BETWEEN : LESLIE JOHN REICHELT as Executor of the Estate of the late LESLIE RONALD REICHELT (Dec)

LESLIE JOHN REICHELT as Beneficiary of the Estate of the late LESLIE RONALD REICHELT (Dec)

Succession - Wills, probate and administration - Proceedings by executors and administrators - Proof of Will in solemn form - Whether earlier Will revoked by new Will - Medical evidence of incapacity at time of execution of latter Will - Latter Will of no cause or effect due to testamentary incapacity - Turns on own facts

Wills Act 1970 (WA), s 8

Declaration in favour of the Will dated 18 June 1992

Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558

West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144

Wheatley v Edgar [2003] WASC 118

1 The plaintiff, Leslie John Reichelt, seeks orders for the proof of a Will in solemn form. The plaintiff commenced proceedings by a writ of summons on 12 December 2006.

2 The matters in issue are set out in the statement of claim endorsed on the writ of summons. Affidavits bearing upon the matters in issue have been included in a book of documents dated 28 January 2007, described as Papers for the Judge.

3 On 23 January 2007 Master Newnes ordered that the trial of the action be on affidavit evidence using the Papers for the Judge.

4 Let me now turn to the background to the application.

5 On 30 June 2006 Leslie Ronald Reichelt died leaving property in the state of Western Australia. Those surviving him included his widow Katherine Reichelt, who is the first defendant in these proceedings, and his only son Leslie John Reichelt, who is the plaintiff and second defendant in these proceedings.

6 The deceased left two Wills, being a Will dated 18 June 1992 and a Will dated 24 June 2006. It follows from earlier discussion that the latter Will was executed six days prior to the deceased's death.

7 The 1992 Will purports to be signed by the deceased in the presence of two witnesses, being Thomas Raymond Walker and his wife Catherine Mary Walker, both of whom lived at 321 Onslow Road Shenton Park.

8 This Will consists of a single type-written sheet of paper. The plaintiff is named as executor. As pleaded in the statement of claim, the Will purports to distribute the bulk of the deceased's estate to the first defendant. The deceased's tools and the contents of his garden shed are given to his son, the plaintiff.

9 The 1992 Will is the Will that the plaintiff seeks to prove in solemn form. I pause here to note that the plaintiff's case in that regard is supported by various affidavits.

10 By an affidavit sworn 6 December 2006 the witness Thomas Raymond Walker affirms that the deceased executed the Will on the specified date in the presence of witnesses, being Mr Walker and his wife, they both being present at the same time.

11 I have also an affidavit of the plaintiff's solicitor Rex Harold George sworn 7 March 2007 to the effect that Mrs Walker is now incapable of giving evidence.

12 Steven George Dorevitch has provided an affidavit sworn 6 December 2006 to the effect that he was the deceased's doctor from October 1997 until 13 June 2006. In his opinion the deceased was of sound mind with full testamentary capacity at the time the deponent commenced treating the deceased. Dr Dorevitch said that he had no reason to suspect that the deceased would not have had the capacity to make a Will in 1992.

13 The 2006 Will is similar in form to the 1992 Will and purports to name the plaintiff as executor. However, in this Will the deceased purports to distribute his estate and property to his son the plaintiff, thereby excluding the deceased's wife, the first defendant.

14 This Will purports to have been executed in the presence of two witnesses present at the same time but I do not have evidence before me concerning the circumstances in which the Will was signed.

15 Importantly, I have before me the affidavit of Andrew Peter Dean sworn 6 October 2006. The deponent is a medical practitioner who was treating the deceased in the period leading up to his death.

"2. I was asked my opinion as to whether the said Leslie Ronald Reichelt would have been aware and would have been able to execute a will on 24 June 2006 and whether he would have been aware that the document which he was signing was a will and whether he would have been able to apply his mind to the provisions of the will. Now produced and shown to me and marked with a letter A is a copy of the document the deceased signed:

(3) in my opinion, the said Leslie Ronald Reichelt would not have been aware and able to execute a will on 24 June 2006. In my opinion, he would not have been aware the document he was signing was a will and he would not have been able to apply his mind to the provisions of the will at that time."

17 I note in passing that the document marked with the letter A is a copy of that which purports to be the 2006 Will, being the document purportedly executed by the deceased on 24 June 2006.

18 It seems that following the death of the deceased, the plaintiff applied for probate in respect of the 2006 Will. Queries concerning that Will and the earlier 1992 Will meant that, in the end, the plaintiff was required to commence the present proceedings with a view to proving the 1992 Will in solemn form.

19 I understand from the evidentiary materials that although the plaintiff was named as the principal beneficiary in the 2006 Will he now wishes to obtain a grant of probate in respect of the 1992 Will. He is named as the executor in that Will.

20 The papers before me include the affidavit of the first defendant sworn 17 December 2006 in which she consents to the relief sought and says that she has no intention of contesting the 1992 Will. She says that her son the plaintiff has no intention of contesting the 1992 Will.

21 I note that there is no party actively opposed to the orders sought and there is no proponent of the 2006 Will. Moreover, the plaintiff, being the person named as a beneficiary under the 2006 Will is a party to the present proceedings. He does not contend for the validity of the 2006 Will.

22 It will now be useful to look at the statutory provisions and legal principles bearing upon the present application.

23 The relevant principles are conveniently summarised by Heenan J in Wheatley v Edgar [2003] WASC 118. His Honour noted at [17] that Wills can be proved in two ways, being in common form or in solemn form. In the former case the grant of probate is revocable. In the latter case, with two exceptions concerning fraud or discovery of a later Will, the grant of probate is irrevocable. Wills are proved in solemn form in a probate action where the main, and generally the sole question for the determination of the Court, is whether a Will is or is not either in whole or in part valid as a testamentary instrument.

24 His Honour went on to indicate that the different consequences give rise to evidentiary implications. He observed at [24] that:

"... for there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time."

25 The decided cases show that the propounder may take advantage of the rule that a will properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and of understanding. If there is evidence to the contrary it is for the proponent to establish affirmatively that the testator was of sound mind. There must be proof at least to this extent on the civil standard to justify a grant in solemn form: See West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144.

26 In Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, Isaacs J at 570 summarised the effect of certain decided cases. He said that the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it. The propounder's duty is in the first place discharged by establishing a prima facie case. A prima facie case is one which satisfies the Court judicially that the Will propounded is the last Will of a free and capable testator. It is not the integrity of the body but of the mind that is requisite in testaments.

27 The Wills Act 1970 (WA) contains various provisions bearing upon the execution of a Will. Section 8 provides that a Will is not valid unless it is in writing; it is signed by the testator or by some other person in his presence or by his direction in such place on the Will so that it is apparent from the face of the Will that the testator intended to give effect by the signature to the writing signed as his Will; the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time, and the witnesses attest and subscribe the Will in the presence of the testator but no publication or form of attestation is necessary.

28 Let me now return to the circumstances of the present case.

29 There is a presumption of due execution where the Will is signed and is attested in accordance with s 8 of the Wills Act.

30 In the present case I have evidence before me that the 1992 Will was properly executed by the deceased in the presence of two witnesses present at the same time, and there is no evidence to the contrary.

31 I am satisfied that the Will was properly executed.

32 Having regard to the evidence of Dr Dorevitch and the principles reflected in the decided cases, I am able to conclude that, as at the date when the 1992 Will was executed, the deceased was of sound mind and testamentary capacity. Thus, prima facie, the 1992 Will which is contended for appears to be valid.

33 The remaining question is whether the 1992 Will was revoked by a later valid Will, namely, the 2006 Will.

34 This brings under notice the question of whether the 2006 Will was made by a testator of sound mind and with the appropriate testamentary capacity. As to this issue, I consider that I must give overriding weight to the opinion of Dr Dean. He was of the view that the deceased was not of sound mind when the 2006 Will was executed shortly before the deceased's death.

35 There was no evidence contrary to the opinion expressed by Dr Dean. I am satisfied therefore that the deceased lacked testamentary capacity, with the result that the 2006 Will is of no cause and effect.

36 It follows from earlier discussion that the 1992 Will can be accepted as the valid testamentary expression of the deceased's testamentary wishes.

37 Against this background and these findings, I will make the orders sought by counsel for the plaintiff in these terms:

(1) The Court pronounces the force and validity of the Will of the late Leslie Ronald Reichelt dated 18 June 1992;

(2) the Court directs the Probate Registrar to issue a Grant of Probate in solemn form of law in favour of the plaintiff of the Will dated 18 June 1992;

(3) the costs of this application be paid from the estate of the late Leslie Ronald Reichelt on an indemnity basis.