Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; McFadyen v Bluett [2017] TASSC 72; Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, applied.

Wills Act 2008 (Tas), ss 8 and 10.

Judgment Number: [2019] TASSC 20

BEVERLY ANN SUTHERLAND and MAXWELL JOHN BUTLER (as personal representatives of the estate of MARIA CECYLIA BORKOWSKI)

1. Maria Cecylia Borkowski, the deceased, died on 13 July 2011. She was 82 years of age at the time of her death. The evidence suggests that she was born in Poland and lived there until she came to Australia as a young adult. She lived in Australia for the rest of her life.
2. Mrs Borkowski made at least three wills during the course of her life. These were made on 11 July 2003, 5 February 2009 and 24 May 2010. In the 2003 will, she appointed the plaintiffs as her executors and trustees. The defendant was appointed as the personal representative of her estate in the 2010 will.
3. The plaintiffs commenced these proceedings by writ in 2016. The plaintiffs sought to prove the 2003 will in solemn form. The defendant, by counterclaim, sought a similar order in respect of the 2010 will. On 3 October 2018, the plaintiffs discontinued their action. Their defence to the counterclaim had been struck out on 14 August 2018 as a result of a consent order. These steps were taken pursuant to an agreement between the parties reached at mediation.
4. The defendant now pursues the counterclaim. In particular, the defendant seeks a grant of probate in solemn form in respect of the 2010 will. The plaintiffs are no longer participating in the proceeding and did not appear at the trial.

1. In Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, Lindsay J described the court's pronouncement of probate in solemn form as follows at [248]-[249]:

"In making an order for a grant in solemn form the Court must satisfy itself that there are reasonable grounds for a determination calculated, so far as the Court fairly can, to bring finality to any controversy about the testamentary intentions of the deceased, if any. The object of an application for a grant in solemn form is to secure a judgment of the Court binding on all persons who might be entitled to challenge the validity of a will: Re Young, Hobbs v Christchurch City [1968] NZLR 1178 at 1178 (46).

A grant expressly issued 'in solemn form' is a judicial statement that, on the Court's then assessment:

(a) all persons interested in the making of a grant (and, particularly, those with an interest adverse to the making of a grant) have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant;

(b) on evidence then formally noticed, the Court is satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions, if any; and

(c) an order for a grant in solemn form appropriately serves the due administration of justice."

1. In McFadyen v Bluett [2017] TASSC 72, after noting the above passage from Kouvakas, I said at [39]:

Accordingly, a court intending to make a grant which will give effect to a will, must satisfy itself of the validity of the will. In order to be satisfied of validity, the court will normally require adequate proof of due execution. The court will not simply rely on a compromise between the parties in order to make the grant. Where proper execution is proved, a presumption will arise, in the absence of evidence to the contrary, that the will was made by a person with adequate capacity to do so: Wheatley v Edgar [2003] WASC 118 at [24]. In Kouvakas, Lindsay J noted at [246] that 'The court may, in appropriate circumstances, waive strict proof of due execution, relying on a presumption of validity arising from the production of an apparently duly executed will, rational on its face; Blake v Knight (1843) 3 Curt 547 at 561 and 564'."

1. In their defence to the counterclaim, the plaintiffs had alleged that at the date of execution of the 2010 will, the testatrix lacked testamentary capacity to execute the will. In particular, it had been asserted that by reason of a condition of dementia, she was unable to and did not understand:

(ii) the claims on her estate to which she ought to give effect; and/or

1. As this defence has been struck out, these claims are no longer made. Accordingly, it would seem that the presumption of adequate capacity arising from due execution is applicable. However, out of an apparent abundance of caution, the defendant has adduced evidence establishing as a matter of fact, the capacity of the deceased at the date of signing the 2010 will, and rebutting any suggestion of lack of testamentary capacity arising from the pleadings. As the evidence has been presented, and the Court has an overriding duty to satisfy itself of the validity of the will, I will give consideration to this question in the context of the relevant evidence.

1. I will now summarise the evidence concerning the execution and contents of the relevant testamentary documents. This evidence was presented by affidavit. That procedure was authorised by r 741 of the Supreme Court Rules 2000.
2. At the time of signing the 2003 will, Mrs Borkowski was 74 years of age. It can be inferred from the evidence that she had lived in Tasmania for many years. She and her late husband had had a long-term friendship with the parents of the defendant. The defendant was born on 16 July 1973. Mrs Borkowski and her husband shared European origins with the parents of the defendant. The evidence of the defendant is that the relationship between the two families was very close. The defendant shared a close relationship with Mrs Borkowski for the whole of her life.
3. The defendant describes the plaintiff, Beverley Sutherland, as having "cared for" Mrs Borkowski between 2002 and 2005. The 2003 will was obviously executed during this period. The circumstances in which the will was signed are not described in the evidence. However, the will is exhibited. It is a relatively simple document which appears to have been prepared by a lawyer. The will appoints the plaintiffs as executors, and distributes Mrs Borkowski's estate in varying proportions to five people. Those five people include the plaintiff, Beverley Sutherland, and the defendant. In late 2005, while Mrs Borkowski was being cared for by Ms Sutherland, she was reviewed by Dr George Razay, a clinical associate professor at the Launceston General Hospital whose specialities include general physician and geriatrician. Dr Razay asserts expertise in the assessment and treatment of dementing conditions. In a consultation with Mrs Borkowski on 25 August 2005, Dr Razay noted symptoms consistent with the early signs of dementia.
4. In early 2006, Ms Sutherland commenced proceedings in the Guardianship and Administration Board, as a result of which the Board made an emergency guardianship order in respect of Mrs Borkowski and ordered further neuro-psychological assessment. The defendant's affidavit suggests that Mrs Borkowski was offended by these proceedings. It seems that shortly thereafter, she disassociated herself from Ms Sutherland and requested the defendant to reside with and care for her. This arrangement continued thereafter for some years.
5. The defendant's evidence is that Mrs Borkowski expressed dissatisfaction with her 2003 will on a number of occasions. In 2009, she consulted Mr Timothy Whyte, a legal practitioner in a Launceston law firm, with a view to preparing a new will. An affidavit by Mr Whyte is in evidence. Mr Whyte's evidence is that to his observation, Mrs Borkowski had the necessary capacity to give instructions for and make a will. She provided him with a copy of a will that had apparently been made on 21 October 2007 appointing the Public Trustee as her executor. She also provided him with a typed set of instructions. She perused a draft will and instructed some alterations. She provided Mr Whyte with medical evidence from a general practitioner confirming her capacity to make the will. The will was executed in his office on 5 February 2009.
6. This will appointed the defendant and Mr Whyte as her personal representatives. It provided for some modest bequests in favour of the defendant's mother, a doctor in England and Krystyna Beck-Seward who is Mrs Borkowski's grand-niece and is resident in England. The residuary estate was left to Ms Beck-Seward's two children.
7. According to the affidavits of the defendant and her mother, the 2010 will was prepared by an unnamed lawyer who had come into contact with Mrs Borkowski through the Polish community. This will also appoints the defendant and Mr Whyte as executors, although I am told that Mr Whyte does not intend to accept the appointment. There are a number of bequests which are substantially similar to those in the 2009 will. Provision is made for the children of Mrs Borkowski's grand-niece. The residue of the estate is directed to some charitable organisations.
8. In her affidavit, Ingeborg Fischer attests that she was present at Mrs Borkowski's house and witnessed her sign the original of the 2010 will. She also signed the will as a witness. She says that there was one other adult female present, who also signed the will as a witness, but she cannot recall her name. She did not have any concerns about Mrs Borkowski's mental health at the time that she signed the will. Her description of the execution of the will is consistent with the requirements of execution provided by s 8 of the Wills Act 2008. The evidence of one witness is sufficient to prove due execution of the will: Wheatley v Edgar [2003] WASC 118 at [25].
9. As already noted, upon proof of due execution, a presumption arises that the testatrix had the requisite testamentary capacity at that time. In any event, the evidence provided to me clearly establishes the existence of that capacity. The affidavits of the defendant and her mother support that conclusion. In his affidavit, Dr Razay attests that after the initial consultation in 2005, when he noted early signs of dementia, he had several further consultations between then and his final assessment on 5 November 2009. His examination on that assessment noted improved cognitive function and "nothing to indicate that she continued to suffer delusions on this date". His opinion was that she "did not seem to have any underlying dementia". His opinion was that as at November 2009, Mrs Borkowski had the necessary mental acuity to:

(a) understand the general operation of a three page will after discussing that will with the solicitor;

(b) understand the extent of her property which she would dispose of under her will; and

(c) make a reasoned judgment about which persons ought to benefit from her estate.

1. Andrew McLean-Cross, who is a specialist physician, also provided an affidavit. He attests to the examination of Mrs Borkowski on a number of occasions between 30 June 2006 and her hospitalisation which commenced on 27 May 2010. She was hospitalised for a two-month period during which he attended on her once or twice per week. His opinion is that she "performed very well on cognitive function and had no impairment that would prevent her from making decisions for herself in regard to the management of her finances or other important decisions in her life". He confirmed this opinion in a letter which he wrote to the Guardianship Board on 29 September 2010.
2. Finally, Mr Whyte took instructions from Mrs Borkowski in February 2010 with respect to the preparation of an enduring power of attorney. His evidence is that he did not have any doubt "that she had the necessary mental capacity to execute" the power of attorney. He also expressed the view that she would have had the necessary testamentary capacity to execute a will on that date.
3. The elements of the requisite testamentary capacity were confirmed by Dixon J in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 in the recitation of a passage from the judgment of Hood J in In the Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197:

"Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner".

1. In this case, the evidence overwhelmingly demonstrates that Mrs Borkowski had capacity of the nature so described. I am so satisfied.

1. The defendant, in her affidavit, attests that after Mrs Borkowski had made the 2010 will, the defendant suggested to her that she should let relatives in England know that the will had been changed. Mrs Borkowski then prepared a handwritten document in Polish. A copy of this document has been placed before me together with two translations, one prepared by a translating service and another prepared by the defendant. The translations indicate that the document was executed on 27 May 2010. It was executed in the presence of a single justice of the peace.
2. The document could be interpreted in one of two ways. Firstly, it might be suggested that the document is a further statement of testamentary intention. Alternatively, the document could be interpreted simply as Mrs Borkowski's explanation to members of her family of provisions in the 2010 will. The latter is consistent with the defendant's evidence as to how and why the document came into existence.
3. The document refers to the defendant and her mother in terms which suggest that they are the intended executors of the estate. It describes benefits which Ms Beck-Seward and children in the "Child Ward in the hospital in Launceston" will receive from the estate. Although this description does not match with precision the actual contents of the will, I am satisfied on the whole of the evidence that the document was not intended by Mrs Borkowski to be a statement of testamentary intention and effect. In any event, the defendant's solicitors have given notice of these proceedings, and the document in question, to Ms Beck-Seward and the relevant authorities in respect of the hospital. No one has stepped forward to propound this document as a testamentary document, and the defendant and her mother do not propound the document as such.
4. Further, the document does not satisfy the formal execution requirements of the Wills Act. Section 10 of that Act provides that a document purporting to embody the testamentary intentions of a deceased person constitutes a will, alteration of a will or revocation of a will, if the Court is satisfied beyond reasonable doubt that the deceased person intended the document to constitute such a testamentary document. Having regard to the evidence of the defendant, and the absence of any person stepping forward to propound the will, I would not be satisfied beyond reasonable doubt that the document was intended by Mrs Borkowski to be a statement of her testamentary intentions.
5. Accordingly, I am satisfied that the document does not operate as a testamentary instrument. It follows that it does not revoke or alter the 2010 will.

1. I am satisfied that the 2010 will constituted the last valid testamentary expression of Mrs Borkowski, and that she made this will when she had appropriate capacity to do so. I am satisfied that all relevant interested parties have participated in, or had the opportunity to participate in, the litigation. It is appropriate in all of the circumstances to pronounce probate in solemn form.
2. Accordingly, I order as follows:

(1) That probate in solemn form of the will of the deceased made on 24 May 2010 be granted to the defendant.

(2) The matter be remitted to the Registrar to complete the grant.

(3) The defendant's costs be paid from the estate of the deceased.

1. I will hear counsel as to whether there are any further or other consequential orders.