MATTER : Will and Estate of BERTRAM ROBERT JENNINGS (Dec)

BETWEEN : PUBLIC TRUSTEE (IN AND FOR THE STATE OF WESTERN AUSTRALIA)

Wills - Probate - Informal will signed but not witnessed - Whether informal will should be given effect under s 34 of the Wills Act 1970 (WA) - Testamentary capacity - Whether onus of proof discharged - Turns on own facts

Wills Act 1970 (WA), s 34

Pronouncement for the force and validity of the will dated 29 October 1999

Grant to the plaintiff of letters of administration with the will attached

1 BEECH J: In this action the plaintiff claims that the court pronounce for the force and validity, as the will of the late Bertram Robert Jennings, of a handwritten document, dated 29 October 1999. I will refer to the document as the 1999 informal will. The plaintiff also seeks a grant to it of letters of administration with that will annexed.

2 At the hearing of the matter, the plaintiff was represented by counsel. The defendants did not take part in the trial. Each of the defendants has indicated a willingness to abide the decision of the court. That, I am told, follows upon a settlement between the parties to this action.

3 The first and second defendants are the named beneficiaries under the 1999 informal will.

4 The deceased had, on 17 March 1994, executed a will, duly attested pursuant to s 8 of the Wills Act 1970 (WA). That will named Ms Joy Irene Jaffrey as the executor and sole beneficiary. Ms Jaffrey died in 1997. Thus, in the event that the 1994 will was operative at the time of the death of the testator, an intestacy would have arisen under the 1994 will.

5 The third defendants are the persons entitled to the deceased's estate upon an intestacy.

6 While there was evidence before me of other testamentary instruments (formal and informal), I am satisfied that, in substance, the only candidates for pronouncement as the will in force at the time of the death of the deceased are the 1999 informal will and the 1994 will.

7 In those circumstances, I am satisfied that all of the persons with an interest in these proceedings were named as parties.

8 The document propounded by the plaintiff in this action is a single page in the handwriting of the testator. Relevantly, it states as follows:

This is to be my last will, I Bertram Robert Jennings leave half of everything I own to the angels at Catherine House who have looked after me so wonderfully, at this the end of my life on earth; I can now die with a clear mind God bless you all ... The other half of everything I own goes to my step granddaughter Tyler Vine.

9 In substance, two issues arise. The first is whether, notwithstanding that the 1999 informal will is not executed in accordance with s 8 of the Wills Act, it can be declared to be the testator's will, under s 34 of the Wills Act. That section provides as follows:

A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will.

10 The second issue is whether the testator had testamentary capacity at the time of execution of the 1999 informal will.

Section 34 of the Wills Act

11 I am satisfied, for the reasons which follow, that the power under s 34 of the Wills Act should be exercised in this case.

12 Section 34 requires four matters to be established in order that the power be exercised. First, there must be a document; second, the document must not have been executed in accordance with s 8 of the Wills Act; third, the document must purport to embody the testamentary intentions of the deceased; finally (and, usually, most critically), the court must be satisfied that the deceased intended the document to constitute his or her will.

13 The informal will is a document which does not comply with s 8. It plainly purports to embody the testamentary intentions of the deceased. By its terms, it sets out who the deceased intended to leave his property to, upon his death.

14 Given that provision, and the use of the language 'last will' in circumstances where the deceased had already signed earlier wills, I am satisfied that the deceased intended the 1999 informal will to constitute his will.

Did the deceased have testamentary capacity?

15 In order that a testator have testamentary capacity, he (or she) must have had sufficient mental capacity to comprehend the nature of the act of making a will and its effects, to understand the extent and character of the property being dealt with, and to comprehend and appreciate the claims upon his bounty which naturally ought to press upon him in making his will. In order to understand these matters the testator's mind must be free to act in a natural, regular and ordinary manner: Banks v Goodfellow (1870) LR 5 QB 549, 565; Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283.

16 The onus of proof of testamentary capacity lies upon the propounder of the will: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.

17 However, the plaintiff sought to invoke the principle that where a will has been executed and attested in a normal manner a presumption arises that the testator had the requisite mental capacity (as to which see Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 343; West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144, 146).

18 In Public Trustee (WA) v Drennan [2004] WASC 101 [24], Le Miere J held that because the testamentary instrument in question in that case had (like the informal will in question here) not been duly executed, no presumption of testamentary capacity was available to assist the plaintiff. In this case, the plaintiff invited me to take a different approach, submitting that the principle of presumption of capacity should also apply where a court is satisfied that the requirements of pt X of the Wills Act was satisfied in respect of an informal will. However, in my opinion, whatever the scope of the presumption invoked by the plaintiff, it does not assist in the resolution of this action.

19 The presumption relied on by the plaintiff has a practical operation only in circumstances in which there is an absence of evidence respecting the testamentary capacity of a testator. Once there is evidence which is 'sufficient to throw a doubt upon the testator's competency' (Bull v Fulton 343) then the onus of persuasion is upon the proponent of the will. The proponent must satisfy the court that the testator had the requisite capacities. Here, as will be developed later in these reasons, the evidence as a whole does throw doubt upon the testator's capacity, so there is no room for the operation of the presumption upon which the plaintiff seeks to rely. Rather, the question is whether, on the whole of the evidence, the plaintiff has discharged its onus as to the testator's capacity; see also Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453.

20 For the reasons which follow, I am satisfied that the testator had the relevant mental capacities required for testamentary capacity.

21 The plaintiff has adduced medical evidence relating to the testator encompassing the period from 1998 until 2000.

22 The overall picture which emerges from the evidence is that the testator's cognitive capacity was deteriorating in the final years of his life. On the whole of the evidence I am, on balance, satisfied that, by the time he made his informal will on 29 October 1999, the deceased's mental capacities had not deteriorated to the point where he was deprived of any of the relevant capacities.

23 In March 1998 a consultant physician, in consultation with a psychogeriatrician, expressed the considered opinion that the testator had normal mental state and full testamentary capacity. By August 1998 a medical officer at the North Metropolitan Health Service expressed the opinion that the testator was unable to give reasonable rational informed instructions relating to his motor car, which he wanted to continue driving despite being unfit to do so. However, in other matters concerning his financial affairs he was said to be able to give rational informed instructions.

24 The medical examination of the testator prior to the execution of the 1999 informal will and closest in time to that event occurred on 22 April 1999. At that time he was seen by Dr Sharon Hodgson, then a psychiatric registrar at Osborne Lodge. Dr Hodgson expressed the view, in April 1999, that the testator had some memory deficits as well as some damage to his brain, most likely from excess alcohol use, which resulted in disinhibitation and poor judgment. She concluded that the impaired memory and lack of judgment put the testator in the position where he was unable to give adequate directions regarding his finances, so that he would be better served if the handling of his finances were to remain with the Public Trustee.

25 I accept the submission on behalf of the plaintiff that the opinion of the doctor in relation to the management of the testator's finances does not control the question of his testamentary capacity. The question of capacity to manage day-to-day matters of finance is quite different from the specific subject matters of mental capacity for the purposes of testamentary capacity.

26 In his consultation with Dr Hodgson in April 1999, the testator evidently demonstrated an understanding of the assets he had, namely his house and a sum of money in the bank. That evidence provides direct support for a conclusion that the defendant had the capacity to understand the extent of his property.

27 I am satisfied that the testator had the capacity to understand the nature of what is involved in a will. In the 1999 informal will he used the language of 'will'. He referred, in the informal will, to a previous will and its location, in a context which I take to be an indication of an understanding on the part of a testator that the informal will he was executing would revoke the earlier will.

28 In support of its submission that the court should be satisfied that the testator had the capacity to comprehend and appreciate the claims upon his bounty, the plaintiff invited attention to the contents of the informal will in the context of the various wills previously made by the testator. It is, I accept, appropriate to have regard to the contents of the will in assessing the question of capacity: see, for example, Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571 (Isaacs J).

29 The testator's reasons for the bequest to Catherine House appear on the face of the will. The will refers to 'the angels' at Catherine House 'who have looked after me so wonderfully at this the end of my life on earth'. There is nothing in the evidence before me to suggest that any mental impairment on the part of the testator lead to him suffering any delusions. (There may be a question as to how the bequest to 'the angels at Catherine House' is to be construed, but that is not a question that arises for decision in the context of this application.)

30 The testator did not leave the whole of his estate to Catherine House. One half was left to that organisation and the other half to the person described as his step granddaughter, the second defendant. She evidently had a long relationship with the testator. Moreover, she was a substantial beneficiary under previous wills signed by the testator or prepared at his request.

31 A will signed in February 1984 (but not attested) provided that the deceased bequeathed his house and its contents to the second defendant, his investments with the R&I Bank and his car to Mr Troy Vine and his boat to his brother Mr Douglas Jennings. A further unsigned and undated will provided similarly, with the exception that the investments with the bank and his car were left to Ms Jaffrey. Ms Jaffrey was, for many years, the partner of the testator. Two wills executed in 1994 provided that all of the estate of the testator was left to Ms Jaffrey.

32 Following Ms Jaffrey's death in 1997, the plaintiff submits that the provision in the 1999 informal will of half of the estate to the second defendant is consistent with the testamentary preferences expressed in the earlier wills. I accept that submission.

33 For the reasons given, I am satisfied that the testator had testamentary capacity when he executed the 1999 informal will.

34 I will hear from the plaintiff as to the appropriate orders to give effect to these reasons.