West v Smith
[2018] WASC 12
•17 JANUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WEST -v- SMITH [2018] WASC 12
CORAM: KENNETH MARTIN J
HEARD: 22 NOVEMBER 2017
DELIVERED : 17 JANUARY 2018
FILE NO/S: CIV 1816 of 2015
BETWEEN: JAMES BOWE WEST
Plaintiff
AND
NATHAN GUY SMITH
Defendant
Catchwords:
Wills and estates - Probate - Solemn form grant sought - Issue as to testamentary capacity - Inofficious exclusion of only issue from benefit under will - Residuary estate left to stranger - Counterclaim by son for invalidity of will and consequent intestacy and for administration
Legislation:
Administration Act 1903 (WA)
Result:
Application for solemn form grant of probate refused
Counterclaim established - grant of administration to son
Category: B
Representation:
Counsel:
Plaintiff: Mr H O Moser
Defendant: Mr C V Eastwood
Solicitors:
Plaintiff: Tan & Tan Lawyers
Defendant: Eastwood Sweeney Law
Case(s) referred to in judgment(s):
Banks v Goodfellow (1870) LR5QB 549
Bull v Fulton (1942) 66 CLR 295
Easter v Griffith (1995) 217 ALR 284
Fisher v Kay [2010] WASCA 160
In Re Gramp, Deceased; Finck v Gramp [1952] SASR 12
Lemon v Mead [2017] WASCA 215
Perpetual Trustees WA Ltd v Elliott [2009] WASC 76
Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698
Saunders v The Public Trustee [2015] WASCA 203
The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17
Vandeleur v Franich [1991] 1 Qd R 481
West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439
KENNETH MARTIN J:
Introduction
This is another sad probate action in which a plaintiff, Mr James Bowe West (James), seeks a grant of probate for the will of the late Mrs Diane Florence Smith (nee Viveash) (Diane) who died of heart related problems at her Doubleview home on 11 October 2014.
A grant of probate in solemn form is sought by James of Diane's will. The will in question was made on 27 April 1993, over 21 years before Diane passed away. James was named as the residuary beneficiary under the terms of Diane's will.
Overview of conclusions reached
Diane left a significant estate worth approximately $1.5 million at the time of her death on 11 October 2014, over 21 years after her will had been executed.
The defendant is Diane's only child, Mr Nathan Guy Hopetoun Smith (Nathan).
Nathan was born in 1962. He is the only son of Diane and her then husband, Mr Noel Hopetoun Smith (Noel). Diane and Noel married in 1960 when Diane was 22 years of age ‑ but they eventually divorced some time after they separated in October 1982.
Nathan was left nothing under the terms of Diane's will. In fact, Diane had her solicitors at the time draft a specific clause within her will explaining why she had reached a decision to exclude her son completely.
James who was born in 1953 had never met or even heard of a Diane Smith in his life prior to October 2014. That was when James was contacted by Nathan and told that James had been named as Diane's residuary beneficiary under the terms of her will.
There is a further curious aspect to Diane's will. She had named James' father, Mr Bruce West (Bruce), of Rockview Farm, Kondinin, as her institute (first choice) executor.
In 2014, when James first told his father about his appointment as executor, Bruce, who is of advanced years, told his son that he could not remember a Diane. However, some days later Bruce told James that he did remember her.
At the trial it emerged from the verbal evidence of James that from what his father told him, Bruce and Diane had gone out on a date or two together at some time. That was a period after Diane and her former husband, Noel, had divorced.
As I mentioned, James was born in 1953 and is now 64 years old. He is a retired farmer now living in Subiaco. His father, Bruce, is still alive aged in his 90s, and living in Fremantle, after his retirement from farming on the family's Kondinin family farm, only relatively recently.
Unsurprisingly, Bruce renounced his appointment as the named first choice executor under Diane's will. So too did the named substitute executor under Diane's will. That substitute executor was a lawyer, Mr Brian Bennett (Mr Bennett).
In April 1993, at the time Diane made her will, Mr Bennett appears to have been working with a law firm, Stephen Rando & Co which was then located in Mount Hawthorn. It would appear that Mr Bennett played a part in the drafting preparation of Diane's will. He is now retired, but has sworn affidavits for the purposes of these proceedings, the content of which I will discuss separately.
Save to say for present purposes that Mr Bennett confirms by affidavit at this trial that he was one of the witnesses to Diane's signatures applied across the pages of the 1993 will instrument , including at the attestation clause. The other independent witness is a Ms Margaret Taylor confirmed by Mr Bennett's evidence to be described as a legal secretary, who Mr Bennett confirms acted in that role generally and later worked for Mr Bennett.
On the trial evidence Diane's 1993 will in all respects appears to have been regularly executed by Diane and witnessed by two adults. That is so, notwithstanding the curiosity associated with an exclusion of Nathan as her only child from all benefit independently and her naming of James as her residuary beneficiary ‑ in circumstances where it is clear that across all his 64 years James held no recollection of having ever encountered Diane.
Nevertheless, as a named residuary beneficiary under Diane's will (and upon the two named executors removing their appointments) James now moves the court by his action at trial for a grant of probate in solemn form of Diane's will.
James has established on the trial evidence that Diane's will of 27 April 1993 was regularly executed.
On the other hand, Nathan as defendant resists such a grant of probate of Diane's 1993 will.
Nathan contends by a counterclaim at this trial that as at 27 April 1993 his mother lacked the requisite testamentary capacity to make a valid will. That was, Nathan submits, by reason of a mental disorder that afflicted her and which delivered it is said, the consequence of depriving Diane of being able to direct any rational level of consideration towards Nathan as her only child and as someone who ordinarily would be, to use the terminology of the old cases, a clear 'object of her bounty' when Diane came to make that testamentary disposition in 1993.
Consequently, Nathan seeks by his counterclaim that this court declare against the validity of the 1993 will of his mother.
A correlative consequence of such a declaration of invalidly in present circumstances would be a resulting intestacy. There is no evidence of any earlier will or testamentary disposition made by Diane before 1993. Given all that, Nathan is Diane's only surviving issue. The consequence would follow that Nathan would be entitled to all of Diane's estate on an intestacy, if her 1993 will is declared to be invalid.
As a matter of law, the legal onus of establishing testamentary capacity in a deceased who has left a will, falls upon the proponent of the will, at the civil standard of proof (ie on the balance of probabilities). In the present case, the onus of proving testamentary capacity of Diane as at April 1993 falls upon the plaintiff, James.
In the end, and notwithstanding what is a usual evidentiary presumption towards the existence of testamentary capacity that arises from the proof of a regular execution of the 1993 will, I nevertheless have reached a clear conclusion from all of the trial evidence that Diane was indeed suffering from a significant mental disorder which negated her testamentary capacity at the time she executed her will in April 1993.
After 1993, Diane's mental condition, from the trial evidence, deteriorated even further over the 21 years that followed ‑ up until the time of Diane's ultimate death in 2014.
Evidence adduced at the trial as to Diane's increasingly bizarre and irrational conduct across the years after 1993 and up until her death in October 2014 ‑ is only relevant and admissible to the extent that it provides insights back towards the state of her testamentary capacity at the time she made her will as at April 1993. But the unchallenged psychiatric evidence at this trial is that Diane's conduct after 1993 confirms a conclusion as to her subsisting and deteriorating mental disorder as at April 1993. That is a conclusion that could be reached on the trial evidence, if necessary, solely from the evidence of events concerning Diane occurring up to 27 April 1993. The evidence of events after then simply confirms and reinforces that conclusion.
Consequently, Diane's will I find has not been sufficiently propounded to be accepted for a grant of probate in solemn form. James' action to that end must fail. Correlatively, Nathan's counterclaim must succeed.
On Nathan's counterclaim, I am satisfied that under the Administration Act 1903 (WA) there should, given the resultant intestacy suffered by his mother, be a grant of letters of administration to him as Diane's only issue.
Findings of essential facts
Diane was born in Western Australia in March 1938. That was approximately 18 months before Nazi Germany invaded Poland leading to the ensuing outbreak of World War II.
Diane was 76 years old at the time of her death on 11 October 2014.
A significant part of Diane's childhood appears to have been lived in rural areas of Western Australia. She spent time at school in Northam, then at Katanning. Diane's family, which included her two sisters, Rosemary and Barbara, later moved from the country to Perth. They resided at Mount Lawley and later at Byford for a time.
Diane left school at 15 to attend a business college (I assume in Perth). That was where she learned to type.
In 1960 (then aged 22) Diane married Noel, who was an accountant. Together they had one child, a son, Nathan, born in 1962.
Nathan attended primary school in Perth, initially at Doubleview Primary, but later at Hale School. Nathan's evidence was that his paternal grandmother paid for his education at Hale.
Nathan's evidence at trial
Nathan's trial evidence related that he had suffered a most unhappy childhood. The related circumstances are truly heartrending. I do not feel it necessary to recount them in any more detail than is absolutely necessary.
Nathan experienced in his childhood an undiagnosed hearing problem for many years growing up which was severe. To his credit, Nathan completed year 12 at Hale in 1980. He then began a course of study at Wembley Technical College to obtain a certificate in civil engineering in a two-year course across 1981 - 1982. Nathan was still living at home in Doubleview during this period.
Shortly before his final examinations Nathan's parents separated and Noel left the Doubleview family home. That happened in October 1982, when Nathan was 20 years of age, leaving Nathan living at the home with his mother.
Nathan's parents then embarked upon a long and acrimonious process of divorce through the courts. (By her will by cl 3(d) Diane made a bequest of a portrait of herself to her barrister in her divorce proceedings, a Mr J Spender QC - the gift was declined.)
In 1983, Nathan attempted to continue further studies at Wembley Technical College to gain a diploma in civil engineering. But, as he related at the trial, Nathan could not afford to continue in that course and eventually dropped out.
Nathan's evidence related in this period his considerable difficulty in his relationship with his mother, leading Nathan to become severely depressed.
Eventually, at the urgings of a friend, Nathan moved out of the Doubleview home. That was in early 1984. It followed a row with his mother after an incident in which Nathan says that he was struck in the face by one of her friends in circumstances in which Diane not only did nothing but actually endorsed the assault on her son.
Nathan was now 21 or 22 years of age. He left the Doubleview home and moved to stay with his friend at a location in Wembley.
There now followed some further contact with his mother after these events, during which time Diane requested Nathan to return home. But he declined. Diane then told him, in effect, that if he did not return to live at home he would get nothing under her will.
She was true to that promise.
Nathan did not resume his residence at the Doubleview family home, although he did return from time to time to see his mother, to collect some things and to try and speak to her. On one occasion, she told him that she had given all his things away.
By early 1985 Nathan had obtained permanent employment in the north‑west of Western Australia with Mount Newman Mining (now BHP). As a working adult he now became residentially based in the north‑west of Western Australia.
Nathan remained living and working at Mount Newman and only visited Perth for short weekly periods each year. On those occasions Nathan relates that he would always attempt to see his mother by attending at the Doubleview house. Frequently, he would visit the house to see the curtains move. But his mother would not answer his knocking at the front door. On other occasions, when she did answer, she was cool and formal, requiring him to remain outside on the verandah while she spoke to him. Nathan would do some maintenance or gardening work on the outside of the Doubleview house to assist his mother. Nathan was never allowed inside the house.
At a point Diane changed her landline telephone number. She would not disclose it to her family including to Nathan. Hence, Nathan was from then unable to contact his mother by telephone. Nevertheless, he often wrote to her from Mount Newman. His letters were never answered. He says that he never received a written communication from his mother whilst living and working in the north-west. Christmas and birthdays elicited no contact from Diane to Nathan.
Around 1990, Nathan met his future wife, Gemma. They became engaged. Diane was invited to their engagement party. She did not attend. Likewise, when they married in 1992, Diane was invited to the wedding. Again, she did not attend.
On 4 October 1995, Nathan and Gemma's first daughter, Georgina, was born.
In 1999 the family moved from the north‑west to the Perth suburb of Padbury. Ongoing efforts by Nathan to engage with his mother over this period, including going to the Doubleview home and introducing his young daughter and his wife, were essentially rebuffed by his mother.
In 1993, Diane engaged a Perth law firm, Stephen Rando & Co, to prepare a will for her which she had executed on 27 April 1993. As I earlier related, the terms that 1993 will left nothing to Nathan. In fact, a clause expressly excluding Nathan was explicitly inserted in the will.
By her 1993 will Diane also specifically excluded her sisters under another clause.
Apart from one or two bequests of her chattels to others, Diane left all her (considerable) residuary estate to James, the son of Bruce.
The next section of these reasons relates why I am, in the end, not satisfied that Diane's 1993 will has been sufficiently propounded to be a subject of a grant of probate in solemn form to James. I explain why on all the evidence I hold significant and unresolved doubts over Diane's testamentary capacity as at April 1993.
Before all that, however, I need to address three matters. First, I need to set out the affidavit evidence of Mr Bennett concerning his recollections as to the 1993 execution of Diane's will. Second, I must discuss some of the significant case law in this area, including Western Australian case authority. Third, I need to identify some explicit caveats that must be seen applicable in this unusual and exceptional case.
The evidence of Mr Brian Bennett
Mr Bennett's affidavit provided by my leave, after the trial, says:
1.The facts deposed to in this affidavit are true to the best of my knowledge, information and belief.
2.In 1993 I was employed by Stephen Rando & Co as a lawyer.
3.I witnessed the deceased's signature on her will executed on 27 April 1993 ('the Will'). Now produced and shown to me and marked with the letters 'BGB‑1' is a true copy of the Will.
4.Margaret Taylor, a legal secretary of the law firm Stephen Rando & Co in 1993, also witnessed the Will.
5.I remember Margaret Taylor very well, because after I left Stephen Rando & Co in about 1995 to practice law as Brian G Bennett & Co, she worked for me as my typist.
6.It was common practice that Margaret Taylor would witness wills drawn by Stephen Rando and by me, while I was employed at Stephen Rando & Co.
7.I recognize Margaret Taylor's signature and handwriting on the Will.
8.Under the Will I was appointed as a substitute executor.
9.I have no memory of the deceased.
10.I have no memory of the circumstances surrounding the execution of the will.
11.Either Stephen Rando or I would have taken instructions from the deceased and drafted her will, because he and I were the only solicitors in his legal practice Stephen Rando & Co.
12.It is my belief that the file of the deceased at Stephen Rando & Co has been destroyed so I have not been able to determine if I took instructions from the deceased.
13.My said believe is based on the fact that after I told Tan and Tan Lawyers to enquire from Stephen Rando about the whereabouts of the file, Tan and Tan Lawyers informed me that Stephen Rando had informed them that the file had been destroyed.
14.When taking instructions for will drafting I would always refer a client to a medical practitioner or a medical specialist if I had any doubts about the client's mental capacity.
15.I have no memory of referring the deceased to a medical practitioner for assessment of her mental capacity.
16.I believe that if I had doubts about the deceased's mental capacity it is likely that I would remember that.
17.If I had taken instructions to draw the Will, I would have referred her to be assessed by a medical practitioner.
18.If Stephen Rando had drawn the will, I would have expressed to him my concern about her mental capacity to make a will, and I believe that, had I done so, I would remember having done so.
That evidence is uncontradicted and I accept it.
The law
The following section attempts to synthesise relevant legal principles concerning the interrelationship between the due execution of a will and the testamentary capacity of a testator/testatrix.
1.There is a distinction between a grant of probate issued in common form, by contrast to a grant of probate in solemn form. The legal distinction is comprehensively explained by EM Heenan J in Wheatley v Edgar [2003] WASC 118, and again by his Honour in The Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 (affirmed on appeal Saunders v The Public Trustee [2015] WASCA 203 (Buss JA, Beech & Mitchell JJ)).
2.For a court to issue a grant of probate in solemn form a propounder of the will must at minimum adduce evidence as to due execution of the will: see Wheatley v Edgar [24].
3.Upon proof of the due execution of a will three evidentiary legal presumptions arise namely towards showing:
(a)testamentary intention;
(b)testamentary capacity; and
(c)knowledge and approval of the contents of the will
See Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J); and Fisher v Kay [2010] WASCA 160 [85] (Owen, Buss & Murphy JJA agreeing).
4.There is a presumption of due execution towards a will that on its face appears regular and bears the signature of a testator (or testatrix) and two witnesses (see In Re Gramp, Deceased; Finck v Gramp [1952] SASR 12 applied by Owen JA in Fisher v Kay [83]). (As a matter of fact, that is the position now established by the evidence at this trial).
5.But where a grant of probate is sought in solemn form there must at minimum be evidence from the propounder of the will that is adduced as to due execution: see again Wheatley v Edgar [24], and cases there discussed by EM Heenan J. His Honour had observed:
In this regard 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 propounder to establish affirmatively that the testator was of sound mind: Western Australian Trustee Executor Agency Co Ltd v Holmes [1961] WAR 144. Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form [24].
Note also Vandeleur v Franich [1991] 1 Qd R 481, 484 ‑ 485 (Macrossan CJ) (cited in Wheatley v Edgar at [25] (EM Heenan J)); including its citation from the 16th edition of Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, (1982), dealing with trial evidence in the Short Probate List in England:
Where a will is being set up, evidence of one of the attesting witnesses should be adduced. Affidavit evidence will usually be sufficient. Where the circumstances raise strong doubt as to the testamentary capacity of the deceased it is advisable to call medical evidence, if available, to show capacity (401 ‑ 402).
6.The court cannot issue a grant of probate in solemn form merely upon the consent of the parties, or because the matter is uncontested at a trial: Perpetual Trustees WA Ltd v Elliott [2009] WASC 76 [59] (Hasluck J).
7.Where there is evidence which raises a 'real doubt' as to the validity of a will, then the effect of such doubt is to require the court's 'vigilant examination' of the whole of the evidence: Worth v Clasohm (1952) 86 CLR 439 [18], referred to in Perpetual Trustees WA Elliott [63] (Hasluck J). (As a matter of fact, that is the position I have reached on the evidence adduced at this trial).
8.It is always for the party propounding a will and especially so where a doubt is raised, to positively establish, that the element of testamentary capacity in these circumstances is established: see West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144 applied in Wheatley v Edgar [24] (EM Heenan J).
9.The legal test to prove testamentary capacity remains as was classically articulated by Sir Alexander Cockburn CJ in Banks v Goodfellow (1870) LR5QB 549, establishing a three‑limb threshold. The testator must:
(a)understand the nature and effect of the act of making a will and its effect;
(b)understand the extent of property of which they are disposing; and
(c)be able to comprehend and appreciate the claims to which the testator or testatrix ought give effect and that no disorder of the mind shall poison the testator or testatrix's affections, pervert their sense of right, or the prevent the exercise of their natural facilities - that no insane delusion shall influence their will in disposing of their property and bring about a disposal of which, if the mind had been sound, would not have been made.
10.In Easter v Griffith (1995) 217 ALR 284, a New South Wales Court of Appeal comprising Gleeson CJ, Kirby P and Handley JA revisited the Banks v Goodfellow formulation of testamentary capacity. Gleeson CJ (with whom Handley JA agreed, Kirby P dissenting) discussed Banks v Goodfellow and observed (290):
Mental infirmity of a kind which denies testamentary capacity does not necessarily involve 'insane delusions'. In Harwood v Barker (1840) 3 Moo PC 282, the testator was said to have a bodily disease affecting the brain and was greatly debilitated physically. He was said (at 285) not to have been suffering from any delusion, but was found not to have been in a state of mind to judge the propriety of his dispositions. (See also Battan Singh v Amirchand [1948] AC 161).
After referring to the accepted definition of a 'delusion' as considered by the High Court in Bull v Fulton (1942) 66 CLR 295, 339 as being a 'fixed and incorrigible false belief which the victim could not be reasoned out of', Gleeson CJ (NSW) then rendered some further observations endorsing the approach of the trial judge (Santow J). He said:
As Santow J observed, psychiatric knowledge has developed a great deal since those early formulations of the relevant legal principles. There is a degree of artificiality in seeking to force all manifestations of 'insanity' under the rubric of delusion. Where the existence of a material delusion can be shown, then the relevance of that to an issue as to a person's ability to comprehend and appreciate the claims upon his or her bounty may be clear and direct. ... The attention paid to delusions is understandable, but the law must be sufficiently flexible to take account of developments in psychiatric understanding. The critical question, in a case such as the present, concerns mental capacity to comprehend and appreciate the claims upon one's bounty.
Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.
In this area of discourse the concept of delusion is not restricted to false beliefs about objective facts ... . Delusion may also consist in, or involve, a value judgment where 'the judgment is so extreme as to defy credibility'. (See the definition in the Diagnostic and Statistical Manual of Mental Disorders, 3rd Ed, Revised (DSM-III-R), 1987, issued by the American Psychiatric Association and cited by M Spitzer, 'On Defining Delusions' (1990) Comprehensive Psychiatry, Vol 31, No 5 at 395). In practice, however, it may be much easier to characterise a belief about a matter of objective fact as irrational and the product of a disorder of the mind than it is to characterise a value judgment as so extreme as to warrant the description of a delusion. The scope for difference of opinion about the character of other people, in particular, is so wide that great care needs to be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion (290 ‑ 291).
11.The issue in Easter v Griffith (where the underlying facts resonate closely with the present) was whether a testatrix 'ultimately came to suffer from a form of mental disturbance which made it impossible for her to judge [her son] rationally'. Gleeson CJ endorsed the premise that 'it was unnecessary for [the trial judge] to make a positive finding that the testatrix was suffering from insane delusions in order for the onus of proof of testamentary capacity to fall upon the party propounding the will' (292).
12.For some cases, of which Worth v Clasohm is an example, a deceased can be proved to be clearly suffering from a 'delusion'. Then the critical question will be whether the delusion was relevant to the validity of the will. In such cases it is the finding of the 'delusion' which raises the doubt as to testamentary capacity and requires 'vigilant examination' in which the plaintiff must satisfy the court that there was testamentary capacity.
Notwithstanding 12 above, it does not follow that a positive finding of 'delusion' is necessary in order to raise a doubt as to capacity. It is not necessary to address evidence which raises doubt about testamentary capacity under the rubric of delusion: see Mitchell J dismissing the appeal from EM Heenan J's decision in Saunders v The Public Trustee.
13.As was formulated in Easter v Griffiths¸ by Gleeson CJ, what was proved there was a 'mental disturbance, and a judgment [by the testatrix] that could be characterised, not merely as being unfair, but as being the product of mental disorder' (293).
Significant caveats bearing upon my conclusions in the present litigation
I need to collect and articulate some qualifications prior to my evaluation of the significant issue in this trial concerning Diane's testamentary capacity as at 27 April 1993.
First, subject to the law of the land, a person may dispose of their property under a testamentary disposition as freely as they choose. In other words, what they do with their property is, essentially, their own business. To an extent, however, legislatures across Australia have qualified that commencing platform of testamentary freedom under principles I next mention.
Second, the provisions of the Family Provision Act 1972 (WA) of Western Australia and its equivalents in other States and, indeed, across the common law world, display what are essentially a legislative curtailment of complete testamentary freedom. A testator or testatrix by the law of the land is called upon to provide for the adequate welfare, maintenance and advancement in life of their dependants. If they do not, then their will is vulnerable to being challenged and being set aside or altered to make it compliant with that legislative expectation and statutorily imposed responsibility. As a most recent policy in action illustration of that, see Lemon v Mead [2017] WASCA 215, where that task was undertaken by the court.
Third, there is no Family Provision Act claim advanced by Nathan presently challenging his mother's 1993 will. His counterclaim in this litigation is very different in its challenge. It is not a statutory challenge. His base contention is that his late mother in 1993 lacked the requisite testamentary capacity to make a valid will. As seen, there is no earlier will of his mother that might, in substitution for the 1993 will, be admitted to probate as her last will and testament. Consequently, if Nathan establishes his counterclaim, the outcome is an intestacy for Diane. Since Nathan is her only child, all Diane's estate essentially falls to him.
Fourth, evidently the late Diane at a trial conducted in 2017, was not presently capable of speaking for, or defending herself. She is thus, as a matter of process, forensically deprived of any opportunity to personally hear and answer the challenges now advanced against her testamentary capacity. Accordingly, there is a real need in such unilateral circumstances of challenge for forensic caution by a court. It is too easy to raise pejorative allegations against someone not around to defend themselves.
Correlatively, it is always more comfortable for an accuser to advance an attack against someone's reputation, character or testamentary capacity if the object of the complaints is not around to hear what is said to their face by direct confrontation. Knowledge that such criticisms and challenges will essentially never be incapable of ever being directly responded to can, as a matter of pure human nature, tend to embolden the 'Dutch' courage of an accuser.
These theoretical forensic considerations all need to be and have been kept in mind as potential pitfalls or hazards bearing upon the present case.
Fifth, in the present trial, Nathan led expert evidence from a highly qualified psychiatrist. This was Dr De Felice (Dr Felice), who had been briefed and provided with information about Diane some two years after Diane's death. The briefing was by Nathan's legal representatives. Dr Felice was then asked to write a report with his observations upon Diane's mental state, based upon materials supplied to him. Necessarily, by the very nature of the briefing process the material Dr Felice saw about Diane was always limited. Mainly, it consisted of a significant bundle of typed diary entries which Diane apparently made during her life and which had been obviously located after her death. Parts of Diane's diaries came to be analysed by Dr Felice in two trial reports.
Other materials provided to Dr Felice included some of Diane's medical records, obviously either obtained by Nathan's legal representatives either on subpoena, or by pursuing freedom of information requests. Again, this material provides a rather clinical and one dimensional perspective towards a patient's full life and character.
Other materials provided to Dr Felice for him to carry out his assessment of Diane's mental state ex post facto and to write reports, included Nathan's witness statement tendered in this trial and a brief witness statement of James. (James looks to have been actively co-operative with Nathan's legal representatives in the trial process. James' witness statement tendered at the trial was on its face seen marked as being prepared by Nathan's solicitors of record.)
Dr De Felice's evidence at trial
As he frankly accepted under questioning by me at the trial, Dr Felice had never examined Diane whilst she was alive. He did not ever enjoy the benefit of holding a discussion with Diane's (retired) general practitioner, or with any friends who had known Diane during her life. Nor even, did he speak with her ex-husband, Noel, who Nathan related during his trial evidence was still alive, and working as an accountant albeit now in his 80s.
In effect, therefore, as Dr Felice fully accepted, his psychiatric reports concerning Diane were necessarily prepared upon the sterile basis of a non‑holistic and limited perspective presented to him concerning Diane's life - in circumstances where Dr Felice obviously never had the opportunity of directly assessing Diane as a living patient.
Materials provided to Dr Felice included an extensive amount of documentary evidence concerning Diane's activities over the 21 years after she had made her will in April 1993, up to a time of her death in 2014. Dr Felice frankly accepted that this material was only relevant in assessing mental disorders to the extent that it casts some light back towards Diane's mental state at the time she had made her April 1993 will.
Nevertheless, Dr Felice's persuasive evidence was, and I do accept, that, evidence of incidents concerning Diane's behaviour post‑April 1993, provided useful insights towards Diane's likely state of mental health at April 1993. With the benefit of hindsight, these insights could be appreciated by a treating physician to detect earlier conduct indicative of a progressive scale of mental health deterioration, ultimately confirming for Dr Felice in his conclusions about Diane's mental health as at April 1993.
Dr Felice was quite sure Diane suffered from schizophrenia at the time of her death in 2014, which was a progressively deteriorating illness over years.
Dr Felice's trial evidence explained Diane's probable mental state at April 1993 this way:
[T]hat definitely by the late 1990s the ideas that she held at that time are, from the documents, clearly psychotic. They're clearly delusional ideas. So if one understands that and then one understands the nature of the illness, then one can extrapolate backwards … There is, of course, a degree of assumption that she was following the same course of illness that other people with schizophrenia follow. And so the assumption is that her schizophrenia or her psychotic processes were in train even in the 1990s ‑ early 1990s. And a psychiatrist would conclude that because when they see the evidence in 1997 or the early 2000s of florid psychosis, they understand this illness not to be something that usually arises de novo quickly. It's a disorder that progresses over time. So the natural history of the illness makes ‑ makes me conclude that in all probability, but certainly not with certainty ‑ in all probability, more likely than not, she actually still ‑ she actually had psychotic symptoms in the early 1990s (ts 66 ‑ 67).
I will accept that evidence as reliable. It is essentially uncontradicted.
Dr Felice was not provided with the further trial witness statement from Diane's sister, and Nathan's aunt, a Mrs Rosemary Thunder. She provided an unchallenged witness statement which was tendered at the trial without need for her cross-examination. Rosemary's unchallenged evidence addressed the conduct of her sister, Diane, over time, including, most relevantly for me, Diane's conduct at periods well prior to April 1993.
Dr Felice's information concerning materials within Rosemary's statement was only what had been related to him about some events as mentioned from it to him via Nathan.
Overall then in quite unusual and exceptional circumstances, I am left satisfied here that the trial evidence as a whole is such as to rise to a level of showing the legal onus as borne by James to propound the 1993 will of Diane as a will made by Diane with requisite testamentary capacity ‑ has not been reached. I would on all the trial evidence however, go further. I can conclude affirmatively that it has been proved on the balance of probabilities at the trial that as at 27 April 1993, when Diane came to execute her last will and testament prepared for her by the law firm of Stephen Rando & Co, that she was then incapable of forming a rational view of her only son Nathan's position ‑ as regards his potentially receiving some disposition out of her estate or, to use the terminology of the old cases, as an 'object of her bounty'.
I find affirmatively on the trial evidence, essentially out of statements made to Nathan by his mother during her life and seen again in her letters and communications made under Diane's own hand, that she was afflicted by a disorder of the mind in April 1993. In particular, I find that a mental disorder coloured Diane's ability in April 1993 to form any rational assessment about Nathan.
More specifically, I conclude that Diane was suffering from an auditory delusion of the mind in April 1993. This had manifested to the effect that Diane then believed that her late father (Mr Hugh Viveash, who had passed away in 1947, when Diane was a child of only nine) had nevertheless been regularly speaking to Diane (ie, from the grave). Even worse than that in Diane's mind at that time, she laboured under the misapprehension that her late father had been speaking to her from the grave in terms adverse to her son.
Nathan's trial evidence (which I accept) had recounted several incidents during his childhood where his mother had spoken to him, using words to the effect that as she told Nathan, her late father (ie, Nathan's grandfather) was 'not happy' with him (see exhibit 8, par 36). That had happened as a communication by Diane generally in a context of an insult spoken to Nathan by his mother ‑ to the effect that Nathan, she told him, had 'beady eyes, just like his father', and critically, that Nathan was 'not to be trusted'. That insult was, on the trial evidence, repeatedly uttered to Nathan by his mother during Nathan's childhood.
What might possibly be overlooked as simply a jocular or casual reference to her late father in her conversations with Nathan is, on the burden of all the trial evidence, a lot more significant. The unchallenged trial evidence as a whole carries here what I consider to be a more sinister evaluation - namely, that Diane believed she was regularly hearing from her late father who supposedly was rendering adverse assessments against Nathan's trustworthiness.
A similarly aberrant direction adverse to Nathan supposedly emanating from her late father to Diane, can be seen in communications of Diane as sent to her sister, Rosemary, in a period just after Diane's mother's death and a funeral service in 1992.
I turn to other matters of the trial evidence bearing upon Diane's testamentary capacity.
Pre-April 1993 evidence from Nathan
Nathan provided a witness statement for the purposes of trial comprising some 305 paragraphs. It became exhibit 8 at trial. Counsel for the plaintiff did not ever seek to cross‑examine Nathan on that witness statement. However, I took the opportunity to gather some supplementary information from Nathan by a series of questions I directed to him (ts 77). As a result of Nathan's answers to my questions put to him, I have no hesitation in accepting all of Nathan's trial evidence as entirely reliable.
From Nathan's evidence as a whole unfolds a sad tale concerning a very unhappy childhood. Some incidents Nathan relates from his childhood are disturbing and distressing. The legal issue of relevance however is to extract from his statement any information bearing upon the testamentary capacity of his late mother at 27 April 1993, when she made her will.
At that time, Diane was 55 years of age. Nathan, as her only child, was then 31 years of age.
At 1993, Nathan had been living and working in the north‑west of Western Australia and away from Perth for approximately eight years. He was still working for Mount Newman Iron/BHP. In 1992 Nathan had married his fiancée, Gemma.
There is a lot of material in the evidence at this trial concerning incidents with Diane in the period after Diane executed her will. That spans 21 years before her ultimate death in October 2014. During that period, Diane's mental condition clearly deteriorated very significantly, evolving towards the end position assessed by Dr Felice as that of a clear state of schizophrenia.
Dr Felice's evidence, it will be recalled, was that given a usual progression of such a mental illness over a natural history that the probabilities, by his assessment, all pointed towards Diane suffering from psychotic symptoms in the early 1990s.
I turn to Nathan's witness statement (exhibit 8) to identify matters therein which support that conclusion.
First, I note the following matters related by Nathan at pars 36 ‑ 39. He said:
From when I was around the age of 5, my mother often said to me 'my father's not happy with you'.
Diane's father, in fact, had passed away in 1947. That was some 15 years before Nathan was born in 1962.
She said to me that she could communicate with 'the other side'.
At that time I thought it was true.
Nathan explained his severe and undiagnosed hearing problem and how in year 5 he had moved schools, then aged 10, from Doubleview Primary School to Hale School. That was in 1973. Nathan's evidence was 'my father's mother [in other words his grandmother Ella Smith] paid for me to go to Hale School'.
Nathan next related circumstances in which he had finished year 12 at Hale in 1980 (par 105).
Following that and when he was about 19 and 20 (ie, 1981 ‑ 1982), Nathan studied for a certificate in civil engineering at Wembley Technical College. He said 'my parents paid for my course fees' (par 107). But in his verbal evidence at trial Nathan explained that his TAFE fees were only small amounts at that time.
Next, Nathan related that in October 1982 his father had moved out of the family home. His father had told him then that he was 'having a relationship with another woman' (par 110).
After his parents' separation Nathan said he felt obliged to follow his mother's instruction to cut off all contact with his father.
Nathan said that 'for a while, I did not contact him at all' (par 116).
Nathan had worked for the first time at Tom Price in 1982 as a trades assistant. He was seeking to earn money to enable him to begin a diploma of civil engineering course at the start of 1983.
Around this time Nathan told of how his mother post the separation with his father had begun to attend a Christian Spiritual Church, which she would attend with her friend Roberta (who she called Betty).
Nathan now said (pars 124 ‑ 129) of his mother:
Her behaviour started to change after she started going to the Church.
She frequently talked about what her father thought of me.
She talked about him as though she had been speaking with him.
She often said 'my father's not happy with you' with a lot of aggression in her voice.
She tried to get me to go to the Church with her.
At this point (around 1983 ‑ 1984) Nathan was increasingly unhappy living at home in Doubleview with his mother. He said that his parents' divorce took a 'very long time' (par 137).
In this period Nathan related more conversations with his mother (pars 145 ‑ 147) along the lines below:
More and more frequently, she said to me 'my father's not happy with you'.
Once or twice I said to her, in response, 'how can one argue with a dead person'.
That made her very angry.
Around 1984, Nathan gave evidence of another incident when he and his mother visited a friend of his mothers who was a portrait artist. His mother had told this person that Nathan was 'not being nice to her'. The artist, as related by Nathan, duly punched Nathan in the face, saying words to the effect that the punch was for 'being horrible to [his] mother'. Nathan said this incident was all seen by his mother. Yet she was apparently not at all concerned. Driving home after that incident Nathan related that his mother said to him, 'that will teach you for defying me' (par 166), and she further said to Nathan 'you deserved that' (par 167).
That incident led to Nathan speaking to one of his friends about moving out of the Doubleview home he had shared to that point with his mother all his childhood and of his increasing level of distress and despondency.
Shortly after the assault incident Nathan told of how his mother had entered his bedroom, lay down beside him and said to him, 'I never really wanted you in the first place'. That led Nathan to respond, 'thanks for being honest, I'll get out of your way'.
At this time (in early 1984) Nathan (aged 22) had little money. He said he was receiving about $30 ‑ $40 per fortnight from the government as a TAFE allowance.
Next morning, as Nathan was gathering up some things to leave home, his mother said to him, 'if you walk out that door, you will get nothing under my will'. As seen, she was true to her word.
Nathan moved in with a friend in Herdsman Parade, Wembley, for a couple of months before obtaining a job in Perth. He said that he could not complete his diploma in civil engineering, as he 'could not afford to keep studying'.
In 1984 Nathan held a job working for roof restorers.
But in 1985 Nathan secured permanent employment with Mount Newman Mining, working and living in the north‑west of Western Australia. There Nathan remained based until approximately late 1999, after which he and his family, which now included his wife, Gemma, and a daughter, Georgina (who was 4 years old) moved to Perth.
Nathan provided some evidence of what in overall temporal context I consider to be a significant event. It happened within a timeframe shortly after he had moved to live in Mount Newman in 1985.
Nathan explained he would return to Perth on annual leave about twice a year for two weeks at a time. When he did he would stay in Perth with his paternal grandmother, Mrs Ella Smith.
Whilst on a visit to the Doubleview home when on leave, Nathan related this (pars 206 ‑ 217):
I went to visit my mother at the house in Doubleview.
My mother did not let me in the house.
I stood on the doorstep and we talked through the security door.
I told her I was living in single person quarters in Mount Newman.
I wrote down my address for her and put it in the security door.
I said to her words to the effect 'I hope you can write to me'.
She told me that she was struggling.
I asked why.
She said that she was trying to live and that she did not have enough money.
She said to me 'you have sided with your lot' and words to the effect that I had betrayed her and therefore she did not want anything to do with me.
She said to me 'you have your Dad's beady eyes' and 'my Dad told me that you are not to be trusted'.
She said to me that she did not want me in her life.
Nathan told of his many further attempts over the years to see his mother every time he visited Perth on leave approximately twice a year.
Nathan said he would always try and visit his mother. Sometimes she would answer the door. Other times the curtains would move, but there would be no answer. If there was an answer Nathan was not allowed inside the house. Diane's invariable reference would be that Nathan had beady eyes like his father.
In 1990, Nathan and his fiancée Gemma were engaged. They married in 1992. Their daughter, Georgina, was born in October 1995. They moved back to Perth (Padbury) in 1999 as a family.
Observations on Nathan's pre-1993 event evidence
The critical aspect of Nathan's evidence goes well beyond its disturbing sadness in terms of many rebuffed efforts by Nathan to connect with his mother.
The significant legal aspect is that these events were all unfolding prior to 27 April 1993 when Diane made her will. Diane's negative perspectives as verbally expressed by her against her son are seen to extend well beyond being merely cruel or uncaring. Her as expressed jaundiced disposition against Nathan appears to have been influenced, consistently with her statements made to Nathan through his childhood, by his mother saying she had heard from her long dead father (Nathan's grandfather). This deceased person was telling Diane, as she related it to her son, that Nathan was not to be trusted.
An irrational state of mind therefore, on the probabilities, looks to have not only influenced but in the end thoroughly poisoned Diane's regard for her only child, as she came to execute her last will and testament on 27 April 1993.
The specific exclusion of Nathan by the terms of Diane's 1993 will
It is convenient at this point to pause and observe upon the express clause under Diane's 1993 will which sought to explain why Nathan had been excluded as a beneficiary. It read (cl 8):
I specifically do not want my son Nathan Guy Smith to receive any benefit from my estate. I record that I maintained him and paid for his tertiary education at Wembley Technical College for 2½ years while his father and I were separated and immediately after he received the benefit of the said education he left my household and has given me no support of any nature since then.
Clause 8 emerged in an adjacent circumstances whereby Diane's will left all the residue of her estate to James, the son of her institute executor in these terms (cl 4):
I give devise and bequeath the remainder of my estate to James West, the son of the said Bruce West.
I questioned Nathan about cl 8 of his mother's will at trial. On my assessment, Diane's statements of fact in cl 8 as a matter of substance are wrong in many respects, including these:
(a)Nathan's evidence related that Nathan's parents did not separate until October 1982. This was just prior to Nathan embarking on his final exams at the end of the second year of his certificate course at Wembley Technical College. As such, Diane and Nathan's father were not separated while Nathan studied at Wembley Technical College.
(b)Nathan's evidence was that he had in fact paid for his tuition fees at TAFE (ts 80). He explained verbally under questioning from me at the trial that these were only relatively small amounts in any event.
(c)In 1983, Nathan embarked on an attempt to engage in further study to obtain a higher level civil engineering diploma. But he was forced to give up those studies and did not complete them as he explained that he could not afford to continue in that course. Therefore, clearly those fees were not met by his mother as cl 8 would suggest.
(d)The circumstances as now related, under which Nathan left the Doubleview family home ('my household') at the end of 1983 were less than harmonious. But they were not in any way attributable to Nathan, who was effectively driven away from home by his mother's cruel and irrational conduct towards him at that time.
(e)Reference to receiving 'no support of any nature' since Nathan's departure from home to subsequently take up residence at Mount Newman, I conclude on the trial evidence, would be largely attributable to the odd conduct of his mother in effectively driving Nathan out of home. Thereafter Diane rebuffed many attempts Nathan made to re‑establish contact with her, including by his making numerous visits to the Doubleview home when he was returning to Perth, but where he was either left knocking on the outside front door or routinely insulted by Diane when the door was answered. Nevertheless and despite all that, Nathan still performed some outside work at the house to assist Diane with its maintenance.
Whatever might be said about the entitlement of a person to dispose of their estate on such terms as they see fit, subject to law including on terms which are harsh or even downright mean spirited to family, the present position goes even beyond that.
The trial evidence establishes to my satisfaction, on the balance of probabilities, that Diane's April 1993 will was, more likely than not, a product of her significant and advancing mental disorder. Her 1993 state of mental disorder had manifested in various ways. It included her adverse assessment of her son's trustworthiness at the time ‑ attributable to Diane believing as she told both Nathan and Rosemary at times, that she was hearing statements on that issue from her late father - someone who had been long dead. On the evidence, Hugh Viveash had died when Diane was only nine years of age. That was in 1947.
The trial evidence concerning the influence of an external direction emanating in Diane's mind at the time from Diane's late father, as regards her taking an adverse view of Nathan's trustworthiness, is strong. It is confirmed further in unchallenged evidence introduced from Nathan's aunt, Rosemary, (Diane's sister).
Rosemary Thunder's evidence
The witness statement of Rosemary became exhibit 7. Rosemary was not required for cross‑examination at the trial.
I do not relate all details in this witness statement. I concentrate upon two incidents, as they were related by Rosemary.
The first was in January 1964, when there was a family meeting held at Diane's house. This meeting was held for the Viveash family to discuss the greater supporting of Diane's mother by adjusting financial arrangements for the family made by Diane's late father, Hugh Viveash, before he died in 1947. This family meeting (when Diane was then 26 and Nathan was 2) led to Diane effectively cutting off further contact with everyone in her family thereafter.
A second incident unfolded in April 1992 when Diane's mother, Jean Hume Viveash, passed away. That was about a year before Diane made her April 1993 will.
Diane's mother had passed away on 25 April 1992. Rosemary and Barbara were named as their mother's executors. But Diane was not named as an executor. It would appear Diane was left very little under her late mother's will.
Of significance in this context are written communications by Diane to Rosemary, as related at par 68 of Rosemary's witness statement.
The first of these is attachment RJT‑1, Diane's letter to her sister of 6 July 1992. It read:
Dear Rosemary,
Would you please forward me a copy of mum's 'Will'. Apparently there is confusion regarding the papers. This information came from Dad on Sunday 17th May. (my emphasis in bold)
Diane's letter went on to refer to jewellery which Diane told her sister she thought her late mother had meant for her. A 1992 reference to 'Dad' by Diane is revealing. It will be remembered Diane's father passed away when she was nine years old, in 1947.
In due course, Rosemary did provide a copy of their late mother's will to Diane. Rosemary also invited Diane to lunch ‑ when she said Diane could choose one of two paintings which had been left by her mother. But from July 1992 there was no more contact from Diane to Rosemary, until February 1995.
Diane now wrote again to her sister, Rosemary, using stronger terms (see attachment RJT‑3). She wrote:
On 6 July 1992, I wrote to you for a copy of Mother's 'WILL' which you so kindly sent me, of course I knew then that you were the Architect of that 'WILL as Dad had already informed me'. (my emphasis in bold)
Diane continued on in her letter to raise the subject of a broach supposedly meant for Diane plus a ring with three diamonds Diane now wrote that she 'should have received long ago'.
Diane continued 'there is a portrait of Dad which he wants me to have'.
The balance of Diane's letter mentioned other items. Her letter asked that all items be left with another aunt (Aunt Ada), where Diane would collect them.
By the response that is attachment RJT‑4, Rosemary disabused Diane concerning some matters on 1 March 1995.
On 27 November 1995, Diane wrote again to her sister. Part of her typed letter said (attachment RJT‑5):
Friday 18 August, 1995 (extract from conversation)
Rosemary didn't send the Corning Ware. Has she got it dad? Barbara has the Corning Ware that I gave mum.
Forwarded to Rosemary by Diane with that communication was a Corning Ware design brochure. But, more significantly, also sent by Diane to Rosemary was a one page document entitled, 'These are Extracts and Advice From Dad'.
Rosemary's witness statement confirms that the extract she read, sent to her from Diane contained references to what appeared to be communications believed to have been held by Diane with her late father upon three separate dates; first Sunday 17 May 1992, Monday 25 May 1992 and Sunday 13 September 1992 (par 72).
The first of the extracts concerning 'confusion' regarding papers can be seen to align with the reference to similar 'confusion', as was mentioned in Diane's earlier mentioned RJT1 communication as sent to Rosemary on 6 July 1992 and with the exact date of 17 May 1992 for that advice from 'Dad'.
The last extract of advice 'from Dad' to Diane, was dated Sunday, 13 September 1992. It concerned the funeral service Diane attended for her mother Jean, held at the old Katrine Church (between Northam and Toodyay) in April 1992. Diane's text displays clear elements of paranoia suffered by Diane over what she seems to have perceived happened over her mother's will and at the funeral. Diane concluded:
Ted was at the back of me standing with another man. Two men stood as the coffin came out of the church, and when I walked down the steps Ted was walking behind me. Also my Father and a largish built lady were standing together when the coffin was lowered into the grave. (my emphasis)
By her evidence concerning the 1992 funeral service, Rosemary related what had been an uneventful funeral service for their mother attended by Diane, who was in the company of two other women (pars 42 ‑ 57).
Rosemary related that Diane said sat at the back of the church. Despite being invited by Rosemary, Diane did not attend the subsequent wake held for her mother.
Diane did not say anything more to Rosemary at that service despite her sister's attempts to speak with Diane.
Voices from the grave
The burden of all this evidence about Diane hearing from her 'Dad' post 1947 persuades me that the insults Diane would routinely articulate to Nathan from time to time about her hearing from her father and expressly her father's relayed displeasure with Nathan, are independently corroborated. Diane's own written communications with her sister, Rosemary, are strongly supportive of either an auditory hallucination concerning her father, or even a visual one, taking account of the last paragraph of attachment RJT‑5.
As regards the lowering of the coffin at her mother's funeral service that happened concerning Diane that was well and truly prior to when Diane made her last will and testament, in April 1993, 21 years before she passed away in 2014.
As a matter of law on an application for probate in solemn form, it is only necessary I conclude that a person propounding a will (in this case the plaintiff, James) has failed to discharge the legal onus of satisfying the court of Diane's testamentary capacity as at April 1993 ‑ under circumstances of the court being put on inquiry by the trial evidence as a whole concerning the state of Diane's testamentary capacity at the relevant time. That is the position at minimum I reach.
But upon the civil standard of proof, I am left in this trial affirmatively satisfied of a mental disorder afflicting Diane in April 1993. I would find further that this mental disorder bore materially and negatively upon Diane's decision in April 1993 to explicitly and inofficaciously exclude her only child from all benefit under her will. That had happened in April 1993, I find, in circumstances where, to use the old terminology, Nathan had a clear 'claim against her bounty' at the time, or to adapt to present circumstances more contemporary language by Gleeson CJ in Easter v Griffith at 291, that Diane suffered 'from a form of mental disturbance which made it impossible for [Diane] to judge [Nathan] rationally'.
Recognising the need for extreme caution and vigilance in present circumstances, I nevertheless conclude that Diane's will of 27 April 1993 was a product of her mental disorder suffered at that time. The testamentary capacity of Diane at 27 April 1993 was lacking, particularly as regards her rationally assessing the position of her only child as a possible beneficiary under her will.
In all the circumstances, there should issue, prima facie, orders in terms as suggested under the defendant's minute of proposed relief and effectively dismissing James' action for probate in solemn form and, correlatively, allowing Nathan's counterclaim.
Prima facie orders in the following terms should issue:
1.The court pronounces against the validity of the will of the late Diane Florence Smith dated 27 April 1993.
2.The court directs the Probate Registrar to issue a grant of letters of administration in favour of the defendant Nathan Guy Smith.
3.The defendant's costs of the proceedings shall be paid from the estate of the late Diane Florence Smith.
4.The plaintiff's costs of the proceedings shall be paid, on an indemnity basis, out of the estate of the late Diane Florence Smith.
I record that the trial was conducted on the basis that James essentially was not proactive at this trial to any extent in seeking to challenge the evidence adduced by, Nathan, as regards to the problematic testamentary capacity of his late mother in April 1993. In many respects, this was an honourable position to take, in circumstances where James in his whole life knew nothing of Diane. He had never heard of Diane prior to her death in October 2014.
The trial was conducted in circumstances of appropriate formality, but with generous propriety by James. In the circumstances, I am left satisfied that a proposed award of indemnity costs favouring James is also appropriate.
9
1