replace Graham Martin, one of Harry and Hazel Martin's sons, as executor. Graham Martin had been an executor of the 1998 Will and the Deceased told Mr Warner that she had seen little of him.
It appears from the evidence of both Mr Warner and Garry Martin that at this point, the Deceased had not discussed the changes with Garry Martin, but as a result of a conversation between the Deceased and Mr Warner, there was then a discussion between Mr Warner and Garry Martin as to the proposed terms of the new will. This appears to be the first occasion on which it was discussed with Garry Martin.
Mr Warner then deposes to preparing the Deceased's new will in draft, which became the 2019 Will, in manuscript and he has annexed to his affidavit a copy of that handwritten draft.
Mr Warner deposes to then having further discussions with Garry Martin to discuss the terms of the proposed updated will according to the instructions he had received from the Deceased.
Mr Warner deposes, then, that on the evening of 29 November 2019, he visited the Deceased at her residential aged care facility to discuss the draft updated will, and he was then satisfied that the Deceased had approved the draft updated will.
Mr Warner brought two witnesses, who I will come to below, to visit the Deceased the following day, so the Deceased could execute the draft will.
Mr Warner then deposes that on 30 November 2019, he visited the Deceased in her room at her residential aged care facility. He went through the terms of the updated will with the Deceased. He had her read the will and confirm to him that she understood its terms and she wanted to sign it. At this time it was only Mr Warner and the Deceased present.
After the Deceased confirmed that she understood the terms of the will and that she wanted to sign it, he asked Ms Thorpe and Ms McLay to enter the Deceased's room, and he then observed the Deceased and the witnesses, Ms Thorpe and Ms McLay, execute the will.
Mr Warner also gives some evidence about his observations of the Deceased during 2020 and 2021.
Evidence of the second plaintiff
Garry Martin's affidavit gives evidence of his involvement with the Deceased, which he says increased from about early 2016, when he started visiting the Deceased on a weekly basis.
Garry Martin observed that the Deceased had grown increasingly physically frail and he began to manage most of her bill payments and occasionally did her shopping.
Garry Martin deposes to the Deceased having moved to her residential aged care facility in 2019, which she told him, she had chosen because it was closer to his house in South Fremantle.
Garry Martin deposes that the Deceased granted him an enduring power of attorney in March 2017 to make it more convenient for him to continue as secretary of the private company, Takari Holdings, which I referred to above.
The second plaintiff gives evidence about having obtained two general medical general practitioners to witness the enduring power of attorney and obtained a letter from them attesting to the Deceased's capacity at that time.
The second plaintiff deposes to having visited the Deceased at least weekly from the time that she moved into the aged care residential facility until her death. He deposes that during those visits, he would go through the Deceased's bills with her and arranged payment of them by cheque or telephone using the Deceased's credit card, depending on what the Deceased requested.
The second plaintiff deposes to observing that the Deceased was not struggling with her understanding or memory, that she stayed up to date with the news and was able to comment on current affairs when they spoke.
He deposes that he observed that she was firm in her mind, unlikely to be easily led or influenced, was very clear when expressing what she wanted, was never dishevelled or unkempt in her appearance and was engaged with visitors in intelligent, coherent and lucid conversations.
The second plaintiff deposes to the Deceased suffering from urinary tract infections from time to time, which is a matter the expert doctors also comment on. It is a well‑known fact that urinary tract infections, particularly in older people, can present as a cognitive impairment, but if caused only by the urinary tract infection, are resolved when the UTI is treated.
He deposes to his conversations with the Deceased being meaningful and not superficial and their discussing such things as politics, the extended family, her City Beach home and what was happening in the world.
The second plaintiff deposes to not being involved in the Deceased's decision to amend her 1998 Will or in any instructions she gave to Mr Warner about this. That is obviously corroborated to some degree by Mr Warner's evidence.
The second plaintiff deposes that the first he learned of the Deceased's plans to update her will was in early November 2019, when the Deceased spoke to him about her intention to change the 1998 Will.
I do not need to recount what the Deceased told the second plaintiff at that point, and I accept his evidence that he did not seek, either with the Deceased or with the first plaintiff, to make comments, suggestions or requests about the changes.
The second plaintiff deposes to believing that the Deceased, at the time of making the 2019 Will, had a good understanding of her financial position, including the share portfolio of Takari Holdings, the cost of her accommodation at the residential aged care facility, the cost of meals they purchased together if they ate outside of the facility and other matters. Additionally, she knew how she wanted the assets of her estate to be distributed, knew who the named beneficiaries of the will were, where they lived and the names of their children.
Witnesses to the 2019 Will
Turning to the witnesses to the 2019 Will: Ms Thorpe and Ms McLay.
It appears from Ms Thorpe's and the first plaintiff's evidence that Ms Thorpe had something of an ongoing relationship with the Deceased, however, it appears that Ms McLay did not. It appears that Ms Thorpe had met the Deceased on at least one occasion before 30 November 2019 for a social lunch.
Evidence of Ms Thorpe
Ms Thorpe deposes to attending the aged care facility on 30 November 2019 with Ms McLay and the first plaintiff for the purpose of signing the Deceased's (2019) will.
Similarly to the evidence that Mr Warner gave, Ms Thorpe deposes that she and Ms McLay waited outside the Deceased's room until he called them in.
Ms Thorpe deposes to observing the Deceased sitting in a chair, being well dressed and as recognising her when she entered the room.
Ms Thorpe witnessed the Deceased execute the will in the presence of the first plaintiff and Ms McLay.
She deposes to having light conversation on that occasion with the Deceased. She gives evidence that she does not doubt that the Deceased has full testamentary capacity to sign the will and says that was because:
Her behaviour was normal for the circumstances, she was observant of her surroundings and appeared to understand everything that was taking place and played a full part in our conversation.
I find that Ms Thorpe did witness the 2019 Will and put her signature on the Will.
Evidence of Ms McLay
On the evidence, it appears Ms McLay did not know the Deceased prior to 30 November 2019.
McMclay deposes, consistently with the evidence of Ms Thorpe and the first plaintiff, that she waited outside the Deceased's room with Ms Thorpe and was then called into the room by the first plaintiff with Ms Thorpe.
She deposes to observing that the Deceased was able to follow the conversation occurring in the room and she deposes to witnessing the Deceased executing the Will. She deposes to observing Ms Thorpe put her signature as witness to the 2019 Will and then putting her signature as witness.
I find that she was a witness to the 2019 Will.
Ms McLay further deposes that while the conversation in the room was mostly small talk, the Deceased's participation in the conversation was active, apt and she conversed as any normal person does.
She deposed that the Deceased was lucid and poised in her speech, and nothing arose in the interaction which would suggest that the Deceased lacked understanding or was not in possession of her faculties.
Weight of the evidence given by the witnesses
With great respect to Ms Thorpe and Ms McLay, I do not place any weight on their opinions as to the testamentary capacity of the Deceased.
I note that nothing arose in their interactions which suggested that there was a lack of testamentary capacity. However, I find the evidence given by the plaintiffs to be more probative.
Matters about which to be satisfied
I adopt the test set out by Heenan J in Wheatley v Edgar [2003] WASC 118 [24], [26] (citations omitted) as to the matters I am to find before I could find the 2019 Will proved in solemn form:
1.the Deceased had capacity to make the 2019 Will;
2.the 2019 Will was properly executed; and
3.the plaintiffs then (in the absence of evidence to the contrary) may, if they establish the first two, take advantage of the presumption that the will was made by the Deceased being competent and of understanding.
In making the assessment as to the Deceased's testamentary capacity, I have had regard, as said, principally to the evidence of the plaintiffs and to the medical evidence which has been put before the Court.
I have had regard to the Court of Appeal's decision in Saunders v The Public Trustee [2015] WASCA 203 [159], where Mitchell J (as he then was) for the Court referred with approval to the traditionally accepted formula for determining testamentary capacity stated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549. In the passage approved of, Cockburn CJ said:
It is essential to the exercise of testamentary power that a testator shall understand the nature of the act and its effects, shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect and with a view to the latter object that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties.
In this case, I am comfortably satisfied that the Deceased had the testamentary capacity in accordance with the traditionally accepted formula. I find, consequently, that at all relevant times in November 2019:
1.the Deceased had capacity to make the 2019 Will;
2.the 2019 Will was the product of the Deceased's instructions;
3.the 2019 Will was duly executed; and
4.the Deceased was competent and understanding when she made the 2019 Will.
It is not determinative in any way that the three defendants, who were beneficiaries under the 1998 Will and then the 2019 Will, do not oppose the plaintiffs proving the 2019 Will in solemn form, but at the same time, that is not relevant to my consideration.
I will make Orders accordingly.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
1 MAY 2024
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