ARGO -v- WHITTAKER & ANOR [2007] WASC 131 (19 June 2007)

(a) The deceased was 88 years of age and suffering from senile dementia;

(b) The deceased's memory was defective and untrustworthy;

(c) The deceased was in such a condition of mind and memory as to be unable to understand the nature of the will and its effects, the extent of property of which she was disposing, or to comprehend and appreciate the claims to which she ought to give effect in making her will;

(d) The deceased was occasionally exhibiting hallucinations and delusions and regularly exhibiting confusion and disorientation as to time and occasionally as to place and people;

(e) The deceased required help with all domestic tasks and meal preparation, laundry, cleaning and medication and she had no insight into her inability to manage these domestic tasks; and

(f) The deceased was suffering from regular black-outs.

3 It is also alleged that in May 2003 the deceased was unable to sign an Aged Care Assessment Team Report because of cognitive impairment and the deceased exhibited short term and long term memory problems and disorientation.

4 The defence also contains an allegation that the 2002 Will was procured by the undue influence of the deceased's son, Bernard John Stephen, and was not made voluntarily. The basis of the allegation was that at the time of execution of the 2002 Will Bernard John Stephen was in a position to and did exert influence over the deceased to execute the 2002 Will.

5 In the accompanying counterclaim the first defendant sought an order that the Court pronounce for the force and validity of a will executed by the deceased on 2 August 2000 ("the 2000 Will"). The 2000 Will is executed in conformity with the requirements of Pt III of the Wills Act 1970 (WA) in that the signatures of the testator and two witnesses appear on each page: s 8. The first defendant and Ronald Wayne Metcalf, an accountant, are the executors of the 2000 Will and the principal beneficiary is the deceased's husband. In the event that he predeceases the deceased, the 2000 Will provides for Mr Stephen to receive a sum of $5,000 with the residue of the estate being divided equally between the deceased's daughters, the plaintiff and the first defendant. In the Defence to the Counterclaim the plaintiff denies the first defendant's allegations

6 The trial was held on 14 June 2007 at which time counsel for the plaintiff advised that the parties had reached an agreement as a consequence of which the action would proceed on an undefended basis leaving the Court to decide whether the orders sought by the plaintiff should be made. The Court had earlier been advised of the agreement between the parties as reflected in the order of Registrar Rimmer on 23 April 2007 that the trial of the action proceed on affidavit evidence on an undefended basis.

7 The orders sought in the Writ of Summons are these:

1. An order that the Court pronounce the force and validity of the will of the late Enid Beatrice Mary Stephen dated 24 December 2002;
2. The Court directs the Probate Registrar to issue a Grant of Probate in solemn form in favour of the plaintiffs;
3. That the costs of the application be paid by the defendant in the first instance or else from the Estate;
4. Such further or other orders as the Court deems fit.

8 The evidence in the action consists of the admissions contained in the pleadings, various affidavits of scripts and the affidavits of the deceased's treating medical practitioner, Dr Michael Neville Benson, and of the solicitor who prepared the 2002 Will, Grant Anthony Milner.

9 Dr Benson states in his affidavit sworn on 14 December 2006 that he first met the deceased on 17 November 2001 and saw her for the final occasion on 19 June 2004. The deceased was a regular patient and was seen either at Dr Benson's surgery or at her home, particularly during 2002 and the beginning of 2003. According to Dr Benson's notes the deceased suffered from high blood pressure as well as high anxiety levels and stress, at one point resulting in the deceased being hospitalised to allow her to rest and her blood pressure to stabilise. The decision to admit the deceased was made because Dr Benson was aware that she was continuing to suffer stress and anxiety and he was not satisfied the deceased would rest sufficiently if she remained at home. Having been made aware of the date on which the 2002 Will was executed, Dr Benson reviewed his records which revealed that on 16 December 2002 he checked the deceased's blood pressure. On 3 January 2003 the deceased was found to be suffering dizzy spells. On 4 January 2003 and on the following day Dr Benson saw the deceased and checked her blood pressure. On 10 February 2003 the deceased attended on Dr Benson for him to witness an Enduring Power of Attorney ("EPA"). On that occasion the deceased was accompanied by the plaintiff. Dr Benson met with the deceased alone and both he and his colleague, Dr Patricia Kelly, witnessed the deceased's signature. According to Dr Benson, during the appointment the deceased gave no indication that she was not acting voluntarily and in accordance with her own wishes.

10 Dr Benson states that his notes do not show what he asked Mrs Stephen in order to satisfy himself that she was of sound mind and had testamentary capacity before she signed the EPA. However, Dr Benson further states that he has been a witness to many EPAs and is aware that any person signing an EPA must be of sound mind and have capacity to do so. Dr Benson deposed to the fact that it is his normal practice to enquire of a person whether they know what the document is that they are signing and what it will do. Dr Benson had met with the deceased over the preceding 15 months and the consultations left him with no doubt that the deceased was of sound mind or had sufficient capacity to sign her EPA. He had regularly met the deceased alone on those occasions. Dr Benson also notes that the deceased was capable of requesting repeat prescriptions for her medication when they were required.

11 On 12 March 2003 Dr Benson wrote to Grant Milner & Associates confirming that he had satisfied himself that the deceased was of sound mind and had testamentary capacity before witnessing her EPA. The deceased's next appointment was on 8 June 2004 at which time she was accompanied by her carer. The deceased told Dr Benson that she was uncertain about her medication. According to Dr Benson, this was the first indication he had that something may be wrong with the deceased. The deceased again consulted Dr Benson on 19 June 2004 as she was experiencing right sided headaches. This was the deceased's last appointment with Dr Benson.

12 Other than the indication given by the deceased at the consultation on 8 June 2004, Dr Benson states that he had no knowledge of the deceased exhibiting symptoms of senile dementia or delusions, hallucinations, confusion, disorientation or black-outs. Further, no family member or other person ever brought such symptoms to his attention or raised their concern with him. Dr Benson had met both of the deceased's daughters and was aware that she had a son, Bernard, who resided in the north of Western Australia. There is no reason why the deceased's children would be inhibited from making contact with her doctor if it were thought necessary.

13 Following a request received from Butlers, Barristers and Solicitors on 31 July 2006, Dr Benson responded on 4 and 6 September 2006 advising that the deceased was never diagnosed as suffering from dementia during the time she was treated by him from 17 November 2001 to 19 June 2004.

14 In his affidavit of 22 November 2006, the other witness, Mr Milner, states that he knew the deceased's son, Bernard, as they went to the same school, although they were not friends. He rarely saw Bernard Stephen after leaving high school although Mr Milner had indirect knowledge of him as he worked in the business of Mr Milner's fiancé's father. Mr Milner further deposes to the fact that on 3 September 2002 Bernard Stephen telephoned and told him that his mother wanted to make a new will. The file note reveals that Mr Stephen advised that his mother was "mentally fine and still drives". The file note also includes the statement from Mr Stephen that "Noela and Anthea do not talk to each other". An appointment was made for the deceased to meet with Mr Milner on 5 September 2002. Mr Milner then carried out an index search at the Department of Land Information to determine what property was held by the deceased and how it was held. On 5 September Mr Stephen phoned and cancelled the appointment as he was going to Karratha on 7 September 2002.

15 Mr Milner wrote to Mr Stephen enclosing copies of the title searches and advising that, as the properties were held as a joint tenancy, they would automatically pass to the survivor of his mother and father and when the second parent died, the property and other assets would pass under the relevant will. On 23 December 2002 Mr Stephen telephoned Mr Milner and gave instructions for the deceased's will which included that he and his sister, the plaintiff, be appointed joint executors, that he and the plaintiff share in the home, furniture and personal effects, and that the remainder be divided equally between the deceased's three children. Mr Milner advised Mr Stephen to obtain a certificate of capacity from his mother's doctor. An appointment was made for Mr Stephen to attend Mr Milner's office with the deceased on 24 December 2002 so she could sign her will.

16 On 24 December 2002 the deceased, Mr Stephen and his daughter, Grace, met with Mr Milner. During the meeting Mr Stephen explained the main parts of the will to the deceased. Mr Milner then took steps to explain the 2002 Will in its entirety directly to the deceased. According to Mr Milner, he went through each clause of the 2002 Will carefully and explained its effect. Mr Stephen remained in the room at the time. Mr Milner's file note indicates that during the meeting the deceased instructed him that she was excluding the first defendant from the Nedlands home because the first defendant "had a lovely home in South Fremantle", that "Noela was wealthy", that "she was married to Arthur Whittaker and Noela sold the business for a high price when Arthur died". According to Mr Milner's affidavit evidence, he actually remembers the meeting on 24 December 2002 and clearly recalls the deceased's instruction to him as to why the first defendant was not receiving a share of the Nedlands property. Mr Milner was satisfied that the deceased knew and understood that she was signing her will and what effect her will would have once it was signed. He was satisfied that at the time of signing the 2002 Will, the deceased had full knowledge and understanding of the provisions of the 2002 Will, including what would happen to her property once she died and how she was dividing that property between her three children. According to Mr Milner, at no time during the meeting did he witness the deceased exhibiting confusion or disorientation, hallucinations or delusions. The deceased signed the 2002 Will and did not exhibit any impairment whilst doing so. Mr Milner was one of the attesting witnesses and his secretary, Angiolina Cicchino, was the other attesting witness. In accordance with his practice of not keeping original wills on behalf of clients, Mr Milner handed the original signed 2002 Will to either Mr Stephen or the deceased for safe keeping.

17 On 30 December 2002, Mr Milner wrote to Mr Stephen confirming his earlier advice that Mr Stephen should endeavour to obtain a doctor's certificate as to the deceased's capacity. Mr Milner also stated in this letter that, during his "fairly lengthy chat" with the deceased, he did not have the "slightest doubt" as to her mental capacity and that she seemed "perfectly normal" to him. In the letter Mr Milner also expressed his belief that the deceased gave "cogent reasons" for excluding the first defendant from a share in the house at Nedlands and referred to the explanation given to him by the deceased which is set out above.

18 Mr Milner states in his affidavit that on 3 February 2003 he received an email from Mr Stephen instructing him that the deceased wanted to give him and the plaintiff her power of attorney. Mr Milner prepared an EPA in triplicate. Acting on Mr Stephen's instructions, on 7 February 2003 Mr Milner posted the three copies of the EPA to the plaintiff to arrange for signing. On 10 February 2003 the plaintiff called into Mr Milner's office unexpectedly and collected three further copies of the EPA. The plaintiff advised Mr Milner that, together with the deceased, she was on her way to the deceased's doctor to have the EPA signed.

19 Mr Milner also deposes to the fact that on 12 February 2003 he received a telephone call from the first defendant. Mr Milner's file note reveals that the first defendant told him that she "knew about the legal papers signed at the doctors" and requested that Mr Milner forward a copy of the papers to a nominated solicitor because "mum does not know what she signed". According to Mr Milner, the first defendant also stated that "Anthea and I have worked for our parents and Bernie is now sucking up to them. Bernie hates my guts."

20 On 12 February 2003, Mr Milner telephoned Mr Stephen and advised him that he and the plaintiff must keep accurate records of all transactions. During the conversation Mr Stephen requested that Mr Milner telephone the deceased which he did on that same day. Mr Milner's file note of his conversation with the deceased indicates that the deceased stated "she could not see why Bernard and Anthea cannot be her attorneys" and "too bad about Noela's nose being out of joint". Mr Milner then telephoned Mr Stephen and advised him of the conversation with the deceased.

21 In his affidavit Mr Milner states that on 20 February 2003 he wrote to Dr Benson requesting that he provide Mr Milner with a short letter or certificate confirming that, in his opinion, the deceased was capable of making reasoned decisions and was aware of the implications of giving an EPA to Mr Stephen and the plaintiff. Dr Benson's response is set out above. Being advised by Dr Benson that he had satisfied himself that the deceased was of sound mind and had testamentary capacity, Mr Milner had a further meeting with the deceased and Mr Stephen on 6 November 2003. During the meeting, the deceased instructed Mr Milner that she did not want to change her EPA, she was happy with her existing power of attorney and that she did not want "Noela taking charge of her affairs".

22 Mr Milner states that he specifically recalls this meeting with the deceased and Mr Stephen and also recalls that he was satisfied that the deceased knew what she wanted and understood his advice to her. However, Mr Milner did record in his file note taken at the time of the meeting that he observed that the deceased's short term memory appeared to be failing. On occasions she would ask Mr Stephen "who died" and Mr Stephen would remind her that it was her husband. The deceased would then appear to remember.

23 Mr Milner also states that he noticed during his meetings with the deceased that her son behaved kindly towards her and that she did not appear in any way nervous or anxious in Mr Stephen's presence. Mr Milner recalls that there was no behaviour or action that raised any suspicion that the deceased was not making her will, or had not signed her EPA, voluntarily and in accordance with her own wishes. At no time did Mr Milner believe that the deceased was under pressure or coerced in any way to sign either document. Mr Milner concluded his affidavit evidence by stating that it was clear from his meetings with the deceased that she was elderly and frail. However, those issues did not cause him to have any suspicion or concern in relation to the deceased signing the documents.

24 Apart from an affidavit of scripts, there was no affidavit evidence adduced by or on behalf of the defendants in this action. Therefore, there was no evidence to support the assertion that the deceased lacked testamentary capacity or that the 2002 Will was procured by undue influence. Neither was there any evidence to rebut or call into question the evidence of Dr Benson and Mr Milner. At the conclusion of the hearing I was satisfied, on the uncontested evidence to which I have referred, that it was appropriate to make the orders sought by the plaintiff. However, I indicated that I would later publish my reasons for reaching that conclusion.

25 The considerations applicable to determining whether a person has testamentary capacity at the relevant time are these:

(2) Whether the testator understands the nature of the act and its effects;

(3) Whether the testator understands the extent of the property of which she is disposing;

(4) Whether the testator is able to comprehend ands appreciate the claims to which he or she ought to give effect,

Banks v Goodfellow (1870) LR 5 QB 549 at 565 per Cockburn J.

26 However, a duly exercised will, rational on its face, is presumed in the absence of evidence to the contrary to be that of a person of competent understanding: see Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295 at 343. In Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 at 528 Isaacs J stated that, in general, where there appears no circumstances exciting suspicion that the provisions of the instrument may not have been fully known to, and approved by, the testator, the mere proof of his capacity and of the fact of due execution of the instrument, creates an assumption that he knew of, and assented to its contents.

27 In this case it is not necessary to rely on such presumptions of capacity and knowledge. The 2002 Will was executed on 24 December 2002. The uncontested evidence of Dr Benson is that, during the period of 17 November 2001 to 19 June 2004 in which the deceased was his patient, the first indication of any problem with her mental faculties was on 8 June 2004 when she was uncertain about her medication. Prior to that time Dr Benson neither observed, nor had drawn to his attention by any family member, any symptoms of senile dementia, delusions, hallucinations, confusion, disorientation or black-outs and no such diagnosis was ever made by him. Indeed on 10 February 2003, approximately six weeks after the execution of the 2002 Will, Dr Benson witnessed the EPA executed by the deceased. Dr Benson was familiar with the requirements for executing and witnessing such a document, in particular the requirement for the person signing the EPA to be of sound mind and aware of the nature and effect of the document. Dr Benson's evidence was that he had no doubt the deceased was of sound mind and had sufficient capacity to sign her EPA. That uncontested evidence, of itself, would in my view be sufficient to establish that there was no lack of any relevant capacity to execute the 2002 Will.

28 There is, however, also the evidence of Mr Milner. Although the instructions for the 2002 Will were taken from Mr Stephen, the procedure adopted prior to executing the will, the observations made by Mr Milner and the statements of the deceased to Mr Milner, being uncontested, are consistent only with the deceased having the necessary capacity to execute her Will including being aware of the extent of the estate, of the claims to which she ought to give effect and understanding the nature of the act and its effects. I do not consider it necessary to again refer to that evidence other than to note that the deceased's explanation that the first defendant had a lovely home and was wealthy clearly indicate both an understanding of the first defendant's moral claim to share in the estate and an ability to rationally consider and deal with that claim. Using his own words, Mr Milner did not have the slightest doubt that the deceased was perfectly normal at the time she executed the 2002 Will.

29 For these reasons I am satisfied of the deceased's capacity at the time she executed the 2002 Will and that the execution of the 2002 Will was not procured by the undue influence of the deceased's son. Further, as the 2002 Will is found to be valid and contains an express revocation of all former wills and testamentary dispositions, the 2000 Will, being an earlier will, is revoked: see s 15(1)(b) Wills Act 1970.

1. The Court pronounces for the force and validity of the last Will and Testament dated 24 December 2002 of Enid Beatrice Mary Stephen, the deceased in this action which is referred to in the Affidavit of Scripts of Anthea Margaret Argo, sworn 14 April 2007 and pronounces against the force and validity of the alleged last Will and Testament dated 2 August 2000 of the deceased.
2. The Court orders the Probate Registrar to issue a Grant of Probate in solemn form in favour of Anthea Margaret Argo.
3. It is further ordered that the plaintiff's costs of the action be paid from the estate.
4. It is further ordered that there be liberty to apply as to the implementation of these Orders.