THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA as Executor of the Will of ARTHUR OWEN (Deceased)

NATIONAL HEART FOUNDATION OF AUSTRALIA (WESTERN AUSTRALIAN DIVISION) INC

THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST

AUSTRALIAN RED CROSS SOCIETY WESTERN AUSTRALIAN DIVISION

Validity of informal alteration to Will - Standard of proof - Retrospective operation of statutes - Testamentary capacity

Bail Act 1982

Inheritance (Family and Dependants Provision) Act 1972

Wills Act 1970

Declaration that the alteration made to the Will has effect

Order that the Will as altered be admitted to probate

Banks v Goodfellow (1870) LR 5 QB 549

Dixie v Royal Columbian Hospital [1941] 2 DLR 138

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Milivojevic v The Queen [1999] WASC 196

Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515

Wright v Hale [1860] EngR 1191; (1860) 6 H & N 227

Estate of Hines v Hines [1999] WASC 11

In the Matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1

James v Burdekin (1990) 3 WAR 298

Leslie v McDowell: Estate of Joyce Wilhelmina Commins [2000] NSWSC 727

Marsden v Warn, unreported; SCt of WA; Library No 980180; 9 April 1998

Public Trustee v Commins; Estate of Wray, unreported; NSWSC; Library No 101105 of 1992; 19 June 1992

Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535

Re Estate of Frederick Raymond Reeve Perriman (Dec) [2003] WASC 191

Re Estate of John William Henry Nicholls (dec'd) [2003] WASC 85

1 JOHNSON J: The plaintiffs in this action seek an order that the Will of Arthur Owen dated 7 June 1996 ("the 1996 Will"), as altered by him on 23 November 1998 ("the altered Will"), be admitted to probate. As Arthur Owen altered the Will informally, the plaintiffs also seek a declaration under s 35 of the Wills Act 1970 that the alteration made to the 1996 Will has effect. Probate had previously been granted on 28 April 1998 of the unaltered 1996 Will.

2 On 4 December 2003 a Registrar ordered, inter alia, that this action would be determined on affidavit evidence and that only the plaintiffs and the first defendant file an affidavit of scripts.

3 There is before me affidavit evidence and correspondence to the effect that each of the defendants, apart from the Public Trustee, does not intend to participate in the hearing of this action but will abide the decision of the Court. As I noted at the hearing, based on that evidence I was prepared to hear the action in the absence of the defendants. The first defendant also advised of an intention to abide the decision of the Court but appeared by counsel to assist the Court if necessary. As it transpired, the Court was in need of assistance from counsel in relation to the standard of proof to be applied on an application of this type.

4 Arthur Owen ("the deceased") died at Hollywood Hospital on 29 November 1997 aged 83 years. The first plaintiff, Arthur Leslie Owen, is the deceased's only son. The second plaintiff, Barbara Gillian Noble, is the deceased's only daughter. Both plaintiffs are adults. The first defendant is the Public Trustee as executor and trustee of the 1996 Will which was drawn up by a Wills Officer of the Public Trustee's Office. Under the 1996 Will, which made a bequest of furniture, furnishings and other household articles to the Salvation Army, the residue of the estate was left equally to the deceased's favourite charities. Those charities were identified in the 1996 Will as the National Heart Foundation of Australia (Western Australia Division) Inc, Sir Charles Gairdiner Hospital Foundation Inc (as trustee of the Sir Charles Gairdiner Hospital Foundation Trust, later known as the Institute for Advanced Medical Research and now known as the Foundation for Advanced Medical Research Inc), Royal West Australian Institute for the Blind (Inc), the Salvation Army (Western Australia) Property Trust, World Vision Australia, Australian Red Cross Society (Western Australian Division), Silver Chain Nursing Association (Incorporated) and the Sir David Brand Centre for Handicapped Children (operated by the Spastic Welfare Association of Western Australia Incorporated, now known as the Cerebral Palsy Association of Western Australia Limited). No provision was made in the 1996 Will for the deceased's children or grandchildren. The deceased's wife had pre-deceased him.

5 On 23 November 1997 the deceased signed a document of same date setting out changes to the 1996 Will but the document was not witnessed by two attesting witnesses both present at the same time as required by s 8 and s 10 of the Wills Act. Indeed, the document was not witnessed at all. For convenience I will refer to this document as the informal Will although, on the plaintiffs' case, it is a document amending the 1996 Will rather than a later informal will. The informal Will left $500 to each of the deceased's favourite charities. The names of the deceased's favourite charities were written on the back of a business card, the whereabouts of which he advised the first plaintiff. The informal Will also granted four legacies of $1,000 each to the deceased's grandchildren and left the residuary estate to be equally divided between the first and second plaintiffs.

6 Before dealing with the alteration to the Will, a consideration of the deceased's personality and his family relationships provides some insight into the circumstances by which the deceased came to exclude his children from the 1996 Will. The deceased is described by the first plaintiff as difficult, strong minded, opinionated and always right on every issue. The deceased's relationship with his children fluctuated from a close family one to a distant strained relationship if he had a disagreement with his children or grandchildren. When a disagreement occurred the deceased would not speak to his family for a short time and then the family would gradually get back together again. Over time, the first plaintiff learnt to keep his opinions to himself and thus keep the peace with his father. The second plaintiff confirms her brother's assessment of the deceased's personality. She described the deceased as a difficult person who had strong views who did not like it when his opinion on a matter was doubted or questioned. She also confirmed that the deceased's personality was such that if a small disagreement occurred he would withdraw and not speak to the offending members of his family for some time. Although the members of the family did not like this response they became accustomed to it over the years.

7 In 1986 the first plaintiff and his family moved to Perth and the deceased moved to Perth in 1987 to be close to them. The deceased was always part of family gatherings and the first plaintiff's family kept regular close contact with him. The second plaintiff had lived in Canada for many years although kept in contact with the family, including the deceased.

8 In May 1996 the deceased had a falling out with the first plaintiff over what the deceased perceived to be a snub from his granddaughter, Linda. The deceased's response was said to be more vitriolic than normal in that he sent Linda a very nasty 18th birthday card. According to the first plaintiff, the card so devastated Linda that he went to talk to the deceased about his reasons for sending the card and its effect on Linda. The deceased became upset and very angry with the first plaintiff for not agreeing with him and his actions and told him to get out of his house and stay out. The first plaintiff left the deceased's house in May 1996 and remained estranged from the deceased until some considerable time later. The first plaintiff alleges that it was at this time and as a result of this disagreement that the deceased made the Will dated 7 June 1996. The second plaintiff states that she remembered the falling out because the deceased had written to her about it and she confirms the first plaintiff's account of the cause of the falling out.

9 Annexed to the plaintiffs' affidavit of scripts sworn by Shaun William Conlin of the Public Trustee's Office on 22 December 2003 is the Will Instructions for the 1996 Will. A section of that document queries whether the client has omitted persons who may claim under the Inheritance (Family and Dependants Provision) Act 1972. The following is the notation made with respect to that question:

"2 children - has never been close to them. Inheritance Act explained."

That view of the relationship between the deceased and the plaintiffs may well have been held by the deceased at the time as a result of the falling out and in view of his character, but it is inconsistent with the material in the affidavits sworn by the first and second plaintiffs. It is apparent from that evidence, which I accept, that until the disagreement the deceased had moved to Perth to be near his son and family, was involved in family matters, and was in written communication with his daughter in Canada. However, the notation does reinforce the view that the terms of the 1996 Will were indeed influenced by the falling out with the first plaintiff and his family and hence any rapprochement might well result in a change to the 1996 Will.

10 In approximately 1995 the deceased had a cancer operation and subsequently suffered from ill health. At the beginning of 1997 the deceased began to complain of pain. Subsequent tests conducted on the deceased as an inpatient at Hollywood Hospital revealed secondary tumours in the right shoulder, stomach and neck. On 21 November 1997 test results confirmed that the deceased had cancer and that no treatment other than relief of symptoms could be given. According to the first plaintiff's affidavit evidence, on that day, when he was discussing the diagnosis with the deceased, the deceased said:

"Remember the tiff we had last year? We were silly beggars and I went out and changed my Will and left everything to charity. I spoke to Don at the Public Trust. Les, get in touch with him so I can change it."

It is said by the first plaintiff that, in the subsequent conversation, the deceased was specific about what he wanted in his Will and how and where he wanted to be buried. The first plaintiff telephoned the Public Trust Office and explained the situation to an officer who advised that he would come to see the deceased late the following week as he had just that day been to Hollywood Hospital. The first plaintiff did not think there was any great urgency in changing the Will.

11 On Sunday, 23 November 1997 the first plaintiff took to the deceased the informal Will drawn up by him according to the deceased's instructions. He showed it to the deceased who read it. The first plaintiff and the deceased went through the informal Will clause by clause and discussed it. The deceased advised the first plaintiff that a list of his favourite charities was in his top drawer. The son later found in the top drawer a card containing the list of charities identified as follows: "Heart Foundation, Cancer Research, Blind Institute, Salvation Army, World Vision, Red Cross, Silver Chain, Sir David Brand for Handicapt [sic] Children Ctre". This list is an informal version of the same organisations identified as beneficiaries in the 1996 Will. The only organisation which requires some explanation is that referred to on the business card as "Cancer Research". The Sir Charles Gairdiner Hospital Foundation Inc (now known as the Foundation for Advanced Medical Research Incorporated), which is nominated as a beneficiary in the 1996 Will, has in the past and still carries out research on various types of cancers. In any event, in a subsequent affidavit the first plaintiff stated that the business card was used as an aide memoir by the deceased and was not intended to be included as part of the Will or to be read in conjunction with the Will. The 1996 Will itself identifies the deceased's favourite charities.

12 On the first plaintiff's evidence, at the time the deceased discussed his testamentary intentions with him and discussed and signed the informal Will, the deceased was mentally alert and still perfectly capable of making his own decisions. On the day following, the deceased was able to recognise one of the male nurses that he had seen on the ward on a previous admission in August 1996. Several days later he noted that one of the ward volunteers was new to the position and observed that he had once worked in that position. The first plaintiff confirms that the deceased did indeed work in that position. The second plaintiff also confirms this incident and the fact that her father had previously worked as a ward volunteer. The second plaintiff's assessment of her father's mental state was that he was still very much in control of his faculties and could talk coherently and laugh with his family. Age and ill health carry no presumption of testamentary incapacity. There is no evidence before me that the deceased, although seriously ill, suffered from any impairment of intellect that might affect his testamentary capacity. In fact, the evidence, which I accept, is to the contrary.

13 At the same visit where the deceased signed the informal Will, the deceased requested the first plaintiff to telephone the second plaintiff in Canada and inform her of the test results and that he was to be transferred to the Palliative Care Ward the following day. The deceased said that he would like to see his daughter if possible and requested the first plaintiff to ask her if she would come to Perth to see him. Having received the call from her brother, the second plaintiff caught the next plane to Perth arriving at midday on Wednesday, 26 November 1997.

14 The son was unsure if the informal Will the deceased signed on 23 November 1997 was valid and on 26 November 1997 at 11.50 am he contacted the Public Trust Office again to see if the visit to formalise the deceased's wishes could be brought forward. The son spoke to a person called Stewart who said that he would come to the hospital.

15 On arriving in Perth the second plaintiff was met at the airport by the first plaintiff and his family. The second plaintiff was appraised of the deceased's situation and informed that on the previous Sunday the deceased had signed a document expressing his wishes as to who should benefit from his estate. The first plaintiff told her that there was some doubt about the legality of the document as it had not been witnessed in the way normally required for Wills.

16 From the airport the plaintiffs went straight to the hospital to see the deceased and to meet with Stewart. When Stewart arrived at the hospital the deceased was sleeping and could not be disturbed. Stewart suggested that it would be preferable for a doctor to be present when the deceased gave instructions to alter his Will. He then left for another appointment. The first plaintiff telephoned him several times that day but it was not possible to coordinate his visit with the presence of a doctor. As Stewart did not have a mobile phone and was attending other appointments, he was difficult to contact. The first plaintiff could only leave messages at his office.

17 According to the affidavit evidence of the second plaintiff, the deceased woke up shortly after her arrival and Stewart's departure. The deceased immediately recognised her and was obviously pleased that she was there. The first plaintiff confirms the deceased's delight that his daughter was with him. The deceased spoke coherently to her and her brother. The first and second plaintiffs spent most of the afternoon of Wednesday, 26 November 1997 at the hospital with the deceased. The first plaintiff confirms that the deceased was lucid and recognised them both.

18 The second plaintiff spent the Wednesday night at the deceased's bedside as his condition had deteriorated late on that day. The first plaintiff arrived early in the morning of Thursday, 27 November 1997. The deceased woke up and was able to recognise his children. Both plaintiffs state that the deceased told them he was "fighting it". He asked for the paper from the Public Trustee but they did not have any papers and could not arrange for the officer from the Public Trust Office to attend.

19 On the second plaintiff's evidence, on the Friday morning the night nurse expressed her surprise that the deceased was still alive and enquired whether he had some unfinished business. The second plaintiff spoke to her brother and they formed the view that the reason the deceased kept asking what day it was and saying that he was "fighting it" was because he was hanging on until Friday so that he could sign the papers from the Public Trustee to formally alter the 1996 Will. The plaintiffs state that they lied to the deceased and told him that "everything was looked after" and "everything was fine". Both plaintiffs believe that this reassured the deceased who settled down and had a "wonderful happy day" on Friday, 28 November 1997. The deceased died early on the morning of Saturday, 29 November 1997.

20 There is before me no evidence to contradict the plaintiffs' affidavit evidence. That is not to say that I am required to accept that evidence. However, there are no inconsistencies in the evidence and none of the content is inherently improbable. In fact, the account given is not an uncommon description of family relationships where the testator, who is of an intractable character, alters his will according to his perception of his children's behaviour towards him. Then, when seriously ill with an obviously loving and caring family around him, the testator wishes to alter his Will to include them. Consequently, I accept all matters of fact deposed to in the affidavits of the first and second plaintiffs.

21 The circumstances of this matter raise two issues for resolution. The first issue is the validity of the alteration to the 1996 Will. The second issue is whether the considerations essential to the exercise of testamentary capacity have been established with respect to the altered Will.

22 The test to be applied for an alteration to have effect, although not made in accordance with s 10 of the Wills Act, is that the deceased intended the Will as so altered to constitute his Will: s 35 Wills Act. The standard of proof to be applied in making that determination was the subject of debate at the hearing. The reason for the lack of certainty was an amendment to Pt X of the Wills Act which changed the standard from proof beyond reasonable doubt to the standard of "satisfaction".

23 Part X of the Wills Act which deals with informal Wills was inserted into the Wills Act by the Wills Amendment Act No 69 of 1987. Section 33 of the new Pt X was in the following terms:

"33. This Part applies only to persons dying on or after the day on which the Wills Amendment Act 1987 comes into operation, but in respect of persons so dying extends to any document, writing or alteration executed or made before that day."

24 The Wills Amendment Act 1987 came into operation on the day it received the Royal Assent which was 22 November 1987: s 2 of the Wills Amendment Act. The effect of s 33 is that, in order for an informal Will or an informal alteration of a Will to have effect, the testator must have died after 22 November 1987. As the deceased died on 28 November 1997, the provisions of Pt X apply to the document referred to as the informal Will. As I have indicated, at the time s 35, which deals with informal alterations of a will came into effect, the Court was required to be "satisfied that there can be no reasonable doubt that the deceased intended the Will as so altered to constitute his Will".

25 By s 4 of the Wills Amendment Act 1997 s 34, s 35, s 36 and s 37 of the Wills Act were amended to delete the phrase "that there can be no reasonable doubt". The Wills Amendment Act 1997 came into operation on the day on which it received the Royal Assent: s 2 of the Wills Amendment Act 1997. The Act was assented to on 10 December 1997. Therefore, at the time of the deceased's death on 28 November 1997 the higher standard of proof was required in order to validate an informal Will. However, by the time the application was heard on 14 December 2005, the legislation had been amended requiring only that the Court be satisfied that the deceased intended the Will as so altered to constitute his Will.

26 The issue then is which standard of proof applies where the testator died before the standard of proof changed, where the document was created before the standard of proof changed, but where the validity of the document falls for determination after the change to the standard of proof came into effect.

27 In written submissions filed after the hearing, counsel for the plaintiffs pressed the view that, as the Wills Amendment Act 1997 contains no provision making it retrospective in effect, the changes to the Wills Act 1970 are all prospective and take effect on or after the date the Act received assent, that is, on or after 10 December 1997. Counsel takes the date of alteration of the Will as the relevant date for determining whether the change to the burden of proof has effect and, as the informal Will was signed and dated on 23 November 1997, before the Wills Amendment Act 1997 changes came into effect, the higher burden of proof applies. No explanation is included for why the date of the alteration of the Will is taken as the determinative date, although presumably it is because it is the validity of the alteration or the document containing the alteration which is in issue.

28 Having considered the issue I find I am unable to agree with counsel's view. In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, the High Court was called on to determine the principles relating to the retrospective operation of statutes in the context of limitation periods. Dixon CJ stated the general rule of the common law in the following terms (at 267):

" ... a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rice v Erlanger [(1876) 3 Ch D 62 at 69]. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure changed, provided, of course, that no injustice is done'."

See also Wright v Hale [1860] EngR 1191; (1860) 6 H & N 227 (at 232).

29 However, as Dixon CJ observed (at 267), whilst the distinction is clear enough in principle, difficulties have always attended its application. The following summary of the principle, referred to by Dixon J in Maxwell v Murphy (at 270), and said by him to emerge from the English and Canadian cases, has been taken from the decision of Sloan JA in the Canadian case of Dixie v Royal Columbian Hospital [1941] 2 DLR 138 (at 139 - 40):

" ... unless the language used plainly manifests in express terms or by clear implication a contrary intention -

(a) A statute divesting vested rights is to be construed as prospective.

(b) A statute, merely procedural, is to be construed as retrospective.

(c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective."

30 In Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 the High Court revisited the issue of the retrospective operation of statutes in the context of a legislative amendment to the Tasmanian Criminal Code which repealed the requirement for corroboration in cases of sexual offences. The High Court held that on the trial of an offender taking place after the amendment, but who was alleged to have committed and been charged with the offence before the amendment came into effect, the amended provision applied and there was no requirement for corroboration. The rationale behind the decision was that the new provision applied to the trial because the amendment did not affect existing rights or obligations but operated to affect the way in which rights fell to be determined at trial, and thus did not fall within the presumption against the retrospective operation of a statute (at 515).

"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance."

32 However, as Murray J observed in Milivojevic v The Queen [1999] WASC 196 (at 20 - 21), in determining, where procedure alone is involved, that a statutory change operates on the trial of matters relating to or based on past events, the High Court made it clear that even read in that way such a statute would not be given an effect to deprive a person of some existing right or to effect some existing obligation recognised by the law. His Honour referred to the following statement by the High Court in Rodway v The Queen (at 521):

"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying ... that no-one has a vested right in any form of procedure."

33 In Milivojevic v The Queen Murray J cited and relied upon the above statements of principle but concluded that the relevant legislative change to the Bail Act 1982 was not merely procedural and affected the right of a defendant to have his or her case for bail determined upon consideration of all relevant matters, including those affected by the amendment (at [23]).

34 A consideration of the terms of Pt X indicate that the date of the testator's death is relevant only to whether Pt X applies and has no bearing on the operative effect of a legislative change to the provisions in Pt X: s 33. Further, there is no provision of Pt X which affords any significance to the date of an informal Will or the informal alteration of a Will other than s 33 which simply extends the operation of Pt X, irrespective of amendment to its provisions, to alterations or documents containing alterations which are created before Pt X was introduced into the Act. In my view, the approach to be taken in determining the effect of the amendment to s 34 to s 37 of the Wills Act is to apply the principle in Maxwell v Murphy. A change in the standard of proof is a change to the procedure to be applied to the hearing of a matter as it is an aspect of the way in which the hearing is conducted and is unconnected to the subject matter of the proceeding. I am aware of no authority which suggests the contrary proposition. The change being merely procedural, it is to be construed as retrospective in the sense that it applies to the hearing of an action irrespective of whether any relevant aspect of the action occurred before the legislative change. It is necessary then to consider whether, although the change is procedural, it affects an existing right. In relation to criminal matters, the right of an accused person is for the charge against him or her to be tried according to prevailing law. As the High Court observed in Rodway v The Queen (at 521), a person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. In relation to civil matters, a change to the standard of proof simply governs the way in which the right is to be enforced: it does not adversely affect the right being enforced.

35 For these reasons, I have determined that the change to the burden of proof in s 35 applies to the hearing of this action and that the standard to be applied is that the Court must be satisfied that the deceased intended the Will as so altered to constitute his Will.

36 As I have indicated, the affidavit evidence is uncontradicted, without inconsistencies and perfectly plausible. I accept the evidence of the first and second plaintiffs without reservation and am satisfied that the deceased intended the 1996 Will as altered by the informal Will to constitute his Will.

37 If I am wrong in my conclusion as to the effect of the change to the standard of proof, I should add that I would have had no difficulty in being satisfied to the higher standard of the same matter for the same reasons.

38 I have considered whether the attempts to arrange for the attendance of the officer from the Public Trust Office evidences a belief on the part of the deceased that the alteration contained in a separate document did not constitute the deceased's Will but was a mere record of the alterations he intended to make. However, having considered the evidence as a whole and the circumstances in which the deceased found himself, I have formed the view that the signing of the document by the deceased was intended to confer on the document a status beyond that of a reminder of the intended changes. In circumstances where the deceased was highly unlikely to be aware of the precise legal requirements for a valid will and his health was clearly failing, I consider the attempts to contact the Public Trustee's officer simply reflect a desire to formalise the informal changes made to ensure that the altered will would take effect.

39 The final issue for resolution is whether the considerations essential to the exercise of testamentary capacity have been established with respect to the altered Will. The established requirements are the following:

(1) Whether the testator understands the nature of the act and its effects;

(2) Whether the testator understands the extent of the property of which he is disposing;

(3) Whether the testator is able to comprehend and appreciate the claims to which he ought to give effect;

(4) Whether the testator had mental capacity at the time.

Banks v Goodfellow (1870) LR 5 QB 549 (at 565) per Cockburn J.

40 The issue of testamentary capacity was addressed in the affidavit evidence of both plaintiffs. On the evidence before me I am satisfied that when the deceased considered and signed the informal Will he was mentally capable and was of competent understanding in relation to all relevant issues.

41 For these reasons I would make the declaration sought and order that the Will as altered be admitted to probate. The plaintiffs' costs of the action are to be paid from the estate.