Yates as Executor of the Will of Kathleen CONECIOUS Le Varne Walton v Granich as Executor of the Will of Kathleen CONECIOUS Le Varne Walton
[2013] WASC 317
•14 AUGUST 2013
YATES As Executor of the Will of KATHLEEN CONECIOUS LE VARNE WALTON -v- GRANICH As Executor of the Will of KATHLEEN CONECIOUS LE VARNE WALTON [2013] WASC 317
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 317 | |
| Case No: | CIV:2821/2012 | 14 AUGUST 2013 | |
| Coram: | McKECHNIE J | 14/08/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Will declared valid, compromise approved | ||
| B | |||
| PDF Version |
| Parties: | SHIRLEY ANNE YATES As Executor of the Will of KATHLEEN CONECIOUS LE VARNE WALTON ALEXANDER PETER GRANICH As Executor of the Will of KATHLEEN CONECIOUS LE VARNE WALTON ELEANOR KEANE As Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON MAUREEN EVANS as Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON SORAYA KUMAIL as Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON MAKSIM VISKOVICH as Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON LILLIAN VISKOVICH as Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON |
Catchwords: | Wills and estates Compromise of action Declaration of validity of Will No new principles |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ALEXANDER PETER GRANICH As Executor of the Will of KATHLEEN CONECIOUS LE VARNE WALTON
First Defendant
ELEANOR KEANE As Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON
Second Defendant
MAUREEN EVANS as Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON
Third Defendant
SORAYA KUMAIL as Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON
Fourth Defendant
MAKSIM VISKOVICH as Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON
Fifth Defendant
LILLIAN VISKOVICH as Beneficiary under the Will of KATHLEEN CONECIOUS LE VARNE WALTON
Sixth Defendant
Catchwords:
Wills and estates - Compromise of action - Declaration of validity of Will - No new principles
Legislation:
Nil
Result:
Will declared valid, compromise approved
Category: B
Representation:
Counsel:
Plaintiff : Dr J J Hockley
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Solicitors:
Plaintiff : Deborah Pearman
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Case(s) referred to in judgment(s):
- McKECHNIE J:
How this matter comes to court
1 Mrs Kathleen Walton had just turned 94 when she died on 21 October 2012. She had been ill for some months prior to her death and suffered from dementia in the latter stages.
2 Shortly before her death she made a number of Wills: 4 February 2010, 1 February 2012, 1 June 2012 and 13 September 2012. The last two Wills are in contention.
3 The plaintiff is Mrs Walton's niece. She had looked after her in a manner detailed in her affidavit over many years.
4 The plaintiff seeks a declaration that the Will dated 13 September 2012 is invalid and that she receive a grant of probate of the Will dated 1 June 2012.
5 The parties have agreed to compromise the action and the defendants neither consent nor oppose the orders sought. The first defendant has filed a notice of intention to abide the decision of the court, as have the second to fifth defendants.
6 It is necessary for me to be satisfied both as to the invalidity of the Will of 13 September 2012 and the validity of the Will of 1 June 2012.
The validity of the Will of 1 June 2012
7 The manner in which the Will came about is detailed in the affidavit of Melanie Jane Watson sworn 24 June 2013. Ms Watson is a solicitor who attended with another solicitor Ms Tavelli who has confirmed the account of Ms Watson.
3. Ms Yates was present during the discussions in relation to the Enduring Power of Guardianship, but left the room prior to my discussions with Mrs Kathleen Walton in relation to her Will.
4. During my meeting with Mrs Walton she was alert and coherent, and readily engaged in conversation with Ms Tavelli and me.
5. At approximately 1.15 pm on 1 June 2012, Mrs Walton and I, in the presence of Janette Tavelli, had a conversation to the following effect:
MW: You have given me instructions to prepare a new Will. Do you understand that this will mean that all of your previous Wills, or your previous Will, is revoked, and is no longer valid.
KW: I do realise that.
6. I asked Ms Walton why she wanted to change her existing Will. Mrs Walton said to me words to the effect that she was anxious about the contents of her existing will and she wished to change it quickly. Mrs Walton also stated to me words to the effect that the existing will provided for Soraya Kumail (the Fourth Defendant).
7. I asked Mrs Walton what she wanted to provide for in her new Will. Mrs Walton stated to me that, 'I'd like it all to go to Shirley, and $10,000 to Soraya'.
...
10. I stated to Mrs Walton words to the effect that I would prepare her Will in accordance with her instructions.
...
12. In the presence of Mrs Walton and Ms Tavelli I then prepared Mrs Walton's will in accordance with the instructions that she had given me.
13. After I had prepared the Will, I read out the entire Will to Mrs Walton. I asked Mrs Walton if she had any questions. Mrs Walton did not ask any more questions.
14. Mrs Walton then signed the Will. Both myself and Ms Tavelli witnessed Mrs Walton's signature, and attested to her execution.
15. Mrs Walton and I then had a conversation to the following effect:
MW: I confirm that you have now signed that Will and that each of myself, Melanie Watson, and Janette Tavelli have witnessed you signing the Will today, and can you just confirm that's your understanding that you've signed the document?
KW: Yes, that's correct.
16. Based on my conversations with Mrs Walton deposed to in paragraphs 5 to 11 and 13 to 15 herein, I formed the belief that:
(a) Mrs Walton recalled and understood the contents of her previous wills and wished to revoke her most recent previous will;
(b) Mrs Walton understood the instructions that she was giving me;
(c) Mrs Walton's instructions were her genuine wishes;
(d) Mrs Walton understood the Will I prepared, and therefore at the time of making the Will on 1 June 2012 Mrs Walton had testamentary capacity to make the Will.
Events after the Will was executed
9 As a result of the guardianship application made by a social worker at Osborne Park Hospital, the matter came before SAT. On 27 July 2012, SAT made an order dismissing the guardianship application and confirmed the enduring power of guardianship signed on 1 June 2012. SAT made further orders appointing the plaintiff as administrator of the estate and revoking an earlier enduring power of attorney.
The Will of 1 June 2012 is valid
10 I am satisfied that the deceased understood what she was doing, expressed her views with clarity to Ms Watson, and had testamentary capacity to execute the Will of 1 June 2012. There is nothing to suggest otherwise.
The Will of 13 September 2012 is invalid
11 I am not so satisfied about the Will of 13 September 2012. There is no evidence as to the circumstances in which the instructions were taken or inquiries made as to the deceased's capacity to make a Will, although the Will was drawn and witnessed by a solicitor. Dr Lake, who had known the deceased since her admission to Royal Perth Hospital on 22 June 2012, diagnosed 'slightly progressive cognitive impairment due to Alzheimer's Dementia'. His observations were:
appears very reasonable on initial assessment seems to have full capacity. On further assessment cognitive deficits become evidence, poor planning, poor management, poor insight into own capabilities becomes evident.
12 Dr Ian Waite is a medical practitioner who has worked exclusively with elderly people for over 10 years. The deceased became his patient on 5 September 2012, the day after her admission to Concorde, until her death on 21 October 2012, during which time he saw her 14 times in September and nine times in October. He described her mental health:
In regard to her mental health she consistently exhibited anxiety, capricious changes of mind, lack of insight in relation to her own severe medical illnesses, physical disabilities and need for care and also deficits in her short and long term memory. She frequently became agitated toward staff as they attempted to provide necessary care, refusing assistance and then critical of them a few minutes later for not assisting her.
She regarded herself as being imprisoned in the nursing home and was obsessed with going home. This was clearly inappropriate as she needed assistance with getting out of bed, walking with her frame and required help to shower and dress. Her medication required crushing and her food processing into a soft form so as she could swallow it. She was not continent.
She frequently requested transfer to hospital when she became episodically breathless and developed angina. This was despite the episodes being self limited and the fact that during her last admission to Royal Perth Hospital from 4 to 14 August 2012 for these symptoms, she had refused all treatment and tests and requested discharge on the third day of her hospitalisation. A meeting at that time between Mrs Walton, the Department of Geriatric Medicine, the Cardiology Department, the Palliative Care Consultancy Service and Mrs Walton's Enduring Power of Attorney agreed that no further admissions for chest pain and breathlessness should occur as she had terminal end stage heart failure and was already on maximal therapy. Mrs Walton denied all knowledge of this, though it was specifically documented in her discharge summary.
While she was in Royal Perth Hospital she was charted for Donepezil a drug used to assist memory in the setting of Alzheimers Dementia. She had a diagnosis of a Neuro-degenerative condition and likely Alzheimers Dementia made when an inpatient at Osborne Park Hospital, prior to the State Administrative Tribunal appointing her niece Ms Shirley Yates the Plenary Administrator of her estate on 27 July 2012.
13 Having regard to his experience with the patient, and reports done on her cognitive state at Osborne Park Hospital and Royal Perth Hospital, Dr Waite concludes 'I do not consider Mrs Walton had testamentary capacity on 13 September 2012'.
14 To his knowledge, the deceased was not treated by any other medical practitioner while at Concorde. He had no knowledge of her undertaking a Will and was not asked to provide advice on her testamentary capacity before she signed the Will.
15 In the light of the opinions of Dr Lake and Dr Waite, and in the absence of evidence as to the circumstances in which the Will of 13 September 2012 was executed, I cannot be satisfied that the deceased had necessary testamentary capacity when she executed it.
16 A diagnosis of Alzheimer's Dementia does not resolve the question of incapacity. It is likely that the deceased was suffering from the condition on 1 June 2012 when she executed that Will. A person with this condition may have good days and bad days. Generally there will need to be evidence of observations as to capacity at or about the time of execution. There is such evidence for the Will of 1 June 2012 but not for the Will of 13 September 2012.
The effect of a compromise
17 The parties have entered into a deed. The beneficiaries under the Will of 13 September 2012 therefore do not contest the validity of the Will of 1 June 2012. A compromise means that a modest estate will not be further diminished. The compromise is appropriate.
Orders
(1) The Will of 1 June 2012 revoked all previous Wills. It was executed when the deceased had testamentary capacity.
(2) The Plaintiff file at the Probate Registry a Minute of the Proposed Grant of Probate, a copy of the Statement of Assets and Liabilities of the estate;
(3) The Plaintiff comply with any further directions of the Probate Registrar to allow a grant in solemn form of law to issue;
(4) A grant of probate in solemn form of law be issued from the Probate Registry of the Will dated 1 June 2012.
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