Wills and probate - Appeal against grant of letters of administration of estate - Testamentary capacity of testator - Turns on own facts

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Avsar v Westland Healthcare Ltd [2007] WADC 27

Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295

Bur Singh v Uttam Singh (1910) ILR 38 C 387

Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435

Gair v Bowers [1909] HCA 57; (1909) 9 CLR 510

Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106

In the Estate of Kazacos; Ryan Kazacos [2001] NSWSC 140; (2001) 183 ALR 506

Re JRC (Unreported, Guardianship and Administration Board, File No 020604 AD0557/02, 29 June 2004)

Smith v Smith (1985) 80 FLR 444

Tipper v Moore [1911] HCA 42; (1911) 13 CLR 248

West Australian Trustee Executor and Agency Co Ltd v Holmes (1961) WAR 144

Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

1 OWEN JA: This is an appeal against the decision of Templeman J granting letters of administration in solemn form of the estate of John Robert Cowan (the deceased) in favour of the respondent. There is also an application for leave to add grounds of appeal and an application for leave to adduce further evidence.

2 The appellant is the step-daughter of the deceased and the respondent is the deceased's sister. To assist in understanding the appeal before this Court it is necessary to spend a little time outlining the history of the proceedings and other background facts.

3 On 13 March 1994 the deceased married Antoinette Hayward, who was the appellant's mother. One of the witnesses of the marriage was the respondent, the deceased's sister. Both the deceased and Hayward were of advanced years; the deceased had been born in 1918 and Hayward in 1928.

4 In September 1995 Hayward was admitted into a nursing home. In September and October of that year she was admitted to hospital several times after accidentally being given a double dose of insulin at the nursing home: Avsar v Westland Healthcare Ltd [2007] WADC 27. In late October she left the nursing home and went to live with the appellant in Adelaide.

5 Around this time the appellant applied to the Guardianship Board in South Australia to be appointed the administrator of Hayward's estate. The Board, being satisfied that Hayward had a mental incapacity within the meaning of the Guardianship and Administration Act 1993 (SA), appointed the appellant as Hayward's administrator. In February 1996 Hayward died (Avsar v Westland Healthcare Ltd).

6 It appears that at some time (probably in 1996 going by the heading to the action) property settlement proceedings were commenced in the Family Court of Western Australia between Hayward and the deceased. In January 2000 the appellant was granted letters of administration of Hayward's estate for the sole purpose of being substituted as applicant in the property settlement proceedings. In those proceedings, the appellant argued that the marriage between the deceased and Hayward was null and void because it was obtained by duress or fraud, or because Hayward was mentally incapable of understanding the nature and effect of the marriage ceremony. Those proceedings are ongoing.

7 Between 1984 and 1995 the deceased made many wills. Relevantly, in a will dated 30 October 1995 he named Hayward as sole beneficiary with a gift over to the appellant if Hayward failed to survive him. On 15 November 2001 the deceased made the will which is the subject of this dispute. It reads, relevantly, as follows:

1. I REVOKE all previous Wills and Testamentary writings.
2. I APPOINT the PUBLIC TRUSTEE in and for the State of Western Australia to be the Executor and Trustee of this my Will.
3. SUBJECT TO the payment of my just debts funeral and testamentary expenses I DEVISE and BEQUEATH the whole of my real and personal estate to my sister JEAN BINNING if she survives me but if she predeceases me then to my Trustee UPON TRUST for equal division among those of her children who survive me.

8 The will was prepared by the Public Trust Office in Perth. According to evidence accepted by the trial judge (and which I will describe in more detail later) it was executed in the presence of two employees of the Public Trust Office who were authorised to witness wills. They saw the deceased sign the will, each of them being present at the same time, and they witnessed each other's signatures.

9 In October 2002 the appellant filed an application with the Guardianship and Administration Board for the appointment of an administrator and a guardian for the deceased. She proposed that she be appointed as administrator jointly with another person and as guardian solely or jointly. When the matter came on for hearing in 2003 the appellant did not attend and the application was dismissed. She filed a fresh application in September 2003 and the matter was heard in 2004.

10 The Guardianship and Administration Board dismissed the appellant's application for the appointment of an administrator: Re JRC (Unreported, Guardianship and Administration Board, File No 020604 AD0557/02, 29 June 2004). The appellant had submitted that the deceased's disabilities were 'mental illness', 'physical disability', 'confusion', 'lack of concentration', 'heart surgery' and 'memory loss'. After reviewing the medical evidence, however, the Board was not satisfied that the presumption of competence had been displaced. The medical evidence, on balance, did not persuade the Board that the deceased was incapable of making reasonable judgments in respect of matters relating to his estate.

11 On 9 March 2005 the deceased died. The Public Trustee renounced probate. The litigation now before the court has arisen from the respondent's attempt to obtain letters of administration with the will annexed in respect of the deceased's estate.

12 On 2 May 2005 the appellant filed a caveat, which was renewed from time to time, over the deceased's estate. It demanded that nothing be done in relation to the estate without reference to her. The nature of the interest the appellant claimed to be protecting was her interest in the deceased's estate as a beneficiary under the 30 October 1995 will.

13 On 23 March 2007 the respondent filed a writ of summons naming the appellant as defendant. At the time the writ was issued, the appellant's caveat was still current, it having last been renewed on 19 December 2006. It has since expired. In the statement of claim endorsed on the writ the respondent pleaded that the deceased had duly executed a will on 15 November 2001 which named the Public Trustee the executor and bequeathed his entire estate to the respondent should she survive him. She also pleaded that the deceased had died on 9 March 2005 and that the Public Trustee had renounced its right and title to the probate and execution of the will. The respondent denied that the appellant had any interest in the deceased's estate, whether as claimed or otherwise. By way of relief, the writ claimed the grant of letters of administration with the will annexed in favour of the respondent and ancillary orders.

14 The respondent apparently encountered some difficulty in serving the writ on the appellant but on 5 July 2007 the appellant entered an appearance.

15 On 23 July 2007 the appellant filed her defence and counterclaim. In her defence, the appellant denied both that the will made on 15 November 2001 was duly executed and that the respondent had any interest in the estate on the basis that she was not named in any will made prior to the 'fraud' marriage between the deceased and Hayward. The appellant claimed that both she and her son, Sean Avsar, had an entitlement in the estate. She said that her interest arose from her appointment as the personal representative of Hayward in property settlement proceedings against the deceased's estate that were currently on foot in the Family Court. Sean Avsar's interest was said to arise from wills made by the deceased prior to his 'fraud' marriage to Hayward. The appellant opposed the grant of letters of administration to the respondent on the basis that it would cause prejudice and loss to the rightful beneficiaries of the deceased's estate.

16 In the counterclaim the appellant, on behalf of herself and Sean Avsar, sought damages against the respondent and the estate of the deceased. The appellant claimed economic loss in the order of $100,000 per annum plus interest since 1994. She also claimed damages in relation to the treatment of Hayward and the pecuniary and non-pecuniary losses said to have been suffered by the appellant as a result of having to deal with Hayward's affairs. She claimed, in addition, letters of administration with the valid will annexed (that being a will made prior to the 'fraud' marriage) either solely or jointly with any adult member of the Avsar family.

17 On 15 August 2007 the respondent filed an application to strike out the appellant's defence and counterclaim. On 21 August 2007 that application was dismissed by the case manager and the respondent was ordered to file a reply and defence to counterclaim. The respondent did so on 5 October 2007. Aside from some immaterial admissions, the respondent joined issue with every allegation made by the appellant. She also pleaded that the damages sought in the counterclaim could not competently be made in probate proceedings.

18 On 28 February 2008, after the parties had given discovery, the appellant filed an application to stay the action until proceedings concluded in the Family Court. The stay was sought on the basis that the Family Court proceedings could resolve the question of whether the marriage of the deceased and Hayward was a 'fraud' and this would have an impact on the probate proceedings. The application was dismissed by a master, who ordered that the matter be entered for trial by 20 March 2008.

19 On 13 March 2008 the respondent entered the matter for trial. On 23 April 2008 the appellant filed an application to adjourn the trial and countermand the entry for trial. The application came before Templeman J on 16 May 2008. The appellant did not attend the hearing. Templeman J dismissed the application to adjourn the trial and countermand the entry for trial. However, the appellant had written to the court explaining that her husband was in ill health and required her care and attention. In the light of that information Templeman J decided to delay the trial of the matter to mid-June 2008.

20 At the same hearing Templeman J took the evidence of the attesting witnesses to the 2001 will in advance of the trial. The two witnesses each gave evidence that the signatures on the will were theirs and they had witnessed each other sign the will. One of the witnesses said that as standard procedure she would have made sure that the deceased read the will and was happy with its contents before they proceeded to witness the will. Neither expressed any doubt that they were both present when the deceased signed the will. As the appellant did not attend the hearing, the witnesses were not cross-examined.

21 The trial was listed for 20 June 2008. On 12 June 2008 the appellant filed an application to adjourn the trial. The application was heard on 16 June 2008. The appellant argued that she was not ready to present her case because she had been overseas caring for her husband. She foreshadowed a defence based on the proposition that if the Family Court declared the marriage of Hayward and the deceased a nullity on the basis of fraud, the deceased's 2001 will would be revoked by the operation of s 14A of the Wills Act 1970 (WA). She also said she would assert that the deceased lacked mental capacity to make the will.

22 Templeman J declined to adjourn the trial. His Honour expressed the view that the argument based on the nullity of marriage was misconceived. But he agreed to adjourn the application so as to allow the appellant to produce to the court medical evidence going to the question of the deceased's testamentary capacity. His Honour gave a direction that any materials on which the appellant wished to rely were be filed at the court the following day.

23 The appellant did not comply with the direction to file the medical evidence at the court on 17 June 2008. Nevertheless, Templeman J vacated the trial scheduled for 20 June 2009 after the appellant produced a medical certificate which said that she was unfit for work on the trial date. He ordered that there be a directions hearing to determine when the matter should be relisted.

24 On 16 July 2008 the matter returned for directions before Templeman J. The appellant did not attend, having sent in a medical certificate indicating that she was unwell. His Honour concluded that, in the absence of evidence on oath from the appellant's medical practitioners about her condition, it was appropriate to relist the matter for trial. He ordered that the matter proceed on the basis of the pleadings as they stood and that it be listed for trial after 25 August 2008.

25 On 20 August 2008 the appellant filed an amendment to her defence and counterclaim in purported reliance on O 23 r 1(3). The amendments, among other things, contended that the will was invalid by virtue of the 'fraud' marriage and that the deceased lacked the capacity to make the will.

26 On 22 August 2008 the appellant filed an application to dispose summarily of the respondent's writ of summons. The application also sought summary judgment against the respondent on the counterclaim.

27 The trial of the matter was held on 1 September 2008. The appellant and her son, Selim Avsar, both attended. On the day of the trial, the appellant filed an affidavit setting out the medical evidence she said demonstrated that the deceased lacked the capacity to make the will. During the trial, she applied to issue a subpoena to the Department of Health and Ageing, directing them to produce the deceased's medical file. She also sought to adjourn the trial on the basis that she was not yet prepared to argue the issue of capacity. Selim Avsar applied for leave to intervene in the proceedings on the grounds that he was a creditor of the deceased's estate. He also sought leave to issue a subpoena directed to the Department of Health and Ageing.

28 Templeman J declined to adjourn the trial and refused leave to issue the subpoena. After hearing the parties, he delivered an ex tempore judgment granting the respondent letters of administration with the will annexed in solemn form in relation to the deceased's estate. He also dismissed the appellant's application for summary judgment in respect of the defence and counterclaim and refused Selim Avsar leave to intervene or to issue a subpoena. Finally, he ordered that a caveat on the estate which had been filed by Sean Avsar, another of the appellant's son, be removed.

30 The reasons for decision were brief and can be summarised in the points that follow.

1. His Honour commenced with the execution of the 2001 will. He accepted the evidence of the two witnesses to the will and concluded that 'it was a perfectly regularly executed will'.
2. The trial judge noted that there is a presumption that a testator had testamentary capacity. There was no evidence to suggest that the deceased lacked testamentary capacity and therefore to deny the admission of the will to probate. His Honour was not persuaded by the material adduced by the appellant that the deceased lacked capacity. As to that material he said:

There was a hearing before me at which [the appellant] referred to certain medical evidence in her possession which was said to support the proposition that the testator lacked testamentary capacity. At that very late stage I gave [the appellant] an opportunity to bring that in so that I could look at it. She did not do so.

[The appellant] has, however, this morning filed an affidavit dated today in which she refers to and quotes extracts from medical reports by a Commonwealth medical officer at the Australian Department of Health which I will accept as an accurate extract from the relevant reports. The extracts refer to the testator having been diagnosed on 26 June 1974 with memory loss as a result of pinched arteries in the head and right intercranial internal carotid artery stenosis. Stenosis simply means an abnormal narrowing.

Even if the reports were in evidence, none of that would prove that the testator lacked testamentary capacity. There are many people who are perfectly able to make wills who nevertheless suffer from memory loss: so that even if I were to admit that evidence, it would not change my view that there is nothing to displace the presumption of capacity.

1. His Honour then turned to, and rejected, the contention that a Family Court decree that the marriage was invalid might affect the validity of the will. He noted that the will was made several years after the death of the deceased's former wife. Even if the marriage was invalid it would have no bearing on the validity of the will.
2. Selim Avsar's application for leave to intervene had been brought because he wished to obtain a limited grant of administration to the deceased's estate on the basis that he was a creditor of the estate and that insufficient provision was made for him under the testator's will. But his Honour said it was not appropriate that Selim Avsar be given letters of administration and that if he had claims against the estate on either of the bases put forward the proper course was to bring them against the respondent as administrator. He also refused Selim Avsar's application to issue a subpoena for the same reasons as militated against the appellant's application.
3. The trial judge then dealt with the application for summary judgment, the counterclaim and the application to amend the defence and counterclaim. In relation to the summary judgment, he dismissed all claims on the grounds that there was no proper affidavit in support. He also said that the counterclaim was entirely inappropriate. It claimed damages under a whole raft of heads, none of which had anything to do with the application for letters of administration.
4. The trial judge declined to accept the appellant's amended defence and counterclaim, as O 21 r 1(3) did not apply and the appellant would have needed leave. He said:

[The proposed amendment] is misconceived because leave is required to amend once the pleadings have closed. The amendments proposed are extremely difficult to follow and I would not permit them in any event.

31 After delivering judgment, counsel for the respondent pointed out that Sean Avsar, another of the appellant's son, had filed a caveat against the estate. Counsel for the respondent advised the trial judge that Sean Avsar had been given notice of the hearing. The trial judge said that '[n]o claim made by Mr Sean Avsar in support of his caveat has been pursued. I will direct that the caveat be removed.'

32 The formal order, as extracted and sealed, noted that Templeman J had pronounced for the force and validity of the 2001 will and directed the Probate Registrar to issue letters of administration (with the will annexed) of the estate of the deceased in favour of the respondent. It also contained orders that Selim Avsar's application to intervene be dismissed, that the caveat lodged by Sean Avsar be removed and that the appellant pay the respondent's costs of the action, including any reserved costs. It appears that formal orders dismissing the appellant's various applications were not extracted.

The notice of appeal and the grounds of appeal

33 There are serious deficiencies in the notice of appeal and the grounds of appeal lodged by the appellant. She is appearing in person in these proceedings, as she has every right to do. The appellant's unfamiliarity with the rules and procedures of civil and appellate litigation may go some way to explain the difficulties but they are difficulties nonetheless.

34 The notice of appeal cites the 'decision' to be challenged on appeal as the order granting administration to the respondent, the order removing Sean Avsar's caveat and the orders in relation to costs. But it also includes:

(a) the dismissal of the application for summary disposal of the respondent's claim and summary judgment on the counterclaim; and

(b) relisting the trial for hearing on 1 September 2008 notwithstanding the appellant's application of 14 April 2008 to countermand the entry for trial.

35 The challenge to the order granting letters of administration is readily understandable. The basis on which the appellant would have standing to appeal against the removal for Sean Avsar's caveat when he has not launched an appeal is not clear. It is true that in the ex tempore decision announced on 1 September 2008 Templeman J said that the counterclaim was to be dismissed. But no order has been extracted. This challenge therefore proceeds on a misapprehension that the appellate process lies against reasons for decision rather than against orders formally made. I will return to these problems shortly.

36 The appellant advances a large number of grounds of appeal. They are to be found in different parts of the appeal books, they are set out in narrative form and, in large part, they are argumentative. This makes it difficult to discern exactly how the grounds of appeal relate findings of fact or law made by the trial judge and to identify the real and legitimate bases on which the appellant seeks the intervention of this court.

37 While, by virtue of the rules, an appeal to this court is by way of rehearing, the task of the court is nonetheless to discern error. The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene. An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that she or he seeks. This explains why the grounds of appeal are a critical part of the process because they are the vehicle which guide the review process. The failure of parties properly to attend to grounds of appeal is by no means limited to self-represented litigants. In this regard it is as well to bear in mind what Kirby J said in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [58]:

The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime, a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is 'filed' has no authority to determine any issue affecting the parties. (authorities omitted)

38 Five grounds of appeal are advanced in the original notice of appeal. I will try to describe what I understand to be their essence rather than in accord with the phraseology the appellant has used. In the first two the appellant contends that as she was not a caveator claiming an interest in the deceased's estate she should not have been joined as a party and she should not, therefore, have to bear the burden of obtaining medical evidence and otherwise verifying the doubts about the deceased's testamentary capacity. In the next two grounds the appellant refers to the Family Court proceedings, which make it inappropriate for the respondent to seek letters of administration and that a decree of nullity of the marriage, if made, would be central to consideration of the validity of the will. The fifth ground simply states that the appellant's chamber summons of 22 August 2008 was dismissed. It could not be construed as a proper ground of appeal.

39 On 17 October 2008 the appellant filed her case. This document includes 13 grounds. With due respect to the appellant it is almost impossible to identify the gravamen of the challenges she wishes to make and to describe them in any coherent form. Nonetheless, I will do my best.

1. The deceased lacked testamentary capacity to make the 2001 will or, for that matter, any other will he purported to make after 1974 (grounds 1 and 13 (a), (f) and (g)).
2. The appellant was wrongly joined and pursued as a defendant in the proceedings when she has not claimed a beneficial interest under any valid will and when procedural errors were made by court officers in relation to caveats and the writ (grounds 1, 2 to 10, 13(c) and 13(d)).
3. The appellant's chamber summons dated 10 April 2008 (filed 23 April 2008), 12 June 2008 and 22 August 2008 were unjustly dismissed and she was 'shoved into a trial' on 1 September 2008 where her claims were unjustly dismissed (ground 10, 11 and 12).
4. She was wrongly denied the opportunity to subpoena records from the Department of Health (ground 13(b)).
5. Sean Avsar had a caveatable interest that should have been recognised (ground 13(e).

40 The appellant then filed an affidavit sworn 13 July 2009 seeking leave to add additional grounds of appeal. That application is now before this court. Again, it is very difficult to describe the grounds because they are set out in narrative form. They seem to involve the following propositions (which I will number sequentially bearing in mind the grounds summarised above).

1. The evidence of the two witnesses to the 2001 will verified only their own signatures and did not prove the identity of the testator (that is, that it was the testator who attended before them and executed the will) (affidavit par 9).
2. At the trial on 1 September 2008 the trial judge failed to have regard to the appellant's (defendant's) response to the respondent's (plaintiff's) notice to admit facts (affidavit par 14).
3. The trial judge failed to address the title on the writ of summons even after the respondent's solicitor raised this in chambers on 16 May 2008 (affidavit par 15).
4. The trial judge wrongly concluded that a decree of nullity of marriage (if made by the Family Court) would have no bearing on the validity of the will and he should have deferred the trial until after completion of the Family Court proceedings (affidavit pars 16 and 17).
5. Selim Avsar should have been given leave to intervene because he was a creditor of the deceased estate (affidavit par 22).

41 At the outset of the hearing the members of the court canvassed the problems with the grounds of appeal with the appellant and suggested to her the areas in which the court would gain the most assistance from oral submissions. By the end of the process I think the appellant understood that, so far as the court was concerned, the crux of her appeal lay in the challenge to the trial judge's finding that the deceased had testamentary capacity or, to put it more accurately, that no evidence had been adduced to rebut the presumption of capacity. There are two allied matters that also come into play. First, the complaint by the appellant that she should have been permitted to issue a subpoena for some of the deceased's medical records. Secondly, the argument about the evidence of the two attesting witnesses. In other words, the real issues in the appeal are those that I have listed as items 1, 4 and 6 above. They are the issues on which I will concentrate in the remainder of these reasons.

42 However, before I turn to the central issues I will deal very briefly with the other matters that have been identified. I do so out of consideration for the appellant so that she will be able to appreciate the reasoning process.

Item 2: appellant wrongly named as defendant

43 The appellant submits she was wrongly joined as a defendant in the proceedings. In the chronology submitted for this appeal, it is noted that the appellant last lodged a caveat over the estate of the deceased on 19 December 2006. Under r 33(3) of the Non-contentious Probate Rules 1967 (WA) a caveat remains in place for the space of six months from the day it is entered. That is, the caveat remained in place until 19 June 2007. The writ of summons was issued by the respondent on 23 March 2007. The appellant's caveat remained in place. As she had declared an interest in property in the deceased's estate through the lodging of the caveat and those declared interests would be affected by the decision under review, the appellant was correctly named as a party to these proceedings.

44 It is also to be noted that the appellant lodged a counterclaim in the proceedings. That seems somewhat at odds with her stance that she should never have been a party.

Item 3: wrongful dismissal of the appellant's chamber summonses

45 The appellant took no steps to challenge (other than by way of renewal of the substance of applications for adjournment) the dismissal of her summonses dated 10 April 2008 and 12 June 2008 at the time when the orders were made. Those decisions have been overtaken by events; namely, the hearing on 1 September 2008. This is an impediment to a challenge advanced in this appeal.

46 In the appeal hearing no oral submissions were addressed to the contentions concerning the amended defence and counterclaim of 20 August 2008 and (or) the 22 August 2008 summons. The trial judge considered the appellant's amended defence and counterclaim that had been filed without leave on 20 August 2008. In my view his Honour correctly determined that leave was required to amend pleadings once they are closed, the closing date being determined by O 20 r 20 Rules of the Supreme Court 1971. Having read the document I am unable to disagree with his Honour's comment that the amendments were extremely difficult to follow. Given that and the proximity to trial I do not think his Honour erred in concluding that he ought not, in any event, give leave to amend. This is consistent with the case management principles canvassed in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.

47 His Honour also addressed the chamber summons dated 22 August 2008 for leave to dispose of the writ summarily and for summary judgment on the counterclaim. Again I agree with his conclusion that there was no proper affidavit in support in relation to either the claim or counterclaim as required by O 14 Rules of the Supreme Court 1971. In any event the claims for damages in the counterclaim bore no relationship to the matters properly before the court, that is, the application for letters of administration. If the appellant believes she has genuine claims against the estate they could be brought forward in separate proceedings.

48 These grounds of appeal, however enunciated, would have been bound to fail.

49 Neither Sean Avsar nor Selim Avsar have launched appeal proceedings or otherwise sought to challenge the findings of the trial judge so far as the findings concern them. They are not before the court and the appellant cannot appeal on their behalf.

50 In the response to the notice to admit facts the appellant simply denies the validity of the will and says the Public Trustee had not then provided her with copies of wills. This would not have assisted the trial judge and is immaterial to any issue in the appeal.

51 The transcript reference which the appellant cites (ts 11 of 16 May 2008) refers to Sean Avsar's caveat, not to the writ of summons. If the appellant is alleging that Sean, rather than the appellant, is the proper defendant, it adds nothing to item 2. Otherwise, the complaint is misconceived.

52 The appellant has every right, if she wishes, to pursue the Family Court proceedings and, in particular, to seek a decree of nullity of the marriage. But the inescapable fact is that Hayward died in February 1996. The marriage (if it were valid) came to an end on that date. The 2001 will was executed after February 1996 and, therefore, after the marriage had come to an end. If the Family Court were to make a decree of nullity it would mean the marriage was invalid from the outset. If that were to be the finding, it would mean there was no marriage and thus the 'marriage' could not have any bearing on the validity of the 2001 will.

53 In my view, the trial judge was right to conclude that s 14A of the Wills Act was irrelevant to any issue in the proceedings for a grant of letters of administration.

54 I return now to the primary arguments raised on the appeal; namely the manner of execution of the will and the testamentary capacity of the deceased.

55 The trial judge heard evidence from Janet Dewar and Elizabeth Culliton. They were officers of the Public Trustee whose names and signatures appeared on the 2001 will as witnesses. Culliton was able to recall the occasion on which she was introduced by Dewar to a man whom Dewar told her was 'Mr Cowan'. She identified her signature on the will. She said she had no doubt that the document in evidence was the will signed by the testator and that the will was signed by the testator in the presence of both herself and Dewar. In her evidence Dewar said she had no recollection of the deceased. But she identified her signature on the will. She also said she had no doubt that both she and Culliton were present when the testator signed the will as it was in accord with the standard policy of the Public Trustee. She also said she would have made sure the testator had read the will and was happy with the content before they proceeded to sign. The trial judge said:

[The witnesses] gave evidence, which I accept entirely, that each was present and saw the testator execute the will and then witnessed his signature, each of them being present at the same time and witnessing each other's signatures. In other words, it was a perfectly regularly executed will.

56 The will contains what may be described as a conventional attestation clause: 'Signed by the Testator in our presence and witnessed by us in the presence of him and of each other'.

57 The appellant submits that the two witnesses to the signing of the will failed to adhere to any policy guidelines or standard procedures to identify the testator when he signed the will in the Office of the Public Trustee on 15 November 2001.

58 Leaving to one side informal wills under s 34, s 8 of the Wills Act 1970 (WA) requires that, for a will to be valid, it must be in writing, it must be signed by the testator so that it is apparent on the face of the will that the testator intended to give effect to the document as a will and the testator's signature must be affixed in the presence of at least two witnesses present at the same time.

59 There is a presumption of due execution that applies where a will appears valid on its face and carries the signatures of the testator and the witnesses in due order. This is especially so when the will contains an attestation clause stating the due formalities of execution: Gair v Bowers [1909] HCA 57; (1909) 9 CLR 510, 530 - 531; Smith v Smith (1985) 80 FLR 444.

60 On its face, the will purports to have been signed by the deceased. Both witnesses gave evidence that they each were present and both witnessed his signature. The will contains a conventional attestation clause. As I have already said, one of the witnesses gave evidence that as standard procedure she would have made sure that the deceased read the will and was happy with its contents before they proceeded to witness the will. Each witness was present at the same time and witnessed the other's signature. The provisions of these sections of the Act have been satisfied: in the words of his Honour, 'it was a perfectly executed will'.

61 There is no obligation at law for the witnesses to the signing of a will to formally establish the identity of the testator. Section 8(d) of the Wills Act provides only that the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary. It is implicit in the appellant's contentions that a person (unknown) may falsely have claimed to be the deceased so as fraudulently to bring about the execution of a spurious will. But there would need to be some evidence raising concerns about the identity of the person claiming to be the testator. There is no such evidence, either of that nature or that would in any other way suggest that the requirements of s 8 had not been complied with. In fact there is positive evidence to the contrary. In the light of that positive evidence the respondent did not need to rely on the presumption of due execution. But it was there nonetheless.

62 A ground of appeal, however framed, challenging the trial judge's finding that it was a 'perfectly regularly executed will' could not succeed.

63 I turn now to the other substantive issue: namely whether the deceased had testamentary capacity.

Application to adduce additional evidence

64 When the matter came on for hearing on 1 September 2008, the appellant tendered an affidavit that she swore on that day. The affidavit canvassed the issue of the deceased's mental capacity. But to the extent that it constituted medical evidence, it was in inadmissible form. There was no other medical evidence bearing on that issue. It follows, in my view, that the trial judge was correct when he concluded that there was no evidence to displace presumption of testamentary capacity. On 20 February 2009 the appellant filed an application for leave to adduce additional evidence. That application is now before the court. The additional material on which the appellant now seeks to rely is, or is related to, medical examinations of the deceased in 1975 and 1976 and a radiological report dated 27 May 2003.

65 In oral submissions the respondent opposed the application for leave to adduce the additional evidence on the basis that the medical evidence does not touch on a question of testamentary capacity. I will consider the proposed additional evidence in more detail a little later.

The legal principles regarding testamentary capacity

66 The term testamentary capacity refers to the mental capacity required to make a valid will. The testator must be of sound mind, memory and understanding. Until the middle of the 19th century the law was that any unsoundness of mind at all would deprive a testator from having the requisite capacity: Smith v Tebbitt (1867) LR 1 P & D 398. However, since the decision in Banks v Goodfellow (1870) LR 5 P & D 549, the courts' approach has changed. In that case Cockburn J, speaking for the court, said at 565:

If the mind...should be subject to some delusion, but such delusion neither exercises nor is calculated to exercise any influence on the particular disposition, and a rational and proper will is the result; ought we, in such case,...deny to the testator the capacity to dispose of his property by will?

67 In the twentieth century this was interpreted to mean that in order to establish the required testamentary capacity the testator must be able to understand the effect of the disposition of his or her property. Forms of unsoundness of mind which do not affect a testator's ability to understand the effect of dispositions are immaterial: Tipper v Moore [1911] HCA 42; (1911) 13 CLR 248. It is necessary to focus on the testator's mental state at the time when the will was executed. That is the relevant time at which testamentary capacity is to be assessed: Banks v Goodfellow; Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 452 - 453.

68 Testamentary capacity is usually presumed where a will has been executed and attested in a normal manner: Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 343; West Australian Trustee Executor and Agency Co Ltd v Holmes (1961) WAR 144, 146. This presumption is not displaced merely by establishing that the testator suffered from a serious illness: In the Estate of Kazacos; Ryan Kazacos [2001] NSWSC 140; (2001) 183 ALR 506, [61]. There must be clear evidence that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property: Bur Singh v Uttam Singh (1910) ILR 38 C 387 [13].

69 If evidence is presented which is 'sufficient to throw a doubt upon the testator's competency' then the onus of persuasion is on the proponent of the will: Bull v Fulton, 343. The question then becomes whether on the whole of the evidence the proponent has discharged its onus as to the testator's capacity: Worth v Clasohm, 453.

70 The trial judge noted the presumption that the testator has testamentary capacity. His Honour said that in this case there was no evidence to suggest that the deceased lacked testamentary capacity and therefore to deny the admission of the will to probate.

71 The evidence adduced by the appellant at trial was contained in her affidavits sworn 6 August 2008 and 1 September 2008. I will confine my attention to those portions of the affidavits that relate to the medical condition of the deceased. In the first of those documents the appellant referred to medical examinations carried out by medical investigators of the Commonwealth Department of Health 'verifying his diagnoses and reported to be suffering memory loss since 1974'. The appellant said this was the basis for granting permanent retirement form government service to the deceased. She continued:

...which now gives cause to believe that [the deceased] was indeed of unsound mind since 1974, and therefore in the interests of justice the question of intestacy ought not to be ignored either.

72 No medical reports or other documents referred to in that paragraph were annexed. In the 1 September 2008 affidavit the appellant effectively repeated the assertions on memory loss since 1974. The appellant went on to reproduce what she said were statements coming 'directly from copies of the deceased [sic] medical documents of the Australian Department of Health, and relates to the Medical Officers diagnosis made of memory loss and disability in the right side of his brain'. The extracts are, as I understand it, documents created by the appellant and not copies of the source documents from which the information has been taken. The documents refer to memory loss and to 'pinched arteries in the head - right intracranial internal carotid stenosis'.

73 The appellant also annexed a schedule detailing criminal and other unlawful acts she said were perpetrated by the deceased. In particular the appellant has concerns over matters concerning a house in Kardinya. It is not appropriate to provide details of the allegations the appellant makes. They are serious matters and I do not doubt that the appellant has genuine concerns about them. But I cannot see any basis on which they would be relevant to the question whether the deceased possessed testamentary capacity at the time he executed the 2001 will. If it be the case (and I am not saying one way or the other whether it is) that property in the estate has been allowed to waste, persons legitimately interested in the estate may have a remedy in properly constituted proceedings. Those matters could not be pursued in this litigation.

74 The appellant also annexed a schedule of 'unusual and abnormal events' that surfaced over the years and which, with hindsight, the appellant now puts down to the deceased's medical condition and his unsoundness of mind. It is not necessary to describe the abnormal events. It is sufficient to say that they are not advanced in admissible form and are not supported by independent evidence. This is not to downplay the concerns held by the appellant or the curious nature of the events she describes. But they are not brought forward in a way that would enable the court properly to assess whether they do, in fact, raise issues of mental incapacity impinging on the deceased's testamentary capacity. For example (and in addition to the problems of form) for many of the events listed there is no elucidation of things such as when they occurred, how often they occurred and the surrounding circumstances in which they took place. Without that information it is not possible adequately to assess the temporal and qualitative nexus between the impugned conduct and the deceased's testamentary capacity when he signed the 2001 will.

75 In my view the trial judge was correct to conclude that, on the materials properly before him, there was no evidence to displace the presumption of testamentary capacity. The next question is whether, if the additional evidence that the appellant now wishes to adduce, had been before the trial judge, a different conclusion would have been reached.

76 The material that is the subject of the appellant's application to adduce additional evidence is as follows.

1. Medical officer's report in an examination of permanent officers for continued employment dated 26 June 1974.
2. A personal statement filled out prior to medical review examination dated 25 August 1976.
3. Form PSB 14B medical examination of permanent officers for continued employment and the medical officer's report dated 25 August 1976.
4. Section 64A review of invalidity pension for the Superannuation Board dated 10 September 1976.
5. Correspondence referring to a medical report for the Director of Health for a review medical examination dated 21 June 1976 and a report on that review dated 12 October 1976.
6. Request regarding whether Mr Cowan's disability has been accepted by the Repatriation Department as being due to war service dated 12 February 1975.
7. Letter from Mr Cowan to the Superannuation Board dated 23 August 1976.
8. Radiology report of Dr Brad Davis dated 27 May 2003.
9. Letter dated 9 October 2008 confirming that there are no medical files relating to the 1974 and 1976 medical examinations listed above at 1 - 5.

77 As I understand it, they are the documents to which the subpoena requested by the appellant would be directed.

78 It seems to me that there could problems in extracting admissible evidence from the materials. It is not clear to what extent the documents in items 1 - 5 are, themselves, medical reports rather than secondary materials created from medical reports. This difficulty would be compounded if, as appears from the document item 9, the department is not holding medical files relating to the medical examinations of the deceased. It is also difficult to see how the document items 6 and 7 could be relevant to the deceased's mental capacity.

79 In my view there is a more fundamental problem with the proposed evidence. There is, again in my view, nothing in these documents which, if admitted as evidence, would raise a doubt about the testator's testamentary capacity at the time he executed the 2001 will. Rather, they attest to the general state of the testator's health from 1974, 1975 and 1976 and indicate that he had some ongoing memory loss as a result of narrowing and pinched arteries in the area of his head. On the authorities it is not sufficient to establish that the testator suffered from a serious illness: In the Estate of Kazacos; Redroff v Miegoch. As the trial judge pointed out, memory loss does not necessarily or even logically suggest mental incapacity of the type that deprives a person of the ability to understand the nature of a will and the dispositions of property that it contains.

80 There is a further problem. Save for the radiology report of Dr Davis dated 27 May 2003 there is nothing that has a temporal connection with the date of execution of the 2001 will. These reports add no weight to the argument concerning the testator's capacity at the time of his signing the will in 2001. The Davis report was in respect of an MRI of the brain and MRA which showed that the deceased had small vessel disease. This report goes no further than indicating that the deceased had a reduced blood flow through his arteries. It does not indicate what effect, if any, the degree of reduction of blood flow would have on cognitive capacity. It therefore provides no evidence as to his capacity at the time of his signing the will in 2001.

81 I note in passing that on 29 June 2004 the Guardianship and Administration Board dismissed the appellant's application that she be appointed as administrator and guardian for the deceased. The Board did so after considering a report from Dr Ian Wood dated 6 November 2002. This is the medical report closest in time to the date when the deceased executed his 2001 will. Dr Wood concluded, after a 'mini mental state examination', that he could not find evidence that the deceased had any degree of cognitive impairment. The Board also had a 3 October 2003 report from Dr Leon Prindiville on his contact with the deceased. Dr Prindiville saw no reason to think that the deceased would be unable to make reasoned decisions for his own welfare and financial affairs.

82 I mention these medical reports 'in passing' because I accept that the reports were produced for a different purpose and are not, themselves, in evidence in these proceedings. However, I have included reference to them because they were referred to by the appellant in her oral submissions (appeal ts 37) and are part of the evidentiary context in which the dispute would fall to be decided.

The applications to adduce evidence and add grounds of appeal

83 In my view the trial judge did not err in concluding that the presumption of testamentary capacity applied and that no evidence had been adduced to displace the presumption.

84 I do not think it is necessary to determine whether the additional evidence which the appellant seeks to adduce is either 'fresh' or 'new'. In circumstances such as the present additional evidence will only be admitted if it is reasonably clear that either:

(a) if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced; or

(b) if it cannot be said an opposite result would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary.

85 The authority for that proposition is Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435, 444. In my view the additional evidence does not satisfy that test and I would refuse the appellant leave to adduce further evidence.

86 It is difficult to determine the application to add additional grounds of appeal because of the way they are framed. The challenge to the findings concerning the testamentary capacity of the deceased can be distilled from the grounds of appeal contained in the appellant's case and leave is not required in that respect. The challenge based on the irregularity of the execution of the will (item 6 in the list above) seems to emerge from the appellant's affidavit sworn 13 July 2009. I have dealt

with it on its merits and found it to have no prospects of success. I would refuse leave. The matters referred to in items 7 to 10 are also without substance and, again, I would refuse leave.

87 The application for leave to adduce further evidence is refused. The application for leave to add the new grounds of appeal is refused. I would dismiss the appeal.