It is possible to revoke a grant of probate in common form, while a grant of probate in solemn form is usually irrevocable, except for limited exceptions. Although an unopposed application is a factor that the Court considers when deciding whether to grant the relief requested, a grant of probate in solemn form cannot be made solely based on the parties’ consent.
To grant probate in solemn form, the Court must be independently satisfied that the documents presented are the last Will and testament of a capable testator. The Court must assess whether there is sufficient evidence to meet the minimum requirements for the validity of the Will, which includes proof of due execution and when the testator executed the Will they had capacity and understood its contents.
Two presumptions of fact arise in the proof of wills for probate purposes, according to Hall J in Scaffidi v Scaffidi [No 2]. Suppose the propounder of a Will provides evidence of its execution. And that the Will is regular on its face, a presumption arises that the testator had testamentary capacity; if suspicious circumstances are proven, the burden of proof shifts back to the propounder of the Will to demonstrate that the testator had capacity.
Once testamentary capacity is proven, due execution of the Will raises the presumption that the testator knew and approved of the Wills contents at its execution. Displacement of this presumption by any circumstance that creates a well-grounded suspicion or doubt as to whether the Will expresses the testator’s true intentions, the propounder must prove affirmatively that the testator knew and approved the contents of the Will.
Testamentary capacity
The four requirements for testamentary capacity are well established and provided in Banks v Goodfellow. The testator must:
(1) understand the nature of the Will and its effects;
(2) understand the extent of the property of which they are disposing;
(3) be able to comprehend and appreciate the claims to which they ought to give effect; and
(4) no disorder of the mind shall poison the testators affections, pervert their sense of right, or prevent the exercise of their natural faculties – that no insane delusion shall influence their Will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
The Banks v Goodfellow test determines the testamentary capacity of a testator. In Scaffidi, Hall J observed that a testator does not need perfect mental balance and clarity to pass the test. Notably, the relevant time to determine capacity is when the testator creates the Will. Deciding whether a person had testamentary capacity when they made a Will is a legal question, not a medical one.
A conclusion that a person’s condition fits the diagnostic criteria of a mental disorder may be relevant to the legal question of testamentary capacity. Still, it does not automatically mean that the testator lacked capacity. The focus is on the extent of the testator’s capacity, not the reason for any lack of capacity. It is unnecessary to show that the testator understood every clause of the Will. However, the propounder of the Will must demonstrate that the testator understood the nature of making a will and the practical effect of the central clauses of the Will.
Knowledge and approval
The concept of ‘knowledge and approval’ pertains to whether the testator genuinely understood the contents of their Will and intended to give effect to them. This requirement is separate from proving testamentary capacity, and it is crucial not to confuse the two. However, the evidence used to demonstrate each requirement may overlap.
Background
Victor Anthony Virgin (the Deceased) died on March 8 2020. He left a will dated June 8 2005, appointing his wife Patricia Dawn Virgin (the executor) as sole executor and beneficiary of his estate (the Will). The executor has applied for an order pronouncing the force and validity of the Will and a grant of probate in solemn form in her favour.
The Deceased was born on January 3, 1944, and passed away at the age of 76. Surviving the Deceased was survived by the executor, whom he married in 1997. Additionally, from a previous marriage, his two children, Justin Anthony Virgin and Victor Albert Virgin are the first and second defendants in this proceeding.
The Deceased’s Will was executed on June 8, 2005, while the Deceased and the executor travelled in Queensland. Janet Williamson, a lawyer from Townsville, Queensland, prepared and executed The Will in compliance with section 8 of the Wills Act 1970 (WA). The Deceased bequeathed his estate to the executor if she outlived him. Similarly, the executor bequeathed her estates to the Deceased if he survived her.
Janet Williamson kept The Will in safe custody until she ceased working as a solicitor. After that, Giudes & Elliott Solicitors & Notary held the Will in safe custody. The Will has not been withdrawn by a subsequent will, marriage or termination of marriage, or by destruction or otherwise.
There is no codicil to the Will. When executing the Will in 2005, the Deceased was 61 years old. The cause of death recorded on his death certificate is Advanced Alzheimer’s dementia (2012), Alzheimer’s dementia (2004) (Contributory Cause) Slowly progressive ischemia of right toes (3 months).
The Deceased owned several parcels of land and had money in the bank at the time of the Will’s execution. He was not a company director or a trustee of any trust.
Regarding knowledge and approval, the deceased’s financial affairs in 2005 were not particularly complex. Additionally, since the deceased was born in Australia, there was a low risk of any language-related miscommunication between the deceased and the solicitor when giving instructions. Finally, it’s worth noting that neither Mr Justin Virgin nor Mr Victor Virgin has presented any evidence to suggest that the deceased lacked testamentary capacity concerning the Will.
VIRGIN -v- VIRGIN [2024] WASC 101
The executor applied for a grant of probate in common form (PRO 2038/2021) on May 18, 2021. However, probate caveats lodged in the probate jurisdiction of the Court by Justin Anthony Virgin (CAV 20/2020 and CAV 39/2021) resulted in the proceedings. Lodging a writ on the same day. The first defendant filed a defence and counterclaim on June 10, 2021. On November 8, 2021, by consent of a registrar, orders were made to join Victor Albert Virgin as the second defendant in the proceeding.
Although the Will contained minor deficiencies and typographical errors, the defendants did not suggest that the deceased did not properly execute it. The plaintiff presented all available evidence of the Deceased’s testamentary capacity at the time of the Will’s execution. The only medical evidence available indicated that the Deceased had cognitive issues with executive and memory functions but did not suggest that the Deceased lacked testamentary capacity.
The Will was a simple document prepared and witnessed by a lawyer. It mirrored the Will of the Deceased’s wife, and the Deceased’s financial affairs were not complex. There was nothing radical about the provisions of the Will. While driving around Australia, the Deceased engaged a lawyer to make his and his wife’s Wills.
The Deceased’s cognitive impairment was progressive, and records showed Alzheimer’s dementia in 2004 and advanced Alzheimer’s dementia in 2012. However, the Deceased and his wife were aware of their memory impairment, which continued to decline over time gradually. However, the Deceased could organise his financial affairs and establish an enduring power of attorney.
The SAT (State Administrative Tribunal) determined that the Deceased lacked legal capacity in July 2010 but did not establish when he ceased to have capacity. However, the SAT’s declaration that the Deceased’s enduring power of attorney, made on May 7 2009, had force was a finding that, as of that date, the Deceased had testamentary capacity. The progressive nature of the Deceased’s condition and the totality of the assessments done as to the extent of the Deceased’s cognitive impairments in January 2004, July 2007, and by the SAT in July 2010 firmly gave rise to an inference that, in 2005, he had testamentary capacity.
The decision
The Court can determine the validity of the Will in question by considering the/e following. Firstly, there is no evidence of the improper execution of the Will, and it seems rational on its face. The main issue is the mental capacity of the deceased to create a valid Will when instructing Janet Williamson on June 8 2005.
The medical evidence between January 2004 and July 2007 does not suggest that the deceased lacked testamentary capacity when signing the Will. Furthermore, in July 2007, the deceased could execute a power of attorney, indicating that the doctor believed the deceased had testamentary capacity.
Considering all the evidence, the Court found that the Deceased had testamentary capacity when executing the Will. Notably, the Will was a simple document that dealt with the Deceased’s assets rationally. There was no evidence to the contrary, and the Deceased knew and approved of the contents of the Will. Therefore, the Court found the Will to be valid and enforceable.