MATTER : Will and Estate of MARY ANNE FOSTER (Dec)

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

Wills - Codicil - Validity of codicil - Codicil not witnessed - Section 10 of the Wills Act - Codicil invalid unless given effect by s 35 of the Wills Act - Requirements of testamentary capacity - Onus of proof of capacity - No basis for determining that testatrix did not have capacity

Wills Act, s 10, s 35

Pronouncement for the force and validity of the will with the codicil attached

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

Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295

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

Malatesta v Scott, unreported; SCt of WA; Library No 940291; 15 June 1994

Wilson, In the Will of (1897) 23 VLR 197

1 LE MIERE J: This is an action by the plaintiff to prove in solemn form a will of the late Mary Ann Foster, dated 21 February 1980, together with an unwitnessed codicil, dated 10 March 1982. The plaintiff also seeks that there be a grant to the plaintiff of letters of administration with the will and codicil annexed. In the alternative, the plaintiff claims that the Court pronounce for the force and validity of the will only and that there be a grant to the plaintiff of letters of administration with the will annexed.

2 On the hearing of this matter, the plaintiff and the first defendants were represented by counsel.

3 The second defendant filed a memorandum of appearance, but subsequently did not file a defence and has taken no further part in these proceedings.

4 Hetty Drennan, the first-named third defendant, died before the issue of the writ in this action. The second-named third defendant, Eric Livingstone Chester, filed a memorandum of appearance and an affidavit to the effect that he is willing to abide the outcome of the case. Jean Rickards, the third-named third defendant, filed a memorandum of appearance and a notice to abide by the decision of the Court. In the circumstances, I am satisfied that all of the parties who were entitled to be, and who wished to be, before the Court were represented.

5 Peter Frank Evans, the person nominated in the Testatrix's will as executor, has authorised and requested the Public Trustee to apply to this Court for an order to administer the will and estate of the deceased.

6 There is no opposition to the plaintiff being granted letters of administration. Indeed there is no opposition to the validity of the will. The issue before the Court concerns the validity of the codicil.

7 The will is a standard form printed document that has been completed in handwriting. The will was signed by the Testatrix on 21 February 1980, in the presence of two witnesses who duly attested and subscribed the will. I shall briefly set out the provisions made under the will.

8 By her will, the Testatrix, after payment of all debts, funeral and testamentary expenses, gave, devised and bequeathed her property situated at unit 27/92 Forest Street, Fremantle, to be sold, and after settlement of all debts and expenses, the proceeds to be divided equally between the following persons: William Jack Chester, Hetty Drennan, Ronald Jack Chester, Eric Livingstone Chester, Jean Rickards, Colin Drennan, Mary Dandie, Helen Thorne, and Arthur Gary Withnell Chester. The will went on to make specific bequests to the following persons: Dorothy Smithers, Peter Arthur Evans, Maureen Ellen Chester, Eric Livingstone Chester, Peter Leonard Chester, Mark David Chester, Shelley Christine Chester, Lisa Anne Chester, Ruth Margaret Chester, and Peter Frank Evans.

9 Next the will refers to a life insurance policy taken out with the "MLC", a cheque account held with the Commonwealth Bank, High Street, Fremantle, and another account held with the New South Wales Bank, Palmyra branch. No specific direction is given as to how the proceeds of this policy, or these accounts, is to be distributed. The will then repeats that the balance of sale money is to be equally divided between those already mentioned in the will. Finally, the will states that it is the Testatrix's wish to be cremated at Fremantle Cemetery.

10 The will document includes a handwritten codicil in these terms:

"Codicil to will, March 10 1982. I have deleted several names as they have become deceased & the daughters are no longer in need of money from my estate & my stamp collection to go to Shelley Chester & my pink vases to go to Ronald Chester as he appreciates family heirlooms."

12 The following names have been scored through in blue ink on the will document: William Jack Chester, Colin Drennan, Mary Dandie, Helen Thorne, and Arthur Gary Withnell Chester. Each of these persons had, under the original will, been bequeathed a share in the proceeds derived from the sale of the Forest Street property. A specific bequest made to Peter Leonard Chester, and the original bequests made with respect to the two pink vases and the stamp collection have also been scored through in blue ink.

13 The original writing made a specific bequest of $200 to Dorothy Smithers. The will directed that this bequest be taken from the sale money. This direction was phrased in the following terms; "and the $200 to be given to Dorothy Smithers to be taken from the sale money from my property mentioned in the will". Both the bequest, and those subsequent words have been scored through in blue ink. Finally, the word "cremated" has been scored through in blue ink and the word "buried" inserted above it.

Letters of Administration with the Will Only Attached

14 John Wilmott swore an affidavit on 2 May 2002 on behalf of the plaintiff. Mr Wilmott says that in the event of a grant of letters of administration with the will only annexed, the persons entitled to distribution are:

(a) Money bequests -

$200 to Peter Frank Evans.

(b) Chattel bequests -

(i) China and jewellery to Maureen Ellen Chester.

(ii) Glassware to Eric Livingstone Chester.

(iii) Coins and china to Mark David Chester.

(iv) China and jewellery to Shelley Christine Galbraith (referred to in the will as Shelley Christine Chester).

(v) China, jewellery and crystal to Lisa Anne Chester.

(vi) China, cutlery and jewellery to Ruth Margaret Chester.

(i) Hetty Drennan.

(ii) Eric Livingstone Chester.

(iii) Jean Rickards.

(iv) Colin Drennan.

(v) Mary Louise Dandie (referred to in the will as Mary Dandy).

(vi) Helen Thorne.

15 Mr Wilmott deposes that all other beneficiaries died before the deceased, as follows:

(i) Dorothy Smithers, died 8 July 1982.

(ii) Ronald Jack Chester, died 28 July 1994.

(iii) William Jack Chester, died 21 September 1987.

(iv) Arthur Grey Withnell Chester, died 9 October 1980.

(v) Peter Leonard Chester, died 26 September 1984.

Letters of Administration with the Will and Codicil Attached

16 Mr Wilmott then deposes that in the event that letters of administration issue with the will and codicil annexed, the persons who may be prejudiced are:

(i) Ruth Margaret Chester owing to the deletion of the china, cutlery and jewellery (those chattels having been disposed of prior to the death of deceased).

(ii) Colin Drennan, Mary Louise Dandie, and Helen Thorne, owing to the deletion of each person's one-sixth interest in the residue.

17 Mr Wilmott deposes that Ruth Margaret Chester, who is aged over 60 years, has given her consent to this application, pursuant to r 20A of the Non-Contentious Probate Rules. Ruth Margaret Chester has signed a written consent to the Public Trustee applying to this Court for an order to administer the estate with the will and codicil annexed.

18 I am satisfied from the evidence of Mr Wilmott and Eric Livingstone Chester that the plaintiff has established the due execution of the will and the capacity of the Testatrix at the time she made the will. Those matters are agreed by the first defendants.

19 The issue in this case concerns the validity of the codicil. The codicil was not duly witnessed in accordance with the provisions of s 10 of the Wills Act. Accordingly, the codicil is invalid and of no effect unless it is given effect by s 35 of the Wills Act. Section 35 provides:

"Any alteration made to a will of a deceased person after the will was executed or made has effect, notwithstanding that the alteration has not been made in accordance with s 10, if the Supreme Court is satisfied that the deceased intended the will as so altered to constitute his will."

20 The first defendants submit that for the Court to be satisfied that the Testatrix intended the will, as altered by the addition of the codicil and the handwritten amendments, to constitute her will, it must be satisfied that the Testatrix knew and approved of the contents, had capacity to know and approve of the contents, and had a will-making, altering or revoking intention.

21 The first defendants submit that there must be some doubt as to that capacity and intention for the following reasons:

(1) First, the Testatrix believed that certain beneficiaries were deceased. Excluding Helen Thorne and Mary Louise Dandie, the following persons who were beneficiaries under the unaltered will, were deleted as beneficiaries by the alterations, but were not deceased at the time of the alterations: William Jack Chester, Colin Drennan, Dorothy Smithers, and Peter Leonard Chester.

(2) The Testatrix refers to "the daughters" being no longer in need of money from her estate. The Testatrix had no daughters.

(3) The will form contains directions on making a will which were followed for the purposes of making the original will but not for the codicil. The general observations point out that erasures, alterations and interlineations in the will should be avoided and they should bear the initials of the Testator and the witnesses opposite them in the margin.

22 The parties differed as to the onus of proof of capacity.

23 The onus of proof of sound mind, memory and understanding lies on the propounder of the will: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558. More recently it has been stated that the sanity and understanding of the Testator is the subject of a rebuttable presumption, and that the propounder of the will is only required to satisfy the onus where such evidence in rebuttal exists. The position was set out by Hale J in West Australian Trustee Executor and Agency Company Ltd v Holmes [1961] WAR 144 at 146: "A will properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person of competent understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind: but the standard of proof required of the propounder is the ordinary civil standard of proof". (See also Worth v Clasohm ([1952] HCA 67; 1952) 86 CLR 439 at 453).

24 However, in the present case, the codicil has not been duly executed. It is therefore my view that the plaintiff cannot rely on any presumption of testamentary capacity arising from the due execution of the testamentary document.

25 The plaintiff has led evidence by affidavit from Eric Livingstone Chester. Mr Chester is the nephew of the deceased and at the date of her death was her next of kin, or at least was considered to be such by the managers of the Southern Cross Nursing Home, where the deceased resided. Mr Chester has been living in New South Wales since 1976. He visited Perth on business two or three times each year and saw his aunt on each visit, until his retirement in 1989. The deceased wrote to Mr Chester regularly and advised him by letter on more than one occasion that she had made a will. After Mr Chester retired in 1989, he visited the deceased almost every year on holiday. He visited the deceased in October 1998. The deceased was then approaching her 100th birthday and, in Mr Chester's opinion, was not always of sound mind. At the time of his visit in 1998, the deceased was too ill to discuss the will and codicil with Mr Chester. However, Mr Chester says: "I have no reason to doubt, from my regular visits to her and correspondence, that at the respective dates of the will and codicil (21 February 1980 and 10 March 1982), my aunt was capable of managing her own affairs with a good degree of intelligence and forethought."

26 I turn then to consider the matters which the first defendants say raise some doubt as to the Testatrix's capacity.

27 The Testatrix refers to "the daughters" being no longer in need of money from her estate. The Testatrix had no daughters. In my view, that is not evidence that the Testatrix was suffering from any delusion. The Testatrix did not refer to "my daughters". The females removed as beneficiaries by the alterations to the will were Mary Dandie, Helen Thorne, and Dorothy Smithers. Counsel for the plaintiff informed the court without objection from counsel for the defendant that Mary Dandie and Helen Thorne are nieces of the Testatrix. The Testatrix's nieces had originally been bequeathed a one-sixth share in the residue of the estate. Dorothy Smithers can be distinguished in that she had originally been granted a small bequest of $200. Given these facts the inference is open that when referring to "the daughters" the Testatrix was specifically referring to Mary Dandie and Helen Thorne, the daughters of her sibling.

28 By the alterations to the will, the Testatrix removed as beneficiaries a number of persons. In the codicil she said that she had done so because the beneficiaries had become deceased. As I have said, the Testatrix was mistaken in that four of the beneficiaries removed, other than Mary Dandie and Helen Thorne, were not deceased at the time the codicil was made. The evidence in this case is sparse. No doubt that is because of the relatively small value of the estate. Mr Wilmott deposes that the gross value of the estate is $58,820. There is no evidence before the Court concerning the knowledge of the Testatrix about those four persons, or of any communications between the Testatrix and those four persons or anyone else concerning those four persons, at or before the time she signed the codicil. In those circumstances, there is no evidence as to what caused the Testatrix to believe that those four persons were deceased. However, that does not in my view give rise to the inference that the Testatrix suffered from delusions. It gives rise to no inference beyond that the Testatrix was mistaken.

29 I have reached the view, on the balance of probabilities, that the Testatrix was of sound mind, memory and understanding at the time she signed the codicil. I am of that opinion for the following reasons.

30 First, Mr Chester has deposed that he had no reason to doubt, from his regular visits to the Testatrix and correspondence with her, that at the date she signed the codicil she was capable of managing her own affairs with a good degree of intelligence and forethought. Secondly, the codicil, and alterations to the will, are on their face rational and internally consistent. The codicil and alterations to the will show that the Testatrix had an understanding of the effect of the various dispositions of her property and what property she was disposing of. Thus, whereas the codicil states that the Testatrix's stamp collection is to go to Shelley Chester and her pink vases to go to Ronald Chester, the alterations to the will make corresponding deletions, those being the former bequests of the stamp collection to Peter Leonard Chester and the pink vases to Maureen Ellen Chester.

31 For the reasons given, I am satisfied on the balance of probabilities that the deceased intended the will with the codicil annexed to constitute her will. I am satisfied on the balance of probabilities that the deceased had the necessary testamentary capacity at the time. Accordingly, the Court will pronounce for the force and validity of the will and codicil and there will be a grant to the plaintiff of letters of administration with the will and codicil annexed.