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[2010] WASCA 160
Court of Appeal (WA)
2010-08-05
Owen JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : FISHER -v- KAY [2010] WASCA 160
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : KAY -v- FISHER [2009] WASC 193
Wills - Probate - Appeal against decision to grant probate - Presumption of due execution - Whether testator knew and approved contents of will - Questions concerning manner pieces of land were described in the will - Trial judge's decision made largely on assessment of reliability of executor's evidence - Insufficient grounds for appellate interference - Relevance and admissibility of pretestamentary statements
Brett v Rees [2009] WASCA 159
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
In re Resch's Wills Trusts [1967] 2 NSWR 706; [1969] 1 AC 514
In the Estate of Kavanagh (Deceased) [1977] 16 SASR 342
In the Goods of Gilliland [1940] NI 125
Lutheran Church of Australia South Australia District Inc v Farmers' Co-operative Executors & Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628
Re Gillson; Ellis v Leader [1949] Ch 99
Re Gramp, Deceased; Finck v Gramp [1952] SASR 12
Re Luck (deceased) [1977] WAR 148
Re Smith; Equity Trustees Executors & Agency Co Ltd v Smith [1939] VicLawRp 33; [1939] VLR 213
Sugden v Lord St Leonards (1876) 1 PD 154
1 OWEN JA: The deceased, Arthur John Fisher (also referred to in some evidence as Jack Fisher), made two wills. One was drafted in 1983, the other in 2005. In the 2005 will he left a certain property to the second respondent. As co-executor, the first respondent sought to have the 2005 will propounded. The deceased's son, the appellant, was unaware of the 2005 will and did not admit the due execution or knowledge or approval of the will. This is an appeal against the decision to grant probate of the 2005 will to the first respondent.
2 The deceased was born on 20 May 1912. At the date of his death, on 15 October 2005, the deceased was the sole registered proprietor of three properties the subject of three Certificates of Title in Bindoon.
3 The first property includes two pieces of land together described as 'portion of Swan Location 1285 including Lot 2 on diagram 15522', and being the whole land shown in Certificate of Title Volume 1138 Folio 280. The western border of the land described as Lot 2 on diagram 15522 meets Great Northern Highway, the southern border meets Learners Way and the eastern border meets Fishers Road (also referred to as Fishers Way or Fisher Road). This part of the land is referred to as the 'front orchard' and was used for growing grape vines, then later orange trees.
4 The second part of this land is located to the east of the front orchard and is separated from the front orchard by the Bindoon Primary School. The northern border of this area of land meets Fishers Road because, after running north-south by the front orchard, the road turns to run east-west behind this area of land. This piece of land is referred to as the 'back orchard'.
5 The second property is the land recorded in Certificate of Title Volume 1033 Folio 455, also known as 38 Fishers Road, Bindoon. It was the home of the deceased, his son and his wife, and is referred to as the 'home property'.
6 The third property is the land contained in Certificate of Title Volume 1204 Folio 765, also known as 130 Kay Road, Bindoon. It is referred to as the 'back block'. Two-thirds of this land was used as an orchard and the remainder was utilised as a storage area for the appellant's collection of farm machinery.
7 In addition to the land located in Bindoon, the deceased was also the registered proprietor, as joint tenants with his wife, of a property in Como. This land is contained in Certificate of Title Volume 1477 Folio 501, also known as 22 Paterson Street, Como, and is referred to as the 'Como property'.
8 The deceased and his wife had one child, the appellant, who was born on 19 June 1945. In 1951 the deceased acquired the front and back orchards and in 1960 the appellant left school to work on the Bindoon properties, picking grapes and packing fruit. Between 1977 and 1980 the appellant pulled out the grape vines on the front orchard and replaced them with orange trees. Between 1981 and 1982 he erected fencing around the front orchard and installed a bore, water pump and irrigation on the front and back orchards, which he paid for himself. The deceased continued to help the appellant with manual chores around the front orchard.
9 On 26 July 1983 the deceased executed a will in which he left all of the Bindoon properties to his son and the balance of his estate, both real and personal, including the Como property, to his wife.
10 In 1984 the first respondent married the second respondent. The second respondent had been raised by his grandparents on an orchard in the Bindoon area. He knew of the deceased, but became more familiar with him from the time he became a gardener at Bindoon Primary School around 1989. They began speaking around the shed area of the school, which was adjacent to the orchard where the deceased worked. They talked about matters relating to orchards and the second respondent's hydroponics business.
11 The second respondent first worked for the deceased and the appellant pruning grape vines in the school holidays. He remained working at the school until 2007.
12 The deceased continued to work on the Bindoon properties, at least until around 1999, when he was 87 years of age. He had a hip replacement around 2000 and began to receive help every Wednesday and occasionally Fridays from Ms Joy Lefroy, an employee of the organisation Silver Chain.
13 From about 2001 or 2002 the second respondent began to provide wood for the stove in the house of the deceased and his wife, and would occasionally check up on the deceased, provide him with transport and collect and deliver food and medicine for him.
14 From 2004 Ms Jenny Treasure, another employee of Silver Chain, provided care for the deceased and Mrs Fisher until her death on 2 August 2005. Ms Treasure continued to care for the deceased and last saw him about three or four weeks prior to his death.
15 Ms Dawn Thompson, a friend of the deceased and Mrs Fisher, also spent time with them to keep them company and help with household duties. She also saw the deceased during the last years of his life.
16 From about 2002 the deceased discussed with the second respondent the prospect of the latter taking a lease of the front orchard. In or about October 2004 the first respondent prepared a lease agreement for the front orchard in favour of the second respondent. The deceased gave the document to the appellant to read and the appellant told the deceased it was 'alright'. The lease document was executed by the deceased on 20 October 2004. The lease is in these terms:
I Mr Arthur John Fisher of Fisher Road, Bindoon hereby agree to lease Lot 2 Fisher Road to Mr John Michael Kay of Great Northern Highway, Bindoon for a minimum period of 5 years with the option of another 5-year period effective 1 November 2004.
This lease agreement includes the use of tractor and plant and the bore on Lot 2 Fisher Road.
Mr John Michael Kay will be responsible for Shire land rates, annual water service charges and 50% of the electricity charges for Lot 2 Fisher Road.
Mr John Michael Kay agrees to pay 25% of the income derived from the sale of produce from Lot 2 Fisher Road to Mr Arthur John Fisher.
17 On 10 May 2005 Mrs Fisher was placed in long term hospital care because she had been suffering from congestive cardiac failure and from ongoing and worsening dementia. Mrs Fisher died on 2 August 2005, that is, after the date on which the will the subject of these proceedings was executed. The deceased continued to live at home. But by July 2005 his eyesight had significantly deteriorated and he frequently read with the aid of a magnifying glass. He was physically frail, but still capable of walking, and getting into and out of a car.
18 On 8 July 2005 the deceased executed a document purporting to be a will, witnessed by Mr Walter Zemunik and Mrs Ida Zemunik. This document was prepared by the first respondent who then drove the deceased to the home of Mr and Mrs Zemunik where the will was executed. The circumstances of the preparation, execution and attesting of this document are in contention.
19 The 2005 will revokes all previous wills and testamentary documents and appoints the first respondent and Ms Margaret Jane Righton as the executors. Under the heading 'Special bequests', the will sets out two bequests. One is to the second respondent, free of all costs, the following:
Property known as Lot 2D15522
Fisher Road
Bindoon WA
20 The other special bequest is the sum of $2000 free of all costs to Ms Kim Baker.
21 Under the heading 'Residual Estate' the 2005 will provides:
I hereby leave the residue of my estate, both personal and real, subject to other provisions in this Will and after payment of my debts, funeral and administrative associated with this will
To my son, David John Fisher
Of Fisher Road
BINDOON
In the State of Western Australia
22 The appellant was not involved in the preparation or execution of this will and only learned of it after the death of the deceased on 15 October 2005.
23 The first respondent brought proceedings in the Supreme Court seeking to have the 2005 will propounded. She pleaded the due execution of the 2005 will, that the deceased knew and approved of its contents and that the will appointed the first respondent as executor. She sought to have the court pronounce the force and validity of the 2005 will, grant probate in favour of the plaintiff and order that the costs of the application be paid from the estate.
24 The co-executor, Margaret Jane Righton, renounced probate and execution of the will and was removed as a fourth defendant to the proceedings on 3 September 2007.
25 The appellant did not admit the due execution or knowledge and approval of the 2005 will and claimed that if it had been executed, it was executed in 'suspicious circumstances'.
26 The trial judge heard evidence from a number of witnesses. For the most part, affidavits sworn by the witnesses stood as their evidence-in-chief.
27 The first respondent swore three affidavits: one dated 1 August 2007; another of the same date relating to scripts; and a third dated 5 December 2007.
28 The first respondent's evidence in her affidavit sworn 1 August 2007 said that she was aware that the deceased was the registered proprietor of the three Bindoon properties and the Como property as joint tenants with his wife. She said that she drafted the 2004 lease, leasing the front orchard to the second respondent, according to what the deceased told her he wanted in the document. She witnessed the deceased's signature and the appellant witnessed the second respondent's signature.
29 In relation to the 2005 will she testified the deceased approached her and told her that he wanted her to draft a will for him and that he wanted her to be the executor. He also asked her how much it would cost to transfer the orchard to the second respondent.
30 After obtaining a will kit the first respondent collected the deceased from his property on 8 July 2005 and brought him to her home. She asked the deceased if he already had a will and he replied that he did. She asked if he would like to include anything from the previous will in the new will. The deceased declined this offer and told the first respondent that his previous will left everything to his wife and he was not sure what the position would be now that his wife had passed away. He presumed his estate would go to his son, the appellant, but he wanted to ensure the second respondent received the orchard and that Kim Baker received some money.
31 The first respondent said she notified the deceased of the cost of transferring the land, after having inquired with the Department of Land Administration. She could not remember the cost, but recalled that the deceased responded that he would not pay that much. The first respondent told the deceased that she and the second respondent would bear the cost but the deceased declined, saying that if he left it to the second respondent he would not have to pay anything. The first respondent then offered to drive the deceased to a lawyer to draft the will for him, but he refused, objecting to the cost of drafting a simple document.
32 The first respondent testified that she suggested to the deceased that another executor be appointed as well as herself. He requested that Margaret Jane Righton, a home carer who had helped the deceased for some time and whom he trusted, also be appointed. The first respondent asked Ms Righton by telephone, and she agreed to be co-executor.
33 The first respondent said that after this phone call the deceased confirmed to her that he wanted to give the orchard to the second respondent, $2,000 to Kim Baker and the residual of his estate to the appellant. She asked the deceased what the appellant would think of the bequest of the orchard to the second respondent, to which the deceased replied with words to this effect:
What would he care? All he cares about is the junk he collects. He has the rest of the land to do what he likes with.
34 The first respondent then testified that she used her computer to amend a precedent document, printed it out and read it in full to the deceased. She said she then handed it back to the deceased and he read it, using his magnifying glass. Once he had finished reading the document the first respondent asked the deceased whether he was happy with the will, to which he replied that he was. She then drove the deceased to the Zemunik home. Mr and Mrs Zemunik came out to the car in which she and the deceased had arrived. The first respondent testified that Mr Zemunik asked the appellant whether he had read and understood the contents of the will, to which he replied words to the effect of '[o]h yeah, it's good'.
35 The first respondent said the deceased signed the will in her presence, and in the presence of Mr Zemunik and Mrs Zemunik. Mr and Mrs Zemunik then signed the document as witnesses. Finally, the first respondent testified that she had never seen nor heard anything to suggest the deceased was confused, suffered memory loss or dementia or had difficulty hearing or reading (despite using a magnifying glass to do so).
36 In a further affidavit the first respondent corrected some of the statements she made in the affidavit dated 1 August 2007, namely that Lot 2 does not comprise the entirety of the land contained in Certificate of Title Volume 1138 Folio 280. This title includes the 'front orchard' and 'the back orchard'. She clarified that the deceased clearly said that his wish was for the 'front orchard' only to be left to the second respondent, not the entire orchard.
37 The first respondent said that in the meeting with the deceased, or possibly a short time before this, the deceased brought the certificates of title of the land with him to her home. When she prepared the will she described the property to be bequeathed as 'Property known as Lot 2D15522 Fisher Road, Bindoon'. This land is the front orchard and did not include the back orchard. The first respondent said she could not remember whether the deceased described the land as 'Lot 2' or 'the orchard' or in some other way, but she understood him to be referring only to the front orchard. She could not recall referring to the Certificates of Title at any time, including during the preparation of the will, but said she would not have known the diagram number for the front orchard from memory. She believes she must have been told this information by the deceased or she must have obtained it from the Certificates of Title.
38 In her oral evidence at trial the first respondent corrected some further statements made in her affidavits. The first respondent said that she had been incorrect in the date of Mrs Fisher's death and that the deceased was unaware of the position of his 1983 will since his wife had passed away.
39 In cross-examination the first respondent confirmed that the lease document executed in October 2004 referred to the 'front orchard' as 'Lot 2, Fisher Road'. She was unsure of where this description had come from and could not explain the difference between the description used in the lease and in the will, drafted eight months later. Despite having said in her affidavit sworn 5 December 2007 that she did not recall referring to the Certificates of Title, in cross-examination the first respondent said she knew that she had specifically drawn the description of the property from the Certificate of Title and from her experience working as a rates clerk at the Shire of Chittering.
40 When asked what instructions were given to her by the deceased, the first respondent said:
He told me he wanted to bequeath $2000 to ... Ms Baker; he told me he wanted to bequeath the front orchard which is known as lot 2 on diagram 15522 to John and the residual of his estate he wanted to go to his son David.
41 The first respondent said (for the first time) in cross-examination that she had taken notes of the instructions, but had thrown them away. She said that the deceased would not have described the property the way she had in the will, but testified that she asked the deceased '[s]o you are bequeathing to John Lot 2 which is the orchard below the school' and that he replied '[y]es, you know what lot it is because that's the lot that John leases' (ts 55).
42 During the cross-examination of the first respondent, counsel for the appellant put to her a number of matters that appeared to involve inconsistencies. They include the following:
43 In re-examination the first respondent clarified that she assumed that she had met the deceased on 2 July 2005 because the data from her computer indicated the will document was created on that date. However she said that there had been difficulties with the computer and repairs were carried out on 6 July 2005.
44 Ms Treasure provided care for the deceased and his wife in her role as a home carer for Silver Chain from about 2004. Her affidavit also contained an incorrect statement about the date of the death of the deceased's wife. Ms Treasure would often visit the deceased socially, after developing a friendship with him, and last saw him approximately three to four weeks prior to his death. She gave evidence that he had no hearing problems, but read using a magnifying glass. She found no signs of confusion, dementia or memory problems. She said the deceased often referred to 'the orchard' in conversations as 'Johnny's' and knew him to be referring to the second respondent as he often spoke of him. She recalled the deceased saying on several occasions words to the effect of '[t]hat orchard is Johnny's and if David's not careful, he will lose the lot'.
45 Ms Lefroy provided care for the deceased in her role as a nurse with Silver Chain every Wednesday and some Fridays for four to five years before the deceased died. She said that the deceased was always alert and spoke clearly, and that there was no indication of confusion, memory loss or anything affecting his ability to understand or communicate. He did however need a magnifying glass to read.
46 Ms Lefroy testified that the deceased often said that he was leaving the orchard to Johnny when he died and she knew him to be referring to the second respondent. She said the deceased told her that the appellant was not at all interested in the orchard and that he had enough, but the second respondent was interested and did want the orchard.
47 Ms Thompson was well acquainted with the deceased and had developed a friendship with his wife over a number of years. She had spent a lot of time with the deceased and his wife socially and often helped with housework and washing and kept them company. She gave evidence that the deceased liked to read and used a magnifying glass to do so. She considered the deceased to be quite sharp, having never noticed him to suffer from confusion or memory loss.
48 Ms Thompson testified that in the year before his death the deceased told her on several occasions that he wanted to leave something to the second respondent. The deceased told her that he wanted to leave the block of land between Fisher Road and the Highway to the second respondent when he died.
49 Mr Zemunik is a Justice of the Peace who was acquainted with the deceased and, along with his wife, witnessed the will of the deceased.
50 In his affidavit sworn 15 May 2006 Mr Zemunik testified that the first respondent came to see him several weeks prior to the date on which the will was executed. He explained to her the requirements of a will and recommended appointing a professional executor. He explained that the process could be complex and complications could arise as a result of the position of the first respondent's husband as a beneficiary under the will.
51 Mr Zemunik said that on 8 July 2005, when the first respondent and the deceased arrived at his home, the first respondent told him the deceased was injured from a fall and could not climb the steps to reach his house. As a result, Mr Zemunik and his wife went out to the car.
52 When he approached the car Mr Zemunik saw the deceased reading the will with a magnifying glass. When the deceased got out of the car he asked the deceased if he had read the document and whether he understood the contents, to which he responded that he had read and understood it. Mr Zemunik observed that the deceased appeared lucid and had no comprehension difficulties.
53 In a later affidavit sworn 7 March 2008 Mr Zemunik explained his experience with wills in his role as a Justice of the Peace and the seriousness of the requirements of a will. He testified that on all occasions of his dealings with the deceased, including the date of execution of the will, he appeared lucid and fully aware of his surroundings. There was no indication of memory loss, confusion or delusions.
54 At trial, further to reiterating the evidence in his affidavits, Mr Zemunik was questioned in relation to three telephone conversations with Ms McFarlane, the appellant's solicitor. Ms McFarlane telephoned Mr Zemunik as part of her preliminary enquiries into the circumstances of the execution of the will. Her testimony as to these conversations is set out later in these reasons.
55 Mr Zemunik said he did not remember the conversations clearly but commented that he felt as if he was being 'harangued' and that the conversation was confusing. He could not recall making certain statements to Ms McFarlane, including that:
56 Mr Zemunik denied having said to Ms McFarlane that the deceased did not leave the car during the witnessing of the will.
57 Mrs Zemunik also witnessed the signing of the deceased's will. In her affidavit sworn 3 December 2006 she said that the first respondent came to see her husband several weeks prior to the execution of the will. On the day the will was signed the deceased remained in the car because he could not climb the steps leading to the house. When she approached the car Mrs Zemunik said the deceased was sitting in the car and appeared to be reading a document with a magnifying glass. She testified that her husband asked the deceased whether he understood the document, to which he responded that he did. The deceased then got out of the car and the will was signed and witnessed on the bonnet of the car.
58 At trial Mrs Zemunik denied reminding her husband of the events that occurred on the date the will was executed after he had spoken with Ms McFarlane. Her evidence was not seriously challenged.
59 Mr Moore is a licensed valuer who testified that the value of the property as at 15 May 2008 was $175,000.
60 In his affidavit, sworn 27 August 2007, the second respondent set out his relationship with the deceased, having known of him before commencing as a gardener at the school and then becoming more familiar with him. He and the deceased had a lot in common because the second respondent operated a horticultural hydroponics business. The second respondent would chop wood and light the fire in the deceased's home for the deceased and his wife; check on them when their son was away; take the deceased to medical appointments; and collect and deliver food and medicine for the deceased and his wife.
61 The second respondent testified that the deceased told him in the five years prior to his death that he wanted to leave the orchard to him (the second respondent) in his will. He said the deceased asked him to promise that the orchard would not be covered in scrap rubbish as his other orchards had been. He was asked by the deceased in 2004 if he wanted to lease the orchard, to which he agreed. He testified that he often saw the deceased reading books with the aid of a magnifying glass and that in his dealings with him, the deceased was a strong, alert and hard working man.
62 In his affidavit sworn 7 May 2008, in response to the affidavit of the appellant, the second respondent said that he was a pallbearer and gave a eulogy at the deceased's funeral. He said the deceased would often attend his house for morning tea or lunch. He also said that he had no real association with Kim Baker, to whom the deceased left a legacy. He rejected claims that Ms Baker had asked him for a copy of the 2004 lease agreement.
63 During cross-examination the second respondent agreed that the back orchard was dependent on the bore located on the front orchard for water. He could not recall on which occasions the deceased told him that he wished to leave the second respondent 'the orchard below the school' in his will. He was certain this was the term the deceased used in describing the land. In relation to the time at which the statements were made, the following exchange occurred:
Can you remember when he said that to you? I don't need a precise date, just the year?---Just in conversation. I honestly used to think it was just mucking around, you know?
64 The second respondent denied the allegations made by Ms Baker that she had asked him for a copy of the lease agreement and that he had denied the existence of the lease. He also denied that when asked in front of the deceased, the deceased told him to give it to her to keep her quiet.
65 The deceased's doctor, Dr Newnham, gave evidence that he treated the deceased in the period leading up to his death and confirmed the deceased had an eye condition causing difficulty in reading. In that time he found no suggestion of confusion, delusions or memory loss.
66 In his affidavit sworn 9 November 2007 the appellant canvassed the history of the Bindoon properties and his involvement with them, including his work on the orchards, installation of a bore supplying water to the land, and his payment of the council rates, electricity and water rates. He supplemented his income from the orchards by collecting and selling scrap metal.
67 He explained that Kim Baker aided the deceased with financial affairs and paperwork and had come to be very close with the family. Prior to the death of the deceased, the deceased had intended to appoint Ms Baker as enduring power of attorney, but the papers had not been signed at the time of his death.
68 The appellant was unaware of the 2005 will until after his father's death. He said that the 2005 will failed to provide for his mother at a time when she was still living and he did not recognise the description of the land, namely 'Lot 2D15522'. He could not recall the deceased ever referring to the property in this way.
69 Ms Baker was a close friend of Mr and Mrs Fisher and was the third defendant at trial. The deceased left $2,000 to her in his will.
70 In her evidence Mrs Baker explained her close relationship with the deceased, his wife, and the appellant. She cared for and aided the deceased and Mrs Fisher when the appellant was unable to do so, including dealing with financial affairs and paperwork. She drove the deceased around when the appellant could not do so and after the deceased had a hip replacement.
71 She said that when she worked on the deceased's orchard he would refer to the property as 'the youngen's orchards'. After hearing about the lease agreement, Ms Baker requested a copy of the document from the second respondent, but he denied its existence. On one occasion in the presence of the deceased and the second respondent, she asked to see a copy of the lease agreement. She testified that the deceased told the second respondent to give it to her to keep her quiet.
72 Ms Baker also testified that the deceased had difficulty in reading due to the need for a magnifying glass.
73 Ms McFarlane is a solicitor who acted for the appellant.
74 Ms McFarlane was instructed by the appellant to enquire into the circumstances of the execution of the deceased's 2005 will. She telephoned Mr Zemunik in the course of her enquiries on 2 March 2006.
75 Ms McFarlane said she asked Mr Zemunik general questions about his recollections of executing the deceased's will. He told her that he recalled a telephone call from the first respondent in which she asked him to witness the signing of a will. He recalled the deceased arriving at his house in a car, but did not come into the house. He noted that the deceased was wearing a hat but no spectacles. He told Ms McFarlane that the will was signed in the car.
76 Ms McFarlane said she asked Mr Zemunik if he knew whether Jack Fisher was aware of the contents of the will. He answered that he could not confirm or deny this. Ms McFarlane said it was not clear from the conversation where and how the will was signed or if the will was signed in the presence of one or both witnesses. She said that this was because Mr Zemunik said words to the effect that Mrs Zemunik may not have been present at the signing of the will and may have signed it at a later time.
77 Ms McFarlane said that approximately 15 minutes after this telephone conversation, she received a phone call from Mr Zemunik at her office. She testified that Mr Zemunik told her that after the previous phone conversation he had spoken to his wife. He told her that both he and Mrs Zemunik were present at the signing of the will and that his wife recalled that the will was signed on the bonnet of the car. When asked whether the deceased knew what he was signing, Mr Zemunik responded that he had no reason to believe that the deceased did not know what he was doing.
78 On further instructions from the appellant to speak to Mrs Zemunik, Ms McFarlane telephoned Mr and Mrs Zemunik. She left a message for them to return her call.
79 After receiving no response, on 8 March 2006 Ms McFarlane telephoned Mr and Mrs Zemunik. Mr Zemunik answered the telephone and told Ms McFarlane that Mrs Zemunik did not wish to speak with her. Ms McFarlane asked for further clarification of the circumstances of the signing of the will. Mr Zemunik told her that the deceased signed the will in the car because he had an injured leg from a fall and that he and his wife signed the will on the bonnet of the car. He told her that the deceased had read the will because it doesn't take very long to read a will. He could not recall whether the deceased was wearing glasses or spectacles or whether he had a magnifying glass with him.
80 Ms McFarlane said that in the first conversation Mr Zemunik indicated to her that he knew the first and second respondents and commented that the circumstances of the signing of the will were curious. She reiterated the evidence set out in her affidavit and noted that in her third conversation with Mr Zemunik he was more assertive and defensive than in the first two conversations. Ms McFarlane did not recall a request from Mr Zemunik for her questions to be put in writing and he would write a response to her.
81 It has to be borne in mind that the trial judge was exercising the jurisdiction of a court of probate, not a court of construction. Generally speaking, a court of probate does not usually deal with questions of construction, although it may do so where it is necessary in order to determine whether or not probate should be granted: In the Estate of Kavanagh (Deceased) [1977] 16 SASR 342, 345-46.
82 It was not seriously in issue that, at the time he executed the will, the deceased possessed the requisite testamentary capacity. Nor was it in issue that the deceased intended the document that he signed to be his last will and testament. The critical issue was whether he knew and approved the contents of the document that he signed and, in particular, whether he knew and approved of the disposition of the 'front orchard' to the second respondent. That critical question tends to blur the line between the question of probate and the question of construction. It also brings into play the difficult question whether, and to what extent, extrinsic evidence is admissible in proceedings of this nature. Again as a broad general statement, extrinsic evidence is admissible to establish testamentary intention, a necessary pre-requisite for a grant of probate: In re Resch's Wills Trusts [1967] 2 NSWR 706; [1969] 1 AC 514, 547, Re Luck (deceased) [1977] WAR 148, 150. But a court of construction will not usually admit extrinsic evidence as to the testator's intentions: Re Smith; Equity Trustees Executors & Agency Co Ltd v Smith [1939] VicLawRp 33; [1939] VLR 213, 218. In the context of this case, those difficulties were brought into sharp focus by the description of the subject land in the will as 'Property known as Lot 2D15522 Fisher Road Bindoon WA' and by the evidence of Ms Treasure, Ms Lefroy and Ms Thompson. I will have more to say about those questions later in these reasons.
The trial judge's findings of fact and reasoning
83 A presumption of due execution arises where a will regular on its face bears the signatures of a testator and two witnesses: Re Gramp, Deceased; Finck v Gramp [1952] SASR 12. The trial judge was not convinced the presumption of due execution had been rebutted and, in any event, found that due execution was established without the aid of the presumption: [55] - [56].
84 Evidence relied upon by the appellant about conversations between Ms McFarlane and Mr Zemunik led the trial judge to find that Mr Zemunik's recollection of events was not 'altogether reliable'. However, in his Honour's opinion this would, at most, remove his evidence rather than rebut the presumption: [62]. His Honour did, however, accept the evidence of Mrs Zemunik, which was not seriously challenged, in its entirety and considered this enough to find that the will was duly executed: [63].
85 Three presumptions arise from due execution - testamentary intention (In the Estate of Hassan [2008] SASC 14 [9] (Gray J)); testamentary capacity (Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 706 (Powell J)); and knowledge and approval of the contents of the will (Hodges 706).
86 Testamentary intention was not challenged on the evidence at trial and in the trial judge's view testamentary intention should be found without the aid of the presumption: [49]. Nor was testamentary capacity challenged: [50]. The appellant submitted that there was evidence to cast doubt on the deceased's knowledge and approval of the 2005 will. This evidence was of circumstances giving rise to a suspicion that the 'terms of the will do not accord with the intention of the testator': Roebuck v Smoje [2000] WASC 312 [94].
in determining whether or not the deceased knew and approved of the contents of the 2005 will it is appropriate to consider the dispositions it makes and does not make, to persons having a natural claim on the deceased, as well as the simplicity or complexity of the provisions of the document [67].
88 His Honour found that, given the simplicity of the terms of the will and the inclusion of provisions the testator would have been expected to have made, evidence of the deceased having read and approved of the document may more readily be accepted: [67].
89 The trial judge rejected the claim that Kim Baker (the third defendant at trial) had had two conversations with the second respondent and the deceased, where she asked to see the 2004 lease agreement. It was alleged that she was told by the second respondent on the first occasion that there was no such document, and on the second occasion the deceased told the second respondent to show it to her to keep her quiet. Further, even if there were such conversations the trial judge did not consider any suspicion arose from them that the 2005 will did not accord with the deceased's intentions: [68] - [70].
90 The first respondent's case for dispelling any suspicious circumstances was that the will was read to the deceased; the deceased then read the will himself with a magnifying glass and approved of it; the deceased read the will again in the car; the deceased did not suffer from any lack of capacity to know and approve of the will; and the 2005 will was a rational one: [72].
91 The first respondent gave evidence that on 8 July 2005 she collected the deceased from his home and brought him back to her house where she printed out the will she had drafted for him. She said that she read the will aloud to him before he read it himself using a magnifying glass. She then asked if he was happy with it, to which he answered that he was.
92 There were some changes of position and inconsistencies in the first respondent's evidence as to:
93 However, overall, the trial judge found the first respondent to be
a witness who endeavoured throughout to tell the truth, but whose recollection of the events leading up to the execution of the 2005 will could not always be trusted. This was particularly in respect of dates [97].
94 His Honour found that it was 'more likely than not that [the deceased] did give her instructions, and that they were to the effect described in her evidence': [120]. Further, she had drafted the lease agreement for him and there was evidence that the deceased was reluctant to pay a professional to have a will drafted: [121].
95 Based on the first respondent's evidence his Honour found that she had in fact read the document out to the deceased,
notwithstanding her uncertainty at one point in her evidence as to whether or not she recalled reading out the 2005 will 'word for word' (ts 76), until she was shown a copy of it [108].
96 Also on the basis of the first respondent's evidence, the trial judge found that the deceased had examined the document with a magnifying glass and said words to the effect that he was happy with it. His Honour found this evidence to be consistent and unqualified: [90].
97 However the trial judge did consider, as contended by the appellant, that
evidence of an examination of a document and assent to its contents may not be sufficient to show that the document was in fact read and its contents approved of. The document so examined might not have been read because the examiner's eyesight was not sufficient for the task. The assent might not be a true assent, as where the examiner was reluctant to admit to a difficulty in reading, or to a difficulty understanding at least a part of what was examined [110].
98 It was submitted by the appellant that the deceased's deteriorating eye sight was not sufficient for the task of reading the will, and even if it were sufficient, the deceased should not have been taken to have understood its terms.
99 His Honour found that, at its highest, the evidence of the appellant, Ms Baker and Dr Newnham did not indicate that the deceased was incapable of reading. Rather it indicated that he needed a magnifying glass to read, as was asserted in the evidence of the plaintiff, Ms Lefroy, Ms Thompson and Ms Treasure.
100 In relation to Ms Baker's assertion that the deceased had special difficulty reading unfamiliar documents, his Honour considered that, if it were accepted (and it was) that the deceased instructed the first respondent, the material would not have been new to the deceased.
101 As to the rationality of the provisions in the will, counsel for the appellant raised the following issues:
102 His Honour considered this evidence insufficient to establish irrationality, given other substantial assets were bequeathed to the appellant and there was no evidence that it was impossible to find an alternate source of water for the back orchard or that the bore could not be shared. In relation to the failure to provide for Mrs Fisher, his Honour considered it reasonable for the deceased to have believed it likely that Mrs Fisher would pre-decease him. Further his Honour noted that the 1983 will bequeathed the Como property to her which, in any event, was held in joint tenancy.
103 As to the description used in the 2005 will, while the first respondent conceded the deceased would not have instructed her in those terms, his Honour found that part of this description, 'Lot 2 Fisher Road', had been used in the Lease Agreement and there was evidence from Ms Treasure, Ms Thompson, Ms Lefroy and the second respondent of the deceased's intention to bequeath property to the second respondent. In his Honour's view this evidence established that the deceased intended to leave the property the subject of the 2004 lease to the second respondent and why this was his intention. Given the elements in common between the description of the property leased to the second respondent and the property devised to the second respondent by the 2005 will, his Honour considered it more likely than not that the deceased was not uncertain as to what property he was leaving to the second respondent.
104 Prior to trial the Master had ruled that the pre-testamentary statements of the witnesses, including Ms Treasure, Ms Lefroy and Ms Thompson were admissible. Counsel for the appellant at trial approached the trial on the basis that he was bound by the ruling but that the trial judge ought, in any event, to afford the evidence no weight.
105 Counsel submitted that little or no weight should be given to the pre-testamentary statements in relation to whether or not the deceased approved of the contents of the will on the basis that a pre-testamentary intention might always be changed and is not admissible as an aid to the construction of a will.
106 The trial judge did not accept this submission. His Honour pointed out that the real contest in this case was whether or not to believe the first respondent's evidence of instructions given to her by the deceased, particularly in relation to the land devised to the second respondent. His Honour considered that because her evidence was the only direct evidence of those instructions, the question whether or not to believe her evidence was analogous to the question whether or not there is evidence to corroborate other evidence of the contents of a lost will.
107 Further, his Honour referred to Astridge v Pepper [1970] 1 NSWR 542 [484] - [450] in which he found support for the view that where the instructions a deceased gave for a will are in issue, evidence of declarations of the deceased may be relied upon. Counsel for the second respondent submitted that in suitable cases evidence of the testamentary intention of a deceased may be relevant to show whether or not a document said to be the deceased's will was in fact that will: see In the Estate of Hassan [2008] SASC 14 [45] and [77] and Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 137 (Barwick CJ), 149 (Gibbs J).
108 The trial judge was persuaded that the pre-testamentary statements could be admitted and he could give them weight. His Honour found that the first respondent had read the will aloud to the deceased, who had then read it with a magnifying glass himself and confirmed he was happy with it.
109 His Honour relied particularly on the evidence of Mrs Zemunik in finding that the deceased had read the will with the use of a magnifying glass and approved of it. The trial judge pronounced the force and validity of the will dated 8 July 2005 and ordered that probate of the will be granted to the first respondent.
110 The appellant challenges the findings of the trial judge on two primary grounds. The first ground alleges error in accepting the first respondent's claim that she read the will to the deceased, who then read it himself with a magnifying glass and approved of its contents, on the basis that the first respondent's evidence was so confused and inconsistent as to be unsafe to rely on and the trial judge found that she 'could not always be trusted'.
111 The second ground challenges the finding that the deceased understood the terms of the will. This ground is supported by four particulars challenging the first respondent's evidence of instructions given by the deceased to her in executing the will, the finding that the deceased was not unfamiliar with the will, the admission of and weight given to pre-testamentary statements of the deceased's intentions and the weight given to the 2004 lease agreement.
112 An appeal to this court is by way of rehearing: Supreme Court (Court of Appeal) Rules 2005 (WA) r 25. In the statutory sense a rehearing is an appeal on the basis of the record: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. In Brett v Rees [2009] WASCA 159 [62] - [69] I drew attention to the two strands of authorities in which the nature of the appellate review process has been described. One approach emphasises the duty of the appellate court to decide for itself the proper inferences to be drawn from the facts. The other view places restraints on appellate intervention in the fact finding process and draws attention to the advantages that a trial judge has in seeing and hearing the witnesses and in looking at the case as a whole. The tension between the two approaches is illustrated by the following passages from the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (footnotes omitted):
[The appellate court] must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23].
...
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' [25].
113 In Brett v Rees [69] I expressed the following views that are, in my view, apposite in this appeal:
It would, in my view, be wrong to limit 'the advantages which the primary decision-maker has' to demeanour as a guide to credibility assessment and to ignore the 'feeling of a case' that usually emerges from running a trial. The primary decision-maker is able to assess testimony against the entirety of the evidence and in a situation in which she or he has an appreciation of the way the trial was run. There may, for example, be subtleties in the way questions were asked (or avoided) that are apparent in the heat of battle but which are not quite as clear in a more clinical examination of a transcript. Similarly, the effect of evidentiary rulings or rulings about the pleadings made at one stage of a trial may have a greater impact at another point in the proceedings than will be apparent from the record. In carrying out its duty to decide for itself on the proper inference to be drawn from facts an appellate court must be alive to the entire context in which findings were made.
114 The primary issue for consideration in this appeal is whether the deceased knew and approved of the contents of the will. There is no suggestion that the deceased lacked testamentary intention or testamentary capacity. The appellant alleges the trial judge erred in finding that the deceased read and approved of the will and that he understood it.
115 In my view, there is ample evidence indicating that the deceased intended to devise some land to the second respondent. The question is whether he knew and approved that the land described in the will as Lot 2D15522 was the front orchard and that this was the land to be left to the second respondent.
116 The evidence of the first respondent is the primary direct evidence as to the deceased's knowledge and approval of the will. She testified that she read the will to the deceased and he then read it himself with the aid of a magnifying glass in the car on the way to Mr and Mrs Zemunik's home. When they arrived, she said that he confirmed that he understood the contents of the will.
117 The trial judge considered that the first respondent's evidence on this question was consistent, despite some uncertainty as to whether or not the will was read 'word for word'. However once shown a copy of the 2005 will, the first respondent's memory was refreshed. Further, given the shortness and simplicity of the will, his Honour found it plausible that she had read the entire document to the deceased.
118 As to whether the deceased read the will himself (with the aid of a magnifying glass) and approved of its contents, evidence was given by the first respondent, Mr Zemunik and Mrs Zemunik. Again, his Honour considered that the first respondent's evidence was consistent on the point in issue. His Honour also relied on the evidence of Mrs Zemunik, who testified that before executing the will, her husband asked the deceased if he understood it, to which he gave an affirmative answer.
119 The appellant submits that given the changes of position and inconsistencies in evidence and the finding that her recollection of events could not always be trusted, the trial judge erred in accepting the first respondent's evidence. Counsel for the appellant submitted that the first respondent's evidence was so confused and inconsistent that it would be unsafe to rely on it to establish that the deceased knew and approved of the contents of the will. In his submission in the appeal, counsel for the appellant confirmed that this challenge is to the reliability of the first respondent's evidence rather than her credibility or honesty. It was said that 'her evidence was singularly disjointed and contradictory' (ts 10) when, as his Honour noted, it was a simple will which would presumably have had simple instructions.
120 I cannot discern error in the trial judge's reasoning and reliance on the first respondent's evidence in concluding that the first respondent did read the will to the deceased and that the deceased read the will himself with a magnifying glass and approved of the contents of the will. The areas of inconsistency in the first respondent's evidence were all raised at trial and were dealt with by the trial judge in his reasons. This is a case where the trial judge had the advantage of assessing the first respondent's testimony against the entirety of the evidence. Despite the inconsistencies, his Honour found support for the first respondent's version of these events. This is not a case where it can be said that the trial judge overlooked relevant matters or misused his position.
121 Support for the first respondent's testimony, in relation to the deceased having read the document himself and understood it, came from Mr Zemunik and Mrs Zemunik. Importantly the evidence of Mrs Zemunik remained largely uncontested and, in my view, the trial judge was entitled to give it considerable weight. Her evidence was that she and her husband were called out to the car when the deceased and the first respondent arrived at her home because the deceased was not able to climb the stairs leading to her house. When she approached the car she saw the deceased sitting in the car and he appeared to be reading a document with a magnifying glass. Her husband then asked the deceased whether he understood the document and the deceased responded that he did. Further as indicated by the trial judge, given the simplicity and briefness of the document, it is not unlikely that the first respondent read it to the deceased in full or that the deceased read it in full himself with the aid of a magnifying glass.
122 In my view there is no error in the trial judge's acceptance of the first respondent's evidence, given the consistency in this area of her evidence and the support of her testimony from Mrs Zemunik. It follows that ground A must fail.
123 The primary consideration in determining whether the deceased knew and approved that the front orchard be left to the second respondent is the description of the land used in the will. This issue arises because the deceased owned more than one piece of land in Bindoon at the relevant time and the land in question is one of two areas of land contained in the same certificate of title. The appellant submits that the deceased did not understand the term used in the will to refer to the front orchard.
124 In support of this submission, the appellant again refers to inconsistencies in the first respondent's evidence. In particular the appellant pointed to the first respondent's use of the term 'the orchard' in her initial affidavit to describe the land left to the second respondent. Counsel submitted that this term refers collectively to the front and back orchards and is inconsistent with what was stipulated in the will, casting doubt on the first respondent's evidence that the will faithfully reflected the wishes of the deceased. The appellant also points to the fact that the first respondent could not remember the description of the land that the deceased used in his instructions for drafting the will and that she conceded that the deceased would not have described the property in the way it was described in the will.
125 I can appreciate the argument that the reference to 'the orchard' in the affidavit rather than to what has consistently been described as the 'front orchard' may be confusing. But, in my view, the trial judge was entitled to regard the first respondent's evidence as consistent in asserting that it was the front orchard that was to be left to the second respondent. This is because there was evidence that the deceased wanted to leave some piece of land to the second respondent, there was evidence that the first respondent drafted the will (including a provision she intended to have this effect), and the first respondent gave evidence that she and the deceased understood the land to be devised as the front orchard.
126 During cross-examination by the counsel for the appellant, the following exchanges took place:
[W]e always talked about the orchard. I know the orchard concerned because I had done the lease for him for the same orchard (ts 55).
...
[I]n terms of what Jack Fisher said to you what you inserted into the will is based on your understanding of what he said to you? - - - And the fact that we had the titles there and we were looking at the titles and I clearly asked him, 'So you are bequeathing to John lot 2 which is the orchard below the school,' and he said, 'Yes, you know what lot it is because that's the lot that John leases.'
Ms Kay, have you just made that evidence up now whilst you sit in the witness box? - - - No, I haven't because Jack knew that I knew the block that he was talking about. John and him leased it, they worked it together, he specifically knew it was the orchard below the school. However he referred to it, what it was, I asked him, 'Are you clearly sure that this is the block that you want to leave to John?' He knew what the lot was. We had the titles there, we knew exactly what the description of it was and that's where I got the description from' (ts 55 - 56).
...
Jack and I had an understanding - I knew what he was talking about, and he knew what I was talking about (ts 81).
127 In his submissions, counsel for the appellant characterised this evidence as a mere assertion by the first respondent that the deceased understood that the front orchard was being left to the second respondent. I do not consider this to be the case. Given the background of the situation, where it was clear that the deceased intended to leave some land to the second respondent and that the only land with which the second respondent had any connection was the front orchard (by virtue of a lease), the piece of land the deceased was most likely to have left to the second respondent was the front orchard.
128 The first respondent drafted both the 2005 will and the 2004 lease within a period of nine months. The descriptions of the land differ only in the inclusion of the diagram number, 'D15522', in the 2005 will. This can be explained by the first respondent having referred to the certificates of title, which, later in her evidence, she considered it was likely that she had done. Both descriptions use the term 'Lot 2' and 'Fisher Road, Bindoon'.
129 The appellant submits that no weight should be given to the 2004 lease agreement. He contends that it does not materially assist in the determination of the nature of the instructions provided by the deceased to the first respondent. Again, I have come to a different view. In my opinion, the primary issue of concern is the description of the land in the will and at the hearing of the appeal, when asked which part of the description the deceased would not have understood, the appellant pointed to the term 'Lot 2'. Having regard to all of the evidence, including the first respondent's evidence that she and the deceased discussed the land to be left in terms of the land leased to the second respondent, it seems to be that the lease was a material consideration. The trial judge clearly gave it considerable weight and I have not been persuaded that he erred in doing so.
130 In my view, it was open on the evidence of the first respondent and the description used in the 2004 lease agreement to conclude that the deceased knew and approved that the land to be devised to the second respondent in his will, described as Lot 2D15522, was the front orchard.
132 The trial judge found that, given the first respondent's evidence, the rationality of the will and the fact that the deceased had the first respondent draft the 2004 lease agreement, it was more likely than not that the deceased had instructed the first respondent in the way she testified. In his Honour's opinion, the deceased would therefore not have been unfamiliar with the contents of the will and was more likely to have understood it.
133 This is challenged by the appellant on the basis that the first respondent could not recall the instructions given to her as to the land the deceased wished to include in the bequest and conceded that the deceased would not have described the property in the way it was drafted in the 2005 will. The appellant contends that it cannot be inferred that the deceased was familiar with the will, given the first respondent did not give evidence as to the instructions given to her by the deceased.
134 Having regard to the whole of the evidence and to what I have said in the preceding sections of these reasons, in my opinion, it was open to the trial judge to have found that the deceased had instructed the first respondent according to her testimony. It would follow that, given he had instructed the first respondent as to what he wanted to have drafted in his will, it is more likely that the deceased was familiar with and understood its contents.
136 As I have already indicated, in a hearing dealing with the admissibility of evidence prior to trial an order was made by a master that certain evidence be tendered in the form of affidavits. The witnesses were then cross-examined at trial according to the usual processes. Counsel for the appellant at trial approached the trial on the basis that he was bound by the ruling but that the trial judge ought, in any event, to afford the evidence no weight. I have already described the way in which the trial judge approached this issue.
137 The pre-testamentary statements relate to expressions of the deceased's intention to bequeath the front orchard to the second respondent. I think it is implicit in the way the appeal was argued that the appellant still contends that this evidence is inadmissible. Counsel submitted that in view of Johnson v Lyford (1868) LR 1 P & D 546 (followed in In the Goods of Gilliland [1940] NI 125 and Sugden v Lord St Leonards (1876) 1 PD 154, 227) these statements were only admissible in two cases - where:
138 In any event, the appellant submits that, even if the statements are technically admissible, they should not be afforded any weight.
139 The impugned evidence is, in the main, the testimony of Ms Treasure, Ms Thompson and Ms Lefroy as to conversations they had with the deceased in which the deceased indicated that he intended to leave some land to the second respondent and identifying the land as the front orchard.
140 The whole area of the admissibility of pre-testamentary statements is beset with difficulty. As I have already said, it has to be borne in mind that the trial judge was exercising the jurisdiction of a court of probate, not a court of construction and the rules relating to the admissibility and use of extrinsic evidence are more relaxed in that forum. And even in a court of construction, where there is an 'equivocation' (ambiguity), extrinsic evidence may be admissible to assist in the resolution of the doubt: see, for example, Re Gillson; Ellis v Leader [1949] Ch 99, 105 - 106; Lutheran Church of Australia South Australia District Inc v Farmers' Co-operative Executors & Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628, 648 - 649. Notwithstanding the variances and imprecision of some of the impugned evidence, it seems to me that, once the trial judge had decided that it was open to him to ascribe weight to the material, the relative probative value was a matter for him. But in my view it is not necessary to rule definitively on whether the impugned evidence is admissible and, if so, what weight should have been given to it. The real questions in this appeal are:
(a) whether the deceased instructed the first respondent to prepare a will which, among other things, would leave the front orchard to the second respondent; and
(b) whether the deceased read the will and knew and approved its contents (including a provision that left the front orchard to the second respondent).
141 In my view those questions can be answered without reference to the pre-testamentary statements. Notwithstanding the changes of position and inconsistencies in the first respondent's testimony, the trial judge was entitled to accept her testimony on those critical issues (supported, as it was, by other evidence and, in particular, the evidence of Mr and Mrs Zemunik). That being so, it was open to the trial judge to conclude (even without ascribing any, or any material, weight to the impugned evidence) that the deceased knew and approved of the contents of the will and that a grant of probate ought to be made. It follows that the impugned evidence would not affect the result.
Brett
Rees
(2003) 214 CLR 118
(1970) 121 CLR 628
(1988) 14 NSWLR 698
(1979) 143 CLR 134