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[2012] WASC 20
General information, not legal advice.
Supreme Court of WA
2012-01-20
Heenan J
Original judgment source is linked above.
1 EM HEENAN J: This is an action for proof in solemn form of law of a will of Jean Wishart, who died on 10 June 2009. The will being propounded was made on 29 March 1999 and has been duly executed and witnessed in accordance with the requirements of s 8 of the Wills Act 1970 (WA). It names David Charles Arden Brown and one Joanne Mattich as the executors of the deceased. Ms Joanne Mattich has since renounced her right to apply for probate and the will is being propounded by the remaining executor, the plaintiff in the action.
2 The will of 29 March 1999 was followed by two further purported wills each of which also appears to have been regularly made and executed in accordance with s 8 of the Wills Act. The first of the subsequent wills was made on 18 April 2001 and the second was made on 26 July 2001. The plaintiff contends that the late Mrs Wishart did not know or approve of the contents of the two later wills because of lack of testamentary capacity and that, consequently, neither is valid.
3 By each of the two subsequent wills David Charles Andrew Brown was named as the executor of the deceased and Timothy John Willoughby was named as her sole beneficiary if he should survive the deceased but, if not, his wife AnneLouise Willoughby would be the sole beneficiary. In the events which have happened, Timothy John Willoughby predeceased Mrs Wishart which means that, as the sole beneficiary under the will of 26 July 2001, Mrs AnneLouise Willoughby would be entitled to apply for a grant of letters of administration of Mrs Wishart's estate with that will annexed as Mr Brown as executor has not sought to prove that will. Alternatively, if she sought to do so, Mrs Willoughby would similarly be entitled to apply for a grant of letters of administration of Mrs Wishart's estate with the will of 18 April 2001 annexed. As a person so entitled and also as the sole remaining residuary beneficiary under the two later wills Mrs Willoughby has been named as a defendant in this action. She has not entered an appearance or sought to defend the plaintiff's claim for proof of the earlier will of 29 March 1999 and she has taken no steps to propound either of the two later wills. This action, therefore, has proceeded on an uncontested basis but it is nevertheless necessary to consider on the evidence the claim for proof of the will of 29 March 1999.
4 Mrs Jean Wishart, a widow and retired music teacher, as already noted, died on 10 June 2009 then aged 91 years. She had been born on 13 January 1918. On her death certificate the causes of death were noted as being bronchopneumonia of 10 days duration; Parkinson's disease from which she had suffered since 2002; and cerebral vascular haemorrhage subdural haematoma which had occurred in 2004. At the time of her death she was living at Carinya of Bicton at 220 Preston Point Road, Bicton a retirement home or hostel with special facilities for persons suffering from dementia as she had.
5 Mrs Wishart (nee Walker) married Clifford Frank Wishart on 17 April 1942. He predeceased her dying in 1996. She never remarried. Mr and Mrs Wishart had two children both of whom have survived the deceased. They are Beverley Anne Wishart born on 14 June 1944 and Peter Clifford Wishart born on 7 March 1949. Both were born with cerebral palsy and for all their lives have been in need of and have received full time residential care. Neither has married and neither has any children. Each is so disabled as to be incapable of making any will and the need for the care and maintenance of these children has been a matter of prominent concern by Mr and Mrs Wishart during their lives. Fortunately, they have each been in a financial position to provide well for their disabled children but the need for continuing care and responsibility for the children was always a factor which loomed large in their intentions and planning.
6 Both Peter and Beverley Wishart were born with LaurenceMoonBardetBiedl syndrome. On 24 January 2008 the State Administrative Tribunal (SAT) appointed the Public Trustee as plenary administrator of the estates of both Peter and Beverley Wishart. Previously, Mr Willoughby had been the plenary administrator of the estates of each of the two children, having originally been so appointed by SAT on 5 February 2002, and his appointments in those respects having been renewed by SAT on 20 April 2004.
7 Mrs Wishart left an estate the net value of which has been stated to be $9,698,346. There are liabilities of some $34,556. Her assets in this State were valued at $9,732,903. The major components are a house and land in Peppermint Grove valued at $3,400,000, a house and land at Safety Bay Road, Rockingham valued at $250,000, a share portfolio of some $5,479,000, and a cash trust bank account of some $557,000.
8 This action was commenced by writ of summons issued on 13 November 2009, that is just over five months after the death of Mrs Wishart. By chamber summons of the same date the plaintiff applied pursuant to s 35 of the Administration Act 1903 (WA) for himself and Mr John Mison to be jointly appointed administrators of the personal estate and receivers of the real estate of the deceased on a care and maintenance basis. An order in those terms was made by Master Sanderson on 22 October 2009 and the plaintiff and Mr Mison have since acted and continue to act as joint administrators and receivers of the personal and real estate of the deceased pursuant to that order.
9 The application was supported by affidavits of Mr Brown and Mr Mison in which each sought appointment in those capacities pending a grant of probate of Mrs Wishart's last valid will. Both Mr Brown and Mr Mison had previously been acting as joint plenary administrators of Mrs Wishart's estate pursuant to orders of the SAT initially made on 29 August 2005 and subsequently periodically renewed. Mr Brown had acted as Mrs Wishart's accountant since 1990.
10 A major reason for the appointment of Mr Brown and Mr Mison as joint administrators and receivers after her death was to ensure that there would be persons with lawful authority available to act and manage the significant equity portfolio of investments and the real property owned by Mrs Wishart's estate, to attend to income tax payments and, especially, to make payments in respect of the needs and welfare of the two disabled children, Peter and Beverley Wishart, and to liaise with the Public Trustee and the Cerebral Palsy Association in relation to the care of Peter and Beverley.
11 Although the purpose of the orders for the appointment of Mr Brown and Mr Mison as joint administrators and receivers of the personal and real estate of the deceased was that they would retain those offices until a grant of probate or other representation of her estate was made, the terms of the order are unconditional. It is necessary, therefore, that if a grant of probate is made that there should be a supplementary order revoking the order of Master Sanderson of 22 October 2009.
12 By the order of Le Miere J of 26 May 2010 it was directed that the affidavits which had been filed in this action should stand as the evidenceinchief for the plaintiff and that any party who required a deponent to attend for crossexamination should give notice in writing within a specified time of that demand and that any party who sought to rely on any further affidavit should file and serve such an affidavit within seven days of that order. No affidavits have been filed on behalf of any interest other than the plaintiff and there has been no demand for the crossexamination of any of the deponents.
13 The action came on for trial on 18 August 2010 with counsel appearing only for the plaintiff. At that stage, as described more fully later, the trial was adjourned to allow further inquiries to be made about the instructions for, preparation of and execution of the wills of 18 April 2001 and 26 July 2001 and, if possible, of the mental condition of Mrs Jean Wishart at or around those dates. Subsequent affidavits were filed by the plaintiff dealing with these issues and were relied upon at the trial which resumed and was completed on 30 November 2011. Again there was no appearance on behalf of any interest other than the plaintiff and no demand had been made for crossexamination of any of the deponents of the subsequent affidavits.
14 The affidavit of scripts shows that there are four wills known to have been made by Mrs Wishart dated respectively:
15 This will is made in conventional form by solicitors and appears to have been properly executed and witnessed. It contains a general revocation clause of any previous testamentary dispositions and appoints Mrs Wishart's husband, should he survive her for 28 days, as the sole beneficiary of the whole of her real and personal estate and appoints him as the sole executor of her will. In the event that Mrs Wishart's husband did not survive her for 28 days, the will provided for the appointment of the Western Australia Trustee Executor and Agency Co Ltd as executor and then provided for a small pecuniary legacy to a friend. Subject to that legacy and the payment of all debts and duties, the will directed that the whole of her estate should be sold and converted to money and held upon trust. The terms of the trust were to invest and accumulate the same during the joint lives and the life of the survivor of the two children, with an absolute power and unfettered discretion to pay or apply any portions of the capital or income for their support and maintenance, benefit, advancement, welfare, comfort or happiness. In addition, there is power to make discretionary gifts to the family friend of up to $2,500 per year, being the person who was the recipient of the legacy first mentioned. There then followed a series of powers for the trustees to postpone the sale or calling in or conversion of the estate assets, to appropriate particular property towards the establishment or setting aside of any fund, and wide powers of investment.
16 Upon the death of the survivor of the two children of the testatrix this will provided that the remaining capital and income of Mrs Wishart's estate should be held upon trust for the Home of Peace in Thomas Street, Subiaco or, if it was then no longer in existence, to such other association, body corporate or entity as should be established to carry out similar objects. This will contained the expression of the desire of the testatrix to ensure that her children be accommodated at the Home of Peace in Walter Road, Inglewood, and that her friend and legatee should be consulted about their continuing needs and welfare.
17 This will was made on 29 March 1999 by a different firm of solicitors and a little over a year after the death of her husband, Clifford Wishart. By this testament Mrs Wishart appointed the plaintiff, David Charles Arden Brown, and Joanne Mattich, solicitor, as joint executors and trustees of her will. Ms Mattich was the principal in the firm of solicitors which prepared this will. The will leaves the whole of the real and personal estate to the trustees upon trust to call in and convert the same into money, subject to a power of postponement of such sale, calling in or conversion or otherwise, and for the payment of all just debts, funeral and testamentary expenses. The will then provides that, subject to those payments, the trustees shall hold the residuary estate upon the following trusts:
(a) to set aside a fund to be used for the welfare and support of the two children, Beverley Anne Wishart and Peter Edward Wishart, then of 34 Crimea Street, Morley, such fund to consist of:
(b) to invest the fund as authorised by law or pursuant to the will;
(c) at the trustees' discretion to pay all or any part of the income or capital of the fund for the maintenance, education, advancement or benefit of any one or more of the children as the executors think fit;
(d) upon the death of the survivor of both children to pay the balance of the fund remaining as follows:
(ii) the remaining 85% to be divided equally between:
Then follow more detailed powers and amplifications of powers and discretions for the trustees.
19 As is apparent from this description of the terms of the 1978 and 1999 wills of Mrs Wishart, prominent features of both wills are the detailed provisions for the whole of the estate to be available for the care of her two disabled children. In the case of the first will, the whole of her estate was to be left to her husband if he survived her. It can confidently be assumed that Mrs Wishart was satisfied that if she predeceased her husband he would continue the financial care and welfare for the two disabled children and make suitable provision for their future needs after his death. The inference that, had he survived her, the husband of the deceased, Mr Clifford Wishart, would have made detailed provision for the care of the two adult disabled children of the family, including testamentary provision, is confirmed by the terms of Mr Wishart's own will made 18 October 1990 which provides for the establishment of a similar trust for the benefit of the children with a gift of the entire residuary estate after the death of the survivor of the two children to charity see exhibit TCAB 2 to the affidavit of Mr Brown sworn 20 November 2009.
20 This 1978 will then went on to provide that if Mrs Wishart survived her husband then the whole of her estate should be left on trust to establish a fund to care for the children with ample powers of advancement of capital and income for that purpose and that upon the death of the surviving child that the whole of the estate would be left to the charitable organisation which ran institutions at which the children were then living and where they were cared for.
21 Similarly, the 1999 will again provided for the whole of the estate to be used to create a trust fund the capital and income of which were to be used for the care and welfare of both children and how the views of the trusted friend were to be consulted about the needs and welfare of the children. Upon the death of the survivor of the children the whole of the estate was to be distributed to a group of charities whose activities and purposes can generally be regarded as being associated with the care and management of people with serious disabilities experienced by her children and into the continuation of medical research in areas which may lead to the improvement of knowledge and possibly the eradication of the diseases or disabilities which produce such profound consequences.
22 This will of Mrs Wishart has the appearance of being drawn by solicitors but no solicitor's name appears on the will or cover sheet. It has the appearance of being duly executed and witnessed in accordance with s 8 of the Wills Act, the witnesses being a Dr D I F Lawson and a pharmacist, Mr W C Rock, but no affidavits of due execution have been filed. More details of the circumstances of the preparation and execution of this will will be set out later. By this document Mrs Wishart appoints the plaintiff, David Charles Arden Brown, to be her executor and trustee provided that if he should predecease her then Timothy John Willoughby should be her executor and trustee. By the terms of cl 2 Mrs Wishart provides that, subject to the payment of her debts, funeral and testamentary expenses and any duties, the whole of her real and personal estate should be left to Timothy John Willoughby 'as shall survive me for his own use and benefit absolutely' provided that if he should predecease her, leaving his wife AnneLouise Willoughby surviving, her estate should pass entirely to her.
23 The third and final clause of this testament expresses the wish, but without imposing any legal obligation upon the said Timothy John Willoughby, that he provide her daughter, Beverley Anne Wishart, and her son, Peter Clifford Wishart, with any financial support they may require during their lifetime, including personal, medical, carer and accommodation needs.
24 At the time of this will and for some years previously, Timothy John Willoughby had been a stockbroker and financial advisor with the firm of stockbrokers J B Were & Co and had advised Mrs Wishart, and her late husband, in relation to shareholdings and other similar investments and had managed the substantial share portfolio already mentioned. The AnneLouise Willoughby referred to is the defendant and was then the wife, now the widow, of Timothy John Willoughby.
25 The precatory words contained in cl 3 of this will do not by themselves impose any trust or other obligation, nor do they impose a condition upon the gift to Mr Willoughby or his widow in respect of the residuary estate. This is clear not only from the express words in the testament that the clause does not impose any such legal obligation but from the general tenor of the clause referring to the expression of a wish see Theobald On Wills (16th ed) pars 39 17 citing Sale v Moore [1827] EngR 636; (1827) 1 Sim 534; 57 ER 678; Macnab v Whitbread (1853) 17D 299; [1853] EngR 808; 51 ER 1049; Re Williams [1897] 2 Ch 12, 18 (Lindley MR); and Curtis v Rippon (1820) 5 Mad.434; [1820] EngR 606; 56 ER 961. Noone has contended that these precatory words have the effect in law of equity of imposing any restriction or condition upon the apparent absolute disposition of the residuary estate in favour of Mr Willoughby or his widow.
26 This will also has the appearances of being drawn by a solicitor but again there is no name or indication of any firm of solicitors having prepared the document. It is in conventional terms, appears to have been properly executed and witnessed in accordance with s 8 of the Wills Act. The two witnesses are a Dr K E Fordham and a Ms D L Armstrong, a pharmacist, but again there are no affidavits of due execution by those witnesses.
27 By this testament, Mrs Wishart appointed the plaintiff, David Charles Arden Brown, to be her sole executor and trustee provided that if he predeceased her or was otherwise unable or unwilling to act, then Timothy John Willoughby should be her sole executor and trustee. The will then provided for her cremation (not mentioned in the previous will) and then as the only dispositive clause, gave, devised and bequeathed all her real and personal estate to Timothy John Willoughby if he should survive her for his own use and benefit absolutely, but if he should predecease her leaving AnneLouise Willoughby, she would become the sole and residuary beneficiary subject to the payment of all debts, funeral, testamentary expenses and duties.
28 This testament also included a final clause with the expressions of a wish, but without imposing any legal obligation upon Mr Willoughby, that he should provide Mrs Wishart's daughter, BeverleyAnne Wishart, and her son, Peter Clifford Wishart 'with any financial support they may require during their lifetime, including personal, medical, carer and accommodation needs'. Once more it is accepted that these are precatory words only and impose no legal obligation, condition, restriction or other obligation upon the apparent absolute residuary gift.
Renunciation by joint executor under the second will
29 As already noted, the second will dated 25 March 1999 which is being propounded names the plaintiff and Joanne Mattich as coexecutors. By a document of renunciation dated 10 September 2009 Mrs Joanne Mattich declared that she had not intermeddled in the real or personal estate of Mrs Wishart and would not thereafter intermeddle therein and that she thereby renounced all her right and title to probate and execution of the said will and trust's powers and authorities whatsoever. I am satisfied that this renunciation is effective. It is sufficient that the renunciation be in writing, signed by the executor renouncing and, upon being filed in the Probate Registry, it becomes binding s 32 of the Administration Act; In the Goods of Morant (1874) LR 3 P&D 151; and Scarpuzza v Scarpuzza [2011] WASC 65 [45] [46]. Upon the renunciation becoming effective, the right of such executor to obtain a grant in respect of the estate shall wholly cease subject to some special exceptions which do not apply in this case.
30 By a document dated 25 September 2009 the defendant AnneLouise Willoughby thereby unconditionally renounced any and all right, title and interest in and to the estate of Jean Wishart arising under the purported wills of 18 April 2001 and 26 July 2001 or howsoever otherwise arising. By its terms, this is not a renunciation of any right to apply for a grant of letters of administration with either of those wills annexed in the event that the named executor, the plaintiff, Mr Brown, renounced any intention to apply for probate or declined to apply for probate. It is, rather, a renunciation of any interest, benefit or other entitlement to the distribution of the estate of the deceased. It should, therefore, more correctly be described as a disclaimer by the defendant of any gift or benefit under either of the last two purported wills of the deceased, although such a disclaimer can also be referred to as a renunciation see Theobald On Wills pars 14 25.
31 Such a disclaimer operates not as a disposition of property but as a nonacceptance of it: Townson v Tickell (1819) 3 B & Ald 31; 106 ER 575, 37 (Abbott CJ) and so it prevents the gift from vesting and may consequently be effected by informal means Halsbury's Laws of England, vol 50 [390].
32 In Re Cranstoun [1949] Ch 523 and Re Paradise Motor Co Ltd [1968] 1 WLR 1125, 1143 it is observed that if a beneficiary renounces a benefit under a will he or she can retract his or her renunciation/disclaimer at any time provided noone has altered his position in reliance on the renunciation/disclaimer. There has been no attempt by the defendant to retract her renunciation/disclaimer and the pursuit of these proceedings and the manner in which they have been conducted without any claim by her now effectively prevents any such retraction.
33 However, it is necessary to consider the effect of this disclaimer by Mrs Willoughby under the two latest wills in the event that either were valid. In such an eventuality the defendant's disclaimer would result in a failure of the entire residuary gift under either will thus producing an intestacy in respect of the net estate after payment of all debts, funeral and testamentary expenses. The persons entitled to benefit upon such an intestacy would be the two children of the deceased under s 14 of the Administration Act. Neither child is sui juris because of their longstanding disabilities. For this possibility to be pursued by any formal claim it would be necessary to have next friends appointed to initiate any proceedings to prove either will in order for the children to claim the whole of the residuary estate.
34 As a result of the orders mentioned made by the SAT on 24 January 2008 the Public Trustee became, and still remains, the administrator for the estates of both the Wishart children, Beverley and Peter. Notice of these present proceedings has been given to the Public Trustee, who has been asked whether or not he wishes to be joined as a party to the action to advance the interests of the children. By letter to the plaintiff's solicitors dated 11 April 2011, an exhibit to the affidavit of Mr I F Tate, sworn 29 June 2011, the Public Trustee has declared that he did not wish to be joined as a party to the action at that stage but that he supports the plaintiff's applications in the action, that is for the proof of the 1999 will.
35 That there might be such a partial intestacy is not a possibility which was addressed further in the course of these proceedings or in the submissions at the trial and I am satisfied that it can be put to one side and dismissed from further consideration on the basis that no person, whether on behalf of the children of the deceased or otherwise, is seeking to prove either of those last two wills and, having regard to the factors yet to be addressed, which displace any presumption of validity of either will otherwise arising from due execution, it is pointless to attempt to do so.
36 When this action first came on for trial on 18 August 2010 there was little evidence then about the circumstances leading to the preparation or execution of the two wills of Mrs Wishart of 18 April and 26 July 2001. Consequently, the trial was adjourned in order to give the plaintiff the opportunity to obtain further evidence in respect of:
(a) further details relating to which party or parties prepared the 2001 wills and on whose instructions these wills were prepared;
(b) any medical evidence regarding the deceased's condition (that is, whether she had the requisite testamentary capacity) at the time she made the 2001 wills, from medical practitioners who treated the deceased during this time;
(c) evidence (if any) from the persons who witnessed the execution by the deceased of the 2001 wills regarding:
(i) the circumstances in which the 2001 wills were executed, including any other persons who were present such as Mr Willoughby and/or the solicitors who prepared the will/s (if any); and
(ii) their observations in respect of the deceased's apparent testamentary capacity at that time.
(d) the plaintiff was to file a statement pursuant to r 9B of the NonContentious Probate Rules 1967 (WA) giving particulars of the assets and liabilities of the deceased at the date of his death and also to provide an explanation as to what, in the plaintiff's submission, was required with respect to the transfer of the estate from its current status under administration by Messrs Brown and Mison to the plaintiff as executor in the event that the court granted probate of the will of 29 March 1999 to the plaintiff.
37 The conclusion that the precatory words contained in the final clauses of the two wills of 2001 expressing the wish without imposing any legal obligation upon Mr Willoughby that he would provide for the children of the deceased with any financial support they may require during their lifetime, including personal, medical, carer and accommodation needs, did not impose any condition or obligation upon the absolute residuary gift in those wills does not exclude the possibility that such an obligation might have arisen by different means. If Mrs Wishart had discussed with Mr Willoughby her intention to make an absolute and unconditional gift to him, or, in the event of his death, to his widow, without disclosing in her will or to others the real purpose of the gift but informing him that it was meant to be held by him on trust for the benefit of her children, and upon their deaths for some other trust purposes, such as disposition to charities, then if Mr Willoughby accepted that any gift to him would be held on those trusts, although not otherwise disclosed, and the testatrix made the testamentary gift or left it unaltered on the faith of that acceptance, that could give rise to a secret trust of the kind examined in Voges v Monaghan [1954] HCA 63; (1954) 94 CLR 231 and in Re Snowden [1979] Ch 528 see also Wallgrave v Tebbs [1855] EngR 918; (1855) 2 K&J 313; 69 ER 800; and Will of Doig [1916] VicLawRp 88; [1916] VLR 698.
38 In Voges v Monaghan at (240), Fullagar and Kitto JJ referred to a claim asserting a secret trust as an appeal to the jurisdiction confirmed by the House of Lords in McCormick v Grogan [1869] UKHL 1; (1869) LR 4 HL 82 and then said:
The passage in the judgment of Lord Davey in French v French (1902) 1 IR 172 contains probably as clear an exposition of the principle as is to be found in the books. 'It is now well established' his Lordship said, 'and has been settled since the time of Lord Hardwicke, that if a testator communicates in his lifetime to a proposed devisee or legatee that he has left him his property, and expresses a wish that the property should be disposed of in a particular manner, and the legatee or devisee by acquiescence, or even by silence, accepts that communication, and the testator dies without any repudiation, a trust is fastened upon his conscience, as it is said, and he cannot afterwards either appropriate the property to his own use or dispose of it otherwise than in accordance with the wishes which were thus communicated to him, and which he has accepted. My Lords, it is said that this jurisdiction is based upon fraud, and so it is, because if you once get to this, that it is a trust which is imposed upon the conscience of the legatee, then if the legatee betrays the confidence in reliance upon which the bequest was made to him, then it is what I should think everybody would consider a fraud, although I take the liberty to say that the moral turpitude of any particular case must vary infinitely according to the circumstances of the particular case. My Lords, the basis of it is of course that the testator has died, leaving the property by his will in a particular manner on the faith and in reliance upon an express or implied promise by the legatee to fulfil his wishes, and your Lordships will at once see that it makes no difference whatever whether the will be made before the communication to the legatee or afterwards, because, as was said, I think, by Turner VC in one of the cases which was cited, the presumption is that the testator would have revoked his will and made another disposition if he had not relied upon the promise, express or implied, made by the legatee to fulfil his wishes'.
39 The doctrine has been applied in many cases and in a variety of jurisdictions. In Re The Estate of Smith; Ex parte Dickens v Smith, Bolt & Smith [1988] FCA 315 a question arose as to whether a bankrupt's share in the residue of his father's estate was divisible among his creditors or whether it was the subject of a secret trust. Relying on observations of Viscount Sumner in Blackwell v Blackwell [1929] AC 318, 334 to the effect that with this doctrine:
The necessary elements, on which the question turns, are intention, communication, and acquiescence.
Davies J went on to examine the evidence and concluded that communications between the deceased and the bankrupt were not such as were intended to impose any such obligation upon his son to deal with his testamentary benefit in other than an absolute way and were not accepted as such and, for that reason, decided that the interest bequeathed to the applicant by his late father was property divisible amongst his creditors. That case provides an example of how major difficulties and uncertainties can arise in situations where it is attempted to establish the existence of a secret trust where there is little evidence available on the issue and where, inevitably, the testator whose intentions were critical, has died.
40 While there are obviously occasions when a testator may wish to establish a secret trust in order to maintain the privacy of certain matters or past events the prospects of the trust being effective, and if necessary being enforced, must depend on the availability of evidence to support the absence of intention to confer the whole beneficial interest in the property upon the object of the apparently absolute gift.
41 There is no apparent reason why a secret trust conferring the whole of the residuary beneficial interest of her estate upon Mr Willoughby or his wife would be of benefit or advantage to Mrs Wishart. The conditions of her two adult disabled children were wellknown and had been recognised within her family for decades. Appropriate provision for the establishment of trusts for the children's welfare had been included in her late husband's will and in earlier wills made by Mrs Wishart. There was no reason to keep secret, by excluding from the terms of her last or other wills, an intention to create trusts for the children's benefit with residuary gifts to charities. In the absence of some sufficient justification for establishing a secret trust, a will made in the terms of the two wills of 2001, was at risk of being misunderstood or the trusts not recognised. Such a will, if indeed it was based on a secret trust, placed enormous faith on the integrity of Mr Willoughby to honour the terms of the trust and even if such reliance was well placed, it would give rise to further risks and uncertainties in the event that he died without communicating the terms of the trust or recording them in a way which would ensure their implementation. If, indeed, this is what was intended by the wills of 2001, there can be little doubt that that gives rise to suspicion that the influence of Mr Willoughby over Mrs Wishart in relation to her testamentary intentions in 2001 was very considerable and, although it may have been exercised with good intentions and conscientiously, it was capable of producing effects detrimental to the interests of the testatrix by jeopardising the prospects of implementation of her testamentary intentions which, so easily, could have been unmistakably and unequivocally expressed in her own testament as had been done in the 1978 and 1999 wills.
42 The problems with uncertainty of the terms of the secret trust, the need to identify beneficiaries if the disposition was intended to operate only as a trust but where they have not been defined, and the need in certain cases to appoint a trustee or additional trustees to administer the secret trust have not deterred the courts from implementing trust obligations where the testator has disposed of the legal estate of certain of his or her assets or the whole of a residuary estate, if it is nevertheless clear that the disposition was subject to a secret trust see generally Jacob's Law of Trusts in Australia (7th ed) [714] [722].
43 However, if there is nothing on the face of the will to indicate the existence of a secret trust and the disposition by a will is apparently of both the legal and beneficial ownership of the property which is the subject of the gift and there is no other evidence of secret trust, then the gift will operate as an unconditional absolute disposition to the named beneficiary. In the present case, the terms of the final clauses in the two 2001 wills indicate that the gifts of the residuary estate were intended to operate absolutely and unconditionally and that the precatory intentions were not in any way legally binding.
44 There is very little evidence to establish that Mrs Wishart discussed with Mr Willoughby the making of a gift to him which, absolute in its apparent terms, was nevertheless because of an understanding between them accepted by Mr Willoughby to operate only as a secret trust. However, there are some indications in the evidence of conversations between Mr Willoughby and Mrs Wishart to the effect that he understood her wishes and intentions with respect to the care and welfare of her disabled children and of her wishes for the ultimate disposition of her estate after their deaths.
45 In correspondence and other materials coming from the files of solicitors who were involved, to a limited extent, in the preparation of preliminary and incomplete drafts of what eventually became the two 2001 wills, there are some indications pointing in that direction. In a letter from Mr Willoughby's solicitors to the chairperson of the Guardianship and Administration Board dated 20 February 2004, dealing with the review of the appointment of Mr Willoughby as administrator of the estates of the two disabled children (exhibit DCAB 49 to the affidavit of Mr Brown sworn 20 November 2009) Mr Willoughby's solicitors write:
Mrs Wishart's Will reflects the total confidence that she has in Mr Willoughby to care for her two children. Mr Willoughby appreciates that, although he and his wife have given a written undertaking to Mrs Wishart to do all that is necessary to maintain Beverley and Peter for life to the highest standards, this undertaking would not be legally acceptable on Mrs Wishart's death.
46 There is also an incomplete draft of a document prepared by the solicitors for Mr Willoughby on or about 10 April 2001 which appears to have formed part of the drafts which he had asked those solicitors to prepare leading to the execution of the first of the 2001 wills that is the will of 18 April 2001. This document, which forms part of a bundle of papers coming from the solicitors then acting for Mr Willoughby and which comprise exhibit DCAB 60 to the affidavit of Mr Brown sworn 20 November 2009, is in the following terms:
I .... of .... in the State of Western Australia DO HEREBY GIVE MY SOLEMN PROMISE AND UNDERTAKING to .... to honour and implement the wishes of .... in respect of her ESTATE as discussed and understood by me as her Advisor of the past 10 years.
I will do all that is necessary to ensure and secure the quality of life for her dear children, .... and .... in any manner whatsoever so that all of their personal, medical, carer and accommodation needs are met to the highest possible standards; that their sense of wellbeing is preserved; and that they have the security of knowledge that I am accessible to them to meet these needs to the very best of my abilities.
In recognition of the support given to the ... Family by the undermentioned organisations, I would support them as directed by, ... and have these organisations recognise the .... and their contributions:
The Cerebral Palsy Association of Western Australia
The Royal Institute For The Blind
Silver Chain Nursing
Paraquad
Women and Infant Health Foundation
People Who Care
SIGNED ...... DATE......
47 There are, however, no documents or other evidence to establish that any document, undertaking or declaration along these lines referring to Mrs Wishart, her estate or her children was ever completed or signed by Mr Willoughby or that any similar document was ever found among the papers or records of Mrs Wishart. Even so, if an oral agreement to that effect had been reached between the deceased and Mr Willoughby then that could give rise to a secret trust of the otherwise absolute testamentary residuary gift.
48 In that eventuality, it would be for the court to identify the beneficiaries of the trust but this would not appear to be a difficult task as they would obviously be the two children of the deceased for their lifetimes and then, ultimately, the charities identified in the draft document or otherwise identified from extrinsic evidence such as the March 1999 will. As for the terms of the trust and the powers of the trustees, that too could be ascertained from extrinsic evidence. Again the 1999 will of Mrs Wishart, and before that her 1978 will, and the will of her late husband of 1990 would provide a source of evidence to assist in establishing those terms and powers.
49 One should, therefore, be cautious not to attribute improper or corrupt motives to Mr Willoughby for his role in preparing the two wills of 2001 or their content, especially as he is not available to give an explanation and because no such allegations have been advanced against him. Furthermore, an examination of the evidence of several hearings before SAT and proposals put forward by the solicitors for Mr Willoughby on applications for renewal of his appointment as sole administrator for the estates of the two disabled children reveals his concern about the situation. It is desirable that I deal briefly with this aspect of the history. Suffice it to say, by 2003 Mr Brown had learned of the existence, but not the content, of the two wills which Mrs Wishart made at the instance of Mr Willoughby in 2001. Also his coattorney for Mrs Wishart under a then operating enduring power of attorney (EPOA) Ms Mattich, the solicitor who had prepared the 1999 will, had been sent copies of the two wills made in 2001 at the instance of Mr Willoughby but was under instructions not to disclose the content of them to Mr Brown. These were written instructions signed by Mrs Wishart but, in the view of Ms Mattich, had been drafted and typed by or on behalf of Mr Willoughby. This caused Ms Mattich serious disquiet about the situation and this disquiet resulted in her taking a passive and noncooperative attitude in relation to her role as coattorney under the EPOA and in neglecting or delaying to execute documents or provide information which Mr Brown considered were needed.
50 This in turn led Mr Brown to apply to SAT to have the joint EPOA for Mrs Wishart appointing himself and Ms Mattich revoked. A hearing on that application before SAT was eventually conducted which, after some adjournments, led to the production and disclosure to SAT of the two wills of 2001 appointing Mr Willoughby, or his widow if she survived him, as the sole residuary beneficiary of Mrs Wishart's estate. It is unnecessary to go into all the details but SAT thereupon revoked the EPOA for Mrs Wishart in favour of the joint attorneys, Mr Brown and Ms Mattich, and, on further application, approved a new EPOA appointing Mr Brown and his other accountant colleague, Mr Mison, as new joint attorneys for Mrs Wishart.
51 Commendably, the actions of SAT did not stop at this point. In view of the disclosure of the contents of Mrs Wishart's wills of 2001, SAT decided to review, ahead of schedule, its orders appointing Mr Willoughby as sole administrator of the affairs/estates of the two disabled Wishart children. In the course of that hearing, Mr Willoughby, through his counsel, explained to SAT that in view of his long experience and familiarity with the financial affairs of Mrs Wishart and in his role as a stockbroker managing her substantial investment portfolio, it was desirable that he continue for her lifetime to remain as administrator of her children's affairs. However, he recognised that upon her death it would be inappropriate for him to continue to manage the investment portfolio in view of conflicts of interest with his personal position. He volunteered as a solution an arrangement by which some other investment advisor/stockbroker, still at J B Were & Co, could take over that role. More significantly, Mr Willoughby's counsel pointed out that whatever misgivings might be entertained about the terms of the 2001 wills, the inescapable problem was that, by then, Mrs Wishart no longer had testamentary capacity to make a new will and that, in the absence of any challenge to the last of those wills, it would take effect upon her death according to its terms.
52 Further, so Mr Willoughby's counsel submitted to SAT, the only persons having standing to make any challenge to the last will would be the two children who themselves were incapable. This line of submission seems to have been predicated on the basis that the only challenge which might be made to the last will of Mrs Wishart would be a challenge by the children under the provisions of the Inheritance (Family and Dependants Provision) Act 1972 (WA) (Inheritance Act). The submission seems to have overlooked the possibility that there might well have been a challenge by any one or more of the charities named in the 1999 will advancing allegations that, for various reasons such as want of testamentary capacity or other potential reasons such as undue influence, neither of the 2001 wills would be valid. The indications that such an apparent oversight did occur are further supported by the submissions made to SAT that in the event of the gift to Mr Willoughby or his widow under the 2001 will failing, there would be a partial intestacy which would result in the whole of the residuary estate passing to the children under s 14 of the Administration Act.
53 Mr Willoughby's counsel's submissions also embraced the proposition that in the event of successful 'challenges' by the children under the Inheritance Act then moneys coming to them under orders of the court could be enjoyed by them for their lifetimes but, upon their deaths, would be disposed of upon an intestacy (the Wishart children then being incapable of making wills for themselves). There was then no potentiality for a will to be made by the court for them because s 40 of the Wills Act (as it now stands) had not been introduced. (Section 40 was inserted in its present form in 2007 but did not come into effect until 9 February 2008) The submission was that the result would be that the property would escheat to the State of Western Australia, there being no other living relatives surviving, as was indeed the case.
54 This in turn led to a suggestion proffered by counsel for Mr Willoughby to SAT that he should continue as administrator for both children until Mrs Wishart's death but that his appointment should thereupon immediately terminate and another administrator or trustee should then be appointed to manage the estates of the two children. That administrator/trustee then appointed would have standing and power to bring proceedings on behalf of each of the two Wishart children to 'challenge' the 2001 will. That challenge could be expected to be successful and, by this method, although the details were not spelled out, it could be expected that the residuary gift under the wills in favour of Mr Willoughby would be altered, varied or displaced by provisions of a suitable kind providing for the children.
55 It is obvious that many exceptions and inadequacies in the proposals put to SAT on behalf of Mr Willoughby can be identified. Even from this brief resume, it is likely that even more substantial difficulties might have been experienced in practice had the proposal ever needed to be put to the test. However, the significance of this history for present purposes is that it reveals an appreciation by Mr Willoughby that the terms of the 2001 wills were, in retrospect, inadvisable and that something needed to be done to ensure that vested rights and entitlements for the children's future financial provision and welfare were established. The difficulty was in devising a means by which that could be achieved.
56 None of this helps to make a case for the validity of either of the two wills of the deceased executed at the institution of Mr Willoughby in 2001 but it does show the pivotal role of Mr Willoughby in the deceased's affairs and suggests that he had considerable influence upon her. The fact that this influence may have been exercised in what Mr Willoughby took to be conscientious manner designed to be of assistance to the deceased and her children does not diminish the fact that it gives rise to a suspicion of undue influence and lack of full appreciation and understanding by the testatrix during 2001.
Further implications of renunciation/disclaimer by defendant
57 The renunciation/disclaimer of any interest under the last two wills of the deceased by the defendant also has implications that raise other issues which, while they need not be pursued, still need to be identified. In the event that a proper construction of all the events, including the two last wills of the deceased in 2001, should be that, despite the absolute nature of the residuary gifts contained in those wills, the disposition of the whole of the residuary estate of Mrs Wishart to Mr Willoughby or his widow was received upon the terms of a secret trust which had been agreed between the testatrix and Mr Willoughby during their lifetimes then only the legal but not the beneficial interest in the residuary estate would pass to that member of the Willoughby family. He, or she, would be obliged to hold it on the terms of the secret trust and, if necessary, those terms would need to be ascertained and defined by the court.
58 On the hypothesis, not accepted by the plaintiff, that that would be the effect of the wills of 2001 then the renunciation/disclaimer by Mrs Willoughby would amount only to a renunciation of the legal interest but not of the beneficial interest as she would never have become entitled to the latter. That beneficial interest would, in that eventuality, remain subject to the terms of the secret trust and the renunciation/disclaimer would amount to a renunciation of the legal interest held as trustee only. In that result, the court would be left with the task of appointing a new trustee to hold the residuary estate on the terms of the secret trust which, as well, would need to be ascertained and stated.
59 Accordingly, if the terms of the secret trust resembled the terms of Mrs Wishart's will of 1999, or those of her then husband's last will, then there would be no question of the residuary estate passing absolutely and entirely to the two children but rather, it would be held on trust, subject to the terms of the secret trust, for them until the survivor died and then the remainder on some form of charitable trust resembling that contained in earlier wills. This point is significant because, should this have been the effect of the last wills of Mrs Wishart, then no question would arise of possible escheat of the residuary estate upon the death of the children because neither would have obtained an absolute interest in the residuary estate.
Background to the execution of the March 1999 will
60 The plaintiff, Mr David Brown, had acted as Mrs Jean Wishart's accountant since July 1998. In about March 1999 he was asked by Mr Willoughby to act as joint attorney for Mrs Wishart and as joint executor under her will, along with Ms Joanne Mattich, solicitor, care of Mattich & Associates, then of 154 Hampden Road, Nedlands. Willoughby knew Mr Brown through some prior business dealings. He told Mr Brown that he, Willoughby, had acted as a stockbroker for Mrs Wishart and previously for her late husband. Some time before 29 March 1999, Mr Willoughby organised a meeting at Mrs Wishart's home, then at 10 Irvine Street, Peppermint Grove. At the meeting were Mr Willoughby, Mr Brown, Ms Mattich, Ms Denise Young of Charters Chartered Accountants and Mrs Wishart. The purpose of the meeting was to discuss the terms of a new will to be prepared for Mrs Wishart. In the course of the meeting she indicated that she desired to make a will in similar terms to the one made by her late husband, that is, to provide that her estate be held on trust for the benefit of her children, Peter and Beverley Wishart, and then go to charity (the Spastic Welfare Association of WA (Inc)) following the death of the surviving child. According to Mr Brown, the main discussion at the meeting was the choice of charities that Mrs Wishart wished to benefit and she ultimately decided upon:
61 At this meeting Mr Brown described Mrs Wishart as being of sound mind and as having capacity to provide instructions for her will. He believed that Mrs Wishart understood the terms of her proposed will and was satisfied with them.
62 Following that meeting Ms Mattich prepared a will for Mrs Wishart in the terms discussed at the meeting, together with an enduring power of attorney under s 104 of the Guardianship and Administration Act 1990 (WA) appointing Mr Brown and Ms Mattich as joint attorneys.
63 That will was executed by Mrs Wishart on 29 March 1999. There is evidence from each of the subscribing witnesses, Mr Antonio Casselli, an accountant, and Mr David Alan Fyfe, another accountant that it was executed by Mrs Wishart in the presence of both of the witnesses, both of them being present at the same time, who thereupon attested and subscribed the will in the presence of Mrs Wishart. Neither witness had any doubt about the testamentary capacity of Mrs Wishart.
64 In her affidavit of 10 September 2009, Ms Joanne Mattich also refers to the meeting at Mrs Wishart's home in March 1999 at which there was the conference to discuss the terms of the new will and an enduring power of attorney for Mrs Wishart. Her account of that meeting confirms that given by Mr Brown. According to Ms Mattich, Mrs Jean Wishart at this meeting appeared to her to be a meek lady who, in her view, had never been involved with financial affairs (including financial affairs of her household). Ms Mattich understood from discussions with Mrs Wishart that she had few or no friends and that she and her late husband had dedicated their lives to caring for their children, Peter and Beverley Wishart, who were both disabled, having been born with cerebral palsy. Ms Mattich deposes that at this meeting she had formed the impression, based on the interaction between Mrs Wishart and Mr Willoughby, that Mrs Wishart trusted only Mr Willoughby in relation to her affairs. Ms Mattich understood that Willoughby acted as a confidante to Mrs Wishart as well as acting as her stockbroker. As a result of the course of discussions at this meeting, Ms Mattich formed the view that Mrs Wishart's only concern was that when she died her children would be looked after. Mrs Wishart said in the course of this meeting that she wished to have a will in similar terms to that of her late husband, that is, that her estate would be held in trust for the benefit of her children and upon their deaths would be given to charity because there were no other family members.
65 Ms Mattich prepared the will which was later executed in her office on 29 March 1999, together with the enduring power of attorney. The documents were executed in the presence of the two subscribing witnesses, who were accountants who worked upstairs in the office building at Nedlands.
66 Dr Mark Richard Holloway of care of Hollywood Village Medical Centre, Monash Avenue, Nedlands became the general medical practitioner for Mrs Wishart from about July 2002 and continued in that role until April 2004, over the period when Mrs Wishart was living at the Hollywood Village. He is and was an experienced fellow of the Royal Australian College of General Practitioners. Before July 2002 Mrs Wishart's general medical practitioners were Dr Kaye Fordham and Dr M Cullaghan of the Mosman Park Medical Group. They provided Dr Holloway with original copies of their records for Mrs Wishart covering the period November 2001 to July 2002 when she was transferred to the Hollywood Village. According to those records, Mrs Wishart was placed into care at the Hollywood Village from her home at 10 Irvine Street, Peppermint Grove during November 2001 because a review by an aged care assessment team found that she was not managing living at home and required hostel care.
67 Regular hostel care conferences with Mrs Wishart were held by the Hollywood Village staff from about November 2002. These noted that Mrs Wishart had the typical signs of dementia. She was very dependent, she lacked the initiative to perform simple tasks (for example, she was unable to manage her own medication), she was confused with her relationships with other people, she had constant fears and phobias, and she was frequently disoriented in time. However, she did have moments of lucidity and insight.
68 Dr Holloway first carried out a minimental state examination (MMSE) for Mrs Wishart in December 2002, when she achieved a score of 21. After this, she was diagnosed with dementia, vascular type, mild severity. The MMSE is a brief test of cognitive impairment widely used to screen for dementia. It involves a series of questions in relation to orientation, attention, recall and language with a maximum score of 30 and with a score of 25 or less generally indicating cognitive impairment. According to Dr Holloway, a person who achieves an MMSE score of 21 would be unlikely to have testamentary capacity and would be likely to have had symptoms of cognitive impairment up to three to five years earlier. On subsequent MMSE scores Mrs Wishart achieved between 21 and 25.
69 Mrs Wishart often expressed to Dr Holloway that her greatest concern was her children and that she wanted to live at home in Peppermint Grove and look after them there. He understood from meetings with Mr David Brown, Mrs Wishart's accountant, that she was wealthy. However, Dr Holloway says that Mrs Wishart had no understanding that she was wealthy, that she demonstrated a complete lack of awareness of her finances generally, and often said words to the effect that she had no money and that she could not afford anything.
70 Dr Holloway met and spoke with Mr Willoughby on many occasions as he often telephoned the doctor inquiring after Mrs Wishart and often visited her. Dr Holloway believed that Mr Willoughby's relationship with Mrs Jean Wishart was suspicious given that she was wealthy and that due to her medical condition she was highly dependent and vulnerable. Dr Holloway thought the relationship peculiar in that Willoughby appeared to respond to her emotional needs, by speaking to her on the phone and visiting her, but not her physical needs (for example, he did not provide her with a wheelchair when she had a clear need for this, and she had unpaid medical bills).
71 In about June 2003 Mrs Wishart was transferred to a dementia specific hostel, and on 22 August 2003 Dr Holloway prepared a guide in relation to Mrs Wishart for the Guardianship and Administration Board at the request of Mr Brown. In this guide Dr Holloway stated that:
72 In a letter of 30 September 2003 sent by Dr Holloway to the solicitors for Mr Brown, Dr Holloway stated that Mrs Wishart had advised her that she only trusted Mr Willoughby as her grantee and power of attorney.
The events leading to the preparation and execution of the wills of April and July 2001
73 Despite intensive inquiries conducted by the plaintiff and his solicitors, and even more inquiries pursued by the plaintiff's solicitors in response to directions given by the court after the adjournment of the trial in August 2010, it has not been possible to establish a complete account of how and why the apparent wills of Mrs Wishart dated 18 April 2001 and 26 July 2001 came to be prepared and executed.
74 Inquiries to the firm of Norton & Smailes, solicitors, who had some role in the preparation of the documents, have not elicited as much information as might have been expected due, it is said, to lack of recollection of the individual solicitors concerned. Initial requests to that firm to provide all records and documents relating to their engagement by Mr Willoughby for Mrs Wishart do not appear to have been fully answered. As a result, a subpoena was issued by the plaintiff for the production to the court of all the solicitors' records relating to that firm's dealing with Mr Willoughby over Mrs Wishart's affairs and documents were later produced and examined. These revealed that the role of these solicitors had been to provide incomplete draft documents to Mr Willoughby but that the solicitors had not prepared, either in draft or in final form, either of the wills which were executed in 2001 by Mrs Wishart. All the indications are that such materials as were provided to Mr Willoughby by Norton & Smailes were used by him as the basis for him to draft each of the two later wills in similar but different terms and to arrange for their execution.
75 The available information and documents do show the following chronology.
(1) On 10 April 2001, Mr Willoughby sent by email to Messrs Norton & Smailes, solicitors, of West Perth, a draft of a proposed will for Mrs Wishart which:
(2) By facsimile transmission of 10 April 2001 Mr Willoughby sent to Norton & Smailes a draft will with names deleted, which nevertheless appeared to be for Mrs Wishart. This draft appeared to be identical to the will emailed to Norton & Smailes on the same date except that the names of the testatrix, executors and beneficiaries were deleted.
(3) Subsequent to two telephone discussions between Mr Daniel Fry, solicitor, of Norton & Smailes, and Mrs Wishart on 11 April and 12 April 2001, Norton & Smailes prepared a draft will for Mrs Wishart in the form first proposed by Mr Willoughby.
(4) On 12 April 2001 Norton & Smailes sent to Mr Willoughby by email a copy of the draft will as prepared and advised him that the draft will was 'not complete and is subject to further instructions from your client'.
(5) By email of 12 April 2001 to Norton & Smailes Mr Willoughby acknowledged receipt of the draft will by email.
(6) Norton & Smailes prepared a professional invoice for their fees dated 30 April 2001 for Mrs Wishart, which was accompanied by an extract from a time costing ledger. Of the 12 items mentioned in the time ledger five were telephone discussions with Mr Willoughby and two were telephone discussions with Mrs Wishart. There is no reference to any meeting or conference between any member or representative of the firm of Norton & Smailes and Mrs Wishart and there is no reference to any further attendances, correspondence or telephone calls between Norton & Smailes and either Mrs Wishart or Mr Willoughby after 12 April 2001, whether in relation to the draft will under consideration or any other will for Mrs Wishart.
(7) MrsWishart purported to execute a will dated 18 April 2001 in the same terms as the draft will sent by Mr Willoughby to Norton & Smailes on 10 April 2001. Later she purported to execute a further will dated 26 July 2001 in similar terms to the previous will except that:
76 Following the adjournment of this trial in August 2010, under directions that the plaintiff seek further evidence relating to the wills purported to have been made by Mrs Wishart on 18 April 2001 and 26 July 2001, the solicitors for the plaintiff wrote to Norton & Smailes on 24 August 2010 asking that firm to advise in relation to each of the following questions:
(a) whether Norton & Smailes met with Mrs Wishart in person at any stage in 2001 in relation to the draft will or any will for her;
(b) whether Norton & Smailes, apart from the two telephone attendances between Mr Fry and Mrs Wishart on 11 April and 12 April 2001, had any other attendances with Mrs Wishart in 2001 in relation to the draft will or any will for her;
(c) whether Norton & Smailes had any further attendances with either Mrs Wishart or Mr Willoughby after 12 April 2001 in 2001 in relation to the draft will or any will for her;
(d) whether Norton & Smailes prepared Mrs Wishart's will of 18 April 2001;
(e) whether Norton & Smailes prepared Mrs Wishart's will of 26 July 2001.
77 Messrs Norton & Smailes replied to this letter of enquiry from the plaintiff's solicitors by their own letter of 31 August 2010 in the following terms:
We refer to your letter of 24 August 2010 and we advise that in response to the questions posed at AE inclusive on the last page of your letter the answer to each question is 'No'.
Yours faithfully
Norton & Smailes
78 That was followed up by a further letter from the plaintiff's solicitors to Norton & Smailes requesting that the latter advise of the substance and, in particular, the instructions provided to Norton & Smailes by Mrs Wishart of the telephone conversations with her of 11 April and 12 April 2001 and to provide copies of Norton & Smailes' file notes relating to those matters. On 30 September 2010 Norton & Smailes replied by advising that Mr Chris Smailes was then currently on leave, due to return on 6 October, and that the firm was currently reviewing the file and should be in a position to respond by 8 October 2010. On 8 October 2010 Norton & Smailes wrote again in brief terms, saying:
Unfortunately Daniel is unable to recall the telephone attendances with Mrs Wishart on 11 April 2001 and 12 April 2001 or the subject matter of their discussions. We have also reviewed the file in detail and there are no file notes of such a call.
Yours faithfully
79 It was after this response that the subpoena was issued and the documents eventually produced and examined. That examination has not allowed any further relevant facts to be established.
80 The will of 29 March 1999 as propounded has been duly executed and subscribed by the signatures of the two witnesses present together at the time of execution. Each witness has confirmed the formalities of execution and had no reason to doubt the testamentary capacity of the testatrix at that time. That will contains a standard revocation clause revoking all previous will, codicils and testamentary instruments. It appointed the plaintiff and Ms Mattich as joint executors and, as already described, Ms Mattich has since renounced her entitlement to apply or act as executor.
81 The 1999 will was executed more than two and a half years before Mrs Wishart went into the Hollywood Village and at a time when she was still living at her home in Peppermint Grove. The aged care assessment which led to Mrs Wishart being placed in care at Hollywood Village took place in November 2001. Dr Holloway said in his affidavit (2 October 2009, par 12) that in reliance of his MMSE test in December 2002 Mrs Wishart would at that date (December 2001) be unlikely to have had testamentary capacity and would be likely to have had symptoms of cognitive impairment up to three to five years earlier. That opinion obviously has a bearing upon her testamentary capacity at the time of the two wills made in April and July of 2001, and also, but to a lesser extent, upon her capacity at the time of the 1999 will.
82 In relation to the 1999 will, however, there is the advantage of the eyewitness accounts of Mrs Wishart's capacity at a meeting at her home held to discuss the making of a new will, attended by the plaintiff and Ms Mattich and others, and also the views of the attesting witnesses whose evidence has already been described. Each of Ms Mattich and Mr Brown were of the view that there was no reason to doubt the testamentary capacity of Mrs Wishart at the time she made the 1999 will.
83 The significance of a will, apparently duly executed and otherwise apparently rational in its terms, has been described on many occasions. This gives rise to a presumption of due execution and a presumption of testamentary capacity and a presumption of knowledge and approval of the contents of the will: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 704 706, and the authorities examined in my earlier decision of Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1 [24]. In Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 Isaacs J collected the following propositions from the authorities relating to like cases (570 572):
4. A primá facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the court judicially that the will propounded is the last will of a free and capable testator.
5. A man may freely make his testament, how old soever he may be, for it is not the integrity of the body, but of the mind, that is requisite in testaments.
6. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances.
7. As instances of such material circumstances may be mentioned (a) The nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) The exclusion of persons naturally having a claim upon the testator; (c) Extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence, taking a substantial benefit.
8. Once the proponent establishes a primá facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.
9. To displace a primá facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.
10. The opinion of witnesses as to the testamentary capacity of the alleged testator is usually, for various reasons, of little weight on the direct issue.
11. While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the court must judge from the facts they state, and not from their opinions.
12. Where instructions for a will are given on a day antecedent to its execution, the former is, by long established law, the crucial date.
(Numerous footnotes and references omitted)
84 Hasluck J addressed the same issue in Roebuck v Smoje [2000] WASC 312 where his Honour observed [86]:
The law requires that the testator be of sound disposing mind both at the time when the instructions for the Will are given and when the Will is executed. If the Will is shown to have been drawn in accordance with instructions given while the testator was of sound disposing mind, it is sufficient that, when he executes it, he appreciates that he is being asked to execute as his Will a document drawn in pursuance of those instructions, though he is unable to follow all its provisions: Williams on Wills (5th ed) at 24.
Once the proponent establishes a prima facie case, then the burden of proof lies upon the party impeaching the Will to show that it ought not to be admitted to proof.
The reasoning of the High Court in Bailey v Bailey (supra) suggests that where there are no suspicious circumstances, the requisite knowledge and approval of the testator will be presumed by the Court from the due execution of the Will. Also see West Australian Trustees v Holmes [1961] WAR 144.
87 I am satisfied that the will of Jean Wishart made 29 March 1999 is a valid will made by the testatrix at a time when she was possessed of all requisite testamentary capacity and that in all respects it complies with the requirements of s 8 of the Wills Act. The principal question in these proceedings is whether or not it has been revoked by either of the 2001 wills.
88 From November 2002 Mrs Wishart showed typical signs of dementia and scored 21 on the MMSE conducted by Dr Holloway in December of 2002, indicating that at that date she would be unlikely to have had testamentary capacity. The plaintiff and Mr John Mison were appointed joint plenary administrators of her estate by the Guardianship and Administration Board on 19 December 2003. She had consistently expressed the importance to her of her children and their wellbeing yet the two 2001 wills make no provision for those children. With regard to the preparation of each of the 2001 wills it is evident that, despite preparing some drafts, in incomplete and different terms, the solicitors engaged by Mr Willoughby, Messrs Norton & Smailes, did not prepare either of those wills. The instructions for the preparation of the first will were given to Norton & Smailes by Mr Willoughby and it seems that he must have prepared the final version of each of the two wills. The solicitors never met with Mrs Wishart and there is no record of them receiving any direct or specific instructions about the contents of the wills from her. The only reference to any communications between these solicitors and Mrs Wishart are of two telephone conversations between Mrs Wishart and a solicitor in that firm, but there is no record of the conversations and no recollection of the terms of the conversations.
89 The terms of the two wills are markedly different from Mrs Wishart's previous wills of 1978 and 1999 which contained detailed provisions for the creation of a trust to provide for the children for their lives, with the remainder to charity. It is also evident that the relationship between the late Mr Willoughby and the deceased was that he was her advisor on important financial matters and he appears to have been the principal person in whom she reposed trust.
90 The evidence discloses that Mrs Wishart had little appreciation of the extent of her wealth while at Hollywood Village and all the indications are that she allowed Mr Willoughby to have special influence in the determination of all her business, financial and everyday affairs, so much so that this produced concern and suspicion by Dr Holloway and Mr Brown and unease by Ms Mattich when she learned of the contents of the 2001 wills. It is also the case that, for whatever reason, Mrs Wishart and Mr Willoughby became secretive about the contents of the 2001 wills and declined to have them disclosed to Mr Brown at a time when he was joint attorney with Ms Mattich for Mrs Wishart's affairs. While there might perhaps have been reasons to keep the contents of those wills private, the fact that the secrecy was supported and influenced by Mr Willoughby, who was the sole beneficiary under the two wills, is clearly a matter for considerable concern, more so when such apparent profound changes were to be implemented by these new wills, which lacked any provision for either of the two disabled adult children who were so much in need of care and financial support and for whom there was every reason to expect that their mother would make generous provision.
91 In Theobald On Wills (16th ed, 2001) at 317 there is the following passage which, with respect, I am satisfied is a correct statement of the law:
If a will was prepared and executed under circumstances which raise a wellgrounded suspicion that the will (or some provision in it, such as the residuary gift) did not express the mind of the testator, the will (or that provision) is not admissible to probate unless that suspicion is removed by affirmative proof of the testator's knowledge and approval: Tyrrell v Painton [1894] P 151 at 159; Wintle v Nye [1959] 1 WLR; In the Estate of Fuld (No 3) [1968] P 675 and 712. A classic instance of suspicious circumstances is where the will was prepared by a person who takes a substantial benefit under it. Barry v Butlin (1838) 2 Moo.V.C. 480; Paske v Ollat (1815) 2 Phillim.223 (among others). Another instance is where a person has acted in procuring the execution of a will under which he takes a substantial benefit Fulton v Andrew (1875) 7 H.L. 448 at 471 472 by, for instance, suggesting the terms of the will to the testator and instructing a solicitor chosen by that person.
However circumstances can only raise a suspicion of want of knowledge and approval if they are 'circumstances attending, or at least relevant to, the preparation and execution of the will itself': Re R [1951] P10 at 17 and In the Estate of Musgrove [1927] P 264.
(From the above quotation a number of additional references and footnotes have been omitted see original work)
92 In this present case, as already observed, no person is seeking to prove either of the 2001 wills or is claiming any benefit under either of them. That of itself would provide grounds to allow probate to be granted of the 1999 will: Re Grey Smith [1978] VicRp 56; [1978] VR 596 and In the Estate of the late Leo Rene Raig [2006] ACTSC 96; Thornhill v Thomas [2010] WASC 297; Hoare v Reyburn [2010] WASC 301 [11]; The Estate of Kirs (deceased) (1990) 55 SASR 61; and Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1.
93 However, in this present case, I am satisfied that there are circumstances of suspicion which refute the presumptions of testamentary capacity, knowledge and understanding by the testatrix and lack of undue influence which would otherwise arise from the fact that each of the 2001 wills appears to have been duly executed by the testatrix in the presence of the two subscribing witnesses.
94 In these circumstances, I am satisfied that there is every reason for the plaintiff, Mr Brown, to decline to seek proof of either of the 2001 wills in both of which he is named the sole executor. He has discharged his obligation in respect of those wills by having them produced to the court and providing as much evidence as could be obtained relating to the circumstances of their execution the lack of which, in view of the paucity of the information on the files of the solicitors Norton & Smailes and their lack of recollection of events, is itself another suspicious circumstance.
95 No person having an interest under either of the 2001 wills, in the events which happened and on the face of those wills, that being the defendant, Mrs Anne Willoughby, is making any claim or to entitlement pursuant to either of them. Nor in the event that there may have been some secret trust upon which the benefit under either of those wills was to be held by the residuary beneficiary have potential beneficiaries of such a secret trust, being the children of the deceased and the charities, advanced any such claim. The Public Trustee being one of several bodies able to advance such a claim is satisfied to support the claim by the plaintiff for proof of the 1999 will.
96 Having regard to all these facts, the court should pronounce in solemn form of law that the will of Jean Wishart dated 29 March 1999 is the last will of the deceased and has not been revoked. Probate of that will should be granted to the plaintiff as one of the two executors named in the will, the other, Joanne Mattich, having renounced any entitlement to apply for probate. The terms of the grant should be settled by a Probate Registrar with liberty to apply to the court in the event of any issue as to those terms arising.
97 As the order appointing Messrs Brown and Mison as joint administrators of the estate of the deceased made by Master Sanderson on 22 October 2009 was, despite the absolute nature of its terms, plainly intended to operate pending any final grant of probate or other representation, the court should also order that, upon the grant of probate in solemn form issued from the Registry, the appointment of the joint administrators shall cease.
98 Unless there be submissions to the contrary, I am disposed to make an order that the costs of these proceedings should be paid out of the estate.
(1954) 94 CLR 231
(1902) 1 IR 172
(1988) 14 NSWLR 698
(1924) 34 CLR 558
(1990) 55 SASR 61