Willmott v McCourt
[2002] WASC 210
WILLMOTT -v- McCOURT & ORS [2002] WASC 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 210 | |
| 30/08/2002 | |||
| Case No: | CIV:1560/2001 | 26 AUGUST 2002 | |
| Coram: | PARKER J | 26/08/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff appointed administrator of Estate of Cecil Ray French (deceased) | ||
| B | |||
| PDF Version |
| Parties: | KEITH GERALD WILLMOTT LEONARD ADRIAN SHANNON McCOURT SHELLEY ANN STURGEON ANNA CATERINA MOORE GLADYS JOYCE HARVEY |
Catchwords: | Wills Capacity of testator Aged hospital patient Will executed day before death Suspicious circumstances No party propounding Will |
Legislation: | Nil |
Case References: | Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Estate of Tucker [1962] SASR 99 Re Breen [1961] VR 522 Re Grey Smith [1978] VR 596 Symes v Green (1859) 1 Sw & Tr 401 Timbury v Coffee (1941) 66 CLR 277 Boland v Nahkle; Estate of Talbot, unreported; SCt of NSW (Powell J); 6 April 1992 Estate of Kolodnicky (1981) 27 SASR 374 Re Levy (No 2) (1957) VR 662 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
LEONARD ADRIAN SHANNON McCOURT
SHELLEY ANN STURGEON
ANNA CATERINA MOORE
GLADYS JOYCE HARVEY
Defendants
Catchwords:
Wills - Capacity of testator - Aged hospital patient - Will executed day before death - Suspicious circumstances - No party propounding Will
Legislation:
Nil
(Page 2)
Result:
Plaintiff appointed administrator of Estate of Cecil Ray French (deceased)
Category: B
Representation:
Counsel:
Plaintiff : Mr B P Wheatley
Defendants : No appearance
Solicitors:
Plaintiff : Nicholson Clement
Defendants : No appearance
Case(s) referred to in judgment(s):
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Estate of Tucker [1962] SASR 99
Re Breen [1961] VR 522
Re Grey Smith [1978] VR 596
Symes v Green (1859) 1 Sw & Tr 401
Timbury v Coffee (1941) 66 CLR 277
Case(s) also cited:
Boland v Nahkle; Estate of Talbot, unreported; SCt of NSW (Powell J); 6 April 1992
Estate of Kolodnicky (1981) 27 SASR 374
Re Levy (No 2) (1957) VR 662
(Page 3)
1 PARKER J: By his amended writ the plaintiff seeks orders that a will signed by the late Cecil Ray French and witnessed on 4 August 1999 ("the Will") is not a valid testamentary document and that he be appointed as administrator of the estate of the deceased. It is the case for the plaintiff that the deceased lacked testamentary capacity at the time of the execution of the Will.
2 The deceased died at the Murray District Hospital in Pinjarra on 5 August 1999. He was then 87 years of age. Before admission to hospital he had lived at the nearby town of Dwellingup. He had not married during his life and is not survived by children. The plaintiff is his nephew.
3 The deceased was admitted to hospital under the care of his general practitioner, Dr Antonio Tropiano, on 2 August 1999. He had a chest infection and a shortage of breadth and had not been coping at home. He lived in his own home. His general physical condition was poor. On 3 August 1999 he was noted to be confused. That was so both in the morning and in the early evening. He was being treated for pneumonia.
4 On the morning of 4 August 1999 the deceased asked for some food but his physical condition remained poor. He was found to have a low blood sugar level which, in the Doctor's view, may have accounted for his confusion. At midday on 4 August 1999 he was noted to be very short of breath and to require full assistance to ambulate. He could not move about without the help of others. He needed intranasal oxygen after movement.
5 By 5.15 pm on 4 August 1999 the deceased was found to be sweaty, to have low blood sugar level and he could not be aroused. Medication was administered to try and raise the low blood sugar level but his condition remained unchanged. Shortly after 6 pm there was a sudden deterioration and Dr Tropiano was recalled to the hospital. The deceased was still unconscious and very short of breadth. Intravenous treatment was commenced but his general condition remained poor and relatives were notified.
6 By 9 pm that evening the deceased could be aroused from an unconscious state but remained confused and he was unable to communicate. His condition then generally deteriorated rapidly. On the morning of 5 August 1999 Dr Tropiano assessed that the deceased had experienced a stroke and that his condition remained terminal. Mr French died a little after 8 pm that evening.
(Page 4)
7 Dr Tropiano doubted that the deceased had the capacity to execute or understand a Will after 5.15 pm on 4 August 1999. At best, thereafter, during any conscious periods he was confused, although for much of the time he was unconscious.
8 The purported Will is before me, it is handwritten. The affidavit evidence is that it was prepared by the first named defendant who was a friend of the deceased. On its face it has been executed and witnessed twice; once in pencil and once in ballpoint pen. The signature of the deceased suggests a very unsteady hand. The signature in pencil, in particular, seems to be associated with many non-specific markings in pencil that are evident on the document. These are wiggly lines and jottings, some of which are mingled with the signature itself and others are below and above it. Their appearance suggests unsteadiness and physical difficulty in applying pencil to paper.
9 By the Will the first named defendant is appointed executor and is to receive $10,000. The second and third named defendants, described respectively as the deceased's friend and nurse would each receive $2,000. The fourth named defendant was to receive the contents of his house and any plants or equipment she wanted from the garden. The Will makes no provision in respect of the balance of the deceased's estate which included the house and land in which he lived and a sum of money in an account which far exceeded the financial bequests noted above for which the Will provided.
10 The first named defendant did seek to propound the Will. He sought a grant of probate from this Court. That application he supported by affidavit and by the affidavits of the fourth named defendant, with whom he lived as husband and wife, and the affidavits of his neighbours who were the attesting witnesses. This application was abandoned.
11 Neither the first named defendant nor any one of the other defendants, who together are the only beneficiaries named in the Will, have sought to propound the Will in these proceedings nor have they appeared to oppose the grant of relief to the plaintiff. These circumstances alone could warrant me passing over the Will: Re Breen [1961] VR 522, Estate of Tucker [1962] SASR 99, Re Grey Smith [1978] VR 596.
12 In the circumstances, however, I have preferred to take full account of the Will and the circumstances attending its execution, so far as these are disclosed in the evidence before me. This evidence includes the
(Page 5)
- affidavits that were filed in non-contentious proceedings in this Court in respect of the estate of the deceased.
13 It is clear from the evidence that there are suspicious circumstances in respect of the Will. The first and fourth named defendants visited the deceased in the hospital at Pinjarra. They had been told by the second named defendant that the deceased had been admitted to hospital and was unlikely to recover. They were told that the deceased wanted to make a Will and they were asked by the fourth named defendant if they could help the deceased with the Will. The fourth named defendant has deposed that she and the first named defendant visited the deceased, it would appear on 3 August 1999. She says the deceased had very definite wishes about his Will and he told them what he wanted. The fourth named defendant has deposed that the next day, ie 4 August 1999, the day before the death of the deceased, a "Will form" was purchased in Mandurah and the first named defendant wrote on the back or covering of the Will form "the instructions that [the deceased] had given us in terms of [the deceased's intentions for his Will]". Having done that the first named defendant then wrote out the Will "as best he could" to reflect those instructions of the deceased.
14 It is the evidence of the testamentary witnesses that they were asked by the first named defendant, who was their neighbour, to accompany him to the Pinjarra Hospital to witness a Will. They did so. Neither of the affidavits of the testamentary witnesses are precise as to the time, but it is their evidence that on 4 August 1999 they were present together in the hospital when the deceased read the Will, discussed its contents with the first named defendant, and then signed the Will. It is their evidence that he was "oriented as to who he was and where he was and that he clearly knew who Mr McCourt was", ie the first named defendant. It is their evidence that the deceased's hand had to be "supported", it seems with two hands, as he signed the Will. It is their evidence that he did so voluntarily. Each deposed to having seen him sign his name at the foot of the Will and then each attesting and subscribing the Will in the presence of the other. Neither of the attesting witnesses deposes, however, to this having occurred twice, one in pencil and once in ballpoint pen.
15 An affidavit of the fourth named defendant, however, deposes to being at the hospital with the first named defendant and the two attesting witnesses. It is her evidence that this was in the evening of 4 August 1999. It is her evidence that the Will was signed by the deceased and the two attesting witnesses in pencil, and then signed again with a pen.
(Page 6)
16 There is also evidence of a Mrs Hudson, a nurse who was on duty at the Pinjarra Hospital on 4 August 1999. The deceased was under her general care. She deposes to seeing two elderly people, a man and a woman, shaking the deceased "approximately mid-afternoon". It is her evidence that the elderly woman was trying to wake up the deceased. She described the deceased at that point as moribund and lapsing in and out of coma. She saw the elderly woman lean over the bed rail and guide the hand of the deceased to sign a document which she deposed was "apparently a Will". The elderly lady had said to her:
"We are friends of his and he does not want his family to have his money, he wants us to have it because we have always looked after him."
17 The nurse heard the elderly lady say to the deceased "Come on, just sign here". The nurse does not depose to the presence of four people at this time.
18 The executed Will appears to have been retained in the possession of the first named defendant following its execution on 4 August 1999.
19 Having been informed of his uncle's death on 5 August 1999, the plaintiff drove to his uncle's house in Dwellingup. He found it locked but outside were two rubbish bins filled with items from the house. He was later able to gain entry to the house when he contacted the first named defendant who had a key. The plaintiff found that the house had been "cleaned out". All drawers had been emptied. All personal possessions including papers had been removed. The plaintiff had understood from the deceased just a few months before his death that he had executed a Will in which the plaintiff was appointed executor, though not a beneficiary. No trace of that Will has been found.
20 The notations made by the first named defendant on the back or covering of the Will form, purportedly recording the deceased's instructions, are very brief and less than clear. There are a number of crossings-out. There are notes "To Shellie $2,000" and "To Anna $2,000", then the words "Burial expense" with a long dash followed by "to executor $10,000", then "Brad's two sons get the Balance". This is followed by "Brad Willmott's (two sons) property to be sold as part of Estate Brad Willmott for the sons". From this last notation there is an arrow pointing to further words which include "Brad", "Sons" and "Two Boys", but other words are not clear.
(Page 7)
21 If, as was the sworn evidence on affidavit of the fourth named defendant, these notations reflected the "instructions" given by the deceased to the first and fourth named defendants on the day before the execution of the Will, then it is manifestly clear that the Will failed to reflect those "instructions". The apparent effect of the notations made by the first named defendant is to instruct that apart from specific bequests totalling $14,000, two sons of Brad Willmott were to share the balance of the estate. The Will as executed on 4 August 1999 contained no reference to this element of the "instructions". In fact, the Will appears incomplete as despite the "instructions" it makes no disposition of the residue of the deceased's estate, which included his house and a significant balance of funds in a bank account which would remain after the specific bequests identified in the Will. On this evidence alone there is clear reason to doubt that the deceased understood the contents of the document he executed as his Will, and to question that it reflected his testamentary intentions.
22 I note, although it is strictly immaterial for present purposes, that the plaintiff's brother has three sons, who are named Brad, Darren and Dale. It is the evidence, however, that the deceased tended to confuse Brad and Darren. Darren needs to use a wheelchair for mobility. He has two young sons. Brad Willmott does not have two sons.
23 The only evidence which identifies the time when the Will was executed by the deceased in the presence of the two testamentary witnesses is that of the fourth named defendant. She specifically swears that this occurred in the evening of 4 August 1999. On the evidence of Dr Tripiano, in my finding, after 5.15 pm on that day the condition of the deceased, even during his conscious moments, was such that he lacked testamentary capacity.
24 The law has been long settled as to what constitutes testamentary capacity. Two oft-cited statements of the test of testamentary capacity are those of Rich ACJ in Timbury v Coffee (1941) 66 CLR 277 at 280, and Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565. A duly executed Will, rational on its face, gives rise to a presumption, in the absence of evidence to the contrary, that the testator was of competent understanding: Symes v Green (1859) 1 Sw & Tr 401. However, where the evidence as a whole throws doubt upon the deceased's competency then the Court must decide against the validity of the Will unless it is satisfied affirmatively upon the evidence as a whole that the deceased was of sound mind, memory and understanding: Bull v Fulton (1942) 66 CLR 295 at 343.
(Page 8)
25 In the present case it cannot be said that the Will is rational on its face as it goes no further than to make four specific bequests which deal with only a limited portion of the estate and ignores the salient asset altogether. The terms of the Will are themselves evidence of a lack of understanding of the extent of the property of which the deceased was disposing, or of the terms of the document. Further, on the evidence as to the "instructions" of the deceased, it appears that the document which he signed failed to reflect those "instructions" which were given only the day before execution. In the circumstances, this affords further evidence of a want of understanding of the terms and effect of the document signed by the testator. If the Will were executed before 5.15 pm on 4 August 1999 (although I cannot accept that to be so on the evidence) these matters are more than sufficient to throw serous doubt on the testamentary capacity of the deceased. In addition to those considerations, compelling as they are, if the deceased executed the Will in the evening of 4 August 1999, the medical evidence establishes that the deceased did not then have the capacity to comprehend and appreciate what he was about, let alone the property of which he was disposing or the claims to which he ought to give effect.
26 These matters are sufficient in themselves for my decision. In addition, there is the circumstance that no party seeks to propound the Will. I am left with no hesitation in reaching the view that the Will of Cecil Ray French witnessed on 4 August 1999 is not a valid testamentary document.
27 No other testamentary instrument having been located, in the circumstances the plaintiff should be appointed to administer the estate.
28 It was for these reasons that I made orders to give effect to these findings when the matter was before me on 26 August 2002.
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