DIEDLER -v- BOROWIEC [2021] WASC 394 (11 November 2021)

4 These reasons concern Ms Borowiec's application for summary judgment. For the reasons set out below, Ms Borowiec's application for summary judgment is refused.

An overview of the cases pleaded and the procedural history The plaintiffs' case

5 When the proceeding was commenced and the writ indorsed with a statement of claim was filed, Mr and Ms Diedler were not represented. They pleaded as follows.

6 The deceased was born in Poland on 23 September 1920 and died on 7 December 2018. He emigrated from Poland to Western Australia in 1949.

7 At his death, the deceased was domiciled and owned property in Western Australia, including a property described as the 'Cookham Road Property'.

8 On 4 January 1981, the deceased made a will (1981 will), in which he named his wife, Ms Grzeczny, the executor of his estate. Ms Grzeczny predeceased the deceased.

9 Ms Borowiec is the daughter of the deceased and Ms Grzeczny. It is pleaded that Ms Borowiec is a beneficiary under the 1981 will.

10 On 29 September 2017, the deceased made a will (2017 will). The 2017 will named the Public Trustee of Western Australia as executor.

11 On 17 September 2018, the deceased made the 2018 will, which was prepared for him by the Public Trustee and named the Public Trustee as executor. The 2018 will was executed by the deceased in the presence of Narelle Helen Pierce and Diana Arine Williams, then solicitors employed by the Public Trustee.

12 By cl 1 of the 2018 will, the deceased revoked all previous wills and codicils, thereby revoking the 1981 will and the 2017 will.

13 Clause 6 of the 2018 will provides for a gift of $20,000 to Stephen John Hayes, should he survive the deceased.

14 Clause 7 of the 2018 will provides for a gift of $20,000 to Thomas William Austin, should he survive the deceased.

15 Clause 8 of the 2018 will provides for a gift of $20,000 to Kenneth Charles Austin, should he survive the deceased.[1]

16 Clause 9 of the 2018 will provides for a gift of $200,000 to the Roman Catholic Archbishop of Perth upon trust for the charitable purposes of St Augustine's Catholic Church in Rivervale, Western Australia.

17 Mr and Ms Diedler are named as residuary beneficiaries of the deceased's estate in cl 10 of the 2018 will.

18 The Public Trustee has filed in the probate division of this court a renunciation of all right and title to the probate and administration of the 2017 will and the 2018 will (recorded as REN 31 of 2019).

19 On 18 September 2019, Ms Borowiec applied to the probate division of this court for a grant of letters of administration with the 1981 will annexed (known as PRO 5489 of 2019).

20 On 14 October 2019, Mr and Ms Diedler applied to the probate division of this court for a grant of letters of administration with the 2018 will annexed (known as PRO 5961 of 2019).

21 Mr and Ms Diedler plead that by a letter to their solicitors and to the solicitors for Ms Borowiec dated 4 December 2019, a registrar stated that the probate division of this court would grant letters of administration with the 1981 will annexed to Ms Borowiec unless, by 18 December 2019, Mr and Ms Diedler commenced contentious proceedings for proof of the 2018 will in solemn form.

22 Mr and Ms Diedler plead that the 2018 will is valid and effective and is the last will of the deceased.

23 As to the position of the specific beneficiaries under the 2018 will, Mr and Ms Diedler plead that first, Mr Hayes does not wish to become involved in contentious proceedings in relation to the gift to Mr Hayes under the 2018 will. Secondly, Mr and Ms Diedler have been unable to locate Mr Thomas Austin in order to determine whether or not he wishes to become involved in contentious proceedings in relation to the gift to him under the 2018 will. Thirdly, Mr and Ms Diedler have been unable to locate Mr Kenneth Austin in order to determine whether or not he wishes to become involved in contentious proceedings in relation to the gift to him under the 2018 will. Fourthly, the Roman Catholic Archbishop of Perth does not wish to become involved in contentious proceedings in relation to the gift under the 2018 will.

24 Finally, Mr Diedler pleads that he seeks the grant of letters of administration with the 2018 will annexed in order to distribute the estate of the deceased according to the terms of the 2018 will; and Ms Diedler consents to the same.

25 A memorandum of appearance was filed on behalf of Ms Borowiec on 24 December 2019, and a defence and counterclaim was filed on her behalf on 28 January 2020.

26 In short, while Ms Borowiec admits that the deceased made the 1981 will and that she is a beneficiary, she says that she is only a beneficiary by reason of intestacy (or partial intestacy) such that, given Ms Grzeczny died in 2015, the deceased's estate must be distributed in accordance with s 14 of the Administration Act 1903 (WA).

27 Further, while Ms Borowiec admits that the deceased made the 2017 will and the 2018 will, she denies that the 2017 will and 2018 will are valid as she says the deceased did not have testamentary capacity when each will was executed as, at the relevant times, the deceased was acting under influence of delusion or unreasoning prejudice to such an extent that he was deprived of his testamentary capacity.

28 By way of particulars, Ms Borowiec says that the deceased presented with delusional disorder from at least 2015; following a home visit by a medical practitioner in or about July 2018, the deceased was diagnosed with delusional disorder; and in or about the time of executing the 2018 will, the deceased voiced paranoid ideation with respect to Ms Borowiec.

29 Ms Borowiec pleads that neither of the plaintiffs are entitled to a grant of letters of administration with the 2018 will annexed as the 2018 will is invalid by reason of the deceased's lack of testamentary capacity at the time the 2018 will was executed.

30 By her counterclaim, Ms Borowiec pleads that the 1981 will was executed in accordance with s 8 of the Wills Act 1970 (WA); it is the only valid will of the deceased; and the court should pronounce the validity of the 1981 will. Among other things Ms Borowiec seeks a declaration pronouncing the force and validity of the 1981 will of the deceased; and an order that the probate registrar issue a grant of letters of administration with the 1981 will annexed to Ms Borowiec.

The plaintiffs' reply to the first defendant's defence and defence to the first defendant's counterclaim

31 Mr and Ms Diedler were represented in this proceeding when they filed their reply and defence to the first defendant's counterclaim. In summary, Mr and Ms Diedler joined issue with Ms Borowiec's defence and deny that the deceased lacked testamentary capacity when he made his 2018 will.

32 Mr and Ms Diedler plead that the 2018 will satisfies the requirements of the Wills Act. Further, they plead that the dispositions made under the 2018 will are not irrational on their face because they are in alignment with the previously stated wishes of the deceased and any variances from those previously stated wishes were carefully and wilfully decided by the deceased about the time he made the 2018 will.

33 On 11 February 2020, the plaintiffs were granted leave to file and serve and amended writ of summons joining Mr Goode as second defendant to the proceeding. An amended writ of summons was filed on 25 February 2020, and a memorandum of appearance was filed on behalf of Mr Goode on 27 February 2020. No amendments were made to the statement of claim indorsed on the amended writ.

34 Although Mr Goode did not file a counterclaim, he pleads that the 1981 will created an intestacy and pursuant to s 14(1) and (2b) of the Administration Act, he and Ms Borowiec are entitled equally to the deceased's estate. He appears to support a grant of letters of administration with the 1981 will annexed.

35 Mr Goode pleads that on or before 29 September 2017 and thereafter, the deceased lacked testamentary capacity to make a will rendering any purported will of no legal effect. By way of particulars, Mr Goode says that the deceased suffered paranoid delusions influencing his testamentary dispositions; and/or, the deceased lacked the mental capacity to comprehend and appreciate the claims of Ms Borowiec and/or Mr Goode upon his estate.

The plaintiffs' reply to the second defendant's defence

36 In summary, Mr and Ms Diedler join issue with Mr Goode's defence and deny that the deceased lacked testamentary capacity when he made his 2018 will.

37 Again, Mr and Ms Diedler say that the 2018 will satisfies the requirements of the Wills Act. Further, they say that the dispositions made under the 2018 will are not irrational on their face because they are in alignment with the previously stated wishes of the deceased and any variances from those previously stated wishes were carefully and wilfully decided by the deceased about the time he made the 2018 will.

38 The proceeding was case managed by a registrar. By order of the case management registrar, the parties in early April 2020 filed and served affidavits verifying a list of documents in their respective possession, custody or control that are relevant to facts in issue.

The affidavit of scripts and assets and liabilities

39 By a case management order, on 17 February 2020 Ms Borowiec made and subsequently filed an affidavit of scripts, to which she attached a copy of the 1981 will, the 2017 will, the 2018 will, and an unsigned copy of a document purporting to be a will of the deceased dated 31 October 2014.

40 Further, on 29 June 2020 Ms Borowiec made and filed an affidavit verifying the assets and liabilities of the estate, valuing the estate at over $1.6 million.

41 The parties attended mediation in July 2020, which failed to resolve the issues in dispute. Orders were subsequently made by a case management registrar in preparation for trial. They included an order made on 15 September 2020 granting leave to the parties to adduce expert evidence at the trial in relation to the testamentary capacity of the deceased at the date of making the 2018 will.

42 It was ordered that subject to any further order of the trial judge, the evidence in the trial be given orally with the parties providing witness outlines for each witness they intend to call. The exception to the order was that Mr and Ms Diedler were to file and serve sworn affidavits of the evidence-in-chief of their witnesses on or before 13 October 2020. Affidavits sworn by Mr and Ms Diedler were filed on 15 October 2020. I understand they are presently intended to be their evidence-in-chief at trial.

43 On 9 October 2020 and at the request of Mr and Ms Diedler, subpoenas to produce documents were issued by the court to the proper officers of Kooyong Medical Services; Royal Perth Hospital; Bentley Older Adult Mental Health Service; together with a subpoena addressed to Dr Lee Lee Tan. In general terms, by the subpoenas Mr and Ms Diedler sought production of documents relating to the health, medical condition and care of the deceased from 1 January 2010 to 7 December 2018.

44 On 3 November 2020, orders were made for the defendants to file and serve a schedule of objections to Mr and Ms Diedler's affidavits filed on 15 October 2020; and for Mr and Ms Diedler to file and serve a schedule of responses to the defendants' schedule of objections specifying what objections, if any, were conceded.

45 The registrar further ordered that no party was to provide copies of any of the material returned pursuant to the plaintiffs' subpoenas, or any description of the content or substance of that material, or content of the plaintiffs' affidavits to any third party without further court order. The solicitors for the parties were ordered to confer regarding admissibility of affidavit material and subpoenas documents to be provided to any expert witness. It would appear that by this case management order, from 3 November 2020 the parties were restricted from instructing an expert or experts on the basis of the plaintiffs' evidence and the materials returned pursuant to the subpoenas issued by the court at the request of the plaintiffs.

46 On 1 December 2020, a registrar made orders which included an order that Ms Borowiec file and serve any application for summary judgment by 15 December 2020; and an order that the defendants file and serve any application to strike out all or part of the plaintiffs' affidavits by 15 December 2020.

47 An application for summary judgment was filed on behalf of Ms Borowiec by a chamber summons filed on 15 December 2020, with a memorandum of conferral pursuant to the RSC O 59 r 9.

48 The application was supported by the affidavit of Ms Borowiec sworn on 14 December 2020 which, subject to objections taken and upheld, was read at the hearing of the application. For convenience and clarity, the successful objections taken in relation to Ms Borowiec's affidavit are set out at sch A to these reasons.

49 The application for summary judgment was listed for directions before the learned Master on 19 January 2021, together with the application made on behalf of Mr Goode (which is described in more detail below). Orders were made programming the applications for hearing, which contemplated the filing of any affidavit by the plaintiffs in opposition to the summary judgment application by 5 February 2021. The learned Master also partially discharged the order of the registrar made on 3 November 2020 described at [45] above.

50 A written outline of submissions was filed on behalf of Ms Borowiec on 19 February 2021. At the hearing of the summary judgment application, counsel for Ms Borowiec referred to and relied upon that written outline.

51 An affidavit was sworn by Mr Diedler and filed on 10 February 2021 in opposition to the summary judgment application, which was read at the hearing of the application. At the hearing of the application, counsel for the plaintiffs also referred to and read the affidavits of Mr and Ms Diedler intended to be their evidence-in-chief at trial, each sworn on 15 October 2020, and relied upon a written outline of submissions filed on 8 March 2021.

52 An application to strike out parts of the affidavits of Mr and Ms Diedler filed on 15 October 2021 was filed on behalf of Mr Goode on 22 December 2021, with a memorandum of conferral pursuant to the RSC O 59 r 9. The application was supported by the affidavit of Mr Goode sworn 21 December 2020, in which he deposes to the reasons the delay in making that application.

53 The application for summary judgment and the application to strike out were programmed by the learned Master to a special appointment.

54 At the special appointment, it appeared to be common ground between the parties that Ms Borowiec's application for summary judgment would be heard and determined first in time.[2] It was assumed that if judgment were entered as sought by Ms Borowiec, then the plaintiffs' claim against Mr Goode must also fall away and it would be unnecessary to determine Mr Goode's application to strike-out parts of the affidavits of Mr and Ms Diedler intended to be admitted as their evidence at trial.

55 At the hearing of the application for summary judgment, counsel for Mr Goode sought to take an active role in the hearing of Ms Borowiec's application and press for the summary determination of the proceeding, despite the second defendant not having applied for summary judgment. As Mr Goode had not made his own application, the request was refused.

56 These reasons only concern Ms Borowiec's application for summary judgment.

57 This proceeding is a probate action for the purposes of the RSC O 73.[3] While the RSC O 73 applies to probate causes and matters, the rules of the court generally apply to those causes or matters subject to the provisions of O 73.[4]

58 The RSC O 73 does not address summary judgment and an application for summary judgment pursuant to the RSC O 16 r 1(1) must be made within 21 days after appearance, or at any later time by leave of the court. Ms Borowiec did not make her application within the time prescribed and sought leave.

59 The time limit clearly reflects a policy view that such applications should be brought at an early stage in a proceeding, and before too much expense has been incurred.[5]

60 It is also well established that there are no set guidelines as to when leave to apply for summary judgment out of time will be granted. The court has a broad discretion to grant leave out of time, and the burden is on the applicant to show the delay is justifiable in all of the circumstances.[6]

61 In deciding whether or not to extend time, it is necessary to have regard to the history of the proceeding, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant and refusal of the application for the extension of time.[7]

62 The prospects of the application will be relevant. To proceed to trial, with the expense that that may incur, when there is no defence to an action, or where an action pursued by counterclaim has no prospect of succeeding, would of itself be contrary to modern principles of case management. Thus, where an application has some merit, the requirements for leave will not ordinarily be demanding.[8]

63 Prejudice to the other party occasioned by the delay in bringing the application, will also be relevant.[9]

64 The cause of Ms Borowiec's delay was addressed by Ms Borowiec in her affidavit sworn on 14 December 2020, particularly at par 21 where she deposes:

Reasons for bringing this application more than 21 days after entering an appearance

21. I am bringing this application now because:

1. Each of the Plaintiffs have filed Affidavits setting out their evidence in chief; and

1. I have inspected documents obtained under Subpoenas issued by the Plaintiffs.

65 Ms Borowiec further deposes at par 22 of her affidavit that she holds 'the view that the Plaintiffs' action is frivolous and that their claim has no merit'.

66 Counsel for Ms Borowiec referred to the procedural history of this matter as a justification for the delay, particularly the listing of the mediation in July 2020 and the change in the first and second plaintiffs' representation in July and August 2020, respectively.[10]

67 It was submitted that a summary judgment application was foreshadowed on behalf of Ms Borowiec at a case management hearing on 15 September 2020. Counsel further submitted that the foreshadowed application was delayed for the plaintiffs to gather medical evidence by way of subpoena (which evidence is relied on by Ms Borowiec as a basis for the grant of summary judgment in her favour).

68 It was the submission of counsel for Ms Borowiec that the substantial delay in bringing the summary judgment application was to enable mediation between the parties. Further, the subsequent delay was to accommodate the new solicitors for the plaintiffs as they familiarised themselves with the proceeding; to allow for the potential for further engagement in mediation; and for the plaintiffs to satisfy themselves that they had had an opportunity to explore all available avenues for bolstering their case.

69 Counsel for Ms Borowiec submitted that delays in bringing a summary judgment application while parties are negotiating to resolve the action should not weigh heavily against the grant of leave to bring the application in the event of the failure of those negotiations. It was submitted that a contrary view may lead to applications for summary judgment being commenced unnecessarily, merely to hold this option open as of right.[11]

70 It was submitted that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties,[12] and in the circumstances of this case, it is just to both parties that the court intervene to prevent this matter proceeding to a trial of the issues.

71 I note that while counsel made such submissions by reference to the procedural history of this matter, the motivations described were not deposed to.

72 The grant of leave was opposed by the plaintiffs. They complained that there had been significant delay in bringing the application.

73 Counsel for the plaintiffs also complained that some of the evidence relied upon by Ms Borowiec in the application were documents produced by third parties in response to subpoenas issued by the court at the request of the plaintiffs.

74 Counsel did not go so far as to contend that it was improper for Ms Borowiec to rely upon such documents,[13] but rather, that Ms Borowiec should not be granted an extension of time where the application is supported by material acquired by the efforts of the plaintiffs in preparation for trial, in circumstances where that preparation is incomplete.

75 The policy view that applications for summary judgment should be brought at an early stage in a proceeding, and before too much expense has been incurred, weighed against the grant of leave in this case. There had been a significant delay.

76 I have not refused leave on the ground of delay alone. Rather, the application for leave was considered contemporaneously with the substantive application and the substantive merits were weighed in the balance.

77 The application for summary judgment is to be determined by reference to the principles summarised by Pritchard J in Gerovich v Gerovich [2018] WASC 153 at [26] - [33], which are reproduced below:

[26] Order 16 r 1 RSC requires the Court to be satisfied either that the action is frivolous or vexatious, or that the defendant has a good defence on the merits, or that the action should be disposed of summarily.

[27] The principles in relation to the determination of applications for summary judgment are well established. A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial. In other words, the question is whether, on the material before the Court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail.

[28] However, that does not mean that summary judgment will be given only where the case is so hopeless as not to require argument. Extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed.

[29] A defendant bringing a summary judgment application bears the legal onus of establishing that there is no serious question to be tried on any cause of action raised by the plaintiff. Under O 16 r 1(2), the defendant is required to file an affidavit verifying the facts upon which the application is based.

[30] The plaintiff is also entitled, under O 16 r 2, to file an affidavit to show cause against the application. If the plaintiff shows cause against the application for summary judgment by filing an affidavit in response, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. In other words, the plaintiff needs to show, on the evidence, that there exists a 'triable issue'. In doing so, the affidavit must 'condescend upon particulars' - that is, it must set out facts which establish that it is reasonable to permit the plaintiff to pursue the action.

[31] However, while the plaintiff may assume an evidentiary onus, the defendant retains the legal onus of demonstrating that there is no real question to be tried.

[32] Actions should not be disposed of summarily when the facts are in dispute. Where there is a conflict on the affidavit evidence, the Court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting the application for summary judgment ... will ultimately be accepted at trial.

[33] The Court has power, whether under O 16 RSC or pursuant to its inherent power, to summarily dismiss a part of a claim. (footnotes omitted)

78 In determining Ms Borowiec's application, I have adopted and applied these principles.

79 Counsel for Mr and Ms Diedler submitted, and I accept that an application made pursuant to the RSC O 16 confines the plaintiff to the causes of action pleaded in the statement of claim.[14] Further, I accept that one of the matters the court must take into account is the denial to the plaintiffs of the opportunity to take advantage of the usual interlocutory processes.[15]

80 In determining this application, I proceeded on the basis that Ms Borowiec bore the legal onus of establishing that there was no serious question to be tried on any cause of action raised by Mr and Ms Diedler; and that the legal onus remained with Ms Borowiec even where Mr and Ms Diedler, by filing an affidavit in response, assumed an evidentiary onus to show why summary judgment should not be given.

81 I proceeded on the basis that once it appeared that there was a real question, whether of fact or law, on which the rights of the parties depended, the action should not be dismissed as frivolous or vexatious.[16]

82 While the RSC O 16 r 1(1) does not contain a 'some other reason for trial' ground for refusal (in contrast to the RSC O 14), I proceeded on the basis that the court may take forensic and interest of justice considerations into account when determining an application made pursuant to the RSC O 16.[17]

The submissions made on behalf of the first defendant

83 It was submitted on behalf of Ms Borowiec that the plaintiffs' case is dependent on the presently unpleaded presumption that the deceased had testamentary capacity when the 2018 will was drafted and/or executed.

84 Ms Borowiec's defence to the plaintiffs' claim is that the deceased did not have testamentary capacity when the 2018 will was drafted and/or executed, because the deceased was acting under the influence of delusions or unreasoning prejudice to such an extent that he was deprived of testamentary capacity.

85 Counsel noted that the plaintiffs had not pleaded any material facts in support of their global denials that the deceased lacked testamentary capacity, and that Ms Borowiec did not know of any reasonable basis on which Mr and Ms Diedler denied that the deceased presented with and was diagnosed with delusional disorder from 2015.

86 Counsel noted that Mr and Ms Diedler had not advanced any positive medical evidence that the deceased had capacity at the relevant dates.

87 Counsel for Ms Borowiec submitted that that the presumption of capacity cannot survive the unchallenged evidence that the deceased was diagnosed with a longstanding delusional disorder which was observed to be relevantly affecting his mind at the time that he made the 2018 will.

88 It was submitted that the plaintiffs' evidence, taken at its highest, cannot support a finding that the deceased had a mind free from a disorder that poisoned his affections for Ms Borowiec. Further, their evidence does nothing to contradict the unchallenged evidence of each of the deceased's treating practitioners that the deceased was suffering a disorder of the mind in 2018 that caused him to think that Ms Borowiec was a practitioner of witchcraft who was trying to kill him.

89 It was also submitted that expert evidence cannot change the now known outcome of this matter as the documentary evidence secured through subpoena is determinative. It was submitted that no expert evidence could now ground a finding that on the balance of probabilities, the deceased had capacity when he made the 2018 will, and therefore the plaintiffs' case is doomed to fail.[18]

Applicable principles relating to testamentary capacity

90 Counsel for Ms Borowiec summarised the legal principles relating to testamentary capacity in the following terms, largely drawing upon the cases referred to in the decision of Curthoys J in Stewart v Stewart [2019] WASC 432 [13] - [14].[19]

91 Counsel submitted that the starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a 'free and capable' testator.

92 If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent.

93 Counsel noted that 'rational on its face' does not appear to be a term of art, and that there does not appear to be any cases in which the term 'rational on its face' had been deconstructed by any higher court. It was submitted that to be 'rational on the face of the will', the language of the will is in accordance with apparent reason or logic.

94 Counsel noted that the burden of convincing the court that the 2018 will is rational rests with Mr and Ms Diedler.

95 Counsel submitted that in any event, the presumption of mental competence may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity, and such circumstances shift the evidential burden back to the party propounding the will to show that the testator was of 'sound disposing mind'.

96 Where, in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the party propounding the will to show that the deceased's mental state did not influence the will.

97 In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, and its exclusion or non-exclusion of beneficiaries. A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation.

98 Counsel for Ms Borowiec submitted that there was unchallenged medical evidence before the court that at the time of making the 2018 will, the deceased was subject to paranoid delusions. Counsel referred the court to the documentary evidence attached to the affidavit of Ms Borowiec from different sources, which she submitted remained unchallenged by any evidence advanced by the plaintiffs.

99 Counsel referred to a letter dated 8 February 2019, under cover of which the Bentley Older Adult Mental Health Service produced a report for the benefit of (and at the request of) the Coronial Investigation Squad investigating the death of the deceased,[20] which among other things, recorded the following.

100 First, the deceased was referred to the Bentley Older Adult Mental Health Service by his GP, Dr Bryan Meyerkort, on 18 July 2018, on which occasion he 'was accusing [Ms Borowiec] of stealing his personal items and entering his home by flying through the lounge window'.

101 Secondly, the deceased was seen in his own home by Dr Tan and Mr Reece on 23 July 2018 for home assessment, during which he disclosed that 'he believed [Ms Borowiec] had poisoned his soup, stolen personal items and was entering the house using witchcraft'.

102 Thirdly, the deceased presented as warm and reactive, and demonstrated self-care. The assessment found him to be functioning adequately on his own and did not identify risks to his safety or health.

103 Fourthly, the deceased stated the intention to change his will because of his belief that [Ms Borowiec] was trying to poison him.

104 Counsel also referred to a letter dated 5 March 2019 from the deceased's general practitioner, Dr Bryan Meyerkort, addressed to the Public Trustee in response to its enquiry about the deceased's testamentary capacity in 2018,[21] which among other things, recorded the following.

(a) Dr Meyerkort was first aware of the deceased's paranoid delusions on 1 October 2015.

(b) On 21 August 2017 the deceased reported further ongoing delusions.

(c) On 1 August 2018 the deceased was assessed by Dr Tan at the Bentley Older Mental Health Clinic, who confirmed delusional disorder.

105 Counsel also referred to a letter dated 1 August 2018, in which Dr Tan, a Psychiatrist, wrote that the deceased:[22]

... presents with at least 6 years history of delusion thought content that his soup being poisoned by his wife who has since passed away. He is delusional that his daughter is a witch and is performing witchcraft on him. He believes that she puts poison his soup because he became unwell after consuming some soup that she made for him.

106 Counsel particularly referred to Dr Tan's observation was that the deceased was 'able to build good rapport and maintain good eye contact' notwithstanding that he 'has delusional thought that his daughter is a witch and she comes in at night to swap his rubbish or steal his car keys and some photos'. Counsel further referred to the observation made by Dr Tan that the deceased 'seems pretty functional' and 'scored well on MMSE'; and she recommended that the deceased '... commence on very low dose antipsychotic such as risperidone 0.25mg nocte for delusional disorder ...'.[23]

107 Counsel for Ms Borowiec submitted that the medical evidence that the deceased had a delusional disorder that was particularly manifesting itself in or around July to August 2018 was unchallenged by any evidence adduced by the plaintiffs. Rather, it was entirely consistent with the evidence of the plaintiffs that:

(a) their relationship with the deceased changed markedly in or about 16 July 2018,[24] and that the deceased first raised the possibility of changing his will in August 2018;[25]

(b) they heard the deceased say that Ms Borowiec had brought him soup that made him feel ill, and that he had subsequently argued with her over her unwillingness to eat the soup;[26] and

(c) they saw Ms Borowiec tasting the hospital food that had been provided for the deceased.[27]

108 Counsel submitted that the medical evidence is not only to the effect that the deceased had a long history of delusional disorder, but also that he manifested particular signs of that disorder that were directed at Ms Borowiec. The first defendant contends that those signs directed at her commenced in or around July 2018, and continued to the date on which the 2018 will was executed. It was submitted that the evidence of the medical records and that of the plaintiffs is that there was a clear connection between the delusions suffered by the deceased and his decision to change his will to exclude Ms Borowiec from his will.

109 Ms Borowiec contends that on the evidence, the presumption of capacity is clearly displaced, and the burden of proving capacity falls squarely on the parties propounding the 2018 will (that is, Mr and Ms Diedler). She says that the evidence of the plaintiffs, taken at its highest, cannot discharge that burden.

110 It was submitted that in this case, there is no question or fact or law to determine at trial. Ms Borowiec's position is that the facts within the knowledge of the plaintiffs are consistent with the unchallenged evidence of the medical records and admit of only one conclusion - that the deceased had, in fact, been diagnosed with delusional disorder prior to completing the 2018 will, and there had been no observed improvement in his condition between the diagnosis and his execution of the 2018 will. Further, the evidence of the plaintiffs if established cannot establish that the deceased had capacity.

The submissions made on behalf of the plaintiffs

111 I understood it to be common ground as between the parties that the issue of whether a testator had sufficient mental capacity to make a will is one of fact. As to the legal principles relating to testamentary capacity, I did not understand for there to be any significant disagreement as between the parties, rather there were differences as to emphasis and the application of the principles to the evidence and circumstances of this probate action.

112 Notably, counsel for Mr and Ms Diedler accepted that a mental delusion which has influenced a testator's testamentary dispositions will invalidate a will.[28]

113 Counsel for Mr and Ms Diedler sought to emphasie the nature of the probate jurisdiction and the role of the court when exercising that jurisdiction. Counsel submitted that the court exercising probate jurisdiction may be under a duty or, at least, at liberty to investigate the circumstances of a case independently of allegations and counter‑allegations of particular parties who appear before the court. In this regard, counsel for the plaintiffs referred to the decision of Lindsay J in Boyce v Bunce [2015] NSWSC 192 at [60]. It is helpful to have regard to [58] ‑ [60], reproduced below.

58 Part of the machinery of judicial decision-making designed to address the essential question whether a particular document was the last will of a free and capable testator, probate presumptions are a means to that end, not an end in themselves.

59 That they do not displace the necessity for the Court to focus on the essential question is confirmed by traditional language of probate judges:

(a) calling upon a court of probate to exercise vigilant care and circumspection in investigating a case, and not to grant probate without full and entire satisfaction that an instrument propounded as a will did express the real intentions of the deceased (Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480 at 485; [1838] EngR 1056; 12 ER 1089 at 1091); and

(b) speaking of a need to 'satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator' (Tyrrell v Painton [1893] UKLawRpPro 56; [1894] P 151 at 157).

60 Although the final hearing of a probate suit ordinarily exhibits some of the trappings of an adversarial, common law trial of a claim of right, an exercise of probate jurisdiction retains its historical origins in the inquisitorial tradition of English ecclesiastical courts. That is illustrated: (a) by statements made by probate judges about the court being under a duty or, at least, being at liberty to investigate the circumstances of a case independently of allegations and counter-allegations of particular parties who appear before it (In the Estate of Fuld, Deceased (No 3) [1966] 2 WLR 717 at 757G-H; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171; 121 SASR 174 at [38]; Docking v Schwarzkopf [2015] SASC 18 at [8]; In the Estate of Leona Johnson (Deceased) [2015] SASC 51 at [11]); and (b) in recognised departures in probate cases from the ordinary rule that 'costs follow the event' in civil litigation (Re Estate of Hodges, Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 709D-710B; Shorten v Shorten (No 2) [2003] NSWCA 60 at [14] - [27]; Shovelar v Lane [2011] EWCA Civ 802; [2012] 1 WLR 637; [2011] 4 All ER 669 at [44]). There is a strong public interest element in probate proceedings that precludes their characterisation as purely adversarial in character.

114 Counsel for the plaintiffs submitted that at least in the context of the present case, a duty or liberty to investigate is consistent with the 'interests of justice' considerations that may be borne in the balance of an application for summary judgment (discussed at [82] above).

115 It was submitted that the plaintiffs' evidence supports a finding that the deceased had testamentary capacity at the time he executed the 2018 will. Counsel for the plaintiffs sought to emphasise the following.

116 First, the 2018 will was prepared by the Public Trustee who arranged for its execution. This gives rise to (in effect) a presumption of testamentary capacity.

117 Secondly, there were rational reasons for the deceased to make a gift to Mr and Ms Diedler under the 2018 will:

(a) Prior to 15 July 2018, Mr and Ms Diedler had been friends (albeit not close) with the deceased and his wife.[29]

(b) After 15 July 2018, Mr and Ms Diedler became close friends with the deceased and assisted him in the way that adults often do for elderly relatives.[30]

(c) There were rational reasons for the deceased to exclude Ms Borowiec as a beneficiary under the 2018 will.[31]

(d) There were rational reasons for the deceased to exclude Mr Goode as a beneficiary under the 2018 will.[32]

(e) The deceased appeared lucid to Mr and Ms Diedler before and after the 2018 will was signed.[33]

(f) Most importantly, the deceased appeared lucid when he gave instructions to Ms Williams (Public Trustee solicitor) for the 2018 will.[34]

(g) Ms Borowiec asserts that the 2017 will fails for lack of testamentary capacity, but there is nothing strange on the face of the 2017 will. Indeed, Ms Borowiec and her daughter were named as beneficiaries under the 2017 will.[35]

(h) As at 22 June 2012, the deceased did not appear to be suffering from any mental illness.[36]

(i) A report dated 18 July 2018 (ie close to the execution of the 2018 will) does not support at lack of testamentary capacity.[37]

118 Counsel submitted that the plaintiffs should not be deprived of the opportunity to put to experts the material produced on subpoenas issued at their request.[38] It was submitted that to deprive them of that opportunity would be inconsistent with the order made by the learned Master on 19 January 2021, which provided as follows:

Expert Evidence

5. The plaintiffs have leave to provide the documents returned on subpoenas issued 9 October 2020 to the below parties to an expert for the purposes of obtaining a report.

119 Counsel further submitted that Mr and Ms Diedler should not be deprived of the opportunity to have Ms Williams (the Public Trustee solicitor) give evidence at trial.[39] Ms Williams took instructions from the deceased for the 2018 will on the day on which the 2018 will was executed.[40]

120 Counsel submitted that having regard to the evidence before the court, this was plainly not a case in which the issue of testamentary capacity may be disposed of in a summary manner.

121 While I accept that it is a grave matter to invalidate a will,[41] the gravity of the application made on behalf of Ms Borowiec was not determinative of it.

122 I also accept that an application for summary judgment may succeed even though it involves the determination of a complex issue. In such a case, the issue must be clearly defined and the respondent to the application must be on clear notice of the point said to be fatal.[42] In this case, the point said to be fatal was that the presumption of capacity cannot survive the unchallenged evidence that the deceased was diagnosed with a longstanding delusional disorder which was observed to be relevantly affecting his mind at the time be made the 2018 will.[43] Further, in light of the unchallenged diagnosis, there was no possible basis upon which the plaintiffs could establish to the requisite standard that the deceased had capacity when he made the 2018 will.[44]

123 Ms Borowiec is motivated, as are no doubt all of the parties, to bring this proceeding to a close. The deceased died in December 2018. The estate remains unadministered. The next phase of the proceeding will likely require the expense of briefing of an expert or experts and a potentially lengthy trial by reason of the number of likely witnesses. Ms Borowiec says that the result of this proceeding is now known and the claim of Mr and Ms Diedler is doomed to fail, so it is appropriate that judgment be entered.

124 An application for summary judgment which turns upon the resolution of a disputed issue or issue of fact must be treated with exceptional caution.[45] In determining this application, I had regard to the same.

125 I have given careful consideration to the affidavit evidence relied upon by Ms Borowiec, particularly that annexed to her affidavit at TIB‑2 and TIB-3. It is not appropriate nor necessary for the purposes of this application that I comment in detail upon the evidence which may be adduced at trial as to the deceased's testamentary capacity, and to which Mr and Ms Diedler and Ms Borowiec have referred. It is sufficient to say that I am of the view that although the plaintiffs' task of demonstrating the deceased's testamentary capacity at the time of the 2018 will be very difficult, I cannot say that the task is clearly impossible or doomed to fail.[46] Notwithstanding what might now be seen as significant obstacles to the plaintiffs' case, I find that this is not a case where only one conclusion can be said to be reasonable, and therefore, I find that Ms Borowiec has not discharged her onus.

126 Further, I note that while expert evidence can be very helpful in identifying the circumstances from which the diagnosed condition arises and how it manifests itself in the patient's life, the legal test for incapacity is not expressed in terms of medical diagnosis. It is for a judge to decide, on the basis of the totality of all the evidence, both lay and expert, whether the particular legal test for incapacity has been satisfied.[47]

127 As observed by Campbell JA in Guthrie v Spence at [195] and [196]:

195 In Re Estate of Griffith (Dec'd); Easter v Griffith (1995) 217 ALR 284 at 295, Kirby P said, concerning testamentary incapacity: 'In judging the will propounded, and the challenge to it, the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence, still less of jargon, as to whether particular conditions such as "delusion" or "paranoia" have been established.' Though these remarks were made in a dissenting judgment, they are a correct statement of principle. ...

196 The need for more than medical evidence to be taken into account in deciding whether incapacity has been established has been recognised, in litigious contexts outside that of limitations, in Kerr v Badran [2004] NSWSC 735 at [48] ‑ [50]; Revie v Druitt [2005] NSWSC 902 at [34], Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir [2008] NSWCA 155; (2008) 71 NSWLR 593 at 598 [22], 603 [48] and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65].

128 The effect of an initial doubt about the validity of a will is to require a vigilant examination of the whole of the evidence which the parties place before the court.[48] The summary determination of the action deprives the plaintiffs and the court of such opportunity.

129 Again, on all of the evidence now presented, notwithstanding what might now be seen as significant obstacles to the plaintiffs' case, I find that this is not a case where only one conclusion can be said to be reasonable.

130 Having regard to all of the circumstances, I find that the 'interests of justice' considerations that may be borne in the balance of an application for summary judgment also weigh against judgment being entered.

131 On 19 January 2021, it was ordered that the plaintiffs file and serve any affidavit material in opposition to the first defendant's application for summary judgment by 5 February 2021. While the restraint on the plaintiffs preventing them from briefing an expert was partially lifted by the order made by the Master on 19 January 2021, since 3 November 2020 the plaintiffs had not been at liberty to procure expert evidence. The plaintiffs were required to file their affidavits in opposition to the summary judgment application less than three weeks after the restraint was partially lifted. It would appear that the operation of the 3 November 2020 orders continue to bind the plaintiffs and bind the defendants, so that the parties cannot brief an expert to consider the documentary evidence, including the documents produced under subpoena, in the context of the broad factual matrix.

132 I understand Ms Borowiec to say that there is no possible basis upon which the plaintiffs can establish to the requisite standard that the deceased had capacity when he made the 2018 will. Expert evidence cannot assist them.

133 However, judgment in favour of Ms Borowiec at this time would be grounded on incomplete and untested evidence. There remains a disputed issue of fact as to whether the deceased had testamentary capacity when he made the 2018 will.

134 Given the medical science involved in this case, the court should be fully informed by appropriate expert evidence and cross-examination. The opportunity for full argument should be given to all parties' legal representatives.[49] The interests of justice require the same.

135 Mr and Ms Diedler should be afforded the opportunity to brief and adduce expert evidence at trial. Further, Mr and Ms Diedler should not be deprived of the opportunity to have Ms Williams (the Public Trustee solicitor) give evidence at trial.[50] The unfortunate consequence of the orders made on 3 November 2020 is that Ms Borowiec is presently at a forensic advantage.

136 Having regard to all of the circumstances, and having concluded that I cannot say that the plaintiffs' task is clearly impossible or doomed to fail, I find that the pursuit of an expeditious close would improperly deprive Mr and Ms Diedler of the opportunity to bring their claim to trial. Accordingly, Ms Borowiec's application for summary judgment ought be dismissed.

137 On the affidavits read and having given careful consideration to the detailed written and oral submissions made on behalf of the plaintiffs and the first defendant, I concluded that it was not apparent that the plaintiffs' action must fail.

138 In all of the circumstances, given the delay in making the application and the nature of the proceeding in which it was made, leave for the defendant to apply for summary judgment should be refused and the defendant's summary judgment application should be dismissed.

139 I will hear the parties on the question of costs.

Sch A - Parts of the affidavit of the first defendant the subject of successful objection

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The statement of claim indorsed on the writ of summons filed on 13 December 2019 at par 18 referred to a gift to Mr Kenneth Austin in the amount of $20,000, which was corrected in the plaintiffs' reply and defence to counterclaim filed on 12 February 2020 to reflect the amount as being $10,000.

[5] Deputy Commissioner of Taxation v Heaton (1997) 35 ATR 450, 453 (Sanderson M); Smith v Town and Country Bank (Unreported, WASCA, Library No 970716, 18 December 1997, 55 - 56 (Malcolm CJ, Kennedy J & Owen JJ agreeing), cited by Pritchard J in Westpac Banking Corp v Anderson [2017] WASC 106 [38].

[6] Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 920512, 12 October 1992) (Adams M); Smith v Town and Country Bank 56, as cited by Pritchard J in Westpac Banking Corp v Anderson [38].

[7] Bank of Western Australia v Stein [2005] WASC 43 [53] - [54].

[8] Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 [48] (Newnes JA).

[9] Deputy Cmr of Taxation v Heaton, 453, cited by Pritchard J in Westpac Banking Corp v Anderson [38].

[10] ts 38, 39 (1 April 2021); the first defendant's submissions filed on 19 February 2021, pars 5.3 - 5.9.

[11] The first defendant's submissions filed on 19 February 2021, par 5.10, citing Johnson v Hallam [2015] WASC 149 [12].

[12] The first defendant's submissions filed on 19 February 2021, par 5.11, citing Gallo v Dawson (1990) 93 ALR 479, 481.

[14] Laine v Laine [2016] WASC 401 [3]; Forsyth NL v Northern Gold NL (Unreported, WA Supreme Court, Full Court, 20 January 1994, SCL940012) per Franklyn J at pages 6 - 7, cited in the plaintiffs' submissions filed on 8 March 2021, par 55.

[15] Sunlea Enterprises Pty Ltd as trustee for Drummond Cove Unit Trust v Pollock (No 2) [2015] WASC 102 [13], as cited in the plaintiffs' submissions filed on 8 March 2021, par 60.

[16] Dey v Victorian Railway Commissioners (1949) CLR 62, 91 (Dixon J); Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-434, 74,757 (Parker J, Owen J agreeing).

[17] Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney (a firm) [2011] WASC 167 [51] - [53] (Kenneth Martin J).

[19] The following paragraphs are drawn from the first defendant's submissions filed 19 February 2021, pars 7.1 - 7.6, citations omitted.

[20] Affidavit of TI Borowiec sworn 14 December 2020, TIB-2, pages 24 - 26.

[21] Affidavit of TI Borowiec sworn 14 December 2020, TIB-2, pages 31 - 32.

[22] Affidavit of TI Borowiec sworn 14 December 2020, TIB-2, pages 93 - 94.

[23] Affidavit of TI Borowiec sworn 14 December 2020, TIB-2, pages 93 - 94.

[24] Affidavit of JG Diedler sworn 15 October 2020, pars 29, 35, 38, 41 - 43.

[25] Affidavit of JG Diedler sworn 15 October 2020, par 54.

[26] Affidavit of JG Diedler sworn 15 October 2020, par 65.

[27] Affidavit of JG Diedler sworn 15 October 2020, par 75.

[28] Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17 [175] (EM Heenan J), cited in the plaintiffs' submissions filed on 8 March 2021, par 80.

[29] Affidavit of JG Diedler sworn 15 October 2020 pars 5 - 28, 38; affidavit of ML Diedler sworn 15 October 2020, pars 11 - 39.

[30] Affidavit of JG Diedler sworn 15 October 2020 pars 29 - 53; affidavit of ML Diedler sworn 15 October 2020, pars 40 - 44, 53 - 55.

[31] Affidavit of JG Diedler sworn 15 October 2020, pars 62 - 67, 88; affidavit of JG Diedler sworn 10 February 2021 JGD-5, page 39; affidavit of TI Borowiec TIB-3, page 89.

[32] Affidavit of JG Diedler sworn 15 October 2020, pars 57 - 61; affidavit of ML Diedler sworn 15 October 2020, par 62.

[33] Affidavit of JG Diedler sworn 15 October 2020, pars 41 - 53, 68 - 70, 89 - 91; affidavit of ML Diedler sworn 15 October 2020, pars 60, 61, 79 - 80.

[34] Affidavit of JG Diedler sworn 10 February 2021 JGD-5, pages 26, 30, 32, 34 - 36.

[35] Affidavit of TI Borowiec sworn 14 December 2020 TIB-2, page 41.

[36] Affidavit of TI Borowiec sworn on 14 December 2020 TIB-3, page 45. Note, however, a copy of the report dated 2 July 2012 is annexed at TIB-3, pages 53 - 54.

[37] Affidavit of TI Borowiec sworn 14 December 2020 TIB-3, page 79. Note, however, the reports dated 23 July 2018, 1 August 2018 and 17 October 2018 are annexed at TIB-3, pages 88, 89, 93 and 102.

[38] Affidavit of JG Diedler sworn 10 February 2021, pars 29 - 32 and 35; see also [43], [45] and [49] above.

[39] Affidavit of JG Diedler sworn 10 February 2021, par 36; note also Ridgepoint [51] - [52].

[40] Affidavit of JG Diedler sworn 10 February 2021 JGD-5, page 37.

[41] Gooley v Gooley [2021] NSWSC 56 [710], cited in the plaintiffs' submissions filed on 8 March 2021, par 86.

[42] Mycogen Plant Science Inc v Monsanto Australia Ltd (2001) 51 IPR 364 [2001] FCA 143 [36] (Kenny J); Gerovich v Gerovich [28].

[43] The first defendant's submissions filed 19 February 2021, par 6.2.

[45] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 [603]; Gerovich v Gerovich [32].

[46] See Smith Estate: Smith v Smith & Ors [2005] NSWSC 1340 (Palmer J).

[47] Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 [195] (Campbell JA), albeit decided in the context of an appeal which concerned the construction and application of the disability provisions of the Limitation Act 1969 (NSW).

[48] Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 452 - 453, cited in Estate Stojic, Deceased [2017] NSWSC 168 [86], referenced in Stewart v Stewart [2019] WASC 432 [13].

[49] Mycogen Plant Science Inc v Monsanto Australia Ltd [39].

[50] Affidavit of JG Diedler sworn 10 February 2021, par 36. Note Ridgepoint [51] - [52].