SAME -v- FULLER [2012] WASC 196 (11 June 2012)

3 The Deputy State Coroner was satisfied that the deceased had walked off the ledge on the 12th floor of that hotel with the intention of taking his life and found that his death arose by way of suicide.

4 There is evidence from medical practitioners and from hospital records showing that over a period of about three and a half years, from 14 May 2003, and 4 November 2006, there were seven short admissions to Royal Perth Hospital for treatment for symptoms of amphetamine toxicity (14 15 May 2003; 26 May 2003; 24 November 2005; 5 March 2006; 24 October 2006; 8 9 November 2006. and 4 December 2006. On each occasion Mr Wesley Fuller was treated conservatively and discharged later or on the next day after the symptoms had subsided. He had also been seen by at least two general practitioners over the period 6 June to 23 November 2006 for fatigue and other complaints. One of those doctors, Dr Taylor, reported that at his last two consultations with Mr Fuller he appeared as being 'very matter of fact, even abrupt, as I recall, but displayed no overt disturbing mental features'. Dr Taylor added a comment regarding the potential for there to be a closelyguarded mental state disturbance of undetermined severity and questioned the degree to which drugs may have been involved but stated, 'I have no rational explanation for this apart from clinical instinct.'

5 In the action, as alternative claims to the principal relief for proof of the apparent will of 25 October 2006, the plaintiff seeks as an alternative an order for proof of the second will of 18 October 2006 and, failing that, as a further alternative, proof of the first apparent will of 13 September 2006.

6 These claims have been met with a defence and counterclaim by each of the first three defendants who are, respectively, the father and two sisters of the deceased. By that defence they plead that the will of 25 October 2006 is void and of no effect by reason that the deceased lacked the capacity to execute such a testamentary instrument and they plead further that the deceased thereby died intestate. Their defence does not expressly challenge or admit the validity of either of the two earlier wills but the position of those defendants, until the compromise mentioned later was reached, was clearly to the effect that the deceased did not have the testamentary capacity to make any will during the period September to October 2006 and that each of those wills, if not revoked, was also invalid. These three defendants each counterclaim for a declaration that the deceased had died intestate and for an order that letters of administration of the intestate estate of the deceased should be granted to his father, the first defendant.

7 The fourth defendant, The Cancer Council of Western Australia Inc, is a beneficiary named in the will dated 25 October 2006, the first will being propounded by the plaintiff, and the fifth defendant is a beneficiary named in the will dated 13 September 2006, the earliest of the three wills. Appearances and defences have been entered and filed by the fourth and fifth defendants and each has also filed a notice of intention to abide by the court's decision in this action and notifying that it did not intend to take any further part in the proceedings. Neither the fourth or the fifth defendant appeared or was represented at the trial. The plaintiff in the action is the sole executor named in each of the three wills.

8 By deed made 24 June 2010, that is, after the present action had been commenced, all the parties to the action entered into a deed of family arrangement setting out their agreement upon the basis upon which the estate of the deceased should be administered and distributed whether or not any of the three wills of the deceased already mentioned were in fact to be admitted to probate. Although not expressly provided for by that deed, the instrument proceeds on the basis that the plaintiff will proceed with the current action seeking a grant of probate of the will of 25 October 2006, or failing that one or other of the earlier wills and, in the event that probate of any of the wills is obtained (or even if it is not and the deceased therefore died intestate) then administration and distribution of the estate of the deceased will be according to the terms of the deed which provide for variations in the distribution otherwise provided for by any of the three wills. At this point, it is not necessary or relevant to describe the terms of that deed any further.

9 Consequently, orders were made at case management conferences by a Registrar, and later amended, providing that the plaintiff have leave to set the action down for trial on an undefended basis pursuant to Rules of the Supreme Court 1971 (WA) O 73 r 19 and that subject to further order of the court evidence at the trial be adduced by affidavit subject to the deponents being available for crossexamination on notice.

10 In the event all the evidence at the trial was in documentary form consisting of affidavits, identified below, and other documentary evidence in the form of certificates of the birth of the deceased and that a search had been made of the registry and that no records of any marriage of the deceased had been found. At the trial all the evidence was adduced by the plaintiff and there was no crossexamination sought of any of the deponents of the affidavits read.

11 There were 17 affidavits read on behalf of the plaintiff, the details of which are:

1. Affidavit of Garry Evan Same of testamentary scripts sworn 10 June 2008.
2. Affidavit of Russell Charles Fuller of testamentary scripts sworn 31 July 2008.
3. Affidavit of Allison Dawn Bradshaw of testamentary scripts sworn 1 August 2008.
4. Affidavit of Jocelyn Kaye Vuletich of testamentary scripts sworn 11 August 2008.
5. Affidavit of Russell Charles Fuller in support of the first, second and third defendants' defence sworn 20 April 2010.
6. Affidavit of Jocelyn Kaye Vuletich sworn 27 April 2010.
7. Affidavit of Allison Dawn Bradshaw in support of the first, second and third defendants' defence sworn 29 April 2010.
8. Affidavit of Peter Albert Nevin sworn 23 July 2010.
9. Affidavit of Russell Charles Fuller in support of application for letters of administration sworn 1 October 2010.
10. Affidavit of Glenn Bernard Giles sworn 31 January 2011.
11. Affidavit of Gerald Kenneth Grinceri sworn 15 February 2011.
12. Affidavit of Alan Leckie sworn 23 February 2011.
13. Affidavit of Leanne Ruth Killigrew sworn 28 February 2011.
14. Affidavit of Kennan Taylor sworn 2 March 2011.
15. Affidavit of Ernst de Jong sworn 17 March 2011.
16. Affidavit of Hon Kin Choy sworn 7 July 2011.
17. Affidavit of Garry Evan Same sworn 9 February 2012.

12 The first, second and third defendants did not maintain their opposition to the plaintiff's claim for proof of the will of 25 October 2006 and, despite the existence of the pleading, did not press or seek to prove their counterclaim. The issues for decision, therefore, as they emerged after the trial are whether or not the plaintiff is entitled to a grant of probate of the will of 25 October 2006 notwithstanding some evidence which showed that the deceased had, over the last few years of his life, been leading a somewhat eccentric lifestyle; had been misusing drugs and had given to his solicitors instructions for the preparation of wills which, while in no way absurd, incomprehensible or bizarre, made no provision for members of his family. The evidence establishes that while the deceased does not appear to have been estranged from his father or sisters, all of whom had made repeated attempts to stay in contact with him and enquire about his welfare, he preferred to lead a solitary and unconventional lifestyle and would often ignore attempts by members of his family or friends to contact him.

13 The plaintiff is the sole executor in the will of 25 October 2006 which is being propounded for probate. He is a duly certificated legal practitioner and a member of the firm of legal practitioners which prepared all three wills of the deceased.

14 The affidavit of Mr Fuller, the first defendant and father of the deceased, includes uncontested evidence that the deceased's mother died on 13 June 1990 and that the only siblings of the deceased are the second and third defendants, another brother, Kirwan Russell Charles Fuller, having died on 9 April 2005. His father also deposes that the deceased did not adopt any child and that there is no person known to him who is or claims to be an illegitimate child of the deceased or who claims to be entitled in distribution through any such person. He also deposes that to his knowledge and belief there was and is no spouse or de facto spouse of the deceased who may be eligible to make an application for letters of administration.

15 Also set out in Mr Fuller's affidavit is a statement of assets and liabilities prepared in accordance with the form required by Non-Contentious Probate Rule 9B showing that the deceased died leaving estate within Western Australia. This statement shows that the deceased's estate comprised of assets totalling $379,095.42, consisting of various bank and other deposit accounts, a rental bond, some furniture, cash and personal effects and an investment portfolio. There is no immovable property listed and there are debts totalling $9,271.74, including funeral and similar expenses totalling $7,6084.60.

16 In a later affidavit the deceased's father, Mr Russell Fuller, explains that Wesley Fuller had been left the house and land situate at and known as 52B Corbel Street, Shelley under his late mother's will. Wesley Fuller sold that house in August or September 2006 under a contract of sale by offer and acceptance dated 4 August 2006 for a price of $470,000. The net proceeds of that sale appear to be the source of the portfolio of investments and cash deposits comprising the deceased's estate at death, although that had obviously been depleted by expenditure of the deceased before his death. His father believes that he had spent about $100,000 in the last three months of his life. For much of that period he had been living in a succession of hotel rooms.

17 The various affidavits of testamentary scripts identify only the three wills of the deceased already described. The plaintiff's affidavit of scripts also includes, as appropriate, records of instructions taken by the plaintiff's solicitors and communications between those solicitors and the deceased in relation to the preparation of the several wills and notes of instructions given by the deceased, but these are all consistent with the terms of the respective wills. None of the defendants has ever suggested that there is any other will, codicil or testamentary document.

18 Each of the three wills appointed the plaintiff as sole executor or, in the alternative, another partner of the firm of Taylor Smart Lawyers. Each is made in conventional form and contains a clause providing that all former testamentary dispositions made by the deceased were revoked by that testament. Each will contained a conventional attestation clause and was executed by the deceased in the presence of two witnesses. Each of the wills in form and manner of execution complies with the formal requirements of s 8 of the Wills Act 1970 (WA).

(a) Certain documents and compact discs (CDs) were to be given to Messrs Mark Thomas Tremonti and Scott Anthony Stapp in the United States of America, to be delivered (preferably in person) by the executor within six months of the deceased's death.

(b) The residuary estate was to be divided equally between Messrs Tremonti and Stapp and, in the event that both did not sign for the said bequests or predeceased the deceased, the residuary estate was to pass to the fifth defendant, named in this will as Aquinas College.

(c) In the event that one of the said Messrs Tremonti and Stapp did not sign for his bequest and the other did sign, the signing party was to receive the nonsigning party's share of the residuary estate.

(a) The contents of a sealed envelope were to be given to a Mr Robert Bruce in the United States of America to be delivered (preferably in person) by the executor.

(b) 15% of the residuary estate was to be given to the said Mr Bruce in the event that he personally signed for the earlier bequest, and the balance of the residuary estate was to be used to pursue any civil litigation commenced at the time of his death by the deceased through the legal firm of Mallon & Co.

(c) In the event that there was a balance of the residuary estate remaining following completion of such litigation, this was to be divided equally between the firm of Mallon & Co and the fourth defendant, The Cancer Council of Western Australia (Inc).

(d) In the event that no litigation had been commenced as contemplated, the residuary estate of the deceased was to be left to the fourth defendant.

(a) Certain sealed envelopes and their contents were to be given to the said Mark Thomas Tremonti and Scott Anthony Stapp and also to Messrs Edward Kowalczyk and Edward Vedder, also in the United States of America, to be delivered (preferably in person) by the executor within six months of the deceased's death. Upon such delivery:

(i) 9.5% of the deceased's residuary estate was to go to the executor on receipt of each signature confirming receipt of the envelope, to a maximum of 38% of the deceased's residuary estate. Any amount unpaid to the executor in this regard due to the lack of a signature by one or more of the beneficiaries would instead be paid to the fourth defendant; and

(ii) The first of the aforesaid signing parties would receive copyright to the deceased's music. This will describes Messrs Stapp, Tremonti, Kowalcyzk and Vedder at cl 8(v) as 'commercially successful musicians', and stipulates that the executor is to utilise 'an agent with the necessary contacts in the music or entertainment industry who has the means to liaise directly with the official management of' Messrs Stapp, Tremonti, Kowalzczyk and Vedder ('the agent');

(b) 12.5% of the residuary estate was to be given to each of the said Messrs Stapp, Tremonti, Kowalczyk and Vedder in the event that they signed personally for that bequest. Any amount unpaid due to the lack of a signature was to be distributed equally between those of the four who did sign.

(c) 3% of the residuary estate was to be given to the agent for each beneficiary signature obtained, to a maximum of 12% of the residuary estate. Any amount unpaid to the agent due to the lack of a signature by any one or more of the named beneficiaries of the bequests of the envelopes was to be paid to the fourth defendant.

(d) In the event that none of the signatures was able to be obtained, the entire residuary estate would instead be used to pursue any civil litigation commenced at the time of the deceased's death on his behalf through the legal firm of Mallon & Co.

(e) In the event of there being a balance of the residuary estate remaining following the completion of such litigation, the balance was to be shared equally between Mallon & Co and the fourth defendant.

(f) In the event that no litigation had been commenced as contemplated, the balance of the residuary estate was to go to the fourth defendant.

22 The various sealed envelopes believed to be containing CDs (presumably of the deceased's music) cannot be found. An account of the history of them is contained in the affidavit of Mr P A Nevin of 23 July 2010. Evidence also possibly dealing with the envelopes and CDs is set out in the affidavit of the first defendant sworn 20 April 2010.

23 The envelopes referred to in the will of 25 October 2006 were:

(a) a sealed envelope bearing the name and address of Scott Anthony Stapp of Creed Ink, PO Box 618228, Orlando, Florida 328618228;

(b) a sealed envelope bearing the name and address of Edward Kowalczyk of C/- Friends of Live, PO Box 20266, Lehigh Valley, PA 18002, USA;

(c) a sealed envelope bearing the name and address of Edward Vedder of C/- Pearl Jam, PO Box 481, Seattle, Washington, USA; and

(d) a sealed envelope bearing the name and address of Mark Tremonti of C/- Alter Bridge, PO Box 616608, Orlando, Florida.

24 Enquiries made by the plaintiff's solicitors of former employees of the firm of Taylor Smart reveal that a draft copy of Mr Fuller's will signed by him and witnessed in draft form along with a number of envelopes was received by post by an employee of the firm under instructions that these were to be stored with his will. These appear to be additional to and in substitution for sealed envelopes containing documents and CDs which were referred to in the two earlier wills. The last record of the whereabouts of any of these envelopes in the possession of the plaintiff's firm is a statement on the deceased's file signed by a partner of the firm to the effect that the last time that this partner, Mr Giles, saw Mr Fuller was on 30 October 2006. According to the note, this was a very brief meeting with Mr Fuller in the firm's reception area when he attended to collect some envelopes containing CDs of his musical works. Subsequent searches of the records of the firm of Taylor Smart have not discovered any envelopes or CDs remaining in their possession. The plaintiff has made enquiry of various third parties as to any property of the deceased which might be in their possession which have revealed that:

(i) The deceased's belongings left at the Novotel Langley Plaza Hotel were removed by the police service attending the scene of the deceased's death.

(ii) The only other item located was a laptop computer left at the Hyatt Regency Perth, which had been returned to the first defendant in the days following the death of the deceased.

(iii) The Western Australian Police Coronial Investigation Unit advised that a suitcase containing the deceased's possessions was handed to the first defendant following his death. The solicitors for the first, second and third defendants subsequently advised the plaintiff's solicitors that the suitcase delivered to the first defendant by the police contained simple clothes of nominal value and no papers of any description.

25 In his affidavit of 20 April 2010 the deceased's father, Mr Russell Fuller, describes the few items of the deceased's property which were recovered, received or found by him after the death, including the contents of the suitcase delivered to him by the police. None of these included envelopes addressed to the beneficiaries named in the wills or CDs for them and Mr Russell Fuller has been unable to locate any of those envelopes. Mr Fuller also says that other items recovered from the hotel after Wesley's death included about 200 CDs which had been smashed into many pieces, about four to six pairs of scissors, and a Tshirt also cut into pieces. His father does not believe that the deceased was friends with or knew personally any of the band members or people from the music industry referred to in the will or wills.

26 The conclusion which has been drawn by the parties to the deed of family arrangement, after advice, and upon which the deed of family arrangement is premised, is that the absence of the envelopes and their apparent loss or destruction evidently at the hands of the deceased, means that delivery of the envelopes to the named beneficiaries has become impossible and, accordingly, the obtaining of the written receipts by those beneficiaries as stipulated in the will is also impossible. On that basis, the parties to the deed of family arrangement have concluded and agreed that the bequests to those named beneficiaries fail because of the inability to satisfy the condition upon which they are each based, namely delivery of the respective envelopes to the respective beneficiaries who must each sign personally a receipt for that envelope.

27 It is neither necessary nor appropriate for these present proceedings to consider or to attempt to determine whether or not those conclusions are correct or lead to the consequences assumed in the deed of family arrangement. The plaintiff, and for that matter the first, second and third defendants, are only seeking proof of the will of 25 October 2006 as it stands. A grant of probate of that will to the plaintiff will require him to administer the estate according to law in accordance with that will. If, on a proper construction of the will and in the events which have happened, the four named beneficiaries in the United States are not entitled to any benefits under the will, that will be the course dictated by the requirements of due administration. If, however, one or more of the beneficiaries is entitled to distribution to any extent under the will, then that right will remain regardless of any agreement to the contrary by the parties to the deed of family arrangement and the plaintiff, if granted probate, would be liable at the suit of any or all the beneficiaries so entitled if he failed to distribute in accordance with the proper construction of the will in the events which have happened. This was made clear to counsel for the plaintiff and for the first, second and third defendants in the course of this trial and counsel confirmed that their clients would be fully cognisant of this. However, as already observed, a grant of probate of the will as sought does not require any determination of these questions which, if they ever become controversial, may be determined on a construction summons or in some other appropriate proceedings.

28 The will dated 25 October 2006 was executed by the deceased at the offices of the solicitors engaged to prepare it and witnessed by two legal practitioners of that firm, Leanne Ruth Killigrew, and Glen Bernard Giles. Affidavits by them of due execution have been filed and read to the effect that the will was executed by the testator in their presence and that they each subscribed their signature as a witness in the presence of the testator and of each other. The affidavit of Mr Grinceri in this respect expressly states that at the time of making the affidavit he had no direct recollection of witnessing that will of the deceased but he confirmed that it was his signature on the document and that it was his practice on the many occasions on which he signed as an attesting witness of a will to do so in the presence of the testator and the other witness. There is no reason to doubt that the will was duly executed by the testator and subscribed by the two attesting witnesses.

29 The three wills were executed over a period of five to six weeks. The evidence shows that, when taken together, the instructions of Mr Wesley Fuller which eventually led to the preparation of the will of 25 October 2006 were given to the solicitors, Taylor Smart, on 27 July 2006, 11 August 2006, 14 August 2006, 15 September 2006, 9 October 2006, 12 October 2006, 13 October 2006, 17 October 2006, 18 October 2006, 23 October 2006 and on the date of execution, 25 October 2006. The handwritten instructions of Mr Wesley Fuller given to Ms Killigrew of Taylor Smart on 11 August 2006 list his assets as being an unencumbered property valued at $450,000 and personal effects totalling $5,000. This compares with the list of his assets and liabilities at the date of death as set out in the r 9B statement annexed to his father's affidavit, that of the first defendant, already mentioned, which lists the deceased's assets as cash and share investments totalling $379,095 and liabilities of $9,271.74. The difference can be explained by the fact that on 4 October 2006 Mr Wesley Fuller agreed to sell his house and land at 52B Corbel Street, Shelley, for $470,000, as contrasted to the figure of $450,000 which he had specified in his instructions as his estimated value of the house and land and by making allowances for high rates of expenditure associated with the deceased living in various hotels up until the date of his death.

30 Affidavits from Mr Giles and Ms Killigrew have been read describing meetings which each had with Mr Wesley Fuller in the course of preparing what was to become the will of 25 October 2006. Each has sworn that it appeared to him or to her that the deceased was aware of the extent and nature of the property of which he was disposing; that he was aware of the persons who would have had claims that he should consider, and that he was clear as to how he wished to distribute his assets. Ms Killigrew states that the deceased said to him that he 'had no family', which I consider should be taken as meaning that he had no wife, partner or children.

31 It is submitted for the plaintiff that the will of 25 October 2006 is rational on its face, notwithstanding that the bequests of specific assets under certain conditions to musicians in the United States, who may be taken to be unknown personally to the deceased, is from some viewpoints unusual, that is not indicative of irrationality. Wesley Fuller was a keen budding musician and had described himself as a 'fan' of the individual beneficiaries from the United States named in the will. It is evident that the deceased had a strong interest in music. It was submitted, and I accept, that the fact that a gift may be considered as unusual, or even illadvised, is not enough by itself to establish testamentary incapacity: Hobart v Merryfield (1844) 2 LT (OS) 518 (see also Peter Graham QC, 'Substantial Validity of Wills' (1998) 72 Australian Law Journal 889).

32 It is apparent from the evidence of the first defendant that Wesley Fuller experienced continuing difficulties and apparent emotional disturbances following the death of his mother when he was aged nine. After his mother's death he stayed with his grandmother until he began attending boarding school at the age of 12 or 13, but still returning to his grandmother's house on weekends and holidays. According to his father, his grandmother described him as being 'strange' although his father did not attach great significance to that. He completed secondary school and subsequently enrolled in an accounting degree at the University of Western Australia, living independently over the years leading to the completion of his degree and working parttime with an accounting firm.

33 Mr Fuller, the first defendant, refers to Wesley Fuller attending various medical appointments concerning his reaction to his mother's death which were made of Wesley's own accord. During this period he attended a psychiatrist at least once and his father was called in for discussion by a doctor at Heathcote Hospital on one occasion. However, Mr Fuller is not able to provide further information in this regard.

34 Shortly before his 24th birthday Wesley moved into the house at 52B Corbel Street, Shelley and at that time had a job in Osborne Park. After that, his father says that he never worked as an accountant again and only gave the explanation that he could not work because he was on sickness benefits for medical reasons. Again, his father is not aware of the details but the brief explanations offered to his father by the deceased are highly suggestive of a condition of chronic depression.

35 His father describes a lifestyle from then on up until Wesley's death of increasing isolation and odd and dysfunctional behaviour. The house at Shelley, when the father visited it, was not looked after, the rooms, kitchen and bathrooms were left dirty, drains were blocked, walls were draped with odd posters, furniture was found burned in the backyard including, on one occasion, Wesley's guitar. There is other evidence from friends that attempts by them to contact the deceased were rebuffed, that he would not answer his telephone or respond to calls at the door. There is a detailed account by his father of what might be regarded as strange behaviour by the deceased during the latter half of 2006 but, during that time, he saw no need for intervention, nor did he have any special concerns about his son.

36 Earlier reference has been made to the deceased's admissions to Royal Perth Hospital with symptoms of amphetamine misuse and of his attendances on Dr Ken Taylor between 6 June and 27 July 2006 for treatment of fatigue and again on 30 October and 23 November 2006 for treatment of fear of flying.

37 In retrospect, there are many signs to suggest that Wesley Fuller was suffering from periodic bouts of depression or other emotional disturbances probably from shortly after his mother's death. Nevertheless, he successfully completed a secondary education, he matriculated, completed a university degree and then became absorbed in music. His statement to his father that he was not working because he was on sickness benefits due to a medical condition implies that his condition was by then chronic but none of this amounts to any diagnosis of a psychotic condition or disease.

38 It seems fairly clear that in the months or years leading up to his death Wesley Fuller was misusing amphetamines but, again, this does not connote or imply that he was suffering from any mental disease or disorder. He was seen by at least three medical practitioners over the six months prior to his death and none concluded at the time that he had any mental disease or incapacity although one, Dr Taylor, no doubt with keen clinical insight over the lifetime of his career, suspected that there may be some deep seated and concealed disorder. He was seen by two experienced legal practitioners who took his instructions and prepared his wills and neither of these persons had any doubts or anxieties about his capacity to make the will of 25 October 2006.

39 One can certainly understand and sympathise with the reasons for the concern of the first defendant, the deceased's father, and his two sisters about Wesley Fuller's capacity at the time of making these three wills. No doubt they were concerned about their son and brother's behaviour and shocked and distressed at the circumstances leading to the end of his life. It does seem that the deceased was isolated, lived in a world in which he was absorbed by his interest in music and found it difficult or impossible to work with or relate to others. The very terms of the will also tend to confirm this kind of isolation and orientation. However, distressing though this undoubtedly is, it does not amount to grounds for concluding that Wesley Fuller lacked testamentary capacity at the time he made the will of 26 October 2006.

40 The tests of testamentary capacity are well known and are set out in Banks v Goodfellow (1870) 5 QB 549; [186173] All ER Rep 47. The burden of proof of establishing testamentary capacity at the time a will was made rests upon the person propounding the testament but such a plaintiff may rely on the presumption that a will rational on its face suggests that the testator had testamentary capacity: Sutton v Sadler [1857] EngR 738; (1857) 3 CB (NS) 87; (1857) 140 ER 671, 98.

41 In this case it is significant that, although allegations of want of testamentary capacity have been pleaded by the defendants, and there is some circumstantial evidence which gives a limited degree of support for those contentions, none of the defendants desires to persist with any allegation that the testator lacked testamentary capacity. There is other direct evidence showing that in the view of experienced legal practitioners who were involved in the preparation of the will there was no reason to conclude or suspect that the testator lacked capacity. The medical evidence, while confirming a background largely indicative of chronic depression, does not even approach any opinion that at the time the wills were made there was lack of testamentary capacity. It is necessary to notice these allegations and the evidence which I have mentioned in order for the court to determine a resolution of these proceedings notwithstanding that the parties have reached a compromise leading to their agreement that the will of 25 October 2006 should be propounded without opposition and should be the subject of a grant of probate.

42 This position has been addressed many times before in this court and in other like jurisdictions. In Western Australian Trustee, Executor & Agency Co Ltd v Holmes [1961] WAR 144, 146 it was decided that the propounder of a will may take advantage of the presumption that a testament properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind. In Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571 572 the court held that to displace a prima facie case of capacity and due execution, mere proof of serious illness is not sufficient. There must be clear evidence that the illness of a testator so affected his mental faculties as to make them unequal to the task of disposing of his property. Again in Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453 the court held that the effect of a doubt as to testamentary capacity, 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 thought by the court to be substantial enough to preclude a belief that the document propounded is the will of a testator who possessed sound mind, memory and understanding at the time of its execution.

43 The role of a court when faced with a situation where a named executor seeks to prove a will but where there may be grounds to challenge that will or propound some other testament but no interested person comes forward to propound such an alternative or to seek a grant of letters of administration has been considered in a number of recent cases including Wheatley v Edgar [2003] WASC 118, Hoare v Reyburn [2010] WASC 301 and Thornhill v Thomas [2010] WASC 297. The only persons who would be entitled to benefit in the case of an intestate distribution, which would follow if all of the three wills made by the deceased in the latter part of 2006 were invalid for want of capacity, are the members of his family who are already joined as the first, second and third defendants. None of these wishes to press for any such alternative grant of representation. Whether this decision is due to the agreement of compromise which has been embodied in a deed of family arrangement or for other reasons does not matter.

44 I am satisfied that the evidence established that the will of Wesley Matthew Charles Fuller made 25 October 2006 is his last will and testament, was made by a competent testator, and was unrevoked at the time of his death. It follows that at the conclusion of the trial I ordered that there should be a grant of probate in solemn form of law of that will to the plaintiff as the sole executor and that the form of grant should be settled by a probate Registrar. The costs of these proceedings should be paid out of the estate.