Wingrove v BURLES
[2014] WASC 450
•26 NOVEMBER 2014
WINGROVE -v- BURLES [2014] WASC 450
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 450 | |
| Case No: | CIV:2864/2013 | 26 NOVEMBER 2014 | |
| Coram: | MITCHELL J | 26/11/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Grant of probate in solemn form of will dated 14 December 2007 | ||
| B | |||
| PDF Version |
| Parties: | ROYSTON WINGROVE RITA BURLES TONY WINGROVE |
Catchwords: | Wills Probate Application for proof of will in solemn form Subsequent will executed when deceased lacked testamentary capacity |
Legislation: | Nil |
Case References: | Buckley v Buckley [2011] WASC 184 Hoare v Reyburn [2010] WASC 301 Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337 Thornhill v Thomas [2010] WASC 297 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
RITA BURLES
First Defendant
TONY WINGROVE
Second Defendant
Catchwords:
Wills - Probate - Application for proof of will in solemn form - Subsequent will executed when deceased lacked testamentary capacity
Legislation:
Nil
Result:
Grant of probate in solemn form of will dated 14 December 2007
Category: B
Representation:
Counsel:
Plaintiff : Mr P G McGowan
First Defendant : Ms F L Askew
Second Defendant : No appearance
Solicitors:
Plaintiff : Haynes Legal
First Defendant : Askew & Co
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Buckley v Buckley [2011] WASC 184
Hoare v Reyburn [2010] WASC 301
Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337
Thornhill v Thomas [2010] WASC 297
- MITCHELL J:
Orders
1 At the conclusion of the trial of the plaintiff's application for probate, I made the following orders:
(a) subject to compliance with the administrative requirements of the court, there be a grant to the plaintiff of probate in solemn form of the will of Thomas Charles Wingrove executed on 14 December 2007;
(b) there be liberty to the second defendant to apply for probate of that will; and
(c) counsel for the plaintiff's costs of the application be borne by the estate.
2 At the time of making those orders, I indicated that I would publish reasons for my decision in due course. These are those reasons.
Facts
3 The deceased, Thomas Charles Wingrove, died one day before his 99th birthday on 21 May 2012. He was predeceased by his wife and survived by three children, being the plaintiff and the defendants. The deceased and plaintiff immigrated to live in Western Australia in 2007.
4 On 14 December 2007, the deceased executed his last will and testament (2007 Will). The 2007 Will revoked all former wills and codicils (which would include a will executed on 10 September 1985). It appointed the plaintiff and second defendant to be the joint executors and trustees of the deceased's estate. The 2007 Will made declarations with respect to a gift to the plaintiff for the purchase of land and erection of a dwelling at Canning Vale, and as to the terms of a loan of $500,000 by the deceased to the plaintiff. The 2007 Will gave the deceased's estate on trust to the plaintiff and defendants equally between them.
5 From 2007, the plaintiff and the deceased lived at the Canning Vale address. The plaintiff's observation was that the deceased remained in reasonably good health for his age and was mentally alert throughout 2007 and 2008. However, in the early part of 2009, the plaintiff noticed the deceased's health deteriorating, which he interpreted as the natural progression of age.
6 The deceased suffered a fall on 16 April 2009, following which he attended a hospital. After waiting for about four to five hours, the deceased wanted to go home and, as a result, asked to be discharged without waiting any longer for further medical attention. However, as a consequence of this visit, Dr Sean Maher, a consultant geriatrician engaged by the Department of Health, attended the deceased's home on 1 May 2009 for a follow-up visit. On 4 May 2009, Dr Maher wrote a report of that visit which was addressed to Dr Lau, the deceased's general practitioner (GP). Included in that report was the observation that the deceased 'scored 6/10 on the AMTS which would be equivalent to about 18/30 on the MMSE'.
7 In a subsequent report of 18 June 2012 to the plaintiff, Dr Maher observed:
I saw [the deceased] at your home on 1 May 2009 mainly because of a recent fall. At the time it was noted that he did have problems with short-term memory impairment but this was not interfering with daily living activities. It was also noted that your father was essentially illiterate due to very minimal schooling. I performed an abbreviated mental test where he scored 6/10. Scores less than 8 are suggestive of cognitive impairment. The equivalent score on the mini mental state examination would be approximately 18/30.
I did not perform a testamentary capacity assessment as this was not an issue at the time. To assess his capacity to write or change a will would have meant testing his understanding about his current assets, knowledge of his estate and how he wished to distribute this, and who would have a claim on his estate.
Generally, when people have cognitive impairment to the same degree as your father did in 2009, their capacity to make and alter wills or manage finances is generally impaired. I consider it likely that with another year of ageing and probable further cognitive decline, it is unlikely that he would retain full capacity to understand a new will in 2010.
8 In early April 2010, the plaintiff contacted the first defendant and requested her help in allowing the deceased to go and stay with her for a short time, in order to allow the plaintiff some respite from the demands imposed by caring for the deceased. This was arranged, and the plaintiff travelled to the United Kingdom. At this time, the deceased stayed with the first defendant at her home in Victoria for about three weeks, during which time he signed a further testamentary instrument dated 9 April 2010 (2010 Will). The 2010 Will revokes all former wills, appoints the first defendant to be executor and trustee of the will and disposes of the deceased's estate equally between the plaintiff and the defendants in equal shares. The declaration of the loan of $500,000 to the plaintiff was repeated, and, in addition, it was declared that in or about 2007, the deceased lent the plaintiff an approximate sum of $259,470 on the understanding that he would be registered as proprietor of one half share in the property at Canning Vale.
9 I have received and considered two affidavits of due execution by the witnesses to the 2010 Will, one of whom was a solicitor who took instructions from the deceased. The deceased appeared to the solicitor to be mentally alert and the solicitor formed the view that the deceased was of full testamentary capacity at the time of executing the 2010 Will.
10 In addition to the reports of Dr Maher, I have a report of Dr Lau dated 5 June 2012, confirming that he has been the treating GP of the deceased and concurring with 'the specialist reports dating back to 2010 that he has had a memory impairment and would not have been in full mental capacity to have a will altered at around that time'.
11 I have also been provided with a report of Dr Robin Dawes, a senior medical officer at the Department of Health, as to the deceased's condition on 24 August 2011. It was noted that, at that time 'MMSE was very difficult to perform, partly due to word finding difficulty (I understand he is also illiterate). He scored 0/10 for orientation, 0/10 for recall and was unable to draw a clock face'.
Procedure
12 Following the deceased's death, the plaintiff instituted these proceedings seeking probate of the 2007 Will in solemn form.
13 On 14 March 2014, a master of this court gave leave to the plaintiff to serve the writ of summons in the action on the second defendant by sending it by post to him at his address in England. That service was effected on 24 March 2014. The second defendant has not entered an appearance or otherwise sought to participate in these proceedings.
14 The first defendant initially defended the action and, by par 10 of her defence, sought that the court pronounce the force and validity of the 2010 Will in solemn form. However, that paragraph of the defence was withdrawn by the first defendant at the commencement of the trial, with an indication by the first defendant's counsel that the first defendant did not propound the validity of the 2010 Will. Nor did the first defendant contest the validity of the 2007 Will.
15 At the beginning of the trial, the first defendant was also granted leave to discontinue a counterclaim which she had made against the plaintiff in the proceedings.
Principles
16 The principles to be applied on an application for grant of probate were set out by Pritchard J in Public Trustee v Alzheimer's Australia WA Ltd [No 2].1 I adopt and apply that statement of principles in this case.
2007 Will
17 The 2007 Will is a written document executed as required by s 8 of the Wills Act 1970 (WA). The 2007 Will is clearly intended to effect a testamentary disposition made of the deceased's own volition (there being no evidence to suggest any form of duress). Being a properly executed will which makes rational provision for the testamentary disposition of the deceased's estate it is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding. There was no evidence to suggest that the deceased lacked testamentary capacity at the time he executed the 2007 Will.
18 Therefore, I am satisfied that the deceased made the 2007 Will of his own volition, without duress and with a fully comprehending mind. Subject to considering the effect, if any, of the 2010 Will, I am satisfied that it is appropriate to make a grant of probate to the plaintiff of the 2007 Will.
2010 Will
19 As I have noted, no party to these proceedings propounds the validity of the 2010 Will. The approach to be adopted in these circumstances is explained by Commissioner Sleight in Buckley v Buckley,2 largely by reference to two earlier decisions of EM Heenan J.3 The principle was summarised by Commissioner Sleight in the following terms, with which I agree:
In summary, I conclude that before an executor is entitled to an order for proof in solemn form of a will, notwithstanding the existence of a later dated will, the executor must satisfy the court:
(a) that there is evidence to establish circumstances giving rise to a well-founded suspicion that the testator/testatrix was incapable of making the subsequent will; and
(b) that notice has been given to all interested parties and no-one has come forward to propound the later document.
20 Having regard to all of the circumstances described above, I do have a suspicion that the deceased lacked testamentary capacity when he gave instructions for and executed the 2010 Will. It is apparent from the evidence of the plaintiff that the deceased's mental condition was deteriorating from 2009. The medical reports of Dr Maher reveal that testing on 1 May 2009 indicated that the deceased was suffering from cognitive impairment at that time. The medical report of Dr Dawes referred to testing in August 2011 in which the deceased demonstrated nil scores for orientation and recall, and was unable to draw a clock face. This medical evidence indicates a progressive cognitive decline over this period, and gives rise to a suspicion that the deceased lacked testamentary capacity in April 2010.
21 I also take account of the opinion expressed by Dr Maher that the deceased would likely not have had full capacity to write a will in April 2010, a year after Dr Maher had seen him. In doing so, I am cognisant of the principle that questions of testamentary capacity are to be judged by the court from the facts stated by witnesses rather than opinions of witnesses as to testamentary capacity (which is a legal question). However, it is evident from Dr Maher's report of 18 June 2012 that he did have a proper understanding of what was required to establish testamentary capacity. In those circumstances, I am prepared to give some weight to Dr Maher's opinion that the deceased was unlikely to have full capacity to write a will in April 2010.
22 It is unnecessary for me to consider whether, if one of the parties had propounded the validity of the 2010 Will, the evidence I have referred to would have been sufficient to rebut the presumption of testamentary capacity. In circumstances where no party propounds the 2010 Will, it is sufficient for me to form a well-founded suspicion that the deceased was incapable of making the 2010 Will. I am satisfied that such a suspicion is properly raised by the evidence to which I have referred.
23 I am also satisfied that notice of the plaintiff's application has been given to all interested parties, being the children of the deceased who are the beneficiaries under the Will, and that no one has come forward to propound the validity of the 2010 Will.
24 I am therefore satisfied that there should be a grant to the plaintiff of probate of the 2007 Will, notwithstanding the existence of the 2010 Will.
Grant to the plaintiff
25 Despite the fact that the plaintiff and second defendant are jointly executors of the 2007 Will, only the plaintiff seeks a grant of probate. In those circumstances it is appropriate that the grant be made to the plaintiff, while reserving the right to the second defendant to apply for probate of that will in the future if he chooses.4
Costs
26 Given that the making of this application was a necessary part of the administration of the deceased's estate, I considered it appropriate to accede to the plaintiff's request that his counsel's costs of the application be borne by the deceased's estate.
1Public Trustee v Alzheimer's Australia WA Ltd [No 2] [2014] WASC 337 [30] - [47].
2Buckley v Buckley [2011] WASC 184 [14] - [19].
3Thornhill v Thomas [2010] WASC 297 and Hoare v Reyburn[2010] WASC 301.
4Tsaknis v Lilburn [2010] WASC 152 [44]; Thornhill v Thomas[17].
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