GRANT THOMAS RUSSELL as executor of the will of EMILY JANE ANDERSON -v- ANDERSON [2021] WASC 435 (7 December 2021)

5 The plaintiff seeks proof of the 2012 Will in solemn form where four of the defendants have not consented to the will being proved, and where some questions have been raised about its validity.

7 The plaintiff has filed evidence of service of the writ on each defendant.[1] By his affidavit sworn 4 February 2021,[2] the plaintiff deposed that his then solicitors had received notice from all eight defendants with respect to the application to prove the 2012 Will. The third, fourth, fifth and eighth defendants did not consent to the 2012 Will being proved in solemn form. The seventh defendant had not indicated whether he consented.

8 On 28 September 2021, pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA), Registrar Fatharly made orders that the plaintiff have leave to enter the matter for trial on an undefended basis and to proceed upon affidavit.

9 The plaintiff filed the following affidavits in the action:

(1) Kathryn Anne Tonkin sworn on 4 May 2020;

(2) Anwen Aukland sworn on 18 May 2020;

(3) Robin Leonie Walker sworn on 25 May 2020;

(4) Reginald Victor Anderson sworn on 7 April 2021;

(5) three affidavits of the plaintiff, sworn on 4 February 2021, 15 September 2021, and 4 October 2021.

10 The plaintiff, as executor, has an absolute right to seek to prove the will in solemn form.

11 The plaintiff must satisfy the court that the will sought to be proved is the last will and testament of a free and capable testator. The plaintiff must establish that the testator knew and approved of its contents at the time it was executed so that it can be said that the testator understood the effect of what she was doing.

12 Where a will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. The presumption is rebuttable, and may be displaced by circumstances that raise a doubt as to the existence of testamentary capacity. The plaintiff will then have an evidentiary burden to show the testator was of 'sound disposing mind'.

13 Where due execution and testamentary capacity are proved, there is a presumption of knowledge and approval of the contents of the will at the time of execution. Again, the presumption is rebuttable and may be displaced by circumstances which will ground suspicion whether the will expresses the wishes of the testator.

14 The most satisfactory evidence that the testator had actual knowledge of the contents of the will is evidence that the testator gave instructions or that it was read over to her. That may be displaced by circumstances including the exclusion of persons having a natural claim on the testator, whether the testator had the opportunity for reflection or independent advice, and where a person who participated in the preparation of the will takes a substantial benefit under it.[3]

15 The plaintiff is an accountant and business advisor. The sixth defendant had been a client of the plaintiff for over 20 years. It was the sixth defendant who told the plaintiff that the deceased needed to update her will, and brought the deceased to a meeting with the plaintiff. The sixth defendant was not present, however, while the plaintiff took the deceased's instructions and prepared the will.

16 At the meeting, the deceased provided the plaintiff with a handwritten note. The plaintiff does not recall whether the deceased said she had written it.[4] The note included the deceased's wishes regarding cremation and disposal of her ashes, and further stated:

Any money left to be divided between Reg + Robin.

Shares to be left to all the children.

17 The plaintiff prepared the will, using a precedent, and arranged for it to be executed in the presence of two witnesses, the plaintiff's office manager (Anwen Aukland) and someone from a neighbouring business (Kathryn Tonkin). Both Ms Aukland and Ms Tonkin made affidavits as to the attestation of the will.

18 The deceased had made earlier wills on 31 May 1995, 17 March 2000, and 22 July 2004 before the 2012 Will. The 2012 Will revokes all previous testamentary acts.

19 By the 2012 Will, the deceased provided as follows:

(1) 50% of all cash on hand, 50% of cash in all bank accounts in her name including trading accounts, saving accounts and term deposits and 50% of all monies held by the Uniting Church in her name to the first defendant, Reginald Victor Anderson;

(2) 50% of all cash on hand, 50% of cash in all bank accounts in her name including trading accounts, saving accounts and term deposits and 50% of all monies held by the Uniting Church Homes in her name to the sixth defendant, Robin Leonie Walker;

(3) The rest and residue of her real and personal Estate was disposed of to such of her children as survived her by 30 days, with the first and sixth defendant to each receive 14.25%, and the other children (the second, third, fourth, fifth and seventh defendants) to each receive 14.30%.

20 There is a discrepancy between the note and the terms of the will, with the balance of the property, after the gift of cash at hand and in accounts, not being divided between the children equally, but with the first and sixth defendants receiving a slightly smaller share.

21 The plaintiff offers no explanation for why there is that discrepancy. He deposes that he went through the terms of the will with the deceased before she signed it. To the best of his recollection, he said to her that everything but the cash was to be divided equally between all the children.

22 On its face, the will is executed in accordance with s 8 of the Wills Act 1970 (WA).

23 The plaintiff deposes that, after the deceased's funeral, some members of the deceased's family told him that they did not believe the handwritten note was made by the deceased and that they did not recognise the handwriting.[5] The plaintiff has adduced evidence, through the affidavit of Reginald Anderson, to the effect that the handwriting was that of the deceased. The court may make findings on the comparison of disputed handwriting with writing proved to be that of the deceased.[6] But who wrote the note is immaterial. On the uncontested evidence, the deceased adopted the contents of the note as her wishes, whether or not she wrote it herself.

24 The plaintiff also put the medical records of the deceased before the court. Included in that history are consultation notes from March 2012, two months before the will was executed. The deceased was admitted to the Geraldton Hospital after two days of 'bizarre behaviour'.[7] The notes record that the deceased had no history of dementia, behaviour problems, anxiety or epilepsy. The primary diagnosis was a urinary tract infection (UTI) for which the deceased was prescribed Augmentin, a well-known antibiotic.[8] On 20 March 2012, the nursing notes record that she was keen to return to her nursing home, and 'delirium secondary to UTI resolved'.[9]

25 In her affidavit from 25 May 2021, Ms Walker also deposed to one occasion[10] where she was notified that the deceased had been screaming and hallucinating. The deceased was treated with antibiotics and released after three days from Geraldton Hospital. Ms Walker does not recall being contacted again about any further health concerns of the deceased.

26 None of the plaintiff, Ms Walker, or the two attesting witnesses recalled anything about the deceased on 31 May 2012 to suggest to them that she lacked understanding of what she was doing or did not execute the will freely. Ms Walker, who was the witness most familiar with the deceased, described her as 'her usual self'.

27 The medical records show that the deceased was referred to a doctor in December 2012 after nursing home staff assessed as her 'very very confused'. The referral notes, however:

She is normally alert and oriented, so staff were concerned re: this change.[11]

28 On the evidence, I am satisfied that there was no continuing medical condition that would impair the deceased's mental capacity at the time the will was made. The evidence from the day the will was made is inconsistent with any impairment.

29 The affidavit also annexes a letter from 2018 to the plaintiff's previous solicitors regarding the deceased's medical records held by a Geraldton medical clinic. The letter refers to a 2010 entry of dementia, but without any evidence of the origin of this information. The doctor at the clinic was unable to express an opinion about whether the deceased had testamentary capacity to execute the 2012 Will.[12] The letter does not affect my findings.

30 The evidence does not raise doubt about the testamentary capacity of the deceased at the date she made her will.

31 The evidence demonstrates that the deceased was aware she was making a will when she visited the plaintiff's office and brought the handwritten note with her in preparation for the disposal of her estate. The note included instructions for the scattering of her ashes, with those of her late husband. It also named each of her children as the nominated beneficiaries.

32 The medical evidence adduced by the plaintiff in his supplementary affidavit does not raise doubt that the deceased lacked testamentary capacity at the time of making the 2012 Will. The 18 March 2012 episode of delirium was diagnosed as caused by a UTI. There is nothing to suggest that it was other than a temporary condition resulting from an infection. It does not lead me to doubt the deceased's testamentary capacity some two months later in May, when the 2012 Will was made. None of the witnesses who were present when the will was made saw anything to cause them to doubt the deceased's capacity.

33 The 2012 Will is executed in accordance with s 8 of the Wills Act. The dispositions in it are rational. The handwritten note provided by the deceased to the plaintiff, on which the will was based, is also rational on its face.

34 There is evidence on which the court might find an error, and that the will does not give effect to the deceased's instructions because it does not divide the residue of the estate equally between her children. No application has been made to rectify the will. The error is not itself sufficient to lead me to doubt that the deceased knew and approved of its contents and understood what she was doing.

35 I am satisfied, on the evidence adduced, of the formal validity of the will and that there should be orders in terms of the orders set out in the submissions filed by the plaintiff, save that costs should be assessed on a solicitor client basis.

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

[1] Affidavit of service of Jacqueline Lee Ruby sworn 24 September 2020; affidavit of service of Georgia May Keysers sworn 17 July 2020; affidavit of service of Reginald Victor Anderson sworn 14 September 2020; second affidavit of service of Georgia May Keysers sworn 17 July 2020; affidavit of service of Kim Dennise Berrigan sworn 13 August 2020.

[3] The many authorities giving rise to these principles are discussed by Meagher JA in Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, [43] - [54].

[4] First affidavit of Grant Thomas Russell sworn 4 February 2021 [17], [19], and GTR 2.

[5] First affidavit of Grant Thomas Russell sworn 4 February 2021 [37].

[6] Evidence Act 1906 (WA), s 31.

[7] Supplementary affidavit of Grant Thomas Russell sworn 15 September 2021, 91.

[8] Supplementary affidavit of Grant Thomas Russell sworn 15 September 2021, 84, 110.

[9] Supplementary affidavit of Grant Thomas Russell sworn 15 September 2021, 88.

[10] Ms Walker does not give a date for when this occurred, but it may be inferred her recollection is of the March 2012 episode, in line with the deceased's medical records.

[11] Supplementary affidavit of Grant Thomas Russell sworn 15 September 2021, 210.

[12] Supplementary affidavit of Grant Thomas Russell sworn 15 September 2021, Annexure E, 11.