MATTER : The Will and Estate of Hilda Margaret Helen Halley late of Concorde Nursing Home, Anstey Street, South Perth in the Sate of Western Australia (dec)

BETWEEN : THE PUBLIC TRUSTEE As Administrator of the Estate of HILDA MARGARET HALLEY

AGATHA ARNOLDINA VAN DER SCHAAF As Trustee For RAY FLORENCE SHAW FOUNDATION

LOUIS ISAAC LANDAU As Trustee For RAY FLORENCE SHAW FOUNDATION

Succession - Wills, probate and administration - Declaration as to force and validity of a will - Grant of probate - Testamentary capacity

Guardianship and Administration Act 1990 (WA)

Grant of probate of the will dated 20 April 1995 in solemn form

Crago v McIntyre (1976) 1 NSWLR 729

In Re Levy Deceased (No 2) [1957] VicRp 96; (1957) VR 662

The Public Trustee v Kita [2004] WASC 38

The Public Trustee v Stretch [2002] WASC 147

The Will of Steward Deceased [1964] VicRp 26; (1964) VR 179

Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277; (1941) 15 ALJR 159b

Wheatley v Edgar [2003] WASC 118

Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439; (1952) 26 ALJR 626

1 JENKINS J: (This judgment was delivered extemporaneously on 18 May 2009 and has been edited from the transcript).

2 The plaintiff applies for orders whereby the court pronounces for the force and validity of the will of Hilda Margaret Helen Halley, which was executed on 20 April 1995 (the fifth will). The plaintiff also applies for orders whereby the court grants probate in solemn form of the fifth will.

3 The first defendants are executors of the estate of Mrs Boyle, who was a beneficiary under an earlier will. During Mrs Halley's lifetime Mrs Boyle also claimed an interest in Mrs Halley's home. The proceedings against the first defendant were discontinued some time ago because Mrs Boyle predeceased Mrs Halley.

4 The second defendants are the major beneficiaries under the fifth will. They have filed affidavits in support of the plaintiff's case. Their counsel appears today and does not oppose the orders sought by the plaintiff.

5 The first named second defendant has died since these proceedings were instituted. The second named second defendant is the executor of his will and the major beneficiary under it. Thus the death of the first named second defendant does not affect this matter.

6 The third, fourth and fifth defendants were beneficiaries under Mrs Halley's earlier wills. The third and fourth defendants have not appeared to the writ. The fifth defendant has filed an amended defence. The parties have agreed that consent orders having been made in respect to the fifth defendant, it is not required to appear today.

7 Initially the plaintiff sought orders whereby the court pronounced for the force and validity of what I will call the second will of Mrs Halley, executed on 22 June 1988. The second defendants filed a defence to that claim, disputing that application on the basis that the fifth will was valid. As a consequence of the amendments to the plaintiff's application, which now seeks to have the Court pronounce for the force and validity of the fifth will, the second defendants consent to the orders as sought.

8 Despite the absence of any person who opposes the orders sought by the plaintiff, it is necessary for me to be satisfied of the validity of the fifth will before I make the orders sought by the plaintiff. The legal principles relevant to an application of this kind have been considered in a number of cases. Before I detail the propositions of law relied upon by the plaintiff, I note that it is unnecessary for me to deal with propositions that relate to whether or not the fifth will was validly executed. There is no dispute in this case that Mrs Halley executed the fifth will, which is in writing, in the presence of two witnesses. The real issue, if there is one, is the mental capacity of Mrs Halley at the time she executed the fifth will.

9 A will may be proved in common form or in solemn form. Proceedings for a grant of probate in solemn form are commenced by writ pursuant to the Rules of the Supreme Court 1971 (WA) O 73 r 2. Where the validity of a will is not contested then the court will commonly pronounce the will in common form. Wills are pronounced in solemn form in a probate action where the main question for the determination of the Court is whether a will is or is not either in whole or in part valid as a testamentary instrument.

10 In this case there has been an issued raised by the evidence as to whether the fifth will is valid as a testamentary instrument. As I have said, this is not because of issues relating to the execution of the will, but because of issues related to Mrs Halley's mental capacity when she executed the fifth will. Despite the fact that the challenge to the validity of the fifth will is no longer pressed, in my view it is appropriate for the will, if it is to be pronounced, to be pronounced in solemn form. In saying this, I take into account those legal principles which establish that, except for limited exceptions, a grant of probate in solemn form is irrevocable: Wheatley v Edgar [2003] WASC 118.

11 In respect of the way that I should approach this application, In Re Levy Deceased (No 2) [1957] VicRp 96; (1957) VR 662, 665, Sholl J stated:

Nor is it the duty of the Court to make its own investigations of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought.

12 There is a presumption that the testator knew the contents and effect of the will. In The Will of Steward Deceased [1964] VicRp 26; (1964) VR 179, 185 it was said:

... in the absence of evidence to the contrary such an inference may be drawn from the mere fact that a person of sound mind has duly executed a document declaring it to be his will.

13 There is also a reference to the presumption of capacity in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283; [1941] HCA 22; (1941) 15 ALJR 159b, where it was said:

If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding.

14 Further, when opposition to a will has been withdrawn, the executor may proceed to prove the will be leading only evidence of due execution and such evidence as he may think proper with regard to capacity if he desires to rely on such evidence to reinforce the ordinary presumption as to capacity: In Re Levy 666. In Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453; [1952] HCA 67; (1952) 26 ALJR 626, the High Court said:

... a residual doubt is not enough to defeat the plaintiff's claim for probate, unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.

15 The plaintiff also relies upon other legal principles that were outlined by Heenan J in Wheatley v Edgar. I have taken these into account. Before a will can be pronounced as being a valid will, it must be shown that a testatrix knew and understood how she left her property or how she was going to leave her property, when she executed her will. She must also possess sufficient capacity to appreciate what her property was and to recognise the persons who had a moral claim upon her. She must also have a capacity to exercise a balanced judgment as to such claims: Crago v McIntyre (1976) 1 NSWLR 729; The Public Trustee v Kita [2004] WASC 38. The plaintiff also relies upon the judgment of Murray J in the case of The Public Trustee v Stretch [2002] WASC 147, and I have taken into account what Murray J has said in that case, which is not different from the principles which I have outlined.

16 With these principles in mind, I now turn to consider the evidence. The evidence consists of the affidavits of:

(2) the second defendants, sworn 3 March 2004 in the case of Patricia Mary McLean and David Hugh McLean (deceased), and 10 July 2004 in the case of Brian Harry Leslie Russell;

(3) Shaun William Conlin, sworn 18 April 2006 (affidavit of testamentary script) and 7 May 2009;

17 The evidence and the matters conceded in the pleadings proves that Mrs Halley was born on 8 April 1903 and died on 21 September 2001. Mrs Halley was married to Wallace Steedman Halley, but he died on 17 June 1987. Mrs Halley had no children and no other close family at the time she executed the fifth will or thereafter.

18 During her lifetime, Mrs Halley made a number of wills, these being dated 1 October 1984 (the first will), 22 June 1988 (the second will), 4 December 1989 (the third will), 7 July 1993 (the fourth will) and 20 April 1995 (the fifth will). The plaintiff was the executor and trustee of each will.

19 In the first will, when I presume Mrs Halley had capacity to make a will, she gave her estate to her husband if he survived her by 30 days, but if not to the Dog Refuge Home WA Inc. In the second will, which was executed after her husband had passed away, she gave her estate to charitable organisations.

20 In the third and fourth wills Mrs Halley gave her home, situated at 31B Marjorie Avenue, Shelley, to her then good friend Mrs Boyle and the balance to charitable organisations. Following the execution of the fourth will, Mrs Halley fell out with Mrs Boyle over an alleged agreement they entered into whereby Mrs Boyle alleged that Mrs Halley had agreed to sell her home to her.

21 On 20 April 1995 Mrs Halley attended on Mr Johnstone, then employed by the plaintiff as a wills officer. Mr Johnstone was, at that time, a very experienced wills officer, having worked for the plaintiff since 1970 and having been involved in the preparation of wills since 1974. Between 1977 and 1980 he was the curator of deceased persons' estates and Master of Lunacy for Norfolk Island. In these roles he had experience equivalent to that of an administrator for represented persons under the Guardianship and Administration Act 1990 (WA). He returned to work for the plaintiff in 1980 and was a wills officer until he retired in 2005. At the time of his retirement he was the wills manager. During the latter time he was employed by the plaintiff he prepared approximately 3,000 wills per annum. Part of his responsibilities when preparing a will, was to assess the capacity of the testator and if he had doubts over the capacity, to require the testator to provide a medical certificate in respect to their capacity.

22 Although Mr Johnstone has no independent recollection of the events of 20 April 1995, on the basis of his file notes and an inspection of the plaintiff's file, he has deposed that Mrs Halley attended on him on that date and said that she wished to revoke the fourth will. She asked for it to be returned to her and it was. Mr Johnstone discussed with Mrs Halley her instructions regarding a new will and also assessed her testamentary capacity. She gave him a note with the names of the three proposed beneficiaries, now the second defendants, written on it. Mr Johnstone wrote a file note which said that Mrs Halley's testamentary capacity was 'Okay'. Mrs Halley told Mr Johnstone that she wished to think about her new will and then left. Later that day she returned and gave Mr Johnstone instructions to prepare the fifth will, which she signed that day in the presence of Mr Johnstone and another witness.

23 Mr Johnstone has deposed that on the basis of his file notes and usual procedure he is able to say that as at 20 April 1995 he formed the opinion that Mrs Halley had testamentary capacity.

24 The plaintiff was appointed Mrs Halley's attorney under an enduring power of attorney which was accepted by the plaintiff on 13 November 1995.

25 After her husband died, Mrs Halley lived alone at her home in Shelley. In about 1992 Patricia Mary McLean commenced duties there as a cleaner. After a while the two women became friends. This friendship continued at least until late 1998, by which time Mrs Halley's mental condition had deteriorated and she was unable to recognise Mrs McLean. Mrs Halley also met and became friends with Mrs McLean's husband, David Hugh McLean, and her brother, Brian Harry Leslie Russell. These three persons now being the second defendants.

26 The second defendants spent time caring for and providing company to Mrs Halley until in October 1995 it was apparent that Mrs Halley was unable to live alone and she moved into Canning Lodge. By that time she had had a number of falls at home, had poor eyesight and was not caring properly for herself. Each of the second defendants have deposed that until the latter part of Mrs Halley's stay in Canning Lodge in late 1996 or early 1997 they consider that Mrs Halley was competent.

27 In October 1995 Mrs Halley was admitted to Bentley Hospital and came under the care of Dr Roger Warne, a physician in geriatric medicine. In October 1995 his team assessed Mrs Halley for orientation pursuant to the Clifton Assessment Procedures for the elderly and she scored eight out of 12. This would usually mean a mild impairment of orientation. For comparison purposes, Dr Warne said he has never seen someone with a score of less than five out of 12 who had testamentary capacity. The higher the score the better. Dr Warne has deposed that he believes that Mrs Halley probably had testamentary capacity when she executed the fifth will, in that she probably would have understood the nature of a will and had the capacity to comprehend and appreciate the claims of those for whom she ought to have provided. However, he cannot say whether Mrs Halley would have been aware of the extent of her assets at that time.

28 Also in October 1995 Shirley Kohn, a qualified social worker, prepared a report about Mrs Halley, who was then resident at Canning Lodge. Mrs Kohn has no independent recollection of the matters in her report but I have no reason to doubt the reliability of its contents. Mrs Kohn reported that since June 1995 Mrs Halley had suffered two broken hips on separate occasions. She was without any support in the community apart from that provided by the second defendants. Despite that she had refused other assistance from government agencies. Mrs Kohn had inspected her home and considered it to be dilapidated and dirty. Between June and October Mrs Halley had been in and out of hospital. In respect to Mrs Halley's mental capacity, Mrs Kohn reported:

Mrs Halley tends to confuse time of day, contributed to by her lack of vision, and requires prompting to meals. She spends her day emptying her drawers and cupboards of her clothes. Mrs Halley was tested on the AMTS in early July and was assessed as having testamentary capacity. Mrs Halley was able to quote the questions and answers of the test 24 hours after the test.

29 Mrs Kohn detailed the conflict which Mrs Halley was then having with Mrs Boyle and the steps Mrs Kohn had taken to try and get assistance for Mrs Halley, in respect to it. Mrs Kohn noted that Mrs Halley was unable to understand the complexity of that matter and had decided not to take any further action.

30 The affidavit that is now in evidence in this matter from Mrs Halley is in respect to the dispute which she was then having with Mrs Boyle. Whilst the terms of the affidavit are simple, there is nothing in that affidavit to indicate a lack of testamentary capacity on behalf of Mrs Halley.

31 Mrs Kohn said that Mrs Halley was adamant that she had sufficient savings to pay for her care, wherever that may be, and that she was also aware that she had her home, although she did not have an understanding of its poor condition. In conclusion, Mrs Kohn reported that Mrs Halley required a more thorough psychological assessment as her functional skills did not equate with her cognitive assessments. I take this to mean that the tests administered to Mrs Halley did not indicate that she should have the difficulties in day to day functioning that she was apparently displaying at the time.

32 It seems that Mrs Halley's functional skills and cognitive abilities continued to steadily decline until the end of 1998, when she went to live in a nursing home, and then at a faster rate until she died in 2001. The death certificate reports that the causes of her death were myocardial infarction, hypertension and a contributing cause being severe global dementia of two years. There is nothing in the death certificate to indicate that Mrs Halley lacked testamentary capacity when she executed her fifth will.

33 The only evidence which could rebut the presumption that Mrs Halley had the necessary testamentary capacity at the time she made the fifth will is the evidence of Dr Anthony Barrett Cooper, who was Mrs Halley's general practitioner between 1985 and February 1996. In 1997 the plaintiff sought Dr Cooper's opinion as to whether Mrs Halley had testamentary capacity at the time she made the fifth will. Apparently this opinion was sought in the context of the plaintiff's role as Mrs Halley's attorney. By letter dated 17 March 1997 Dr Cooper replied to various questions asked of him by the plaintiff. By way of background information, between January 1994 and February 1996 Dr Cooper saw Mrs Halley on six occasions and had one telephone call with her. He also had access to notes made by his partner, who saw Mrs Halley on four occasions in the same period and to correspondence from specialists and hospitals. Dr Cooper said:

I believe Mrs Halley was suffering from dementia at the time of signing her will dated 20 April 1995. I would also doubt her testamentary capacity for a number of her wills prior to that. By way of explanation I believe there was a steady progression of dementia from prior to 24/01/86 to 13/02/96. In particular this was evident by progressive self neglect and neglecting of home duties. There was also increasing doubt about her ability to take her medication accurately or in fact remember to take her medication at all. Her consultation with me became progressively more vague and she would sometimes not remember shy she had come. Her conversations were sometimes incoherent, her memory poor. By August 1995 she had marked dementia.

34 To balance this evidence there is the remaining evidence, which is to the effect that up until the end of 1996 Mrs Halley was capable of understanding that in executing the fifth will she was making a testamentary bequest of her property to the named beneficiaries, that she knew that her property included her house and savings and that she was specifically aware that Mrs Boyle had a claim against her house, which she did not accept was valid. The evidence does not disclose that there were any other persons whom she should have recognised as having claims on her property. To the extent that she recognised the second defendants as having such a claim, it seems to be as a consequence of her generosity towards those persons who had been kind to her in her latter years and because there were no other persons with a better legal or moral claim to her property.

35 In respect to Dr Warne's query as to whether Mrs Halley understood the extent of her estate at the time she made the fifth will, I take into account Mrs Kohn's report that in October 1995 Mrs Halley knew she owned a house and had sufficient savings to pay for her continued care. There is no evidence before me that this constituted lack of understanding on the part of Mrs Halley of the extent of her estate.

36 Further, the fifth will, on its face, is quite rational. The significant change in the wills from the fourth will to the fifth will was to delete Mrs Boyle and two charities and to substitute the second defendants as her beneficiaries. These changes would not of themselves indicate a lack of competence to make a will. To the contrary, there were apparently rational reasons for Mrs Halley to make these changes. She had fallen out with Mrs Boyle and at that time the only non-professionals who were attending to her care were the second defendants. It may be thought to be natural, although very generous of her, for her to want to thank or reward the second defendants for the interest they had shown in her welfare.

37 I also take into account that these were not changes that Mrs Halley made on the spur of the moment. In order to revoke her fourth will and make the fifth will she had to attend on Mr Johnstone, apparently in the plaintiff's office, on two occasions, albeit on the one day. This indicates that she was capable of making a decision to change her will and to put that decision into action by taking rational and purposeful steps.

38 Taking all these matters into account, I have decided that the evidence of Dr Cooper is not such as to displace the presumption of capacity to make the fifth will. The presumption of capacity to make a valid will as at April 1995 is bolstered by the evidence of the other witnesses to which I have referred. I am satisfied that in respect to the fifth will Mrs Halley knew and understood how she wished to leave her property. I am also persuaded that she possessed sufficient capacity to appreciate what her property was, to recognise the persons who had a moral claim upon her and had the capacity to exercise a balanced judgment as to such claims. It is quite clear that when she attended on Mr Johnstone and executed the will in April 1995 she understood she was making a will and the effect of it. I am therefore prepared to pronounce the force and validity of the fifth will dated 20 April 1995 in solemn form.