MATTER : The Will of Josephine Maud Bailey late of Greenfields Aged Care Facility, Lakes Road, Greenfields, Western Australia, Cook, deceased

JOHN HENRY REYBURN (in his capacity as the Executor named in the Purported Will)

PRINCESS MARGARET HOSPITAL FOR CHILDREN INC (in its capacity as a beneficiary under the Purported Will)

Probate - Proof of will in solemn form - Later will made when testatrix lacked capacity - Role of executor

Guardianship and Administration Act 1903 (WA)

Wills Act 1970 (WA), s 8

Grant of probate in solemn form of the will dated 28 April 2001

In Re Levy (Deceased) (No 2) [1957] VicRp 96; [1957] VR 662

In The Estate of Kirs (Deceased) (1990) 55 SASR 61

In The Estate Of The Late Leo Rene Raig [2006] ACTSC 96

Re Grey Smith [1978] VicRp 56; (1978) VR 596

Wheatley v Edgar [2003] WASC 118

1 EM HEENAN J: Mrs Josephine Maud Bailey, late of Greenfields Aged Care Facility, Lakes Road, Greenfields, Western Australia, retired cook, died at Margaret River in the State of Western Australia on 11 November 2008. She had been born on 23 September 1927 and was, therefore, aged a little over 81 years at the date of her death. She had married on 28 March 1946 to a Mr Edward Bailey, but many years later they had been divorced and she had never remarried. There were four children of the marriage, Janice, born in October 1946 (the plaintiff), Sidney William, born in March 1948, Gwendoline Patricia, born in July 1951, and Graeme Edward, born in July 1958.

2 The cause of death noted in the death certificate was Alzheimer's disease of some years' duration and a contributing cause, depression of some months' duration. Mrs Bailey left property comprising some bank and deposit accounts, a motor vehicle and some furniture and other minor effects, together with an interest in a unit in Mandurah in this State. She left no debts and the value of her estate is estimated to be slightly more than $300,000.

3 Mrs Bailey left two wills. The first is dated 28 April 2001. This is a manuscript will in her own hand on a stationer's will form containing a detailed list of her property and how she wished that it be distributed upon her death. By this testament she appointed her eldest child, the plaintiff, Mrs Janice Hoare, as her sole executrix. There is no suggestion in these proceedings that this is anything but a valid will, duly executed and witnessed in compliance with the formalities specified in s 8 of the Wills Act 1970 (WA), and made by the deceased at a time when she was of full testamentary capacity. By this will, Mrs Bailey directed that her major assets, her land, bank and investment accounts should be realised and the proceeds divided equally among her named children if they survived her and in the case of any child not surviving but leaving a partner and/or children for that child's share to be divided between the partner and the deceased child's children. There then followed a long series of specific bequests to children of items of personal property (gifts made by those children to their mother during their lifetime) and residual bequests to grandchildren.

4 Later, Mrs Bailey made a second will, apparently duly executed by her and witnessed on 8 September 2005. Unlike the earlier will, this testament was prepared by a firm of solicitors in Mandurah. The evidence, comprising notes of instructions, and internal memoranda, of staff in that solicitor's office is to the effect that Mrs Bailey came to their office with her brother on 5 September 2005 desiring to have a will made for her because she and her brother were uncertain whether she had ever made an earlier will. Some further meetings with the staff of the solicitor's office occurred over following days, more details of which will be described later, which revealed that she was uncertain about the full names of all her children and was mistaken about several aspects of their circumstances. Discussions led to a member of the firm of solicitors being nominated to act as executor and trustee. So it came about that the first defendant was named as the executor of the will later executed on 8 September 2005.

5 By this will the deceased directed that gifts made to her by her children should be returned to each child respectively upon her death, and that all money in bank accounts or financial institutions should be paid to her trustee who, after satisfaction of all debts, funeral and testamentary expenses, should hold the remainder on trust for the Princess Margaret Hospital Foundation - the second defendant. Other items of furniture and household effects were to be distributed to her surviving children by the drawing of lots. The balance of the estate was to go to the trustee to be held on trust for such of the four children as should survive the deceased and, if more than one, in equal shares but with provision that if any child predeceased the testatrix leaving children, such child or children should take equally between them upon attaining the age of 18 years the share which his, her or their deceased parent would have taken had she survived the testatrix. There were other auxiliary provisions which need not be mentioned here.

6 In view of the cause of death being attributed to the deceased's Alzheimer's disease and because the deceased's children believe that Mrs Bailey did not have full testamentary capacity at the time of the 2005 will, these proceedings for proof in solemn form of the 2001 will were commenced. The first defendant is the executor named in the later will and the Princess Margaret Hospital For Children Foundation Inc, the pecuniary beneficiary under the second will, is named as second defendant. Neither has entered an appearance, sought to defend the proceedings or taken any steps to propound the 2005 will. The interests of the other children of the deceased, all of whom have survived her, are represented, protected and advanced by the plaintiff who seeks to propound the 2001 will under which they are all equal residuary beneficiaries.

7 The entitlement of an executor to seek proof of a will in solemn form, and the significance of such a grant of probate, were described in my earlier judgment in Wheatley v Edgar [2003] WASC 118 where reference was also made to the judgment of Legoe J in In The Estate of Kirs (Deceased) (1990) 55 SASR 61. In In Re Levy (Deceased) (No 2) [1957] VicRp 96; [1957] VR 662, Sholl J stated at 665:

That indicates that the common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition...

Nor is it the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will of which probate is sought.

8 This recognises the established principle that there is no onus on an executor seeking to propound the earlier of two testamentary instruments to prove a lack of testamentary capacity at the time of the later testamentary instrument or prove its invalidity: In The Estate Of The Late Leo Rene Raig [2006] ACTSC 96 and Re Grey Smith [1978] VicRp 56; (1978) VR 596. In In The Estate Of The Late Leo Rene Raig Master Harper referred to the decision in Re Grey Smith as follows [34]:

Re Grey Smith [1978] VR 296, a decision of Murphy J of the Supreme Court of Victoria, is authority for the proposition that the onus of proving the validity of a later will in the circumstances of this case rests on those seeking to propound it. Where an executor can establish circumstances which give rise to a well-founded suspicion that the second document does not represent the true will of a capable testator then, provided that notice has been given to all interested parties and none have come forward to propound the later document and the will is proved in solemn form, the court should ignore the later document.

9 Accordingly, in the present case, the plaintiff relies upon this doctrine and upon the presumption which arises from due execution of the 2001 will that a testament properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding - see Wheatley v Edgar [24] - to establish proof that the 2001 will is the last valid and effective testament of the deceased.

10 There is affidavit evidence before me, in conformity with the directions made by a Probate Registrar, which satisfies me that this 2001 will was duly executed, that the deceased died on 11 November 2008 without having married since the 2001 will was made, and that at the time of that will her earlier marriage had been dissolved. By the 2001 will she appointed the plaintiff to be executor and left property situated within the State of Western Australia.

11 The plaintiff has, from the outset, disclosed to the court and the potential beneficiaries the existence of the later will of 2005 and that testament has been produced to the court. Notice of proceedings have been given to the executor and to the pecuniary residuary beneficiary named under that will but, as already described, neither has attempted to defend the proceedings or to propound that will. This is sufficient of itself to allow the court to make a grant of probate of the 2001 will in accordance with the principles which I have just set out.

12 However, there is evidence which I accept that raises far more than a well-founded suspicion that at the time of the making of the 2005 testament Mrs Bailey did not have full testamentary capacity. For many years she had been regularly attending her general medical practitioner, Dr K T Ong of Mandurah Terrace, Mandurah. In reports which Dr Ong has made and which have been annexed to the affidavits filed in these proceedings he reported that a diagnosis of reduced mental capacity of the deceased was made on 26 April 2002, and that a formal diagnosis of Alzheimer's disease was made by a consultant physician, Dr Norman Marinovich FRACP, on 26 April 2002.

13 According to Dr Ong, Mrs Bailey had been very forgetful long before 8 September 2005. In an affidavit filed in these proceedings and sworn 29 June 2010 Dr Marinovich himself said that he first saw Mrs Bailey on 26 April 2002 at the referral of Dr Ong. Based on his assessment of her at that time, Dr Marinovich concluded, and quoted from notes which he made at the time, that he thought this lady did have Alzheimer's disease, a prominent feature of which was her anger and paranoia about being accused of being forgetful. Dr Marinovich reviewed the deceased on 7 December 2005 when she was accompanied by her son. On that occasion, her mental state had deteriorated significantly since he first saw her in 2002 and she had no knowledge of the time, date, her own personal details such as phone number or address and was quite hostile to any questioning. Having assessed Mrs Bailey on 7 December 2005, Dr Marinovich formed the opinion that she was not competent to look after her own affairs and he wrote to the State Administrative Tribunal advising them of his opinion. In his affidavit, Dr Marinovich said that the degree of deterioration between the period when he first saw Mrs Bailey in 2002 and when he saw her again in December 2005 was quite marked and that he had no doubt that on 8 September 2005 (the date of the second will - three months prior to his seeing Mrs Bailey for the second time) she was not competent to make a will.

14 The notes of the staff at the firm of solicitors in Mandurah who took instructions to make the 2005 will include a note made by the clerk, evidently prepared because of some realisation that Mrs Bailey's capacity may be in question. This memorandum included the passages:

Initially I asked her if she was buying her home and she said she owned it. I asked if she had a car, but she said she had given it away to a neighbour who had a sick child but the car was still in her name.

I asked her how many children she had, the answer was 6, George advised it was 4. It seems Mrs Bailey is one of 6. I asked the children's names. She knew their first names but not middle names or the married names of her 2 daughters.

She did however recall that Janice was away or going to England, Sidney lived in Northam or was involved in the weather forecasts. Gwen was a secretary working in the Police Department in Perth and Graeme was a printer. George advised his phone number was ...

...

I was concerned that she didn't always understand what was going on and asked her if her memory was fading a bit, she said yes. I asked her how old she was, and she looked to George for the answer. I then asked her date of birth and she said 1927 she thought. I asked her who her doctor was and she said Dr Ong but she hadn't been to see him for years! She said when she first saw him he was just a little boy.

...

George did mention that she had lost all her cards, including her Medicare card.

15 There are some other similar memoranda which record some concern about the deceased's memory and capacity and which record demonstrations of vagueness or forgetfulness.

16 In a detailed affidavit from the plaintiff, Mrs Hoare, and in another affidavit from one of her sisters, Mrs Gwendoline Sumatluck, it is clear that there had been a long history of mental deterioration by Mrs Bailey over the years from about 2002 onwards, but with marked severity from about 2005. Both daughters were in regular contact with their mother.

17 Mrs Sumatluck noticed her mother's memory fading from about late 2003. She described a number of family occasions, birthdays, visits to other family members and funerals where her mother showed signs of forgetfulness and was unable to recognise well-known family members. During these periods she displayed uncharacteristic reticence and passivity when dealing with relatives and other members of the family circle. She also complained frequently of losing items of property, money, credit cards and the like, and it became apparent that she was going frequently to the bank or financial institution, withdrawing amounts of cash, taking it to her home, hiding it and then complaining that she had lost the money. Numerous visits by the daughters to the home resulted in the money or lost items being found. At the funeral of the deceased's former husband, and father of the children, in February 2004, Mrs Bailey did not know her sisters or her son's wife and children, or whose funeral it was. She began to forget doctors' appointments and dental appointments, and it became apparent, from unused prescription tablets, that she was forgetful in taking her medication. Attempts by the family to obtain assistance from the aged care assessment team were unsuccessful because Mrs Bailey became very impatient and angry when they visited her and inquired about her memory and conduct.

18 There was a sad and unfortunate episode in October 2005 when Mrs Bailey attended at a supermarket store in Mandurah to buy some goods but, apparently not having any money with her, wished to take the goods from the store and pay later because she claimed to be a well-known customer. The store manager declined, Mrs Bailey became angry and the police were called. After investigating the position, the police took Mrs Bailey home and contacted family members, who then dealt appropriately with the situation. This seems to have been a very compassionate and effective way of dealing with the sad decline of a very respectable lady.

19 As a result, an application was made to the State Administrative Tribunal under the provisions of the Guardianship and Administration Act 2003 (WA) dated 24 October 2005. A number of meetings at the SAT followed, leading to a plenary administration order being made on 27 January 2006 for the Public Trustee to manage Mrs Bailey's finances. Because her son Sidney was living with her at the time, the application for the appointment of a guardian was dismissed.

20 This history is confirmed by Mrs Hoare in her affidavit sworn 27 July 2010. When dealing with the notes made by the staff at the solicitor's office during the September 2005 visit, as already described, Mrs Hoare says that from the notes it is apparent that her mother could not recall whether she had made an earlier will but, in fact, she had. With reference to the recorded observation that Mrs Bailey had given away her car to a neighbour who had a sick child, Mrs Hoare says that the truth is that she gave the car to her son, Graeme Edward Bailey. With reference to the observation that her mother is recorded as saying that she, Mrs Janice Hoare, was away or going away to England, Mrs Hoare said:

I remember a number of occasions when Mum said to me words to the effect of, 'I thought you were in England'. I never told Mum I was going to England. I never planned on going to England, or discussed going to England. I do not know why Mum thought I was in England or going to England. Whenever Mum mentioned it to me, I told her I was not going to England. Notwithstanding this, Mum would continue to ask me if I was going to England, or say to me words to the effect that she thought I was in England.

21 Furthermore, Mrs Hoare says that her sister, Mrs Gwendoline Sumatluck, had been a secretary in the Police Department in Perth but had left that department in 1990. With reference to her mother telling the staff at the solicitor's office that she had met Dr Ong when he was just a little boy, Mrs Hoare says that to the best of her knowledge and belief her mother never met Dr Ong when he was a boy and only knew him in his professional capacity as her general medical practitioner.

22 Mrs Hoare gives, in much more detail, an account of the episodes of forgetfulness, the loss or misplacement by her mother of money, cards and keys, frequent visits to the home to search for the lost material and its discovery and her mother becoming very upset over money. She also gives more extensive accounts of her mother's forgetfulness and inability to recognise family members on family occasions.

23 It is unnecessary here to record all these details because the picture is consistent and the account confirmed not only by Mrs Sumatluck, the episode with the police, the guardianship order and the opinions of Dr Ong and Dr Marinovich but the concerns of the solicitor's staff who prepared the 2005 will and their observations also bear this out. It is unnecessary for any formal finding to be made but all the indications are that the deceased was, unfortunately, and due to no fault of her own, without proper mental capacity when the 2005 will was made. No doubt the recognition of this has led to the absence of any attempt by the first or second defendants to prove that will.

24 In the circumstances, I am satisfied that there should be a grant of probate in solemn form of law of the will of Josephine Maud Bailey dated 28 April 2001, who herself died on 11 November 2008, leaving property within the jurisdiction. Probate should be granted to her lawful daughter, Janice Hoare, the executrix named in that will and one of the residuary beneficiaries, she having sworn to administer the estate according to law. The form of grant will be settled by a Probate Registrar with liberty to apply to the court for any directions needed. The costs of these proceedings will be payable out of the estate.