Will - Validity - Testamentary capacity - Proof of due execution - Onus on proponent of Will - Evidence - Suit for probate - Turns on own facts

Wills Act 1970 (WA), s 8

Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558

Copeman v Staples (1911) 13 GLR 467

In re Unsworth (decd); McLeod v Burchall (1974) 8 SASR 312

In the Estate of Bercovitz [1962] 1 WLR 321

In the Goods of Chalcraft (decd) (1948) P 222

Lewis v Lewis (1908) P 1

Marquess of Winchester's case (1598) 6 Cooks Rep 23a

McDonald v Valentine [1920] NZLR 270

Nock v Austin [1918] HCA 73; (1918) 25 CLR 519

Re Bladen [1952] VicLawRp 14; [1952] VLR 82

Re Lucas (decd) [1966] VicRp 36; [1966] VR 267

Re Young (decd) [1969] NZLR 454

Tyrrell v Painton [1894] P 151

Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

Re Vere-Wardale, Vere­Wardale v Johnson [1949] 2 All ER 250

1 ROBERTS-SMITH J: This is an action by writ of summons filed 20 March 2002 seeking a decree of probate in solemn form of a Will of Dorothy Alma Penn ("Mrs Penn") said to have been made by her on 24 March 1991.

2 Mrs Penn died from septicaemia and dementia on 18 October 1997.

3 The action is brought by Shirley Janet Nicholas, a daughter of Mrs Penn and who is named in the Will as sole beneficiary. She is also the sole executrix.

4 The defendant is a brother of the plaintiff. The statement of claim indorsed on the writ recites that the writ is issued against him as a brother and one of the persons to share in the estate of the deceased in the event of an intestacy and because he had entered a caveat.

5 The defendant did not enter an appearance but wrote to the Principal Registrar by letter dated 17 July 2002. In that letter he acknowledged service of the writ. The balance of his letter read:

"Above document was served on myself on the 10 day of July 2002 at LOT 190 Walker Street Mundaring as the Summons States that my mothers (sic) address was LOT 1095 and as protocol that to make MEMORANDUM OF APPEARANCE to the court. I must sign that document with that address heading as the address heading is a lie and as I have raised that at the hearing that the caveat was lifted on and as the court new (sic) that I would object so they went ahead in order to stop my attendance I claim Collusion and Intimidation. I request a recite of complaint

Any more correspondence will be including contact in any form will not excepted (sic) and be reported as HARASSMENT

Eric Alfred Penn

1095 Walker Street

Mundaring 6073"

6 On 23 October 2002 the Registrar ordered the plaintiff to enter the matter for trial by 23 January 2003. That was subsequently extended to 30 January 2004, then to 30 April 2004 and finally to 11 August 2004. The notice of entry for trial was filed on 17 August 2004. By affidavit sworn and filed 1 July 2003 the plaintiff deposed that she had "conducted search and enquiry" and to the best of her knowledge, information and belief, the Will of her mother dated 24 March 1991 was the only Will that she made in her lifetime.

7 When the matter was called for hearing before me on 18 October 2004 the defendant was present at the back of the court, but stated he did not wish to come to the bar table nor to participate in the proceedings. There was, therefore, no contradictor of the plaintiff's case.

8 Mrs Penn had four sons. One was killed in action in Vietnam in 1966. He was Desmond Hugh Penn. The plaintiff was 10 years old at the time.

9 Mrs Penn's husband, the plaintiff's father, died in 1991. He was 72 years of age. The plaintiff had a meeting with him on the morning of the day he died. That was a Saturday. At that stage neither he nor Mrs Penn had a Will. Mr Penn had telephoned the plaintiff that morning and said he needed to see her immediately. She went to his home at what was then Lot 190 Walker Street, Mundaring, where he was living with Mrs Penn and the defendant.

10 The plaintiff testified that Mr Penn told her he wanted her to go with him to a lawyer's office the following Monday and make his Will. He said he was going to leave all his property to the plaintiff to do with as she saw fit. According to the plaintiff she told her father: "Well dad, there's four kids; it goes four ways", to which he responded that he did not care. She then told him to make the appointment and they would go to the lawyer's on Monday.

11 So far as the plaintiff was aware at that time, her father's health was good, although he was seeing a Dr Fleming, the local general practitioner, to be treated for gout and was taking medication for that.

12 However, about 4.30 that afternoon, the plaintiff received a telephone call from the defendant who told her their father had suffered a fatal heart attack while digging sand at Chidlow.

13 The Penn family initially lived in Kalgoorlie, but had subsequently moved to 190 Walker Street, Mundaring about 1970 or 1971. When the plaintiff married she went to live at Wundowie where she presently resides. She has three adult children.

14 Mrs Penn had been badly affected by Desmond's death. Once they moved to Mundaring she withdrew from social contact outside the immediate family. She would go with her husband and other family members in the car when they went shopping, but she would not get out of the car and do any shopping herself. According to the plaintiff, Mrs Penn loved having the family around her but did not have much to do with other people. Her physical health was fine and she was still quite active with gardening, feeding the chooks and general domestic duties.

15 Following Mr Penn's death, the plaintiff and her husband and family moved in with Mrs Penn at Mundaring and the defendant went to live at their place at Wundowie. That was because it was thought it would be better for Mrs Penn to have family contact about her, especially because she enjoyed her grandchildren. She was still active and would help her grandchildren with their homework whilst the plaintiff was cooking the meals.

16 Prior to Mr Penn's death, he and Mrs Penn had a joint account with the Commonwealth Bank. However, he was the one who operated it. She had not signed anything on the account for years. After his death, the plaintiff had to withdraw some pension money for her mother and presented a withdrawal form for her to sign. Mrs Penn said she could not sign it. It was then the plaintiff realised her mother had not signed her signature for years. However, she did write her name on the withdrawal form, but when the plaintiff presented it to the bank at Mundaring they would not accept it without sighting Mrs Penn. So the plaintiff took her to see the bank manager and he accepted her signature. The plaintiff told Mrs Penn she would have to practice her signature, which her mother subsequently used to do.

17 After the death of her father, the plaintiff wanted to make arrangements to have the Mundaring property transferred into her mother's name. The plaintiff and a younger brother Phillip had earlier jointly bought a house and so she telephoned his partner, Rosemary Moss, to get the name of the settlement agent. She was told it was Bassendean Settlements. She made an appointment with them. Subsequently, she, Rosemary and Mrs Penn went to the Settlement Agent's office where the documentation was completed.

18 It was the plaintiff's evidence that sometime after she and her family moved in with her mother at Mundaring, Mrs Penn approached her about making a Will.

19 The plaintiff testified her mother wanted to make a Will because she did not know what was going to happen to her property "after she was gone".

20 According to the plaintiff, she went to a newsagent and purchased a "Will Kit". That contained a proforma Will document together with instructions.

21 The plaintiff said she and her husband sat down in the house at Mundaring and read through that material together and discussed it. Her mother was present and listening to what they were saying.

22 The plaintiff typed in what else had to be included in the Will. She says she read it to her mother and said "Look, this is all we can do. Keep reading it. Make sure its what you want before you sign it." She added that when she had finished typing the document she read it through with her mother, who was looking at the words with her.

23 Asked by her counsel Mr Hanbury, how she came to write her own name in as executrix, the plaintiff said that was a wish from her father on the day he died.

24 The plaintiff said the Will was not signed straight away because they needed people who could sign as witnesses. She said she left the document with her mother; she left it lying on the table and told her mother if she wanted to change any of it just to let her know and they would wait and see what happened and then go and get it signed. She said her mother just picked it up and took it to her room.

25 According to the plaintiff, one Sunday, about a week and a half later, she and her husband were visited by some friends, Mark and Vanessa Henderson.

26 The Hendersons arrived late morning, about 10.30 or 11.00.

27 When the Hendersons arrived, the plaintiff and her husband talked to them by their car for a while and the plaintiff asked if they would mind witnessing her mother's Will. She said they agreed and so the plaintiff went inside and told her mother some friends had arrived and if it was okay with her they would "do the Will now". She said her mother agreed and the plaintiff went back out of the house and asked the Hendersons to come inside and sign the Will.

"Mum had obviously gone and got the Will because when I came back it was already on the table. Mum sat down and signed it and they witnessed it."

29 She said this was at the table in the family room.

30 She said she also had to ask Mark Henderson to initial "... behind the paragraph because it was written in the format basically with the Will kit." She said after doing that the three of them, herself and the Hendersons, went back outside, leaving the Will kit on the table. She said that when she came back inside it was gone, so she assumed her mother had put it away.

31 She reiterated that the Hendersons were there in the room when her mother signed the Will, that Mark Henderson signed it after her mother, who was sitting at the table at the time, and that Mrs Henderson was standing behind Mark Henderson. She said he then stood up and moved aside and Mrs Henderson signed the Will. She said her mother was still seated at the table.

32 The plaintiff said that her mother did not read through the Will again because she had done it before when the plaintiff was typing it.

33 She and the Hendersons then went back outside and when she returned to the room 15 or 20 minutes later the Will was gone.

34 The plaintiff described her mother's condition at that time as being frail; she was mobile and slow, but still doing things for herself. She was still coherent, able to have a conversation and to help the children with their homework and interact with them. As far as the plaintiff was concerned, Mrs Penn was quite capable of making her Will. Furthermore, it was her mother who asked that it be done and she signed the Will and kept it.

35 The plaintiff identified the testatrix' signature on the Will as that of her mother.

36 She said that around Easter, which she thought was probably about a month after the signing of the Will, she and her family moved back to Wundowie and the defendant returned to live at the Mundaring house. They moved because of increasing difficulties between themselves and Mrs Penn. It is not particularly clear, but these apparently grew from the fact as both the plaintiff and her husband worked, they were not available to do things (such as put in fire breaks) that Mrs Penn wanted, when she wanted them done. They would tell her that they would do things on the weekend, but in the meantime the defendant would visit and do what was required. They found this frustrating and it seems to have generated tensions.

37 After they returned to live at Wundowie the plaintiff and her family still continued to visit Mrs Penn. The plaintiff tried to visit her weekly but certainly not less frequently than every couple of weeks.

38 The plaintiff testified that Mrs Penn's health at that time was still alright, but by about 18 months later it was starting to deteriorate. Her memory was obviously failing.

39 Mrs Penn had no occasion to visit a doctor until about 1993, as the result of a fall. She had slipped in the garden and grazed herself. The plaintiff took her to see Dr Fleming because he had been Mr Penn's doctor.

40 Mrs Penn continued to live at Mundaring with the defendant.

41 About 1994 or 1995 she was admitted to the Swan Districts Hospital for about one week and a little while after that her health started to deteriorate very quickly.

42 The evidence is sketchy, but by about 1996 Mrs Penn was being regularly visited at home by Dr Caravella, another general practitioner from Mundaring, because of her deteriorating condition. She must have subsequently been hospitalised again, because it was the plaintiff's evidence that she participated in certain procedures before the Guardianship & Administration Board ("the Board") to support the defendant. The plaintiff testified that at one stage she made an application to the Board herself because the defendant had refused to take Mrs Penn out of hospital even though the hospital considered her able to return home and the plaintiff thought she should be brought home. Mrs Penn was suffering Alzheimer's by this time.

43 The plaintiff took Mrs Penn back to live with her and her family at Wundowie. Very shortly afterwards, the defendant wanted to see his mother. The plaintiff was prepared for him to do so, but did not want to take her mother to Mundaring "because of the memories that were there". She arranged a meeting with the defendant at Mundaring Weir. The evidence about that is minimal, but it seems there was some sort of argument or a confrontation and Mrs Penn left with the defendant and returned to live at the Mundaring house.

45 Sometime later the plaintiff received a letter from the defendant, with which was enclosed the original Will. The letter is not in evidence, but in her testimony the plaintiff said the defendant had written in it that the Will "would not be accepted".

46 The plaintiff applied for probate of the Will on 17 November 1997.

47 On 23 July 2001 her application for non-contentious probate was denied.

48 The plaintiff's testimony was that she did endeavour to obtain medical evidence regarding her mother's health but had not been able to obtain any for the period prior to about 1993.

49 Counsel for the plaintiff tendered an affidavit sworn by her on 25 May 2001 in answer to a requisition from the Probate Office of the court, to which she annexed a copy of reasons for decision given by the Board on 25 March 1994 and 15 August 1994.

50 The first reasons concerned an application by the defendant for the appointment of an administrator in respect of Mrs Penn.

51 The Board referred to reports from Mrs Penn's treating doctor, Dr Fleming, and from the Department of Geriatric Medicine at Royal Perth Hospital which confirmed that she suffered from Alzheimer's-type dementia. They noted the reports stated in part that Mrs Penn scored only 2/10 on mental state questioning, suffered memory loss and confusion and was unable to manage her financial affairs.

52 The Board concluded that Mrs Penn was unable by reason of mental disability due to her dementia, to make reasonable judgments in respect of matters relating to all or part of her estate, however, they concluded that on the evidence before the Board, the arrangements which had been put in place by the defendant for the management of her estate were working well and he was able to attend to her affairs without a formal administration order being made. Accordingly, as her needs were being met, the Board was not justified in making a formal administration order having regard to the provisions of s 4(2)(c) of the Guardianship and Administration Act 1990 (WA).

53 The second reasons for decision concerned applications from the Public Guardian seeking orders that he be appointed guardian for Mrs Penn and the Public Trustee be appointed Administrator in respect of her estate.

54 In the reasons the Board recited that the application had been brought because the defendant had informed the Public Guardian that he would not take his mother to a doctor and that he had "sacked" her previous doctor, which the Public Guardian considered would place Mrs Penn in a vulnerable position. The Public Guardian did not believe that the defendant was making decisions which were in the best interests of his mother's health and welfare.

55 The Board heard evidence in relation to these matters including a medical report from the Department of Geriatric Medicine dated 21 October 1993, and again had reference to the report from Dr Fleming.

56 The Board noted that in a letter from Dr Fleming dated 9 May 1994 he had stated that he was unable to report on Mrs Penn's current condition because when he contacted the defendant on that date, the defendant informed him he no longer wished to have anything to do with the doctor or with his surgery.

57 The Board noted that the Public Guardian conceded at the hearing that it was problematic as to whether or not Mrs Penn required a guardian to be appointed and "there may not be a present need for guardianship unless the defendant refused to call a doctor for her if needed". The Board accepted evidence that the defendant was a caring son and noted Phillip Penn and Rosemary Moss both gave evidence that if Mrs Penn took ill, they would be informed immediately. In light of that and other material adduced before the Board, it was satisfied that despite the defendant's statements to the Public Guardian, he had not carried out his threats and there was no evidence that Mrs Penn had suffered financial abuse. It did not appear to the Board from the available evidence that a present need had been demonstrated for the appointment of an administrator.

58 Counsel also tendered the medical reports which had been referred to by the Board.

59 Significant observations made by Dr Fleming in his report of 1 December 1993 (that also being the day on which he last examined Mrs Penn) were diagnosis that she had Alzheimer's disease (senile dementia) and anxiety/depression. He noted that her prognosis was poor, that her condition would continue to slowly deteriorate and that she needed continuing supervision at home and especially when taken out in the car. Against the heading "Financial Affairs" he wrote "Cannot manage this at all".

60 Observations made in a report by Drs Crowley and Bruce dated 21 October 1993 included that:

"The main problem today is of memory loss which dates back possibly to 1983. She has had a marked deterioration however in the last two years. She now forgets her relatives' names, she loses things and she is prone to repetitive questioning. Her behaviour is reported as normal. She does not wander. Her ability to dress and shower herself is deteriorating and she often dresses in the same clothes. She is looked after well by her son but has no other outside supports ..."

61 The doctors noted that apart from the unfortunate development of Alzheimer's disease, Mrs Penn had been medically very fit and well. She scored only 2/10 on mental state questioning. It was clear that she had a dementing illness which was probably Alzheimer's.

62 Having travelled somewhat ahead in time with these events, it is necessary now to return to what happened on 24 March 1991.

63 Mark Henderson is a trade assistant who works for his own garden supplies company. He and his wife are friends of the plaintiff and her husband, but he had only seen the plaintiff's mother once, perhaps twice.

64 His evidence was that on 24 March 1991, he and his family were returning home from Midland and decided to call in to see the plaintiff and her husband, who were moving in with her mother at the time. The plaintiff offered them a cup of tea, which they accepted and she then asked them to sign some papers.

65 Mr Henderson was quite vague about the whole incident. He could only "vaguely" remember what the papers were or what it was about. He could not recollect what the plaintiff said the papers were, although a little later he said (t/s 58):

"Shirley asked us to sign some papers, reckoning something about some will or something, just to sign the signature to say that her mother had signed this will. That's all I remember."

66 He said that from memory the only people who were there were himself, his wife, the plaintiff and he thought the plaintiff's husband was there, although he was not 100 per cent sure. He said all he could remember was that the plaintiff asked whether he would mind "... being a witness to this form, of this will paper".

67 Mr Henderson said that he did sign some form that the plaintiff said was "something to do with a witness for her mother's will or something". The only people who signed any papers were he and his wife. The two of them were in the same little room.

68 He described the location as a little room off of which there was some other quite big room. He said the plaintiff came from that way out to them. He said when they sat down there was an old kitchenette or something. It was not a very big room at all. Their cups of coffee were brought out to them in the same room.

69 He had never been to that house before and has not been there since.

70 When asked whether when he went to the house that day he met the plaintiff's mother, there was the following exchange (at t/s 61-62):

"No. I don't actually remember meeting her. I've never actually met Shirley's mother in person but I do remember Shirley's mum when I went there. She was a little lady and she was sitting up one end of the corner and of course she never spoke to us or nothing like that.

When you say when you went there and she was sitting in the corner, when was this?---That was the only time that I saw her. The first time was when I went to Shirley's house - to Shirley's mum's house.

All right. What I was asking you before is when you signed these papers, Shirley asked you to sign these papers?---Yes. I didn't actually sign the papers in front of Shirley's mum.

Didn't you?---No. Shirley brought the papers down to us.

You are just telling me then that the mother, Shirley's mother, was sitting in the corner of a room?---Yes.

...

The time when she asked you to sign the papers - I will ask you, if you could, to just think about that time - it was at the time that you saw Shirley's mother sitting in the corner?---Yes. When I actually signed the papers I signed the papers off the room from where Shirley's mum was sitting, when Shirley brought the papers down.

Which room was Shirley's mum sitting in?---Just over - in a long room. All I can remember is a long room and she was at one end.

The room that you were in, was there a door - was there some connection with the room that Shirley's mother was in?---Yes. We weren't far from where Shirley's mum was but I didn't sign the papers - - -

How far were you?---I would say from here to - it would have to be probably to the end wall to the door or probably even a bit further away out in this little room. There was an old table. Shirley gave us a cup of tea on it.

Can I just interrupt there?---Yes.

When you say that distance there to the door or to the back of the room, about how far would you reckon that was? We can see it but if you could just - - -?---Yes, probably 15 metres I suppose.

If where you are now is where you were signing the papers, Shirley's mother - - -?---Yeah, we were in this other little room.

Is it the same room?---No, just outside it was I think." (My emphasis).

71 A little later the witness was asked whether he had any recollection of whether or not he was introduced to the elderly person, to which he replied "No", and asked again he said (at t/s 64):

"No, I don't really actually remember being introduced to the lady. That's all - all I can remember is that she was saying, 'That was me mum up there' and that was about all I can remember. I wouldn't even know the lady's name or nothing."

72 Finally, at the conclusion of his evidence-in-chief the witness explained it again (t/s 66):"

"So you were just standing inside the back door of the house or a door of the house?---Yes, like the back door part of the place.

What room was that? What kind of room was that?---I thought it was just like an old kitchen or something. I can't really remember the - - -

Yes, that's where you were standing. Did you stay there or did you go somewhere else then inside the house?---No, we just went there to the door, went into that room and that's more or less where we stayed the whole time and Shirley come out from that other room. That's what I was just saying, that when I looked into that other room up there - - -

So where was that other room then in relation to where you were?---Straight opposite and we walked into the back door and I'm standing here now and the room was over there.

Was there a door between the two or a doorway?---Yes, there was a doorway but I don't think there was a door on it.

Yes, it was a separate room then, was it, not just part of the same room?---No, no. It was a separate room.

But you could see her in there, could you?---Yes, I suspected it was Shirley's mum because you could see up from a distance.

Yes?---I never spoke to the lady or anything like that. That's all I remember, when Shirley asked, 'Could you sign these papers for us?'

You said that you did not actually sign the papers in front of Shirley's mum. Is that correct?---Correct, yes.

You said, 'Shirley brought the papers down to us.' What do you mean by that? What did she do?---Shirley come - all I remember is that I never signed any papers in front of Shirley's mum and Shirley just brought some papers from her or come out of that room, sorry, come out of that room and just said, 'Would you mind witnessing these signatures for a signature of me against these papers,' and I don't even remember really - remember it being a will.

Yes. Did you actually see anybody sign, anybody else sign that will, that document?---No, no." (My emphasis)

74 Asked whether she had ever met the plaintiff's mother at all, she said not that she could remember.

75 She did recall going to a house at Mundaring in March 1991 with her husband and children, just to call in on the plaintiff and her husband, who were then moving in. She said she could not remember anything much about the house, where they parked or even how they got into the driveway. She did recall that she was "... having a cuppa" with the plaintiff while sitting at a kitchen table. According to her recollection the only other people there were their two husbands.

76 She said that after a while the plaintiff asked her to sign some papers and she did recollect signing them. She recollected that the plaintiff said something to her about a Will. She identified her own signature on the Will and said that her husband also signed it in her presence. She repeated that she was sitting at the kitchen table when she signed the document and that the only people she could remember being there were the four of them. She also repeated that she did not meet anyone else when she went to the house that day that she could remember. Asked what the plaintiff had said to her about the papers being a Will, she replied that she remembered the words "the will" being mentioned and she thought it was the plaintiff's signature she was witnessing. She said she did not see how the signature got there. She could not remember exactly, but she knew it was something to do with the mother, but that was all she could remember.

77 Asked again whether she could recollect meeting the plaintiff's mother at all, she answered (t/a 71):

"---Though I didn't see her, I still - in my mind it feels like the lounge room - this plays a part in my mind. I don't remember the lounge room but in my mind it's something to do with the lounge room and her mother being in the lounge room. That's in my mind as playing a part, that she was in the house.

Like, how is it there in your mind?---I don't know. It just feels that she was there, but I can't actually remember seeing here (sic), but I feel that and it's something to do with the lounge room. I don't know if she was in the lounge room. Even though I can't remember seeing her, I still feel that somehow she was there. I don't know.

Do you have any recollection of speaking with Shirley's mother that day?---No, I don't."

78 Mrs Henderson said that they were only there for about half an hour.

79 Finally, at the conclusion of her evidence she was asked once again when she was signing the document whether she saw any person other than the plaintiff and their respective husbands and she replied "No, not that I can remember. I can't, no."

80 The plaintiff called her brother Brian Thomas Penn, who had come from Queensland, where he lives, for the hearing. He is a fitter by trade. He had left the family home and was working in the north-west at the time his brother Desmond was killed in Vietnam. He had never lived in the Mundaring house, although he was living in Western Australia again when his mother died. He used to work away and occasionally in Perth. He said he would sometimes visit his mother but could recall only one occasion and that was not long before her death. She had Alzheimer's and he described her as being "in a terrible state", although he thought she recognised him.

81 Phillip Ashley Penn is a fitter/machinist. He lives at Bassendean with his partner Rosemary Moss. He said he had heard of his mother's Will through family talk but had never seen it. He had lived at the Mundaring house until he was about 16 years old, that is, until 1975 or 1976. He visited his parents there from time to time after that and visited his mother on a few occasions after his father died. Although nothing specific was said in evidence, there were indications that there was some ill-feeling or hostility between Phillip and the defendant.

82 Phillip Penn said he would not stay at the house while the defendant was there.

83 Phillip Penn knew the plaintiff had moved into their mother's house at one stage and he obviously approved of that because he thought she was going to take on the responsibility of looking after their mother. He was aware that happened only for a short period. He could not remember actually how long they were there but he thought it was probably a couple of weeks. He said the defendant had a heated confrontation with the plaintiff and the family.

84 Phillip Penn said he went to the Mundaring house to drop off some fencing wire at one stage and it was probably while the plaintiff and her family were there. He said he would have spoken to his mother, although it was clear he could not actually remember. He said she was mobile, able to get around without assistance, she recognised him and she appeared normal.

85 His understanding was that their mother and father wanted the property to go to the plaintiff. Asked whether he had any understanding of to whom Mrs Penn had bequeathed her property, Phillip Penn said (t/s 82):

"---There was no conflict between mum and dad and I still believe to this day that mum wanted the property to go to Shirl."

86 Rosemary Moss used to stay with Mrs Penn and her husband at Mundaring occasionally between 1987 and 1989. At that time Mrs Penn's health appeared good. She did the housework, cooked meals and did gardening. There was one occasion Mrs Penn had hurt her leg and had to use a walking stick for a short time, but that had gone the next time she saw her. She did not stay with Mrs Penn after 1989, although she did visit on an irregular basis.

87 Ms Moss confirmed that after Mr Penn died, she took Mrs Penn and the plaintiff to a settlement agency in Bassendean. She said Mrs Penn wanted to put the house in the plaintiff's name. She told that to them and the settlement agent. The latter suggested it go in their joint names, but according to Rosemary Moss, the plaintiff said she did not want her name on the deeds. Rosemary Moss' evidence was that the settlement agent said the only other way would be to make a Will and put it in that. She said that they then went back to her place to have tea. She, Phillip Penn, the plaintiff and Mrs Penn all talked about making a Will and decided it was a good idea. The plaintiff and her mother then returned to Mundaring. This took place a few months at the most after Mr Penn's death.

88 When asked whether she made any observations of Mrs Penn's health at that time, Rosemary Moss said she was "fine" although she was still getting over the death of her husband and the trip down from Mundaring had tired her.

89 Rosemary Moss said she, Phillip Penn and their three boys went to visit Mrs Penn a few times at Mundaring. The defendant was there. Sometimes he would just sit and watch and other times he would just "sulk out; he would go outside". He would sometimes come back in but not to take part - just to watch what was happening.

90 According to Rosemary Moss, during those visits Mrs Penn would talk to them, make the tea and provide biscuits to eat. They would talk for probably an hour or so.

91 Ms Moss recalls speaking to the plaintiff on the telephone, probably some months after Mr Penn died, and the plaintiff told her she "had finally got mum to make out the will". She said her own response was that was good because it was one step more than her. I take that to be a reference to the discussion earlier having been that it would be a good idea for all of them to make a Will. As Ms Moss subsequently explained (t/s 94):

"---All she said was that she'd finally got around to it and made the will with mum and I says, 'Good,' because I hadn't done anything about ours yet. I actually bought the will papers.

You bought the papers, did you?---I bought the papers for ours.

I see?---And Shirl said she had bought some and her and mum had done mum's will and it was witnessed and finalised and everything, and I says that was great that it was finally done, and she was going to put it away and I said, 'Excellent'."

92 She was asked whether there was any discussion about what was in the Will, to which she answered (t/s 94):

"---I think I said to her, 'Mum put down that you got the house and everything like she said.'

Don't guess about it, Ms Moss. Could you just tell me please whether or not there was any conversation about what was in the will?---I think there was but I'm not certain.

You're not certain?---No. I think there was but I'm not certain.

After that conversation did you have further conversation about Mrs Penn making a will?---No.

Subsequently did you become aware of what the terms of the will were?---I did know what was in the will. I don't know how I knew but I did know what was in the will.

When did you come to learn of that? Can you say?---Probably - no, not really. I was going to say - no, not really. I'd be guessing."

93 This witness said Mrs Penn became more withdrawn after her husband died. She did not want to go anywhere or even to do the shopping with someone else. Nonetheless, she was still alright to talk to the children and the adult family members.

94 As far as the evidence is concerned, it remains necessary only to describe the Will itself. It is a pre-printed form with blanks for names, addresses and operative clauses, against which are typed instructions such as "write name on this line" and "testator (sic) to sign here"

95 The body of the document reads (the portions in italics are those which are pre-printed on the form):

"THIS IS THE LAST WILL AND TESTAMENT OF ME,

Dorothy Alma PENN

of Lot 190 Walker Street, MUNDARING. 6073

in the State of Western Australia

I revoke all other wills made by me. I appoint my daughter Shirley Janet NICHOLAS

to be my Execut , and direct that my Funeral and Testamentary Expenses and all my debts shall be paid as soon as conveniently may be after my decease.

I Give, devise and bequeath unto

I give Devise and Bequeath all my Property what so ever, both real and Personal to my Daughter Shirley Janet NICHOLAS. To do with as she sees fit. This was also the wishes of my late husband Hugh William PENN.

In Witness whereof I have to this my last Will and Testament set my hand the Twenty Fourth day of March , in the year of our Lord one Thousand Nine Hundred and Ninety One."

96 In Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 Barton and Gavan Duffy JJ referred with approval (at 523 and 524) to the formulation by Lindley LJ in Tyrrell v Painton [1894] P 151 of the proper question to be asked in view of such suspicion is whether it has been affirmatively established to the satisfaction of the court that the testatrix knew what she was doing when she executed the Will.

"It is unnecessary to discuss a number of the cases cited; but we may as well quote the terse statement of the principle by Sir Samuel Evans in the case of In the Estate of Osment (1914) P., at p 132:- 'It is well established that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and cause it to be vigilant and jealous in examining the evidence in support of the instructions for the will; it ought not to pronounce for the document unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. That is the principle ..."

98 In his judgment, Isaacs J stated the relevant law as follows (at 528):

"(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v Butlin 2 Moo PCC at p 484; Fulton v Andrew LR 7 HL 448). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v Batt [1838] EngR 643; 2 Moo PCC 317, at p 321; Tyrrell v Painton (1894) P 151; Shama Churn Kundu v Khettromoni Dasi LR 27 Ind App 10 at p 16). (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v Batt 2 Moo PCC at p 320; Fulton v Andrew LR 7 HL 448). (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will (Barry v Butlin [1838] EngR 1056; 2 Moo PCC 480 and Fulton v Andrew LR 7 HL 448; per Lord Shaw in Low v Guthrie (1909) AC 278 at p 284). (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification (per Lord James in Low v Guthrie (1909) AC at pp 282-283). (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v Butlin 2 Moo PCC at p 484). (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn LC in Low v Guthrie (1909) AC at pp 281-282).

99 Sim J stated the law in similar terms in McDonald v Valentine [1920] NZLR 270 at 271, adding that the rule requiring clear and satisfactory proof that the instrument contains the real intention of the testator is not confined to the single case in which a Will is prepared by or under the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the court, and wherever suspicious circumstances exist, and whatever their nature may be, it is for those who propound the Will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of it.

100 However a residual doubt will not be sufficient to defeat the proponent. As to that Dixon CJ, Webb and Kitto JJ said in their joint judgment in Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 453:

"A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution."

101 There are many circumstances in this case which excite suspicion that the testamentary instrument, the subject of these proceedings, does not reflect Mrs Penn's wishes, that she did not know and approve of its content, that it was not duly executed and that she lacked testamentary capacity at the time.

102 Those circumstances include the fact that the plaintiff is the executrix and sole beneficiary even though she has living brothers whose children are Mrs Penn's grandchildren, and that the defendant lived and cared for Mrs Penn for some years up to the date of her death. They also include the fact that there is no express evidence that Mrs Penn gave instructions as to what to put in the Will (although there is evidence from which that may be inferred), combined with the plaintiff's testimony that she named herself as executrix because that was what her father wanted. Her own evidence was that what she wrote into Mrs Penn's Will was what her father had told her, namely, that she should have the property "... to do with as she wished".

103 By s 8 of the Wills Act 1970 (WA), a Will is not valid unless it is in writing and:

"(b) it is signed by the testator or signed in his name by some other person in his presence and by his direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will;

(c) the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time; and

(d) the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary."

104 It is essential that the attesting witnesses see the making of the testatrix' signature or the testatrix acknowledging it as hers (In re Unsworth (decd); McLeod v Burchall (1974) 8 SASR 312; Lewis v Lewis (1908) P 1).

105 The attesting witnesses must be present at the same time as each other when witnessing the testatrix's signature (Re Bladen [1952] VicLawRp 14; [1952] VLR 82).

106 It is fundamental that the witnesses are attesting the signature of the testatrix on the Will (In the Estate of Bercovitz [1962] 1 WLR 321), that is to say, that they are authenticating the testatrix' signature (Re Lucas (decd) [1966] VicRp 36; [1966] VR 267; Re Young (decd) [ 1969] NZLR 454).

107 It has been held that if the witnesses leave the room in order to sign the Will such that the testatrix cannot see them sign, the requirement that the Will be attested in the testatrix's presence will not be satisfied (Copeman v Staples (1911) 13 GLR 467).

108 The testatrix must also be present mentally, in that she must be conscious and aware that the witnesses are attesting the Will (In the Goods of Chalcraft (decd) (1948) P 222).

109 The evidence of the Hendersons fell wholly short of proof to any degree that the Will was properly executed by Mrs Penn and her signature was attested to by them. Indeed, if their evidence be accepted as accurate, it would establish that she did not sign the instrument in their presence.

110 According to Mr Henderson, Mrs Penn was sitting in an adjoining room some 15 metres away. He did not see her sign anything. She was not at the table - nor even in the same room - when he signed the document. She made no acknowledgement of having signed the document. He was not asked to identify his own signature on it.

111 Mrs Henderson had no recollection of anyone else being present other than herself, her husband and the plaintiff and her husband. She did not see anyone else sign the document. She thought the signature she was being asked to witness was that of the plaintiff, although she did have some memory of something being said about the plaintiff's mother.

112 On the other hand the plaintiff's evidence was clear that her mother signed the Will in the presence of the defendant and the Hendersons. Her mother was sitting at the table. Mr Henderson signed while he was sitting at the table and he then stood and moved aside and Mrs Henderson signed. The plaintiff and the Hendersons then went outside, leaving Mrs Penn at the table with the Will.

113 I have no doubt the Hendersons were genuine in their attempt to give their evidence to the best of their ability and recollection. But each of them frankly said they had little memory of the event. They were able to recall signing a document which was described as a Will, but that really was all. They had not seen Mrs Penn before and did not do so afterwards. They did not know her. They had only stopped at the house briefly on the way home. The signing of the document was clearly a very quick interlude in a brief casual social visit. It was not something they had any reason to attribute as having any particular importance to them at the time and they had no occasion to think on these events in 1991 until being called to give evidence.

114 The plaintiff had more reason to be alive to what was being done. It was she who on her evidence had obtained the Will kit for her mother and prepared the document. She had read the instructions. She knew attesting witnesses were required. She said that was why the Will had not been signed earlier. She was at pains to do it properly. That is shown by her getting Mr Henderson to place his initials in the body of the document (although she omitted to have her mother or Mrs Henderson do that).

115 The fact that the oral evidence of both attesting witnesses does not support the Will - or even is in conflict with a claim of proper execution, is not necessarily of itself fatal (Owen v Williams (1863) 32 LPJM & A 159).

116 I am conscious of the need to scrutinise the plaintiff's evidence with particular care before accepting it because of the circumstances to which I have already alluded. Having done that, I am nonetheless satisfied that she has given a truthful and accurate account of what transpired.

117 I am accordingly satisfied that the requirements of s 8 of the Wills Act were complied with and the Will was duly executed by Mrs Penn whose signature was properly attested to by Mr and Mrs Henderson.

118 The evidence of the plaintiff that it was her mother's intention to leave all her property to the plaintiff was supported to some extent by Phillip Penn and much more so by Rosemary Moss. The latter's evidence about the visit to the settlement agent after Mr Penn's death, and what followed from that, is particularly telling. I accept that was Mrs Penn's intention and that it is reflected in the Will.

119 For sometime leading up to the date of her death, Mrs Penn was suffering from Alzheimer's disease. By then it had certainly progressed to the point where she lacked testamentary capacity. But Alzheimer's is a progressive disease and the question is whether she lacked testamentary capacity on 24 March 1991 (Marquess of Winchester's case (1598) 6 Cooks Rep 23a). The plaintiff has the onus of establishing, at least on a prima facie basis, that the testatrix had testamentary capacity on that date (Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558).

120 It is clear Mrs Penn was suffering from Alzheimer's in late 1993. Dr Fleming saw her on 1 December 1993 and diagnosed her as suffering from Alzheimer's and anxiety/depression. In his opinion she could not manage her financial affairs at all at that stage.

121 In the view of Drs Crowley and Bruce based on an examination on 21 October 1993, the main problem (which I take to refer to the symptoms of senile dementia) was memory loss, which possibly dated back to 1983. However, they also opined there had been "marked deterioration" in the previous two years. That would therefore have begun about mid to late 1991.

122 The plaintiff's evidence was that although frail, her mother was still of mental capacity and able to talk with members of the family. Although the evidence is sparse in this regard, that of Phillip Penn and Rosemary Moss again, does tend to support that of the plaintiff. Importantly too, there is nothing in the evidence which indicates the need for any medical attention until about 1993, nor any other indication going to lack of mental capacity in early 1991.

123 Furthermore, the evidence of Rosemary Moss shows the content of the Will to be consistent with Mrs Penn's intentions as expressed within months of the death of her husband in 1991 - and on the evidence that discussion was obviously sometime before 24 March 1991.

124 I am satisfied the plaintiff has prima facie established Mrs Penn had testamentary capacity at the date of execution of the Will.

125 For the above reasons I have come to the conclusion the Will is the last Will and testament of Dorothy Alma Penn and that it should be admitted to probate.