Wills - Probate - Testamentary capacity - Document purporting to embody testamentary intention of deceased - Whether informal will has effect pursuant to s 8 of the Wills Act 1970 (WA) - Whether Public Trustee entitled to order to administer the estate pursuant to s 36 of the Administration Act 1903 (WA)

Administration Act 1903 (WA), s 36

Public Trustee Act 1941 (WA), s 8, s 12(1)

Wills Act 1970 (WA), s 8, s 34

Grant of letters of administration with a copy of the will annexed to the Public Trustee

Malatesta v Scott, unreported; SCt of WA (Murray J); Library No 940291; 15 June 1994

1 BARKER J: This is a probate action in which, on 7 May 2003, at the suit of the plaintiff (the Public Trustee) I made orders about the force and validity of the will of Desmond Henry Pantall, deceased, dated 25 July 1992, as well as for the grant of letters of administration with the will annexed to the Public Trustee.

3 The deceased, a 73-year-old pensioner, died on 11 October 1993. His usual address was Careniup Caravan Park, North Beach Road, Gwelup, Western Australia. His place of birth was Subiaco, Western Australia. His father's name was Leonard Pantall and his mother's maiden name was Myrtle Annie Tame. The deceased's marital status was single. According to his death certificate, he died of respiratory failure, chronic airflow limitation and cigarette smoking.

4 The deceased left what appeared to be his last will and testament (the informal will). Annexed to these reasons is a copy of the informal will. On its face, it appears to have been written by the deceased, although he did not sign it and accordingly his signature was not witnessed and subscribed to by two witnesses as required by s 8 of the Wills Act 1970 (WA). Moreover, the informal will does not appoint any person to be the executor of the will.

The Public Trustee's application for a non-contentious grant of probate

5 The informal will came to the attention of the Public Trustee. By motion dated 3 December 1996, the Public Trustee moved for probate of the informal will of the deceased in the probate jurisdiction of this Court. The Public Trustee sought a grant of probate of the will pursuant to s 8 of the Public Trustee Act 1941 (WA), on the basis that it was the executor named in the will. However, as noted, the informal will does not name any person to be the executor. As will be seen, the Public Trustee later moved to correct this oversight.

6 The Public Trustee's motion for probate was supported by an affidavit of Alistair Borg sworn 3 December 1996. In his affidavit, Mr Borg stated that, although the will was not executed in accordance with the requirements of s 8 of the Wills Act, the Public Trustee believed that, by reason of the nature and contents of the informal will, the deceased intended it to constitute his will. Thus, the Public Trustee sought probate of it relying on the Wills Act. Mr Borg also noted that, having regard to the contents of the affidavits of Richard Leavy and Alan Lloyd James filed with his affidavit, who were medical practitioners who attended the deceased in 1992 and 1993, the deceased had testamentary capacity at the time of signing the informal will.

7 Mr Borg also brought to the attention of the Court the identities of the various persons (being the defendants named in this action) who will be prejudiced by the application of the Wills Act to the informal will. If probate of the informal will is granted, persons who may have an interest on an intestacy pursuant to the terms of the Administration Act 1903 (WA) will be excluded.

8 Pursuant to the informal will, those entitled to the deceased's estate are Edith Marjorie Head and Patricia Mary Oxford (the first defendants) as well as the estate of Norman St Clair Tame, who died on 8 August 1994 (whose executor and trustee is the second defendant), all being cousins of the deceased and the only surviving children of the deceased's uncle, Norman Douglas Tame at the date of the deceased's death.

9 The purported will identified the deceased's uncle as "Noral (Norm) Eucalyptus Tame". Mavis Gertrude Tame, the wife of the deceased son of Norman Douglas Tame, that is, the aforementioned Norman St Clair Tame, deceased, by her affidavit sworn 28 September 1995, says that she believes Noral (Norm) Eucalyptus Tame to be one and the same person as Norman Douglas Tame. She says that the full true and correct name of her father-in-law was Norman Douglas Tame. He was the uncle of the deceased and she recalled that the deceased had referred to his uncle as "Noral Eucalyptus Tame" in at least one letter that the deceased wrote to her. She also says that the address of 7 Pasadena Crescent, Macquarie Hills, New South Wales, noted on the informal will, was an address which, at the time the deceased made the will, was one at which her husband, Norman St Clair Tame, could be contacted.

10 It appears that, after the Public Trustee became acquainted with the informal will and the identity of the persons who are named as the defendants in this action, the Public Trustee requested those persons comprising the fourth defendants to give their consent, in effect, to the application of the Public Trustee for a grant of probate in respect of the informal will. They are also nieces and a nephew of the deceased, and live in Western Australia. Consents were obtained from the fourth defendants, Roma Joan Pantall, Lorraine Joyce Powell, Cherylene Frances Pantall and Noral Leonard Pantall respectively. However, Lorri Anne Western did not consent to the proving of the informal will, as she believed the deceased lacked the requisite testamentary capacity.

11 In a letter to the Public Trustee dated 1 June 1995, Ms Western refused to provide her consent because she considered the deceased was not a "sane person". Her reasons for so stating were:

"1. Firstly my uncle was a very sick man both mentally and physically for a number of years leading up to his death, and although we his family tried to have him hospitalised on a number of occasions we failed.

2. I personally tried to convince Uncle Des to stay with me in the town of Esperance. Again I failed.

3. Uncle Des firmly believed that my husband was a 'Free Mason' who was trying to shoot him, he believed that he followed him from one end of the state to the other 'to get him', whenever we visited my uncle he would always insist that the caravan door remain open so he had witnesses if we were to 'TRY ANYTHING' or when he visited us he would only do so out in the open.

He believed that the doctors and chemists who visited from time to time were selling him empty cylinders he used for his breathing.

...

Uncle Des lived a very lonely and sad life with only his old dog for company. Everybody with in the family at one time or the other tried to help him but because of his belief of the Free Masons and the sickness he believed he suffered as a child he was totally errational and we believe mentally sick." [sic], underlining in original.

12 Nonetheless, Mr Borg, on behalf of the Public Trustee, stated the Public Trustee believed in the light of the affidavits of Dr Leavy and Dr James that the deceased had testamentary capacity at the time of signing his informal will.

13 A Registrar of the court in its probate jurisdiction issued requisitions requiring further evidence as to the deceased's "delusions" and supplementary affidavit material annexing the birth certificate of Norman Douglas Tame and indicated that, at least at that point, an application for probate was inappropriate.

14 Sean William Conlin, by affidavit sworn 13 March 2000, on behalf of the Public Trustee, sought to respond to some of these further requisitions. The Public Trustee was unable to locate a birth certificate for Norman Douglas Tame, but obtained a copy of his death certificate. The Public Trustee was able to establish by his death certificate and other certificates evidence that Norman Douglas Tame was the uncle of the deceased. A certificate of marriage shows that the deceased's father married Annie Myrtle Tame in Hobart on 1 May 1913. The death certificate of one Annie Myrtle Teresa Gardiner, who died at Perth on 24 October 1966, is of a person who was born in Hobart, Tasmania, but had lived in Western Australia for 53 years. Her mother was Sophia (maiden name unknown). The marriage certificate recording the marriage of Leonard Pantall to Annie Myrtle Tame in Hobart shows that the bride's mother's name was "Sophia Louisa Tame (nee Gardiner)". The death certificate of Annie Myrtle Teresa Gardiner shows she was widowed, was married to Leonard Pantall and that her children included Noral L, 56 years, Joan T, 52 years, Lorraine B, 51 years, Desmond H, 47 years, Milton G, 45 years.

15 A number of letters apparently written by the deceased were provided by Mr Conlin dated 21 November 1990, 26 December 1990, 28 May 1991 and 11 June 1991. Those letters were written to the Department of Veterans' Affairs. The deceased evidently received a pension from that department and took the trouble to keep the Department informed of his changes of address.

16 As a result of correspondence with the court, the Public Trustee realised that, because there was no executor named in the will, the Public Trustee should have proceeded pursuant to s 12(1) of the Public Trustee Act when the application was first made. By this provision, any person entitled to obtain administration (with the will of any testator annexed) of the estate of such a testator may authorise the Public Trustee to apply to the court for and obtain an order to administer the estate. Section 36 of the Administration Act makes it plain that, where a person dies leaving a will, but without having appointed an executor, the court may appoint an administrator of the estate of the deceased.

17 On 12 May 2000, the Public Trustee's application for probate was refused. The Registrar directed the Public Trustee to make an application for a grant of probate of the purported will in solemn form. This probate action was then commenced pursuant to O 73 of the Rules of the Supreme Court.

18 Upon the refusal of the Registrar of a grant of probate in non-contentious proceedings, the Public Trustee commenced this probate action in order to have the Court pronounce upon the capacity of the deceased to make a will and whether the informal will had effect pursuant to s 34 of the Wills Act.

19 The writ with statement of claim indorsed identifying these issues and the relief sought was served on each of the defendants named, save for the third defendant, Joan Tasma Duncan, and the second-named fourth defendant, Roma Jean Pantall. On 22 April 2002, Registrar Martin made an order dispensing with the need for service of the writ of summons on these two defendants. The third defendant had passed away since the date of death of the deceased and Roma Jean Pantall had proved difficult to serve.

20 None of the defendants entered an appearance in the action. In particular, Ms Western, who had previously written to the Public Trustee raising her doubts about the capacity of the deceased to make his will, did not appear or otherwise attempt to participate in the action.

21 At the hearing of the action, the Public Trustee appeared by counsel, but no other party appeared in person or otherwise by counsel. The hearing proceeded by way of counsel on behalf of the Public Trustee tendering and relying upon affidavits filed in the proceedings, as well as some of the materials that were relevant and had been filed in the non-contentious probate application, reference to which has been made above.

22 So far as the testamentary capacity of the deceased to make a will as of 25 July 1992 is concerned, I should take account of the information previously referred to, including the letter to the Public Trustee of Ms Western to which other evidence relates. The Public Trustee relies upon the opinion of Lindsay Stewart, medical administrator of Sir Charles Gairdner Hospital, Nedlands, Western Australia, expressed by affidavit sworn 2 May 2003. The Public Trustee also relies on the affidavit of Dr James sworn 12 December 2002.

23 Dr Stewart says that the deceased's first contact with Sir Charles Gairdner Hospital was on 13 June 1993 when he arrived in the hospital's emergency department, having been transferred from the Wanneroo Hospital with acute retention of urine. Two pages of notes transferred from the Wanneroo Hospital included several inches of writing about past medical history, but makes no reference to any mental illness or alteration in mental state. The list of medications he was taking at the time was set out. They were for chronic lung disease and asthma.

24 Nursing staff who received the deceased into Ward G74 in the late evening noted under "Mental Status" that he was alert and oriented. The detailed notes they made about his self-perception, etcetera, suggest that he could not have been oblivious or obviously impaired in his thinking. Notes made over the course of his admission by both nursing and medical staff contain no suggestion that his thoughts or thought processes were in any way abnormal. It was noted on several occasions that he drank no alcohol and the resident medical officer who admitted him to the ward recorded a detailed past medical history and medication history, neither of which contained anything to suggest mental problems or the use of drugs which might have been associated with thought disorder. A note made by nursing staff on 13 June 1993 under the heading "What is the patient presently most concerned about?" reads, "Would like to speak to someone in Legacy tomorrow".

25 The deceased was discharged on 24 June 1993 from the hospital, apparently with an appointment to be seen in the respiratory medicine out-patient clinic on 28 July 1993. He was duly seen at the out-patient clinic on 28 July and a note dictated by the registrar of the chest unit "for head sheet only" noted that his respiratory function had improved only minimally in response to a recent trial of oral steroids. Prednisolone had been started at a dose of 50 mg daily on 17 June 1993 with the intention that it should be ceased at the end of June 1993. That dose for that duration was associated with some risk of acute steroid psychosis, but there was no evidence that one occurred.

26 The deceased had a urology out-patient clinic appointment arranged for 23 September 1993, but before that date presented to the hospital's emergency department by ambulance on 22 September 1993. He had again been seen at the Wanneroo Hospital's emergency department before being transferred. He arrived at Sir Charles Gairdner's emergency department just before midnight. He had severe respiratory distress, secondary to chest infection superimposed on his chronic lung disease. On 27 September 1993, a note was made that his situation had been discussed with a social worker at the Repatriation General Hospital, Hollywood. Ms Kitchie (the social worker) strongly recommended a "transfer to RGH as he is known well to Dr James and allied health staff at RGH." On 29 September 1993 appears a note apparently made by Ms Kitchie which reads:

"Met with Des Pantall as requested. Client unable to continue coping at caravan park as he is not compliant with his medications, refuses MOWs and Silver Chain cannot attend for shower assistance. Also refusing transfer to RGH. As agreed (with me) for AECD assessment re: living circumstances/alternative accommodation and says he will be compliant with medications (now!). Mr Pantall also seems to have an unshakable paranoid fixation about Freemasons - feels that are all 'out to get him'. Discussed with Registrar and Resident will refer to Social Worker to assessment for alternative accommodation assistance. Des may try to organise belongings first - this is not recommended."

27 On 6 October 1993, the resident medical officer made a note about some confusion, which appears to be acute and probably related to his hypoxia.

28 Mr Pantall then passed away relatively suddenly on 11 October 1993, apparently due to a hypoxic cardiac arrest secondary to his chronic lung disease.

29 Dr Stewart noted that, on 23 September 1993, the nursing admission notes recorded the patient's present concern as "property". Another note was made under "self-perception" reading "anxious about his property in his caravan".

30 Dr Stewart expressed the view that, as far as he could see, "there is absolutely no evidence in our file that his testamentary capacity would have been in any way impaired in July 1992."

31 Alan Lloyd James, respiratory physician, by affidavit sworn 12 December 2002 and filed in the action, says that he saw the deceased on five separate occasions about his chronic breathlessness from November 1991 until February 1992, when he attended his surgery. The initial consultation with the deceased lasted for one hour and subsequent consultations were of 15 to 20 minutes in duration. He also discussed with the deceased his treatment and symptoms by telephone on three or four occasions. He diagnosed the deceased as suffering from emphysema and airway disease. When he last saw the deceased on 10 February 1992, Dr James prescribed oxygen to improve his exercise tolerance. He says the deceased understood what he told him and discussed his medical condition with him at length. He said that the deceased seemed to have his own ideas about whether he would follow the instructions he gave. Dr James says the deceased always appeared to him to be coherent and oriented, although he had an:

"unusual personality and was what one would describe as a 'character'. He was fiercely independent. However, he was suspicious about people. He seemed to use the word 'Freemasons' as a general derogatory description for persons he disliked."

32 The deceased never made any mention of doctors and chemists selling him empty cylinders to be used for his breathing. Although he did not make a formal examination of his mental state, there was nothing in his discussions with the deceased to cause Dr James to query his capacity to make a will when he last saw him on 10 February 1992.

33 Thus, the evidence before the Court is that the deceased at various times expressed a view that "Freemasons" were "out to get him". How this expression is to be understood and whether it should be considered to have affected his mental capacity to make a will on 25 July 1992, is, on the face of it, open to a degree of conjecture. However, on the medical evidence before me, being that of Dr James as well as that of Dr Stewart, I am satisfied that the deceased did have the requisite capacity to make a will in July 1992. I accept what Dr James states in his affidavit made 12 December 2002, that:

"If asked whether the deceased had the capacity to understand the effect of making a will, the extent of his property and to whom he should have given consideration as potential beneficiaries, I can only say that there had been nothing in my discussions with the deceased that would have caused me to query his capacity to make a will when I last saw him on 10 February 1992."

34 In all of those circumstances, I am satisfied that the deceased had the requisite capacity to make a will on 25 July 1992.

35 The remaining question is whether the informal will should be considered a will which is valid and effective, given its non-compliance with the requirements of s 8 of the Wills Act. Section 34 of the Wills Act (as amended by Act No 47 of 1997) 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 will to constitute his will."

36 Prior to its amendment in 1997, s 34 required the Court to be satisfied "that there can be no reasonable doubt" concerning the deceased's intentions. In James v Burdekin (1990) 3 WAR 298, it was held that these words, as they appeared in s 35 of the Wills Act, required the Court to be satisfied to the criminal standard of proof, a higher standard than that which would otherwise apply in civil proceedings. Now that that standard has been removed from both ss 35 and 34, the Court need only be satisfied on the balance of probabilities that the deceased intended the document to constitute his will.

37 In In the Matter of the Will of Lobato; Shields v Caratozzolo (1991) 6 WAR 1 and In the Estate of Crossley; Crossley v Crossley [1989] WAR 227, Nicholson J discussed the three elements that must be met for s 34 to have effect, namely:

(1) there must be a document purporting to embody the testamentary intentions of the deceased person;

(2) that document must not have been executed in accordance with s 8 of the Act; and

(3) the Court must be satisfied that there can be no reasonable doubt that the deceased person intended the document to constitute his will.

In light of the amendments to the Act, this third requirement should simply be expressed in these terms: The Court must be satisfied that the deceased person intended the document to constitute his will, the requisite degree of satisfaction being according to the civil standard of proof, namely, the balance of probabilities.

38 In Lobato, the document purporting to be a will was written by the deceased, but not signed by her. Nicholson J accepted (at 7 - 8) that s 34 could apply to an unsigned document. He relied, in particular, on In the Estate of Williams (Dec) (1984) 36 SASR 423 at 425. There can be little doubt that s 34 can validate a document unsigned by a testator, for the reasons expressed by his Honour.

39 In this case, the document purporting to be the will of the deceased is written in his hand. Any doubt about that is removed by the evidence of John Harry Horton given by an affidavit filed in this action and sworn 5 May 2003. Mr Horton is a forensic consultant and investigator. He is a retired chief superintendent of police and former officer-in-charge of the Forensic Division of the Western Australian Police Service. He holds a diploma in Police Forensic Science from the Institute of Applied Science, USA (1971). His studies have included the examination and comparison of documents, handwritings and typescript. He has compared a copy of the informal will of the deceased with a letter signed by the deceased and sent to the Department of Veterans' Affairs as well as the signature of the deceased that appears on a driver's licence issued in his name in the State of Western Australia and has concluded that the same person wrote the three documents. I accept his evidence.

40 The informal will should, in my view, be characterised as a testamentary document: see definition of "will" in s 4 Wills Act. It plainly purports to effect a testamentary disposition of property. Section 34 itself states that "a document purporting to embody the testamentary intentions of a deceased is a will of that person ... ". In this case, the informal will plainly purports to embody the testamentary intentions of its author. It provides that "in the event of my decease" certain things should happen. The things that are to happen are clearly set out. Items of property are identified and the class of persons who should receive them is specified.

41 The deceased plainly intended that the document should constitute his will, notwithstanding that he did not sign the document.

42 Accordingly, I have no hesitation in concluding that the informal will of the deceased is a document purporting to embody the testamentary intentions of its author and is a will, as understood by the Wills Act, notwithstanding that it has not been executed in accordance with s 8.

(1) The Court pronounces that the will of Desmond Henry Pantall, deceased, dated 25 July 1992, a copy of which is annexed hereto, is effective and valid;

(2) There be a grant of letters of administration with the will of the said deceased annexed to the Public Trustee.

44 Following the hearing of the action on 7 May 2003, it became apparent that the original of the informal will of the deceased lodged with the court by the Public Trustee when the application for a non-contentious grant of probate was made, had been misplaced. The affidavit of Trevor Clifford Ormesher sworn 16 May 2003 is now before me and addresses the whereabouts of the will. I am satisfied that the court has had the custody of the original of the informal will at all material times since the non-contentious grant application was made by the Public Trustee.

45 In these circumstances, the order made in (2) above should be amended. I now order that there be a grant of letters of administration with a copy of the will of the said deceased annexed to the Public Trustee.