Wiedenhoeft v Davis
[2021] WASC 259
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WIEDENHOEFT -v- DAVIS [2021] WASC 259
CORAM: CURTHOYS J
HEARD: 28 JUNE 2021
DELIVERED : 4 AUGUST 2021
FILE NO/S: CIV 1957 of 2020
BETWEEN: ELLEN ISABELLA WIEDENHOEFT
Plaintiff
AND
ANTHONY PATRICK DAVIS
Defendant
Catchwords:
Probate in solemn form - Letters of administration - Executor named in will fails to act - Delay
Legislation:
Wills Act 1970 (WA), s 8
Result:
Grant of probate in solemn form of will of 11 June 2008 to major beneficiary named in the will
Category: B
Representation:
Counsel:
| Plaintiff | : | S T Hemachandra |
| Defendant | : | In person |
Solicitors:
| Plaintiff | : | FourLion Legal |
| Defendant | : | In person |
Case(s) referred to in decision(s):
Banks v Goodfellow [1870] LR5QB 549
Gangemi v Monaco [2020] WASC 183
Oreski v Ikac [2007] WASC 195
CURTHOYS J:
Introduction
In this action the plaintiff, Ellen Wiedenhoeft, who is the widow of the deceased, Kenneth Charles Mitting, seeks:
(a)an order that the court pronounces for the force and validity of the will of the late Kenneth Charles Mitting dated 11 June 2008;
(b)an order that the court direct a Probate Registrar to issue a grant of letters of administration, with the will annexed, to Ellen Wiedenhoeft; and
(c)costs.
Mr Mitting had completed an earlier will dated 10 April 2008 (the April will).
The defendant, Mr Davis, was named as executor both in the April will and in the will of 11 June 2008 (the June will).
Probate was not granted in common form because Mr Davis asserted that the June will was not valid.
Mr Mitting died on 17 October 2008. Regrettably, this action was not commenced until September 2020. During the 12 years that passed between Mr Mitting's death and these proceedings, Mr Davis, despite being named as executor, took no steps to seek probate of either will in solemn form.
I have determined that it is appropriate to issue probate in solemn form for the June will and that the Probate Registrar issue a grant of letters of administration, with the will annexed, to Ms Wiedenhoeft.
The participation of the defendant
Mr Davis did not file a defence, nor did he file any witness statements, nor cross-examine any of the witnesses. Effectively, the case proceeded as if it were an undefended application for probate.
Mr Davis did give a closing address but led no evidence that provided any basis for the allegations in his closing. In the circumstances, I have not taken his closing address into consideration in reaching judgment.
I note O 66 r 9 of the Rules of the Supreme Court 1971 (WA) which provides, in effect, that a defendant who merely puts a party to proof of the will shall not be liable for costs unless the court considers that there were no reasonable grounds for opposing the will.
The wills
Ms Wiedenhoeft filed an affidavit of scripts sworn 1 December 2020. This affidavit exhibits two wills made by Mr Mitting, the April will and the June will. Both wills complied with s 8 of the Wills Act 1970 (WA).
Revocation of the April will
Clause 1 of the June will revoked all previous wills and testamentary acts and dispositions. If the June will is valid it is effective to revoke the April will. For the reasons stated below I find that the June will should be admitted to probate and accordingly that the April will was revoked.
The witnesses to the June will
The June will was completed on what is commonly described as a 'post office will', that is, a standard form will with blanks to be completed. The will was witnessed by Robert Roy Muckley and Denise Hogan, both of whom lived at 1125 Glen Forrest Drive in Glen Forrest. They were neighbours of Ms Wiedenhoeft and Mr Mitting. They shared a common boundary across the back fence.
Mr Muckley was unable to attend trial because he was in hospital. His affidavit sworn 24 March 2021 was admitted into evidence. Denise Hogan gave oral evidence at trial. Both Mr Muckley's affidavit and the oral evidence of Ms Hogan was that the will was executed by Mr Mitting in their presence.
I find that the June will was duly executed in accordance with s 8 of the Wills Act.
Presumption of testamentary capacity
Where a will is properly executed in accordance with the Wills Act, the testator is presumed to have testamentary capacity unless there is evidence to the contrary.[1]
[1] Oreski v Ikac [2007] WASC 195 [108].
I am satisfied that there was no evidence to the contrary. Accordingly, the presumption that the June will was properly executed applies. In the absence of evidence to the contrary, that would be sufficient to establish that Mr Mitting had testamentary capacity.
Evidence as to testamentary capacity
The legal test for testamentary capacity is well known and was stated in Banks v Goodfellow:[2]
It is essential to the exercise of [a 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 – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[2] Banks v Goodfellow [1870] LR5QB 549 [565].
I also note the comments of Tottle J in Gangemi v Monaco.[3]
[3] Gangemi v Monaco [2020] WASC 183 [45].
The critical time at which testamentary capacity is to be determined is at the date that the will was executed.
Ms Wiedenhoeft led further evidence as to Mr Mitting's testamentary capacity.
Ms Wiedenhoeft called only one medical witness to give oral evidence. That witness was Dr Andrew Hart who is a member of the Royal Australian College of Physicians and a specialist in palliative care. He first met Mr Mitting in either late July or early August 2008. Ms Wiedenhoeft tendered a letter from Dr Hart dated 17 November 2009 which indicated that Mr Mitting had progressive metastatic melanoma. In his letter, Dr Hart stated:
I can attest to this, Ken [Mitting] remained clear in his thoughts, [and] when I did the admission visit I was able to obtain a good clinical history from him. I would further say that at this time he would have had capacity to know what assets comprised his estate and if he was making a will what doing so would imply. He would also have been easily able to decide who had a moral claim on his assets and be able to weigh those claims.
Although Dr Hart's evidence does not strictly follow the test as stated in Banks v Goodfellow, I am satisfied that it is sufficient to establish that Mr Mitting had testamentary capacity when he was seen by Dr Hart in July or early August 2008. Dr Hart gave evidence that Mr Mitting remained lucid until a few weeks before his death.[4]
[4] See aide-mémoire (exhibit AR).
Dr Hart gave evidence that the medication prescribed for Mr Mitting would not have affected his testamentary capacity.
Mr Mitting's treating doctors at the time he executed the will were Professor Michael Millward, Dr Kynan Feeney and Dr Albert Gan.[5] I am somewhat mystified as to why any of those doctors was not called to give evidence as to Mr Mitting's testamentary capacity. In any event, it does not particularly matter given the presumptions that arise and the absence of any defence or cross‑examination. However, the appropriate doctors to call were those who were treating him at the time the will was executed unless for some reason those doctors were unavailable. No explanation was offered as to why they were not called.
[5] See letter from Dr K Feeney to Professor M Milward dated 17 June 2008 (exhibit AB); letter from Dr A Gan to Dr W H Barnes dated 19 May 2008 (exhibit H).
Ms Wiedenhoeft also led various medical reports and documents from Mr Mitting's medical files relating to 2007. Given that the critical time at which Mr Mitting's testamentary capacity was to be determined was June 2008, it is unclear why that documentation was tendered in evidence.
There is nothing in the medical records tendered to suggest that Mr Mitting lacked testamentary capacity at any time prior to the few weeks before his death.
Further confirmation of Mr Mitting's testamentary capacity is found in the consent forms he signed for participation in various forms of treatment.[6] Given Mr Mitting's doctors had an obligation to be satisfied that he understood the consequences of signing the consent forms, I am satisfied that these forms provide at least some evidence of Mr Mitting's testamentary capacity.
[6] See, for example, consent form dated 25 June 2008 (exhibit AG).
Having regard to all the medical evidence and the presumption arising as to testamentary capacity from due execution, I am satisfied that Mr Mitting had testamentary capacity.
I am satisfied that the June will should be admitted to probate.
To whom should probate be granted?
The next question that arises is whether probate should be granted to Mr Davis as the executor named in the will or whether letters of administration should be granted to Ms Wiedenhoeft with the will annexed.
On 8 June 2009, Registrar Dixon issued a citation to Mr Davis to accept or refuse probate.[7]
[7] Citation to accept or refuse probate 8 June 2009 (exhibit N).
Mr Davis was required within 28 days of being served with the citation to file an application at the Probate Office to accept probate of the will or file a renunciation of probate of the will or show cause why letters of administration (with the will annexed) should not be granted to Ms Wiedenhoeft.[8]
[8] Exhibit N.
The court did not issue probate in common form and required that the will be proved in solemn form.
It is now some 12 years since the citation was issued and 13 years since Mr Mitting's death. During that time probate was not issued in relation to Mr Mitting's estate.
Section 37 of the Administration Act 1903 (WA) provides that where an executor neglects to obtain or renounce probate within two months from the death of the testator, the court may upon the application of any person interested in the estate, grant administration with the will annexed to the applicant, and such administration may be limited as the court thinks fit.
As mentioned earlier, Ms Wiedenhoeft is the widow of the deceased and a major beneficiary under the June will.
The delay on the part of Mr Davis has been inordinate and inexcusable. Having not gained probate of the will in the last 13 years, there is an overwhelming case that probate should not be granted to him. I am satisfied that Mr Davis is unwilling to take probate.
It is also appropriate that the letters of administration be granted to Ms Wiedenhoeft as widow of the deceased and major beneficiary.
Although Mr Mitting's son, Chase, was named as a beneficiary under the June will, he died before he attained the age of 25 and accordingly the part of the estate left to him under the will did not vest in him. He died without issue.
Other issues
I note that a number of other issues were raised by Ms Wiedenhoeft in the course of the trial. For example, Ms Wiedenhoeft referred to an agreement as to how the estate should be divided. However, it is unnecessary to deal with such issues for the purpose of reaching a decision as to whom probate should be admitted.
The conduct of the trial
The trial bundle in this matter was 277 pages long. On a rough count, less than 70 pages from the bundle were tendered in evidence. A trial bundle should only include documents that are relevant and sought to be tendered in evidence. Depressingly, this case is typical of so many cases where only a fraction of the trial bundle is ultimately tendered in evidence.
To simply place every document in the trial bundle in evidence is a failure on the part of the person or persons who prepare the trial bundle to properly discharge their duty to the court. The trial bundle should only contain relevant documents and should not effectively take a 'kitchen sink' approach. As noted, Ms Wiedenhoeft's solicitors are not alone in including all manner of irrelevant documents. That practice needs to cease. The very act of producing a trial bundle which includes only relevant documents focuses the lawyer's mind on what is truly relevant and can only assist in the preparation. The explanation that something might be relevant is no excuse. I suspect that it is this approach that has led to voluminous and largely irrelevant trial bundles.
In addition to those documents in the trial bundle, Ms Wiedenhoeft tendered a number of other documents comprising some 70 pages. No explanation was offered as to why those documents were not included in the trial bundle.
Attendance at trial
Costs should be proportionate to the amount in issue and the complexity of the case. This was a very small estate – well under a million dollars. There was no particular complexity about the case. A single counsel should have been able to conduct the trial without assistance. In addition to counsel for Ms Wiedenhoeft, two other persons sat at the bar table. If Ms Wiedenhoeft seeks costs of the attendance of those two persons they will have to satisfy me that their attendance was justified.
Orders
I make the following orders:
1.The court pronounces for the force and validity of the document dated 11 June 2008 signed by Kenneth Charles Mitting as the last will and testament of Kenneth Charles Mitting dated 11 June 2008.
2.There be a grant of letters of administration with the 11 June 2008 will annexed in solemn form of law to Ms Ellen Wiedenhoeft in the form of the 11 June 2008 will.
3.The terms of the grant made in respect of the 11 June 2008 will are to be settled by a Probate Registrar of the court and there will be liberty to apply in relation to any matter or issue arising concerning the terms of the grant.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Research Associate to the Honourable Justice Curthoys
4 AUGUST 2021
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