Statutory will applications : a practical guide [1st edition.] 9780409337037, 040933703X

Table of contents :
Full Title
Dedication
Copyright
Foreword
Preface
Table of Cases
Table of Statutes
Table of Contents
CHAPTER 1 Introduction
The Origins of the Jurisdiction in England and Wales
The ‘Substituted Judgment’ Approach
Re L (WJG): ‘brief interval of sanity’
Re D(J): five ‘principles’ or ‘factors’
Difficulties with the Re D(J) approach
Re C (a patient): ‘normal decent person’
G v Official Solicitor
The Change of Direction in England and Wales: Best Interests
Re P
Re D (Statutory Will)
Re JC
The Development of the Australian Legislation
Victoria: 1985 Report
New South Wales: 1989 Discussion Paper and 1992 Report
South Australia: Wills (Miscellaneous) Amendment Bill 1993 (SA)
Victoria: 1994 Report and the draft Wills Act 1994 (Vic)
Queensland: 1994 Issues Paper
National Committee for Uniform Succession Laws: 1997 Report
The Enactment of the Australian Legislation
Case Law in Australia
Boulton v Sanders
Re Fenwick
The Extent of Statutory Will Applications to Date in Australia
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
CHAPTER 2 The Statutory Framework
Scope of Jurisdiction
Jurisdiction of the Guardianship and Administration Board in Tasmania
General Statutory Scheme
Key Features
Standing to Apply
Statutory Wills for Minors Lacking Testamentary Capacity
The Two-Stage Approach
Threshold Requirements
Lack of testamentary capacity
The ‘core test’
Appropriate for an order to be made
Appropriate applicant
Representation of persons with legitimate interest
Information to be Provided by the Applicant
Procedural Requirements Concerning the Making of the Application
Hearing of the Leave Application
Hearing of the Substantive Application
Orders that Can be Made on the Substantive Application
Evidence
Revision of Draft Will or Codicil by the Court
Separate Representation of the Proposed Testator
Execution of the Will, Codicil or Instrument of Revocation
Retention of the Will, Codicil or Instrument of Revocation
Privacy
Costs
Effect and Recognition of Statutory Wills
Testator Who Regains Capacity
Possible Statutory Reform: Victoria
CHAPTER 3 When a Statutory Will May be Required
Introduction
Adjusting Beneficial Entitlements Under on Existing Will or On Intestacy
The carer parent versus the absent parent
Expression by testator of changed testamentary intentions
Relationship between proposed testator and beneficiary ended
Positive misconduct by beneficiary
Improvement in poor relationship
Including, or increasing, benefits to worthy recipients
Other changes in circumstances
Resolving Problems With an Existing Will or Intestacy
Lapsed gift
Avoiding property passing as bona vacantia
Adeemed gift
Concern that a previous will was made when testamentary capacity lacking
Previous will missing
Previous will defective
Avoiding potential construction and rectification applications
Avoiding other estate litigation — family provision claims
Estate Planning
Asset protection
Tax planning
Social security and aged care means test planning
Protection of a vulnerable beneficiary
CHAPTER 4 Acting for the Applicant
Overview
Preparing the application
Conducting the application
Identifying the Client and the Appropriate Applicant
Identifying Persons Who Should be Named and Served
Identifying the Orders Sought and Whether Advice Required in Other Jurisdictions
Meeting the Threshold Requirements
Lack of testamentary capacity
The ‘core test’
Appropriate for an order to be made
Appropriate applicant
Representation of persons with legitimate interest
Providing the Listed Information
Evidence of lack of testamentary capacity
Draft of the proposed will, codicil or instrument of revocation
Evidence of the proposed testator’s wishes
Evidence of the terms of any previous will
Evidence of persons who might be entitled to claim on intestacy
Evidence of likelihood of potential family provision claims
Evidence of circumstances of persons for whom the proposed testator might be expected to provide by will
Evidence of gifts that might be expected to be made for charitable or other purposes
Any other relevant facts
The Costs Position
Preparing the Originating Process
Meeting Procedural Requirements
Filing and Serving the Material
Consultation, Negotiation and Mediation
Preparing the Material for Court
Leave Application, Substantive Application and Directions
Responding to Adjournment Requests
Revising the Draft Will, Codicil or Instrument of Revocation
Oral Evidence and Cross-Examination
Maintaining the Proposed Testator’s Privacy
Submissions as to Costs
Arranging Execution of the Will, Codicil or Instrument of Revocation
Does the Statutory Will Require Review and Update?
Steps to be Taken Where Testator Regains or Acquires Capacity
CHAPTER 5 Acting for Other Interested Persons
Introduction
Separate Representation for the Proposed Testator
New South Wales and the Australian Capital Territory
South Australia
Other jurisdictions
Separate Representation for Other Persons
The Position of an Administrator or Attorney for the Proposed Testator
Direct Instructions from the Proposed Testator
Other Categories of Interested Persons
South Australia: Public Advocate
Different Methods of Participation
No involvement
Providing practical assistance
Participating in negotiation or mediation
Passive participation
Active participation
Potential Grounds for Opposition
CHAPTER 6 Family Provision
Introduction
Approach by the Courts Deciding Statutory Will Applications
Family Provision Claims Against Estates Where a Statutory Will has been Made
New South Wales
Release of rights
Notional estate
CHAPTER 7 Costs
General Principles
Successful applications
Unsuccessful applications
Discontinued applications
Examples of Costs Orders
Would Specific Statutory Costs Provisions be Desirable?
CHAPTER 8 Review of Case Law
Australian Capital Territory
Re DH; Application by JE and SM
New South Wales
Re Fenwick; Application of J R Fenwick & Re Charles
AB v CB
Application by Peter Leslie Kelso
Re Estate of Crawley
Application of Sultana
Application of Wosif Elayoubi
Re Levy Estate — Application of Samuels
Re Will of Jane
Hausfeld v Hausfeld
Re Estate of S
Scott v Scott
Burns v The Estate of Troy Mitchell Burns, a Protected Person
Northern Territory
Queensland
Re Winstanley
Re Joachim
Deecke v Deecke
Re Weick
Bielby v Denny
Payne v Smyth as Litigation Guardian for Welk
Bock v Bock
Re Keane; Mace v Malone
Hickson v Humphrey
McKay v McKay
Wickham v Smith
Re Matsis; Charalambous v Charalambous
Sadler v Eggmolesse
Re Kann
Lawrie v Hwang
Doughan v Straguszi
South Australia
Public Trustee v Phillips No SCCIV-03-800
Bryant v Blake
Hoffman v Waters
Jeavons v Chapman (No 2)
Re Rak
Griffin v Boardman
Re Grace Geraldine Brown
Re Martina Pieternella de Jager
Re Manley
Tasmania
CMPA (Statutory Will)
EKI (Statutory Will)
Victoria
Monger v Taylor
Hill v Hill
Re Fletcher; Ex parte Papaleo
State Trustees Limited v Hayden
Re Palmer
Boulton v Sanders
De Gois v Korp
Plowright v Burge
State Trustees Limited v Do and Nguyen
Saunders v Pedemont
Western Australia
In the Will of Doris May Frances Davies
CHAPTER 9 Extracts from Legislation and Procedural Rules
Australian Capital Territory
Wills Act 1968 (ACT) Part 3A
New South Wales
Succession Act 2006 (NSW) Chapter 2, Part 2.2
Northern Territory
Wills Act (NT) Part 3
Supreme Court Rules (NT) regs 88.05B and 88.05D
Queensland
Succession Act 1981 (Qld) Part 2, Division 4, Subdivision 3
South Australia
Wills Act 1936 (SA) Part 2, Division 2
Probate Rules 2004 (SA) r 98
Tasmania
Wills Act 2008 (Tas) Part 3, Divisions 2 and 3
Supreme Court Rules 2000 (Tas) r 803
Victoria
Wills Act 1997 (Vic) Part 3, Division 2
Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) Order 17
Western Australia
Wills Act 1970 (WA) Part XI, Division 1
Supreme Court Consolidated Practice Directions 2009 (WA)
England and Wales
Mental Health Act 1959 ss 101, 102(1) and 103(1)
Mental Capacity Act 2005 ss 1 and 4
CHAPTER 10 Precedents
Checklist for Taking Initial Instructions
Correspondence
With applicant client
With medical practitioner
With interested persons, giving notice of proceedings
Form of Orders
Sample Execution Clause
CHAPTER 11 Case Studies
Introduction
Case Study 1: ‘Nil Capacity’ Case
Facts
Analysis
Case Study 2: Changing Gifts in an Existing Will, in Contested Circumstances
Facts
Analysis
Case Study 3: Statutory Will for Tax and Asset Protection Planning
Facts
Analysis
Catchword Index
Index

Citation preview

Statutory Will Applications A Practical Guide

Richard Williams MA (Cantab), TEP Barrister, Queensland Bar

Sam McCullough BCom LLB Director, Worrall Lawyers, Hobart

LexisNexis Butterworths Australia 2014

To my father Glyn. Richard Williams To Julia and our Eliza, my reasons for taking on new challenges. Sam McCullough

AUSTRALIA

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USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO National Library of Australia Cataloguing-in-Publication entry Author: Title:

Williams, Richard Statutory Will Applications: A Practical Guide Edition: 1st edition. ISBN: 9780409337020 (pbk) 9780409337037 (ebk) Notes: Includes index. Subjects: Statutory wills. Other Authors/Contributors: McCullough, Sam, author. Cataloguing-in-Publication entry is available from the National Library of Australia http://catalogue.nla.gov.au/ For information about legal deposit and government deposit, please contact the Legal Deposit Unit on (02) 6262 1312 or email [email protected] Information about legal deposit can be found on the Library’s website, Legal Deposit in Australia. Alternatively, the Legal Deposit Unit can be contacted on (02) 6262 1312. © 2014 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission Inquiries should be addressed to the publishers. Typeset in Goudy. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Foreword The authors in this well-researched work on statutory wills have undertaken a comprehensive treatment of the Australian legislation and the developing case law. This is a readable and compelling text. An examination of the contents of the publication reveals a well-ordered treatment of every aspect of the law of statutory wills. The authors trace the origins of the legislation from the United Kingdom to the legislation as enacted throughout Australia. A further ten chapters follow, including a practical guide for practitioners on all aspects of making and responding to an application for a statutory will. A comprehensive review of the case law has also been undertaken. This text will be invaluable for all wishing to master this new branch of succession law. It is rare for there to be a dramatic development in the field of succession law. The jurisdiction to make a statutory will is, however, such a development. The need for innovation was recognised through the work of law reform bodies, leading to recommendations to their respective legislators. In 1996, legislation permitting the making of statutory wills was first enacted in South Australia. There soon followed comparable legislation in the other States and Territories. Some may lament the lack of complete legislative uniformity throughout Australia. There is, however, an alternative view. Differences allow for comparative study — through both the words of the legislative provisions and the ensuing developments in case law. The text addresses the legislation of each State and Territory. This treatment readily allows a comparison of the different provisions. As with other areas of law, a developing jurisprudence is of particular importance. Authorities from all jurisdictions add colour to the black letter of legislative provisions. Life is given to the words of the legislation. Since the enactment of these legislative schemes, there has rapidly developed a body of case law

in most jurisdictions. Plainly there was a significant lacuna which required filling by legislative reform. The number of applications to the courts for the making of statutory wills demonstrates this to be the case. The development of this jurisprudence has been enhanced by the Parliaments of the States and Territories having invested in their judiciaries a broad discretion to permit the making of statutory wills. Developments in the area of succession law are imperative in the light of changing societal needs. We have an increasingly diverse population and our life expectancies are rapidly extending. The significant advances in medical science need to be matched by flexible developments in the law. The making of statutory wills is one such development and, as a consequence, the law is better able to address the needs of those lacking testamentary capacity. This will occur in the case of disabled persons who have never had testamentary capacity as well as those who once had, but have now lost, that capacity. Undoubtedly, there will be an increase in demand for the making of statutory wills. This publication is timely. It will be much used. The authorities reviewed by the authors generally provide straightforward illustrations of the exercise of the statutory power. The authors address and detail the circumstance of the ‘nil capacity’ case and the ‘lost capacity’ case. As pointed out, these two situations call for markedly different treatment. In the former, there is a blank slate. In the case of lost capacity, the court must consider all relevant circumstances, including the personality and disposition of the testator when of sound mind. A person, within reason, should be able to leave their estate as they wish. As Oliver Wendell Holmes Jr. observed, in the case of a will, ‘[i]t is true that the testator is a despot, within limits, over his property’.1 Holmes went on to note, however, that a testator ‘is required by statute to express his commands in writing, and that means that his words must be sufficient for the purpose when taken in the sense in which they would be used by the normal speaker of English under his circumstances.’ Over time, it is to be expected that complex and unusual circumstances will arise. Judges will need to be astute to guard against the making of a statutory will that does not adequately address a testator’s circumstances and idiosyncrasies. This scholarly work on statutory wills will be an essential addition to the libraries of all succession lawyers. It is a work of depth and breadth with direct relevance to those involved in the study and practice of succession law

throughout Australia. I use the words ‘those involved’ advisably. The publication will attract close attention from the law student, the academic, the practitioner and the judge. The work is well indexed and comprehensively footnoted. The reader, through the authors’ comprehensive treatment of the case law, can readily find guidance concerning the particular problem that confronts them. The text will undoubtedly receive extensive reference in counsel’s submissions to the courts. One can readily foresee the role to be played by the publication in the development of succession law, particularly in the context of our ageing population. The authors are to be congratulated on their detailed analysis, treatment and discussion of this new development in succession law. Justice Tom Gray Judges Chambers Supreme Court of South Australia 1.

Oliver Wendell Holmes Jr., ‘The Theory of Legal Interpretation’ 12 Harvard Law Review 417 at 420.

Preface ‘It must always be remembered that it is a serious matter for the court to appropriate to itself the will-making power of the citizen’1

Statutory wills, also referred to as ‘court-authorised wills’ or ‘court-made wills’, are a relatively new development in Australian succession law. The relevant legislation in the States and Territories was introduced over the period from 1996 to 2010. The number of published decisions is steadily rising, which reflects an increasing awareness amongst lawyers and other advisers that a statutory will can provide a means of resolving a range of issues posed by a person’s lack of testamentary capacity. Statutory will applications can, in some cases, involve personal tragedy, intractable family conflict or controversy. The parties involved often stand to lose or gain sometimes substantial personal benefits, and the law and practice in this area can be complex when applied to particular factual circumstances. At the centre of this is the proposed testator, and the ‘core test’ that the court must apply on their behalf — whether or not what is proposed reflects their likely intentions. In the leading case of Re Fenwick, Palmer J outlined the competing policy considerations that are involved in these cases, and the challenges that are now faced by the courts and those involved in these cases in Australia: The difficulties stem from the fact that the Australian legislation, like the previous United Kingdom legislation, endeavours to accommodate several social policies which can come into conflict in particular cases. First, the testamentary freedom of the individual, being a basic element of the right to property, should not be usurped by the State, or by others with the State’s assistance. Second, testamentary dispositions which have previously been validly made by an incapacitated person may defeat claims or expectations which contemporary society regards as just and reasonable. Third, the wishes of mentally incapacitated persons, if known, should be respected. Fourth, laws of intestacy already provides for what is to happen in the absence of will; why should that law apply differently to persons with testamentary incapacity?2

Notwithstanding these challenges, there has in a relatively short time been

a considerable development in the jurisprudence on statutory wills in Australia. A number of detailed judgments have clarified the relevant principles, particularly the application of the ‘core test’ going to the proposed testator’s likely intentions, and the relevant statutory requirements. We have endeavoured to provide a practical commentary that includes a consideration of the various circumstances in which a statutory will application may be appropriate, the steps involved in preparing an application, and approaches that can be taken when acting on behalf of other interested persons. Our analysis is founded on a review of all of the published statutory will decisions to date in Australia, which is contained in Chapter 8, and a detailed analysis of the legislation and specific procedural rules applying in each Australian jurisdiction. The law is stated as at 1 November 2013. Richard Williams, Brisbane Sam McCullough, Hobart 1. 2.

Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [130], Palmer J; see 8.2. At [9].

Table of Cases Paragraph numbers in bold indicate the paragraph at which a case receives its principal commentary

A AB v CB [2009] NSWSC 680 …. 3.3, 4.11, 4.21, 4.33, 5.3, 5.7, 8.3, 11.2 Alexander Phillips Boord, Re, unreported, Supreme Court of South Australia, No 70 of 2003, Mullighan J, 27 April 2004 …. 3.20

B Banks v Goodfellow (1870) LR 5 QB 549 …. 3.4, 4.8, 4.14, 8.9, 8.13, 8.20, 8.24, 8.29, 8.35 Barns v Barns (2003) 214 CLR 169 …. 6.5 Bielby v Denny, unreported, Supreme Court of Queensland, No 10819 of 2009, Mullins J, 30 November 2009 …. 3.14, 4.27, 5.5, 6.2, 8.19 Bock v Bock, unreported, Supreme Court of Queensland, No 8794 of 2010, de Jersey CJ, 23 September 2010 …. 3.3, 5.5, 8.21 Boulton v Sanders [2003] VSC 405 …. 1.30, 3.11, 4.17, 5.7, 8.47, 11.5 Boulton v Sanders (No 2) [2003] VSC 409 …. 7.3, 8.47, 8.49 Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112 …. 1.20, 1.21, 1.30, 4.9, 4.11, 5.7, 7.3, 8.9, 8.39, 8.47, 8.49, 8.51 BP Australia Limited v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 …. 4.12, 8.10 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 4.8, 4.14 Burns v The Estate of Troy Mitchell Burns, a Protected Person [2013] NSWSC 1550 …. 3.8, 4.9, 4.14, 4.16, 4.29, 8.13 Bryant v Blake (2004) 237 LSJS 23; [2004] SASC 369 …. 2.7, 3.3, 4.11, 4.14, 5.4, 5.7, 5.15, 8.32

C C (a patient), Re [1992] 1 FLR 51; [1991] 3 All ER 866 …. 1.6, 1.22, 4.9, 8.2, 8.33, 8.35, 8.37, 8.39, 8.40, 8.46, 8.47 Cardie, Re Will of Dianne Margaret [2013] QSC 265 …. 3.15 CEFD, Re [1963] 1 WLR 329 …. 7.3, 8.47 CMPA (Statutory Will), [2005] TASGAB 1 …. 2.2, 3.6, 3.23, 4.12, 4.20, 4.31, 6.3, 8.40 Crawley, Re Estate of [2010] NSWSC 618 …. 2.8, 3.12, 4.5, 8.5

D D (Statutory Will), Re [2012] Ch 57; [2011] 1 All ER 859 …. 1.10 Davey, Re [1980] 3 All ER 342 …. 1.23, 4.5 Deecke v Deecke [2009] QSC 65 …. 3.3, 4.11, 4.21, 4.26, 8.17, 8.24 De Gois v Korp [2005] VSC 326 …. 1.30, 3.6, 4.26, 8.48 DH, Re; Application by JE and SM [2011] ACTSC 69 …. 1.24, 3.12, 4.11, 4.33, 5.3, 5.7, 8.1 D(J), Re [1982] Ch 237; [1982] 2 All ER 37 …. 1.4, 1.5, 1.6, 1.7, 1.9, 1.14, 1.22, 1.23, 1.27, 3.13, 4.9, 4.16, 4.33, 7.3, 8.2, 8.22, 8.24, 8.26, 8.27, 8.33, 8.35, 8.36, 8.37, 8.39, 8.42, 8.44, 8.45, 8.47, 8.48 Doris May Frances Davies, In the Will of, unreported, Supreme Court of Western Australia, CIV 3332 of 2011 …. 1.31, 8.52 Doughan v Straguszi [2013] QSC 295 …. 3.20, 4.9, 4.10, 4.12, 5.7, 8.30, 11.8

E EKI (Statutory Will) [2010] TASGAB 12 …. 2.2, 3.14, 4.11, 8.41 Elayoubi, Application of [2010] NSWSC 1004 …. 3.3, 3.23, 5.15, 8.7, 11.2

F F, Re [1990] 2 AC 1 …. 1.1 Fenwick, Re; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 …. 1.20, 1.22, 1.25, 2.9, 3.3, 3.6, 3.8, 3.12, 3.13, 4.8, 4.9, 4.10, 4.11, 4.13, 4.14, 4.15, 4.16, 4.29, 4.33,

6.2, 6.3, 8.2, 8.3, 8.9, 8.10, 8.11, 8.12, 8.13, 8.22, 8.24, 8.27, 8.35, 8.37, 8.39, 8.51, 11.2, 11.4 Fletcher, Re; Ex parte Papaleo [2001] VSC 109 …. 1.30, 3.9, 4.9, 4.11, 4.22, 8.39, 8.44, 8.51 Frizzo v Frizzo [2011] QSC 107 …. 8.24

G G v Official Solicitor [2006] WTLR 1201; [2006] EWCA Civ 816 …. 1.7, 1.22 Grace Geraldine Brown, Re [2009] SASC 345 …. 1.28, 3.4, 3.14, 4.11, 4.17, 5.4, 5.10, 8.37 Grace Geraldine Brown (Deceased), Re (2010) 106 SASR 516; [2010] SASC 90 …. 4.28, 4.35, 8.37 Griffin v Boardman [2009] SASC 315 …. 3.12, 4.18, 4.22, 5.4, 5.6, 5.7, 5.15, 8.36

H Hausfeld v Hausfeld [2012] NSWSC 989 …. 1.25, 3.20, 4.10, 4.12, 4.33, 8.10, 8.26, 8.30, 11.8 Hayden v State Trustees Ltd [2002] VSCA 11 …. 1.20, 1.24, 8.45 Hickson v Humphrey, unreported, Supreme Court of Queensland, No 384 of 2011, de Jersey CJ, 8 April 2011 …. 3.3, 5.5, 5.6, 5.16, 7.5, 8.23 Hill v Hill [2001] VSC 83 …. 3.7, 4.9, 4.16, 4.21, 4.29, 5.7, 5.16, 6.2, 8.43, 8.47, 8.49 Hill v Hill (No 2) [2001] VSC 135 …. 4.5, 7.2, 7.3, 8.23, 8.43, 8.47, 8.51 HMF, Re [1976] Ch 33; [1975] 2 All ER 795 …. 4.5, 7.2, 7.3 Hoffman v Waters (2007) 98 SASR 500; [2007] SASC 273 …. 1.28, 2.7, 3.3, 3.23, 4.8, 4.11, 5.4, 5.7, 5.10, 5.15, 7.3, 8.9, 8.24, 8.33, 8.35, 8.37, 8.39

J Jane, Re Will of [2011] NSWSC 624 …. 1.25, 2.8, 2.9, 3.6, 4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.13, 4.16, 4.21, 4.27, 4.31, 4.32, 5.3, 5.16, 5.17, 6.2, 7.3, 8.9, 8.13 Jane, Re Will of (No 2) [2011] NSWSC 883 …. 1.25, 8.9, 11.4

JC, Re [2012] WTLR 1211 …. 1.11, 4.22 Jeavons v Chapman (No 2) [2009] SASC 3 …. 1.28 4.11, 4.16, 5.17, 8.34 Joachim, Re, unreported, Supreme Court of Queensland, No 12325 of 2008, Dutney J, 22 December 2008 …. 3.8, 4.11, 4.21, 8.16 Jones v Sherlock [2009] NSWSC 246 …. 7.4

K Kann, Re, unreported, Supreme Court of Queensland, No 5309 of 2013, Applegarth J, 13 June 2013 …. 2.7, 3.11, 4.14, 4.21, 4.28, 8.28 Keane, Re; Mace v Malone [2012] 1 Qd R 319; [2011] QSC 49 …. 1.27, 3.6, 4.9, 4.10, 5.7, 5.17, 8.22, 8.24 Keane, Re; Mace v Malone (No 2) [2011] QSC 98 …. 5.7, 7.3, 7.5, 8.9, 8.22 Kelso, Application by [2010] NSWSC 357 …. 3.6, 4.5, 4.11, 4.21, 4.26, 7.3, 7.5, 8.4

L Lawrie v Hwang [2012] QSC 422 …. 8.29 Lawrie v Hwang [2013] QSC 289 …. 3.6, 4.9, 4.11, 4.14, 4.30, 5.16, 6.2, 8.29 Levy Estate — Application of Samuels, Re [2010] NSWSC 1014 …. 3.14, 4.15, 8.8 Lieberman v Morris (1944) 66 CLR 69 …. 6.5 Luciano v Rosemblum (1985) 2 NSWLR 65 …. 6.2, 8.12 L (WJG), Re [1966] Ch 135; [1965] 3 All ER 865 …. 1.2, 1.3, 1.4, 1.6

M McKay v McKay (2011) 4 ASTLR 429; [2011] QSC 230 …. 1.27, 3.15, 4.9, 4.11, 4.12, 5.7, 7.5, 8.24, 8.26, 8.27, 8.29 Manley, Re [2013] SASC 98 …. 3.9, 4.16, 5.10, 5.17, 8.39 Manley, Re [2013] SASC 134 …. 7.5, 8.39 Manzoni (a protected person), Re; Kirwan v Public Trustee [1995] 2 NZLR 498 …. 3.8 Martina Pieternella de Jager, Re (2012) 7 ASTLR 584; [2012] SASC 236 …. 1.28, 3.5, 4.11, 4.14, 4.21, 4.27, 5.4, 8.38

Matsis, Re; Charalambous v Charalambous [2012] QSC 349 …. 1.27, 3.20, 3.21, 3.22, 4.9, 4.15, 5.15, 7.5, 8.26, 11.8 Monger v Taylor [2000] VSC 304 …. 3.8, 4.5, 4.9, 4.27, 4.29, 6.2, 7.3, 8.33, 8.42, 8.45, 8.47

N Neuendorf v Public Trustee of Qld (as Executor of Estate of Dickfos) (dec’d) [2013] QSC 156 …. 3.13 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 …. 4.11

O Oswell v Jones [2007] QSC 384 …. 3.22

P P, Re [2010] Ch 33; [2009] 2 All ER 1198 …. 1.9, 4.9, 4.22, 8.36 Palmer, Re [2003] VSC 21 …. 3.14, 4.11, 4.29, 8.46 Payne v Smyth as Litigation Guardian for Welk, [2010] QSC 45 …. 3.3, 4.21, 4.31, 5.5, 5.15, 8.20, 11.2 Plowright v Burge [2005] VSC 490 …. 3.4, 3.5, 3.11, 4.9, 4.22, 4.32, 5.16, 8.49, 11.5 Plowright v Burge [2006] VSC 69 …. 7.2, 8.49 Public Trustee v Phillips No SCCIV-03-800 [2004] SASC 142 …. 3.6, 4.11, 4.15, 4.26, 5.4, 8.31

R Rak, Re [2009] SASC 288 …. 1.28, 3.23, 4.14, 5.4, 5.6, 7.2, 8.35

S S, Re Estate of [2012] NSWSC 1281 …. 3.11, 4.11, 4.33, 7.5, 8.11 Sadler v Eggmolesse [2013] QSC 40 …. 1.27, 2.7, 3.3, 3.23, 4.9, 4.21, 8.27 Saunders v Pedemont [2012] VSC 574 …. 1.30, 3.8, 3.20, 4.9, 4.12, 4.29, 4.31, 4.33, 5.7, 5.16, 5.17, 6.2, 8.51 Saunders v Pedemont (No 2) [2012] VSC 601 …. 1.30, 5.7, 7.3, 8.51

Scott v Scott [1913] AC 417 …. 4.33, 8.3 Scott v Scott (2012) 7 ASTLR 299; [2012] NSWSC 1541 …. 4.5, 4.21, 4.31, 4.33, 6.2, 6.5, 7.3, 8.12 Secretary of the Department of Human Services v Anette Nancarrow and Lee Nancarrow [2004] VSC 450 …. 8.40 Sharp v Adam [2006] WTLR 1059 …. 4.8 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 …. 6.3 SPM v LWA [2013] QSC 138 …. 4.33 Stanford v Stanford (2012) 47 Fam LR 105; [2012] FamCAFC 1 …. 4.22 Stanford v Stanford (2012) 247 CLR 109; [2012] HCA 52 …. 4.22 State Trustees Limited v Do and Nguyen [2011] VSC 45 …. 1.21, 3.16, 4.11, 4.17, 4.18, 4.31, 6.2, 8.50 State Trustees Limited v Hayden (2002) 4 VR 299; [2002] VSC 98 …. 1.21, 3.6, 4.9, 4.11, 8.37, 8.45, 8.47 Stephens v Perpetual Trustee Company Ltd (2009) 76 NSWLR 15; [2009] NSWSC 1078 …. 6.3 Sultana, Application of [2010] NSWSC 915 …. 3.3, 4.14, 8.6

T Timbury v Coffee (1941) 66 CLR 277 …. 4.8

W W, Re [1971] Ch 123; [1970] 2 All ER 502 …. 4.33 Weick, Re, unreported, Supreme Court of Queensland, No 7033 of 2009, Applegarth J, 27 August 2009 …. 3.3, 5.5, 5.15, 8.18 Whitmont v Lloyd, unreported, Supreme Court of New South Wales, Bryson J, 31 July 1995 …. 3.22 Wickham v Smith, unreported, Supreme Court of Queensland, No 11730 of 2011, Daubney J, 8 February 2012 …. 3.3, 3.23, 4.16, 5.6, 5.7, 8.25, 11.2 Winstanley, Re, unreported, Supreme Court of Queensland, No 11203 of 2007, Daubney J, 18 January 2008 …. 3.14, 4.11, 8.15

Table of Statutes References are to paragraphs

COMMONWEALTH Social Security Act 1991 Pt 3.18A …. 11.6 Superannuation Industry (Supervision) Act 1993 …. 4.22 Superannuation Industry (Supervision) Regulations 1994 …. 4.22

AUSTRALIAN CAPITAL TERRITORY Family Provision Act 1969 …. 6.1 Justice and Community Safety Legislation Amendment Act 2010 …. 1.19 Wills Act 1968 Pt 3A …. 1.19, 2.4, 9.1 s 2 and Dictionary …. 2.26 s 8A …. 2.6 s 8B …. 2.6 s 16A …. 2.5, 9.1 s 16A(1) …. 2.5 s 16A(1)(a) …. 2.20 s 16A(1)(b) …. 2.3 s 16A(2)(a) …. 2.3 s 16A(2)(b) …. 2.3 s 16A(3) …. 2.17 s 16A(4) …. 2.6 s 16A(5) …. 2.18, 2.25

s 16A(6) …. 2.23 s 16A(7) …. 2.23 s 16B …. 9.1 s 16B(1) …. 2.5, 2.7 s 16B(2) …. 2.14, 6.2 s 16C …. 2.16, 9.1 s 16C(2) …. 2.20 s 16D …. 2.19, 9.1 s 16D(a) …. 2.17 s 16E …. 9.1 s 16E(a) …. 2.9 s 16E(b) …. 2.4, 2.10 s 16E(c) …. 2.11 s 16E(d) …. 2.12 s 16E(e) …. 2.13 s 16F …. 2.22, 9.1 s 16G …. 2.23, 9.1 s 16H …. 2.21, 9.1 s 16I …. 2.26, 9.1 s 32 …. 4.35

NEW SOUTH WALES Adoption Act 2000 …. 8.2 Civil Procedure Act 2005 s 56(1) …. 4.13 s 61 …. 2.18 s 62 …. 2.18 s 71 …. 8.3 s 71(d) …. 4.33, 8.2 s 71(f) …. 4.33, 8.2, 8.3 s 86 …. 2.18 s 98(1) …. 8.9 Family Provision Act 1982 …. 1.14 NSW Trustee and Guardian Act 2009 …. 8.3 Protected Estates Act 1983 …. 1.14, 8.2

s 13 …. 8.3 Statute Law (Miscellaneous Provisions) Act (No 2) 2007 s 3 …. 1.19 Sch 1, item 119 …. 1.19 Succession Act 2006 …. 1.14, 1.19, 11.4 Ch 2, Pt 2.2, Div 2….…. 1.19, 2.4, 8.3, 9.2 Ch 3 …. 1.22, 6.1, 6.2, 6.3, 6.5, 8.12 s 3 …. 2.26 s 11(1)(a) …. 2.22 s 16 …. 2.6 s 16(6) …. 2.23 s 16(7) …. 2.23 ss 18–26 …. 6.5, 8.12 s 18 …. 2.5, 2.9, 2.22, 4.10, 4.13, 4.29, 6.2, 8.11, 9.2 s 18(1) …. 2.5, 2.9, 4.7, 4.11 s 18(1)(a) …. 2.20 s 18(1)(b) …. 2.3 s 18(2)(a) …. 2.3 s 18(2)(b) …. 2.3 s 18(3) …. 2.17 s 18(4) …. 2.6 s 18(5) …. 2.18, 2.25 s 19 …. 2.14, 4.13, 6.2, 8.2, 8.9, 8.11, 9.2 s 19(1) …. 2.5, 2.6, 4.29, 6.2 s 19(2) …. 1.22, 4.8, 4.10, 4.29, 8.9 s 19(2)(e) …. 8.9 s 19(2)(i) …. 1.19, 1.22, 8.9 s 19(2)(j) …. 8.9 s 19(2)(k) …. 8.9 s 20 …. 2.16, 4.9, 9.2 s 20(1) …. 4.13, 4.29 s 20(1)(a) …. 4.13 s 20(1)(b) …. 4.7 s 20(2) …. 2.20 s 21 …. 1.19, 2.19, 4.13, 8.11, 9.2 s 21(a) …. 2.17

s 21(b) …. 4.13 s 21(c) …. 4.13 s 21(2) …. 4.7 s 22 …. 2.8, 4.7, 4.11, 4.29, 8.2, 8.9, 8.12, 9.2 s 22(a) …. 2.9, 4.14 s 22(b) …. 1.22, 2.4, 2.8, 2.10, 4.9, 4.11, 6.2, 8.2, 8.9, 8.13 s 22(c) …. 1.22, 2.11, 4.9, 4.10, 4.14, 4.16, 6.2, 6.3, 8.9, 8.13 s 22(d) …. 2.12, 4.11, 8.9, 8.12 s 22(e) …. 2.13, 4.5, 8.9, 8.12 s 23 …. 2.22, 9.2 s 24 …. 2.23, 9.2 s 25 …. 2.21, 5.3, 8.3, 8.9, 9.2 s 26 …. 2.26, 4.29, 9.2 s 28 …. 4.29 s 28(e) …. 4.12, 8.10 s 35 …. 3.11 s 41 …. 3.11, 6.2 s 51 …. 4.35 ss 55–100 …. 6.2, 8.12 s 57 …. 4.5, 6.2, 8.12 s 80 …. 6.6 s 95 …. 6.5, 8.12 s 128 …. 11.3 s 129 …. 11.3 Succession Amendment (Family Provision) Act 2008 s 3 …. 1.19 Sch 1, item [7] …. 1.19 Supreme Court Rules 1970 Pt 76 …. 1.14 Trustee Act 1925 s 45 …. 8.12 Uniform Civil Procedure Rules 2005 r 42.1 …. 8.9 r 42.20 …. 8.9 Wills, Probate and Administration Act 1898 …. 1.14

NORTHERN TERRITORY Administration and Probate Act 1969 Family Provision Act 1970 …. 6.1 Supreme Court Rules reg 88.05B …. 2.4, 2.15, 9.3 reg 88.05B(3) …. 2.16 reg 88.05B(4) …. 2.16 reg 88.05D …. 2.4, 2.16, 9.3 Wills Act 2000 Pt 3, Div 2 …. 1.19, 9.3 s 3 …. 2.26 s 18 …. 2.6 s 19 …. 9.3 s 19(1) …. 2.5 s 19(1)(a) …. 2.20 s 19(1)(b) …. 2.3 s 19(2)(a) …. 2.3 s 19(2)(b) …. 2.3 s 19(3) …. 2.17 s 19(4) …. 2.6 s 20 …. 9.3 s 20(1) …. 2.7 s 20(2) …. 2.14, 6.2 s 21 …. 9.3 s 21(a) …. 2.9 s 21(b) …. 2.4, 2.10 s 21(c) …. 2.11 s 21(d) …. 2.12 s 21(e) …. 2.13 s 22 …. 2.16, 9.3 s 22(d) …. 2.20 s 23 …. 9.3 s 23(1) …. 2.19 s 23(1)(a) …. 2.17 s 23(2) …. 2.18 s 24 …. 2.22, 9.3

s 25 …. 2.23, 9.3 s 26 …. 2.26, 9.3 s 50 …. 4.35

QUEENSLAND Guardianship and Administration Act 2000 …. 5.7, 8.17 Powers of Attorney Act 1998 s 107 …. 3.13 Succession Act 1981 …. 1.19, 1.27, 11.10 Pt 2, Div 4, Subdiv 3 …. 2.4, 1.19, 9.4 Pt 2, Div 4, Subdiv 4 …. 2.4, 1.19 Pt 4 …. 6.1 s 5 …. 2.26 s 6(1) …. 8.19 s 19 …. 2.6 s 21 …. 4.10, 8.16, 8.22, 9.4 s 21(1) …. 2.5 s 21(1)(a) …. 2.20 s 21(1)(b) …. 2.3 s 21(2) …. 2.17 s 21(3) …. 8.19 s 21(3)–(5) …. 2.18 s 21(5) …. 2.25 s 21(6) …. 2.22 s 21(7) …. 2.6 s 22 …. 2.16, 9.4 s 22(1) …. 2.5, 2.7 s 23 …. 2.14, 6.2, 9.4 s 24 …. 4.12, 8.29, 9.4 s 24(a) …. 2.12, 4.12, 8.24 s 24(b) …. 2.13, 8.24 s 24(c) …. 2.9 s 24(d) …. 2.4, 2.10, 8.22, 8.29 s 24(e) …. 2.11 s 25 …. 2.19, 9.4 s 25(a) …. 2.17

s 25(b) …. 5.7, 8.24 s 25(c) …. 5.7, 8.24 s 26 …. 2.22, 9.4 s 27 …. 2.26, 9.4 s 28 …. 2.15, 9.4 s 29 …. 9.4 ss 30–32 …. 2.23 s 30 …. 9.4 s 31 …. 4.35, 9.4 s 32 …. 9.4 Succession Amendment Act 2006 …. 1.19

SOUTH AUSTRALIA Administration and Probate Act 1919 Aged and Infirm Persons’ Property Act 1940 …. 5.7, 8.33 s 13(1) …. 8.34 s 13(2) …. 8.34 s 29(2) …. 1.14 Health Services Charitable Gifts Act 2011 …. 8.39 Inheritance (Family Provision) Act 1972 …. 4.19, 6.1, 6.2 Probate Rules 2004 r 98 …. 2.4, 9.5 r 98.01 …. 9.5 r 98.02 …. 2.24, 9.5 r 98.03 …. 2.15, 4.5, 9.5 r 98.04 …. 2.8, 2.13, 2.15, 2.16, 9.5 r 98.05 …. 9.5 r 98.06 …. 2.21, 9.5 r 98.07 …. 2.21, 9.5 r 98.08 …. 2.16, 8.31, 9.5 r 98.09 …. 2.15, 9.5 r 98.10 …. 2.14, 9.5 r 98.10(e) …. 4.17 r 98.10(f) …. 4.15 r 98.11 …. 2.19, 9.5

r 98.12 …. 2.19, 9.5 Statutes Amendment (New Rules of Civil Procedure) Act 2006 s 257 …. 1.19 Wills Act 1936 …. 1.15 Pt 2, Div 2 …. 2.4, 9.5 s 6 …. 2.6 s 7 …. 1.18, 1.19, 4.11, 7.3, 8.32, 8.33, 8.35, 9.5 s 7(1) …. 1.19, 2.5, 2.7, 2.14, 2.20, 4.11 s 7(2) …. 2.18 s 7(3) …. 2.17, 8.39 s 7(3)(a) …. 2.9 s 7(3)(b) …. 2.4, 2.10, 3.9, 8.39 s 7(3)(c) …. 2.11, 8.39 s 7(4) …. 1.18, 2.14, 6.2 s 7(4)(d)(iii) …. 4.19, 6.2 s 7(5) …. 2.6 s 7(6) …. 2.19 s 7(7) …. 1.18, 2.16, 4.5, 5.10, 5.16, 8.39 s 7(7)(b) …. 1.19 s 7(8) …. 2.18, 2.25, 8.39 s 7(9) …. 2.22, 8.37 s 7(10) …. 2.23 s 7(11) …. 2.23 s 7(12) …. 2.9, 8.38 Wills (Miscellaneous) Amendment Act 1994 …. 1.15 Wills (Wills for Persons Lacking Testamentary Capacity) Amendment Act 1996 …. 1.19

TASMANIA Administration and Probate Act 1935 Guardianship and Administration Act 1995 s 13(2) …. 8.40 Supreme Court Rules 2000 r 803 …. 2.4, 2.15, 9.6 r 803(1)(c) …. 4.5, 4.26

r 803(2) …. 2.16 Testator’s Family Maintenance Act 1912 …. 6.1 s 3(1) …. 6.3 s 8A(1A) …. 6.3, 8.40 Wills Act 1992 …. 1.19, 2.2 Wills Act 2008 Pt 2, Div 2 …. 1.19, 2.4 Pt 2, Div 3 …. 1.19, 2.4 Pt 2, Div 4 …. 1.19 Pt 3 …. 6.3 Pt 3, Div 2 …. 9.6 Pt 3, Div 3 …. 2.2, 9.6 Pt 3, Div 4 …. 9.6 s 4 …. 2.26 s 20 …. 2.6 ss 21–28 …. 2.2 s 21 …. 9.6 s 22 …. 9.6 s 22(1) …. 2.3, 2.5, 2.20 s 22(2) …. 2.3 s 22(3) …. 2.17 s 22(4) …. 2.6 s 23 …. 9.6 s 23(1) …. 2.5, 2.7 s 23(2) …. 2.14, 6.2 s 24 …. 9.6 s 24(a) …. 2.12 s 24(b) …. 2.9 s 24(c) …. 2.13 s 24(d) …. 2.11 s 24(e) …. 2.4, 2.10 s 25 …. 2.16, 9.6 s 25(2) …. 2.20 s 26 …. 2.17, 2.19, 9.6 ss 27A–27I …. 2.2 s 27 …. 9.6

s 28 …. 2.23, 9.6 s 28(c) …. 4.37 ss 29–38 …. 2.2 s 29 …. 9.6 s 30 …. 9.6 s 30(1) …. 2.2 s 30(4) …. 2.2 s 31 …. 2.2, 9.6 s 32 …. 9.6 s 32(1)(f) …. 8.41 s 33 …. 9.6 s 33(f) …. 2.4 s 34 …. 9.6 s 35 …. 9.6 s 36 …. 9.6 s 37 …. 9.6 s 38 …. 9.6 s 38(b) …. 4.37 s 39 …. 9.6 ss 39–41 …. 2.26 s 40 …. 9.6 s 41 …. 9.6 Wills Legislation Amendment Act 1995 …. 1.19, 2.2 ss 27A–27I …. 1.19

VICTORIA Administration and Probate Act 1958 Pt IV …. 6.1, 6.2, 8.42 s 5A …. 4.35 Evidence Act 2008 Pt 3.10 …. 2.19 Legal Profession (Consequential Amendments) Act 2005 s 18 …. 1.19 Sch 1, item 119 …. 1.19 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008

O 17 …. 2.4, 2.16, 9.7 r 17.01 …. 9.7 r 17.02 …. 9.7 r 17.03 …. 9.7 r 17.04 …. 9.7 r 17.05 …. 2.14, 2.15, 9.7 r 17.05(3)(d)…. 4.13 r 17.06 …. 2.16, 9.7 r 17.07 …. 2.16, 9.7 Statute Law Amendment (Evidence Consequential Provisions) Act 2009 s 54 …. 1.19 Sch 1, item 119 …. 1.19 Sch 1, Pt 1, item 66.2 …. 1.19 Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 s 311 …. 1.19 Sch 1, item 108 …. 1.19 Wills Act 1958 s 31(1) …. 8.51 Wills Act 1994 (draft) s 6 …. 1.16, 1.17, 1.18 Wills Act 1997 …. 7.2, 11.7 Pt 3, Div 2 …. 1.19, 2.4, 8.42, 9.7 s 3(2) …. 2.26 s 20 …. 2.6 s 21 …. 2.18, 2.27, 8.47, 8.49, 9.7 s 21(1) …. 2.1, 2.20 s 21(2) …. 2.5, 2.7 s 21(3) …. 2.6, 2.17 s 22 …. 9.7 s 22(1) …. 2.19 s 22(1)(a) …. 2.17 s 22(2) …. 1.19, 2.19 s 23 …. 2.18, 2.25, 9.7 s 24 …. 2.27, 9.7 s 25 …. 9.7

s 25(1) …. 2.22 s 25(2) …. 2.22 s 25(3)–(5) …. 2.23 s 26 …. 4.9, 4.29, 8.42, 8.44, 8.51, 9.7 s 26(a) …. 2.9, 2.16 s 26(b) …. 1.19, 1.21, 2.4, 2.10, 2.16, 2.28, 4.9, 8.45, 8.47, 8.49, 8.51 s 26(c) …. 2.11, 2.16, 8.49 s 27 …. 9.7 s 27(1) …. 2.19 s 27(1A) …. 1.19, 2.19 s 27(2) …. 2.16, 8.42 s 28 …. 2.14, 4.29, 6.2, 8.42, 8.51, 9.7 ss 28(a)–(k) …. 1.21 ss 28(d)–(j) …. 4.13 s 29 …. 2.16, 2.28, 4.5, 4.32, 5.16, 9.7 s 29(b) …. 1.19 s 29(d) …. 1.19 s 29(e) …. 7.2, 8.51 s 30 …. 2.26, 9.7 Wills Amendment Act 2007 …. 8.50 s 3 …. 1.19, 1.21 s 22(2) …. 1.19 s 27(1A) …. 1.19

WESTERN AUSTRALIA Administration Act 1903 …. 2.15 Family Provision Ac 1972 …. 6.1 Inheritance (Family and Dependants Provision) Act 1972 …. 2.15 Inheritance (Family Provision and Dependants Provision) Amendment Act 2011 s 17 …. 1.19 Rules of the Supreme Court 1971 O 37, r 6(3) …. 2.15 Supreme Court Consolidated Practice Directions 2009 9.3.1 …. 2.4, 2.15, 2.23, 4.5, 9.8

Wills Act 1970 Pt XI …. 1.19, 2.15 Pt XI, Div 1 …. 2.4, 9.8 Pt XI, Div 2 …. 9.8 Pt XII …. 2.15 s 4 …. 2.26 s 39 …. 9.8 s 39(2) …. 2.26 s 40 …. 2.7, 2.15, 2.18, 2.19, 9.8 s 40(1) …. 2.5 s 40(1)(a) …. 2.20 s 40(1)(b) …. 2.3 s 40(2) …. 2.6, 2.17 s 40(3)(a) …. 2.3 s 40(3)(b) …. 2.3 s 40(4) …. 2.22 s 41 …. 2.14, 2.15, 9.8 s 41(1)(h) …. 1.19 s 42(1)(a) …. 2.9 s 42 …. 2.17, 9.8 s 42(1)(b) …. 2.4, 2.10 s 42(1)(c) …. 2.12 s 42(1)(d) …. 2.13 s 43 …. 9.8 s 43(1)(a) …. 2.7 s 43(1)(b) …. 2.10, 2.20 s 43(1)(c) …. 2.19 s 43(1)(d) …. 2.18, 2.25 s 43(2) …. 2.19 s 44 …. 2.23, 4.35, 9.8 s 45 …. 2.23, 9.8 s 46 …. 2.27, 9.8 s 47 …. 2.24, 9.8 s 48 …. 2.26, 9.8 s 50 …. 2.15 Wills Amendment Act 2007 …. 1.19 s 24 …. 2.26

NEW ZEALAND Protection of Personal and Property Rights Act 1988 s 55 …. 3.8

UNITED KINGDOM Administration of Justice Act 1967 s 17 …. 1.1 Court of Protection Rules 2007 r 73(4) …. 4.5 Law of Property Act 1925 s 171 …. 1.1 s 171(1) …. 1.22 Mental Capacity Act 2005 …. 1.8, 1.9, 1.11 s 1 …. 1.8, 9.9 s 4 …. 1.8, 1.11, 9.9 Mental Health Act 1959 …. 1.1, 1.7, 1.9, 8.22 s 101 …. 9.9 s 102 …. 1.1, 1.2, 1.3, 1.9 s 102(1) …. 1.4, 9.9 s 102(1)(c) …. 1.1, 1.3 s 103 …. 1.1, 1.2, 1.3, 1.9 s 103(1) …. 9.9 s 103(1)(c) …. 4.5 s 103(1)(dd) …. 1.1, 1.4 Mental Health Act 1983 …. 1.9, 1.14 Pt VII …. 1.1, 1.7 s 95 …. 1.6, 1.9 s 95(1)(c) …. 1.6 s 96 …. 1.6, 1.13, 1.14 s 97 …. 1.13, 1.14

Contents Foreword Detailed Contents Preface Table of Cases Table of Statutes CHAPTER 1

Introduction

CHAPTER 2

The Statutory Framework

CHAPTER 3

When a Statutory Will May be Required

CHAPTER 4

Acting for the Applicant

CHAPTER 5

Acting for Other Interested Persons

CHAPTER 6

Family Provision

CHAPTER 7

Costs

CHAPTER 8

Review of Case Law

CHAPTER 9

Extracts from Legislation and Procedural Rules

CHAPTER 10 Precedents CHAPTER 11 Case Studies

Catchword Index Index

Detailed Contents Foreword Contents Preface Table of Cases Table of Statutes

CHAPTER 1

Introduction

The Origins of the Jurisdiction in England and Wales The ‘Substituted Judgment’ Approach Re L (WJG): ‘brief interval of sanity’ Re D(J): five ‘principles’ or ‘factors’ Difficulties with the Re D(J) approach Re C (a patient): ‘normal decent person’ G v Official Solicitor The Change of Direction in England and Wales: Best Interests Re P Re D (Statutory Will) Re JC The Development of the Australian Legislation Victoria: 1985 Report New South Wales: 1989 Discussion Paper and 1992 Report

South Australia: Wills (Miscellaneous) Amendment Bill 1993 (SA) Victoria: 1994 Report and the draft Wills Act 1994 (Vic) Queensland: 1994 Issues Paper National Committee for Uniform Succession Laws: 1997 Report The Enactment of the Australian Legislation Case Law in Australia Boulton v Sanders Re Fenwick The Extent of Statutory Will Applications to Date in Australia Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia

CHAPTER 2

The Statutory Framework

Scope of Jurisdiction Jurisdiction of the Guardianship and Administration Board in Tasmania General Statutory Scheme Key Features Standing to Apply Statutory Wills for Minors Lacking Testamentary Capacity The Two-Stage Approach Threshold Requirements Lack of testamentary capacity The ‘core test’ Appropriate for an order to be made

Appropriate applicant Representation of persons with legitimate interest Information to be Provided by the Applicant Procedural Requirements Concerning the Making of the Application Hearing of the Leave Application Hearing of the Substantive Application Orders that Can be Made on the Substantive Application Evidence Revision of Draft Will or Codicil by the Court Separate Representation of the Proposed Testator Execution of the Will, Codicil or Instrument of Revocation Retention of the Will, Codicil or Instrument of Revocation Privacy Costs Effect and Recognition of Statutory Wills Testator Who Regains Capacity Possible Statutory Reform: Victoria

CHAPTER 3

When a Statutory Will May be Required

Introduction Adjusting Beneficial Entitlements Under on Existing Will or On Intestacy The carer parent versus the absent parent Expression by testator of changed testamentary intentions Relationship between proposed testator and beneficiary ended Positive misconduct by beneficiary Improvement in poor relationship Including, or increasing, benefits to worthy recipients Other changes in circumstances

Resolving Problems With an Existing Will or Intestacy Lapsed gift Avoiding property passing as bona vacantia Adeemed gift Concern that a previous will was made when testamentary capacity lacking Previous will missing Previous will defective Avoiding potential construction and rectification applications Avoiding other estate litigation — family provision claims Estate Planning Asset protection Tax planning Social security and aged care means test planning Protection of a vulnerable beneficiary

CHAPTER 4

Acting for the Applicant

Overview Preparing the application Conducting the application Identifying the Client and the Appropriate Applicant Identifying Persons Who Should be Named and Served Identifying the Orders Sought and Whether Advice Required in Other Jurisdictions Meeting the Threshold Requirements Lack of testamentary capacity The ‘core test’ Appropriate for an order to be made Appropriate applicant Representation of persons with legitimate interest Providing the Listed Information

Evidence of lack of testamentary capacity Draft of the proposed will, codicil or instrument of revocation Evidence of the proposed testator’s wishes Evidence of the terms of any previous will Evidence of persons who might be entitled to claim on intestacy Evidence of likelihood of potential family provision claims Evidence of circumstances of persons for whom the proposed testator might be expected to provide by will Evidence of gifts that might be expected to be made for charitable or other purposes Any other relevant facts The Costs Position Preparing the Originating Process Meeting Procedural Requirements Filing and Serving the Material Consultation, Negotiation and Mediation Preparing the Material for Court Leave Application, Substantive Application and Directions Responding to Adjournment Requests Revising the Draft Will, Codicil or Instrument of Revocation Oral Evidence and Cross-Examination Maintaining the Proposed Testator’s Privacy Submissions as to Costs Arranging Execution of the Will, Codicil or Instrument of Revocation Does the Statutory Will Require Review and Update? Steps to be Taken Where Testator Regains or Acquires Capacity

CHAPTER 5 Introduction

Acting for Other Interested Persons

Separate Representation for the Proposed Testator New South Wales and the Australian Capital Territory South Australia Other jurisdictions Separate Representation for Other Persons The Position of an Administrator or Attorney for the Proposed Testator Direct Instructions from the Proposed Testator Other Categories of Interested Persons South Australia: Public Advocate Different Methods of Participation No involvement Providing practical assistance Participating in negotiation or mediation Passive participation Active participation Potential Grounds for Opposition

CHAPTER 6

Family Provision

Introduction Approach by the Courts Deciding Statutory Will Applications Family Provision Claims Against Estates Where a Statutory Will has been Made New South Wales Release of rights Notional estate

CHAPTER 7

Costs

General Principles Successful applications

Unsuccessful applications Discontinued applications Examples of Costs Orders Would Specific Statutory Costs Provisions be Desirable?

CHAPTER 8

Review of Case Law

Australian Capital Territory Re DH; Application by JE and SM New South Wales Re Fenwick; Application of J R Fenwick & Re Charles AB v CB Application by Peter Leslie Kelso Re Estate of Crawley Application of Sultana Application of Wosif Elayoubi Re Levy Estate — Application of Samuels Re Will of Jane Hausfeld v Hausfeld Re Estate of S Scott v Scott Burns v The Estate of Troy Mitchell Burns, a Protected Person Northern Territory Queensland Re Winstanley Re Joachim Deecke v Deecke Re Weick Bielby v Denny Payne v Smyth as Litigation Guardian for Welk Bock v Bock Re Keane; Mace v Malone Hickson v Humphrey McKay v McKay

Wickham v Smith Re Matsis; Charalambous v Charalambous Sadler v Eggmolesse Re Kann Lawrie v Hwang Doughan v Straguszi South Australia Public Trustee v Phillips No SCCIV-03-800 Bryant v Blake Hoffman v Waters Jeavons v Chapman (No 2) Re Rak Griffin v Boardman Re Grace Geraldine Brown Re Martina Pieternella de Jager Re Manley Tasmania CMPA (Statutory Will) EKI (Statutory Will) Victoria Monger v Taylor Hill v Hill Re Fletcher; Ex parte Papaleo State Trustees Limited v Hayden Re Palmer Boulton v Sanders De Gois v Korp Plowright v Burge State Trustees Limited v Do and Nguyen Saunders v Pedemont Western Australia In the Will of Doris May Frances Davies

CHAPTER 9

Extracts from Legislation and Procedural Rules

Australian Capital Territory Wills Act 1968 (ACT) Part 3A New South Wales Succession Act 2006 (NSW) Chapter 2, Part 2.2 Northern Territory Wills Act (NT) Part 3 Supreme Court Rules (NT) regs 88.05B and 88.05D Queensland Succession Act 1981 (Qld) Part 2, Division 4, Subdivision 3 South Australia Wills Act 1936 (SA) Part 2, Division 2 Probate Rules 2004 (SA) r 98 Tasmania Wills Act 2008 (Tas) Part 3, Divisions 2 and 3 Supreme Court Rules 2000 (Tas) r 803 Victoria Wills Act 1997 (Vic) Part 3, Division 2 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) Order 17 Western Australia Wills Act 1970 (WA) Part XI, Division 1 Supreme Court Consolidated Practice Directions 2009 (WA) England and Wales Mental Health Act 1959 ss 101, 102(1) and 103(1) Mental Capacity Act 2005 ss 1 and 4

CHAPTER 10

Precedents

Checklist for Taking Initial Instructions Correspondence With applicant client With medical practitioner With interested persons, giving notice of proceedings Form of Orders Sample Execution Clause

CHAPTER 11

Case Studies

Introduction Case Study 1: ‘Nil Capacity’ Case Facts Analysis Case Study 2: Changing Gifts in an Existing Will, in Contested Circumstances Facts Analysis Case Study 3: Statutory Will for Tax and Asset Protection Planning Facts Analysis

Catchword Index Index

[page 1]

CHAPTER 1 Introduction The Origins of the Jurisdiction in England and Wales The ‘Substituted Judgment’ Approach Re L (WJG): ‘brief interval of sanity’ Re D(J): five ‘principles’ or ‘factors’ Difficulties with the Re D(J) approach Re C (a patient): ‘normal decent person’ G v Official Solicitor The Change of Direction in England and Wales: Best Interests Re P Re D (Statutory Will) Re JC The Development of the Australian Legislation Victoria: 1985 Report New South Wales: 1989 Discussion Paper and 1992 Report South Australia: Wills (Miscellaneous) Amendment Bill 1993 (SA) Victoria: 1994 Report and the draft Wills Act 1994 (Vic) Queensland: 1994 Issues Paper

1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17

National Committee for Uniform Succession Laws: 1997 Report

1.18

The Enactment of the Australian Legislation

1.19

Case Law in Australia

1.20

Boulton v Sanders Re Fenwick The Extent of Statutory Will Applications to Date in Australia Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria Western Australia

1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31

[page 2]

The Origins of the Jurisdiction in England and Wales 1.1 In England and Wales, the origins of the court’s jurisdiction to authorise the making of a statutory will for a person who lacks testamentary capacity lie in the ancient parens patriae jurisdiction. That jurisdiction provided the Crown with the power, and a corresponding duty, to protect the person and property of those unable to do so for themselves, including both minors and persons of unsound mind.1 The jurisdiction ceased to exist when the Mental Health Act 1959 (UK) came into force on 1 November 1960. Under the Law

of Property Act 1925 (UK) s 171, limited power was conferred on the Chancery Courts to make an inter vivos settlement of the property of a ‘lunatic or defective’. That power was replaced by the Mental Health Act 1959 (UK) ss 102 and 103. Under s 102(1)(c) of the 1959 Act, it was provided that: The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient — … (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered …2

In 1967, a new sub-paragraph 103(1)(dd)3 was introduced,4 which expressly confirmed that the s 102 power extended to: (dd) the execution for the patient of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered …

The relevant provisions were subsequently re-enacted in Part VII of the Mental Health Act 1983 (UK).

The ‘Substituted Judgment’ Approach 1.2 There was no statutory guidance provided as to the basis on which the courts of England and Wales should exercise the powers conferred by ss 102 and 103 of the 1959 Act. The approach that subsequently developed at common law involved what became termed a ‘substituted judgment’ approach.

Re L (WJG): ‘brief interval of sanity’ 1.3 In Re L (WJG),5 in determining whether to make an order under the Mental Health Act 1959 (UK) ss 102 and 103 directing the execution of a proposed voluntary settlement on behalf of the patient, a 68-year-old unmarried male who had for a number of years resided in a mental hospital, Cross J considered the assumptions that needed to be made in order for the court to exercise the statutory jurisdiction: The first question which arises is what assumptions am I to make as to the character and circumstances of the patient when faced with the suggestion that he should make the proposed settlement beyond the assumptions that he is of sane mind and that he will die intestate. Obviously, all bachelor uncles of sixty-eight with a fortune of £130,000 would not react in

exactly the same way to a suggestion that they should settle the greater part of it in their lifetime irrevocably on their nephews and niece and their families. Some would regard the possibility that they might themselves marry and have children as a

[page 3] matter to be taken into account; others would, for one reason or another, be sure that they would have no issue. Some would be spending the whole of their income — and even perhaps some of their capital — either on themselves or on causes which interested them. Others would be living well within their income. Some would feel an impartial affection for all their relatives; others an impartial dislike for all of them; others again would like some and dislike others. So far as I can see, there are only two alternatives open to a judge who is called on to apply the section. One alternative is to say that he can only direct the gift in question of any normally constituted person in the position of the patient would make it — when, that is to say, the claims of the donees or beneficiaries are so high that only a very selfish or unfeeling person would neglect them and the patient, if sane, would be blamed if he refused to make the gift or settlement in question. The other alternative is to assume that the patient, though of sound mind, is otherwise situated as he is — that is to say, has no friends or interests and no wish or opportunity to spend anything beyond what is needed to maintain him in the manner in which he is in fact being maintained. There are objections to either alternative. The first imposes some limitation on the wording. The second involves some very curious assumptions, and is particularly difficult to apply when, as here, the patient is being maintained by the State free of charge but would not be so maintained if he were of sound mind as the section tells the judge to assume that he is. 6 [emphasis added]

His Honour determined that the second alternative identified should be followed, notwithstanding the ‘very curious assumptions’ involved: ‘It seems to me, therefore, that I must assume that the patient becomes a sane man for a sufficient time to review the situation but knows that after a brief interval of sanity he will once more be as he was before.’7 This legal fiction of a ‘brief interval of sanity’ provided a footing that enabled his Honour to make a number of specific, and surprisingly detailed, factual assumptions: … On that footing he would see himself a bachelor of sixty-eight who will never marry or have a family. He would realise that he was the owner of some £130,000 derived mostly from his relatives but partly from accumulations of income. He would know that he will never have any friends, other than HJS and the receiver, or any interests. He would know that on his death, if he makes no settlement, half his property will be absorbed in death duties. He would know that he will never make a will and that half the balance of the fortune, or if his sister predeceased him, the whole of it will pass to his nephews and niece or their families. Although he does not know them and knows that he never will know them, he would know their financial circumstances and, in particular, the special needs of Antony G. He would know that his sister, whom he knows and for whom I may fairly assume he has some affection, wants none of his property but is anxious that he should make a settlement on his other relatives and also make some provision

for HJS, whom he knows and to whom he is grateful. Finally, the patient would know that in all probability he will be maintained by the State for the rest of his life and that not more than £200 or so of his income a year will ever be spent on him and that all the balance will be accumulated. Making those very curious assumptions I have no doubt that the patient would execute an irrevocable settlement of a substantial part of his property …8

Re D(J): five ‘principles’ or ‘factors’ 1.4 In Re D(J),9 Sir Robert Megarry, the Vice Chancellor, advanced this approach further, by enunciating five ‘principles’ or ‘factors’. The case concerned a widow of around 80 years of age, who had shown signs of senile dementia for approximately eight years. The patient had made a will some [page 4] years earlier, giving her house and contents to her daughter ‘A’, and the residue to her five children in equal shares. Ten years later, the house was sold for £13,500, thereby adeeming that legacy to A, and a new house was purchased. An application was made under the Mental Health Act 1959 (UK) s 103(1)(dd) for the execution of a codicil to the will, specifically gifting to A the patient’s new house and contents, in place of the adeemed legacy. The application was made jointly by A and another of the patient’s daughters, ‘R’, who had been appointed as the patient’s receiver. The application was heard by the deputy master of the Court of Protection. An order was made for the execution of a will that provided for a legacy of £10,000 for A, with the residue of the estate to be divided between the five children in equal shares, with gift over provisions. A and R appealed, seeking greater provision for A. Megarry V-C referred to ss 102(1) and 103(1)(dd) of the Act, noting that the statutory guidance as to the considerations which the court should have in mind when deciding what provisions to insert in the will was ‘exiguous’. He nevertheless considered it possible to state five ‘principles’ or ‘factors’ which should guide the court: The first of the principles or factors which I think it is possible to discern is that it is to be assumed that the patient is having a brief lucid interval at the time when the will is made. The second is that during the lucid interval the patient has a full knowledge of the past,

and a full realisation that as soon as the will is executed he or she will relapse into the actual mental state that previously existed, with the prognosis as it actually is. These propositions emerge, I think, from the judgment of Cross J in Re L (WJG) [1965] 3 All ER 865 at 871–872, [1966] Ch 135 at 144–145. In that case the judge was dealing with the making of a settlement for the patient, not a will: but I cannot see that the distinction matters. Paragraph (dd), dealing with wills, has been inserted immediately after para (d), dealing with settlements and gifts, and both are governed by the same general statutory provisions. The third proposition is that it is the actual patient who has to be considered and not a hypothetical patient. One is not concerned with the patient on the Clapham omnibus. I say that because the will is being made by the court, and so by an impartial entity skilled in the law, rather than the actual patient, whose views while still of a sound disposing mind might be idiosyncratic and far from impartial. … Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last of full capacity, for sometimes strong feelings mellow into indifference, and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason. But subject to all due allowances, I think that the court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight. If I may adapt Dr Johnson’s words, used for another purpose, the court is to do for the patient what the patient would fairly do for himself, if he could. Fourth, I think that during the hypothetical lucid interval the patient is to be envisaged as being advised by competent solicitors. The court will in fact be making the will, of course, and the court should not make a will on the assumption that the terms of the will are to be framed by someone who, for instance, knows nothing about lapse and ademption. Furthermore, as the court will be surveying the past and the future, the hypothetically lucid patient should be assumed to have a skilled solicitor to draw his or her attention to matters which a testator should bear in mind. … I cannot imagine that Parliament intended the court to match the sort of homemade will that some testators make. I do not, of course, say that one must treat the patient as being bound to accept the imaginary legal advice that is given to him: but the patient is to be treated as doing what he does either because of the advice or in spite of it, and not without having had it.

[page 5] Fifth, in all normal cases the patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant’s pen. There will be nothing like a balance sheet or profit and loss account. There may be many to whom the patient feels morally indebted; and some of that moral indebtedness may be readily expressible in terms of money, and some of it may not. But when giving legacies or shares of residue few testators are likely to reckon up in terms of cash the value of the hospitality and gifts that he has received from his friends and relations, and then seek to make some form of testamentary repayment, even if his estate is large enough for this. Instead, there is likely to be some general recognition of outstanding kindnesses by some gift which in quantum may bear very little relation to the cost or value of those kindnesses.10 [emphasis added]

Applying these principles, an order was made that provided for a will containing a legacy for A of £15,000, with the residue divided between the five children in equal shares, and a substitution clause in favour of A’s husband to apply to her legacy as well as to her share of the residue.

Difficulties with the Re D(J) approach 1.5 The practical difficulty of applying the Re D(J) ‘principles’ or ‘factors’, and the artificiality of the ‘substituted judgment’ approach, became apparent in subsequent cases.

Re C (a patient): ‘normal decent person’ 1.6 In Re C (a patient),11 the patient, Miss C, was 75 years of age at the time of the application. She had suffered since birth from severe mental disability and had lived at a hospital since the age of 10. She had little memory, understanding or capacity to communicate. Her parents had died many years earlier and it appeared that few, if any, members of her extensive family were aware of her existence. Her estate was valued at approximately £1.6 million, derived from her mother’s marriage settlement and her parents’ estates. The Official Solicitor, acting on behalf of the Public Trustee, the receiver of Miss C, applied for an order under the Mental Health Act 1983 (UK) ss 95 and 96, directing the making of a will for Miss C, to provide for the estate to be shared in approximately equal parts between the Friends of the Hospital where Miss C was accommodated and her family, with the Friends to receive part of that share immediately and the remainder on Miss C’s death. In having regard to the requirement of s 95(1)(c) that the proposed gifts constitute provision which ‘the patient might be expected to provide if [she] were not mentally disordered’, Hoffman J considered the counter-factual assumption made in Re L (WJG) and the third principle outlined by Megarry V-C in Re D(J) concerning the need to focus on the actual patient, acting reasonably. However, in this case, Miss C had never had testamentary capacity. His Honour said: In this case, the patient has lacked capacity since birth. In all relevant respects, the record of her individual preferences and personality is a blank on which nothing has been written. Accordingly, there is no material on which to construct a subjective assessment of what the patient would have wanted to do. Mrs Harrison, appearing for one of the next of kin, submitted that in those circumstances it was very difficult for the court to be satisfied that any particular gift was something which the actual patient ‘might be expected to provide’. There

might be cases in which the moral obligation was so strong that one could say that the patient would have had to be extraordinarily insensitive not to recognise it. But there were no grounds for supposing that this patient

[page 6] would have wished, for example, to benefit a particular mental health charity, or even mental health charities in general. She might, but she might equally have wanted to benefit the victims of foreign disasters or any other good cause. There was no basis on which to form a view one way or the other.12 [emphasis added]

His Honour determined that, in such a case where the person had never had capacity, the appropriate approach was as follows: … the court must assume that she would have been a normal decent person, acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any person and in this case there is nothing to displace such an assumption.13 [emphasis added]

Adopting this approach, his Honour found that ‘a person in the position of Miss C’, looking back over her life, would have been influenced by two principal considerations: that she had spent the whole of her life in the care of her community, specifically the national health service, the hospital and mental health charities; and that she had derived her fortune from being a child of a family. On this basis, his Honour was satisfied that she would have felt moral obligations to show recognition to both. As to how to give effect to that obligation, he said: … Once one has arrived at the conclusion that the disposition of her property would have been guided by these principles, I do not think it is necessary for the court to be satisfied that the patient would definitely have chosen one particular way of giving effect to them rather than another. A distribution which can be rationally justified as a way of giving effect to these principles would in my view be a provision which the patient ‘might be expected to provide’, even though a somewhat different distribution could also be so described.14

His Honour also recognised that it was important to have regard to the precise wording of the statute: … The court cannot of course indulge its own whims in these matters. The gifts and will it makes for the patient must be capable of being explained as something which the patient ‘might be expected to provide’. But I observe that the statute, recognising the difficulty of arriving at any certainty in these matters, says ‘might’ rather than ‘would be expected to provide’. In matters of detail, there must be a range of choices which would be equally valid.15

His Honour was satisfied that Miss C would have wished to distribute her

estate equally between her family and the community, and that the latter would have taken the form of gifts to mental health charities, primarily to benefit mentally handicapped people at the hospital or within the area that the hospital served. He determined that, while the court should be cautious and should have regard to Miss C’s foreseeable needs and not do anything that might put her comfort at risk, there was ample scope for a substantial distribution which would give the family the chance of saving inheritance tax and provide an immediate benefit from the estate. Orders were made that provided for immediate gifts of £100,000 to the Friends of the Hospital and £400,000 to the family, and for a will to be made that divided the residuary estate (after the making of several small pecuniary legacies) between the family and charity in equal shares, subject to bringing into account the sums received by way of lifetime gift. The division of the lifetime gift and the residuary estate between the family members was ordered to be made in accordance with the intestacy rules. The residuary charitable gift was framed as a gift to such mental health [page 7] charity or charities as the executor may select, with a wish expressed that regard be had to persons in the hospital’s catchment area and that the executor should, before making his choice, consult with members of Miss C’s family.

G v Official Solicitor 1.7 In G v Official Solicitor,16 a statutory will was made by order of an Assistant Master of the Court of Protection for a patient who was 74 years of age and who lacked testamentary capacity as a result of senile dementia and Alzheimer’s disease. The estate of the patient was valued at several million pounds. The patient had an existing will, made long before the onset of her illness, under which she appointed her son, ‘G’, as executor and divided her estate equally between her three children. The application was brought by a solicitor, who acted as the patient’s receiver. The Master determined that, as a result of poor relations between G and the receiver’s firm, and disharmony between the patient’s three children, it was appropriate for a new will to be

made, appointing a professional executor (the receiver’s firm, acting by two partners). The dispositive provisions of the patient’s will remained unchanged. The decision of the Master was appealed by G, first to a nominated judge under Part VII of the Mental Health Act 1983 (UK), then to the Court of Appeal. The point for consideration by the Court of Appeal was whether the judge failed to take into account a factor relevant to the exercise of his discretion, namely the wishes of the patient as to the identity of her executor. Mummery LJ (with whom Arden LJ and Moore-Bick LJ agreed), in dismissing the appeal, concluded as follows: The general principles guiding the court on an application to make a statutory will were discussed in the judgment of Sir Robert Megarry V-C in Re D(J) [1982] Ch 237 at 243–244, a decision on the similar jurisdiction under the Mental Health Act 1959. The important point for present purposes is that it is the actual individual patient who has to be considered, the function of the court being to do for the patient what the patient would fairly do for herself, if she could and acting with the benefit of advice from a competent solicitor. A competent solicitor would, in my view, point out to the patient any relevant change of circumstances since the making of the original will. He would draw the patient’s attention to the discord that now exists among her three children and advise her about the difficulties in the administration of her affairs and her estate which would follow if G remained sole executor. He would advise her about the advantages and disadvantages of appointing an independent professional person as executor. A competent solicitor would also advise the patient of the practical advantages of having an executor connected with the receivership in order to keep continuity between the receivership and the executorship. It is also clear that the size and nature of the patient’s estate is such that it would be difficult to administer it without any involvement of lawyers and other professionals. Reasonable professional costs and expenses in connection with the administration of the estate are unavoidable.17

It appears from this that, while the court was endorsing the application of the Re D(J) principles, in reality a strong emphasis was being placed on an objective approach, ascertaining the patient’s intentions by reference to what a competent solicitor may have advised, and making a tacit assumption that the patient would have followed such advice. [page 8]

The Change of Direction in England and Wales: Best Interests

1.8 The statutory regime in England and Wales has undergone a significant transformation in recent years. The Mental Capacity Act 2005 (UK), which came into force on 1 October 2007, now provides for a structured decisionmaking process, in place of substituted judgment, with the focus firmly on ascertaining the person’s best interests. The decision-making process is subject to various overarching principles, stated at s 1.18 These include: (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

The process by which a person’s best interests are to be determined is stated at s 4.19 As a result of this significant change of direction, the post2005 Act decisions in England and Wales provide limited assistance in determining how the ‘core test’20 is to be applied under the Australian legislation.

Re P 1.9 In Re P,21 Lewison J considered the evolution of the court’s jurisdiction to deal with a patient’s property, from the Mental Health Act 1959 (UK) ss 102 and 103 to the Mental Health Act 1983 (UK) s 95, and then to the Mental Capacity Act 2005 (UK). His Honour noted that the 2005 Act marked a radical change in the treatment of persons lacking capacity. The overarching principle under the 2005 Act is that any decision made on behalf of a person must be made in their best interests, which is not a test of ‘substituted judgment’ (what the person would have wanted) but rather requires a determination to be made by applying an objective test as to what would be in the person’s best interests. The guidance given under the 1959 and 1983 Acts about the making of statutory wills could not therefore be directly applied to a decision being made under the 2005 Act for various reasons, including that: (1) The 2005 Act does not require the counter-factual assumption that the person is not mentally disordered. The facts must be taken as they are. It is not therefore necessary to go through the ‘mental gymnastics’ of imagining that the patient has a brief lucid interval. (2) The goal of the inquiry is not what the person might be expected to have done, but what is in their best interests.

(3) The previous guidance was concerned with deciding what the person would have wanted if they were not mentally disordered. The 2005 Act requires the decision-maker to consider the person’s present wishes and feelings.22 His Honour concluded as follows: ‘… I do not consider that the guidance given by Re D(J) can be directly applied to the structured decision-making process required by the 2005 Act, although it contains a good deal of wisdom, and wisdom can always be applied.’23 [page 9] A further aspect that was touched on was the importance of adult autonomy and, linked to that, the concept of ‘remembrance’: … what will live on after P’s death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done ‘the right thing’ by their will. In my judgment the decision-maker is entitled to take into account, in assessing what is in P’s best interests, how he will be remembered after his death.24

Re D (Statutory Will) 1.10 In Re D (Statutory Will),25 Judge Hodge QC considered the question of whether the court should decline to authorise a statutory will in circumstances where there were doubts as to the validity of a recent will. His Honour determined this issue as follows: … Given the importance attached by the court to the protected person being remembered for having done the ‘right thing’ by his will, it is open to the court, in an appropriate case, to decide that the ‘right thing’ to do, in the protected person’s best interests, is to order the execution of a statutory will, rather than to leave him to be remembered for having bequeathed a contentious probate dispute to his relatives and the beneficiaries named in a disputed will. I therefore hold that the Court of Protection should not refrain, as a matter of principle, from directing the execution of a statutory will in a case where the validity of an earlier will is in dispute. However, the existence and nature of the dispute, and the ability of the Court of Protection to investigate the issues which underlie it, are clearly relevant factors to be taken into account when deciding whether, overall, it is in the protected person’s best interests to order the execution of a statutory will.26

On the facts, sufficient doubts had been raised as to the validity of earlier wills of Mrs D that her best interests dictated that all concerns about her true testamentary wishes should be set to rest by ordering the execution of a

statutory will, rather than leaving her estate to be eroded by the costs of litigation after her death, and her memory to be tainted by the bitterness of a contested probate dispute between her children.

Re JC 1.11 In Re JC,27 Senior Judge Lush considered further the new approach under the Mental Capacity Act 2005 (UK), and said: It was easier for a judge to approve a statutory will on behalf of a patient before the Mental Capacity Act 2005 came into force. The judge simply stood in the shoes of the testator, so to speak, and made the will that the judge thought the testator would have made at that particular time if he or she had testamentary capacity. As we have seen … this approach is no longer good law. The criteria now for making wills on behalf of adults who lack testamentary capacity is what is in their best interests rather than substituted judgment. However, we should take care not to throw the baby out with the bathwater. The Mental Capacity Act 2005 was based principally on the Law Commission’s report, Mental Incapacity … it should be recalled that, at para 3.25 of that report, the Law Commission said it favoured the use of a ‘best interests criterion which would contain a strong element of substituted judgment’ …28 [emphasis added]

[page 10] His Honour found that, when adjudicating on a statutory will application, regard must now be had to: (a) the checklist of factors for best interests’ decision-making, set out in s 4 of the Act, into which substituted judgment has been subsumed; (b) the possible application of the ‘balance sheet approach’ and the identification of ‘factors of magnetic importance’… ; and (c) the jurisprudence on applications of this kind that developed since the Act came into force, including recognition that for many people it is in their best interests that they be remembered with affection by their family as having done the ‘right thing’ by their will.29

However, his Honour expressed doubts about the effectiveness of the balance sheet approach in statutory will applications, and also the weight to be attached to the notion of the proposed testator being remembered with affection for having done the ‘right thing’. In this particular case, if JC had testamentary capacity he would choose to do nothing at all, and die intestate. His Honour was of the view that the notion of being remembered for doing the ‘right thing’ generates some ‘singularly unattractive’ arguments, and had no application to this case.

This case indicates that while the court no longer stands in the testator’s shoes, ‘substituted judgment’ was subsumed into the Mental Capacity Act 2005 (UK) s 4 and particularly into those factors relevant to statutory will applications.

The Development of the Australian Legislation 1.12 The Australian statutory wills legislation is very new, when compared with the history of the jurisdiction in England and Wales. It has been introduced directly into the succession legislation of the States and Territories, rather than being located within the mental health or guardianship legislation.

Victoria: 1985 Report 1.13 In 1985, the Chief Justice’s Law Reform Committee in Victoria published a report ‘Wills for Mentally Disordered Persons’. The report recommended that legislation be introduced based on the English model provided in ss 96 and 97 of the Mental Health Act 1983 (UK), but with some modifications. The Committee contemplated that most applications would be made by the Public Trustee, but that it should be open to any person other than the Public Trustee to make application with the leave of a Master.30

New South Wales: 1989 Discussion Paper and 1992 Report 1.14 A few years later, in August 1989, the New South Wales Law Reform Commission issued a discussion paper, ‘Wills for persons lacking willmaking capacity’.31 This sought views on a proposal that a statutory wills scheme similar to the English model should be introduced in New South Wales, based on the Mental Health Act 1983 (UK) ss 96 and 97 and with the Re D(J) principles guiding the court’s consideration of the views and wishes of the patient. The Commission outlined the problems faced by persons wishing to make a will when they are suffering from a developmental or [page 11]

mental disability: ‘As the law stands, the requirement of testamentary capacity means that many persons lacking will-making capacity are unable to make a will, or if they do, the validity of their dispositions will be in doubt. This may result in an expensive trial at the time probate is sought in order to ascertain capacity.’32 The Commission proposed that a statutory wills scheme would provide a ‘useful solution’ enabling, for example, provision to be made on a testator’s behalf: (a) for a housekeeper or some other employee of the testator to whom the testator is under an obligation which should be recognised by a legacy or other provision on the testator’s death; (b) to ensure that money derived by an incapacitated testator from one side of the family goes to the relatives on that side and not to those on the other side of the family; (c) for a stepchild of the testator who would not benefit under a will made before the testator lost capacity, or under intestacy or family provision legislation; and (d) to avoid a probate action which the testator’s existing testamentary dispositions are through likely to provoke if left as they are.33

The protective and remedial aspects of statutory will applications, and the potential breadth of the jurisdiction, were therefore clearly outlined at this early stage in the development of the legislation. With the passage of time, these aspects have each featured in the published decisions on statutory will applications in the various Australian jurisdictions. The Commission considered the question of how the phrase ‘lacking willmaking capacity’ should be defined, and noted that it should include individuals in at least four discrete categories: (a) persons suffering from a developmental disorder or disability; (b) persons diagnosed as suffering from a mental illness or disorder; (c) persons lacking capacity by reason of disease or accident. This would include the diseases and incapacities associated with old age and brain damage affecting capacity such as results from a stroke or accident; and (d) persons who may have testamentary capacity but through severe physical disability or injury are completely unable to communicate.34

The Commission specifically envisaged that the scheme would not be restricted to patients coming within the ambit of mental health and protective legislation. The discussion paper led to the Commission’s 1992 report ‘Wills for Persons Lacking Will-Making Capacity’.35 In that report, the Commission noted that, notwithstanding the work of the Chief Justice’s Law Reform

Committee in Victoria, no Australian jurisdiction had yet enacted legislation enabling the making of statutory wills. The Commission reiterated the need for a statutory will-making scheme for persons lacking testamentary capacity, where: (1) a person makes a valid will and subsequently loses capacity; (2) the person has testamentary capacity, never makes a valid will and subsequently loses testamentary capacity; or (3) the person never has testamentary capacity and never makes a valid will. [page 12] The limitations of the intestacy rules and the family provision framework were noted, in that they may not achieve an outcome that accords with what the person’s intentions would have been had they had testamentary capacity. The Commission also mentioned the limited jurisdiction that existed at that time in South Australia under the Aged and Infirm Persons’ Property Act 1940 (SA) s 29(2), by which the Supreme Court was able to conduct an inquiry into whether a will expresses the ‘present desire and intention’ of a protected person and, if satisfied to the contrary, authorise the execution of a new will.36 It was noted that that provision had rarely been used. The recommendations made by the Commission37 were in essence that: (1) A statutory will-making scheme should be introduced which would enable wills to be made on behalf of persons lacking testamentary capacity. The power should be exercised only in situations where a will or a new will is necessary to avoid a person’s property being distributed in a manner contrary to his or her intentions or what those intentions would have been if he or she had testamentary capacity at the present time. The scheme would greatly enhance the rights and dignity of persons with disabilities by enabling their property to be devised appropriately having regard to their current situation. (2) The power to make statutory wills should be vested in the Supreme Court. The possibility of the power being vested in the Guardianship Board was rejected.

(3) The scheme should cover any person lacking testamentary capacity, and not be limited to persons falling within the ambit of the Mental Health Act 1983 (UK) or the Protected Estates Act 1983 (NSW). (4) Any person should be entitled to apply to the court to make a statutory will. The application should be made in accordance with Rules of Court. In particular, ‘solicitors, social workers and health care workers who may be closely involved with the person’ should be entitled to make applications, as should the Protective Commissioner. (5) A person lacking testamentary capacity, who is the subject of an application for the making of a statutory will, should be joined as the defendant in the application. The reasons for this recommendation were as follows: Making a statutory will on behalf of a person lacking testamentary capacity is a significant intrusion on the person’s freedom and autonomy. The Commission therefore considers that such a process should not occur without giving the person lacking testamentary capacity the opportunity to challenge the application. Even where a person lacking testamentary capacity is not in a position to challenge the application, the service of a summons on the person as defendant serves to inform the person about the process taking place. This approach is consistent with the current emphasis on informing persons with disabilities of any decisions which may affect them and should not be dispensed with unless the Court is satisfied that some detriment may result to the person lacking testamentary capacity.38

(6) The Protective Commissioner should be given the power to apply to be joined in any proceedings for the making of a statutory will. Given that he or she may already be managing the affairs of the person lacking testamentary capacity, he or she may be able to assist the court in dealing with the application, including by furnishing details of the person’s financial affairs or of persons with an interest in the application. If the Protective Commissioner chooses not to apply to be [page 13] joined, he or she should nevertheless be entitled to attend and be heard at the hearing. (7) The leave of the court must be obtained before an application for an order for the making of a statutory will may proceed. The Commission stated that this requirement was intended to screen applications and

allow only adequately founded applications to proceed. By making it possible for any person to apply for the making of a statutory will, there was a concern that frivolous or vexatious applications may be lodged, or relatives may make applications for the purpose of ascertaining what provision, if any, the person who is the subject of an application has made for them in a will. In order to obtain leave, an applicant should have to satisfy the court that there are reasonable grounds to believe that the person for whom the statutory will is sought to be made may be (rather than is) incapable of making a will, and that there are reasonable grounds to believe it may be appropriate that a statutory will should be made. (8) An applicant should be required by the court to notify those persons specified by the court as having a sufficient interest in the proceeding. The making of a statutory will may have serious consequences for beneficiaries under an existing will or persons who would take on intestacy or are entitled to make a family provision application. It was envisaged that the court would specify those persons to be notified when granting leave for the application for an order. Notification should be dispensed with only in exceptional circumstances. (9) An applicant under the scheme should be required to provide that the person for whom a statutory will is to be made lacks testamentary capacity before a statutory will may be made on his or her behalf. The Commission noted that this contrasted with the position under the Mental Health Act 1983 (UK) which required only that a judge had ‘reason to believe’ that a patient was incapable of making a valid will. (10) The court should seek to make the will which would have been made by the person lacking will-making capacity if the person had the capacity to make a will at the time of the hearing of the application. In so doing, the court should consider various specified factors. The Commission stated that this approach was intended to direct the court’s attention to the actual person at the time the application is being considered and not some hypothetical person. Reference was made to the following statement by Megarry V-C in Re D(J) (although the five principles or factors were not referred to): ‘… the court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight.’39

(11) A statutory will ordered by the court, or an alteration to an existing statutory will, should be executed by the Registrar or Deputy Registrar in a manner prescribed by the Rules of Court. (12) A statutory will should have the same effect as a will executed under the Wills, Probate and Administration Act 1898 (NSW). In other words, statutory wills should be placed on the same footing as ordinary wills in all respects. (13) A court should be able to alter a statutory will on application by any person. (14) The procedure for making a statutory will should also apply to an application for alteration of a statutory will. (15) A statutory will should be revocable by the same procedure as is followed when it is made, unless the testator acquires or regains testamentary capacity in which case it should be capable of being revoked in the same way as an ordinary will. [page 14] A statutory will or a bequest contained in it should also be automatically revoked in accordance with the general statutory provisions relating to revocation. (16) The Family Provision Act 1982 (NSW) should apply to statutory wills in the same way as ordinary wills. An eligible person should not be prevented from making an application because a statutory will exists. (17) The statutory will-making scheme should include minors. (18) Proceedings for the making of a statutory will (including any order made by the court) should be open to the public and a statutory will should be a public document subject to the court’s discretion to order otherwise. In the Commission’s view ‘the court’s discretion to close the court is a sufficient measure to ensure that proceedings are not conducted in the presence of the public where it would be inappropriate to do so’. (19) The costs of or incidental to proceedings for the making of a statutory will should be determined in accordance with the court’s discretion. The

exercise of such discretion should not be qualified. (20) Statutory wills should be deposited in the Supreme Court registry. Statutory wills should remain in the registry until the death of the person for whom the will was made, or unless requested to be delivered to the testator who has satisfied the court that he or she has acquired or regained testamentary capacity. (21) As regards procedures, Part 76 of the Supreme Court Rules 1970 (NSW) which deals with procedures under the Protected Estates Act 1983 (NSW) should be amended to incorporate the procedures required for the operation of a statutory will-making scheme. The report included a draft bill, framed in accordance with the recommendations made. Most, but not all, of these recommendations of the Commission were reflected in the statutory wills legislation that was subsequently enacted in New South Wales and in the other States and Territories, supplemented in some of the jurisdictions by Rules of Court. Notably, however, items (5) and (6) have not been implemented, and as regards item (10), the core test is not framed consistently in the legislation enacted in the various States and Territories: see 2.10. Some 14 years later, these recommendations led to the enactment of legislative provisions enabling statutory wills in New South Wales, in the Succession Act 2006 (NSW).

South Australia: Wills (Miscellaneous) Amendment Bill 1993 (SA) 1.15 In South Australia, a provision enabling statutory wills was included in the draft Wills (Miscellaneous) Amendment Bill 1993 (SA). That bill led to the enactment of the Wills (Miscellaneous) Amendment Act 1994 (SA), which amended the Wills Act 1936 (SA), but the provision relating to statutory wills was not included. In the second reading of the bill on 23 March 1994, the Attorney-General explained the reasons for the proposal not being progressed: The concept of a court making a will on behalf of someone who may not be able to indicate what his or her wishes are is, I think, a difficult one. Nevertheless, provisions of this kind operate successfully, as I understand, in the United Kingdom. The Chief Justices Law Reform Committee in Victoria and the New South Wales Law Reform Commission have both examined the concept and both consider there is merit in making such provisions available.

When an earlier draft of this Bill was circulated for comment, it contained provisions relating to statutory wills. Some of the persons who responded expressed reservations about the process provided for and, in some instances, the concept itself. Some thought

[page 15] it would be better to leave the matter to be determined by way of inheritance family provision application, but the limitation with this approach was that friends, carers and even charitable institutions which may have cared for a person and other worthy beneficiaries are unable to utilise this legislation. I consider that there is merit in considering the concept of statutory wills, but it is evident to me that there is the need to consider carefully the United Kingdom experience before proceeding to enact legislation of this type in South Australia. … it is a difficult concept. There are issues which might favourably be addressed by this measure, but which might have other disadvantages. … The reason it is not now in this Bill is that I did not believe it was appropriate to hold up a lot of useful amendments in this Bill for the sake of giving further consideration to the concept of a statutory will.40

Victoria: 1994 Report and the draft Wills Act 1994 (Vic) 1.16 A comprehensive review of the law of wills was undertaken by the Victorian Parliamentary Law Reform Committee, leading to the publication in 1994 of its report ‘Reforming the Law of Wills’,41 with a draft Wills Act 1994 (Vic) annexed. Section 6 of the draft Act contained provisions entitled ‘Wills for persons without testamentary capacity’. These prospective legislative developments did not meet with universal approval. One academic commentator remarked, in respect of s 6 of the draft Act, that this legislation would ‘create an interventionist, paternalistic jurisdiction exercisable even though an applicant had no claim on intestacy, no claim under family provision legislation, and no claim as a creditor of the estate’,42 and that: The fact is that the phrase ‘statutory will’ is a euphemism for a radical mode of compulsory property distribution from the estates of persons who were vulnerable to legal process in their lifetimes. If there really does exist a class of persons who should be benefited in this way, then changes should be made to family provision law to accommodate them. Upon the evidence of the [May 1994 Victorian Parliamentary Law Reform Committee] Report such a class does not seem to exist at all. But it is, it is suggested, a mistake to proceed in this direction by means of a statutory lie.43

Queensland: 1994 Issues Paper

1.17 In July 1994, the Queensland Law Reform Commission (‘QLRC’) published an Issues Paper, ‘Uniform Succession Laws for Australian States and Territories: First Issues Paper, The Law of Wills’.44 One of the issues highlighted for consideration was whether the court should be given power to make a will for an adult who lacks testamentary capacity. The QLRC commented as follows: This question raises wide issues. It presupposes that neither the existing will, if any, nor the relevant intestacy rules, nor the relevant family provision legislation, can do justice in certain circumstances … an example may be where a person who lacks testamentary capacity has been abandoned by his or her family and it is right that a will should be

[page 16] made in favour of a person who has no rights upon intestacy or under family provision legislation, most probably a person who has cared gratuitously or beyond the call of duty for the incapacitated person, whether a member of the family or not. To allow courts to make a will for a person who lacks testamentary capacity may be seen as inconsistent with the policy underlying family provision legislation, which is concerned not with the will which a competent testator might make but with making adequate provision for the proper maintenance and support of the persons entitled to make application under the legislation. In Victoria, for instance, the parents of a deceased person are not permitted to apply for family provision. In that State to allow a parent of an incapacitated person to apply to the court to have a will made in his or her favour might be seen as compromising the policy of family provision legislation. It may be justifiable to do this in the case where the person concerned cannot make a will at all because of incapacity. Nevertheless this question does abut upon the possibility of reconsidering the underlying policy of family provision legislation. The proposed Victorian provision (Vic (1994), section 6) provides a generalised precedent.45

It can be seen from this brief commentary that the QLRC adopted, at that time, a relatively narrow view of the potential applications for statutory wills.

National Committee for Uniform Succession Laws: 1997 Report 1.18 Possible legislation in the area of statutory wills was next considered, on a national level, by the National Committee for Uniform Succession Laws, coordinated by the QLRC, as part of a general consideration of the law of wills. The National Committee used as the basis for its deliberations the draft Wills Act 1994 (Vic). In December 1997, the National Committee presented a final report to the Standing Committee of Attorneys-General on the law of wills.46 The Report contained a model Wills Bill for introduction in each

jurisdiction. The model Bill included provisions for court-authorised wills, based on Victoria’s draft legislation. The commentary on wills for persons without testamentary capacity is contained in the second part of Chapter 5 of the Report. The National Committee noted that it had specifically given consideration to the recently enacted Wills Act 1936 (SA) s 7, as well as the Victorian draft legislation. In respect of the two-stage approach, the National Committee followed the Victorian provision in placing emphasis on the required information being provided to the court on the application for leave, rather than the Wills Act 1936 (SA) s 7(7), which applies to the making of the application after the granting of leave. The National Committee explained the difference as follows: It seems that much, if not all, the information required should be available to the court when granting leave to apply; the court would be unlikely to grant leave without most of the information even if, perhaps, at the application stage, rather more information might be called for. The draft Victorian provision envisages … that in a simple case the court may, upon application for leave, allow the application to proceed immediately as an application for authorisation of the making of the statutory will. This is not provided for in South Australia, but would save costs and could make the procedure available to a larger number of applicants. It would not be possible to enable an application for leave to be treated as an application for authorisation unless the information set out in clause 6(6) (section 7(4) in South Australia) was before the court. In any case, in an efficiently

[page 17] prepared application for leave, the applicant should have done most, if not all, of the work required for an application for authorisation.47

The National Committee noted that the difference between the information required for leave and that required for making an application for which leave has been granted is a procedural matter, as is the provision allowing an application for leave to be treated as an application for authorisation. The National Committee considered several ‘subsidiary issues’ in the report: (1) Should it be possible to make an application within a certain period after the death of the incapacitated person? The possibility of giving the court jurisdiction to authorise the making of a statutory will for a brief period

after the death of the person was considered, but discounted. It was noted that it was desirable to have a single legislative regime, namely family provision, governing applications made after the death of the person to adjust how that person’s estate will be distributed. (2) There were several options for defining the precise date on which the court’s jurisdiction should be excluded by reason of the death of the incapacitated person: (a) that the court may make an order for a statutory will only if the person is alive when the order is made; (b) that the court may make an order if the application was heard when the person was alive; (c) that the court may make an order if the application for leave was heard when the person was alive; and (d) that the court may make an order if the application for leave was filed when the person was alive. The National Committee favoured the first of these options, on the basis that it would be inconsistent to permit orders to be made for a statutory will in a deceased estate merely because the application was filed or heard at a time when the person was alive. (3) Should the jurisdiction be available to a minor? The National Committee concluded that there was no reason why the jurisdiction should be denied merely because the person is a minor. It was noted that ‘there is every reason to allow the court to authorise the making of a will for a minor — whether the minor lacks testamentary capacity because of a particular incapacity or merely through immaturity’. (4) Should the authorised will be retained by the Registrar? It was recognised that this was a procedural matter but, in view of the possible controversial nature of the jurisdiction, it was considered desirable that the will should be kept in the registry, to give the court continuing control over the will created under its jurisdiction. A failure to retain the will in the registry should not, however, result in the will’s invalidity. (5) Should a statutory will made in one jurisdiction be accepted for probate in another jurisdiction? The National Committee considered that it should.

(6) Possible orders. It was noted that a person for whom a statutory will was made might regain capacity. In those circumstances, the person might not be aware of the existence of the statutory will. Should the court therefore make an order as to how the person should be informed that such a will had been made? The National Committee said: [page 18] Although the National Committee saw some merit in a provision of this kind, it was conscious that in many cases such a provision might be impractical, as the person given the duty to inform the person for whom the will had been made would be required to monitor the capacity of that person. The National Committee also anticipated difficulties with enforcing such a duty. For these reasons, the National Committee does propose to make a specific recommendation that the court should make such an order, but will leave the question to the court’s general discretion.48

(7) Registrar’s jurisdiction. Consideration was given to whether a Registrar should be able to screen applications before they are heard by the court, and hear applications in relation to small estates, or matters referred to him or her by the Chief Justice or the court. The National Committee was of the view that such matters are procedural and did not therefore need to be included in the draft model provision.

The Enactment of the Australian Legislation 1.19 South Australia was the first State or Territory to enact legislation providing for statutory wills, in 1996. The last to do so was the Australian Capital Territory, in 2010. The features of the legislation are examined in Chapter 2. Extracts from the legislation are reproduced in Chapter 9. The relevant enactments, and commencement dates, were as follows: (1) South Australia: the Wills Act 1936 (SA) s 7, entitled ‘Will of person lacking testamentary capacity pursuant to leave of court’, was introduced by the Wills (Wills for Persons Lacking Testamentary Capacity) Amendment Act 1996 (SA), and commenced on 10 June 1996. The references to ‘leave’ in subsections 7(1) and (7)(b) were amended to ‘permission’, with effect from 4 September 2006.49 (2) Tasmania: in 1995, the Wills Act 1992 (Tas) was amended by the Wills

Legislation Amendment Act 1995 (Tas), introducing ss 27A–27I that conferred (limited) jurisdiction on the Guardianship and Administration Board in respect of the making of statutory wills. Those amendments commenced on 1 September 1997. The Wills Act 2008 (Tas), which commenced on 1 March 2009, continued the limited jurisdiction of the Board, under Part 2, Division 3 (‘Power of the Board to make statutory will for person lacking in testamentary capacity’) and also introduced the (wider) jurisdiction of the Supreme Court, under Part 2, Division 2 (‘Power of Court to authorise making of statutory will, or alteration or revocation of a will for persons lacking testamentary capacity’). Division 4 provides for various matters relevant to statutory wills generally. The distinction between the powers of the Board and the powers of the Supreme Court is considered further at 2.2. (3) Victoria: the Wills Act 1997 (Vic), which commenced on 20 July 1998, included Part 3, Division 2 entitled ‘Court authorised wills for persons who do not have testamentary capacity’. Section 26(b) originally provided: (b) the proposed will or revocation accurately reflects the likely intentions of the person, if he or she had testamentary capacity; and

This subsection was amended by the Wills Amendment Act 2007 (Vic) s 3, with effect from 15 August 2007, to: (b) the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity; and

[page 19] The reason for this amendment is considered at 1.21. Sections 22(2) and 27(1A), which relate to evidence, were inserted by the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (Vic),50 commencing on 1 January 2010. Minor amendments were made to section 29(b) and (d).51 (4) Northern Territory: the Wills Act 2000 (NT) commenced on 1 March 2001. Part 3, Division 2 is entitled ‘Wills for persons without testamentary capacity’.

(5) Queensland: among the changes made to the Succession Act 1981 (Qld) by the Succession Amendment Act 2006 (Qld), commencing on 1 April 2006, was the introduction of Part 2, Division 4, Subdivisions 3 (‘Persons without testamentary capacity’) and 4 (‘Particular wills held by registrar’). (6) Western Australia: a new Part XI of the Wills Act 1970 (WA), entitled ‘Wills of persons who lack testamentary capacity’, was introduced by the Wills Amendment Act 2007 (WA), commencing on 9 February 2008.52 (7) New South Wales: the Succession Act 2006 (NSW) was assented to on 27 October 2006 but did not commence until 1 March 2008. Chapter 2, Part 2.2, Division 2 is entitled ‘Court authorised wills for persons who do not have testamentary capacity’. Some minor amendments were made to Division 2 by the Statute Law (Miscellaneous Provisions) Act (No 2) 2007 (NSW)53 and by the Succession Amendment (Family Provision) Act 2008 (NSW).54 (8) Australian Capital Territory: a new Part 3A (‘Court authorised wills for people without testamentary capacity’) of the Wills Act 1968 (ACT) was introduced by the Justice and Community Safety Legislation Amendment Act 2010 (ACT), commencing on 28 April 2010.

Case Law in Australia 1.20 The published decisions to date in the Australian jurisdictions are considered in Chapter 8. There are two leading authorities that require comment at the outset: Boulton v Sanders55 and Re Fenwick; Application of J R Fenwick & Re Charles.56 The facts of those cases appear at 8.47 and 8.2 respectively.

Boulton v Sanders 1.21 In Boulton v Sanders,57 the Victorian Court of Appeal considered several grounds of appeal, including one that related to the question of whether the trial judge had correctly applied the core test in the Wills Act 1997 (Vic) s 26(b). The principal judgment was delivered by Dodds-Streeton

AJA. Her Honour considered the development of the statutory wills legislation and the existing state of the authorities [page 20] in Victoria concerning the application of the core test in s 26(b), noting that in State Trustees Ltd v Hayden,58 Mandie J had said: In order to meet the requirements of s 26(b) of the Wills Act 1997, the court must be satisfied on the balance of probabilities that the proposed will or revocation accurately reflects the ‘likely’ intentions of the person. The use of the word ‘accurately’ indicates the need for the proposed will to reproduce the person’s intentions with a substantial degree of precision and exactitude. Nevertheless, it is the ‘likely’ intentions of the person which are to be ascertained. Of necessity, the likely intentions must be derived from all such relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person from time to time in the past — but that is not to say, in a given case, that a court may not be able to conclude in the absence of much or any evidence concerning the particular person, that it is more likely than not that the person in the events which have occurred would have, as a normal decent person, reacted in a particular way to those events and formed the relevant intentions as a result. [emphasis added]

In respect of the core test, her Honour said as follows: Under the Victorian legislation, the legislative insistence on an accurate reflection of the likely intentions of the testator precludes the authorisation of a will which no more probably reflects likely intentions than any number of other possible wills, although it may accord with an assumed desire to avoid intestacy. While not excluding flexibility in matters of ‘detail’, s 26(b) requires satisfaction on the balance of probabilities that the proposed will accurately reflects the testator’s likely intentions. The question is not whether the testator would probably have preferred the proposed will to intestacy; nor whether the proposed will is one of a number of possible proposed wills, all of which might be equally likely to reflect the testator’s likely intentions. If the proposed will no more probably reflects ‘likely intentions’ than a number of other possible dispositions, in my view the requirements of s 26(b) will not be satisfied. Section 26(b) does not demand certainty, but probability. However, as Mandie, J recognised, the requirement of accurate reflection demands a substantial degree of precision and exactitude about the ‘likely intentions’.59 [emphasis added]

This decision, which highlighted the difficulty of satisfying the core test framed in terms of ‘likely intentions’, led to a reconsideration of the core test in Victoria. Section 26(b) was subsequently amended by the Wills Amendment Act 2007 (Vic) s 3, with effect from 15 August 2007, to: (b) the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity; and

This amendment was recommended by the Probate Users Committee, chaired by Harper J. In the Second Reading speech, the Attorney-General explained that under the core test on the leave application as it then stood: … it is very difficult for an application to be brought on behalf of a person who has never had testamentary capacity. This is because their likely intentions cannot be established with the required degree of precision and exactitude. … As such, the current provisions of the [Wills Act 1997 (Vic)] are not sufficiently wide to cover all of the cases that they should …60

In State Trustees Limited v Do and Nguyen,61 this effect of this legislative change was explained as follows: [page 21] The significance of the amendment is that the court is no longer required to be satisfied that the proposed will would ‘accurately’ reflect the person’s likely intentions. It is sufficient for the court to be satisfied that it would reflect their ‘likely’ or ‘reasonably … expected’ intentions. In that regard, the nature of the specified information [s 28(a) to (k)] illuminates the scope of the court’s function. A broad-brush approach is required, for otherwise the beneficial purpose of the function might be defeated.62

It should be noted that in South Australia, the core test continues to be framed along similar lines as the original wording of the Victorian s 26(b), by reference to the person’s ‘likely intentions’.

Re Fenwick 1.22 Re Fenwick; Application of J R Fenwick & Re Charles63 was the first decision in New South Wales in relation to the statutory wills legislation. Palmer J provided a detailed analysis of the history of the jurisdiction in both England and Wales and Australia, the purpose and components of the legislation and how the task of determining whether a statutory will is to be authorised should be approached. Some of the key aspects of the judgment are as follows. His Honour noted at the outset the significant problems that had arisen in determining the proposed testator’s testamentary intentions under the English legislation and the Re D(J) ‘substituted judgment’ approach, and how similar issues were posed by the legislation enacted in Australia: … the law in the United Kingdom as to statutory wills had reached a highly unsatisfactory state by the time that Australian jurisdictions began incorporating similar statutory will

provisions into their succession legislation. In cases in which an incapacitated person had never been able to form even the most rudimentary testamentary intention, the English courts were resorting to a legal fiction in purporting to ascertain what testamentary disposition that person subjectively would have intended to make. Even where the incapacitated person had previously expressed some valid testamentary intention, the courts were attributing to him or her a new testamentary intention upon the basis that the person, if temporarily restored to testamentary capacity, would have changed his or her mind. The fiction was employed to disguise, needlessly, that what the courts were really doing in such cases was making decisions, objectively based, in the best interests of the incapacitated person and his or her family. The law in the United Kingdom has recently been rationalised by a major statutory amendment, but in New South Wales and the other Australian States we are left with the provisions copied from, or inspired by, the earlier United Kingdom legislation. In applying the Australian legislation, courts of other States have been using the United Kingdom cases as guides. Problems of the same kind as beset the English courts are likely to arise. The difficulties stem from the fact that the Australian legislation, like the previous United Kingdom legislation, endeavours to accommodate several social policies which can come into conflict in particular cases. First, the testamentary freedom of the individual, being a basic element of the right to property, should not be usurped by the State, or by others with the State’s assistance. Second, testamentary dispositions which have previously been validly made by an incapacitated person may defeat claims or expectations which contemporary society regards as just and reasonable. Third, the wishes of mentally incapacitated persons, if known, should be respected. Fourth, laws of intestacy already provides for what is to happen in the absence of will; why should that law apply differently to persons with testamentary incapacity?64 [emphasis added]

[page 22] In analysing the application of the core test, his Honour noted in particular the highly artificial approach that had been taken in Re C (a patient)65 and G v Official Solicitor66 and concluded: It will be seen that, in its eighty year evolution from s 171(1) of the Law of Property Act 1925, the law in the United Kingdom relating to statutory wills has travelled a full circle. After a shaky start … the objective approach was established … Some fifty years later, In re D (J) reestablished the highly artificial ‘substituted judgment’ approach of the old lunacy cases. By 2005 courts, while paying lip service to the ‘substituted judgment’ approach, were taking the realistic and pragmatic approach that whether a statutory will should be ordered was to be determined having regard to the best interests of the patient, ascertained objectively, and to the wishes of the patient, if known. That approach is now enshrined in legislation. In Australia, however, the statutory will concept was adopted before it had completed its evolutionary cycle in the United Kingdom.67

After considering the law reform proposals that had led to the enactment of the statutory wills legislation in New South Wales, and the components of that legislation, his Honour reviewed the cases that had been decided in

Victoria, following the amendment of the ‘core test’ (see 2.10) in that State in 2007, and said as follows: My somewhat elaborate review of the UK decisions and the Victorian cases will show, I hope, that in interpreting and applying s 22(b) of the New South Wales Act, this Court should not attempt to seek guidance from earlier authority. In interpreting s 22(b) this Court should start ‘with a clean slate’; it must interpret the words of the section in the light of the problems and difficulties which the legislation seeks to remedy, bearing in mind that legislation of this kind should receive a benevolent construction …68

He then considered69 how s 22(b) should be applied, and the meaning to be given to the words ‘reasonably likely’ in that subsection. The approach to be taken would depend on the circumstances of the case, particularly the nature of the incapacity. His Honour identified that cases of incapacity could be conveniently divided into three categories: (1) ‘lost capacity’, where a person has made a will but then loses testamentary capacity, or loses testamentary capacity before making a will; (2) ‘nil capacity’, where a person has never had testamentary capacity, usually because of mental infirmity from an early age; and (3) ‘pre-empted capacity’, where a person, though still a minor and therefore lacking testamentary capacity, is old enough to form relationships and to express reasonable wishes about property before losing testamentary capacity.70 In a ‘lost capacity’ case, there are, his Honour said, three scenarios to consider, each of which involves the court ascertaining the actual, or reasonably likely, subjective intention of the incapacitated person: (1) Where the incapacitated person is an adult, has formed family and other personal relationships, has made a valid will, and is not said to have expressed some testamentary intentions sufficient to warrant an application for a statutory codicil or new will, the court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do: ‘… The task is one of fact finding: has the incapacitated person actually stated or [page 23]

otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?’71

If the court is satisfied on that point, the next question is whether that intention would have been carried into testamentary effect by the person if he or she had testamentary capacity: … This question may pose little difficulty if the person’s testamentary capacity is borderline, i.e., the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty — a not infrequent symptom of testamentary incapacity.72

(2) The second scenario is where the incapacitated person is an adult with established family or other personal relationships and has made a valid will but, since losing testamentary capacity, has not expressed, or is incapable of expressing, any testamentary intention to deal with changed circumstances such as the birth of a child or the death of a beneficiary under the existing will. In respect of this scenario, his Honour said: In such a case the court may be satisfied as to what the incapacitated person is ‘reasonably likely’ to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person’s testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances. For example, the will, coupled with family history, may show that it would be highly unlikely that the incapacitated person would have intended failure of a residuary bequest to create an intestacy because intestacy would benefit relatives with whom the person was not on good terms. In such a case, the court would be satisfied that the incapacitated person would likely have made another residuary bequest; the question then is: does the proposed codicil confer the bequest on a person or charity whom or which the incapacitated person is reasonably likely to have chosen?73

(3) The third scenario is where the incapacitated person has never made a will. In such cases, the court should not start with a presumed intention against intestacy, but rather: ‘The court must be satisfied by the evidence that it is ‘reasonably likely’ — in the sense of ‘a fairly good chance’ — that the person would have made a will at some time or other, had not testamentary incapacity supervened.’74 His Honour stressed that in a ‘lost capacity’ case where no will has ever been made, there will generally be some evidence, even though it may be slight, which will satisfy the court that there is a fairly good chance that the person either intended at some stage to make a will or else intended to die intestate.

In a ‘nil capacity’ case, a search for any degree of subjective intention is impossible, where the person has been born with mental infirmity or has lost capacity well before ever being able to develop any notion of testamentary disposition. The court should not, his Honour said, start with the (meaningless) question: would this particular person have chosen to make a will if they had attained testamentary capacity? The starting position should rather be that if there are any assets of significant worth [page 24] in the person’s estate, it should authorise some kind of statutory will unless satisfied that the intestacy rules would provide adequately for all reasonable claims on the estate. In determining whether it is reasonably likely that the person would have made the will proposed, it is unnecessary and undesirable to resort to the Re C75 approach of envisaging a fictitious person, somehow resembling the actual person: The fiction is undesirable because legal fictions usually distort, rather than clarify, what the court is actually doing. … In my opinion, the law of statutory wills in Australia should be developed in a way which justifies a result by a transparent process of reasoning founded upon reality, not upon contra-factual assumptions. More importantly, however, the fiction is unnecessary because the words of s 22(b) can be applied sensibly and pragmatically without it. Whether a proposed will is ‘reasonably likely’ to have been made by a person who never had, and never will have, the smallest capacity to form testamentary intentions may be answered only in the sense, discussed above: ‘is there a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor, would make such a testamentary provision?’ In my opinion, in a nil capacity case, as distinct from a lost capacity case, this is the question which the words ‘reasonably likely’ in s 22(b) require the court to answer. The considerations involved in the question are entirely objective.76 [emphasis added]

In a ‘pre-empted capacity’ case, his Honour considered the ‘archetypical’ example of a sixteen or seventeen year old who suffers severe and permanent brain injury in a motor vehicle accident and is subsequently awarded a large sum in damages. There are two scenarios, both of which involve both subjective and objective considerations: (1) In some (rare) cases, the teenager may have expressed some testamentary intentions. Any such intentions attributed to the teenager by a person seeking to benefit from a statutory will must be scrutinised with care. The next question is then whether it is reasonably likely that

the teenager would have expressed that intention if he or she had attained testamentary capacity. In other words, the question posed by s 22(b) is: is there a fairly good chance that the proposed statutory will reflects the testamentary intention that this particular teenager, acting reasonably, would express if they were are least 18 years of age? His Honour noted that this question contains both subjective and objective elements. (2) The more likely scenario would involve a teenager who has never expressed any testamentary intentions. The first question that needs to be addressed in such a case is whether he or she would have made a will at all, rather than die intestate. In this regard, the situation is different from a ‘lost capacity’ case because the failure of the person to make a will needs no explanation, given that applications by minors to make wills are relatively rare. Therefore, as in a ‘nil capacity’ case, the court should start from the position that it is reasonably likely that a teenager with assets of any significant worth would have made a will at some time after gaining testamentary capacity, rather than choosing to die intestate. His Honour determined that the following approach should be taken: The second, and most substantial question is: is it reasonably likely that the teenager would have made the will which is now proposed? This question involves both subjective and objective considerations. Because at least something — possibly a great deal — will be known of the teenager’s relationships and character before he or she lost capacity, the court will be able to form some view about possible subjective intentions. But because these intentions are no more than future possibilities, the court cannot take the search for subjective intention too far; it can

[page 25] be satisfied of ‘reasonable likelihood’ of the proposed statutory will only by taking into account objective considerations also.77

A further important aspect of the legislation that his Honour considered78 was the test in s 22(c), that is whether ‘it is or may be appropriate for the order to be made’. He found that, on the leave application, this requirement is met if the court is satisfied that, as the evidence stands, a final order will be appropriate, or that it may be appropriate, having regard to the possibility that further evidence may be adduced at the final order stage which will

positively satisfy the court that the final order is then appropriate. His Honour noted that s 22(c) provides no guidance as to what circumstances are to be taken into account in deciding whether a final order is ‘appropriate’, although s 19(2) lists some such circumstances. As regards s 19(2)(i), he examined the inter-relationship between statutory will applications and family provision, as follows: It would produce needless and wasteful litigation to authorise a statutory will which was bound to provoke a successful claim under the family provision legislation. In such a case, to grant leave under s 19(1) or to make a final order under s 18 would not be appropriate, within the meaning of s 22(c). The policy of the law is to quell disputes, not to create them. There will inevitably be some applications for a statutory will in which there is a contest between the applicant and others seeking a provision in their favour on the basis that they would have a successful family provision claim. They would say that the statutory will should reflect a provision which the court itself will ultimately make under Ch 3 Succession Act. A complication in hearing such a putative family provision claim at the time of hearing the statutory will application is that in a family provision claim the court’s decision is founded upon circumstances as they exist after the death of the testator and as at the time of the trial. In a contested statutory will case, the incapacitated person may live for many years to come, during which time the circumstances of those now postulating a successful family provision claim may change in a way which either defeats, or increases, the claim. There is no express restriction in the Succession Act on the frequency of applications for a statutory will made by the same person. However, it would be disastrous to encourage the attitude that a statutory will can be made giving expression to putative family provision claims and that applications to vary the statutory will can be made as and when changes in the circumstances of the applicant occur throughout the lifetime of the incapacitated person. Bearing in mind the hostility and ruinous expense which so often accompany family provision claims, the court should endeavour to limit their occurrence to once only in the administration of the estate of anyone, alive or dead. Accordingly, if an application for a statutory will is made in respect of an incapacitated person who clearly has not much time to live, the court may consider it desirable to hear a contested putative family provision claim in the course of the leave application in order to decide whether the terms of the statutory will are appropriate, within the meaning of s 22(c). The court may take the view that the circumstances of the putative claimant, and the other relevant circumstances, are not likely to change materially between the making of the statutory will and the time that a family provision claim would be heard in the normal course of events. On the other hand, however, when the incapacitated person is likely to live for some time, as in many nil capacity and pre-empted capacity cases, the court should be very slow to hear a contested family provision claim in the course of the statutory will application. The putative family provision claimant should normally be left to make his or her application for a statutory will provision when and if the relevant circumstances warranting such an application have reached a state of immutability during the life of

[page 26] the incapacitated person. If that does not happen, he or she should be left to pursue a family

provision claim as such under Ch 3 Succession Act.79 [emphasis added]

The judgment in Re Fenwick continues to be regarded as the leading judgment on statutory wills in Australia, and merits a close review.

The Extent of Statutory Will Applications to Date in Australia 1.23 Only limited statistics are available as to the number of statutory will applications that have been made in the various Australian jurisdictions and how many of those have been successful. The general position appears to be that the statutory wills jurisdiction is in a state of evolution and, compared to the more mature jurisdiction in England and Wales, is under-used. An insight into the volume of applications in England and Wales is provided by Re D(J), where Megarry V-C commented on the number of applications in the preceding 13-month period, and the delegated arrangements in place in that jurisdiction that facilitated the efficient disposal of such applications: … I have been told that recently there has been a considerable increase in the number of applications for wills to be made under the Act. I understand that since last September there have been some 90 applications, and that of these very few have been or are likely to be referred to the judge. The great majority are dealt with by the master or deputy master under the practice direction. Some, like Re Davey (decd) [1980] 3 All ER 342; [1981] 1 WLR 164 (a striking case), are matters of urgency; there, the order and the will were made less than a week before the patient died. Most, I think, are cases where there is general agreement as to the terms of the will that is to be made, and it is naturally and very properly desired to avoid the expense of referring the case to the judge. …80 [emphasis added]

The statutory will applications that have been determined so far in Australia indicate that patterns are emerging. While the jurisdiction of the courts is framed in relatively wide terms, the types of cases that have been heard appear to fall into various identifiable categories. These categories are considered further in Chapter 3, although it should be noted that the legislation does not distinguish between cases in any such manner.

Australian Capital Territory 1.24 There is only one published decision in the Australian Capital Territory: Re DH; Application by JE and SM.81

New South Wales

1.25 New South Wales does not collect statistics regarding the number of statutory will applications.82 While 12 decided cases have led to published decisions, this is unlikely to be an accurate reflection of the number of applications made, noting the comment made by Palmer J in Re Fenwick83 that in the future reasons for orders [page 27] made in straightforward, uncontested applications dealt with in chambers would not be published.84 Noteworthy cases in New South Wales include, in addition to the leading case of Re Fenwick, the cases of Re Will of Jane85 in which Hallen AsJ conducted a detailed analysis of the core test and other threshold requirements, Re Will of Jane (No 2)86 concerning the costs principles to be applied where an application is unsuccessful and Hausfeld v Hausfeld87 which involved an unsuccessful application to protect a future inheritance from the potential personal bankruptcy of an existing beneficiary.

Northern Territory 1.26 There have not been any statutory will applications to date in the Northern Territory.88

Queensland 1.27 The statutory wills jurisdiction in Queensland has been relatively active. The number of applications lodged each (financial) year since the introduction of the relevant provisions into the Succession Act 1981 (Qld) on 1 April 2006 has been as follows:89

A number of decisions have clarified the application of the core test. In Re Keane; Mace v Malone,90 Daubney J applied the Re D(J) principles, but in McKay v McKay91 and Re Matsis; Charalambous v Charalambous,92 Ann Lyons J took a different approach, focusing instead on the words of the section. The same approach was followed by Atkinson J in Sadler v

Eggmolesse.93 This indicates a pragmatic approach to the core test, moving away from the highly artificial ‘substituted judgment’ approach seen in Re D(J). These decisions should be of persuasive authority in the other Australian jurisdictions, and assist considerably in dealing with the difficulties inherent in the Re D(J) approach. Re Matsis; Charalambous v Charalambous94 marks a significant development, in that a statutory codicil was authorised specifically for estate planning and asset protection purposes. This is the first published decision involving a statutory will for such purposes, although a case was heard in South Australia, shortly after the introduction of the statutory wills regime in that State, that involved the authorisation of a statutory will involving discretionary trusts. The details of that case are not published. Re Matsis is considered further at 3.21. [page 28]

South Australia 1.28 There have been nine published cases to date. The detailed judgments delivered by Gray J in Jeavons v Chapman (No 2),95 Re Rak,96 Re Grace Geraldine Brown97 and Re Martina Pieternella de Jager98 have, in particular, assisted in advancing the development of the jurisprudence on statutory wills in Australia, as has the decision of Debelle J in Hoffman v Waters,99 which contains a detailed analysis of how the court should ascertain the proposed testator’s ‘likely intentions’ in circumstances in which he or she has never had testamentary capacity.

Tasmania 1.29 Tasmania is the only Australian jurisdiction that has aspects of the statutory wills jurisdiction shared between its Supreme Court and Guardianship and Administration Board.100 A steady stream of cases has been heard by the Board since the jurisdiction was conferred in 1997, although since the commencement of the jurisdiction of the Supreme Court in March 2009, the number of applications heard by the Board has reduced:101

Victoria 1.30 In Victoria, there have been approximately 33 applications to date, most of which have been successful.102 All applications are dealt with in open court by the Probate List Judge. The case of De Gois v Korp103 was perhaps the first statutory will case to attract broad public interest in Australia, because of the facts involved. The decisions of Balmford J and the Victorian Court of Appeal in Boulton v Sanders104 are significant, in that they led to the amendment of the core test in Victoria; see 1.21. Victoria also stands out among the other jurisdictions due to the relatively high number of opposed and unsuccessful applications, including Re Fletcher; Ex parte [page 29] Papaleo;105 Boulton v Sanders106 and Saunders v Pedemont,107 and also for the various decisions involving costs orders made against unsuccessful parties.

Western Australia 1.31 There has been only one statutory will application in Western Australia to date, which was made in 2011: In the Will of Doris May Frances Davies.108 1. 2. 3. 4. 5. 6. 7.

Re F [1990] 2 AC 1 at 57, Lord Brandon. See 9.9. See 9.9. Administration of Justice Act 1967 (UK) s 17. [1966] Ch 135; [1965] 3 All ER 865. At 140–141. The section that is referenced at the end of this extract is s 102(1)(c). At 144.

8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42.

43. 44. 45. 46.

At 144. [1982] Ch 237; [1982] 2 All ER 37. [1982] Ch 237 at 243–244. [1992] 1 FLR 51; [1991] 3 All ER 866. [1991] 3 All ER 866 at 870. Ibid at 870. Ibid at 870. Ibid at 870. [2006] WTLR 1201; [2006] EWCA Civ 816. At [20]–[22]. See 9.9. See 9.9. See 2.10. [2010] Ch 33; [2009] 2 All ER 1198. At [38]. At [45]. At [44]. [2012] Ch 57; [2011] 1 All ER 859. At [16]. [2012] WTLR 1211. At [48]. At [51]. Chief Justice’s Law Reform Committee (Vic), ‘Wills for Mentally Disordered Persons’ (1985) at [23] and [24]. New South Wales Law Reform Commission, ‘Wills for Persons Lacking Will-Making Capacity’, Discussion Paper 20 (1989). At [1.1]. At [1.2]. At [2.2]. New South Wales Law Reform Commission, ‘Wills for Persons Lacking Will-Making Capacity’, Report 68 (1992). This limited jurisdiction continues to apply. At [2.1]–[2.38]. At [2.10]–[2.11]. At [2.20]. South Australia Hansard, Legislative Council, 23 March 1994, p 272. Victorian Parliamentary Law Reform Committee, ‘Reforming the Law of Wills: Report Upon An Inquiry Into The 1991 Draft Wills Bill’(May 1994). N Crago, ‘Reform of the Law of Wills’(1995) 23 UWALR 255 at 258. For further commentary concerning the role of statutory wills as part of Australian succession law, see R Croucher, ‘Statutory Wills and Testamentary Freedom — Imagining the Testator’s Intention in AngloAustralian Law’(2007) 7 OUCLJ 241 and R Croucher, ‘An Interventionalist, Paternalistic Jurisdiction? The Place of Statutory Wills in Australian Succession Law’ (2009) 32(3) UNSW Law Journal 674. At 260. Queensland Law Reform Commission, ‘Uniform Succession Laws for Australian States and Territories: First Issues Paper, The Law of Wills’, Miscellaneous Paper 10 (July 1994). At 2.2. National Committee for Uniform Succession Laws, ‘Consolidated Report to the Standing Committee of Attorneys-General on the Law of Wills’, Queensland Law Reform Commission

47. 48. 49. 50. 51. 52. 53. 54. 55.

56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86.

Miscellaneous Paper 29 (December 1997). At p 49. Chapter 5, section 2(e)(vi). Statutes Amendment (New Rules of Civil Procedure) Act 2006 (SA) s 257. Section 54 and Schedule Pt 1, items 66.1 and 66.2. Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (Vic) s 311 and Schedule 1 item 108, commencing 1 July 1998; Legal Profession (Consequential Amendments) Act 2005 (Vic) s 18 and Schedule 1 item 119, commencing 12 December 2005. A minor amendment was made to the Wills Act 1970 (WA) s 41(1)(h) by the Inheritance (Family Provision and Dependants Provision) Amendment Act 2011 (WA) s 17. Section 3, and item 1.23[6] of Schedule 1, which amended the Succession Act 2006 (NSW) s 21. Section 3, and item [7] of Schedule 1, which amended the Succession Act 2006 (NSW) s 19(2)(i). (2004) 9 VR 495; [2004] VSCA 112; see 8.47. Boulton v Sanders is one of only two Court of Appeal decisions in Australia on statutory wills. The other, Hayden v State Trustees Ltd [2002] VSCA 11; 8.45 involved consideration only of a single narrow ground of appeal: whether the judge at first instance had denied the defendant to the statutory will proceeding natural justice by not providing him the opportunity to place further evidence before the court. (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. (2004) 9 VR 495; [2004] VSCA 112; see 8.47. (2002) 4 VR 299; [2002] VSC 98; see 8.45. At [110] to [112]. Victorian Hansard, Assembly, 23 May 2007, p 1600. [2011] VSC 45; see 8.50. At [11]. (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. At [7]–[9]. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. [2006] WTLR 1201; [2006] EWCA Civ 816; see 1.7. At [108]–[109]. At [148]. At [150]–[188]. At [23]–[28]. At [155]. At [157]. At [161]–[162]. At [166]. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. At [175]–[176]. At [185]. At [189]–[199]. At [194]–[199]. [1982] Ch 237 at 253. [2011] ACTSC 69; see 8.1. Information provided by Supreme Court of New South Wales, citing Prothonotary of the Supreme Court, 2 August 2013. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. At [265]. [2011] NSWSC 624; see 8.9. [2011] NSWSC 883; see 8.9.

87. [2012] NSWSC 989; see 8.10. 88. Information provided by Registrar, Supreme Court of the Northern Territory, 12 August 2013. 89. Data provided by Courts Performance and Reporting Unit, Department of Justice and AttorneyGeneral, Queensland, as at 18 July 2013. 90. [2012] 1 Qd R 319; [2011] QSC 49; see 8.22. 91. (2011) 4 ASTLR 429; [2011] QSC 230; see 8.24. 92. [2012] QSC 349; see 8.26. 93. [2013] QSC 40; see 8.27. 94. [2012] QSC 349; see 8.26. 95. [2009] SASC 3; see 8.34. 96. [2009] SASC 288; see 8.35. 97. [2009] SASC 345; (2010) 106 SASR 516; [2010] SASC 90; see 8.37. 98. (2012) 7 ASTLR 584; [2012] SASC 236; see 8.38. 99. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. 100. See 2.2. 101. Data provided by Guardianship and Administration Board, 29 August 2013. 102. Information provided by Registrar of Probates, Supreme Court of Victoria, 30 July 2013. 103. [2005] VSC 326; see 8.48. 104. [2003] VSC 405; [2003] VSC 409; (2004) 9 VR 495; [2004] VSCA 112; see 8.47. 105. [2001] VSC 109; see 8.44. 106. [2003] VSC 405; (2004) 9 VR 495; [2004] VSCA 112; see 8.47. 107. [2012] VSC 574; [2012] VSC 601; see 8.51. 108. Unreported, Supreme Court of Western Australia, CIV 3332 of 2011; see 8.52.

[page 30]

CHAPTER 2 The Statutory Framework Scope of Jurisdiction Jurisdiction of the Guardianship and Administration Board in Tasmania

2.1 2.2

General Statutory Scheme

2.3

Key Features

2.4

Standing to Apply

2.5

Statutory Wills for Minors Lacking Testamentary Capacity

2.6

The Two-Stage Approach

2.7

Threshold Requirements

2.8

Lack of testamentary capacity The ‘core test’ Appropriate for an order to be made Appropriate applicant Representation of persons with legitimate interest Information to be Provided by the Applicant

2.9 2.10 2.11 2.12 2.13 2.14

Procedural Requirements Concerning the Making of the

2.15

Application Hearing of the Leave Application

2.16

Hearing of the Substantive Application

2.17

Orders That Can be Made on the Substantive Application

2.18

Evidence

2.19

Revision of Draft Will or Codicil by the Court

2.20

Separate Representation of the Proposed Testator

2.21

Execution of the Will, Codicil or Instrument of Revocation Retention of the Will, Codicil or Instrument of Revocation

2.22 2.23

Privacy

2.24

Costs

2.25

Effect and Recognition of Statutory Wills

2.26

Testator Who Regains Capacity

2.27

Possible Statutory Reform: Victoria

2.28

[page 31]

Scope of Jurisdiction

2.1 The statutory wills jurisdiction is conferred on the Supreme Court of each State and Territory. The court’s jurisdiction extends to the making, alteration or revocation of a will for a person who lacks testamentary capacity. In Victoria, however, it is limited to the making or revocation of a will; there is no jurisdiction to alter a will.1

Jurisdiction of the Guardianship and Administration Board in Tasmania 2.2 In Tasmania, there is a limited parallel jurisdiction, vested in the Guardianship and Administration Board. The relevant provisions conferring jurisdiction on the Board were originally introduced with effect from 1 September 1997, by way of an amendment to the Wills Act 1992 (Tas).2 The Board’s jurisdiction is limited to authorising the making of wills on behalf of persons who lack testamentary capacity and have never made a will. The relevant provisions are now located in Division 3 of Part 3 of the Wills Act 2008 (Tas)3 which commenced on 1 March 2009. From that same date, the Supreme Court’s jurisdiction commenced in respect of authorising the making, alteration or revocation of wills.4 It is important to note that the Board is not able to authorise the alteration or revocation of a will. Section 30(1) of the Act confers only the power to ‘make orders authorising the making of a will’ and s 30(4) states: (4) The Board may not make an order under subsection (1) unless it is satisfied, after making such enquiries as it considers reasonable, that the person has not made a will or any purported will.

Section 31 further provides: 31 Validity of statutory wills made by Board A statutory will made by the Board is invalid if there exists a prior will, which is not a statutory will made by the Board, of the person for whom it is made.

There are two published decisions of the Board: CMPA (Statutory Will)5 and EKI (Statutory Will).6 However, it is clear from the statistics referred to at 1.29 that, prior to the statutory wills jurisdiction being conferred on the Supreme Court with effect from 2009, there had been approximately 35 applications to the Board, of which 19 were successful. EKI (Statutory Will) is an important decision because it demonstrates the point that if there is an

existing will, or an existing document that may be a will, then the Board does not have jurisdiction. The Tasmanian approach, involving a parallel (but limited) jurisdiction of the Board to that of the Supreme Court, is beneficial, notwithstanding that the statistics indicate that applications to the Board seem to be less common in recent times. The jurisdiction conferred on the Board should enable many statutory will applications to be dealt with by a statutory body that has the necessary investigative capability to examine the family background of the proposed testator and other relevant circumstances. [page 32] The Board is also able to ensure that a statutory will takes into account existing and proposed guardianship and administration arrangements for the proposed testator. The statutory requirements that apply in respect of applications made to the Board are not considered in any further detail in the following commentary; reference should be made to Division 3 of Part 3 of the Wills Act 2008 (Tas).7

General Statutory Scheme 2.3 The general scheme of the statutory framework in Australia is as follows: (1) The court has jurisdiction to: (a) make or alter a will (except in Victoria, where there is no statutory power conferred for the alteration of a will); and such will or alteration may deal with the whole or part of the property of the person (although in Queensland, South Australia and Victoria it is not expressly stated that the power extends to dealing with part of the property of the person, but this is implicit);8 (b) alter part of a will (except in Victoria, where there is no statutory power conferred for the alteration of a will; and in Queensland and South Australia is it not expressly stated that the power extends to

(2)

(3) (4)

(5) (6)

altering part of a will, but this is implicit);9 and (c) revoke a will or part of a will (except in South Australia and Victoria, where it is not clear that the power to revoke a will extends to revocation of part of a will).10 In all jurisdictions except Western Australia, there is two-stage approach. An application is first made for leave. If that is successful, the substantive application may then be heard. Certain specified information is required to be placed before the court in support of the application for leave (or the substantive application). On the leave application, the court must be satisfied (except in South Australia)11 that several statutory threshold requirements are met, before granting leave. The rules of evidence are relaxed, to some extent. If an order is made, certain steps are required to be taken for the execution of the will and for its retention by the court. Provision is made for separate representation of the proposed testator in appropriate cases.

Key Features 2.4 The key features of the legislative schemes in the Australian jurisdictions can be briefly summarised as follows: [page 33]

[page 34]

Standing to Apply 2.5 The general legislative approach to standing to make an application for an order is that any person has standing, provided that leave is first obtained (except in Western Australia, where there is no separate leave requirement). There are no express restrictions on standing. The legislation provides that the relevant order may be made by the court: ACT: ‘on application’ (and ‘a person may apply for an order under section 16A only with the Supreme Court’s leave’)12 NSW: ‘on application by any person’ (and ‘a person must obtain the leave of the Court to make an application to the Court for an order under section 18’)13 NT: ‘on application’ (and ‘a person must obtain the leave of the Court to make an application to the Court for an order under this Division’)14 Qld: ‘on application’ (and ‘a person may apply for an order under section 21 only with the court’s leave’)15 SA: ‘on application by any person made with the permission of the Court’16 Tas: ‘on application by any person’ (and ‘the leave of the Court must first be obtained before an application for an order under this Division is made’)17 Vic: ‘any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application’18 WA: ‘on application made by any person’.19

Statutory Wills for Minors Lacking Testamentary Capacity 2.6 In all of the Australian jurisdictions except Western Australia, the court has jurisdiction to make, alter20 or revoke a statutory will for a minor who lacks testamentary capacity, pursuant to the same statutory provisions that govern such applications in respect of an adult:

ACT: ‘The Supreme Court may make an order under this section for a child who does not have testamentary capacity.’21 [page 35] NSW: ‘The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity.’22 NT: ‘The Court may make an order under this Division in respect of a minor.’23 Qld: ‘In this section … person without testamentary capacity includes a minor.’24 SA: ‘An order may be made under this section in relation to a minor.’25 Tas: ‘The Court may make an order under this Division in respect of a minor who lacks testamentary capacity by reason of disability or injury.’26 Vic: ‘The Court may make an order under this section on behalf of a person who is a minor and who does not have testamentary capacity …’27 WA: ‘The Court is not to make an order under subsection (1) unless, at the time when the order is made, the person concerned … has reached the age of 18 years.’28 The court’s jurisdiction in such cases is distinct from the statutory jurisdiction that enables the court (except in Western Australia) to authorise the making, alteration29 or revocation of a will on behalf of a person who has not yet attained the age of majority.30

The Two-Stage Approach 2.7 In all of the Australian jurisdictions except Western Australia, a two-stage approach applies. At the first stage, the leave of the court must be obtained to make the substantive application.31 If leave is obtained, the second stage is the determination of the substantive application.

The purpose of the two-stage approach was noted in Bryant v Blake32 as being ‘to weed out what are plainly unmeritorious applications at an early stage’.33 However, the utility of the two-stage approach has been questioned. In Hoffman v Waters,34 concerns were expressed that the leave application adds an unnecessary cost burden. In Sadler v Eggmolesse,35 it was noted that where all of the evidence that should be put before the court is available, the appropriate course, to save costs, is for the leave application to be made at the same time as the substantive application. If not all of the evidence is available, it may be appropriate for the leave application to be made separately. In practice, where all of the relevant information is before the court, the leave application and the substantive application are effectively considered at the same time. When this occurs, the reasons given and orders made should reflect the fact that [page 36] leave is formally given (in accordance with the statutory requirement) as, for example, in Re Kann.36 In Western Australia, there is no separate first stage. The court does, however, have power to give directions in statutory will proceedings. The Wills Act 1970 (WA) s 43(1)(a) provides that in proceedings under s 40, the court may: (a) give directions, including directions about the attendance of any person as a witness and, if it thinks fit, the attendance of the person concerned;

Threshold Requirements 2.8 On the leave application, the court must be satisfied that certain threshold requirements are met. For example, in New South Wales the Succession Act 2006 (NSW) s 22 provides: 22 Court must be satisfied about certain matters The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:

there is reason to believe that the person in relation to whom the order is sought is, or (a) is reasonably likely to be, incapable of making a will, and (b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and (c) it is or may be appropriate for the order to be made, and (d) the applicant for leave is an appropriate person to make the application, and (e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

These five threshold requirements are essentially replicated in the statutory provisions of the other jurisdictions (except for South Australia), although there are subtle differences in the wording. Since these requirements define which applications are able to proceed, the differences need to be understood. These requirements, as they are expressed in each jurisdiction, are therefore outlined at 2.9–2.13. Reference should also be made to Re Will of Jane,37 in which the nature of these requirements was considered, as well as to the analysis at 4.7–4.12. In Western Australia where there is no separate leave application, the five requirements apply on the substantive application. In South Australia, while there is a two-stage process, the legislation provides that the threshold requirements, which differ in some respects from those that apply in the other States and Territories,38 must be satisfied on the substantive application.39 In Re Estate of Crawley,40 leave was granted even though it appears that not all of the pre-requisites of the Succession Act 2006 (NSW) s 22 were met. Palmer J was not satisfied on the leave application that the ‘core test’ under s 22(b) was satisfied. The judgment indicates that by the time of the hearing of the substantive application, further affidavit evidence had been filed which resolved this issue. Ordinarily, [page 37] the threshold requirements are considered and a determination made as to whether leave is given or refused.

Lack of testamentary capacity

2.9 The court must be satisfied that the proposed testator lacks testamentary capacity. The precise requirement is, nevertheless, not uniform: ACT and NSW: ‘there is reason to believe that the person … is, or is reasonably likely to be, incapable of making a will’41 NT: ‘there is reason to believe that the proposed testator is or may be incapable of making a will’42 Qld: ‘there are reasonable grounds for believing that the person does not have testamentary capacity’43 SA: ‘the person lacks testamentary capacity’44 Tas: ‘there is reason to believe that the proposed testator is or may be incapable of making a will’45 Vic: ‘the person … does not have testamentary capacity’46 WA: ‘the person concerned is incapable of making a valid will or of altering or revoking the person’s will, as the case may be’47 In Re Will of Jane,48 Hallen AsJ noted that, in New South Wales, there is a difference between the threshold requirement relating to the proposed testator’s capacity that applies on the leave application, and that applying on the substantive application: It can be seen that under s 18(1), the court can make a final order only in respect of a person ‘who lacks testamentary capacity’. However, on the application for leave under s 19, the court must be satisfied that ‘there is reason to believe that [the incapacitated person] is, or is reasonably likely to be, incapable of making a will’: s 22(a). Thus, in the leave application, it is sufficient to demonstrate a reasonable likelihood of testamentary incapacity, but in order to obtain a final order, a jurisdictional fact must be proved, i.e. that the proposed testator actually lacks testamentary capacity: Re Fenwick at [121].49

This difference also exists in the legislation of all of the other Australian jurisdictions, except South Australia, Victoria and Western Australia. In South Australia, the following confirmation is provided in a footnote to the Wills Act 1936 (SA) s 7(12): (12) In this section — testamentary capacity means the capacity to make a will.1 Note — 1 The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.

[page 38]

The ‘core test’ 2.10 The court must be satisfied that the will, alteration or revocation that is proposed is one that the proposed testator, if he or she had testamentary capacity, would likely have made. This requirement is central to the court’s consideration of whether leave should be granted (or, in Western Australia, the substantive application should be granted). It can therefore appropriately be regarded as the ‘core test’ (and has also been referred to by some commentators as the ‘guiding principle’). It is formulated as follows (with emphasis added): ACT and NSW: ‘the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity’50 NT: ‘the proposed will or alteration or revocation of a will is or might be one that would have been made by the proposed testator if he or she had testamentary capacity’51 Qld: ‘the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity’52 SA: ‘the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity’53 Tas: ‘the proposed will, alteration or revocation is or is reasonably likely to be one that would have been made by the proposed testator if he or she had testamentary capacity’54 Vic: ‘the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity’55 WA: ‘the suggested will, alteration or revocation, or that will, alteration or revocation as revised under section 43(1)(b),

is one which could be made by the person concerned if the person were not lacking testamentary capacity’56 It can be seen that the core test is not uniform. The formulation of the test that applies in the Northern Territory, Queensland and Western Australia should be somewhat easier to satisfy than those formulations that apply in the Australian Capital Territory, New South Wales and Tasmania. The South Australian and Victorian wording sets the bar somewhat higher. The way in which the core test has been applied in the various jurisdictions is considered further at 4.9.

Appropriate for an order to be made 2.11 The court must be satisfied that it is appropriate for an order to be made authorising the statutory will, codicil or revocation: ACT and NSW: ‘it is or may be appropriate for the order to be made’57 [page 39] NT and Tas:

Qld: SA: Vic:

WA:

‘it is or may be appropriate for an order authorising the making, alteration or revocation of a will to be made for the proposed testator’58 ‘it is or may be appropriate for an order to be made under section 21 in relation to the person’59 ‘it is reasonable in all the circumstances that the order should be made’60 ‘it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will or the revocation of the will for the person’61 (no corresponding requirement)

This requirement underscores the discretionary nature of the court’s jurisdiction in respect of statutory wills.

Appropriate applicant

2.12 In some of the Australian jurisdictions, the court must be satisfied that the applicant is an ‘appropriate person’ to make the application: ACT, NSW and Qld: ‘the applicant for leave is an appropriate person to make the application’62 NT and WA: ‘the applicant is an appropriate person to make the application’63 SA: (no corresponding express requirement) Tas: ‘the applicant is an appropriate person to make an application’64 Vic: (no corresponding express requirement) This can be viewed as part of the test for standing; see 2.5.

Representation of persons with legitimate interest 2.13 The court (except in Victoria) must be satisfied that adequate steps have been taken to allow representation of persons who have a legitimate interest in the application: ACT: ‘adequate steps have been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from the estate of the person for whom the order is sought’65 NSW: ‘adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought’66 NT: ‘adequate steps have been taken to allow representation of all persons with a legitimate interest in the making of the application, including persons who have reason to expect a gift or benefit from the estate of the proposed testator’67 [page 40]

Qld: ‘adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought’68 SA: (no corresponding requirement, but this aspect is dealt with in the procedural rules69) Tas: ‘adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a disposition or benefit from the estate of the proposed testator’70 Vic: (no corresponding express requirement) WA: ‘adequate steps have been taken to allow all persons with a legitimate interest in the application, including persons who have reason to expect any benefit from the estate of the person concerned, to be represented in the proceedings’71

Information to be Provided by the Applicant 2.14 Certain information must be placed before the court by the applicant on the application for leave. For example, the Succession Act 2006 (NSW) s 19 provides: 19 Information required in support of application for leave (1) A person must obtain the leave of the Court to make an application to the Court for an order under section 18. (2) In applying for leave, the person must (unless the Court otherwise directs) give the Court the following information: (a) a written statement of the general nature of the application and the reasons for making it, (b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought, (c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought, (d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court’s approval, (e) any evidence available to the applicant of the person’s wishes, (f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity, (g) any evidence available to the applicant of the terms of any will previously made by the person,

(h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person, (i) any evidence available to the applicant of the likelihood of an application being made under the Family Provision Act 1982 in respect of the property of the person, (j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person, (k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will, (l) any other facts of which the applicant is aware that are relevant to the application.

[page 41] The list of information to be provided is broadly similar in each of the other Australian jurisdictions, but there are some differences. It is therefore important to refer to the particular section that applies.72 In South Australia, the legislation does not expressly state that the listed information is to be provided on the application for permission (leave). It merely states that an order may be made ‘on application by any person made with the permission of the Court’, and that ‘in considering an application for an order … the Court must take into account’ that information.73 The Probate Rules 2004 (SA) r 98.10 specifies various information that is to be provided on the substantive application: 98.10 Except where these Rules otherwise provide, the substantive application must be supported by an affidavit setting out all the facts on which the applicant relies, including: (a) The full name, residential address and age of the proposed testator. (b) Evidence that the proposed testator lacks testamentary capacity. (c) The full name and address and details of the appointment of the proposed testator’s administrator, guardian or enduring guardian, if one has been appointed under the Guardianship and Administration Act 1993, or the proposed testator’s manager, if one has been appointed under the Aged and Infirm Persons’ Property Act 1940, or the proposed testator’s attorney if one has been appointed under an enduring power of attorney and where any such appointment has been made a sealed copy of the order or a certified copy of the enduring power of attorney must be exhibited to the affidavit: Provided that if the applicant is not able to exhibit a copy of the enduring power of attorney, then it must be so stated in his or her affidavit.

(d) Full details relating to all of the matters referred to in sub-paragraphs (a) to (h) inclusive of section 7(4) of the Wills Act 1936. (e) The terms of any will, codicil, draft of a will or codicil, written instructions for the same or any other document of a testamentary nature made by or under the direction of the proposed testator of which the applicant has knowledge, and whether the applicant has or has not such documents in his or her possession and where any document is not in the applicant’s possession, the name and address of the person in whose possession it is, or is believed to be, or if the applicant does not know that information it should be so stated: Provided that every such document in the custody or control of the applicant must be exhibited to the affidavit. (f) Evidence in the Form No 34 that the proposed executor or executors consent to act. (g) The reasons why in all the circumstances the applicant considers that the order should be made.

In Victoria, the legislation requires that ‘the applicant must, if so required by the Court’ give the listed information,74 but this is coupled with a requirement in the rules of court that the listed information be provided in the affidavit in support of the application for leave.75 In Western Australia, since there is no two-stage process, the information is to be provided on the substantive application. The nature of the information that is to be provided corresponds to the information required on the leave application in the other jurisdictions.76 [page 42]

Procedural Requirements Concerning the Making of the Application 2.15 In the Northern Territory, the following procedural requirements apply, pursuant to the Supreme Court Rules (NT) reg 88.05B: 88.05B Application for leave to apply for order regarding will of person without testamentary capacity (1) An application under section 20 of the Wills Act for leave to apply for an order authorising the making or altering of a will, or the revoking of the whole or a part of a will, for and on behalf of a person who lacks testamentary capacity is to be made by originating motion in accordance with Form 5D. (2) An application referred to in subrule (1) is to be supported by an affidavit by the applicant that specifies the information, and has annexed to it the documents,

required by the Court under section 20(2) of the Wills Act. (3) …

In Queensland, the Succession Act 1981 (Qld) s 28 provides clarification that an application may be brought notwithstanding any provisions of the guardianship and powers of attorney legislation: 28

Relationship with Guardianship and Administration Act 2000 and Powers of Attorney Act 1998 Nothing in the Guardianship and Administration Act 2000 or the Powers of Attorney Act 1998 prevents a person from making an application for an order under section 21 or for leave under section 22.

In South Australia, the Probate Rules 2004 (SA) r 98.03 specifies the form of the application: 98.03 An application under section 7 of the Wills Act 1936 for an order authorising the making or alteration or revocation of a will on behalf of a proposed testator must include an application for permission to apply for such order and shall be made by inter partes summons in the Form No 33 modification (3) and the applicant must be described as plaintiff and the proposed testator as defendant. The Probate Rules 2004 (SA) further provide: 98.09 Unless the Court or the Registrar shall otherwise direct the time limited for filing an appearance by any person served with the summons or notice of the application shall be in accordance with Rule 8 of the Supreme Court Rules.77 In Tasmania, there are various procedural requirements in the Supreme Court Rules 2000 (Tas) r 803: 803 Application for leave to apply for certain orders (1) An application for leave under section 23 of the Wills Act 2008 — (a) may be made without the intervention of a litigation guardian; and (b) is to be supported by an affidavit of the applicant containing the following: (i) the full name, address, occupation and date of birth of the applicant; (ii) the full name, address, occupation and date of birth of the person on whose behalf the application is made; (iii) the full name, address, occupation and date of birth and relationship to the proposed testator of any of the persons described in section 23(2)(h), section 23(2)(j) and section 23(2)(k) of the Wills Act 2008; and

[page 43] (c) is to be served personally on each of the persons described in section 23(2)(h), section 23(2)(j) and section 23(2)(k) of the Wills Act 2008, unless the Court or a judge otherwise orders. (2) If the Court or a judge is of the opinion that a person who appears to have an interest in proceedings ought to be given notice of those proceedings, the Court or the judge may — (a) direct that the person be served with the application; and (b) give directions as to the future conduct of the proceedings. (3) A person who wishes to object to the application for leave — (a) is to file and serve, no later than 28 days after the service of the application, an affidavit setting out the basis of any objection and the facts and circumstances on which it is based; and (b) is not required to enter an appearance. (4) If revocation of a will or part of a will is sought, the original will is to be produced to the Court, or its absence explained by affidavit, at the hearing of the application for leave.

In Victoria, the following procedural rules apply in respect of the leave application, under the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) Order 17: 17.05 Want of testamentary capacity (1) An application under section 21(2) of the Act for leave to make an application for an order under section 21(1) shall be made by originating motion supported by an affidavit. (2) The affidavit shall state the acts, facts, matters and circumstances relied upon to satisfy the Court that — (a) the person on whose behalf the will is to be made or revoked does not have testamentary capacity; (b) the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity; (c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will, or the revocation of the will, for the person. (3) Without limiting paragraph (2), the affidavit shall — (a) describe the general nature of the application to be made for an order under section 21(1) of the Act and give reasons for making that application; (b) give a reasonable estimate, formed from any evidence available to the plaintiff (the nature of which shall be stated), of the size and character of the estate of the person on whose behalf the will is to be made or revoked; (c) exhibit the proposed will for which the plaintiff is seeking the Court’s approval or a copy of the will which the plaintiff is seeking to have revoked, as the case may be; (d) set out evidence available to the plaintiff of each of the matters referred to in paragraphs (d), (e), (f), (g), (h), (i) and (j) of section 28 of the Act if such mater is relevant to the application for an order under section 21(1) of the Act or, if not

relevant, state why such matter is not relevant; and (e) set out any other evidence relevant to the application. (4) The affidavit shall state whether the application for leave is made upon notice and, if so, to whom notice has been given or is proposed to be given. (5) On the hearing of the application for leave, where revocation is sought, the original will shall be produced to the Court or its absence shall be explained by affidavit.

In Western Australia, the following procedural requirements are stated in the Supreme Court Consolidated Practice Directions 2009 (WA) at 9.3.1: [page 44] The Originating Summons 2. 3.

4.

Applications under s 40 and s 50 of the Wills Act 1970 shall be made by originating summons with fees payable in accordance with the provisions of the Supreme Court (Fees) Regulations 2002, as amended from time to time. In the case of an application under s 40 of the Wills Act 1970: (a) the originating summons must set out the nature of the relief sought and the persons or classes of persons affected, including any persons who would be entitled to receive part of the estate of the person concerned under a previous will or under the Administration Act 1903 if the person concerned were to die intestate, any person who may be entitled to apply under the Inheritance (Family and Dependants Provision) Act 1972, and any body or charitable purpose that the person concerned might reasonably be expected to make a gift by will; (b) unless making the application, the person concerned and his or her legal guardian or attorney are always defendants; and (c) except in relation to the person concerned and his or her legal guardian or attorney, no other party should be given notice until the Court has so directed. […]

Affidavit 5. 6. 7.

8.

An affidavit in support of the application must be filed with applications under s 40 or s 50 of the Wills Act 1970. Practitioners must always exercise care when drafting affidavits. Unnecessary affidavit material will be taken into account on costs: see O 37 r 6(3) of the Rules of the Supreme Court 1971. In the case of applications under s 40 of the Wills Act 1970: (a) the affidavit must address the testamentary capacity of the person concerned, the appropriateness of the applicant to make the application, and, save where the Court allows otherwise, all matters set out in s 41 of the Act; and (b) where the Court’s leave is being sought to not address any of the matters set out in s 41 of the Act, reasons should be included in the affidavit filed in accordance with par 7(a) above. […]

Discovery 9.

It is not expected that discovery will usually be ordered in actions under Pt XI or Pt XII of

the Wills Act 1970.

Hearing of the Leave Application 2.16 In some of the Australian jurisdictions, there are specific statutory or procedural requirements that govern the hearing of the leave application. In New South Wales, the Succession Act 2006 (NSW) s 20 provides as follows: 20 Hearing of application for leave (1) On hearing an application for leave the Court may: (a) give leave and allow the application for leave to proceed as an application for an order under section 18; and (b) if satisfied of the matters set out in section 22, make the order. (2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court’s approval is sought.

In the Australian Capital Territory, the Wills Act 1968 (ACT) s 16C is in similar terms. In the Northern Territory, the Wills Act 2000 (NT) s 22 provides: [page 45] 22 Orders Court may make on application for leave On hearing an application for leave to make an application for an order under this Division, the Court may: (a) refuse the application; (b) adjourn the application; (c) give directions, including directions about the attendance of a person as a witness and, if it considers appropriate, the attendance of the proposed testator; (d) revise the terms of any initial draft of the proposed will, alteration or revocation provided to the Court; (e) grant the application on the terms it considers just; or (f) if it is satisfied of the propriety of the application: (i) allow the application for leave to proceed as an application for an order under this Division authorising the making, alteration or revocation of a will and (ii) allow the application for an order and make an order in accordance with sections 19 and 23 authorising the making, alteration or revocation of a will, as the case requires.

There are also some additional procedural requirements that apply to the

hearing of the leave application in the Northern Territory, pursuant to the Supreme Court Rules (NT) regs 88.05B(3) and (4) and 88.05D: 88.05B Application for leave to apply for order regarding will of person without testamentary capacity (1) … (2) … (3) When the application for leave first comes before the Court, the Court must: (a) consider who are the persons who have reason to expect a gift or benefit from the estate of the proposed testator or who otherwise have a legitimate interest in the making of the application; and (b) give the directions the Court considers appropriate to ensure that adequate steps are taken to allow those persons representation at the hearing of application. (4) If the Court grants the application for leave, the application is to be taken to be, and is to proceed as if it were, an application for the order for which the Court granted the leave.

88.05D Application under section 18, 20 or 27 of Wills Act to be heard by Judge An application under section 18, 20 or 27 of the Wills Act is to be heard by the Court constituted by a Judge. In Queensland, the Succession Act 1981 (Qld) s 22 provides: 22 Leave to apply for s 21 order (1) A person may apply for an order under section 21 only with the court’s leave. (2) The court may give leave on the conditions the court considers appropriate. (3) The court may hear an application for an order under section 21 with or immediately after the application for leave to make the application.

In South Australia, the Probate Rules 2004 (SA) r 98.04 states: 98.04 (1) The application for permission to apply shall be heard by a Judge in Chambers without notice to any other party or upon such notice to other interested persons as the Court or Judge may direct and must be supported by an affidavit setting out the grounds on which such permission is sought and any facts necessary to substantiate those grounds. (2) Where all necessary parties are represented on the hearing for permission to apply the Judge may treat that hearing as the substantive application and determine the summons accordingly.

[page 46] The South Australian rules further state: 98.08 Subject to these Rules upon permission being granted under Rule 98.04(1) notice of the application shall be given to: (1) such of the persons mentioned in section 7(7) of the Wills Act, 1936; and (2) such other persons who appear to the Court or the Registrar to be interested as the Court or the Registrar may direct.

Importantly, the South Australian legislation also confers specific rights of appearance. The Wills Act 1936 (SA) s 7(7) provides: (7) The following persons are entitled to appear and be heard at proceedings under this section: (a) the person in relation to whom the order is proposed to be made; (b) a legal practitioner representing the person or, with the permission of the Court, some other person representing the person; (c) the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993; (d) the person’s administrator, if one has been appointed under the Guardianship and Administration Act 1993; (e) the person’s guardian or enduring guardian, if one has been appointed under the Guardianship and Administration Act 1993; (f) the person’s manager, if one has been appointed under the Aged and Infirm Persons’ Property Act 1993; (g) the person’s attorney, if one has been appointed under an enduring power of attorney; (h) any other person who has, in the opinion of the Court, a proper interest in the matter.

The only other Australian jurisdiction that has a similar provision is Victoria, in the Wills Act 1997 (Vic) s 29: 29 Persons who are entitled to appear at an application for leave Each of the following persons is entitled to appear and be heard in any proceedings for the hearing of an application for leave to apply for an order under section 21 — (a) the person on whose behalf the will is to be made; (b) an Australian legal practitioner (within the meaning of the Legal Profession Act 2004) representing that person; (c) an attorney appointed by that person under an enduring power of attorney; (d) any guardian or administrator of the person within the meaning of the Guardianship and Administration Act 1986; (e) any other person who has, in the opinion of the Court, a genuine interest in the matter.

This provision, unlike the South Australian provision, is stated to apply

only in respect of the leave application. In Tasmania, the Wills Act 2008 (Tas) s 25 provides: 25 Hearing of application for leave (1) On hearing an application for leave, the Court may — (a) give leave and allow the application for leave to proceed as an application for an order under section 22; and (b) if satisfied of the matters set out in section 24, make the order. (2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court’s authorisation is sought.

The following procedural rule, stated in the Supreme Court Rules 2000 (Tas) r 803(2), should also be noted: [page 47] (2) If the Court or a judge is of the opinion that a person who appears to have an interest in proceedings ought to be given notice of those proceedings, the Court or the judge may — (a) direct that the person be served with the application; and (b) give directions as to the future conduct of the proceedings.

In Victoria, if there are funds in court, the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) r 17.07 confers jurisdiction on an Associate Judge: 17.07 Jurisdiction of Associate Judge under section 21 If there are funds in Court for the person who does not have testamentary capacity, an application under section 21 of the Act, including an application for leave, may be heard and determined by an Associate Judge.

As regards the procedure on the application, the Wills Act 1997 (Vic) s 27(2) provides that ‘if the court is satisfied, on the evidence tendered [on the leave application] of the matters set out in section 26(a) to (c) the court may determine that the application for leave to apply for an order under section 21 proceed as an application for such an order’.78 The Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) Order 17 further confirms that the court has various options on the granting of a leave application: 17.06 If leave granted If the Court grants leave under section 21(2) of the Act to make an application for an

order under section 21(1) of the Act, the Court may — (a) proceed forthwith to hear and determined [sic] the application; or (b) give directions in relation to the application.

Hearing of the Substantive Application 2.17 On the substantive application, certain specific requirements must be met, before an order can be made: ACT: ‘The Supreme Court must not make an order under this section unless the person for whom the order is sought is alive when the order is made.’79 NSW: ‘The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made.’80 NT: ‘The Court must not make an order under this Division unless the person in respect of whom the application is made is alive when the order is made.’81 Qld: ‘The court may make the order only if — (a) the person in relation to whom the order is sought lacks testamentary capacity; and (b) the person is alive then the order is made; and (c) the court has approved the proposed will, alteration or revocation.’82 Tas: ‘The Court is not to make an order under this Division unless the person on whose behalf approval for the making of a will is sought is alive when the order is made.’83 [page 48] Vic: ‘The Court … must not make an order under this section on behalf of a person who is deceased at the time the order is made.’84 WA: ‘The Court is not to make an order under subsection (1) unless, at the time when the order is made, the person concerned:

(a) is living; and (b) has reached the age of 18 years’.85 In South Australia and Western Australia, there are various further requirements that must be met on the application (rather than on a prior application for leave), which are stated in the Wills Act 1936 (SA) s 7(3) and the Wills Act 1970 (WA) s 42 respectively. The court may have regard, on the substantive application, to the listed information provided in support of the leave application.86

Orders That Can be Made on the Substantive Application 2.18 In addition to the substantive order authorising the making of the statutory will or codicil, or the revoking of a will, there is provision in the legislation for orders to be made as to ancillary matters and costs: ACT: ‘In making an order under this section, the Supreme Court may give any necessary related orders or directions.’87 NSW: ‘In making an order, the Court may give any necessary related orders or directions.88 The section includes a note: The power of the Court to make orders includes a power to make orders on such terms and conditions as the Court thinks fit — see section 86 of the Civil Procedure Act 2005. The Court also has extensive powers to make directions under sections 61 and 62 of that Act.

NT:

SA:

‘On hearing the application the Court may, after considering the outcome of the application for leave to make the application and any further material or other evidence it requires: (a) refuse the application; or (b) grant the application subject to the terms and conditions it considers just’89 ‘An authorisation under this section may be granted on such conditions as the Court thinks fit.’ It is further provided that ‘In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit.’90

Tas: Vic:

(no corresponding provision) ‘In making an order under section 21, the Court may make any necessary related orders or directions.’91 [page 49]

WA: In proceedings under s 40 the Court may ‘… make any order it thinks fit as to the costs of and incidental to the proceedings.’92 The Queensland provisions are more detailed: (3) For the order, the court may make or give any necessary related orders or directions. (4) The court may make the order on the conditions the court considers appropriate. (5) The court may order that costs in relation to either or both of the following be paid out of the person’s assets — (a) an application for an order under this section; (b) an application for leave under section 22.93

In Tasmania, the Wills Act 2008 (Tas) contains the following transitional provision, at s 22(5): (5) The Court may make an order under this Division even if the will was made before the commencement of this Act.

Evidence 2.19 In all of the Australian jurisdictions, the statutory provisions provide for a relaxation of the application of the rules of evidence, on the substantive application. In New South Wales: 21 Hearing an application for an order In considering an application for an order under section 18, the Court: (a) may have regard to any information given to the Court in support of the application under section 19 [the leave application]; and (b) may inform itself of any other matter in any manner it sees fit; and (c) is not bound by the rules of evidence.94

The provisions in the Australian Capital Territory, the Northern Territory and Tasmania are similar to the Succession Act 2006 (NSW) s 21.95 The Queensland and Victorian provisions go further, as the relaxation of

the rules of evidence applies in respect of the leave application as well as the substantive application.96 This appears logical. In Victoria, there is an additional clarification97 that this relaxation does not prevent the application of Part 3.10 of the Evidence Act 2008 (Vic), which concerns privileged information. There is a less detailed provision in Western Australia: ‘the Court may inform itself as to any matter in any manner it thinks fit’ and ‘the Court is not bound by the rules of evidence in proceedings under section 40’.98 In South Australia, the relevant provision merely states that ‘the Court is not bound by rules of evidence in proceedings under this section’.99 The following matters, stated in the Probate Rules 2004 (SA) rr 98.11 and 98.12, are also relevant: 98.11 The evidence of a legally qualified medical practitioner in an application under section 7 of the Wills Act 1936 may be given by a report signed by the medical practitioner which is duly exhibited to an affidavit sworn by the applicant or the [page 50] applicant’s solicitor who must depose to the fact that he or she has received the report in relation to the proceedings: Provided that the Court or a Judge may at the request of any other party, or may of its or the Judge’s own volition, decline to receive the evidence of a medical practitioner adduced in such manner and may require such evidence to be proved in such way as the Court or the Judge thinks fit.

98.12 (1) Notwithstanding Rule 98.10, the Court or a Judge may accept and act upon a statement of facts or such other evidence, whether oral or written, as the Court or the Judge considers sufficient, although not given on oath. (2) A statement of facts or other written evidence under Rule 98.12(1) must: (a) be drawn up in numbered paragraphs and dated; (b) set out the matters specified in paragraphs (a) to (f) of Rule 98.10; and

(c) be signed by the person by whom it is made.

Revision of Draft Will or Codicil by the Court 2.20 The legislation expressly requires that, where an order is made on the substantive application authorising a will to be made or altered,100 such will or alteration is to be: ACT and NT: ‘in the terms approved by the court’101 Qld: ‘in the terms stated by the Court’102 NSW, SA, Tas, Vic and WA: ‘in specific terms approved by the Court’103 In some of the Australian jurisdictions, the legislation or procedural rules make reference to the revision of the document by the court, on the leave application. In New South Wales, there is the following provision: (2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court’s approval is sought104

The relevant provision in the Australian Capital Territory and Tasmania is in identical terms.105 A similar provision applies in the Northern Territory.106 In Western Australia, there is a corresponding provision for the revision of the terms of the suggested will, alteration or revocation on the hearing of the application (there being no separate leave application).107

Separate Representation of the Proposed Testator 2.21 The question of whether a proposed testator should be separately represented in the proceeding is specifically addressed in the Succession Act 2006 (NSW) s 25: 25 Separate representation of person lacking testamentary capacity If it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings under this Division, the Court may order that the person be separately represented, and may also make such orders as it considers necessary to secure that representation.

[page 51] In the Australian Capital Territory, there is a similar provision.108 There are no corresponding provisions in the other Australian jurisdictions, save for a procedural rule in South Australia that requires the appointment of a guardian ad litem by the court or the registrar, if no appearance to the summons has been entered on behalf of the proposed testator, or if an appearance has been entered and such appointment is in the interest of the proposed testator.109

Execution of the Will, Codicil or Instrument of Revocation 2.22 If the application is successful, the relevant will, codicil110 or instrument of revocation must be executed in accordance with the formalities prescribed by the statutory provisions.111 The requirements are that: (1) the will or other instrument must be in writing, and signed by the Registrar and sealed with the seal of the court; and (2) (in the Australian Capital Territory, New South Wales and Queensland) it may only be signed by the Registrar if the testator is alive. In the Northern Territory, South Australia, Tasmania, Victoria and Western Australia, requirement (2) above is not stated in the statutory provisions. By contrast, in Queensland this issue is put beyond doubt: the court order does not of itself effect the making of the will, alteration or revocation. The Succession Act 1981 (Qld) s 21(6) states: (6) To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property.

As regards the method of revocation in the Australian Capital Territory and New South Wales, the statutory provisions do not specify that an instrument of revocation is required. However, the Succession Act 2006 (NSW) s 11(1) (a) provides that the whole or any part of a will may be revoked ‘if the revocation (whether by a will or other means) is authorised by an order’ under s 18, therefore it appears that the revocation will be valid if it is effected in accordance with the terms of the court order.112

Retention of the Will, Codicil or Instrument of Revocation 2.23 In all of the Australian jurisdictions except Tasmania, the statutory provisions require that a statutory will, or instrument altering or revoking a will, is retained by the registrar (or other prescribed person), and impose restrictions on the withdrawal of that will or instrument. The relevant provisions are: ACT: NSW: NT:

Wills Act 1968 (ACT) ss 16A(6) and (7) and 16G113 Succession Act 2006 (NSW) ss 16(6) and (7) and 24114 Wills Act 2000 (NT) s 25115 [page 52]

Qld: SA: Tas: Vic: WA:

Succession Act 1981 (Qld) ss 30–32116 Wills Act 1936 (SA) s 7(10) and (11)117 Wills Act 2008 (Tas) s 28118 Wills Act 1997 (Vic) s 25(3)-(5)119 Wills Act 1970 (WA) ss 44 and 45, and Order 17 of the Supreme Court Consolidated Practice Directions 2009 (WA) at 9.3.1.120

The following points should be noted in relation to these provisions: In the Australian Capital Territory, New South Wales, the Northern Territory, South Australia and Victoria, the retention requirement is imposed by reference to the statutory provisions relating to the deposit of wills, which are not specific to statutory wills. In Queensland and Western Australia, the retention provisions are particular to statutory wills and other court-authorised instruments. They do not apply to other wills. In Queensland, these provisions deal not only with the retention of the will or other instrument but also with some procedural (indexing) requirements, and the question of to whom the will or instrument may be released. In Western Australia, an application may be made to the

court for leave to request the Principal Registrar to release a copy of a statutory will.121 The court must be satisfied, before granting leave, that adequate steps have been taken to allow all persons with a legitimate interest in the application to be represented, and that it is necessary or desirable for the proper carrying out of the provisions of the will that leave be granted. In the Australian Capital Territory, it is clear from the Wills Act 1968 (ACT) s 16G that the mode of revocation of a statutory will is physical destruction, which is to be effected by the registrar. In Tasmania, a different approach is taken, in that the will or other instrument is not retained by the registrar. It is instead sent to the Public Trustee or a trustee company if executor, or to a law practice nominated by a private executor, and a copy is sent to the proposed testator.122

Privacy 2.24 Statutory will applications inevitably involve the consideration of sensitive information relating to the mental and physical condition of the proposed testator, and details of their financial circumstances, personal relationships and family history. Only in Western Australia are privacy measures specifically provided for in the statutory provisions. The Wills Act 1970 (WA) s 47123 enables the court, on its own initiative or on application of a party to the proceedings, to make a range of orders, to the effect that: (1) The proceedings be heard, in whole or in part, in closed court. (2) Only specified persons or classes of persons may be present during the whole or any part of the proceedings. [page 53] (3) The publication of a report of the whole or any part of the proceedings, or any information derived from or relating to the proceedings, including any order made by the court, be prohibited or restricted. This provision is consistent with the protective nature of the statutory wills

jurisdiction. It would be helpful if a similar provision was adopted by the other jurisdictions in future. In South Australia, there is a procedural rule that every application for a statutory will shall be heard by a Judge in Chambers, unless the Judge otherwise directs.124 Other steps that may be taken to protect the privacy of sensitive information, when acting on behalf the applicant, are considered at 4.33.

Costs 2.25 The courts’ powers to make ancillary orders, including orders as to costs, are noted at 2.18. The Queensland statutory provisions specifically refer to costs. The Succession Act 1981 (Qld) s 21(5)125 provides that the court may order that costs in relation to either the substantive application or an application for leave, or both, be paid out of the proposed testator’s assets. It should not, however, be assumed that an order to this effect will necessarily be made as a matter of course. In South Australia, it is provided that in determining an application, ‘the Court may make such incidental orders relating to costs or other matters as it thinks fit’.126 In Western Australia, there is a similar, though less broad, provision that the court may ‘make any order it thinks fit as to the costs of and incidental to the proceedings’.127 In the Australian Capital Territory, New South Wales and Victoria, there is also a general source of power, that in making an order (for a statutory will) the court may give or make ‘any necessary related orders or directions’.128 Absent such specific statutory confirmation, it does not appear to be in doubt that the court has a wide discretion as to the making of costs orders in respect of statutory will applications. The costs position requires careful thought prior to any application being commenced or opposed. This is considered in Chapter 7, with reference to the applicable case law.

Effect and Recognition of Statutory Wills 2.26 In most of the Australian jurisdictions, the statutory provisions contain specific confirmation and recognition of the effect of a statutory will. The provisions are not uniform. These provisions may assist in the event that conflict of laws issues arise. There are two distinct matters to consider, when examining these provisions: (1) Does the particular provision confirm that, as a matter of the law of the Australian jurisdiction under which the statutory will is made, that statutory will is to be regarded and take effect as a valid will? [page 54] (2) Does the provision further confirm that the particular Australian jurisdiction also recognises the validity of statutory wills made in accordance with the laws of other jurisdictions? In New South Wales, the Succession Act 2006 (NSW) s 26 states: 26

Recognition of statutory wills (1) A statutory will made according to the law of the place where the deceased was resident at the time of the execution of the will is to be regarded as a valid will of the deceased. (2) In this section: statutory will means a will executed by virtue of a provision of an Act of New South Wales or other place on behalf of a person who, at the time of execution, lacked testamentary capacity.

A similar provision applies in the Australian Capital Territory, the Northern Territory and Victoria.129 An expanded provision applies in Western Australia: 48

Recognition of wills (1) In this section — statutory will means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity, and includes an alteration to and a revocation of a statutory or other will. (2) A statutory will made according to the law of the place where the deceased was resident at the time of execution is to be regarded as a valid will of the deceased or a valid alteration or revocation of a will, as the case may be, for the purposes of the law of this State.

(3) The application of subsection (2) extends to a statutory will made before the commencement of section 24 of the Wills Amendment Act 2007.130

Section 39(2) is also relevant: (2) For the purposes of sections 6, 9(1), 10(2) and 15(b), a will or instrument signed in accordance with section 40(4) is to be taken to be executed by the person concerned in a manner permitted by this Act.

In Queensland, the Succession Act 1981 (Qld) s 27 states: 27

Validity of will or other instrument made under order (1) A will made under an order under section 21 has the same effect for all purposes as if — (a) the person without testamentary capacity were capable of making a valid will; and (b) the person executed the will under section 10. (2) An instrument, revoking a will or part of a will, made under an order under section 21 has the same effect for all purposes as if — (a) the person were capable of validly revoking a will or part of a will; and (b) the person executed the instrument under section 13(d)(ii). (3) An instrument, altering a will, made under an order under section 21 has the same effect for all purposes as if — (a) the person were capable of making a valid alteration of a will; and (b) the person executed the instrument under section 16(1)(a).

The Tasmanian provisions are more extensive: 39

Effect of a statutory will A statutory will has the same effect for all purposes as if — (a) the person for whom it is made were capable of making a will; and

[page 55] (b) the statutory will had been executed by him or her in the manner required by Division 2 of Part 2. 40

Recognition of statutory will A statutory will made according to the law of the place where the deceased was resident at the time of execution is to be regarded as a valid will of the deceased.

41

Application of common law and equity to statutory wills The principles and rules of the common law and of equity are, to the extent that they are not inconsistent with this Part, to apply to a valid statutory will in the same way as they apply to a will executed in accordance with Division 2 of Part 2.131

These various statutory provisions relating to the effect and recognition of a statutory will should also apply in respect of a statutory codicil.132

There is no corresponding provision in South Australia in respect of these matters.

Testator Who Regains Capacity 2.27 In Victoria, the possibility of the testator regaining capacity is provided for in the Wills Act 1997 (Vic) s 24: 24

Revocation of a will made under an order under section 21 If a will has been made under an order under section 21 on behalf of a person who acquires or regains testamentary capacity after the making of the order, that person may revoke or deal with the will without an order under section 21.

A similar provision appears in the Wills Act 1970 (WA) s 46: 46

Alteration or revocation of a will made under this Part (1) This section applies if— (a) a will has been made on behalf of a person under this Part; and (b) the person acquires or regains testamentary capacity. (2) The will — (a) may be altered by the person in accordance with section 10 or by a document that has effect under Part X; (b) may be revoked in whole or in part by the person in accordance with section 15 or by a document that has effect under Part X; and (c) is subject to revocation under section 14(1) or 14A(2), as if it were a will executed in accordance with section 8.

These provisions are particular to Victoria and Western Australia. However, the same position should apply in the other Australian jurisdictions, notwithstanding the lack of specific statutory confirmation, in particular because of the provisions concerning the effect of a statutory will, referred to at 2.26.

Possible Statutory Reform: Victoria 2.28 In Victoria, as part of a general review of the laws of succession, the Victorian Law Reform Commission has reviewed133 and reported on whether the statutory wills [page 56]

provisions in the Wills Act 1997 (Vic) should be revised. The Report134 was tabled in Parliament on 15 October 2013. It makes several recommendations, which can be summarised as follows: (1) The core test in s 26(b) should not be amended. While national consistency should be promoted in succession law generally, the Victorian test is preferable, on the basis that ‘it is more closely aligned with the wishes of a person who has lost capacity and more clearly allows a will to be authorised in situations where the person has never had capacity’.135 (2) The Act should expressly provide that the court may order separate representation for the proposed testator. The court already has the power to order this under its inherent jurisdiction, but explicit recognition in the Act may make it more likely that the proposed testator’s views are taken into account. Notwithstanding a lack of testamentary capacity, the person may be able to express some views or preferences that the court could take into account. Separate representation often may not be necessary, particularly where the person is not capable of expressing any views or preferences. However, even in that situation, it may be desirable to have the person’s interests defended, such as in relation to the burden of a costs order, by one of the persons entitled to appear under s 29 (an attorney, guardian or administrator, or legal practitioner). (3) The requirements for leave should be repealed. The two-stage process is unnecessary; in practice only one hearing is held, and the costs rules are sufficient to deter unmeritorious or vexatious applications. (4) It is not necessary for jurisdiction to hear statutory will applications to be conferred on the Victorian Civil and Administrative Tribunal (‘VCAT’) either instead of, or in addition to, the Supreme Court. It is not clear that an application process at VCAT would cost less than in the Supreme Court and that the procedure would therefore be more accessible. (5) Hearings ‘on the papers’ for unopposed statutory will applications, with no court hearing, would not necessarily make the statutory will procedure more accessible. The Commission noted concerns expressed by the Supreme Court that such hearings may not be sufficient to satisfy the court that the criteria are met and all relevant interests are protected, and would not allow for greater participation of the proposed testator.

(6) As regards costs, after giving consideration to whether specific costs provisions should be introduced into the Act, the Commission concluded that it is appropriate for the court to retain a general discretion in relation to costs for statutory will applications. It was noted that the costs principles have developed in a consistent way across the Australian jurisdictions, and are generally perceived to be fair and appropriate. It can be inferred from these recommendations that the current statutory wills framework in Victoria is perceived to be sufficient and effective, save for the unnecessary element of leave required under the two-stage approach. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

Wills Act 1997 (Vic) s 21(1). Wills Act 1992 (Tas) ss 27A–27I, inserted by the Wills Legislation Amendment Act 1995 (Tas). Wills Act 2008 (Tas) ss 29–38; see 9.6 Wills Act 2008 (Tas) ss 21–28; see 9.6. [2005] TASGAB 1; see 8.40. [2010] TASGAB 12; see 8.41. Wills Act 2008 (Tas) ss 29 to 38; see 9.6. Wills Act 1968 (ACT) s 16A(2)(a); Succession Act 2006 (NSW) s 18(2)(a); Wills Act 2000 (NT) s 19(2)(a); Wills Act 2008 (Tas) s 22(2); Wills Act 1970 (WA) s 40(3)(a). Wills Act 1968 (ACT) s 16A(2)(b); Succession Act 2006 (NSW) s 18(2)(b); Wills Act 2000 (NT) s 19(2)(b); Wills Act 2008 (Tas) s 22(2); Wills Act 1970 (WA) s 40(3)(b). Wills Act 1968 (ACT) s 16A(1)(b); Succession Act 2006 (NSW) s 18(1)(b); Wills Act 2000 (NT) s 19(1)(b); Succession Act 1981 (Qld) s 21(1)(b); Wills Act 2008 (Tas) s 22(1); Wills Act 1970 (WA) s 40(1)(b). In South Australia, threshold requirements apply on the substantive application; see 2.8 Wills Act 1968 (ACT) ss 16A(1) and 16B(1). Succession Act 2006 (NSW) ss 18(1) and 19(1). Wills Act 2000 (NT) s 19(1). Succession Act 1981 (Qld) ss 21(1) and 22(1). Wills Act 1936 (SA) s 7(1). Wills Act 2008 (Tas) ss 22(1) and 23(1). Wills Act 1997 (Vic) s 21(2). Wills Act 1970 (WA) s 40(1). Except in Victoria; see 2.1. Wills Act 1968 (ACT) s 16A(4). Succession Act 2006 (NSW) s 18(4). Wills Act 2000 (NT) s 19(4). Succession Act 1981 (Qld) s 21(7). Wills Act 1936 (SA) s 7(5). Wills Act 2008 (Tas) s 22(4). Wills Act 1997 (Vic) s 21(3). Wills Act 1970 (WA) s 40(2). Except in the ACT and Victoria. Wills Act 1968 (ACT) ss 8A and 8B; Succession Act 2006 (NSW) s 16; Wills Act 2000 (NT) s 18; Succession Act 1981 (Qld) s 19; Wills Act 1936 (SA) s 6; Wills Act 2008 (Tas) s 20; Wills Act 1997 (Vic) s 20. The separate statutory provisions that enable a minor to make a will when

married, or in contemplation of a marriage that then takes place, should also be noted. 31. Wills Act 1968 (ACT) s 16B(1); Succession Act 2006 (NSW) s 19(1); Wills Act 2000 (NT) s 20(1); Succession Act 1981 (Qld) s 22(1); Wills Act 1936 (SA) s 7(1); Wills Act 2008 (Tas) s 23(1); Wills Act 1997 (Vic) s 21(2). 32. (2004) 237 LSJS 23; [2004] SASC 369; see 8.32. 33. At [25]. 34. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. 35. [2013] QSC 40; see 8.27. 36. Unreported, Supreme Court of Queensland, No 5309 of 2013, Applegarth J, 13 June 2013; see 8.28. 37. [2011] NSWSC 624; see 8.9. 38. See 2.9–2.9. 39. Except for the requirement under the Probate Rules 2004 (SA) r 98.04, which must be satisfied on the hearing of the application for permission; see 2.13. 40. [2010] NSWSC 618 at [9]; see 8.5. 41. Wills Act 1968 (ACT) s 16E(a) and Succession Act 2006 (NSW) s 22(a). 42. Wills Act 2000 (NT) s 21(a). 43. Succession Act 1981 (Qld) s 24(c). 44. Wills Act 1936 (SA) s 7(3)(a). 45. Wills Act 2008 (Tas) s 24(b). 46. Wills Act 1997 (Vic) s 26(a). 47. Wills Act 1970 (WA) s 42(1)(a). 48. [2011] NSWSC 624; see 8.9. 49. At [69]. 50. Wills Act 1968 (ACT) s 16E(b); Succession Act 2006 (NSW) s 22(b). 51. Wills Act 2000 (NT) s 21(b). 52. Succession Act 1981 (Qld) s 24(d). 53. Wills Act 1936 (SA) s 7(3)(b). 54. Wills Act 2008 (Tas) s 24(e). 55. Wills Act 1997 (Vic) s 26(b). The former wording of s 26(b), and the amendment of that section in 1997, is considered at 1.21. 56. Wills Act 1970 (WA) s 42(1)(b). 57. Wills Act 1968 (ACT) s 16E(c); Succession Act 2006 (NSW) s 22(c). 58. Wills Act 2000 (NT) s 21(c); Wills Act 2008 (Tas) 24(d). 59. Succession Act 1981 (Qld) s 24(e). 60. Wills Act 1936 (SA) s 7(3)(c). 61. Wills Act 1997 (Vic) s 26(c). 62. Wills Act 1968 (ACT) s 16E(d); Succession Act 2006 (NSW) s 22(d); Succession Act 1981 (Qld) s 24(a). 63. Wills Act 2000 (NT) s 21(d); Wills Act 1970 (WA) s 42(1)(c). 64. Wills Act 2008 (Tas) s 24(a). 65. Wills Act 1968 (ACT) s 16E(e). 66. Succession Act 2006 (NSW) s 22(e). 67. Wills Act 2000 (NT) s 21(e). 68. Succession Act 1981 (Qld) s 24(b). 69. Probate Rules 2004 (SA) r 98.04; see 9.5. 70. Wills Act 2008 (Tas) s 24(c). 71. Wills Act 1970 (WA) s 42(1)(d). 72. Wills Act 1968 (ACT) s 16B(2); see 9.3 Wills Act 2000 (NT) s 20(2); see 9.3 Succession Act (Qld) s 23; see 9.4; Wills Act 1936 (SA) s 7(4); see 9.5; Wills Act 2008 (Tas) s 23(2); see 9.6;

Wills Act 1997 (Vic) s 28; see 9.7 73. Wills Act 1936 (SA) s 7(1) and (4); see 9.5 74. Wills Act 1997 (Vic) s 28. 75. Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) r 17.05; see 9.7 and see also Monger v Taylor [2000] VSC 304 at [40]–[42]. 76. Wills Act 1970 (WA) s 41. 77. See also r 98.04, considered at 2.16. 78. Wills Act 1997 (Vic) s 27(2). 79. Wills Act 1968 (ACT) s 16A(3). 80. Succession Act 2006 (NSW) s 18(3). 81. Wills Act 2000 (NT) s 19(3). 82. Succession Act 1981 (Qld) s 21(2). 83. Wills Act 2008 (Tas) s 22(3). This provision does not expressly refer to approval for the alteration or revocation of a will, although those types of application would appear to be subject to this requirement. 84. Wills Act 1997 (Vic) s 21(3). 85. Wills Act 1970 (WA) s 40(2). 86. Wills Act 1968 (ACT) s 16D(a); Succession Act 2006 (NSW) s 21(a); Wills Act 2000 (NT) s 23(1)(a); Succession Act 1981 (Qld) s 25(a); Wills Act 2008 (Tas) s 26; Wills Act 1997 (Vic) s 22(1)(a). 87. Wills Act 1968 (ACT) s 16A(5). 88. Succession Act 2006 (NSW) s 18(5). 89. Wills Act 2000 (NT) s 23(2). 90. Wills Act 1936 (SA) s 7(2) and (8). 91. Wills Act 1997 (Vic) s 23. 92. Wills Act 1970 (WA) s 43(1)(d). 93. Succession Act 1981 (Qld) ss 21(3)–(5). 94. Succession Act 2006 (NSW) s 21. 95. Wills Act 1968 (ACT) s 16D; Wills Act 2000 (NT) s 23(1); Wills Act 2008 (Tas) s 26. 96. Succession Act 1981 (Qld) s 25; Wills Act 1997 (Vic) ss 22(1) and 27(1). 97. Wills Act 1997 (Vic) ss 22(2) and 27(1A). 98. Wills Act 1970 (WA) s 43(1)(c) and (2). 99. Wills Act 1936 (SA) s 7(6). 100. Except in Victoria; see 2.2. 101. Wills Act 1968 (ACT) s 16A(1)(a); Wills Act 2000 (NT) s 19(1)(a). 102. Succession Act 1981 (Qld) s 21(1)(a). 103. Succession Act 2006 (NSW) s 18(1)(a); Wills Act 1936 (SA) s 7(1); Wills Act 2008 (Tas) s 22(1); Wills Act 1997 (Vic) s 21(1); Wills Act 1970 (WA) s 40(1)(a). 104. Succession Act 2006 (NSW) s 20(2). 105. Wills Act 1968 (ACT) s 16C(2); 9.1; Wills Act 2008 (Tas) s 25(2); see 9.6. 106. Wills Act 2000 (NT) s 22(d); see 9.3. 107. Wills Act 1997 (WA) s 43(1)(b). 108. Wills Act 1968 (ACT) s 16H; see 9.1. 109. Probate Rules 2004 (SA) rr 98.06 and 98.07; see 9.5. 110. Except in Victoria; see 2.2. 111. Wills Act 1968 (ACT) s 16F; see 9.1; Succession Act 2006 (NSW) s 23; see 9.2; Wills Act 2000 (NT) s 24; 9.3; Succession Act 1981 (Qld) s 26; see 9.4; Wills Act 1936 (SA) s 7(9); see 9.5; Wills Act 2008 (Tas) s 27; see 9.6; Wills Act 1997 (Vic) s 25(1) and (2); see 9.7; Wills Act 1970 (WA) s 40(4); see 9.8. 112. Wills Act 1968 (ACT) s 16F; Succession Act 2006 (NSW) s 23.

113. See 9.1. 114. See 9.2. 115. See 9.3. 116. See 9.4. 117. See 9.5. 118. See 9.6. 119. See 9.7. 120. See 9.8. 121. Wills Act 1970 (WA) s 45. 122. Wills Act 2008 (Tas) s 28. 123. 9.8. 124. Probate Rules 2004 (SA) r 98.02; see 9.5. 125. See 9.4. 126. Wills Act 1936 (SA) s 7(8). 127. Wills Act 1970 (WA) s 43(1)(d). 128. Wills Act 1968 (ACT) s 16A(5); Succession Act 2006 (NSW) s 18(5); Wills Act 1997 (Vic) s 23. 129. Wills Act 1968 (ACT) s 16I; Wills Act 2000 (NT) s 26; Wills Act 1997 (Vic) s 30. 130. Wills Act 1970 (WA) s 48. 131. Wills Act 2008 (Tas) ss 39–1. 132. Wills Act 1968 (ACT) s 2 and Dictionary; Succession Act 2006 (NSW) s 3; Wills Act 2000 (NT) s 3; Succession Act 1981 (Qld) s 5; Wills Act 2008 (Tas) s 4; Wills Act 1997 (Vic) s 3(2); Wills Act 1970 (WA) s 4. 133. Victorian Law Reform Commission, ‘Wills’, Succession Laws Consultation Paper, 11 October 2012, Chapter 3, questions W13 to W17. 134. Victorian Law Reform Commission, ‘Succession Laws’, Report, August 2013. 135. At [3.14].

[page 57]

CHAPTER 3 When a Statutory Will May be Required Introduction Adjusting Beneficial Entitlements Under an Existing Will or On Intestacy The carer parent versus the absent parent Expression by testator of changed testamentary intentions Relationship between proposed testator and beneficiary ended Positive misconduct by beneficiary Improvement in poor relationship Including, or increasing, benefits to worthy recipients Other changes in circumstances Resolving Problems With an Existing Will or Intestacy Lapsed gift Avoiding property passing as bona vacantia Adeemed gift Concern that a previous will was made when testamentary capacity lacking Previous will missing

3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 3.13 3.14 3.15

Previous will defective Avoiding potential construction and rectification applications Avoiding other estate litigation — family provision claims

3.16 3.17 3.18 3.19

Estate Planning Asset protection Tax planning Social security and aged care means test planning Protection of a vulnerable beneficiary

3.20 3.21 3.22 3.23

Introduction 3.1 The statutory scheme does not distinguish between, or define, any particular categories of cases in which a statutory will may be required or applied for. However, some clear patterns have emerged in the decisions to date, which are examined in this chapter. Given the discretionary nature of the court’s jurisdiction, particular decisions should not be treated as precedents that can be applied to similar facts arising in other [page 58] cases. In every case, the focus remains on the threshold requirements (see 2.8–2.13) and in particular where there is sufficient evidence to satisfy the ‘core test’. Where cases are referred to in this chapter, reference should be made to the detailed case notes contained in Chapter 8.

Adjusting Beneficial Entitlements Under an Existing Will or On Intestacy

3.2 There are various scenarios in which the applicant may seek to adjust the beneficial entitlements to the estate of a proposed testator, whether under an existing will or on intestacy.

The carer parent versus the absent parent 3.3 A number of cases have involved factual circumstances where the proposed testator has been cared for primarily by one parent, and had little or no contact with the other parent for a long period. In such cases, due weight has been given to this in ascertaining whether the proposed will (often containing a substantial gift to the parent who has been the carer) satisfies the core test. Typically, these cases involve a proposed testator who has suffered a disability at birth or in childhood, and for whom care is provided by the mother in circumstances where the father has either left the family unit before the disability, or left at least partly as a consequence of the difficult circumstances that it created. The facts usually involve a close relationship between the proposed testator and their carer parent, who live together. Some further relevant considerations are the size of the estate, the extent to which the absent parent has maintained any relationship with the proposed testator and whether the absent parent is in circumstances of financial need. An example of the approach taken by the courts in cases of this kind is the judgment of Palmer J in AB v CB.1 In that case the father (‘FB’) of the proposed testator (‘CB’) had had little to do with her, both before and after her accident: It seems to me that there is, to quote the words which I have used in Re Fenwick, ‘a fairly good chance’ that the proposed will, in excluding FB, would represent the actual intentions of CB if she were now of testamentary capacity and aware of the present circumstances. I accept that, for whatever reason, FB has removed himself from responsibility and care within the family, at least from the time that CB was aged nine. I accept that there has been no normal relationship of father and daughter, at least in an on-going caring sense between the two of them since that time. It seems to me that there is a fairly good chance that the proposed will reflects what a reasonable person in CB’s position would do to recognise in her testamentary provision the fact that AB will have devoted the whole of the remainder of her life to the very onerous task of caring for CB. A reasonable person in CB’s position would recognise that the overwhelming moral responsibility which she had in regard to testamentary provision was in favour of AB. … I do not think that one can say, having regard to the absence of FB in the family involvement for now more than ten years, that there is a fairly good chance that CB would wish to make any provision for him.2

Similar views were expressed by Atkinson J in Sadler v Eggmolesse.3 Her

Honour found that the proposed statutory will was ‘… appropriate in this case where the [page 59] alternative is … an intestacy, where the mother, who has had more or less sole care of Matthew all his life, and the father who has not lived in the same household since Matthew was not quite seven, would benefit equally under the will.’4 The relevance, when considering the core test, of one parent having acted as primary carer for the proposed testator, was also noted in Deecke v Deecke.5 Similarly, in Re Weick,6 a statutory will was authorised that provided for the proposed testator’s mother and sister. They had been her carers in recent years, and were the only two members of the family with whom she had had a close relationship. In Wickham v Smith,7 the impact of the provision of care by one parent upon that parent’s financial security was specifically considered, but was not of itself determinative because other strong familial relationships also needed to be taken into account: … it is relevant to have regard to the fact that Heath’s mother has spent the last six years of her life in devoted care of Heath. That she is now 65 years old, and on Heath’s death, she will likely to be elderly, without employment, and otherwise in herself in need of some care; that she will have no roof over her head but for that provided during her care of Heath; and that she will otherwise, during the time she is caring for Heath, have no means to establish investments to look after her own interests. The proposed allocation of Heath’s estate in that way clearly has regard to the primary position which has been adopted by Heath’s mother in caring for him, but also has regard to the undoubted relationship that he had, and has, with his siblings, the second third and fourth respondents.8

An absent father will not necessarily be excluded from benefit in all cases. In Application of Wosif Elayoubi,9 a ‘nil capacity’ case, the proposed testator’s estate was more than $5 million in value. He had been looked after from birth by his mother. His father had been estranged from the family for many years, and suffered from schizophrenia. The estate was found to be large enough to provide for $1 million to be held on trust for the father for life, on terms that facilitated the purchase of a house for him, with the remainder to the mother, and with the residue of the estate also to pass to the mother.

Similarly, in Payne v Smyth as Litigation Guardian for Welk,10 some provision was made for the father of the proposed testator. Apart from time spent in hospital after his accident, the proposed testator had always lived with his mother, on whom he was dependent. He had had irregular contact with his father for a number of years, although he had recently started to have more contact, sometimes staying with his father for several days at a time and having a key to stay at his father’s house when he pleased. The statutory will that was authorised provided for the father to receive either a 12.5 per cent or 25 per cent share of the residuary estate, depending on whether the proposed testator was survived by any children. [page 60] In both Bock v Bock11 and Hickson v Humphrey,12 the statutory will provided for a small proportion of the residuary estate (10 per cent in each case) to be gifted to the father, in circumstances where the mother had acted as primary care giver. In Hickson v Humphrey, notwithstanding that the application was successful, and that most of the respondent father’s evidence related to his unsuccessful efforts to see his daughters since his separation from the applicant, an order was made that his costs also be paid from the proposed testator’s estate, on the basis that he was entitled to be heard upon the application. Some further cases to note in this category are: Application of Sultana,13 Bryant v Blake14 and Hoffman v Waters.15

Expression by testator of changed testamentary intentions 3.4 If there is clear evidence that the proposed testator’s testamentary intentions have changed in the period since their existing will was made, that may provide a valid reason for an application to be made for a statutory will, codicil or revocation. Similarly, an application may be appropriate where the proposed testator currently has no will, but has expressed a clear change of intention that signifies that a will should be made, rather than the estate passing according to the rules of intestacy. There are two scenarios to consider. First, the change in testamentary

intentions may have been communicated in the period prior to the proposed testator losing testamentary capacity, but not acted on. An example of this is Plowright v Burge,16 which is considered at 3.5 in the context of a change in intentions upon the end of a relationship. Second, the change may have been communicated in the period since the loss of capacity. It is possible that a proposed testator, while no longer meeting the legal test of testamentary capacity in Banks v Goodfellow,17 may be capable of expressing some intentions and wishes that justify a statutory will application. For example, in Re Grace Geraldine Brown18 the proposed testator had no real understanding of the extent and value of her assets. She was nevertheless able to express some testamentary wishes. In either case, the change in testamentary intentions is usually prompted by a change in circumstances, which is considered at 3.9. These cases can be difficult from an evidentiary perspective. If the change in testamentary intentions has not been clearly expressed, the court may be reluctant to infer it from surrounding circumstances: see 4.16.

Relationship between proposed testator and beneficiary ended 3.5 There have been published decisions that have involved an application for a statutory will made following the separation of the proposed testator and their partner, where there was an existing will that provided a substantial benefit for the partner. A difficulty in cases of this kind is whether, in order to meet the core test, there [page 61] is sufficient evidence that the proposed testator would exclude the former partner from benefit. The court can more readily draw that conclusion if there is evidence that a positive intention to that effect was actually expressed by the proposed testator, to other persons. Where there is no expression of intention, the position is more difficult because the court is essentially invited to draw an inference, based on the circumstances, that the proposed testator did not intend the former spouse to remain a beneficiary. In Plowright v Burge,19 the proposed testator separated from her partner in

1996–1997, and had made statements to various persons about her intention to exclude him as a beneficiary under her existing will. She then suffered a severe and permanent incapacity as a result of an accident in 1997. Hansen J, in considering the core test, was satisfied that the conduct of the proposed testator’s partner since the accident ‘would have reinforced in [the proposed testator] the intentions she expressed before the accident’.20 A statutory will was authorised that provided for her former partner to be excluded from benefit. In contrast, in Re Martina Pieternella de Jager,21 a statutory will was made that provided for the proposed testator’s former partner to receive half of her residuary estate. The proposed testator had an existing will, which gifted her estate to the partner. Their relationship ended before the proposed testator lost capacity. The Public Trustee as her administrator applied to revoke that will and have a new will made in its place. This was initially opposed by the former partner, however a settlement was then reached between her and all other interested parties, and a compromise put to the court for approval. This included provision for the former partner to receive half of the residuary estate. It was found that the proposed testator would no longer want her former partner to be the sole beneficiary of her estate, because of their separation as a couple. However they had been in ‘a loving and caring relationship for almost 20 years’, and ‘it might be expected in those circumstances that [the proposed testator] would wish to benefit [her former partner]’.22

Positive misconduct by beneficiary 3.6 A statutory will, codicil or revocation may be sought to prevent a beneficiary who has engaged in positive misconduct towards the proposed testator from receiving any benefit from the proposed testator’s estate. These cases often involve sad circumstances, and require the court, on behalf of the proposed testator, to exercise a moral judgment against the perpetrator of the conduct. An extreme example is the well-publicised case of De Gois v Korp,23 in which an application was made for a statutory will in circumstances where the husband of the proposed testator, Maria Korp, had been charged with her attempted murder and the husband’s mistress had pleaded guilty to that crime and received a substantial prison sentence. Maria had been found

unconscious in the boot of her car and suffered severe brain injury. The application was made by her daughter by her first marriage, who sought to remove the husband from all benefit under Maria’s existing will. Mandie J was satisfied that the proposed will accurately reflected Maria’s likely intentions. His Honour found that, in ascertaining Maria’s likely intentions for the purpose of applying the core test, she should be taken to have knowledge of the relevant circumstances including the husband’s affair with his mistress, the serious allegations made against [page 62] him by the police, and that ‘… even if acquitted … it appeared that [her husband] bore, at the very least, considerable moral responsibility for what had happened to her’.24 His Honour concluded that it was ‘inconceivable’ that Maria, properly advised, would not have excluded her husband from her will. A further example of physical misconduct is Re Charles.25 A statutory will was authorised for an 11 year old proposed testator, ‘Charles’, who had sustained severe injuries when he was four months old that were consistent with ‘shaken baby syndrome’. He had been removed from his parents’ care, and was subject to a care order. They denied that they had injured him but there was evidence from various sources that raised a suspicion that they had caused his injuries. Palmer J noted that while there had been no charges or criminal finding, that was not the standard on which the court assessed ‘likely intentions’. The question was what Charles would be reasonably likely to do in the circumstances. It was not necessary for the court to find whether or not the parents caused Charles’ injuries, but only whether there was a fairly good chance that a reasonable person in Charles’ position, faced with the evidence of the cause of those injuries, would decide not to permit their estate to pass to the parents on intestacy. A statutory will was made leaving Charles’ estate to his sister. In Application by Peter Leslie Kelso,26 a statutory will was made where the proposed testator’s estate would otherwise pass on intestacy to her husband, in circumstances where there was evidence that he had caused her current and previous physical injuries. Ball J found it ‘inconceivable’ in the

circumstances that she would have wanted any part of her estate to pass to him. As these cases illustrate, the misconduct does not need to be proven to the criminal standard of proof. The court’s focus is on ascertaining the proposed testator’s likely intentions, if he or she were aware of the evidence of the misconduct. While highly likely, it is not inevitable that a person who is found to have committed physical misconduct towards the proposed testator will always be excluded from benefit. Special circumstances may exist that justify some benefit to the person being maintained. The decision of the Tasmanian Guardianship and Administration Board in CMPA (Statutory Will)27 is an example. The proposed testator, ‘C’, suffered a brain injury as a result of a severe assault by his mother, ‘K’, in respect of which she was convicted of causing grievous bodily harm and sentenced to 18 months’ imprisonment. The Board nevertheless determined that there were various considerations that needed to be balanced, including the principle that C, as a son of K, who had a severe mental illness, if C was decent and fair, would not want to leave K not provided for. A statutory will was made that provided some indirect provision for K, by way of a gift of 25 per cent of the estate to the provider of her supported accommodation at the date of C’s death. The alleged misconduct will not always be physical in nature. It may involve financial transactions undertaken by a person in relation to the property of the proposed testator, that are detrimental to the proposed testator’s interests. In Public Trustee v Phillips No SCCIV-03-800,28 an order was made revoking a will that had been made some 10 years previously, where there was a concern that it had been made under the influence of a person with whom the testator had formed an [page 63] attachment, and at a time when her capacity was declining. Since making that will, she was not aware that this person had caused her to use her assets in a way that benefited him and was detrimental to her interests, and that he ‘had

deserted her and had no concern for her’.29 Doyle CJ found that while when the will was made the proposed testator may have felt some gratitude or friendship to him, that would no longer be the case at the time of the hearing. A similar case is State Trustees Limited v Hayden.30 Under the proposed testator’s last will, she appointed a friend, Roger Hayden, as sole executor and made him a major beneficiary. Shortly after that, he was appointed as her administrator. Two years later, he arranged for her to sign an agreement to make a loan of $320,000 for his benefit, in order that he could lease a hotel property. An application was made to the Guardianship Board for approval of that transaction, but on that application Roger gave false instructions to his lawyers, which were conveyed to the Board, in that he said he was the proposed testator’s nephew and the only beneficiary of his will, neither of which were true. The lease was eventually lost, and Roger’s company owed the proposed testator approximately $400,000. Mandie J considered that the proposed testator would have regarded his conduct as ‘reprehensible and disgraceful’ and was likely to have disinherited him as a result of that. A statutory will was made that had the effect of removing Roger as a beneficiary. A more recent and extreme example of financial misconduct is Lawrie v Hwang,31 in which the most recent will of the proposed testator, Mr Lawrie, had been revoked by his marriage to Ms Hwang, whom he met through an introductions agency during a trip to South Korea. They were married shortly thereafter in three separate wedding ceremonies in different countries. At the time of those ceremonies, there were significant concerns for Mr Lawrie’s mental capacity. A number of financial transactions then occurred, whereby approximately $3.1 million was transferred from bank accounts held by Mr Lawrie and his asset-holding company, Lawmar Pty Ltd (‘Lawmar’), into South Korean accounts in the name of Ms Hwang. Proceedings were commenced by Mr Lawrie (by his litigation guardian) and Lawmar against Ms Hwang and a company that she owned, for engaging in fraud, undue influence and unconscionable conduct in procuring the bank transfers. Following a three day trial, Ms Hwang was found to have acted dishonestly, as she had known that Mr Lawrie did not have capacity to authorise the bank transfers. She was ordered to pay to Lawmar a sum of more than $3 million plus interest, and to transfer her interests in various South Korean real properties to Lawmar or its nominee. She was subsequently charged with

fraud and attempted fraud, and was arrested and remanded in custody. The basis of the statutory will application was that, if Mr Lawrie had testamentary capacity, he would want no part of his estate to pass to Ms Hwang, given her conduct in relation to him and her actions in transferring away his assets. Furthermore, he would want the terms of his current will to reflect those of his most recent will. Ms Hwang opposed the making of the statutory will on various grounds, including that she had been ‘a good wife’ and lived happily with Mr Lawrie for 18 months and cared for him. Ann Lyons J accepted that Ms Hwang had been good to Mr Lawrie and had cared for him. However, her Honour could not look behind the findings of the court made in relation to the transfer of in excess of $3 million out of the jurisdiction into accounts owned by Ms Hwang. A statutory will was made in terms that essentially reflected those of the previous will, with no benefit to Ms Hwang. Allegations of financial misconduct, even where proven, will not always result in the exclusion of a beneficiary. The courts may be reluctant to take a ‘retributive’ approach [page 64] on behalf of the proposed testator in cases of financial misconduct, in the absence of other factors that clearly evidence a change in the proposed testator’s likely intentions. This can be seen in Re Keane; Mace v Malone,32 where an unsuccessful application for a statutory will for Patrick Keane was made by his youngest sister, Josephine Mace. Under Patrick’s existing will, his residuary estate would (in the circumstances that had occurred since it was made) pass to the children of his deceased sister, Mary. Shortly before her death, Mary had engaged in various transactions as Patrick’s attorney under an enduring power of attorney, in relation to properties that she held with him as joint tenants. Those transactions were improper in various respects, and resulted in benefits to Mary and her daughter. The Public Trustee, as administrator of Patrick’s affairs, issued proceedings against the administrator of Mary’s estate, seeking a revesting of interests in Patrick’s estate that had been alienated by Mary. Those proceedings were settled and, in effect, the value of Patrick’s estate was returned to at least what it had been prior to the improper

transactions taking place. Josephine sought the making of a statutory will that would provide for Patrick’s estate to pass to her and Patrick’s youngest sister, Joan. The effect of this will would have been to exclude Mary’s children from benefit. The fundamental submission on which Josephine relied was that the conduct of Mary in misusing the power of attorney was ‘so egregious as to cause Patrick to completely change his testamentary dispositions’.33 After reviewing at length the history of the property transactions that had taken place, the family dynamics and the various tribunal applications, Daubney J was not satisfied that the proposed will reflected Patrick’s likely intentions. His Honour said: The case for Josephine is that, knowing of these matters, Patrick’s response would be to disenfranschise Mary’s family from claim on his estate as punishment for Mary’s wrongdoing. I am far from satisfied that Patrick would adopt such a retributive approach. He would be aware of the long-standing history connecting him, Mary and Leone. He would be aware of the financial and practical circumstances, built up over many years, which led to him enjoying the benefit of a substantial estate which was intertwined with Mary’s. He would understand Mary’s desire to prefer Leone, particularly given the assumption that he is receiving competent legal advice about the operation of his 2000 will and the way in which his estate will be distributed to all of Mary’s children under that will. He would also know that neither Josephine nor Joan had in any way contributed to his estate. True it is that, apart from Leone, none of Mary’s other children contributed to Patrick’s estate. The result contended for by Josephine, however, would see Mary’s side of the family completely excluded from having an interest in Patrick’s estate. Given the extensive personal and financial history by which Patrick’s estate and Mary’s estate were so closely connected over so many years, I cannot accept that Patrick’s response as at today’s date, and knowing of the matters to which I have referred above, would be to exclude Mary’s family from receiving the bulk of his estate.34 [emphasis added]

A further similar example is Re Will of Jane,35 which involved an unsuccessful application by one of the sons of ‘Jane’ to make a statutory will that would have excluded his sister and brother from benefit, on grounds that included their past conduct towards their mother. The essence of the application was that, in the plaintiff’s submission, Jane would be reasonably likely to make a will in this form because of what he described as ‘reprehensible conduct’ of his brother and sister, and the fact that they each had no need that was not of their own making. Hallen AsJ examined the evidence relating to the plaintiff’s assertion that the conduct of his brother (the second defendant) in bringing or defending various separate Supreme Court [page 65]

proceedings concerning Jane was ‘reprehensible’. His Honour reached the conclusion that there was nothing in that conduct that would lead a person with testamentary capacity to alter her will in the way proposed by the plaintiff, nor had there been any undue influence exerted by the second defendant over Jane that had prevented her from changing her 1962 will. Furthermore, his Honour was not persuaded that the plaintiff’s various criticisms of the conduct of his brother and sister in relation to Jane’s care and proceedings before the Guardianship Tribunal were warranted or justified. His Honour found (among other things) that there was ‘no objectively provable evidence’ to enable a finding that there had been any disentitling conduct on the part of the second or third defendants, that would lead to the conclusion that Jane would wish to reduce her, or his, equal share of her estate.

Improvement in poor relationship 3.7 In circumstances where there has been an improvement in the relationship between the proposed testator and a family member or other person, it may be possible to argue that the improvement justifies that person no longer being excluded from benefit under a previous will, or justifies an increase in the provision made for them under a previous will. This was the case in Hill v Hill,36 where a previously poor relationship between mother and daughter had improved. Under her 1996 will, the proposed testator had left her estate equally between the Cat Protection Society of Victoria and her daughter. There was evidence that the proposed testator’s attitude towards her daughter had changed after she made that will, and that the proposed testator realised that the strains in her relationship with her daughter may have been due to the daughter’s mental illness. The daughter’s financial need at the time of the hearing was also found to be relevant. A statutory will was made leaving the entire estate to the daughter, at the expense of the Cat Protection Society. It will often not be straightforward to establish, to a degree of certainty sufficient to meet the core test, that there has been a change in a proposed testator’s testamentary wishes by reason of an improvement in a relationship. The evidence required to support this is considered at 4.16.

Including, or increasing, benefits to worthy recipients 3.8 A further category of cases is those where it is asserted that the scheme of distribution, whether under an existing will or on intestacy, should change, to better reflect the nature and quality of relationships between the proposed testator and their beneficiaries. Many different sets of facts could potentially support such an application, or support such a change being made as part of the overall consideration of a statutory will application that is being made for other reasons. One scenario is where a carer will not be eligible on the proposed testator’s death to make a family provision claim against their estate, because the carer is not an eligible claimant under the family provision law of the particular jurisdiction. These issues require sensitive exploration. There may be a reluctance on the part of a carer to seek benefit under a statutory will, as in Re Charles,37 especially during the proposed testator’s lifetime. Another possible scenario is where an application is made by those who would otherwise be entitled to receive the estate of the proposed testator, who instead propose [page 66] that a person or charity more deserving should be the recipient. Re Joachim38 is an example of this. In that case, a statutory will was made that provided for the proposed testator’s modest estate to be divided between two not-for-profit organisations from which she had benefited during her life: the Endeavour Foundation and Riding for the Disabled Inc (Qld). A further scenario that is suggested by the New Zealand case Re Manzoni (a protected person); Kirwan v Public Trustee39 (although in relation to a different statutory regime, under the Protection of Personal and Property Rights Act 1988 (NZ) s 55) is where it may be appropriate for part of the proposed testator’s estate to be gifted to the branch of the family from which property was inherited. It may be possible in some cases for a compromise to be reached in the course of a statutory will application, so that an agreed scheme of distribution

is reflected in a revised draft of the proposed will, which is put forward to the court for consideration. An example of this is Monger v Taylor.40 Compromises are considered at 4.27 and 5.14. Some caution should be exercised in this regard because the court must be satisfied that the threshold requirements, and in particular the core test, are satisfied. The parties do not have free rein to rewrite the proposed testator’s will. In Saunders v Pedemont,41 the applicant was unsuccessful in seeking a statutory will. The essence of the applicant’s argument was that if the proposed testator had capacity, he would want to benefit the persons who had been his closest family for decades, and who had provided benefits to him. This was said to be based on both the closeness of the actual relationships and statements said to have been made by the proposed testator. In relation to the applicant’s argument that from the close family relationship there could be inferred a likely intention to benefit those family members, Habersberger J was not satisfied that the core test was satisfied because there was insufficient evidence that the proposed testator would want to change his will to prevent his granddaughter from inheriting the whole of his estate. In the context of a large estate, it may be possible to persuade the court that the proposed testator would have been reasonably likely to benefit a greater range of beneficiaries than if the estate had been more limited. In Burns v The Estate of Troy Mitchell Burns, a Protected Person,42 leave was granted to the mother of a proposed testator to apply for a statutory will that would divide the proposed testator’s substantial estate of $7.9 million as to one half to the adult daughter of the proposed testator, and as to one quarter each to the applicant and the brother of the proposed testator.

Other changes in circumstances 3.9 A change in circumstances, whether the circumstances of the proposed testator or some external circumstances (for example, taxation law, or the financial circumstances of a family member) might justify a statutory will application, but only if the change impacts on the proposed testator’s likely testamentary intentions, as ascertained by the court. As can be seen from the categories of cases already considered in this chapter, the common thread is the central importance of the core test and whether, on the available evidence, that test can be satisfied. It should not be assumed that a person’s

testamentary wishes would necessarily have changed as a result of a change in circumstances. This is considered at 4.16. [page 67] An illustration of this is Re Fletcher; Ex parte Papaleo.43 This was an unsuccessful application. The proposed testator had an existing will and codicil, which gifted her estate equally between her two children. The applicant, a solicitor who had acted as her administrator for a number of years, considered that the equality between the two children that appeared to have been the objective of the will and codicil had been disturbed because the son had received several loans from his parents. The son then became bankrupt, and was released from his provable debts, including the debt to his parents. The effect of this was that the son had received additional benefits totalling approximately $63,555 during his mother’s life, and there was no mechanism in her existing will to have this taken into account in the division of her estate. Byrne J found that there was insufficient indication of what the likely intentions of the proposed testator would have been if she had capacity. A number of years had passed since she made her codicil, and it was not clear whether she would have insisted that her son’s share in her estate be diminished in order to restore the equality which she had sought to achieve. His Honour concluded: … It is a serious step to make or to modify a will. It is not for me to impose upon [the proposed testator] an intention which I think she might or ought to have. The section requires that I make a finding as to her supposed likely intentions. The application requires me to make a finding that her likely intentions are those set out in the proposed statutory will. This I am unable to do.44

A further example is Re Manley.45 In that case, there had been various changes in circumstances since the proposed testator made her existing 2004 will. She had suffered a stroke, then her daughter died in 2006. Her husband died in 2012. The statutory will application was made by two grandchildren of the proposed testator, who submitted that the court should be satisfied that the core test was met for a number of reasons, including that: the factors that motivated her to make her 2004 will in the way that she did were now absent; the primary beneficiary under her 2004, namely her husband, was now deceased; and she would have revised her thinking as to the discord between

herself and her daughter through the passage of the years, and following the death of the daughter (as well as further reasons).46 Stanley J found that there was no evidence of the wishes of Marion beyond the terms of her last will. His Honour was not satisfied that she would have made a new will in the terms of the proposed will: The death of her husband would not inevitably have led her to make a new will. The death of her husband was merely the realisation of a contingency for which she had made provision in her last will. It does not follow that she would have wished to make any different testamentary provision than she had in 2004. The difficulty for the plaintiffs and the court is that there is no evidence relating to Mrs Manley’s wishes as to what testamentary provision she wanted to make, other than her last will, given that she lost testamentary capacity, and the capacity to communicate, only three months after making her last will. The plaintiffs’ application is predicated upon the proposition that, in changed circumstances, Mrs Manley would have made a different testamentary disposition than occurred in 2004. They submit, that like their grandfather, Mrs Manley would have recognised that the terms of her 2004 will reflected a misjudgement or misunderstanding on her part concerning both her daughter and her son-in-law. Once she had recognised this error, she would have rectified the position by making a new will in the terms of her husband’s last will, leaving the vast bulk of her estate to her grandchildren, save and except for a small legacy in favour of the RAH Research Fund. In my view, this proposition is speculative.

[page 68] I am not satisfied that I can conclude, on the balance of probabilities, that if Mrs Manley now enjoyed testamentary capacity, she would make the same testamentary disposition as her late husband did in 2007. The evidence does not allow me to conclude that in 2007, let alone in 2013, Mrs Manley would have made the same testamentary disposition as he did, had Mrs Manley enjoyed testamentary capacity at that time. ... I cannot know whether, had she had testamentary capacity in 2007, Mrs Manley would have made a will in the same terms as her husband did. It may be that she would have. It may be that Mrs Manley would have made a will in 2007 which was in the same terms as the will made by Mr Manley at that time. It may be that she would have made a will in those terms now if she had testamentary capacity. Equally, she may not have changed the terms of the 2004 will at all. Her attitude towards her daughter might have changed. But it may not have. In any event, her daughter has been dead for seven years. Her attitude towards her son-in-law may have changed. But it may not have. …47 [emphasis added]

His Honour noted the serious nature of the statutory will-making power, in determining that the core test was not met, making observations very similar to those of Bryne J in Re Fletcher; Ex parte Papaleo: It is a serious step to make a will. It is not for me to impose upon Mrs Manley an intention

which I think she might or ought to have. Section 7(3)(b) requires that I make a finding as to her supposed likely intentions. The application requires me to make a finding that her likely intentions are those set out in the proposed statutory will. I am unable to do so. I cannot be satisfied that the proposed will more reflects the likely intentions of Mrs Manley than any number of other possible wills.48

A further issue to consider is that it is conceivable that cases may arise in the future where there has been a significant change in circumstances, but the proposed testator has expressed clear wishes, prior to losing testamentary capacity, regarding the possibility of a statutory will application being made. The proposed testator may have expressed the wish that in the event of a loss of capacity, they do not wish a statutory will to be made, even if there has been a significant change in circumstances in the period since the making of the existing will. If such evidence is before the court, possibly in the form of a clause that was included in the will, or a statutory declaration or letter of wishes that was made at the time of the will and was retained with it by the lawyer who prepared it, it would appear that this should weigh very heavily in the balance upon the court’s consideration of the core test. The issues posed by the risk of a gift lapsing or property passing to the Crown as bona vacantia by reason of a change of circumstances are considered at 3.11 and 3.12.

Resolving Problems With an Existing Will or Intestacy 3.10 A statutory will may be sought to regularise the probate affairs of the proposed testator, where the position on death would otherwise be undesirable because it is anticipated there will be: (1) (2) (3) (4)

an unintended intestacy; failure of one or more gifts; estate litigation; or other circumstances that are likely to involve expense, complexity and delay in the administration of the estate. [page 69]

Lapsed gift 3.11 A gift made by will to a beneficiary who predeceases the testator or fails to survive the testator for a period specified by law49 will lapse, unless a contrary intention is provided in the will, or the gift is saved by an express substitutional provision contained in the will or a statutory substitutional provision (‘anti-lapse’ provision).50 The consequence of lapse is that the gift does not take effect. The relevant property will pass instead as part of the residuary estate. If there is no effective gift of the residuary estate, the property will pass according to the rules of intestacy. If, on the particular facts, there are no persons entitled under the intestacy rules, the estate will pass to the Crown as bona vacantia. The possibility of a statutory will being made to avoid property passing as bona vacantia is considered at 3.12. While wills should always be drafted to provide for foreseeable contingencies, including the possibility that a beneficiary may predecease the testator, there are various reasons why they sometimes do not adequately address such contingencies, including: (1) the will being inexpertly prepared; (2) the possibility of the lapse event appearing unlikely, or even highly unlikely, when the will is prepared, and not being thought necessary to provide for; (3) the not uncommon, and understandable, reluctance of testators to provide for contingencies that they may not wish to contemplate and address, including their children dying before them; and (4) one or more default gifts provided in a will not being sufficient, by reason of unforeseen circumstances that have occurred after the will was made. A similar outcome (although not lapse) can occur if a person who would be entitled to receive a benefit on intestacy is not living at the date of the testator’s death: the estate passes to the other persons entitled under the intestacy rules, or if there are none, then to the Crown as bona vacantia. There are two distinct situations in which a statutory will application might be considered, in connection with lapse: first, where a gift has already lapsed; and second, where a gift has not yet lapsed, but there is a likelihood, or at least a real risk, that it may do so.

In both situations, the key issue to consider is whether the core test can be met. Boulton v Sanders51 indicates that an inference will not necessarily be drawn that the proposed testator would have intended to avoid a lapsed gift. In that case, Balmford J was not prepared to infer that the absence of a default gift in the most recent will of the proposed testator was accidental or unintended, and concluded: … it is entirely possible that, when making the 1997 will, [the proposed testator] had formed the view that if Ruth [the default beneficiary under that will] was not to be there to take the residue of her estate, she preferred to leave the distribution of the residue to the law rather than continuing to select among relatives, friends and charities.52

Where there is clear evidence that the proposed testator did intend to avoid the lapse of a gift, the court may more readily conclude that the core test is met. For [page 70] example, in Estate of S,53 a statutory will was approved by Ward J, in circumstances where a will made many years before was found to be out of date due to the changed family circumstances of the proposed testator, ‘S’, in particular the fact that her son had died in 1994. A gift made by S in the previous will of a share of her residuary estate to her son had therefore lapsed. There was evidence, including from instructions that S gave in 1999 for a new will to be prepared, but which was not signed, that S wished the widow of her deceased son to receive a one-third part of her estate, rather than the whole estate passing to her daughter. A statutory will was made that provided for that. A further example is Re Kann,54 where an urgent unopposed application was made to avoid the consequences of a lapsed gift. The proposed testator had an existing will which he had made without legal advice, using a preprinted ‘post office’ will form. As a consequence of his wife predeceasing him, his estate would pass according to the rules of intestacy. There was evidence from various family members and other persons that such an outcome would not reflect his testamentary wishes, including his charitable intentions which were reflected in an earlier will. A statutory will was made accordingly.

Where a charitable gift appears to have lapsed due to the charitable beneficiary either no longer existing or no longer operating, care needs to be taken to ensure that this is in fact the case. This issue arose in Plowright v Burge.55 The proposed testator’s existing will contained a default gift to the Geelong Hospice Care Association. That Association had ceased to operate at the date of the hearing. Because the proposed will sought to exclude the primary beneficiary (a former partner), whether or not the default gift had lapsed, or could lapse, was an important issue in the proceeding. The proposed will included a provision for the executor to apply that gift cy-près to a charity with similar objects and purposes if the named beneficiary had not resumed operations at the date of the proposed testator’s death. The statutory will was made in the terms proposed. Hansen J, after considering the proposed testator’s likely intentions in respect of that gift, was satisfied that ‘thus framed, the proposed will makes provision for the object of her desired residual benefaction yet also provides flexibility in the event that that gift cannot take effect’.56 If an important gift has lapsed, or there is a real risk that it will lapse at some time in the future, a possible alternative to applying for a statutory will may be to consider whether a binding arrangement can be made between the residuary beneficiaries and the relevant person who has, or will be, ‘deprived’ of the benefit of the gift as a result of the lapse. It may in some cases be possible for an agreement to be reached that a payment is to be made by one or more of the residuary beneficiaries to that person, out of the property that they receive from the estate on the proposed testator’s death. Any such arrangement requires careful documentation, and consideration needs to be given to the effectiveness and enforceability of the arrangement.

Avoiding property passing as bona vacantia 3.12 There are various examples of statutory wills being made in circumstances where the proposed testator’s estate would otherwise vest in the Crown as bona vacantia because there are (or may be) no persons living that would be entitled to take under the intestacy rules. In these cases, as in all statutory will cases, the core test must be satisfied. It should not, therefore, be assumed that the court will be satisfied

[page 71] that a statutory will should be made merely because there is some person who has a connection with the proposed testator and it would be ‘fair’ for them to receive the relevant property rather than it passing as bona vacantia. Nor is it sufficient merely to show that the proposed testator’s existing will contains a gift to a person who is not now living, and: (1) the property the subject of that gift would, if that person was living and were to have survived the testator, have been shared with the applicant; or (2) the applicant is the beneficiary of the estate of that person. In Re Estate of Crawley,57 the proposed testator’s existing will, made more than 20 years previously, contained a gift of her residuary estate to her sisters, but no default gift. Both sisters had predeceased her and, given that there were no next of kin who would take, it was clear that the residuary estate would pass as bona vacantia. Under the previous will, there was a gift of $500 to the husband of one of the sisters, and a gift of $500 to a charity. The husband successfully applied for a statutory will to be made that provided for a gift to be made to the charity named in the existing will, and for the residue of the estate to pass to him. The various factors considered by the court in this case (see 8.5) provide a useful indication of how an argument may be structured in support of a statutory will in these circumstances. It was also clear in Re DH; Application by JE and SM58 that the proposed testator’s estate would pass as bona vacantia. He had no will and had never been married or fathered any children. Despite inquiries, no living relatives who might take on intestacy had been identified. A statutory will was made under which his estate would pass to ‘JE’, a lady with whom he had commenced living a year or so before he suffered a heart attack that resulted in permanent brain damage. A default gift was included, in favour of JE’s children and remoter issue. In Re Fenwick,59 it was not certain that property would pass as bona vacantia, but the court considered evidence of the possibility of that outcome, based on the factual background. The existing will of the proposed testator, who was 60 years of age, provided for his entire estate to pass:

(1) to his brother, John, or if John did not survive him, then (2) to the proposed testator’s children (of which there were none and it was virtually impossible that there would be any), or in default then (3) to such of the proposed testator’s cousins, Rae and Joan, as survived him. John, Rae and Joan were each older than the proposed testator, and all were said to have life-threatening medical conditions that made it possible that he would outlive all of them, with the result that his estate would pass on intestacy to his only surviving relative, an uncle who was 84 years of age and who might also predecease the proposed testator. John applied for a statutory codicil to be made, to cover the possibility that the estate may pass as bona vacantia. The uncle was served with notice of the proceeding but did not appear. A statutory codicil was made that provided that if John, Rae and Joan died before the proposed testator, the estate would pass to the children of Rae and Joan. [page 72] Similarly, in Griffin v Boardman,60 the court was prepared to take account of what was found to be the probability of an intestacy resulting in the estate vesting in the Crown as bona vacantia: … It is theoretically possible that Agnes may be survived by a relative of the fourth degree (a brother or sister of one or other of her parents) but given Agnes’ age, that seems quite unlikely. It is also possible that there may be some issue of the relatives of the fourth degree. I made a direction that it was not necessary for Ms Millard to make actual investigations to ascertain the possible existence of such issue. Any such investigation was likely to be expensive with the expense to be borne ultimately by Agnes’ estate. There is no evidence that such issue do exist, and, even if they do, there is no evidence at all to indicate that it is likely Agnes would wish to make provision for them in her will or that they would have any moral claim on her bounty. … I consider that it is appropriate to proceed on the basis that in the event that the court does not approve the making of a statutory will, it is probable that the intestate estate of Agnes would vest in the Crown …61

A statutory will was made, on application by a stepdaughter of the proposed testator, that provided for modest cash gifts to two charities and a friend of the proposed testator, a gift of her collection of books and literature, and for the residuary estate to pass as to 80 per cent to the applicant and her husband and as to 20 per cent to the applicant’s sister.

Adeemed gift 3.13 An adeemed gift in a will is one where the subject matter of a specific gift is no longer owned by the testator at the date of their death, or has ceased to exist in the form described in the will. The consequence of ademption at common law is that the gift to the named beneficiary cannot take effect, as it no longer forms part of the estate. If the will does not provide for a substitute gift to the beneficiary in the place of the gift that has adeemed, the beneficiary will receive no gift at all. A common scenario in which ademption occurs is where the will contains a specific gift of the testator’s house to a named beneficiary, with no substitute gift. The house is sold during the testator’s lifetime, in circumstances where either: (1) the testator does not update his or her will to include a replacement gift; or (2) the sale is by an administrator, or by an attorney acting under an enduring power of attorney. The administrator/attorney may or may not be aware that the property is the subject of a gift under the will, or even if they are aware, it may be in the best interests of the proposed testator that the property be sold. The issue of ademption was noted by Palmer J in Re Fenwick,62 referring to the facts of the English case Re D(J) :63 The application in In re D(J) was for the authorisation of a statutory will. At the time of the application, the patient was eighty-two years of age. She had five children, all still living. Twenty years earlier, while still of testamentary capacity, she had made a will leaving her house to one of her daughters, ‘A’, and the residue of her estate to all five children equally. ‘A’ had taken the major responsibility for looking after the patient. Some years after the will was executed, the patient sold the house, so that the specific devise to ‘A’ was adeemed. ‘A’ continued to assume the major role in caring for the patient, especially after she developed dementia and, accordingly, lost testamentary capacity.64

[page 73] If the facts that give rise to an ademption are discovered prior to the testator’s death, there are some steps that can be taken to rectify the position. Some Australian jurisdictions have statutory schemes65 that in certain

circumstances mitigate the effect of an ademption where assets are disposed of by the actions of an attorney or administrator, or provide for compensation to be awarded.66 However, rather than relying on those statutory schemes, a preferable alternative, depending on the facts of the particular case and the evidence that can be gathered as to the testator’s testamentary intentions, may be to make an application for a statutory will, so that the position can be resolved with certainty prior to the testator’s death.

Concern that a previous will was made when testamentary capacity lacking 3.14 In a number of cases, a statutory will has been made to resolve concerns that a will that has been signed may not be valid by reason of the proposed testator’s lack of testamentary capacity. This approach avoids the need for solemn form proceedings. In Re Winstanley,67 the application was prompted by the applicants’ concern that a will that had been made relatively recently by the proposed testator with the Public Trustee may be susceptible to challenge on the basis of lack of testamentary capacity. In finding that the proposed testator did lack testamentary capacity when the purported will was signed, and approving a statutory will, Daubney J had regard to certain testamentary wishes that the proposed testator had expressed in the ineffective will. An order was made in Re Levy Estate — Application of Samuels68 revoking a will made by an elderly testator, under which the beneficiary was a non-family member who had only known the testator for three years as her tenant. There was clear evidence that the proposed testator lacked testamentary capacity at the time the purported will was made. In Bielby v Denny,69 the proposed testator was 103 years of age at the time of the application. A will had been prepared two years earlier by a solicitor who was aware that the proposed testator had some capacity issues, but considered it was his duty to assist him to make a will. The matters taken into account by the solicitor in preparing the will were before the court, and there was no criticism of his actions. Mullins J was satisfied that it was appropriate, effectively, to sanction a compromise that had been reached between the parties, which was reflected in a deed of settlement. Orders were made that the will be declared invalid and that a statutory will be authorised.

In Re Grace Geraldine Brown,70 a will was prepared for the proposed testator by a solicitor who had been appointed as her administrator by the Guardianship Board of South Australia. The Board had instructed him to take the steps necessary to have a new will made for her. On attending to take instructions, he formed the view that, while she was able to express some testamentary wishes, she had no real understanding of the extent and value of her assets. A will was prepared and signed that reflected the [page 74] instructions that were taken from her. A statutory will was approved in the terms of the will that she had signed. A statutory will was made in Re Palmer71 for a proposed testator who was 45 years of age at the time of the hearing and who was intellectually disabled from birth. The terms of the statutory will reflected those of a ‘home made’ will prepared by the proposed testator’s mother which he had signed. In Tasmania, care must be taken regarding the limited jurisdiction of the Guardianship and Administration Board (see 2.2). If there is any existing will, or any existing document that may be a will, then the Board does not have jurisdiction and any application for a statutory will must instead be made to the Supreme Court. This issue arose in EKI (Statutory Will).72

Previous will missing 3.15 A successful application was made in McKay v McKay73 for a statutory will in the terms of a ‘will kit’ will that the proposed testator was said to have made but which could not be located. Various family members, including the proposed testator’s husband (the applicant for the statutory will) outlined in affidavit evidence the discussions that they had had with her concerning her testamentary intentions before she suffered her injuries. Ann Lyons J was satisfied, in considering the core test, that a division of the proposed testator’s estate in accordance with the intestacy provisions would be inconsistent with her previously expressed intentions, and said: … when considering whether the proposed will is or may be one which Mrs McKay would make if she were to have testamentary capacity I am necessarily influenced by Mrs McKay’s

clearly expressed previous wishes and indeed by the evidence that the missing ‘will kit’ will clearly set that out. In my view each of the members of Mrs McKay’s immediate family concur as to Mrs McKay’s testamentary intentions before she suffered personal injuries. The proposed will appears, on the individual evidence of each family member, to be a will that Mrs McKay would make if she were to have testamentary capacity at the date of the Orders. There is nothing to suggest that despite the terrible injuries Mrs McKay has suffered circumstances have significantly changed to warrant a diversion from the wishes Mrs McKay expressed when most recently of full cognitive capacity.74

A will was therefore authorised to be made in those terms. If there exists a copy of the missing will, consideration might be given to making an application for that copy to be admitted to probate,75 rather than applying for a statutory will. Even where the will is missing and there is no copy, it may be possible to prove a reconstructed copy of the will. However, these options can be time consuming and costly, and in some cases there may not be sufficient evidence to prove the will. Applying for a statutory will serves to regularise the person’s testamentary affairs and provide some certainty for the executor and beneficiaries. [page 75]

Previous will defective 3.16 In State Trustees Limited v Do and Nguyen76 the proposed testator had made eight wills since 1989. Bell J stated that, of those, the earlier ones were of ‘doubtful validity’ and the later ones were of ‘undoubted invalidity’. The most recent of those wills was based on a false legal assumption which would defeat its main expressed intention. Bell J found that it was possible and appropriate to save the proposed testator’s estate from full or partial intestacy, and that the court should do so by authorising the making of a statutory will.

Avoiding potential construction and rectification applications 3.17 Where it is found that an existing will contains a clerical error or other error that might require rectification, or where there is an ambiguity about the meaning or effect of part of an existing will, consideration could be given to making a statutory will application to resolve the issue, rather than leaving the issue to be resolved after the death of the testator, most likely by way of

an application for rectification or construction of the will. The potential advantages of a statutory will application in these circumstances include: (1) The supporting evidence may be more readily available at the current time. After death, it may be more difficult to trace the relevant witnesses and documents. (2) On a statutory will application, the court is not constrained by the technical rules that apply, as safeguards, to rectification or construction applications, nor bound by the rules of evidence in the usual way (see 2.19 and 4.13). (3) There may be more prospect of achieving a compromise between affected parties if the matter is tackled promptly. These potential advantages must be weighed against the costs involved in making a statutory will application, which will depend to a large extent on whether it is made by consent or may be opposed. While there have not been any published decisions regarding the authorisation of a statutory will for this purpose, this does appear to be a legitimate basis for the making of an application, given that the overall purpose of the statutory wills regime is to facilitate the court doing what the proposed testator would him or herself have been likely to do, if they were not lacking testamentary capacity. Where the error can be seen to have been the fault of a professional who prepared the will, it may be possible to seek to recover the costs of the application from that person, or their insurer.

Avoiding other estate litigation — family provision claims 3.18 A further category of estate litigation that should be taken into account is family provision claims. Where it is expected that one or more family provision claims may be made against the estate, such that the assets of the estate are likely to be depleted after the proposed testator’s death by any provision that is ordered or agreed, and by legal costs, it may be appropriate to consider making a statutory will application. However, this will only be viable if on the facts of the particular case, a possible solution can be identified that would be acceptable to the various family members and beneficiaries, and in respect of which the core test can be satisfied. The inter-

relationship between statutory wills and family provision is considered in Chapter 6. [page 76]

Estate Planning 3.19 ‘Estate planning’ is a broad term that refers to the arrangement of a person’s affairs in an organised manner, to achieve a desired outcome in the event of their incapacity or upon their death. In a narrow sense, ‘estate planning’ can be used to refer to arrangements that secure a tax or other financial benefit, or the protection of assets from future claims or risk. In this sense, there are several ways in which a statutory will might assist. These same considerations may be relevant in some cases where the statutory will application is made for reasons other than estate planning, but where there are estate planning aspects that should be taken into account in respect of a particular gift that is proposed to be made under the statutory will.

Asset protection 3.20 The term ‘asset protection’ in an estate planning context refers to the structuring of property arrangements in a manner that provides a degree of protection from two categories of risk. First, the beneficiary may be at risk of assets being vulnerable to third party claims, if they form part of their personal estate, including claims arising out of: (1) (2) (3) (4)

current or potential family law property proceedings; the conduct of a business or profession; bankruptcy; or claims against the beneficiary’s estate, post-death.

Second, the beneficiary may be at risk of dealing with their assets in an imprudent manner, by reason of: (1) a disability that impacts on their ability to manage their property in an effective manner; (2) personal problems such as a gambling, drug or alcohol addiction; or

(3) vulnerability to pressure from a spouse or other family member, in relation to the management of their property. It is clear from Re Matsis77 (see 8.26) that asset protection benefits are a factor that may properly be taken into account by the court in considering the terms of a proposed statutory will.78 In that case, Ann Lyons J had regard to the potential asset protection benefits of property being left on discretionary testamentary trusts, rather than gifted directly to the proposed testator’s grandsons: Two of the grandsons, namely Harry and Carl, are engaged in businesses and necessarily those businesses carry a degree of financial risk. There is however no current evidence of any creditor claims or any current exposure to liability, but I accept that there is a potential exposure to liability in relation to their business activities. I also accept that it would be advantageous, as a matter of estate planning, with the substantial legacies they stand to receive from Mr Matsis’ estate, that they be placed into testamentary trust rather than received as outright gifts.79

Her Honour was satisfied that the ‘core test’ was met, on the following basis: In my view it is significant that the incorporation of testamentary trusts into the will is entirely consistent with Mr Matsis’ entrepreneurial approach, which is set out in

[page 77] the affidavit material. That approach was strongly instilled into his grandsons and he had a very strong emphasis on keeping the wealth within the family. I am also satisfied on the basis of Mr Bowles’ evidence that given the protection that a testamentary trust can give to a person who is self-employed, he would have been strongly supportive of the concept and would have wished to execute a codicil to introduce into his 2001 will basic testamentary trusts of the kind that are contained in the draft codicil.80 [emphasis added]

It is clear from this that, in ascertaining Mr Matsis’ testamentary intentions for the purposes of applying the core test, some weight was placed on views that he had actually expressed concerning keeping wealth within the family. It is important to note, however, that there are limits to the extent to which the courts will go in order to protect inheritances from the creditors of a beneficiary. In Hausfeld v Hausfeld,81 the court refused to authorise a statutory will that would have the effect of defeating the claims of potential creditors of the proposed testator’s son. The son was involved in litigation in the Federal Court as a respondent, and there was a prospect that he could be found liable, giving rise to a substantial damages award that could result in

his bankruptcy. The proposed statutory will provided for the share of the estate that the son would receive under the proposed testator’s existing will to pass instead to the son’s wife. While the core test was found to be satisfied, the court was not persuaded that it was appropriate to make the order in those circumstances. White J said: In my view it is not appropriate, nor might it become appropriate, for the court to authorise an alteration to Colin Hausfeld’s will in order to defeat his son’s creditors. Whilst I accept that Colin Hausfeld, if he were capable, could leave the share of his estate that would otherwise pass to his son to his son’s wife in the expectation that she would provide for his son out of that share if his son were made bankrupt, I do not think that the court should condone such a course. The policy of the law is that people should pay their debts so far as they are able. It is not that they be sheltered in the way proposed.82

The reasoning in this case can be questioned, on the basis that a testator with capacity is able validly to gift assets away from an at-risk beneficiary (and in fact this is an accepted and sensible estate planning strategy); therefore the same outcome ought to be able to be achieved on behalf of a testator who lacks capacity. A testator has no legal or moral obligation to the creditors or potential creditors of his or her beneficiaries, and on that basis a decision to protect a gift from leaving the family and passing to third parties can hardly be said to be something that society should not ‘condone’. This was recognised by Henry J in Doughan v Straguszi: There is no doubt that, if the testatrix had capacity, even if it was her intention to remove the prospect of the son inheriting property so it would not go to his creditors, she would have every right to make a will achieving that end. The question here is whether it is appropriate for the court to make the orders sought. …83

His Honour was satisfied that the proposed will should not be categorised as calculated to defeat creditors. The ‘actuating purpose’ was found to be twofold: achieving a more effective testamentary disposition to preserve the family farm for future generations, and avoiding drafting errors and complications associated with the existing will. The possibility of a beneficiary’s share being protected from bankruptcy was also touched on in Saunders v Pedemont;84 see 8.51. However, the applicant in that case was unsuccessful; therefore the direct gift stood. [page 78]

One of the earliest statutory will cases in South Australia, heard in April 2004, Re Alexander Phillips Boord,85 involved a statutory will that contained discretionary trusts for asset protection purposes. The proposed testator’s daughter was engaged in a farming partnership. The terms of the will provided for the residuary estate to be divided into two funds, to be held on basic discretionary trusts by the testator’s daughter as trustee, for the benefit of herself and her two children.

Tax planning 3.21 Re Matsis; Charalambous v Charalambous86 is also authority for the proposition that a statutory will (or codicil) may be authorised for tax planning purposes. The essence of the codicil that was authorised to be made in that case was that the proposed testator’s residuary estate would be held on three testamentary discretionary trusts for the benefit of the grandsons of the proposed testator. The class of beneficiaries of each trust was widely defined to include various members of their respective families and related companies and trusts. Ann Lyons J accepted that there were sound tax planning reasons for that. The terms of those trusts were based on a precedent provided by a legal firm that specialised in the applicable tax, trust law, superannuation and other estate planning considerations. Flexible powers for the executor and trustees were also included. The use of statutory wills for tax planning purposes is not novel.87 In the 1985 Report of the Chief Justice’s Law Reform Committee in Victoria (see 1.13), it was noted that in the United Kingdom, one of the types of case that had attracted the statutory wills jurisdiction was: ‘Applications to substitute as beneficiaries issue of existing beneficiaries, whether under will or intestacy. These applications were tax driven.’88

Social security and aged care means test planning 3.22 In a similar vein to the estate planning opportunities that are apparent from Re Matsis, there may be good reason in some cases to undertake planning, through a statutory will, that is aimed at structuring any provision that a beneficiary receives by will in such a way that the benefit that they receive is maximised, taking into account social security and aged care means testing.

Where a social security recipient disclaims or transfers entitlements that they receive from an estate, that can have disadvantageous consequences as regards the application of the means test in their circumstances. While rollover relief from capital gains tax applies to certain arrangements between beneficiaries and eligible family provision applicants, no similar provision exists in relation to social security and aged care means testing. This makes planning steps undertaken before death potentially the only viable option. While no published statutory will cases have involved questions of the social security entitlements of the interested beneficiaries, there are examples in the area of family provision law where the courts have found these entitlements to be a legitimate [page 79] consideration when structuring provision. In Oswell v Jones,89 Chesterman J was required to determine whether family provision for the applicant ‘… should be structured so that she continues to enjoy the benefits of pension payments and ancillary benefits, or whether she should be given a lump sum, the whole or a substantial part of the estate, with the consequence that she will lose those benefits’.90 His Honour determined that the authorities in relation to the relevance of social security entitlements should be taken into account when assessing provision for an applicant, and said that ‘… the availability of … pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is observed in whole or in part.’91 The provision made for the applicant was structured in that case in a manner that enabled her to retain her social security entitlements, by the use of a Special Disability Trust.

Protection of a vulnerable beneficiary 3.23 The structuring of a testamentary gift, or prospective entitlement on intestacy, so that the relevant property is held on trust for a vulnerable beneficiary instead of passing to them outright, may be an important and legitimate estate planning reason to seek a statutory will. A beneficiary may

be ‘vulnerable’ in this sense for a number of reasons, including because he or she is a minor, or has a disability that impacts on their ability to manage their own financial affairs, or has personal problems that put their assets and financial security at risk. Careful consideration should nevertheless be given to whether other protective measures that may already be in place are sufficient. For example, if the beneficiary has an administrator or attorney who is able to hold and administer property for their benefit, then there may be little to be gained from altering that arrangement by creating a trust. A related consideration is what will happen to the provision made for the beneficiary on their death, and in particular whether that should be dealt with under their own will or intestacy, or provided for in advance by the terms of the proposed statutory will. An example of protective planning is Re Rak.92 The proposed testator, Anthony Rak, had a substantial estate of approximately $4.12 million, from a compensation payment. He had never had testamentary capacity. His estate would therefore pass on intestacy. Anthony’s brother, Damien, had a form of autism, and there was evidence that he lacked mental capacity to manage his own affairs. Anthony’s parents were concerned that if they died before Anthony, the substantial part of his estate that would pass to Damien would not be managed effectively. In the proposed statutory will for Anthony, provision was made that Damien’s share of Anthony’s estate would be placed in a testamentary trust for Damien’s benefit. Gray J was satisfied that in light of the substantial value of Anthony’s estate, it was likely that Anthony would wish to benefit those persons close to him who had provided care and comfort to him, and that it was likely that he would seek to provide funds to be held in a protective trust for the benefit of Damien. [page 80] A further example is CMPA (Statutory Will).93 In that case, indirect provision was made for the benefit of the mother of the proposed testator, who suffered from schizophrenia and lived in supported accommodation, by way of a gift to the provider of her supported accommodation as at the

proposed testator’s death. A similar approach was taken in Application of Wosif Elayoubi,94 where the father of the proposed testator suffered from schizophrenia, and had been estranged from the family for many years. The statutory will that was made provided for a gift of $1 million to the father, on trust for life, with remainder to the proposed testator’s mother thereafter. There have been several statutory will cases in which the proposed testator’s home was purchased with monies from a compensation award or settlement amount, and the proposed testator was living in that property together with their mother, who was their primary carer. Carers in these circumstances may have given up employment and other opportunities to care for the proposed testator, often over a long period, and may be financially dependent on the accommodation that the proposed testator effectively provides to them as part of the caring relationship. Regardless of the carer’s financial need, if the home owned by the proposed testator is the carer’s home and place of residence, it may be important for the carer to be provided with some security in respect of that accommodation, in the event of the proposed testator’s death. A statutory will was made for this purpose in Hoffman v Waters.95 Some further examples are Wickham v Smith96 and Sadler v Eggmolesse.97 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

[2009] NSWSC 680; see 8.3. At [41]–[45]. [2013] QSC 40; see 8.27. At page 1–15, line 50 to page 1–16, line 5. [2009] QSC 65; see 8.17. Unreported, Supreme Court of Queensland, No 7033 of 2009, Applegarth J, 27 August 2009; see 8.18. Unreported, Supreme Court of Queensland, No 11730 of 2011, Daubney J, 8 February 2012; see 8.25. At page 1–6, line 50 to page 1–7, line 10. [2010] NSWSC 1004; see 8.7. [2010] QSC 45; see 8.20. Unreported, Supreme Court of Queensland, No 8794 of 2010, de Jersey CJ, 23 September 2010; see 8.21. Unreported, Supreme Court of Queensland, No 384 of 2011, de Jersey CJ, 8 April 2011; see 8.23. [2010] NSWSC 915; see 8.6. (2004) 237 LSJS 23 [2004] SASC 369; see 8.32. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. [2005] VSC 490; see 8.49. (1870) LR 5 QB 549; see 4.8. [2009] SASC 345; see 8.37. [2005] VSC 490; see 8.49.

20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62.

At [200]. (2012) 7 ASTLR 584; [2012] SASC 236; see 8.38. At [57]. [2005] VSC 326; see 8.48. At [21]. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. [2010] NSWSC 357; see 8.4. [2005] TASGAB 1; see 8.40. [2004] SASC 142; see 8.31. At [24]. (2002) 4 VR 229; [2002] VSC 98; see 8.45. [2013] QSC 289; see 8.29. [2012] 1 Qd R 319; [2011] QSC 49; see 8.22. At [75]. At [80]–[82]. [2011] NSWSC 624; see 8.9. [2001] VSC 83; see 8.43. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. Unreported, Supreme Court of Queensland, No 12325 of 2008, Dutney J, 22 December 2008; see 8.16. [1995] 2 NZLR 498. [2000] VSC 304; see 8.42. [2012] VSC 574; see 8.51. [2013] NSWSC 1550; see 8.13. [2001] VSC 109; see 8.44. At [22]. [2013] SASC 98; see 8.39. See 8.39. At [74]–[80]. At [82]. For example, the 30-day period provided in the Succession Act 2006 (NSW) s 35 and the equivalent provision in the other Australian jurisdictions. For example, the Succession Act 2006 (NSW) s 41 and the equivalent provision in the other Australian jurisdictions. [2003] VSC 405; see 8.47. At [30]. [2012] NSWSC 1281; see 8.11. Unreported, Supreme Court of Queensland, No 5309 of 2013, Applegarth J, 13 June 2013; see 8.28. [2005] VSC 490; see 8.49. At [202]. [2010] NSWSC 618; see 8.5. [2011] ACTSC 69; see 8.1. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. [2009] SASC 315; see 8.36. At [28] and [29]. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC

530; see 8.2. 63. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 64. At [61]. 65. The statutory schemes that apply where there is an ademption by an attorney’s exercise of power are outlined in G E Dal Pont, Powers of Attorney, 2011, LexisNexis Butterworths at [9.39]. 66. The relevant factors to be considered by the court in determining whether to award compensation under the Powers of Attorney Act 1998 (Qld) s 107 were outlined by Martin J in Neuendorf v Public Trustee of Qld (as Executor of Estate of Dickfos) (dec’d) [2013] QSC 156. 67. Unreported, Supreme Court of Queensland, No 11203 of 2007, Daubney J, 18 January 2008; see 8.15. 68. [2010] NSWSC 1014; see 8.8. 69. Unreported, Supreme Court of Queensland, No 10819 of 2009, Mullins J, 30 November 2009; see 8.19. 70. [2009] SASC 345; see 8.37. 71. [2003] VSC 21; see 8.46. 72. [2010] TASGAB 12; see 8.41. 73. (2011) 4 ASTLR 429; [2011] QSC 230; see 8.24. 74. At [80]. 75. The matters that are required to be established in order to admit a copy of a will to probate in Queensland (and New South Wales) were recently confirmed, and contrasted with the more procedural approach that applies in South Australia, by de Jersey CJ in Re Will of Dianne Margaret Cardie [2013] QSC 265. 76. [2011] VSC 45; see 8.50. 77. Re Matsis; Charalambous v Charalambous [2012] QSC 349; see 8.26. 78. See also the commentary on this case in P Agardy, ‘Re Matsis’ (2013) Insolvency Law Bulletin March 2013, 159; and P Stern, ‘Will structuring by courts — not so simple!’ (2013) Insolvency Law Bulletin June 2013, 207. 79. At [8]. 80. At [28]. 81. [2012] NSWSC 989; see 8.10. 82. At [13]. 83. [2013] QSC 295; see 8.30. 84. [2012] VSC 574; see 8.51. 85. Unreported, Supreme Court of South Australia, No 70 of 2003, Mullighan J, 27 April 2004. The authors are grateful to Pam McEwin, Solicitor at Treloar & Treloar, and Don Aston, Solicitor at DM Aston & Co, for details of this case. 86. [2012] QSC 349; see 8.26. 87. See Re C (a patient) [1992] 1 FLR 51; [1991] 3 All ER 866 regarding the saving of inheritance tax; see 1.6. 88. Chief Justice’s Law Reform Committee (Vic), ‘Wills for Mentally Disordered Persons’ (1985) at p 83. 89. [2007] QSC 384. 90. At [46]. 91. At [50], citing with approval Bryson J in Whitmont v Lloyd, unreported, Supreme Court of New South Wales, 31 July 1995. 92. [2009] SASC 288; see 8.35. 93. [2005] TASGAB 1; see 8.40. 94. [2010] NSWSC 1004; see 8.7. 95. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. 96. Unreported, Supreme Court of Queensland, No 11730 of 2011, Daubney J, 8 February 2012; see

8.25. 97. [2013] QSC 40; see 8.27.

[page 81]

CHAPTER 4 Acting for the Applicant Overview Preparing the application Conducting the application

4.1

Identifying the Client and the Appropriate Applicant

4.2 4.3 4.4

Identifying Persons Who Should be Named and Served

4.5

Identifying the Orders Sought and Whether Advice Required in Other Jurisdictions Meeting the Threshold Requirements Lack of testamentary capacity The ‘core test’ Appropriate for an order to be made Appropriate applicant Representation of persons with legitimate interest Providing the Listed Information Evidence of lack of testamentary capacity Draft of the proposed will, codicil or instrument of revocation Evidence of the proposed testator’s wishes Evidence of the terms of any previous will

4.6 4.7 4.8 4.9 4.10 4.11 4.12 4.13 4.14 4.15 4.16 4.17

Evidence of persons who might be entitled to claim on intestacy Evidence of likelihood of potential family provision claims Evidence of circumstances of persons for whom the proposed testator might be expected to provide by will Evidence of gifts that might be expected to be made for charitable or other purposes Any other relevant facts

4.18 4.19 4.20

4.21

The Costs Position

4.22 4.23

Preparing the Originating Process

4.24

Meeting Procedural Requirements

4.25

Filing and Serving the Material

4.26

Consultation, Negotiation and Mediation

4.27

Preparing the Material for Court

4.28

Leave Application, Substantive Application and Directions Responding to Adjournment Requests

4.29 4.30

[page 82]

Revising the Draft Will, Codicil or Instrument of Revocation Oral Evidence and Cross-Examination

4.31 4.32

Maintaining the Proposed Testator’s Privacy

4.33

Submissions as to Costs

4.34

Arranging Execution of the Will, Codicil or Instrument of Revocation Does the Statutory Will Require Review and Update? Steps to be Taken Where Testator Regains or Acquires Capacity

4.35 4.36 4.37

Overview 4.1 In this chapter, consideration is given to the practical steps involved in acting for the applicant in a statutory will application.

Preparing the application 4.2 The steps involved in preparing an application for a statutory will can be summarised as follows: (1) Identify who your client is in the matter, and who is to act as applicant or applicants (see 4.4). (2) Identify which other persons should be named in the proceeding, and which persons should be served (see 4.5). (3) Identify the orders that are sought and how they should be framed, and whether advice may need to be obtained in other jurisdictions (see 4.6). (4) Consider whether the threshold requirements (see 2.8) can be met, and the evidence that will need to be adduced (see 4.7–4.12). (5) Assemble the listed information (see 2.14) (including the draft of the proposed will, codicil or instrument of revocation), and prepare the affidavits in support (see 4.13–4.22). (6) Consider orders that might be made as to costs (see 4.23). (7) Prepare the originating process (see 4.24).

Ensure that any applicable procedural requirements are understood and (8) can be met (see 4.25). (9) File and serve the material (see 4.26). (10) Consider whether there is scope for consultation, negotiation or mediation (see 4.27). (11) Prepare the material for court (see 4.28).

Conducting the application 4.3 On the hearing of the application, the applicant will need to be prepared to deal with the following matters, as applicable to the particular case: (1) whether the leave application (if applicable) and substantive application should be heard together, and whether any directions are required (see 4.29); (2) any adjournment request made by the respondent(s) or other persons (see 4.30); [page 83] (3) revision of the draft will codicil, or instrument of revocation, to take account of views expressed by the court (see 4.31); (4) whether oral evidence is to be adduced, and whether there is to be any cross-examination (see 4.32); (5) advancing an argument, where appropriate, to maintain the proposed testator’s privacy (see 4.33); and (6) making appropriate submissions as to costs (see 4.34). If the application is successful, the applicant will need to ensure that the will, codicil or instrument of revocation is executed in accordance with the statutory requirements, and that the retention requirements (except in Tasmania) are complied with.

Identifying the Client and the Appropriate

Applicant 4.4 In many cases, the impetus for the making of a statutory will application will come from a member of the proposed testator’s family. However, the class of potential applicants is wider than this (see 2.5). The application could be made by: (1) another person who has a close connection with the proposed testator, such as a friend or carer; (2) a person who fulfils a formal role in relation to the proposed testator, such as an administrator, guardian or attorney (under an enduring power of attorney); or (3) the proposed testator’s lawyer, accountant or financial adviser. There will often be a number of persons who could potentially act as applicant. Careful thought should be given to selecting an appropriate applicant or applicants (see 4.11). The person who first makes contact with a lawyer to raise the possibility of an application may not necessarily be the person who is best placed to act as applicant. For example, that person may seek to receive a benefit under the proposed will, where there is another family member who would receive no benefit but is concerned to see that a statutory will is made for the proposed testator and could more appropriately act as applicant. Consideration also needs to be given to whether the proposed applicant is in possession of the relevant information concerning the proposed testator’s current and past wills, family members, relationships and estate, or is in a position to obtain that information. The lawyer should generally act for and be instructed by the applicant(s) alone, and not by a wider group of family members. Relevant considerations in this regard are: (1) the potential for a conflict of interest, if the instructions emanate from several persons; and (2) which person is prepared to pay the costs of the application, in the event that a costs order is not made in favour of the applicant, or an adverse costs order is made. Care should also be taken to make and record referrals of persons for independent legal advice, where appropriate.

Identifying Persons Who Should be Named and Served 4.5 In most of the Australian jurisdictions, there is no requirement that the proposed testator be named as a party to the proceeding.1 However, in South Australia and [page 84] Western Australia, the applicable procedural rules require that the proposed testator be named as a defendant.2 In some of the Australian jurisdictions, the legislation provides for the court to order separate representation for the proposed testator, and a right for the proposed testator to appear and be heard in the proceeding. This is considered at 5.2–5.5. Apart from this, the published decisions do not indicate any consistent approach to the issue of whether a proposed testator should be named as a party. Similarly, there is no requirement that the proposed testator must be served with the application documents. However, it is not uncommon to do so. Where the proposed testator has an administrator or guardian, those persons should be served so that they can, if they choose to do so, enter an appearance and express a view in respect of the proposed statutory will. In some cases, an administrator or guardian may decide to take no active involvement. In other cases, they may have information to place before the court, or wish to take an active role in supporting or opposing the application or making submissions as to costs. In Tasmania, the Supreme Court Rules 2000 (Tas) r 803(1)(c) requires that the application for leave must be served on certain specified persons, unless the court or a judge otherwise orders; see 2.15. In order to meet the threshold requirement that adequate steps be taken to allow representation of persons who have a ‘legitimate interest’ (or, in Queensland, a ‘proper interest’) in the application (see 2.13), certain persons must be served, including any persons whose interests may be affected by the proposed statutory will. This extends to persons and charities whose benefits under an existing will may be affected, and persons who would take on

intestacy whose entitlements may be reduced or removed. This was considered, briefly, by Hallen AsJ in Re Will of Jane: On the question of representation under s 22(e), the applicant should take all steps necessary to identify, locate, and serve any person who may have a legitimate interest in the application. Importantly, the class of persons may be wider than ‘persons for whom provision might reasonably be expected to be made by the will’. The class of persons under sub-s (e) are likely to include beneficiaries under an earlier will, any person entitled on intestacy, persons who may have a claim on the bounty of the person lacking capacity, and perhaps, any eligible person within the meaning of that term in s 573 of the Succession Act.4

In Hill v Hill (No 2),5 Byrne J noted that the Cat Protection Society of Victoria, which had been brought into the litigation as a person having a ‘genuine interest’ in the matter, asserted an expectancy as a beneficiary under the existing will of the proposed testator. His Honour said that the Society’s presence in the litigation ‘ensures that the court has the benefit of the evidence and argument of the party whose interests under the existing will compete with the plaintiff’s claim’.6 He referred to the English authority Re HMF,7 in which Goulding J found that, in connection with the corresponding English statutory wills legislation, two charities ought to be represented, in order to enable the court properly to consider the ‘core test’: [page 85] … Without having some argument for those potentially interested under the previous will, the court cannot, to my mind, be satisfied that the proposed provision is one which the patient might be expected to provide if he or she were not mentally disordered — I refer to the language of para (c) of s 103(1) of the 1959 Act — nor can it know the proper balance between the case presented by the present applicants and the claims, weak or strong, of those mentioned in the previous will.8 …

Goulding J did, however, make it clear that this was not a rigid rule and that the particular circumstances must always be considered. His Honour gave the examples of ‘cases of emergency’ where the court may find it appropriate to proceed without the representation of an interested person,9 and cases involving a large number of interested persons, such as a class under a discretionary trust or where a very large number of charities are named as beneficiaries. It was similarly noted in Application of Peter Leslie Kelso10 that what may

constitute ‘adequate steps’ in any particular case will depend on the circumstances. In Monger v Taylor,11 Gillard J outlined the practical steps that should be taken, as follows: Plaintiffs and their legal practitioners should identify all those who could possibly have an interest in the proceeding prior to the issue of the motion, refer to them in the affidavit and give them notice prior to the return date of the application for leave to make application, so that if any person wishes to be heard he or she can attend at the first hearing. By adopting that procedure, court appearances can be kept to a minimum.12

In some cases, if the proposed will does not impact on gifts made to minor beneficiaries under an existing will, service on those persons may not be required. This point arose in Scott v Scott,13 in respect of modest provision made for the proposed testator’s godchildren, the RSPCA and a girls’ school under the proposed testator’s existing will. Lindsay J was satisfied that, provided the provision made for those beneficiaries was maintained in the statutory will, they had no legitimate interest in the statutory will application so as, by their absence, to impede its consideration. It is important not to overlook notification to charities named in an existing will, where their gifts may be affected by the proposed statutory will. In Re Estate of Crawley,14 the original gift to the charity named in the existing will was relatively small but it was important that the charity was served because, in considering the ‘core test’, Palmer J found that it was reasonably likely that if the proposed testator had testamentary capacity, she would have wished an increased benefit to pass to that charity, to reflect the present value of the gift made under the existing will, and to provide a gift over of the residue to the charity if the proposed beneficiary did not survive her by 30 days. In South Australia and Victoria, where specific rights of appearance are conferred by the Wills Act 1936 (SA) s 7(7) and the Wills Act 1997 (Vic) s 29 (see 2.16), it is not expressly stated that those persons must be served, although evidently some of them ought to be served. In Western Australia, there is a procedural requirement in the Supreme Court Consolidated Practice Directions 2009 (WA) at 9.3.1, paragraph 3(c) (see 2.15)

[page 86] that, except in relation to the proposed testator and their legal guardian or attorney, no other party should be given notice until the court has so directed.

Identifying the Orders Sought and Whether Advice Required in Other Jurisdictions 4.6 The applicant should be clear at the outset as to the nature of the orders sought, in other words whether the substantive order is to be for the authorisation of: (1) the making of a will; (2) the making of a codicil; or (3) an instrument revoking a will, or an order that a will be revoked. An example of possible orders is provided at 10.6. If orders are contemplated that involve the making of a will or codicil in circumstances where the proposed testator has assets, particularly real estate, situate in another jurisdiction, consideration should be given to obtaining local legal advice in that jurisdiction, to confirm that the statutory will or codicil will be recognised, and given effect, under the laws of that jurisdiction. This is of particular importance if there is property located outside Australia, since the devolution of such property is governed by the lex situs. The provisions that govern the effect and recognition of statutory wills within Australia are considered at 2.26.

Meeting the Threshold Requirements 4.7 The statutory provisions that state the threshold requirements are examined at 2.8–2.13. These requirements were considered comprehensively in Re Will of Jane:15 see 8.9. As regards the standard of proof, Hallen AsJ said: As each of those conditions [in s 22] must be satisfied before the court can grant leave under s 21(2), the power of the court under s 18(1) to authorise the making of the Will shares that predicate: s 20(1)(b). The section, however, does not demand certainty.

As ordinary words, ‘to be satisfied’ means to be furnished with sufficient proof that the court is assured or convinced, on the balance of probabilities, of each of the conditions.16

Lack of testamentary capacity 4.8 The statutory provisions are silent as to how lack of testamentary capacity (or incapability to make a will) is to be determined. It is, however, clear from the decided cases17 that the Banks v Goodfellow18 test applies: It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his 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.19

[page 87] It was noted in Re Will of Jane,20 referring to the English case of Sharp v Adam,21 that this test has been described as a ‘durable formulation’ which ‘has withstood the test of time’. The test was approved by the High Court in Timbury v Coffee.22 As already noted at 2.9, there is a difference (in all of the Australian jurisdictions except South Australia, Victoria and Western Australia) between the degree of certainty to which lack of capacity must be established on the leave application, and the jurisdictional requirement on the substantive application. The reason for this was explained by Palmer J in Re Fenwick: … An application for a statutory will may have to be made with some urgency and before sufficient medical evidence proving incapacity can be obtained. … In such a case, the screening process required by the leave application may be undertaken at once, leaving until later the gathering of further information necessary to support an application for a final order. At the leave stage, the court will be concerned to ensure, perhaps on limited information not meeting all of the requirements of s 19(2), that the application for leave is not frivolous or vexatious. If it is so satisfied despite absence of some of the information prescribed by s 19(2), it may in exercise of the power of discretion conferred by s 19(2) dispense with the requirement to provide further information. Clearly, however, the court has the discretion to grant a dispensation on terms, namely, that the absent information be provided at the hearing for a final order.23

The gathering of suitable evidence to satisfy this requirement is considered

at 4.14. It should be noted that, as regards the degree of satisfaction required to meet the standard of proof, a higher degree is required, applying the Briginshaw24 principle. This is considered at 4.14.

The ‘core test’ 4.9 The precise wording of the ‘core test’ varies between the Australian jurisdictions; see 2.10. It is essential to focus on the particular test that needs to be met. In various cases, it has been made clear that because of the lack of uniformity in the wording of the core test, the case law from one Australian jurisdiction cannot necessarily be relied upon in another, and that the English authorities must be treated with caution. As Palmer said in Re Fenwick: My somewhat elaborate review of the UK decisions and the Victorian cases will show, I hope, that in interpreting and applying s 22(b) of the New South Wales Act, this Court should not attempt to seek guidance from earlier authority. In interpreting s 22(b) this Court should start ‘with a clean slate’; it must interpret the words of the section in the light of the problems and difficulties which the legislation seeks to remedy, bearing in mind that legislation of this kind should receive a benevolent construction …25

A similar cautionary note was expressed by the Victorian Court of Appeal in Boulton v Sanders: … it does not follow that a general application of the principles contained in In Re D(J) and in Re C (a patient) is compatible with this Court’s analysis of the legislation. The crucial differences between the Victoria and United Kingdom legislation, already recognised in the Victorian decisions, dictate a cautious approach to principles derived from the English cases.26

[page 88] In Re P,27 Lewison J described the counter-factual assumptions that are required to be made in applying the Re D(J) approach, as involving ‘mental gymnastics’.28 The unsatisfactory nature of those assumptions, as applied in the English decisions, was also noted by Palmer J in Re Fenwick: … In cases in which an incapacitated person had never been able to form even the most rudimentary testamentary intention, the English courts were resorting to a legal fiction in purporting to ascertain what testamentary disposition that person subjectively would have intended to make. Even where the incapacitated person had previously expressed some valid testamentary intention, the courts were attributing to him or her a new testamentary intention upon the basis that the person, if temporarily restored to testamentary capacity, would have changed his or her mind. The fiction was employed to disguise, needlessly, that what the

courts were really doing in such cases was making decisions, objectively based, in the best interests of the incapacitated person and his or her family.29 [emphasis added]

The English authorities, including Re D(J), do nevertheless contain some guidance that is of assistance to the Australian courts, and that can be taken into account as part of the application of the core test. For example, the reference in Re D(J) to an assumption being made that the proposed testator is envisaged as being advised by a competent solicitor (see 1.4) has been noted in some of the Australian decisions. The relevance of the Re D(J) principles to the application of the Victorian core test (as it stood prior to the 2007 amendment) was summarised as follows in State Trustees Limited v Hayden,30 by Mandie J: I would agree with Gillard J [in Monger v Taylor31] that much of what was said by Megarry VC can usefully be applied in considering the question of leave under s 26 of the Wills Act 1997. However, the express requirement in s 26(b) of satisfaction that the proposed will or revocation ‘accurately reflects the likely intentions of the person, if he or she had testamentary capacity’ must at all times be borne in mind. …32

This need to focus on the wording of the particular core test has been stated more explicitly in some recent decisions in Queensland, commencing with McKay v McKay,33 in which Ann Lyons J took the following approach: … in the current circumstances I propose to simply focus on the words of the section. I simply need to ascertain whether the proposed will is one that Mrs McKay would or may make if she were to have testamentary capacity. I consider that the present case can be clearly distinguished from Re Keane; Mace v Malone34 where the court was asked to approve a proposed will which was completely different to the will which had in fact been previously executed. I am not convinced that the approach by Megarry V-C in In Re D(J) is necessarily the appropriate approach in the circumstances of this case and also note the criticisms of the approach by Palmer J in Re Fenwick who considered the approach as artificial, counter-factual and involving mental gymnastics.35 [emphasis added]

This was followed by Atkinson J in Sadler v Eggmolesse: … the words of this statute in the Queensland Act are quite clear and quite capable of being given effect to by the court without reference to cases determined under different statutory

[page 89] provisions and without introducing hypothetical or artificial counter-factual arguments or those involving mental gymnastics, as referred to by Justice Ann Lyons in McKay v McKay.36

It appears that the methodology that is applied by the court in focusing on the words of the core test is a mixed objective and subjective approach,

assessing all of the evidence that is before the court, in order to reach a decision as to whether the test is met. This has evident merit, in avoiding unnecessary and artificial assumptions. The extent to which the investigation should be weighted towards a more objective or a more subjective approach appears to depend on the extent to which the actual intentions of the proposed testator can be ascertained, if at all. The extensive analysis of ‘lost capacity’, ‘nil capacity’ or ‘pre-empted capacity’ cases that was undertaken by Palmer J in Re Fenwick,37 which is summarised at 1.22, provides a firm point of reference. It should be noted, however, that that analysis was premised on the New South Wales core test, which is framed by reference to ascertaining the ‘reasonably likely’ intentions of the proposed testator. The core test in the Australian Capital Territory and Tasmania is framed in a similar way. However, the core test in the other States and the Northern Territory is not. The analysis therefore requires adjustment when applied in those other jurisdictions. The meaning of ‘reasonably likely’, and the application of the New South Wales core test, was considered further by Hallen AsJ in Re Will of Jane: Whether the proposed statutory will is ‘reasonably likely’ must be derived from all relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person in the past, by reference to what is known of his, or her, relationships, history, personality and the size of the estate. Thus, it seems, what is required is to establish the chance of an event occurring (the proposed will is one that is, or would have been reasonably likely to have been made by the incapable person, if he, or she, had testamentary capacity) that is above mere possibility, but not so high as to be more likely than not. In other words, more is required than mere assertion, suspicion, or conjecture. If the actual, or reasonably likely, testamentary intentions are established, the next question is whether those intentions would have been carried into testamentary effect by the person ‘if he or she had testamentary capacity’? A previous will, or wills, may give a clear indication of the person’s testamentary choices and preferences such as to provide evidence of what it is reasonably likely he, or she, would do if he, or she, had testamentary capacity. The question is not whether he, or she, would likely have preferred the proposed statutory will to intestacy, or to his or her prior will. Nor is it whether the proposed statutory will is one of a number of possible proposed wills, all of which might be equally likely to be one that he, or she, may have made if he, or she, had testamentary capacity. If the proposed statutory will does no more than reflect one of a number of other possible dispositions, in my view, the requirements of s 22(b) will not be satisfied since it would not be ‘reasonably likely’ to be a will that he, or she, would have made had he, or she, had testamentary capacity. Clearly, in determining the answer to the question raised by s 22(b), the court must be cautious, mindful of the consequences of a decision under s 18. It is a serious matter for the court to appropriate to itself the will-making power of the citizen: Re Fenwick at [130]. It will never be an easy task because of the condition of the person in circumstances where his, or her,

actual last words on the topic were formally made, in this case, a long time ago, or where they may never have been formally articulated.38 [emphasis added]

[page 90] This is an important analysis because it identifies that the core test involves a secondary consideration: whether the proposed testator would actually have carried the identified testamentary intentions into effect, by making a will, codicil or revocation. In Victoria, the core test in the Wills Act 1997 (Vic) s 26(b) contains two alternative parts. The first part, ‘what the intentions of the person would be likely to be’, is more subjective in nature than the second part, ‘what the intentions of the person might reasonably be expected to be’, which is more objective. In Saunders v Pedemont,39 Habersberger J indicated that he found Palmer J’s analysis of the meaning of ‘reasonably likely’ to be of assistance in construing the second part.40 A further key point to note is that, in considering the core test, the court is not concerned with notions of what is ‘fair’, as between the parties or between family members, or with reviewing the ‘reasonableness’ of the terms of any existing will of the proposed testator. In Re Will of Jane,41 Hallen AsJ said: It is important to note also that the power vested in the court is not a power to review the reasonableness of the earlier dispositions made by a person then having testamentary capacity, on the grounds that the person now lacks such capacity. It is a power only to be exercised in situations where the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he, or she, had testamentary capacity. …42

In the same case, his Honour indicated the degree of particularity that is required when applying the core test: To be satisfied requires the court to assess the terms of the proposed statutory will, whilst retaining, under s 20, power to revise those terms in order to perfect its conformity with the incapacitated person’s reasonably likely testamentary intentions. It would appear to demand a degree of precision about the actual, or reasonably likely, intentions of the person lacking capacity and that what is proposed reflects those intentions.43

This issue also troubled Black J in Burns v The Estate of Troy Mitchell Burns, a Protected Person.44 His Honour recognised the difficulty posed by

the fact that the proposed testator, Troy, might have disposed of his estate in several different ways: It is important to recognise that the question raised by s 22(b) of the Act is not whether the proposed will would be a ‘fair’ will (or, by contrast with s 22(c) of the Act, whether it would be an ‘appropriate’ will) but whether the particular will is one that Troy was reasonably likely to have made, in the sense noted above. I have been troubled by the question whether it can be said that it would be ‘reasonably likely’ that Troy would make a will in the proposed form, where there are a range of possibilities as to the contents of such a will. These possibilities include at least: the proposed will, which in effect gives equal weighting to the claims of Aliesha as his daughter and of Mrs Burns and Brett as contributing to his care; a will that gave greater weight to the needs of Aliesha as his daughter, and less weight to the needs of Mrs Burns and Brett or their efforts in visiting and providing assistance to him, and left a greater proportion or all of his estate to Aliesha; a will that gave lesser weight to the needs of Aliesha as his daughter, and greater weight to the efforts of Mrs Burns and Brett as persons who have visited and provided assistance to him, and left a greater proportion of his estate to them; or a will that did not leave monies to Mrs Burns, notwithstanding that Troy might appropriately be grateful for her efforts in assisting him, because of the objective

[page 91] probability that she would predecease him, so that a gift to her might well operate as a larger gift to Brett. In particular, I have been concerned as to the possibility that it could not be said that any such will was ‘reasonably likely’ if each of those wills was possible and none was more probable than other. The issue in this regard is less straightforward than other cases where there might be, for example, a clear and binary choice between an inappropriate result on intestacy and a single appropriate result by will. The case is also less straightforward that [sic] one in which there was evidence of the attitude of the person for whom the will was proposed to the relevant matters – for example, the fact that his daughter had not regularly visited him in the community home, or that his mother and brother had devoted significant efforts to his welfare – which might allow the court to conclude that Troy, had he had testamentary capacity, would have acted in a manner consistent with that attitude.45 [emphasis added]

Notwithstanding these difficulties, his Honour reached the conclusion that the core test was satisfied, for the purpose of the leave application. The substantive application was listed to be heard subsequently, and at the time of writing no judgment had been published for that part of the proceedings. The need to ‘reproduce the person’s intentions with a substantial degree of

precision and exactitude’ was stressed by Mandie J in State Trustees Limited v Hayden,46 albeit in relation to the version of the core test that applied prior to the amendment of the Wills Act 1997 (Vic) s 26(b) in 2007. It is, however, clear from both Re Matsis47 and Doughan v Straguszi48 that in considering the core test, reference can be made to the proposed testator’s general values and ideology, where there is sufficiently clear evidence of such matters. One particular factual scenario that can pose a difficulty when applying the core test is where the proposed testator has an existing will, and has not updated that will to reflect a change in circumstances of which he or she was aware prior to losing testamentary capacity. The applicant may have difficulty establishing that the core test is met because, in the absence of evidence that the proposed testator took any steps to amend the will in intervening period, the court may infer that they deliberately chose not to do so. For example, in Re Fletcher; Ex parte Papaleo,49 a number of years had passed since the proposed testator made her last codicil, and there was insufficient evidence as to whether she would have insisted that her son’s share in her estate be diminished to reflect benefits that he had already received from her estate, in order to restore equality between the two children as beneficiaries. The court may, however, take into account any wishes clearly expressed by the proposed testator in the intervening period.50 This occurred in Plowright v Burge,51 where the proposed testator separated from her partner in 1996– 1997 and had made statements to various persons about her intention to exclude him as a beneficiary under her existing will. She then suffered a severe and permanent incapacity as a result of an accident in 1997. Hansen J, in considering the core test, was satisfied that the conduct of the proposed testator’s partner since the accident ‘would have reinforced in [the proposed testator] the intentions she expressed before the accident’.52 A further relevant factor may be whether there is evidence that the [page 92] proposed testator readily changed his or her testamentary provisions and beneficiaries from time to time.53

Appropriate for an order to be made 4.10 This requirement, which expressly applies in all of the Australian jurisdictions except Western Australia,54 underscores the discretionary nature of the court’s power, although its precise scope is not expressly stated (see 2.11). In Re Will of Jane,55 Hallen AsJ remarked: There is nothing in s 22(c) that provides guidance as to what circumstances, in addition to those set out in the other paragraphs of the section, are to be taken into account in determining whether a final order, is, or may be, ‘appropriate’, which, I take to mean ‘suitable’ or ‘proper’. What is required is for the court to assess, objectively, whether, and to what extent, it is, or may be, ‘appropriate’ to make the order under s 18. In so doing, what the court must consider is whether the expressed intention is the product of the incapacitated person’s free choice, or has some undue pressure or influence been applied? Some assistance in answering this question is given by the information provided by s 19(2) and by the assessment of the terms of the proposed statutory will.56

A similar view was taken by Palmer J in Re Fenwick.57 His Honour noted that the Succession Act 2006 (NSW) s 19(2) (the listed information) gives an indication of some circumstances that are to be taken into account in determining whether a final order is ‘appropriate’. In particular, his Honour noted that it may not be appropriate to authorise a statutory will in circumstances where to do so is bound to provoke a successful family provision claim.58 In Re Keane; Mace v Malone,59 Daubney J considered this requirement in conjunction with the core test, rather than in isolation: … I am not satisfied, on the particular facts of this case, that the will proposed by Josephine is or may be a will that Patrick would make if Patrick had testamentary capacity. As a corollary, I find that it is not appropriate for an order to be made under s 21 of the Succession Act 1981 in relation to Patrick.60

It is open to the court to conclude that, on the facts, the core test is satisfied but that it is nevertheless not appropriate for an order to be made for a statutory will. For example, in Hausfeld v Hausfeld,61 White J was not prepared to authorise an alteration to the proposed testator’s will where to do so would have the effect of defeating his son’s potential creditors. In Doughan v Straguszi,62 however, while it was clear that the proposed statutory will would offer asset protection benefits, and the proposed testator’s son was at risk of bankruptcy, the proposed will was not categorised as calculated to defeat creditors. The ‘actuating purpose’ was found to be twofold: achieving a more effective testamentary disposition to preserve the family farm for future generations, and avoiding drafting errors

and complications associated with the existing will. Henry J was therefore satisfied that the threshold requirement that it was [page 93] appropriate for the order to be made was met. Asset protection as a basis for seeking a statutory will is considered at 3.20. Some further circumstances that might be relevant to the court’s consideration of whether an order is ‘appropriate’ include: (1) where there is evidence that the proposed testator might regain capacity in the near future; or (2) where there is evidence of an expected family provision claim (see Chapter 6) or other relevant facts (see 4.22) that may make it inappropriate for the statutory will to be made.

Appropriate applicant 4.11 This requirement expressly applies, under the statutory wills legislation, in all of the Australian jurisdictions except South Australia and Victoria; see 2.12. In South Australia and Victoria it may be taken into account as part of the test for standing to apply (see 2.5). In Jeavons v Chapman (No 2),63 Gray J examined the history of the enactment of the Wills Act 1936 (SA) s 7 and noted that in the 1992 Report of the New South Wales Law Reform Commission (see 1.14), the view had been expressed that solicitors, social workers and health care workers who may be closely involved with the person may have good reason to bring a statutory will application, as may the Protective Commissioner who may already be managing the person’s financial affairs. His Honour said: It is to be observed that s 7(1) contemplates that ‘any person’ may make an application with the permission of the court. There is no reason to read down the words ‘any person’. The legislation is remedial and beneficial.64 The requirement for permission ‘permits baseless or unmeritorious applications to be screened out at an early stage’.65, 66

In Re Will of Jane,67 it was noted that the relevant provision in New South Wales (s 18(1)) also contemplates that ‘any person’ may make the application. Hallen AsJ considered that there was no reason for the words

‘any person’ in that section to be read down, except by reference to s 22. In respect of s 22(d), his Honour made a number of points:68 (1) It is doubtful that an ‘officious bystander’ might be an appropriate person to make an application for a statutory will. (2) Where the applicant is a person who has no real (personal) interest in the outcome of the application, the requirement may be established without difficulty. His Honour referred to Application by Peter Leslie Kelso,69 as an example of this. In that case, the application was made by a solicitor who had acted previously for the proposed testator in a victim of crime compensation application. [page 94] (3) It is clear from AB v CB70 that the fact that a person might benefit from the proposed statutory will is not an impediment to them making the application. In such circumstances, the court might order separate representation for the proposed testator, particularly if it appears that there is a possibility of a conflict of interest between the applicant and the proposed testator. Hallen AsJ also noted the protection afforded by the core test in such circumstances: However, one might be concerned whether a person who is to benefit by the proposed statutory will is ‘appropriate’, since he, or she, has a real interest in the outcome of the application. In probate suits, where there is an issue about the validity of a will, the court regards as a circumstance exciting suspicion, a will prepared by a person who takes a benefit under it, or if the beneficiary is instrumental in having it prepared, and calls for the vigilant and anxious examination of the evidence as to the testator’s appreciation and approval of the contents of the will: Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 at 528. However, this concern, in the present context, is avoided by the requirement in s 22(b) that the court be satisfied that the proposed statutory will is, or is reasonably likely to be, one that would have been made by the incapable person if she, or he, had testamentary capacity. That requirement, in my view, similarly suggests a vigilant and anxious examination of the evidence as to the incapable person’s actual, or reasonably likely, intentions.71

In some cases, notwithstanding that the applicant stands to benefit under the proposed will, he or she may nevertheless be well placed to make the application. This point arose in Deecke v Deecke,72 where Mullins J said: It is relevant to consider that the application has been brought by the applicant who may benefit

by the proposed will. The applicant was in the best position, however, to put the relevant information before the court in support of the application. The application could have been brought in the first respondent’s name by a litigation guardian. The problem with that course was that the persons who would best qualify for the role of litigation guardian, namely the applicant and the first respondent’s brothers who are of age, have an interest in the making of the orders.73

These comments of Mullins J were noted with approval by Ann Lyons J in McKay v McKay.74 In that case, the application was made by the proposed testator’s husband, who under the terms of the proposed will would receive all of her estate if he survived her. Her Honour determined that he was an appropriate applicant: In respect of s 24(a) I am satisfied that Mr McKay is an appropriate person to make the application as Mrs McKay’s husband of 35 years and the father of their three children. He resides with Mrs McKay and provides significant care to her. I consider that he has sufficient connection to her affairs to appropriately bring an application concerning the disposition of her estate. There is no doubt however that Mr McKay is also the person who may benefit under the proposed will.75

Her Honour also considered this issue in Lawrie v Hwang: In terms of s 24, I must be satisfied that the applicant is an appropriate person to make the application. In this case, the applicant, Mr Mitchell Lawrie, is one of the two sons of Mr Lawrie [the proposed testator]. I am satisfied that he is the only child living in the jurisdiction as Mr Lawrie’s other son, Tasman Lawrie, resides overseas. The applicant was also the applicant in the QCAT proceedings [relating to the appointment of an administrator and guardian]. He will of course be a beneficiary under the proposed

[page 95] will and whilst that requires me to exercise caution in determining whether he is an appropriate applicant, that will often be the case in applications of this nature and it is not a disqualifying feature. Having considered the affidavit material, I am satisfied that the applicant is appropriate.76 [clarifications inserted]

Consideration should also be given to whether it may be appropriate for the application to be made by the proposed testator’s attorney or administrator. Such a person will often be in possession of most of the relevant information required for the application. In McKay v McKay,77 Ann Lyons J considered the possible role of an administrator in proceedings involving an application for a statutory will: Without deciding the matter, as there has not been legal argument on this issue and [the administrator is] not represented in these proceedings, it would seem to me that it is arguable

that an administrator in the circumstances of a particular case could take the view that as administrator it was appropriate to obtain legal advice about the adult’s legal rights in relation to a particular application for a statutory will that relates to their client. It also seems to me that given the nature of the inquiry that the court is required to undertake in relation to the making of a statutory will that an administrator may well be required to provide specific information to the court in relation to such matters as the adult’s financial affairs and current support arrangements. … There may also be an argument that an administrator is an ‘appropriate person’ to bring an application for a statutory will to be made in the circumstances of a particular case. In some cases it may be that the administrator is the only person in the adult’s life.78

There have been a number of cases in which an administrator has acted as applicant; see for example: Re Winstanley,79 Re Grace Geraldine Brown,80 Re Fletcher; Ex parte Papaleo81 (an unsuccessful application) and Re Palmer.82 In some cases, the application has been made by the Public Trustee (or State Trustees) as administrator. Examples of this are: Re Martina Pieternella de Jager,83 EKI (Statutory Will)84 (an unsuccessful application), Public Trustee v Phillips No SCCIV-03-80085 (an application for revocation of a will), State Trustees Limited v Hayden86 (in which the application was made by one of the administrators of the proposed testator, but by the time the application was heard, State Trustees had become administrator and was named as plaintiff) and State Trustees Limited v Do and Nguyen.87 It is apparent from Re Estate of S88 that the fact that an administrator has a personal interest under the proposed will does not disentitle them from making the application. In that case, the plaintiff was one of two family members appointed as administrator for the proposed testator. Those two persons were interested, in that they were named as residuary beneficiaries under the proposed will. Similarly, in Re Winstanley,89 one of the three applicant administrators was interested under the proposed will. [page 96] There may be other persons who could potentially act as applicant, for example: (1) In Re Charles,90 the application was made by the Minister for Community Services, who was formally responsible for the welfare of

‘Charles’. (2) In Application by Peter Leslie Kelso,91 the applicant was a solicitor who had acted for the proposed testator when she made a victim of crime compensation application. (3) An application was made by the guardians and managers of proposed testator in Re DH; Application by JE and SM.92 This was a successful application, notwithstanding that the applicants were interested as beneficiaries under the proposed will. (4) The applicant in Re Joachim93 was the second cousin of the proposed testator. The applicant did not seek any benefit under the proposed will.

Representation of persons with legitimate interest 4.12 The need for service on persons who have a ‘legitimate interest’ (or, in Queensland, a ‘proper interest’) was considered at 4.5. It should be noted that this threshold requirement does not apply in the same way in South Australia or Victoria (see 2.13), although for practical purposes it will be necessary in those jurisdictions to demonstrate that such persons have been given adequate notice of the proceeding. The court may not proceed to hear the leave application in circumstances where it is clear that, through the absence of a person with a legitimate interest, not all of the relevant information is before the court, or where such a person can be expected to have views to express that would be relevant to the court’s consideration of the matter. An adjournment may be required.94 It may be necessary for directions to be given as to service on further persons, allowing for a reasonable period of time for them to respond, before the application proceeds. In CMPA (Statutory Will),95 the fact that the proposed testator’s mother, who suffered from schizophrenia, could not be heard on the application due to her health was said by the Board to be problematic. However, the application was determined and the will authorised in her absence. In Doughan v Straguszi,96 Henry J specifically noted, when considering the persons who had been served with notice of the proceeding, that the potential creditors of the son of the proposed testator had ‘no actual direct interest’ in the statutory will proceeding.

A different view, however, was taken by White J in Hausfeld v Hausfeld.97 His Honour indicated that, even had he granted leave for the statutory will application to proceed, final orders could not have been made. This was because the corporation Gippsland Limited, whose interests as a prospective creditor of the proposed testator’s son could be affected by the proposed statutory will, had a legitimate interest in the proceeding but had not been joined as a party and given an opportunity to be heard. His Honour said as follows: [page 97] … Both pursuant to s 28(e) and pursuant to general principles, an order should not be made that may adversely affect the interests of a third party unless that party has the opportunity, before the order is made, to make submissions (BP Australia Limited v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 at [134]).98

Providing the Listed Information 4.13 Broadly speaking, the listed information (see 2.14) resembles the same information that a testator who has testamentary capacity might be expected to take into account in making his or her will. In Re Will of Jane,99 Hallen AsJ said: The checklist provided by s 19 is neither exhaustive, nor rigid, and the court may dispense with the requirement to provide some of the information when it is clear that the required information exists, or might exist, but it could have no bearing on the fate of the leave application, or on the application for a final order, or if to require it to be provided would entail needless expense and delay. No such dispensation is required where the information does not exist.100

The circumstances in which a ‘dispensing discretion’ will be exercised were considered by Palmer J in Re Fenwick: … the court may make a dispensing direction when it is clear that the required information exists, or might exist, but it could have no bearing on the fate of the leave application or on the application for a final order, so that to require it to be provided would entail needless expense and delay. … The dispensing discretion will be exercised in the light of two fundamental considerations: — what is in the best interests of the incapacitated person and of those who have a proper claim to his or her testamentary estate; — what will facilitate the just, quick and cheap resolution of the real issue in the proceedings: s 56(1) Civil Procedure Act 2005 (NSW).101

It should be noted that in Victoria, the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) r 17.05(3)(d) provides that if any listed information stated in ss 28(d) to (j) of the Wills Act 1997 (Vic) is not relevant to the application, it must be stated why it is not relevant. The listed information need not necessarily be contained in the applicant’s affidavit; some elements could be covered in other affidavits, such as by the applicant’s lawyer, the Public Trustee, family members or medical practitioners. Affidavit evidence should be given in accordance with the usual applicable rules of civil procedure, and the rules of evidence should, so far as possible, be observed. The statutory provisions provide for a limited relaxation in this regard (see 2.19). In Re Will of Jane,102 Hallen AsJ said: Section 21 provides that in considering an application for an order under s 18 [i.e. the substantive application] (but it would appear, not for leave under s 20(1)), the court may have regard to any information given to the court in support of the application under s 19, may inform itself of any other matter in any manner it sees fit, and is not bound by the rules of evidence. The use of the word ‘information’ in the section, suggests that,

[page 98] except as otherwise provided, it does not have to take the form of admissible evidence. These broad powers provide the court with something of an inquisitorial role.103

The rationale for the relaxation of the rules of evidence was explained in Re Fenwick,104 where Palmer J described the nature of the court’s jurisdiction in respect of statutory wills as follows: … It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the Judge is not a referee; rather, the Judge is to endeavour to rectify a problem which is affecting people’s lives, in the best possible way. It is for this reason that s 21 provides that, in hearing an application for an order under s 18 (as distinct from an application for leave under s 20(1)(a)), the court may inform itself of any matter, in addition to the information provided under s 19, in any manner the court sees fit. Further, in hearing an application, the court is not bound by the rules of evidence.105

His Honour also considered the circumstances in which the court might take proactive steps, pursuant to the Succession Act 2006 (NSW) s 21(b), to inform itself of relevant matters: … to give the court the power of informing itself in any manner it sees fit in order to decide an application for a statutory will imposes on the Judge a heavy responsibility; it is to do, as far as

possible, what is best for those affected by the decision rather than to give a result which is dictated solely by the passive reception of whatever evidence is placed before the court by the parties. It goes without saying, however, that the powers given by s 21(b) and (c) must be exercised only when clearly necessary. Needless expense, delay and anguish may be caused to the parties by the court’s insistence on receiving further material which is not directed to issues which will decide the application one way or another. Further, the powers must be exercised judicially. If the application is contested, the matters upon which the court requires further information and the results of the enquiry must all be exposed in court in the presence of the parties and the parties must have the opportunity to respond by evidence and submission.106 [emphasis added]

The precise information that needs to be provided is stated in the relevant section. Most of the items are self-explanatory, but the following merit comment.

Evidence of lack of testamentary capacity 4.14 The nature of this threshold requirement is considered at 4.8. In terms of evidence, there are a number of points to note: (1) There are two distinct aspects that require confirmation: that the proposed testator lacks testamentary capacity; and that they are not likely to regain, or acquire, such capacity. If there is a possibility that the proposed testator may regain or acquire capacity, the court may be reluctant to authorise a statutory will, given the serious nature of the jurisdiction. (2) There is potentially a wide range of sources of evidence as to lack of capacity. The types of evidence that might be available were categorised as follows by Palmer J in Re Fenwick: [page 99] … in a leave application the threshold of proof of testamentary capacity, at the lowest, requires merely that the applicant demonstrate that there is reason to believe that the subject person is reasonably likely to lack testamentary capacity. This does not mean, of course, that applicants for leave should routinely provide the minimum information necessary to cross the threshold, when much better information as to capacity could be expected. As I have observed above, the minimum threshold is appropriate only in applications of real urgency.

Absent urgency or some other compelling reason, an applicant for leave should provide the best evidence available in the circumstances as to lack of testamentary capacity. The best evidence will always be that of a specialist professional, e.g. a psychiatrist, consultant physician or clinical psychologist, who has recently examined the incapacitated person and who expresses an opinion in a report which complies with the expert witness Rules of Court. The report should state the testing which has been carried out and should give a conclusion by express reference to each of the elements of testamentary capacity enunciated in Banks v Goodfellow. The latter requirement is unnecessary, of course, if it is a nil capacity case in which brain injury at an early age has rendered the patient incapable of ever developing adult cognitive faculties. The next best evidence — which will suffice if there is insufficient time for the report of a specialist — is that of the patient’s treating general practitioner. Again, the report should explicitly refer to the elements of testamentary capacity enumerated in Banks v Goodfellow, except in the kind of nil capacity case to which I have referred. The least satisfactory evidence is that of lay persons who would benefit under the proposed statutory will or codicil and who endeavour to prove testamentary incapacity by giving examples of the person’s erratic or demented behaviour. The court will treat that kind of evidence, uncorroborated by expert professional evidence, with the utmost suspicion.107 [emphasis added]

(3) It is also clear from Re Fenwick that, on the application for leave, the applicant should not aim to provide merely the minimum information required to cross the threshold, when better information as to capacity could be expected to be provided: ‘… the minimum threshold is appropriate only in applications of real urgency. Absent urgency or some other compelling reason, an applicant for leave should provide the best evidence available in the circumstances as to lack of testamentary capacity.’108 (4) As regards the applicable standard of proof, Palmer J outlined that: … The level of satisfaction that a court must feel as to the essential requirement of permanent testamentary incapacity must have regard to the gravity of the power being exercised and to its consequences: cf Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. If no more than the minimum level of proof of testamentary incapacity is demonstrated by an applicant at the leave stage, when better proof would be expected, the application may survive s 22(a) but may founder at s 22(c) [the requirement that ‘it is or may be appropriate for the order to be made’].109

(5) His Honour also indicated that if, on the hearing of the substantive application, the evidence of lack of testamentary capacity still leaves the court in doubt, the court might ‘take matters into its own hands’ and inform itself.110 For example, the court may have reservations about the impartiality of an expert medical witness, in circumstances where no other party to the proceeding is contesting lack of capacity. In such a case, the court may insist on seeing and hearing the proposed testator for itself, or may require a report from a court-appointed expert.

(6) The following cases illustrate the range of types of evidence as to incapacity that may be accepted by the court: [page 100] Re Rak:111 medical evidence was adduced, together with evidence of the litigation guardian concerning observations made at a meeting with the proposed testator. Bryant v Blake:112 the court considered reports by a neurologist and a neuropsychologist, together with evidence of the litigation guardian and evidence of observations made by the applicant’s lawyer when serving documents on the proposed testator. Application of Sultana:113 the court considered material that had previously been provided to the Guardianship Tribunal, and Palmer J also took into account his own observations of the proposed testator in court at the hearing. Lawrie v Hwang:114 various evidence of lack of capacity was considered, including findings made in previous Supreme Court proceedings, two medical reports that had been prepared in connection with the appointment of an administrator and guardian, and an affidavit by the proposed testator’s longstanding solicitor, who had observed the decline in the proposed testator’s mental state over time. Burns v The Estate of Troy Mitchell Burns, a Protected Person:115 the court considered a medical report from the proposed testator’s specialist rehabilitation physician, which specifically addressed the various criteria of the Banks v Goodfellow116 test, as applied to the proposed testator. The extracts contained in the judgment117 provide examples of the kinds of factual matters that can usefully be contained in such a report. (7) There is no express requirement that expert medical evidence must be provided. In Re Kann,118 the application was made in circumstances of extreme urgency. It was not possible in the time available to obtain a

medical report. Evidence was given in an affidavit sworn by the family member who had had closest contact with the proposed testator in the preceding months, setting out his own direct observations of the proposed testator’s physical and mental state and recent decline in health. (8) The impact that physical incapacity may have on assessing testamentary capacity, and when it can itself present a bar to capacity, was considered in Re Martina Pieternella de Jager.119 (9) In order to obtain medical records and information to demonstrate lack of testamentary capacity, a written consent on behalf of the proposed testator to the release of such records and information will usually be required by the relevant medical practitioners or health authorities. The statutory provisions and procedural rules relating to statutory wills do not (except in Tasmania) provide any exception to the usual confidentiality rules that apply. In practical terms, it may prove difficult to obtain such records and information, unless a guardian or other person with authority or standing to make medical and personal decisions on behalf of the proposed testator is prepared to assist. For a proposed testator who is a minor, the consent of their carer parent or guardian should be obtained. In [page 101] cases where sufficient authority cannot be obtained, where there is urgency, or where a medical practitioner does not co-operate to provide what is requested, it may be necessary to obtain the necessary evidence by way of a subpoena or third party discovery procedure. A further option may be to engage an independent specialist to provide a report for the purpose of the statutory will application. See 10.4 for an outline of a request to a medical practitioner. (10) In Tasmania, where the application is made to the Guardianship and Administration Board (see 2.2), a document known as a ‘health care professional report — statutory will’ can be requested from a relevant medical practitioner, to be provided to the applicant or the Board. The investigatory role of the Board can also assist, as regards gathering proof

of incapacity and placing that before the Board on the hearing of the application. There is no equivalent report or investigation where the application is made to the Supreme Court.

Draft of the proposed will, codicil or instrument of revocation 4.15 The proposed will, codicil or instrument of revocation should be drafted in exactly the same format that would be used if it were to be executed by a client with testamentary capacity, with the following two exceptions. First, the execution clause requires adjustment because the document will be executed by the registrar or other prescribed person. A sample execution clause is provided at 10.7, but the requirements should be checked with the local registry when the document is prepared. Second, in deciding what provisions are to be included, the core test must be borne in mind. It may be more difficult to satisfy the test if the draft of a proposed will contains very elaborate provisions, particularly if there is an existing will of the testator that is drafted in a more succinct form. That said, in Re Matsis,120 the codicil that was approved by the court contained terms that provided for three testamentary discretionary trusts. A sufficient set of administrative provisions should be included. Careful thought must also be given to covering possible contingencies, including the risk of lapse or ademption; see 4.36. In Plowright v Burge,121 Hansen J, in considering the core test, noted that the proposed will included provisions dealing with management and investment, and other powers. His Honour was satisfied that these were ‘of the type that are incidental in a sense but which might be expected to be included in a will drawn by a solicitor’ and that they did not affect who the beneficiaries were under the will.122 He found that the core test was met. Most of the published cases have involved the authorisation of the making of a will, either where there was no existing will, or in place of an existing will. A few have involved revocation.123 A statutory codicil was authorised in Re Fenwick124 and Re Matsis.125 The consent of the person(s) named as executor (including in default) should be obtained in writing, and included with the evidence in support of the application. This

[page 102] is a requirement in South Australia on the hearing of the substantive application.126 The giving of consent does not prevent any person named as executor from later renouncing that role after the death of the proposed testator. In Tasmania, the executor must either hold the statutory will once made (if they are the Public Trustee or a trustee company), or nominate a law practice to hold that will; see 2.23.

Evidence of the proposed testator’s wishes 4.16 This item in the listed information goes directly and fundamentally to the core test. There could be various potential sources of evidence of the proposed testator’s wishes. In Re Will of Jane,127 Hallen AsJ said: … this factor is intended to reinforce the importance which should be attached to giving effect to the person’s wishes in so far as they are ascertainable. A person lacking testamentary capacity may nonetheless have clearly indicated his, or her, own wishes, but, where this is not the case, friends, relatives and other persons should be permitted to give evidence of the person’s wishes as expressed by word or conduct.128

In Re Fenwick,129 Palmer J indicated that evidence of the proposed testator’s wishes, and evidence of the terms of any previous will, must be treated with caution: Paragraphs (e) and (g) provide the court with the means of taking into account the incapacitated person’s wishes, if known. … the court must, under s 22(c), assess objectively whether, and to what extent, it is ‘appropriate’ to accede to those wishes. The court must be sure that the incapacitated person’s expressed wish is not irrational or the product of pressure or influence.130

Having regard to the third principle stated in Re D(J),131 where there is evidence that the proposed testator held ‘strong antipathies or deep affections for particular persons or causes’ or ‘vigorous religious or political views’, it may be appropriate for those matters to be taken into account in ascertaining the proposed testator’s likely wishes, as part of the ‘core test’. Some allowance should be made for ‘the passage of years’, because ‘sometimes strong feelings mellow into indifference, and even family feuds evaporate’; see 1.4. Wishes expressed by the proposed testator to her professional carers and her daughter, including that she regretted the terms of an existing will, were

taken into account in Hill v Hill.132 Byrne J was satisfied, on a balance of probabilities, that she had changed her mind since making that will, and did intend to benefit her daughter. In reaching this conclusion, his Honour noted the cautious approach that is required: It was put on behalf of the State Trustee and the Society that I should approach with caution the task of determining the supposed intention of Mrs Hill. It was said that the jurisdiction of the court under s 21 is novel, intrusive upon testamentary freedom and may adversely affect the expectancy of beneficiaries. I accept all of this. I must be satisfied that the pre-conditions for relief have been made out by the plaintiff on the balance of probabilities, but in so doing I am mindful of the serious consequences of the conclusions which I am asked to draw.133

[page 103] In Wickham v Smith,134 consideration was given to whether the terms of a superannuation nomination form executed by the proposed testator prior to losing capacity at age 27 could provide evidence of his testamentary wishes. The form was found not to provide a suitable guide in this regard because it pre-dated his mother’s extensive and full-time care for him, and did not mention one of his sisters, who was only 12 years old at the time it was filled out. The applicants in Jeavons v Chapman (No 2)135 sought to rely on handwritten amendments made to a draft will dated earlier than the proposed testator’s last will. The amendments were not signed. The applicants asserted that the amendments reflected the proposed testator’s likely intentions, and that those intentions had been confirmed in discussions with her. Gray J noted that she had retained capacity for at least 10 years after making the will. A preliminary view was expressed by his Honour that she had therefore chosen to leave it unrevoked and unchanged for that period. It is important, in gathering evidence of the proposed testator’s wishes, to focus where possible on wishes that have actually been expressed. For example, in Re Manley,136 there had been various significant changes in the proposed testator’s circumstances in the period since she made her last will, but Stanley J found that there was no evidence of her wishes beyond the terms of her last will. In particular, there was no evidence that she had expressed any contrary intention in the three months between making that will and losing testamentary capacity.

Where the financial position of the proposed testator has changed significantly from the time that testamentary intentions were expressed, the evidence of those intentions may have less relevance. This was the case in Burns v The Estate of Troy Mitchell Burns, a Protected Person,137 where statements made by the proposed testator that he wanted all of his assets to go to his daughter, made at a time when he had only minimal personal assets, were found to be ‘of little or no assistance’138 in ascertaining his likely intentions in circumstances where his estate consisted of $7.9 million at the time of the hearing of the application for leave to apply for a statutory will.

Evidence of the terms of any previous will 4.17 Copies of all previous wills and testamentary documents available to the applicant should be exhibited to an affidavit. Where the applicant is aware of the existence of a document of that kind but does not have access to a copy of it, the applicant should depose to what is known about the document, including where it is located, who holds it, and its nature and effect, stating the basis for applicant’s knowledge or belief. Where the proposed testator has a longstanding relationship with a particular lawyer, consideration should be given to that lawyer swearing an affidavit that exhibits copies of the wills and also recounts the history of the proposed testator’s will-making. An example of a case where this occurred is Re Grace Geraldine Brown.139 Lawyers who are asked to provide copies of, or information about, wills held by them, or to go further and disclose details of previous client instructions, must take care to ensure that in doing so they do not breach any relevant fiduciary, contractual [page 104] or professional duties to the proposed testator. The professional conduct and practice rules that apply in the particular jurisdiction should be consulted. The statutory provisions and specific procedural rules relating to statutory wills do not address this issue. Where possible, and where to do so is effective to ensure that those duties are not breached, informed consent and authority

from an attorney or administrator, acting on behalf of the proposed testator, to any release of documents and confidential information, should first be obtained. A subpoena or other court authorisation may otherwise be required. Where documents and information can properly be disclosed, the best evidence of those things is likely to be an affidavit from the lawyer holding them, which should clearly state the authority and instructions given to them to provide that evidence for the purpose of the proceeding. If a will is held by the Public Trustee (or State Trustees) or another third party, it may be necessary to serve a notice of non-party disclosure (with leave, if required) to obtain a subpoena or a copy of it, or to obtain an order for its production, once the proceeding has been commenced. An examination of previous wills can provide valuable evidence of the evolution of the proposed testator’s testamentary intentions. However, there are limits to the inferences that can be drawn. An important example of this is Boulton v Sanders,140 where the applicant for the statutory will sought to rely on default provisions contained in previous wills made by the proposed testator, as supporting an inference that she wished to avoid an intestacy, and to assert that inferences could be drawn from those wills to establish who she would intend to benefit. Balmford J at first instance was not prepared to infer that the absence of a default gift in the proposed testator’s most recent will was accidental or unintended, and concluded: … it is entirely possible that, when making the 1997 will, [the proposed testator] had formed the view that if Ruth [the default beneficiary under that will] was not to be there to take the residue of her estate, she preferred to leave the distribution of the residue to the law rather than continuing to select among relatives, friends and charities.141

On appeal, the appellant contended that, while there was no subjective evidence of the proposed testator’s intentions, such intentions could be inferred from her family relationships and associations, and the ‘pattern’ of her will making. Dodds-Streeton AJA observed that ‘the appellant’s reliance on previous wills is question-begging as the execution of a new will denotes a deliberate intention to alter at least some existing dispositions’. After reviewing the terms of the previous wills, her Honour concluded that: Ms Sanders made a new will relatively frequently and often changed her mind. Given the degree of change between the various wills, I am not persuaded that there is any compelling pattern which establishes, on the balance of probabilities, that the proposed will accurately reflects Ms Sanders’ likely intentions.142

In State Trustees Limited v Do and Nguyen,143 the proposed testator had

made eight wills since 1989. Bell J stated that, of those, the earlier ones were of ‘doubtful validity’ and the later ones were of ‘undoubted invalidity’. The most recent will was based on a false legal assumption that would defeat its main expressed intention. His Honour considered that, in determining the proposed testator’s intentions, ‘a broad-brush approach is required, for otherwise the beneficial purpose of the [court’s] function [page 105] might be defeated’.144 In this case, the proposed testator’s ‘likely’ or ‘reasonably … expected’ intentions were found to be best revealed by the terms of her previous wills: … With all their difficulties, it is possible to identify a mind with an intention at work in these wills. The wills, read with the relationship evidence, show [Lydia] to be focused on her family, her godson and her two neighbours. Without going into the details, the wills so read tend to favour those persons.145

In South Australia, the Probate Rules 2004 (SA) r 98.10(e) specifies some additional information that must be provided by affidavit; see 2.14.

Evidence of persons who might be entitled to claim on intestacy 4.18 In order to establish the position on intestacy, the details of the proposed testator’s family need to be confirmed. In some cases, this will be straightforward, and can be dealt with by the applicant in his or her affidavit. In other cases, searches may need to be conducted. In State Trustees Limited v Do and Nguyen,146 the court directed State Trustees to make inquiries to locate other family members. In Griffin v Boardman,147 however, a direction was made that it was not necessary for the applicant to make investigations to ascertain the possible existence of issue of beneficiaries of the fourth degree, having regard to the expense involved and the fact that, if any such persons were in existence, there was no evidence that the proposed testator would have wished to make provision for them. An affidavit by the applicant’s lawyer may be required to set out the legal position under the intestacy rules. Alternatively, this can be covered in submissions.

Evidence of likelihood of potential family provision claims 4.19 The evidence required relates to the likelihood of family provision claims.148 It is not the role of the court, on a statutory will application, to adjudicate such claims. There is not, therefore, any requirement to produce a detailed opinion as to the likely merits or quantum of such claims. The evidence required can conveniently be provided in an affidavit by the applicant’s lawyer, stating the class of eligible claimants, if the supporting facts that identify the persons that meet the relevant statutory requirements for eligibility are contained in the applicant’s affidavit or other affidavit evidence. If it appears that there is a likelihood of one or more family provision claims, it may be appropriate for the affidavit evidence to include some details of the financial position of the putative claimants, so that the court is able to determine whether there is any substance to the claims and, in broad terms, what level of provision, if any, might be awarded if such claims were made, as the facts stand, on the proposed testator’s death. Such details may also fall within the next item of listed information: evidence of circumstances of persons for whom the proposed testator might be expected to provide by will; see 4.20. Where an element of the proposed will is to be justified on grounds that include the avoidance of potential family provision claims, evidence of the general advice that [page 106] would be provided to the proposed testator on such issues, if he or she had capacity, may be required. If it is clear, through consultation with family members in the course of the preparation of the statutory will application, that certain persons who might be eligible to make a family provision claim are in comfortable financial circumstances and do not intend to make any such claim, it is helpful for the court to have that confirmed by way of affidavits from those persons. It is not necessary for detailed disclosure of those persons’ financial positions to be provided in those circumstances. The relationship between family provision claims and statutory will

applications is considered further in Chapter 6.

Evidence of circumstances of persons for whom the proposed testator might be expected to provide by will 4.20 This could possibly be regarded as equating to evidence of ‘moral claims’, although that term is not used in the legislation. For example, a person who has cared for the proposed testator but who is not a family member may not be able to bring a family provision claim, if he or she is not within the statutory criteria that govern eligibility to claim for family provision in the particular jurisdiction; see further 3.8. A further example is CMPA (Statutory Will),149 in which a statutory will was authorised that provided for some benefit for the proposed testator’s mother, notwithstanding that she had caused his brain injury by severely assaulting him when he was an infant. The Board indicated that one of the several ‘principles’ that needed to be balanced was that the proposed testator, as a son of his mother who had a severe mental illness, if he was decent and fair, would not want to leave her not provided for, and would make a gift to her in his will for her maintenance. The will that was authorised provided for indirect provision to be made, by way of a gift of 25 per cent of the estate to the provider of the mother’s supported accommodation at the date of death.

Evidence of gifts that might be expected to be made for charitable or other purposes 4.21 There are three aspects that should be covered in the supporting evidence: (1) Has the proposed testator had a connection with particular charities, such as being a member of a management committee or board, or a member of a group of supporters of a charity? (2) Have donations been made by the proposed testator to particular charities, or for particular purposes? If so, in what amount and how regularly? (3) Has the proposed testator received any benefit from particular charities? In a number of statutory will cases, a gift in favour of a charity that has provided care or other benefits for the proposed testator has been

approved, on the basis that the core test is satisfied in relation to such a gift. Some examples of charitable gifts approved in statutory wills are: Re Joachim:150 the whole estate was gifted to the Endeavour Foundation and Riding for the Disabled Inc (Qld). [page 107] Deecke v Deecke:151 a small gift was made to the Cystic Fibrosis Foundation. Payne v Smyth as Litigation Guardian for Welk:152 a gift of two per cent of the residuary estate was made to the charity Teen Challenge. Sadler v Eggmolesse:153 a gift of $5,000 was made to the Disabled Surfers’ Association of Queensland. Re Kann:154 some provision was made for charities, where charitable intentions were reflected in an earlier will. AB v CB:155 a default gift was included in favour of two charities with which the proposed testator had been involved. Application by Peter Leslie Kelso:156 half of the estate was gifted to a women’s refuge that had assisted the proposed testator. Scott v Scott:157 modest legacies made under the proposed testator’s last will, in favour of the RSPCA and a girls’ school, were maintained in the statutory will. The receipt of assistance by the proposed testator from a charity does not inevitably lead to the conclusion that provision will be authorised to be made for such charity under a statutory will. An example of this is Re Martina Piertenella de Jager;158 see 8.38. This illustrates the point that the court’s jurisdiction is not premised on achieving a ‘fair’ outcome, but rather on applying the core test, taking all the circumstances into account. Similarly, in Hill v Hill,159 the proposed testator had had a long

involvement with the Cat Protection Society of Victoria and her last will appointed the treasurer of the Society as executor and divided her estate equally between the Society and her daughter. Byrne J concluded that there was sufficient evidence that the proposed testator had changed her mind since making that will, and did intend to benefit her daughter ‘at the expense of the Society for (sic) which she had had a long association’.160 In Re Will of Jane,161 which involved an unsuccessful application for a statutory will, the proposed will contained a default gift in favour of three charities. Evidence was given that the proposed testator supported charities, using a small part of her income, by way of buying fund-raising merchandise, rather than making donations. Hallen AsJ found that there was no evidence of her ‘connection’ during her lifetime with any of those charities.

Any other relevant facts 4.22 This provides a ‘catch all’. There are many facts that could potentially be relevant, given the breadth of situations that can give rise to a statutory will application, as considered in Chapter 3. Some of the more obvious examples are as follows: [page 108] (1) Remembrance: It was recognised in the English case Re P162 that the notion of remembrance — how a proposed testator would wish to be remembered by family members and others after their death — may be a relevant factor to be taken into account. However, in Re JC,163 Senior Judge Denzil Lush in the Court of Protection took a different view, albeit based on somewhat unusual facts: … I am not sure that the idea of being remembered with affection for having done the right thing is of any assistance in this case. JC has an appalling track record. He has spent his entire lifetime doing precisely the ‘wrong thing’ in his relationships with others, and his malevolence is such that he would probably relish the prospect of thwarting his children’s designs on his estate and would rejoice at being remembered by them with disaffection. … The notion of ‘doing the right thing’ generates some singularly unattractive arguments …164

The concept of remembrance was one of the matters taken into account in Griffin v Boardman,165 in the application of the core test in that case.

(2) Superannuation: While superannuation held by the proposed testator has received only a passing mention in a handful of the published statutory will decisions,166 it is likely to arise as an important issue in future cases, particularly where it is of significant value compared to the assets of the proposed testator held outside superannuation. Any superannuation death benefits will be distributed in accordance with the rules of the fund and superannuation law,167 and any applicable exercise of trustee discretion, either to the proposed testator’s estate, or to individual beneficiaries. If such benefits pass to the proposed testator’s estate, they will be subject to the terms of the statutory will. If they pass outside the estate, they will not. It should be checked, in particular, whether the proposed testator, or an administrator or attorney on their behalf, has made a current and effective nomination in relation to their member interest. The likely taxation treatment of the benefit, depending on who will or may receive it, should also be considered. (3) Interests in trusts: In some cases, a proposed testator may have a beneficial entitlement under, or powers in relation to, a trust, that will form part of their estate on death. The beneficial entitlement might consist, for example, of income that has for some time been allocated to the proposed testator as beneficiary, but not yet paid over. Powers in relation to the trust might involve a power of appointment, or a power to change the trustee or appointor, that is expressly stated to be exercisable by will. These matters could be relevant on a statutory will application, as they impact on the overall distribution of the financial resources under the direct control or influence of the proposed testator. A further aspect to consider is that the purposes for which a proposed testator has established or contributed assets to a trust prior to losing testamentary capacity, where such purposes can be ascertained, may indicate that they intended to provide for particular beneficiaries by way of that trust, rather than from their estate on death. Evidence of a settled intention of that kind would similarly be relevant to the court’s consideration of the core test, in relation to the terms of the proposed will. (4) Mutual will arrangements, testamentary contracts and testamentary estoppels: Any contracts, promises or representations made by the proposed testator in

[page 109] relation to their testamentary arrangements could potentially be very relevant to the court’s consideration of whether to authorise the making of a statutory will in terms that would undermine, or fail to give effect to, such arrangements. Such matters may also be relevant to the identification of persons who have a legitimate interest in the statutory will application, and should be served; see 4.12. If these matters are not identified and relevant details provided to the court, there is a risk that legitimate claims and expectations may not be taken into account and, where appropriate, given effect to. If a statutory will is made in such circumstances, the proposed testator’s estate could remain subject to a claim in equity post-death. (5) Family law proceedings: The possible outcome of any current or potential family law property proceedings involving the proposed testator may be relevant. It should be noted that proceedings initiated during the proposed testator’s lifetime may be continued after their death. The recent decision of the High Court in Stanford v Stanford168 is important in confirming that the Family Court has jurisdiction to determine an application for property orders in a situation where the parties are involuntarily separated by ill health. Both the husband and the wife in that case had lost capacity and the wife had died during the appeal process. The proceedings were initiated by the wife’s daughter, as her case guardian, and resisted by Mr Stanford’s son, as his case guardian. (6) Constructive trusts and other proprietary claims: Where a third party has a proprietary claim against property of the proposed testator, the enforcement of the third party’s equitable interest may impact on the effective distribution of the proposed testator’s estate. The facts surrounding the existence of any such claim are therefore a relevant matter on a statutory will application. (7) Debts owed to proposed testator by an existing or proposed beneficiary: It is not uncommon to find that loans and advances made between family members are not documented, and that the terms may be unclear. Some loans may not be repaid. Since any right to recover a debt

will form part of the estate of the proposed testator, if a loan is forgiven or not recoverable, the effect of that may be that one or more beneficiaries are favoured over others. This can be an important consideration where it arises and was considered in Re Fletcher; Ex parte Papaleo;169 see 3.9. (8) Joint tenancy assets: Assets held by the proposed testator as a joint tenant may require consideration. Where there is a surviving owner, such assets will not form part of the proposed testator’s estate on death, and will pass by survivorship. However, the value of the property involved, the identity of the other joint tenant(s), and whether there is any possibility that the joint tenancy may be severed before the proposed testator’s death may be relevant to the court’s consideration of the core test.

The Costs Position 4.23 The applicant should be fully advised as to the costs position, and the possible orders that may be made as to costs. The relevant principles, and examples of costs orders that have been made in various cases, are considered in Chapter 7. [page 110] If the estate is relatively small and is likely to be significantly eroded by the costs of the application, it may not be appropriate to proceed.

Preparing the Originating Process 4.24 The originating process should be drafted in the form required by the applicable Rules of Court; see also 4.6.

Meeting Procedural Requirements 4.25 It should be checked that all procedural requirements (including the

requirements that are noted at 2.15, if applicable) have been identified and can be met. Counsel should be instructed to advise on these requirements.

Filing and Serving the Material 4.26 The originating process and supporting material must be filed and served in accordance with the applicable civil procedure rules. The persons who should be served are considered at 4.5. Failure to prove service could result in an adjournment to allow service to occur, or, at worst, the application failing because it does not meet the threshold requirement170 that adequate steps be taken to allow representation of all persons with a legitimate interest (or in Queensland, a ‘proper interest’) in the application; see 2.13. Affidavits of service should therefore be prepared and filed. In Tasmania, the Supreme Court Rules 2000 (Tas) r 803(1)(c) (see 2.15) expressly requires personal service of certain specified interested persons. In the other jurisdictions, the general civil procedure rules relating to service should be followed. If there is any doubt as to which persons should be served or how service should be effected, it may be necessary to make an application for directions. Some of the published decisions to date show that the court has been satisfied that personal service on some persons would be impractical, or that they have sufficient notice of the statutory will application despite not having been formally served. In Application by Peter Leslie Kelso,171 Ball J indicated that what constitutes ‘adequate steps’ to allow representation of an interested person must be judged in the particular context of the case. In that case, the context was that the interested person lived in China, and that it was urgent that the application be heard due to the proposed testator’s imminent death. His Honour concluded that the direction in the legislation to serve interested persons did not require service on that person in the circumstances. In Deecke v Deecke,172 Mullins J stated that it was important that the proposed testator’s father, who lived overseas, be given an opportunity to be represented on the application, because his potential interest in the estate would be displaced by the proposed will. Strictly speaking, personal service

of the application on him was required. He had, however, communicated with the applicant’s solicitor by email. Those emails were exhibited to an affidavit of the solicitor. In those emails, the father said he did not consent to the application, and disputed many of the factual matters asserted by and on behalf of the applicant concerning the history of family relationships [page 111] and events. He said he did not intend to appear on the application, provided his emails were drawn to the attention of the court. Her Honour was therefore prepared to deal with the application, despite the lack of personal service. In Public Trustee v Phillips No SCCIV-03-800,173 a question arose in relation to whether notice of the application should have been served on a particular interested person. Doyle CJ determined that an application should have been made pursuant to the Probate Rules 1998 (SA) r 98.08 for directions regarding the service of notice of the application on interested persons. That had not been done. However, in the circumstances, his Honour was satisfied that if an order had been made by the Registrar requiring that that person be given notice of the application, it would not have been possible to do so in the particular circumstances. In De Gois v Korp,174 service was effected on the defendant by substituted service on the solicitors acting for him in the criminal proceeding. Some thought may need to be given to timing. In cases of extreme urgency, it may be necessary to bring the application on without delay. In other cases, particularly where it is expected that the application may be contested, sufficient time should be allowed for the respondent(s)/defendant(s) to consider and respond to the material. Where an interested person indicates that they support the application, a consent to that effect should be obtained from them, containing sufficient detail to show that they have received proper notice of what is being sought by the application, and understand the contents and effect of the proposed statutory will, codicil or revocation.

Consultation, Negotiation and Mediation 4.27 The position taken by the other party, or parties, should be ascertained, to gauge whether it may be possible for the application to be brought by consent. In some cases, a compromise may be reached, and that may involve amendments to the draft proposed will. It should be borne in mind that the making of a statutory will involves the exercise of judicial discretion. There is therefore a parallel with applications made for final orders in family provision cases. If an agreement is reached between the parties as to proposed terms for a statutory will, the statutory process cannot be abbreviated. The listed information must still be placed before the court in the usual way, and the court must be satisfied that the threshold requirements are met, that leave should be granted, and that it is appropriate for the proposed orders to be made. This was made clear by Hallen AsJ in Re Will of Jane: The lack of testamentary capacity, the accurate reflection of testamentary intentions, and the adequacy of steps taken for proper contradictors are matters of fact that are to be established. What may be described as the ‘appropriateness’ requirements involve the exercise of curial discretion. Thus, whilst relevant parties might consent to the terms of the proposed statutory will, that consent cannot be conclusive because the execution of a will for a person who lacks capacity is a decision to be made by the court.175

The terms of a compromise will, however, be a relevant factor to be taken into account. In Monger v Taylor,176 Gillard J observed that ‘although weight would usually be given to any compromise effected by the interested parties, the ultimate decision must rest with the court’. [page 112] The parties engaged in negotiations in Bielby v Denny177 and Re Martina Pieternella de Jager.178 While private or court-ordered mediation is not specifically provided for in the statutory wills legislation or procedural rules in any of the Australian jurisdictions, it may be used in appropriate cases, particularly where there may be scope for parties to reach agreement as to the terms of a proposed will (although bearing in mind that the core test must still be met). In Monger v

Taylor,179 an unsuccessful mediation was held, but the parties subsequently reached a compromise and a revised proposed will was presented to the court.

Preparing the Material for Court 4.28 The statutory wills regime is not straightforward, and applications are not seen by the courts and lawyers as regularly as other types of proceedings involving wills and estates. Counsel briefed on behalf of the applicant should consider whether detailed submissions may be appropriate, especially where the application is brought in urgent circumstances.180 In connection with the statutory requirement that the proposed testator must be alive when the order is made on the substantive application,181 a brief affidavit should be prepared, to be sworn by the applicant or the applicant’s lawyer, and filed by leave on the hearing of the application, to confirm that the proposed testator has been contacted on the morning of the hearing of the substantive application and is still living.

Leave Application, Substantive Application and Directions 4.29 The applicant should be clear as to whether the leave application182 and substantive application are able to be heard together (see 2.7). In Saunders v Pedemont,183 Habersberger J indicated that the substantive application should usually follow directly after the determination of the leave application: … In order to obtain leave an applicant must satisfy the court of the three critical requirements in s 26 and, if required by the court, give the information set out in s 28, which means putting all relevant evidence before the court. Leave should only be refused after all of these matters have been taken into account. On the other hand, once leave has been given, it is extremely unlikely, in my opinion, that an order authorising a will to be made would be refused by the court. It is, therefore, very hard to see why the second step was thought to be necessary as it seems to me that it serves no useful purpose.184

It is nevertheless clear from the decided cases that there are situations in which the court is not in a position to proceed to hear the substantive application, such as where there are persons whose interests might be affected by the proposed statutory will but

[page 113] who have not been served. In some cases, it may be necessary for directions to be given as to the joinder of a party, or for copies of existing wills to be produced (for example, where they are held by the Public Trustee). In Re Fenwick,185 Palmer J said as follows: On the hearing of an application for leave the court may, at the same time as it grants leave, proceed to hear the application for a final order s 18: s 20(1). In order to save the parties expense and time, the court will normally proceed to hear the application for a final order as soon as it grants leave under s 19(1) if it can be satisfied that the circumstances revealed in the information provided in order to satisfy the requirements of s 19(2) and s 22 is sufficient to justify the making of a final order and is unlikely to change in the foreseeable future: see e.g. Monger v Taylor [2000] VSC 304 at [24]; Re the will of Palmer [2003] VSC 21, at [20]–[21]; Hill v Hill [2001] VSC 83, at [15]–[16].186

The extract from Monger v Taylor that his Honour referred to notes the costs implications: ‘Although there is the two step procedure, costs should be kept to a minimum and the court and the parties should ensure that the procedure adopted gives effect to that objective.’187 Burns v The Estate of Troy Mitchell Burns, a Protected Person188 provides an example of the court hearing and determining the leave application, and then listing the substantive application for separate hearing. The reasons for doing so were not clear in the judgment given in that case, however Black J did indicate that the daughter of the proposed testator who would receive less from the statutory will than she would on intestacy would be entitled to make submissions at that hearing.

Responding to Adjournment Requests 4.30 It is possible that the respondent or a person given notice of an application may request an adjournment, in order to prepare to respond to the application. In such circumstances, the applicant will need to consider whether to consent to such a request, or oppose it on the basis that the application is made in urgent circumstances, having regard to the proposed testator’s health and other relevant factors. This issue arose in Lawrie v Hwang.189

Revising the Draft Will, Codicil or Instrument of Revocation 4.31 During the course of the application, it may be necessary for amendments to be made to the draft will or codicil. The applicant may become aware of matters during the course of the application that tend to suggest that the proposed draft requires adjustment in order for the core test to be met.190 Some caution is required in this regard. Leave may be required to rely on a revised version of the proposed will. Furthermore, the fact that substantive amendments are made to the proposed will during the course of the proceeding might be detrimental to the applicant’s case; see Saunders v Pedemont.191 Alternatively, the court may revise the terms of the [page 114] draft, acting pursuant to a statutory power to that effect (see 2.20); or provide an indication to the parties that certain aspects of the draft are problematic and require amendment, in order that the draft be approved. It is not clear to what extent the court should make substantial amendments to the draft, of its own initiative. In Re Will of Jane,192 Hallen AsJ said: ‘… if the proposed statutory will fundamentally fulfills the requirements of the section, but requires adjustments, the court may make such adjustments by modifying, redrafting or altering its terms.’193 [emphasis added] If substantial amendments are required, the court may request the applicant (or parties) to prepare a revised draft. This course was taken in State Trustees Limited v Do and Nguyen,194 where Bell J said: On my suggestion, State Trustees sought leave to amend the application along those lines and have produced a new draft will. The jurisdiction of the court, on application by leave, is to authorise the making of a will in proposed terms, and not itself to write that will. This does not prevent the court from making appropriate remarks about what it might authorise and the applicant from seeking to amend their application accordingly.195

The following examples are relevant: Payne v Smyth as Litigation Guardian for Welk:196 a concern was expressed by M Wilson J that the draft will did not contain sufficiently

detailed default provisions. The applicant’s solicitors put forward a second draft of the will, with a provision included to address that. Her Honour received further written submissions and dealt with the application on the papers. Scott v Scott:197 Lindsay J detailed the elements of a statutory will that he believed met the core test, and directed the parties to submit a will with those features for approval. CMPA (Statutory Will):198 the Board made an order directing the Public Trustee to prepare and submit a will that would give effect to the ‘dispositions and objectives’ set out in the Board’s decision.

Oral Evidence and Cross-Examination 4.32 As already mentioned (see 2.19 and 4.13), on statutory will applications, the rules of evidence are relaxed by the legislative provisions. The court may ask questions of the parties or witnesses present in court. If there are material disputes of fact on the affidavit evidence, there may need to be cross-examination (with leave, if required); see, for example, Plowright v Burge.199 The matter may therefore need to be set down for trial. Oral evidence was given in Re Will of Jane.200 This included the judge asking various questions of the plaintiff regarding litigation that had been commenced against him by his sister, who was one of the defendants in the statutory will proceeding. [page 115] In South Australia and Victoria, certain persons have a statutory right201 to appear and be heard on the application; see 2.16.

Maintaining the Proposed Testator’s Privacy 4.33 In some cases, the family of the proposed testator may not wish to have sensitive information relating to the mental and physical condition of the

proposed testator, and details of the proposed testator’s financial circumstances, personal relationships and family history, made public. The personal details about the proposed testator that appear in Saunders v Pedemont202 provide an illustration of the sensitive nature of such information. In some of the Australian jurisdictions, limited arrangements are in place to facilitate privacy, in some cases. The relevant statutory provision in Western Australia, and procedural rule in South Australia, are considered at 2.24. In New South Wales, it was indicated by Palmer J in Re Fenwick203 that straightforward, unopposed cases could be dealt with in chambers, on the papers, and that reasons need not be published.204 The hearing of applications in the absence of the public is also facilitated by the Civil Procedure Act 2005 (NSW) s 71(d) and (f). There is, however, the competing consideration of open justice and transparent decision-making. An increased publication of reasons would assist to develop the jurisprudence in the area of statutory wills. The importance of making public decisions relating to statutory will applications was considered by Megarry V-C in Re D(J): … As a number of points both of principle and of procedure have arisen, I am delivering judgment in open court; and this course has the support of all parties. As Ungoed-Thomas J pointed out in Re W,205 it is important that the public should be kept informed of the principles on which the Court of Protection acts, and this is best secured by making public (with, of course, suitable safeguards of anonymity) any judgments which deal with matters of principle or, I would add, matters of procedure. This is none the less important where the jurisdiction in question is relatively novel, and reported authority is scanty.206

The question which arises is whether, in Australia, there are any further privacy measures that can be invoked. In a handful of cases, in the Australian Capital Territory and New South Wales, decisions have been published with pseudonyms.207 The two published decisions of the Board in Tasmania have similarly been made anonymous. A strong argument for the use of pseudonyms was made in AB v CB,208 based on the protective nature of the statutory wills jurisdiction that is exercised by the court. This same argument could possibly be employed in future in other cases, whether in the Australian Capital Territory or elsewhere. In SPM v LWA,209 a successful application was made to prevent the publication of information of a kind that would lead to the identification of

the respondent. This case involved a power of attorney rather than a statutory will. Henry J considered the [page 116] court’s powers at common law, under the parens patriae jurisdiction. His Honour noted that the nature of the order sought was for the protection of the individual’s dignity and privacy, and was based on the very nature of the jurisdiction being exercised. The parens patriae jurisdiction involves, his Honour said, ‘something of an exception to the general principle favouring publication because it is concerned with truly private affairs’. He continued: The reference to the breadth of that principle as applying to lunatics in Scott v Scott [1943] AC 417 I am persuaded in modern parlance embraces a reference to those with a want of mental capacity — see, for example Re Fenwick; Application of J R Fenwick & Re Charles [2009] NSWSC 530.210

It was found that the strong public interest in knowledge of proceedings which occur in respect of powers of attorney needed to be balanced against the dignity and privacy of those who seek protection in respect of their private affairs through the holder of their power of attorney. The proper balance between these competing considerations could be struck by a nonpublication order going only to protection of the identification of the individual rather than preventing the public’s knowledge of the general nature and circumstances of the proceeding. An order was made accordingly, preventing the identification of the respondent in the proceeding. In Scott v Scott,211 Lindsay J provided the parties with an opportunity to make submissions as to whether there should be some restriction on the general publication of the court’s reasons. However, no party had any objection to publication. Conversely, in Hausfeld v Hausfeld,212 the plaintiff sought an order that the proceedings be determined in chambers but White J stated that it was not appropriate that the mater be dealt with otherwise than in open court, since the purpose of the statutory will application was to prevent the plaintiff from acquiring assets that would be available to satisfy a judgment debt if he was unsuccessful in defending certain Federal Court proceedings. Further, it was

said to be relevant that the proposed testator was not a minor or a protected person.

Submissions as to Costs 4.34 The costs position, including submissions as to costs, is considered in Chapter 7.

Arranging Execution of the Will, Codicil or Instrument of Revocation 4.35 The statutory requirements detailed at 2.22 and 2.23 should be noted and strictly followed. Some statutory will applications are made in circumstances of urgency, where there is a risk that the proposed testator could die imminently. In such cases, it is prudent to contact the registry prior to the hearing of the application, to notify the Probate Registrar (or equivalent member of the registry staff) that the application is to be heard and to check that if the order is made, the will (or codicil or other instrument) can be signed without delay. There is otherwise a risk that if the proposed testator dies in the period after the order is made but before the will or other instrument is [page 117] executed, it may be invalid.213 The will or other instrument can then be taken directly to the registry, and counsel can confirm to the Registrar that an order has been made authorising its execution and that it is in the form that has been authorised to be made. In those jurisdictions where there is a requirement that the will or other instrument can only be signed if the testator is alive (see 2.22), the Registrar may require that proof of that fact. In all of the Australian jurisdictions except South Australia and Tasmania, an envelope needs to be prepared (by the applicant’s lawyer) to contain the

will, codicil or other instrument, in accordance with the statutory requirements.214

Does the Statutory Will Require Review and Update? 4.36 Most well-advised testators appreciate, or are at least advised about, the need for a regular review and updating of their will and related estate planning. It is usually recommended that a review be conducted when any significant change occurs in the testator’s family or financial circumstances, or where there are changes in the legal or taxation environment that may impact on estate planning that has been undertaken. Where a statutory will has been made, two questions that arise in this regard are: (1) To what extent should the appropriateness of the statutory will be kept under review, and if so, by whom? (2) In what circumstances will the court authorise the updating of the terms of a statutory will? The following aspects require consideration. The starting-point is that a statutory will should have effect, and be recognised, as if it were a valid will made by a testator who has capacity; see 2.26. It may therefore be amended or revoked, as necessary. Amendment or revocation by the proposed testator, if they regain or acquire capacity, is considered at 4.37. It is clear that the statutory framework does not prevent the court from considering a subsequent application for a statutory will, codicil or revocation. The potential need for a further application to be made was recognised by the New South Wales Law Reform Commission: A statutory will should have the same standing as a will made in the ordinary way. Therefore, it should be possible to alter a statutory will in the event of a change in circumstances which make it appropriate to vary the distribution of assets after death. Any person should be entitled to apply to the court for alteration of a statutory will in the same way as any person may apply for the making of a statutory will.215

None of the published decisions to date, however, has involved the

‘updating’ of a statutory will. The court has no responsibility to monitor whether or not the statutory will remains appropriate. It has no jurisdiction or role unless a further application is made. The responsibility for such monitoring must therefore rest with the family of the proposed [page 118] testator and other interested parties, although it appears doubtful that any person, including any administrator, guardian or attorney, is under any enforceable duty to carry out that role. In many cases, a statutory will is made in circumstances where the testator is elderly and is in the last stage of life. In such cases, it is unlikely that the will may need to be updated. The published cases do, however, show that many statutory wills are made for persons whose life expectancy is much longer. In those cases, it is conceivable that circumstances may change over time. If there are significant changes, there is no reason why a further application should not be made for a new will, codicil or revocation. On any subsequent application, the court will again be concerned with applying the core test and the other threshold requirements. There would need to be sufficiently compelling reasons to justify a further application, particularly where the existing statutory will has been made relatively recently. The court is unlikely to look favourably on an application that seeks to ‘tinker around the edges’ with a will that has previously been put in place after a relatively exhaustive statutory process. Changes in the proposed testator’s relationships with other persons may not be sufficient to justify a further application. A possible exception is where there is evidence of positive misconduct by a beneficiary towards the testator; see 3.6. Changes in taxation, where a statutory will has been made that involves tax planning, may present another valid reason for a change. A further possibility is that the testator, while not regaining or acquiring testamentary capacity, may express new views about their testamentary arrangements, different to those considered by the court previously. Such

views may need to be put before the court, on a fresh application, particularly if they are strongly held, appear reasonably held in light of the testator’s circumstances at the time, and conflict in some significant way with the terms of the statutory will that is in place. An associated issue to consider is whether, in light of the possible need for a statutory will to be in place for a number of years, the drafting ought to be approached differently: (1) The risk that a change in circumstances may render the terms of a statutory will inappropriate does underscore the importance of a cautious approach to the drafting. (2) Where possible, future contingencies should be taken into account in the drafting, to avoid the time and expense of a further application. Arguably, it is more important that this be done for a statutory will than for a will made by a testator who has capacity, because the capable testator has the option at any time in the future, provided they are alive and retain capacity, to review and update their will. A person for whom a statutory will is made does not have this option; they are not able to ‘wait and see’ how circumstances develop. Matters such as the possibility of the lapse or ademption of gifts should therefore be taken into account in the drafting; see 3.11 and 3.13.

Steps to be Taken Where Testator Regains or Acquires Capacity 4.37 Lack of testamentary capacity is not always permanent. A testator who suffers a trauma or who has a medical condition that results in a loss of capacity may improve, either naturally or with advances in medical treatment. Testamentary capacity can, [page 119] in some cases, fluctuate or change over time, including in the situation where there is an improvement in a physical injury or disability that acted as a bar to capacity. On most statutory will applications, medical evidence before the

court will confirm that it is unlikely that capacity will be regained or acquired, but in some cases that will not be an outright impossibility. Further, an application may be made for a statutory will in circumstances of apparent urgency, where the exact prognosis of the person is not known, and where the possibility of recovery cannot be conclusively ruled out. The following points should be noted in relation to the possibility of a proposed testator regaining or acquiring testamentary capacity: (1) The listed information that is required to be placed before the court on the application (see 2.14) includes evidence of the likelihood of the person regaining or acquiring testamentary capacity. (2) The regaining, or acquiring, of testamentary capacity by the testator does not of itself have any effect on the validity of the statutory will. It continues to be effective, as if it had been made by the testator at a time when he or she had testamentary capacity. (3) Where a testator regains, or acquires, capacity, he or she may revoke the statutory will without needing to obtain any order of the court; see 2.27. (4) If capacity is subsequently regained, or acquired (and it is recognised that such cases may be relatively rare), a cautious approach is needed to the making of a new will. There could be a risk that capacity remains doubtful. It is possible that an application may need to be made for a declaration as to capacity. (5) A further practical issue that could arise is that the testator may not be aware that a statutory will has been made for them. Only in Tasmania is there a requirement that the proposed testator be provided with a copy of the statutory will once it is made.216 In some cases, the proposed testator may not have been given notice of the proceeding at all, and may only have had a general discussion with a medical practitioner, lawyer, litigation guardian or family member for the purpose of providing evidence of their likely intentions and lack of capacity. Some thought should be given to this possibility by the person who applies for the statutory will, so that an arrangement can, if appropriate, be put in place to ensure that the will is brought to the testator’s attention at a later date, if it appears that capacity has been regained or acquired. 1.

A recommendation was made by the New South Wales Law Reform Commission in its 1992

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38.

report ‘Wills for Persons Lacking Will-Making Capacity’ that the proposed testator be joined as the defendant; see 1.14 at (5). This recommendation was not, however, implemented. In England and Wales, the Court of Protection Rules 2007 r 73(4) states that ‘unless the court orders otherwise, P shall not be named as a respondent to any proceedings’ but provision is made in Practice Direction 9F of the Court of Protection, which states at [10]: ‘The court will consider at the earliest opportunity whether P should be joined as a party to the proceedings and, if he is so joined, the court will consider whether the Official Solicitor should be invited to act as a litigation friend, or whether some other person should be appointed as a litigation friend.’ Probate Rules 2004 (SA) r 98.03 and the Supreme Court Consolidated Practice Directions 2009 (WA) at 9.3.1, paragraph 3(b); see 2.15 Succession Act 2006 (NSW) s 57 relates to eligibility to apply for family provision. [2011] NSWSC 624 at [94]–[95]; see 8.9. [2001] VSC 135 at [10]; see 8.43. At [10]. [1976] Ch 33; [1975] 2 All ER 795. [1975] 2 All ER 795 at 800. See also Re Davey [1980] 3 All ER 342. [2010] NSWSC 357 at [15]; see 8.4. [2000] VSC 304; see 8.42. At [30]. (2012) 7 ASTLR 299; [2012] NSWSC 1541; see 8.12. [2010] NSWSC 618; see 8.5. [2011] NSWSC 624; see 8.9. At [66]–[67]. See, for example, Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [126]; see 8.2; Re Will of Jane [2011] NSWSC 624 at [70]–[72]; see 8.9; Hoffman v Waters (2007) 98 SASR 500; [2007] SASC 273 at [11]; see 8.33. (1870) LR 5 QB 549. Banks v Goodfellow (1870) LR 5 QB 549 at 565. At [72]. [2006] WTLR 1059 at [82] and [66]. (1941) 66 CLR 277 at 283, Dixon J. (2009) 76 NSWLR 22; [2009] NSWSC 530 at [122]; see 8.2. Briginshaw v Briginshaw (1938) 60 CLR 336. (2009) 76 NSWLR 22; [2009] NSWSC 530 at [148]; see 8.2. (2004) 9 VR 495; [2004] VSCA 112 at [54]; see 8.47. [2010] Ch 33; [2009] 2 All ER 1198; see 1.9 At [38]. (2009) 76 NSWLR 22; [2009] NSWSC 530 at [7]; see 8.2. (2002) 4 VR 229; [2002] VSC 98; see 8.45. [2000] VSC 304; see 8.42. At [36]. (2011) 4 ASTLR 429; [2011] QSC 230; see 8.24. [2012] 1 Qd R 319; [2011] QSC 49; see 8.22. At [79]. [2013] QSC 40, transcript page 1–13, lines 45 to 60; see 8.27. See also Lawrie v Hwang [2013] QSC 289; see 8.29. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. [2011] NSWSC 624 at [81]–[84]; see 8.9.

39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83.

[2012] VSC 574; see 8.51. At [97]. [2011] NSWSC 624; see 8.9. At [98]. At [68]. [2013] NSWSC 1550; see 8.13. At [38] and [39]. (2002) 4 VR 229; [2002] VSC 98 at [39]; see 8.45. Re Matsis; Charalambous v Charalambous [2012] QSC 349; see 8.26. [2013] QSC 295; see 8.30. [2001] VSC 109; see 8.44. Hill v Hill [2001] VSC 83; see 8.43. [2005] VSC 490; see 8.49. At [200]. State Trustees Limited v Hayden (2002) 4 VR 229; [2002] VSC 98; see 8.45. In Western Australia, this requirement may be implied. [2011] NSWSC 624; see 8.9. At [85]–[86]. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [189]–[190]; see 8.2. At [194]; see further 6.2. [2012] 1 Qd R 319; [2011] QSC 49; see 8.22. At [84]. [2012] NSWSC 989; see 8.10. [2013] QSC 295; see 8.30. [2009] SASC 3; see 8.34. At footnote 16 to the judgment, his Honour cited various authorities concerning the principles to be applied when interpreting remedial and beneficial legislation. Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 122 at [11]; see 8.47; Hoffmann v Waters (2007) 98 SASR 500; [2007] SASC 273 at [10]; see 8.33; Bryant v Blake (2004) 237 LSJS 23; [2004] SASC 369 at [25]; see 8.32. At [32]. [2011] NSWSC 624; see 8.9. At [88]–[93]. [2010] NSWSC 357; see 8.4. [2009] NSWSC 680; see 8.3. At [91]–[92]. [2009] QSC 65; see 8.17. At [33]. (2011) 4 ASTLR 429; [2011] QSC 230; see 8.24. At [11]. [2013] QSC 289 at [24]; see 8.29. (2011) 4 ASTLR 429; [2011] QSC 230; see 8.24. At [18]. Unreported, Supreme Court of Queensland, No 11203 of 2007, Daubney J, 18 January 2008; see 8.15. [2009] SASC 345; see 8.37. [2001] VSC 109; see 8.44. [2003] VSC 21; see 8.46. (2012) 7 ASTLR 584; [2012] SASC 236; see 8.38.

84. 85. 86. 87. 88. 89.

[2010] TASGAB 12; see 8.41. [2004] SASC 142; see 8.31. (2002) 4 VR 299; [2002] VSC 98; see 8.45. [2011] VSC 45; see 8.50. [2012] NSWSC 1281; see 8.11. Unreported, Supreme Court of Queensland, No 11203 of 2007, Daubney J, 18 January 2008; see 8.15. 90. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 91. [2010] NSWSC 357; see 8.4. 92. [2011] ACTSC 69; see 8.1. 93. Unreported, Supreme Court of Queensland, No 12325 of 2008, Dutney J, 22 December 2008; see 8.16. 94. See, for example, Saunders v Pedemont [2012] VSC 574 at [11], Habersberger J. 95. [2005] TASGAB 1; see 8.40. 96. [2013] QSC 295; see 8.30. 97. [2012] NSWSC 989; see 8.10. 98. At [14]. 99. [2011] NSWSC 624; see 8.9. 100. At [62]. 101. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [123]–[124]; see 8.2. 102. [2011] NSWSC 624; see 8.9. 103. At [64]. 104. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 105. At [132]. 106. At [134]–[135]. 107. (2009) 76 NSWLR 22; [2009] NSWSC 530 at [126]–[129]; see 8.2. 108. At [126]. 109. At [130]. 110. At [131]–[133]. 111. [2009] SASC 288; see 8.35. 112. (2004) 237 LSJS 23; [2004] SASC 369; see 8.32. 113. [2010] NSWSC 915; see 8.6. 114. [2013] QSC 289; see 8.29. 115. [2013] NSWSC 1550; see 8.13. 116. (1870) LR 5 QB 549. 117. At [9]. 118. Unreported, Supreme Court of Queensland, No 5309 of 2013, Applegarth J, 13 June 2013; see 8.28. 119. (2012) 7 ASTLR 584; [2012] SASC 236; see 8.38. 120. Re Matsis; Charalambous v Charalambous [2012] QSC 349; see 8.26. 121. [2005] VSC 490; see 8.49. 122. At [202]. 123. Re Levy Estate — Application of Samuels [2010] NSWSC 1014; see 8.8; Public Trustee v Phillips No SCCIV-03-800 [2004] SASC 142; see 8.31. 124. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 125. Re Matsis; Charalambous v Charalambous [2012] QSC 349; see 8.26.

126. Probate Rules 2004 (SA) r 98.10(f); see 2.14. 127. [2011] NSWSC 624; see 8.9. 128. At [168]. 129. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 130. At [192]. 131. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 132. [2001] VSC 83; see 8.43. 133. At [8]. 134. Unreported, Supreme Court of Queensland, No 11730 of 2011, Daubney J, 8 February 2012; see 8.25. 135. [2009] SASC 3; see 8.34. 136. [2013] SASC 98; see 8.39. 137. [2013] NSWSC 1550; see 8.13. 138. At [13]. 139. [2009] SASC 345; see 8.37. 140. [2003] VSC 405; see 8.47. 141. At [30]. 142. At [133]. 143. [2011] VSC 45; see 8.50. 144. At [11]. 145. At [12]. 146. [2011] VSC 45; see 8.50. 147. [2009] SASC 315; see 8.36. 148. In South Australia, the information to be provided is framed, in the Wills Act 1936 (SA) s 7(4)(d) (iii), as: ‘the interests of any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die’. 149. [2005] TASGAB 1; see 8.40. 150. Unreported, Supreme Court of Queensland, No 12325 of 2008, Dutney J, 22 December 2008; see 8.16. 151. [2009] QSC 65; see 8.17. 152. [2010] QSC 45; see 8.20. 153. [2013] QSC 40; see 8.27. 154. Unreported, Supreme Court of Queensland, No 5309 of 2013, Applegarth J, 13 June 2013; see 8.28. 155. [2009] NSWSC 680; see 8.3. 156. [2010] NSWSC 357; see 8.4. 157. (2012) 7 ASTLR 299; [2012] NSWSC 1541; see 8.12. 158. (2012) 7 ASTLR 584; [2012] SASC 236; see 8.38. 159. [2001] VSC 83; see 8.43. 160. At [10]. 161. [2011] NSWSC 624; see 8.9. 162. [2010] Ch 33; [2009] 2 All ER 1198; 1.9. 163. [2012] WTLR 1211; see 1.11. 164. At [54]. 165. [2009] SASC 315 at [53]–[54]; see 8.36. 166. See, for example, Plowright v Burge [2005] VSC 490 at [7], where a small amount of superannuation held by the proposed testator was noted, without additional comment; see 8.49. 167. Superannuation Industry (Supervision) Act 1993 (Cth); Superannuation Industry (Supervision) Regulations 1994 (Cth).

168. Stanford v Stanford (2012) 47 Fam LR 105; [2012] FamCAFC 1; Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52. See further R Williams, ‘Stanford v Stanford: Inheritance Rights Adjusted Through the Family Courts’ (2012) 15(4) REP 45 and W Sloan, ‘Step-parent — 1 Stepchildren — 0 … but Watch This Space’ (2013) 15(8) REP 138. 169. [2001] VSC 109; see 8.44. 170. Except in South Australia and Victoria; see 2.13. 171. [2010] NSWSC 357; see 8.4. 172. [2009] QSC 65; see 8.17. 173. [2004] SASC 142; see 8.31. 174. [2005] VSC 326; see 8.48. 175. [2011] NSWSC 624 at [96]; see 8.9. 176. [2000] VSC 304 at [50]; see 8.42. 177. Unreported, Supreme Court of Queensland, No 10819 of 2009, Mullins J, 30 November 2009; see 8.19. 178. (2012) 7 ASTLR 584; [2012] SASC 236; see 8.38. 179. [2000] VSC 304; see 8.42. 180. See Re Kann, unreported, Supreme Court of Queensland, No 5309 of 2013, Applegarth J, 13 June 2013; see 8.28. 181. See 2.17; for South Australia, see Re Grace Geraldine Brown (dec’d) (2010) 106 SASR 516; [2010] SASC 90; see 8.37. 182. As noted at 2.7, there is no leave requirement in Western Australia. 183. [2012] VSC 574; see 8.51. 184. At [9]. 185. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 186. At [120]. 187. At [24]. 188. [2013] NSWSC 1550; see 8.13. 189. [2013] QSC 289; see 8.29. 190. See, for example, Saunders v Pedemont [2012] VSC 574; see 8.51. 191. [2012] VSC 574; see 8.51. 192. [2011] NSWSC 624; see 8.9. 193. At [63]. 194. [2011] VSC 45; see 8.50. 195. At [17]. 196. [2010] QSC 45; see 8.20. 197. (2012) 7 ASTLR 299; [2012] NSWSC 1541; see 8.12. 198. [2005] TASGAB 1; see 8.40. 199. [2005] VSC 490; see 8.49 200. [2011] NSWSC 624; see 8.9. 201. Wills Act 1936 (SA) s 7(7); Wills Act 1997 (Vic) s 29. 202. [2012] VSC 574; see 8.51. 203. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 520; see 8.2. 204. At [265]. 205. [1971] Ch 123; [1970] 2 All ER 502. 206. [1982] Ch 237 at 239; [1982] 2 All ER 37; see 1.4. 207. Re DH; Application by JE and SM [2011] ACTSC 69; see 8.1; Re Charles, in Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2; AB v CB [2009] NSWSC 680; see 8.3; Re Estate of S [2012] NSWSC 1281; see 8.11.

208. [2009] NSWSC 680; see 8.3. 209. [2013] QSC 138. 210. At page 6, line 50. 211. (2012) 7 ASTLR 299; [2012] NSWSC 1541; see 8.12. 212. [2012] NSWSC 989; see 8.10. 213. Except in South Australia: Re Grace Geraldine Brown (dec’d) (2010) 106 SASR 516; [2010] SASC 90; see 8.37. 214. Wills Act 1968 (ACT) s 32; Succession Act 2006 (NSW) s 51; Wills Act 2000 (NT) s 50; Succession Act 1981 (Qld) s 31; Administration and Probate Act 1958 (Vic) s 5A; Wills Act 1970 (WA) s 44. 215. New South Wales Law Reform Commission, ‘Wills for Persons Lacking Will-Making Capacity’, Report 68 (1992) at 2.24. 216. Wills Act 2008 (Tas) ss 28(c) and 38(b); see 9.6.

[page 120]

CHAPTER 5 Acting for Other Interested Persons Introduction Separate Representation for the Proposed Testator New South Wales and the Australian Capital Territory South Australia Other jurisdictions Separate Representation for Other Persons The Position of an Administrator or Attorney for the Proposed Testator

5.1 5.2 5.3 5.4 5.5 5.6 5.7

Direct Instructions from the Proposed Testator

5.8

Other Categories of Interested Persons

5.9

South Australia: Public Advocate

5.10

Different Methods of Participation

5.11

No involvement Providing practical assistance Participating in negotiation or mediation Passive participation Active participation

5.12 5.13 5.14 5.15 5.16 5.17

Potential Grounds for Opposition

Introduction 5.1 The range of persons who might potentially constitute an ‘appropriate applicant’ for a statutory will is considered at 4.4 and 4.11. Once an application has been commenced, legal advice or representation may be required by other interested persons, whether or not such persons have been named as a party to the proceeding. This chapter should be read in conjunction with Chapter 4, since the matters relevant to the commencement of an application need to be understood in order to advise other interested persons as to the steps that they may take in the proceeding. [page 121]

Separate Representation for the Proposed Testator 5.2 It was noted at 4.5 that in most of the Australian jurisdictions, there is no requirement that the proposed testator be named as a party to the proceeding, but in South Australia and Western Australia, the applicable procedural rules require that the proposed testator be named as a defendant. The published decisions to date indicate that there is no consistent approach across the various Australian jurisdictions, on the matter of whether an order should be made for separate representation of the proposed testator. As has been noted at 2.21, there are specific provisions in the statutory wills legislation of New South Wales and the Australian Capital Territory that enable such an appointment. There is a procedural rule in South Australia that requires the appointment of a guardian ad litem by the court or the registrar, if no appearance to the summons has been entered on behalf of the proposed testator, or if an appearance has been entered and such appointment is in the interest of the proposed testator. The statutory wills legislation and procedural rules in the other Australian jurisdictions are silent on the issue.

Some of the factors that may be relevant to the court’s consideration of whether separate representation should be ordered are: (1) the likely costs of such representation, whether such costs would be justified in the circumstances, and whether, if those costs were ordered to be met from the proposed testator’s assets, that would have a detrimental impact on their well-being; (2) whether there is a possibility of a conflict of interest between the applicant and the proposed testator; (3) whether the proposed testator is capable of expressing any views or preferences about the application; (4) whether investigations by a litigation guardian may be likely to elicit further evidence that would be of assistance to the court, including (but not limited to) in respect of the proposed testator’s lack of testamentary capacity and likely intentions; and (5) whether representation is desirable to protect the proposed testator’s interests, including in relation to orders that may be made in respect of the costs of the statutory will application.

New South Wales and the Australian Capital Territory 5.3 In AB v CB,1 the application for a statutory will for ‘CB’ was made by her mother, ‘AB’. CB was named as a defendant. A solicitor who appeared on behalf of the trustee company that was administering CB’s financial affairs requested that a representation order be made, under the Succession Act 2006 (NSW) s 25. Palmer J declined to make such an order. His Honour noted some of the circumstances in which separate representation might be warranted: The Act, in s 25, enables the court to order separate representation for an incapacitated person if it appears to the court that such person should be separately represented. There is no guideline expressly given in the section or otherwise in the Act as to what circumstances should impel the court to order separate representation, but clearly enough one of those circumstances would be where it appears to the court that there is at least the possibility of a conflict of interest between the person applying for the statutory will and the person for whom the will is sought to be made.

[page 122]

The circumstances in which such a conflict of interest may arise vary infinitely. For example, the circumstances may suggest that the proposed will may not be in terms which the incapacitated person would himself or herself have made. There may be a suggestion that … the incapacitated person is more capable of expressing a testamentary intention than the applicant asserts, so that more investigation of the person’s residual capacity is justified. These are but some examples.2

His Honour noted that the evidence showed that there were very few people who might have a claim on the testamentary bounty of CB. The ‘first and most significant’ was AB, who was entirely responsible for CB’s day-today care and support, and who had devoted her time wholly in that regard. The purpose of the application was to provide for a will that would leave the benefit of CB’s estate to AB, or in default, to AB’s younger brother, to the exclusion of CB’s father. The father had been served with notice of the application and in the particular circumstances it appeared there would be no representation on his behalf at the hearing of the application for a final order. His Honour said: In these circumstances, one must ask then is what purpose will be served by the appointment of a separate representative for CB? Is there any evidence to suggest that CB would not wish to leave her estate to her mother, who is her primary carer, with a gift over to SB if AB predeceases her, and a further gift over to specified charities if the gift to her brother fails? Is there any evidence to suggest that the wishes of CB, so far as they are known, concerning her testamentary intentions and the state of her relationship between her and her parents are not as represented in the affidavit evidence so far adduced? Mr Glass very properly concedes that he cannot say at this stage whether any facts have been misrepresented or whether there is any other evidence which may be adduced which may cast a different light on the case. Mr Glass says that his client should have the opportunity, in CB’s interests, of investigating the allegations put forward by AB to test their veracity and to see whether there is anything further that can be placed before the court to elucidate the presumed testamentary intentions of CB. Mr Glass suggests that it may be possible for his client to gain some information by interviewing CB. In view of the medical evidence which has been adduced and in view of the conclusion in that regard to which the Guardianship Tribunal came, it is highly improbable that any attempt to interview CB would produce any useful information. It seems quite clear that she is, unfortunately, incapable of forming or expressing any rational view about any aspect of the administration or management of her affairs. Further, I accept that an attempt to interview her may well cause her distress, to no purpose. In short, those who would have a legitimate expectation of benefit from CB’s estate are actually aware of this application and none wish to contest it. There is no eligible person who might make an application in due course under the family provision legislation. CB herself is incapable of forming any testamentary wish. In those circumstances, it seems to me that nothing is to be gained from appointing the Trust Company merely for the purposes of seeing whether or not something may be turned up which may cast a different light on the evidence so far adduced. The estate of CB is large, because it represents damages awarded for the purposes of her care and maintenance for the rest of her life. Her needs are very high indeed and I would be

extremely reluctant to have that estate diminished by legal costs which serve no practical purpose. For these reasons, although it was proper in the circumstances of this case for the question to be raised as to whether a separate representative ought to be appointed pursuant to s 25, I do not think that it is appropriate that such an order be made.3 [emphasis added]

[page 123] This should be contrasted with Re Will of Jane,4 where an order was made under s 25 for the NSW Trustee and Guardian to represent the proposed testator, ‘Jane’, who was 86 years of age at the time of the hearing, had been resident in a dementia-specific unit for several years and was said to be dependent on others for all activities of daily living. Hallen AsJ said as follows: Without opposition, an order for Jane’s separate representation, under s 25 of the Act, was made on 2 May 2011, and the NSW Trustee and Guardian was appointed to represent Jane in the substantive proceedings. This was done because it was submitted that the circumstances suggested that the proposed statutory will may not be in terms that Jane would have made. The NSW Trustee and Guardian’s form of consent to act as tutor … has been filed.5

In the Australian Capital Territory, the only published statutory wills case, Re DH; Application by JE and SM,6 does not contain any reference to the appointment of a litigation guardian.

South Australia 5.4 The Public Advocate was appointed by the court as litigation guardian for the proposed testator in Public Trustee v Phillips No SCCIV-03-800.7 He appeared at the hearing on her behalf and supported the making of the order sought. The applicant was the Public Trustee, who acted as the proposed testator’s administrator. In various cases, an independent lawyer experienced in wills and estates has been appointed by the Registrar of Probates as litigation guardian for the proposed testator. These cases provide an indication of the role of the litigation guardian on statutory will applications, including the nature of the evidence that may be provided to the court: (1) In Bryant v Blake,8 the litigation guardian provided evidence on various relevant matters, including:

that in her opinion the proposed testator lacked testamentary capacity; that in light of the fact that the proposed testator’s father had consented to the application, she did not oppose a will being made which would exclude him from benefit; and the litigation guardian’s views as to the appropriateness of the substitutionary gift contained in the proposed will. (2) The judgment in Hoffman v Waters9 notes that the litigation guardian expressed a view, formed from her observations, that the proposed testator’s mother was devoted to her son and that he was happy and well cared for at home. (3) In Re Rak,10 it was noted that the following evidence, relevant to confirming that the proposed testator lacked testamentary capacity, was provided by the litigation guardian (although there appears to have been sufficient expert medical evidence to that effect): The litigation guardian has deposed to meeting Anthony at his parents’ home in May 2009. The guardian described the defendant as a ‘physically healthy, fully grown young man who was very shy’, and confirmed that there appeared to be no doubt that the defendant suffers severe mental impairment. Although the guardian

[page 124] described the defendant as making one-word responses to basic questions, she also assessed his understanding of conversation as ‘extremely limited’ — she recalled that when the issue of a will was raised, the defendant ‘appeared totally unable to understand the concepts of a will as a disposition of property after his death’. The guardian further deposed that the same meeting included a conversation between herself and Anthony’s parents. Mrs Rak advised that the defendant had no concept of money, or the value of money, other than to understand it is necessary to hand over notes and coins in exchange for items at a shop.11

The litigation guardian also provided evidence specifically directed at the ‘core test’. Gray J said: By affidavit … the litigation guardian confirmed that although it is not possible to ascertain directly what Anthony’s wishes might be regarding the disposition of his assets after death, she observed that Anthony enjoys a close relationship with his parents and Katrina Rak, and that in light of the substantial value of Anthony’s assets, is of the view that he would wish to benefit his siblings as well as his parents. The litigation guardian deposed to observing Anthony as becoming particularly animated when reference was made to his young niece, Chloe, the

daughter of Katrina Rak. Accordingly, the litigation guardian is of the view that the proposed will is likely to accurately reflect the defendant’s intentions if he had testamentary capacity. I am of the same view …12

The costs of the litigation guardian were ordered to be paid from the assets of the proposed testator, on a solicitor-client basis. (4) In Griffin v Boardman,13 the litigation guardian met with the proposed testator and provided affidavit evidence of that meeting. (5) The steps that were taken by the litigation guardian in respect of ascertaining the proposed testator’s capacity and testamentary intentions in Re Grace Geraldine Brown14 were noted by Gray J: On 24 July 2009 Leonie Evans Millard, a legal practitioner, was appointed by this Court as guardian ad litem for Mrs Brown in relation to these proceedings. On 21 August 2009 Ms Millard attended on Mrs Brown and engaged in a lengthy discussion about the proceedings. Ms Millard went through the proposed will in detail with Mrs Brown. Ms Millard left a copy of the application and supporting material at the nursing home on the understanding that it would be provided to Mrs Brown should she wish to see it. In an affidavit filed by Ms Millard, she expressed the following observation relevant to Mrs Brown’s intentions: Although there were times during my conversation with Mrs Brown where she was unable to provide an appropriate answer, or altogether failed to respond, I believe that she was certainly aware of the nature of a will, and appeared familiar with the provisions of the will marked by her in June 2009. She certainly did not express any views about disposing of her assets in any manner contrary to the provisions of the June 2009 will.15

(6) In Re Martina Pieternella de Jager,16 the litigation guardian initially did not support the application, other than to the extent of the revocation of the proposed testator’s existing will. However, an agreement was reached between the various interested parties and the litigation guardian as to the terms of a proposed will to be put forward to the court, and a will was authorised to be made in those terms. The judgment refers to evidence that the litigation guardian provided regarding a meeting with the proposed testator, and the difficulty encountered in [page 125] communicating with her. An order was made that the costs of the litigation guardian be paid on a solicitor-client basis from the proposed testator’s estate.

Other jurisdictions 5.5 There have been several cases in Queensland where a litigation guardian has represented the proposed testator’s interests, or where consideration has been given to whether such an appointment is required: (1) In Re Weick,17 the proposed testator was named as first respondent. Her litigation guardian was served, and consented to an order in the form proposed. (2) Orders were made in Bielby v Denny18 appointing a solicitor experienced in succession law as litigation guardian for the proposed testator, and joining the proposed testator as second respondent. The litigation guardian interviewed the proposed testator, and a recording and transcript of that interview were tendered in evidence. He also engaged in negotiations between the applicant and the respondent, in an endeavour to compromise the application. (3) A paternal aunt of the proposed testator acted in the proceeding as his litigation guardian in Payne v Smyth as Litigation Guardian for Welk.19 The litigation guardian was an accredited specialist in succession law. She was named as substitute executor in the proposed will. (4) In two cases, de Jersey CJ decided not to appoint a litigation guardian. The first was Bock v Bock,20 where the proposed testator, Brett, was 25 years of age and had suffered severe brain damage and acquired cerebral palsy. His Honour determined that it was not necessary to require separate representation, stating that there was no prospect of Brett ever giving instructions. His Honour adopted a similar approach in Hickson v Humphrey.21 The respondent (the father of the proposed testator, Jessica) submitted that a litigation guardian should be appointed for her, but his Honour determined that ‘that would really be pointless because Jessica could not give instructions’.22 Apart from these Queensland cases, and those from New South Wales and South Australia discussed at 5.3 and 5.4, the issue of appointment of a litigation guardian does not appear to have arisen in the published decisions to date in other Australian jurisdictions. As regards the choice of a litigation guardian, an independent lawyer may be appropriate. Consideration could also be given to the appointment of a

person who acts as administrator, guardian or attorney for the proposed testator, if such person is not the applicant for the statutory will, codicil or revocation.

Separate Representation for Other Persons 5.6 In some cases, it may be appropriate for a litigation guardian to be appointed to represent the interests of a person other than the proposed testator, at the hearing [page 126] of the leave application and substantive application. The usual civil procedure requirements apply in this regard; there are no particular provisions in the statutory wills legislation. For example, in Re Rak,23 prior to the hearing of the statutory will application, the court ordered that a litigation guardian be appointed for the proposed testator’s brother, Damien, who suffered a form of autism and was said to lack cognitive capacity to manage his own financial affairs. The statutory will application was made by the parents of the proposed testator and Damien, and was prompted by their concern that on the proposed testator’s death, if they were no longer living, a substantial sum of money would pass to Damien and would not be managed effectively. Damien’s sister was appointed as litigation guardian for him, and her costs were ordered to be paid from the assets of the proposed testator, on a solicitorclient basis. Similarly, in Griffin v Boardman,24 an order was made by the Registrar of Probates, prior to the hearing of the statutory will application, that an experienced wills and estates lawyer be appointed to act as representative for the class of relatives of the fourth degree of the proposed testator. A litigation guardian may be required to represent an interested person who is a minor. An example of this is Hickson v Humphrey,25 where a litigation guardian appeared on behalf of the proposed testator’s younger sister. However, in Wickham v Smith,26 Daubney J was satisfied that it was

‘appropriate and expeditious’ to proceed without a litigation guardian being appointed for one of the respondents, a half-sister of the proposed testator, who was aged 17 and would turn 18 in two months’ time.

The Position of an Administrator or Attorney for the Proposed Testator 5.7 The published decisions to date indicate that there is a range of approaches that may be taken by an administrator in response to a statutory will application, depending on the circumstances of the case. Generally, having regard to an administrator’s duties, at least some active role will be required, particularly if there is a risk that the proposed testator’s assets may, as a result of the application, be affected by a costs order. The range of possible approaches is indicated by the following cases: (1) In Bryant v Blake,27 the Public Trustee acted as manager of the part of the proposed testator’s estate that comprised the balance of a compensation award that had been made in her favour. Prior to the hearing of the statutory will application, an order was made that the Public Trustee be served. The Public Trustee consented to act as sole executor and trustee of the proposed will, but did not seek to appear on the hearing of the application. (2) In Hoffman v Waters,28 the Public Trustee acted as manager, pursuant to the Aged and Infirm Persons’ Property Act 1940 (SA), of the proposed testator’s estate. Notice of the application was given to various family members, and to the Public Trustee and the Public Advocate. The Public Trustee provided details of the assets of the proposed testator’s estate, and did not oppose the application. The Public [page 127] Advocate appeared at the hearing and supported the application. Neither the Public Trustee nor the Public Advocate sought any order for their costs.

In McKay v McKay,29 a trustee company that held the fund that (3) comprised the balance of substantial damages awarded to the proposed testator acted as her administrator for all financial matters. The application for a statutory will was made by her husband. The trustee company was served with the application but advised the solicitors for the applicant that it did not wish to appear on the hearing of the application. It indicated that it considered its only interest in the application, as administrator, related to legal costs that might have to be met out of the proposed testator’s assets. Ann Lyons J stated that she considered it was important that the trustee company was served, and noted that pursuant to the Guardianship and Administration Act 2007 (Qld) an administrator’s role in respect of an adult extended to using legal services to obtain information about the adult’s legal rights in relation to financial or property matters, and bringing or defending a proceeding. Her Honour said: Without deciding the matter, as there has not been legal argument on this issue and [the trustee company is] not represented in these proceedings, it would seem to me that it is arguable that an administrator in the circumstances of a particular case could take the view that as administrator it was appropriate to obtain legal advice about the adult’s legal rights in relation to a particular application for a statutory will that relates to their client. It also seems to me that given the nature of the inquiry that the court is required to undertake in relation to the making of a statutory will that an administrator may well be required to provide specific information to the court in relation to such matters as the adult’s financial affairs and current support arrangements. It is clear that s 25(b) of the Act provides that the court may inform itself of any matter relating to the application in any way it considers appropriate and s 25(c) provides that the court is not bound by the rules of evidence. There may also be an argument that an administrator is an ‘appropriate person’ to bring an application for a statutory will to be made in the circumstances of a particular case. In some cases it may be that the administrator is the only person in the adult’s life.30 [emphasis added]

Her Honour regarded the approach taken by the trustee company, of advising the court of its intention to abide by the order of the court and not seeking to appear at the hearing, was ‘an entirely appropriate approach in the particular circumstances of this case’.31 (4) In Wickham v Smith,32 the same trustee company acted as administrator for the proposed testator, in respect of a substantial compensation fund. The proposed testator’s mother acted as administrator in respect of all of his other financial matters. Daubney J noted that the trustee company had been served with the application but did not take part in the proceeding.

(5) In Hill v Hill,33 State Trustees, as administrator of the proposed testator, was not joined as a party, but filed an appearance on her behalf and took an active role in opposing the application. This included filing affidavit evidence and being represented by counsel. Submissions were also made on behalf of State Trustees that no order as to costs should be made. [page 128] (6) In Boulton v Sanders,34 State Trustees acted as the proposed testator’s administrator. It was notified of the application, but made it clear that it would not participate in the proceeding unless it were joined, and that it did not consent to itself or the proposed testator being substituted as a plaintiff in the proceeding and would not seek to have the proposed testator joined as a defendant. Neither the proposed testator nor State Trustees was represented at the hearing at first instance, or on appeal. The Court of Appeal was critical of the approach taken by State Trustees. It was noted in particular that a senior solicitor of State Trustees had filed an affidavit which, on the issue of costs, set out the following position: I am advised by … [the] solicitors for the appellant that the appellant seeks orders that the costs of the application for a statutory will heard by Her Honour Justice Balmford and of this appeal be paid from Miss Sanders’ funds. Miss Sanders has funds from which these costs can be paid and I believe that the payment of these costs would not adversely affect Miss Sanders’ current lifestyle. State Trustees makes no submissions regarding the appellant’s application for the payment of costs from Miss Sanders’ funds and will submit to whatever order this Honourable Court deems appropriate.35

In relation to this, Dodds-Streeton AJA said: The attitude of State Trustees at the hearing below and on appeal may appear surprising, given that the purpose of its appointment (for which it is remunerated) is the protection and management of Ms Sanders’ assets. Its apparent passivity was, in the circumstances, disquieting.36

(7) In Saunders v Pedemont,37 State Trustees, as administrator of the proposed testator’s estate, was served with the application. An affidavit was filed by a senior financial consultant at State Trustees, Mr Misale, providing details of the assets of the proposed testator’s estate. State Trustees appeared at the hearing but took a neutral stance. On the

separate hearing as to costs,38 Habersberger J considered the position that had been taken by State Trustees, as follows: I turn then to the question of the costs of State Trustees as the administrator of Mr Macquire. I consider that there should be an order that the plaintiff pay State Trustees’ costs, even though it was never formally made a party. Once it was clear that the person with the greatest interest and relevant knowledge was going to oppose the application, State Trustees sensibly did not duplicate costs by seeking to be added as a defendant and participating in the hearing. Instead, it limited its involvement in the proceeding, thereby keeping down the amount of costs it would incur. But it was obliged, in my opinion, to protect Mr Macquire’s estate from costs orders and as such it was appropriate for it to be represented at the directions hearing, the start of the trial and the argument about costs. Had the plaintiff not made the application for a statutory will, those costs and the costs of preparing Mr Misale’s affidavit and any other costs relating to the proceeding would not have been incurred. I see no reason why the plaintiff should not, therefore, be ordered to pay State Trustees’ costs rather than there being an order that all of State Trustees’ costs be paid from the estate of Mr Macquire.39

The details of the costs orders made are considered at 8.51. [page 129] (8) In Re Keane; Mace v Malone,40 the Public Trustee of Queensland did not take an active role in the hearing of the leave application or the substantive application, but did make submissions as to costs; see 8.22. Daubney J said: Submissions on costs were also received from the Public Trustee of Queensland, on behalf of Patrick. The Public Trustee had not appeared at the hearing of the application, because of an assurance given by the applicant that no adverse costs order would be sought against Patrick. Having been notified, however, that the respondent now sought costs to be paid out of Patrick’s estate, the Public Trustee delivered submissions opposing such an order. It was submitted by the Public Trustee that such an order would cause the burden of costs to fall on Patrick, even though the respondent’s contest of the application was motivated by their attempt to preserve their ultimate entitlement to Patrick’s estate. The Public Trustee submitted: ‘[Patrick] is a person under a disability. He is in his advanced years in a nursing home in Toowoomba. His inter vivos estate should not be further diminished so as to deprive him of any part of it for his personal use and well-being simply because members of his family have sought to engage in litigation in which he has played no part.’41

This submission was accepted by his Honour. Similar considerations to those that apply in respect of an application made by an administrator should also apply in respect of applications made by an

attorney (under an enduring power of attorney) or guardian. An attorney acted as applicant in Doughan v Straguszi.42 The applicant was the daughter of the proposed testator, and acted as her attorney. In considering the threshold requirements, Henry J observed: The applicant undoubtedly has standing to make the application and, indeed, holds an enduring power of attorney of the testatrix. She can speak for and act in the apprehended interests of the testatrix.

A guardian acted as applicant in Re DH; Application by JE and SM,43 AB v CB44 and Griffin v Boardman.45 The costs position of an applicant guardian was considered in Hoffman v Waters.46

Direct Instructions from the Proposed Testator 5.8 Where a statutory will application has been made and the proposed testator is served with notice of the proceeding, it is possible that they may seek legal advice directly, if they have capacity to understand at least the general nature of the application. It is conceivable that they may not accept the assertion that they lack capacity to make a will, or may disagree with factual matters stated in the supporting affidavits, or with the terms of the proposed will. Where capacity to give valid instructions is doubtful, the lawyer will be placed in a difficult position. If there is evidence that tends to support the proposed testator having capacity to give instructions (and bearing in mind that the test for that is distinct from the test for testamentary capacity), then [page 130] the lawyer should be in a position to act on those instructions by placing the relevant evidence before the court. If capacity to give instructions is doubtful or lacking, the lawyer may consider making application for the appointment of a litigation guardian.

Other Categories of Interested Persons 5.9 There are various other categories of interested persons that may require

advice or representation in relation to a statutory will application: (1) a beneficiary under an existing will of the proposed testator, whether a person or a charity; (2) a person who has a prospective entitlement on the intestacy of the proposed testator; (3) creditors of an existing beneficiary; (4) family members and associates of the proposed testator; and (5) charities.

South Australia: Public Advocate 5.10 It was noted in Re Manley47 by Stanley J that the Public Advocate is one of the prescribed persons that is entitled to appear and be heard on a statutory will application, pursuant to the Wills Act 1936 (SA) s 7(7), but had not been served. He directed that the Public Advocate be served with a copy of the proceeding and a copy of the transcript of the hearing, and afforded the opportunity, should he so wish, to be heard and adduce evidence on the application. The Public Advocate indicated that he did not wish to call evidence or be heard in the matter. In Re Grace Geraldine Brown,48 the Public Advocate acted as one of two joint limited guardians for the proposed testator, in respect of healthcare and lifestyle. Directions were given that the Public Advocate be served. The judgment notes that the Public Advocate filed an affidavit, in which he advised that in his opinion the orders sought by the plaintiff were appropriate.49 The role of the South Australian Public Advocate in Hoffman v Waters50 is noted at 5.7.

Different Methods of Participation 5.11 An interested person who has been given notice of a statutory will application, or otherwise becomes aware that the application is taking place, and who seeks legal advice, should be advised that there are various possible methods of participation, some of which are not mutually exclusive.

No involvement 5.12 An interested person may decide to have no involvement in the proceeding at all. A possible reason for this may be a concern as to legal costs, or a reluctance to interfere in what may be seen as private matters concerning the proposed testator [page 131] and their family. In most cases, it would be appropriate, despite such concerns, for the person to take at least some action to inform the parties or the court of their views, to avoid the court having to speculate about such views. However, a person has no legal obligation to participate in the proceeding.

Providing practical assistance 5.13 In many cases, an interested person will be able to assist by providing information and evidence to the applicant or another party. The information could, for example, be contact details for relatives of the proposed testator or for other interested persons. They may be prepared to assist by speaking with those persons, to inform them of the application and to pass on the lawyer’s contact details.

Participating in negotiation or mediation 5.14 An interested person may decide to participate in a negotiation or mediation, with such participation either being the extent of, or part of, their involvement in the matter. Negotiation and mediation are considered at 4.27.

Passive participation 5.15 ‘Passive participation’ may be used to describe steps taken by an interested person that assist the court but fall short of the person becoming a party to the proceeding or entering an appearance at the hearing. Passive participation may include: (1) notifying the parties, or the court, that the person either supports or does

not oppose the application; or (2) providing information, or informing the court of their views, by way of an affidavit. Some examples of passive participation are: Re Weick:51 Notice of the proposed application was provided to the proposed testator’s father, with whom she had a ‘very poor’ relationship, and who was said to have ‘no moral claim upon her assets’. He indicated in correspondence that he had no objection. He did not appear or seek any contrary order. Payne v Smyth as Litigation Guardian for Welk:52 The application was served on the proposed testator’s father and adult siblings, but they chose not to appear at the hearing. The father filed an affidavit, in which he expressed some disagreement with the proposed dispositions, but did not appear to contest the application. He expressed the view that the proposed testator’s siblings should not take under the proposed will. Bryant v Blake:53 The proposed testator’s father was served. He filed an affidavit stating that he was aware of the proceeding and the order sought, and consented to the making of that order, even though he was aware that he would not receive any benefit from the proposed testator’s estate. Hoffman v Waters:54 The proposed testator’s father stated, through his solicitor, that he did not wish to be heard on the statutory will application and would abide by the order of the court. [page 132] Griffin v Boardman:55 A gift in a statutory will to a proposed beneficiary was approved, even though the proposed testator had expressed a contrary intention not to make any gift to that person by her will. The proposed beneficiary gave affidavit evidence that included the following: I am not surprised to hear comments such as that but I am deeply hurt. I would be very happy for all of Agnes’ estate to go to Brenda and Bob or even to the Government if that is Agnes’ true wishes. My disappointment comes from the ‘lack of value’ that Agnes has placed on our relationship which I have considered to be immeasurable. In conversation

with Agnes she has always been very supportive and positive towards me. I do not know why Agnes would deliberately not wish me to receive anything from her estate. I only hope that she became flustered in the situation and wanted it all finished with.56

A statutory will was made that included the gift. Re Matsis:57 The solicitor who acted as attorney for the proposed testator, but who was not the applicant, filed an affidavit that placed various pieces of information before the court. This included a medical report and, importantly, detailed evidence of the proposed testator’s approach to property and financial matters over a number of years, and an explanation of why testamentary trusts were not included in the proposed testator’s existing will. This enabled Ann Lyons J to reach a conclusion that the inclusion of testamentary trusts in the proposed will was ‘entirely consistent’ with the proposed testator’s entrepreneurial approach, which he strongly instilled into his grandsons, and his strong emphasis on keeping wealth within the family. Hoffman v Waters:58 The brother and sister of the proposed testator were notified of the application for a statutory will. They did not enter an appearance but were present in court on the hearing of the application. In response to questions by Debelle J, they each stated that they consented to the application. Application of Wosif Elayoubi:59 The proposed testator’s father suffered from schizophrenia. His estate was subject to financial management by the NSW Trustee and Guardian. A solicitor from the NSW Trustee and Guardian appeared on the application, to put forward his wishes. Palmer J said he had taken such wishes into account, as enabling an understanding of the claims likely to be made on the estate of the proposed testator, and in relation to the ‘core test’.

Active participation 5.16 An interested person may wish to become a party to the proceeding, or otherwise be heard on the application so that they can make submissions in support of their position. This may be described as ‘active participation’. It also enables an interested person, through their lawyer, to cross-examine a witness (with leave, if required) if there are disputed issues of fact that are material to the proceeding. The costs position must be carefully considered

before an application is made to be joined as a party, or a decision made to otherwise actively participate in a proceeding; see Chapter 7. The rights of appearance conferred by the Wills Act 1936 (SA) s 7(7) and the Wills Act 1997 (Vic) s 29 are considered at 2.16. [page 133] An example of active opposition is Hickson v Humphrey.60 The proposed testator’s father was named as respondent. In his written material, he acknowledged that the proposed testator, Jessica, could be expected to favour her mother in relation to gifting the residue of her estate, but he submitted that he should receive 30 per cent, not the 10 per cent stated in the proposed will. He also made oral submissions, which were to a different effect: that the residuary estate should pass, in full or in part, to charities. He was unsuccessful in his opposition. Some further examples of unsuccessful active opposition include Hill v Hill61 and Plowright v Burge,62 both of which involved an existing beneficiary unsuccessfully attempting to uphold their gift under an existing will. Lawrie v Hwang63 involved a person unsuccessfully attempting to uphold their prospective entitlement on intestacy. Some examples of cases where active opposition was successful are Re Will of Jane64 and Saunders v Pedemont.65

Potential Grounds for Opposition 5.17 The principal grounds for opposing a statutory will application are: (1) That the proposed testator has testamentary capacity, or may regain it; see 4.8 and 4.14. There has not been any published decision to date that involves this ground being relied upon in opposition to the application, but it is conceivable that such an argument could be advanced where the facts support it. (2) That the ‘core test’ is not met; see 4.9. (3) That an order is not appropriate; see 4.10.

Opposition could be partial, in the sense that the interested person may agree that a statutory will should be made, but contend that the terms should be different to those that are proposed by the applicant. This argument goes to the ‘core test’. The following cases are examples of applications that were opposed, where the applicant was unsuccessful: Re Will of Jane;66 Re Keane; Mace v Malone;67 Jeavons v Chapman (No 2);68 Re Manley;69 and Saunders v Pedemont.70 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

[2009] NSWSC 680; see 8.3. At [13]–[14]. At [20]–[25]. [2011] NSWSC 624; see 8.9. At [3]. [2011] ACTSC 69; see 8.1. [2004] SASC 142; see 8.31. (2004) 237 LSJS 23; [2004] SASC 369; see 8.32. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. [2009] SASC 288; see 8.35. At [16]. At [23]. [2009] SASC 315; see 8.36. [2009] SASC 345; see 8.37. At [27]. (2012) 7 ASTLR 584; [2012] SASC 236; see 8.38. Unreported, Supreme Court of Queensland, No 7033 of 2009, Applegarth J, 27 August 2009; see 8.18. Unreported, Supreme Court of Queensland, No 10819 of 2009, Mullins J, 30 November 2009; see 8.19. [2010] QSC 45; see 8.20. Unreported, Supreme Court of Queensland, No 8794 of 2010, de Jersey CJ, 23 September 2010; see 8.21. Unreported, Supreme Court of Queensland, No 384 of 2011, de Jersey CJ, 8 April 2011; see 8.23. At page 1-2, line 1. [2009] SASC 288; see 8.35. [2009] SASC 315; see 8.36. Unreported, Supreme Court of Queensland, No 384 of 2011, de Jersey CJ, 8 April 2011; see 8.23. Unreported, Supreme Court of Queensland, No 11730 of 2011, Daubney J, 8 February 2012; see 8.25. (2004) 237 LSJS 23; [2004] SASC 369; see 8.32. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. (2011) 4 ASTLR 429; [2011] QSC 230; 8.24. At [18]. At [19]. Unreported, Supreme Court of Queensland, No 11730 of 2011, Daubney J, 8 February 2012; see 8.25.

33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

[2001] VSC 83; see 8.43. [2003] VSC 405; see 8.47. (2004) 9 VR 495; [2004] VSCA 112 at [155]; see 1.21 and 8.47. At [156]. [2012] VSC 574; see 8.51. Saunders v Pedemont (No 2) [2012] VSC 601. At [20]. [2012] 1 Qd R 319; [2011] QSC 49; see 8.22. Re Keane; Mace v Malone (No 2) [2011] QSC 98 at [4]; see 8.22. [2013] QSC 295. [2011] ACTSC 69; see 8.1. [2009] NSWSC 680; see 8.3. [2009] SASC 315; see 8.36. (2007) 98 SASR 500; [2007] SASC 273; see 8.33 [2013] SASC 98; see 8.39. [2009] SASC 345; see 8.37. At [21]. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. Unreported, Supreme Court of Queensland, No 7033 of 2009, Applegarth J, 27 August 2009; see 8.18. [2010] QSC 45; see 8.20. (2004) 237 LSJS 23; [2004] SASC 369; see 8.32. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. [2009] SASC 315; see 8.36. At [51]. Re Matsis; Charalambous v Charalambous [2012] QSC 349; see 8.26. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. [2010] NSWSC 1004; see 8.7. Unreported, Supreme Court of Queensland, No 384 of 2011, de Jersey CJ, 8 April 2011; see 8.23. [2001] VSC 83; see 8.43. [2005] VSC 490; see 8.49. [2013] QSC 289; see 8.29. [2011] NSWSC 624; see 8.9. [2012] VSC 574; see 8.51. [2011] NSWSC 624; see 8.9. [2012] 1 Qd R 319; [2011] QSC 49; see 8.22. [2009] SASC 3; see 8.34. [2013] SASC 98; see 8.39. [2012] VSC 574; see 8.51.

[page 134]

CHAPTER 6 Family Provision 6.1

Introduction Approach by the Courts Deciding Statutory Will Applications Family Provision Claims Against Estates Where a Statutory Will has Been Made

6.2 6.3 6.4

New South Wales Release of rights Notional estate

6.5 6.5

Introduction 6.1 In all of the Australian jurisdictions, the court has power under the applicable family provision legislation1 to order that provision, or further provision, be made from the estate of a deceased person, for the proper maintenance and support of certain eligible persons. The inter-relationship between statutory will applications and family provision claims requires consideration from two distinct perspectives: (1) the manner in which a court determining a statutory will application takes into account the possibility of a future family provision claim against the proposed testator’s estate; and (2) if a statutory will is made, the extent to which that has an impact on any subsequent family provision claim that may be made against the estate.

Approach by the Courts Deciding Statutory Will Applications 6.2 The listed information to be provided to the court on a statutory will application2 specifically includes evidence relating to the likelihood of family provision claims;3 see 4.19. It is important to note that, on a statutory will application, the role of the [page 135] court is not to adjudicate upon a family provision claim, but rather to consider the likelihood of a claim, and to consider the core test, and the question of whether it may be appropriate for an order to be made (see 4.10) in light of that. There have been several published statutory will cases in which potential family provision claims have been considered. In Re Fenwick,4 Palmer J noted the impact that a potential claim may have on the court’s consideration of whether an order should be made: It would produce needless and wasteful litigation to authorise a statutory will which was bound to provoke a successful claim under the family provision legislation. In such a case, to grant leave under s 19(1) or to make a final order under s 18 would not be appropriate, within the meaning of s 22(c). The policy of the law is to quell disputes, not to create them.5

His Honour noted that in some cases, a family member may oppose the terms of a proposed statutory will on the basis that the terms ought to reflect the provision that the court may ultimately order to be made for them on a successful family provision claim. Such an argument poses a difficulty as to timing: A complication in hearing such a putative family provision claim at the time of hearing the statutory will application is that in a family provision claim the court’s decision is founded upon circumstances as they exist after the death of the testator and as at the time of the trial. In a contested statutory will case, the incapacitated person may live for many years to come, during which time the circumstances of those now postulating a successful family provision claim may change in a way which either defeats, or increases, the claim.6

The risk that family members may seek to reopen the court’s consideration of the terms of the statutory will at a later stage, in the event of a change in

their circumstances impacting on the merits or quantum of their prospective family provision claims, was also considered: There is no express restriction in the Succession Act on the frequency of applications for a statutory will made by the same person. However, it would be disastrous to encourage the attitude that a statutory will can be made giving expression to putative family provision claims and that applications to vary the statutory will can be made as and when changes in the circumstances of the applicant occur throughout the lifetime of the incapacitated person. Bearing in mind the hostility and ruinous expense which so often accompany family provision claims, the court should endeavour to limit their occurrence to once only in the administration of the estate of anyone, alive or dead.7

Monger v Taylor8 illustrates that the potential for a family provision claim may provide a cogent reason to support the making of a statutory will by reference to the core test: If one was to pose the question, what would Mrs Power, if she was of sound testamentary capacity today, be likely to do with respect to leaving anything to her sister the answer would most likely be that she would not wish to leave anything to her sister. However, in considering the likely intentions of the person concerned it is relevant to take into account that she would be advised by competent and careful solicitors, who would seek to ascertain who may have a claim on her bounty, advise whether she should respond to that claim and more particularly that if she did not, advise on the

[page 136] likelihood of an application being made under Part 4 of the Administration and Probate Act 1958 … … In my opinion, in considering what the likely intention of the testatrix is, if she had testamentary capacity, the court should consider the likelihood of an application under Part 4 of the Administration and Probate Act 1958 in considering that intention — see s 28(a) of the Act. In my opinion a careful competent solicitor would advise a testatrix when considering the terms of a proposed will of the likelihood of a claim and the likely outcome and persuade that person to make some allowance to avoid the cost and acrimony which can arise out of such an application subsequent to death. In my opinion Mrs Power, upon being apprised of the circumstances of Mrs Taylor and after being told that she failed in her duty as an executrix of her late mother’s estate towards her sister would in the circumstances have come to the view that some provision should be made for her sister …9

In Re Will of Jane,10 Hallen AsJ observed as follows, in circumstances where there were several family members with potential family provision claims: It is likely that one, or more, of Jane’s children, will make an application for such an order. In fact, the Plaintiff discloses such an intention in his affidavit. The second Defendant and/or the third Defendant may make such a claim if the statutory will in the form proposed by the

Plaintiff is made and they receive no share of her estate. Certainly each states, on oath, that her, and his, financial and material circumstances are apt for the making of a claim. It follows that whatever the result of this application, an application [for family provision] in respect of the property of Jane will be made. This seems to be the likelihood, despite the fact that, assuming the value of Jane’s estate is as estimated (leaving aside any claims that may be made against one, or more, of her children), each will be entitled to, on present estimates of value, at least $600,000.11

His Honour went on to consider the separate related statutory requirement of evidence relating to the circumstances of any person for whom provision might reasonably be expected to be made by the will of the proposed testator.12 Consideration was given to the financial and other circumstances of the plaintiff son and the proposed testator’s other children, and to their relationship with the proposed testator, as well as gifts made by her to her children during life, and contributions made by them to her. These matters are clearly of the kind relevant to the determination of family provision applications, but in this case, they were considered specifically in the context of whether the proposed testator might reasonably be expected to make provision for her children by her will. His Honour was not satisfied that the proposed will was an accurate reflection of the proposed testator’s testamentary intentions, or likely testamentary intentions, or that it was reasonably likely to be one that she would have made if she had testamentary capacity. The judgment does not state what weight was attached to the factual findings made in relation to the matters referred to above. Ultimately, the application failed because the core test could not be satisfied: … what is required by s 22(b) is an accurate reflection of Jane’s testamentary intentions, or likely testamentary intentions, and, that the proposed statutory will is reasonably likely to be one that Jane would have made if she had testamentary capacity. I am not satisfied on either matter. A will leaving the whole or her estate to the Plaintiff and omitting her two other children does not seem to have ever been Jane’s intention …13

[page 137] The family provision concept of ‘disentitling conduct’ was also referred to by his Honour, with the relevance of that conduct clearly going to the issue of whether the core test was satisfied: … There is no objectively provable evidence which leads me to conclude that there has been any disentitling conduct on the part of either the second Defendant, or the third Defendant, that

would lead to the conclusion that Jane would wish to reduce her, or his, equal share in her estate. I do not accept the complaints of the Plaintiff as having been established.14

The conduct of an interested person need not, however, amount to ‘disentitling conduct’, in the sense in which that term applies in relation to family provision claims, in order to be relevant to the court’s consideration of the core test. Other misconduct may be relevant; see 3.6. In Scott v Scott,15 the consideration of a potential family provision claim by an adult son, Jamie, against the estate of his mother the proposed testator, Marjorie, was an important factor in Lindsay J’s consideration of the statutory will application: An additional factor which needs to be borne in mind in the resolution of the proceedings currently before the court is that decisions taken by Dr Scott, Susan and Jamie in their conduct of the proceedings cannot realistically have been taken without some calculation about the potential future operation of Ch 3 (ss 55–100) of the Succession Act 2006 (NSW). That legislation now governs the court’s jurisdiction to grant ‘family provision orders’, in favour of ‘eligible persons’, in relation to deceased estates. … Each of Susan and Jamie is prospectively an ‘eligible person’ within the meaning of s 57 of the Succession Act in respect of the estates of Marjorie and Dr Scott … … The prospect of the Scott family becoming embroiled in family provision litigation after the respective deaths of the Scotts senior is a real one, not readily excluded from consideration. One or both of Susan and Jamie may well survive one or both of Marjorie and Dr Scott. Both sides of the record have made submissions referable to the prospect of Jamie, at least, making an application for family provision relief in relation, at least, to Marjorie’s deceased estate. Dr Scott, Susan and Susan’s daughters generously invited the court to make a statutory will for Marjorie, for the benefit of Jamie, on the basis that they would not seek to disturb the effect of such a will via subsequent family provision proceedings. As an actual and prospective benefactor of his children, Dr Scott must have Ch 3 of the Succession Act prominently in mind in his ‘estate planning’ calculations. … What’s the point in making an order for a statutory will that is unlikely to settle any controversy and may, indeed, serve only to distort a relatively simple family provision application, able to be based upon an assessment of Jamie’s then needs, after Marjorie’s death? 16

The provision that was proposed by his Honour to be made for Jamie by the statutory will was described as being analogous to that referred to in the family provision case Luciano v Rosenblum.17 The desire of his Honour to reduce, as far as possible, the risk of a future family provision dispute was clear: It is not easy to fix upon the proportions in which Marjorie would be likely to divide her residuary estate between Susan, Jamie and the grandchildren. I am inclined to think, however, that 20% would be allocated to the grandchildren and 40% to each of Susan and Jamie. This scheme of division of Marjorie’s estate could provide for Jamie something similar to the provision proposed by analogy with Luciano v Rosenblum. The cabin at 38 James Crescent provides a residence; indeed, Jamie’s present home. The adjoining block of land at 40 James

Crescent, provides an additional resource that could, in time, be sold (with or without the cabin) for the purpose of funding the purchase of alternative

[page 138] accommodation or providing capital or income for other purposes. Given the nature of Marjorie’s estate (the King’s Point properties, shares and cash), a 40% share of her residuary estate is likely to provide Jamie with a liquid fund available for application towards current expenses or investment.18

Hill v Hill19 involved an application by an adult daughter to increase the provision made for her by her mother, from half of the residuary estate under her existing will, to all of her residuary estate under a statutory will. The application was approved, primarily because the relationship between the daughter and her mother was found to have improved since the existing will was made, to the point that the proposed testator was likely to intend to increase the provision for her. An argument was made by State Trustees on behalf of the proposed testator, and by the charity that stood to lose its benefit in the existing will, to the effect that the daughter could make a family provision application following her mother’s death if she required additional provision.20 Byrne J said the following about that submission: … I accept that the task of the court in an application such as this is different from that in a Testators Family Maintenance application. Nevertheless, I should have regard to the fact that Mrs Hill, if she were today of testamentary capacity, would consult a competent solicitor who would advise her of the prospect that her daughter may make an application after her death for further provision. In so doing the daughter might bring forward her own medical condition and lack of means and her relationship with her mother in support of the existence of a testamentary duty unfulfilled. Mrs Hill in these circumstances would be advised of the financial impact of the likely costs orders in the event of such an application.21

Those comments should be read in the context of his Honour already having found that the proposed testator had changed her intentions in favour of her daughter, irrespective of her potential family provision rights. That changed intention, rather than recognition of the merits or potential costs of a family provision claim, was the key reason why the application succeeded. In State Trustees Limited v Do and Nguyen,22 the needs and claims of the sister, Olga, of the proposed testator resulted in additional provision being made for her, compared with that made for the other siblings of the proposed

testator. There was evidence that Olga had significant financial need, was in ill-health, and had a strong relationship with the proposed testator. These factors led Bell J to be satisfied that the proposed testator would likely have intended to make additional provision for Olga. Taking into account Olga’s right to make a claim for further and better provision, his Honour considered that an additional disposition of 12.5 per cent of the estate should be made in her favour. In Saunders v Pedemont,23 the relevance of potential family provision claims was considered, with the applicant arguing that if the proposed testator had testamentary capacity and been properly advised, he would have considered potential claims being made by the other family members. This was countered by the respondent, who argued that those family members had no financial need, and that should be contrasted with her poor financial position. Noting the different approach of the court in a statutory will application compared to a family provision application, Habersberger J concluded that after considering the likelihood of family provision applications being made, he did not alter his view that the application should be refused. [page 139] In Bielby v Denny,24 where orders were made that effectively sanctioned a compromise that had been reached between the parties, one of the various factors that was taken into account by the court was the risk that if a statutory will was not made, a family provision claim may be made that would result in an order against the estate. The possibility of a future family provision claim may also be taken into account as a factor relevant to the court’s consideration of whether an urgent application should proceed to be heard, rather than adjourned. This occurred in Lawrie v Hwang,25 where in considering an adjournment request by the respondent, one the matters referred to by Ann Lyons J was as follows: … I also take into account the fact that even if the application is successful, Ms Hwang’s rights are not extinguished as it would seem that Ms Hwang would still have rights under s 41 of the Succession Act to bring an application for provision out of the estate upon Mr Lawrie’s death, although no doubt her conduct would be a very relevant factor.26

Family Provision Claims Against Estates Where a Statutory Will has been Made 6.3 The fact that the court has made, or refused to make, a statutory will (or codicil or revocation) does not preclude an application for family provision being made in relation to the estate of the proposed testator after their death. In either case, a family provision order can be made against the estate. There have so far been no published decisions involving a family provision claim against a statutory will. Where a statutory will (or codicil or revocation) has been made, the court has engaged in a detailed consideration of the listed information, which is necessarily comprehensive, and arrived at the conclusion that a will (or codicil or revocation) should be made in certain terms. That careful analysis ought in most cases to reduce the likelihood of a subsequent family provision claim being made, and the likelihood of any claim succeeding. It can be seen from the breadth of potential situations in which a statutory will (or codicil or revocation) may be required (see Chapter 3) that in many cases the rationale is that it remedies a specific situation that has arisen, so that once that has been attended to, there may be no reason for a family provision claim to be made. Further, the fact that a court has adjudicated on the matter of what the proposed testator’s will should provide may, from the perspective of those involved, provide a degree of finality. The potential utility of a statutory will application, instead of a family provision claim after the death of the proposed testator, was noted by Palmer J in the family provision case of Stephens v Perpetual Trustee Company Ltd.27 In each of the Australian jurisdictions, there is a degree of overlap between the factors relevant to a family provision application, and those relevant to a statutory will application. However, there are some critical differences between the requirements that need to be met on such applications. The first of these is the core test itself. In statutory will proceedings, the court must aim to do what the proposed testator would be likely to have done. In family provision proceedings, the approach is almost the complete opposite, with any order of the

[page 140] court overriding what the proposed testator has in fact done, and instead effecting the provision that they ought to have made. The second difference is the timing of the consideration of the circumstances and claims of the potential family provision applicant. In statutory will proceedings, the court considers the circumstances of the applicant and other interested persons at the time of the hearing, and also what those circumstances might be in the future. In family provision proceedings, the court considers adequacy of provision on the basis of circumstances as they stand at the date of death (in relation to the first stage of the Singer v Berghouse28 test) and at the date of hearing (in relation to the second stage). This timing difference was noted by Palmer J in Re Fenwick:29 Accordingly, if an application for a statutory will is made in respect of an incapacitated person who clearly has not much time to live, the court may consider it desirable to hear a contested putative family provision claim in the course of the leave application in order to decide whether the terms of the statutory will are appropriate, within the meaning of s 22(c). The court may take the view that the circumstances of the putative claimant, and the other relevant circumstances, are not likely to change materially between the making of the statutory will and the time that a family provision claim would be heard in the normal course of events. On the other hand, however, when the incapacitated person is likely to live for some time, as in many nil capacity and pre-empted capacity cases, the court should be very slow to hear a contested family provision claim in the course of the statutory will application. The putative family provision claimant should normally be left to make his or her application for a statutory will provision when and if the relevant circumstances warranting such an application have reached a state of immutability during the life of the incapacitated person. If that does not happen, he or she should be left to pursue a family provision claim as such under Ch 3 Succession Act.30

His Honour’s reference to the court hearing a contested putative family provision claim should not be misunderstood. The court does not adjudicate upon a family provision claim on the hearing of a statutory will application, but the facts relevant to establishing such a claim are taken into account as part of the court’s consideration of the core test and other threshold requirements. The third difference is that consideration of a potential family provision claim is very different from considering an actual claim. While the potential claims of a parent, child or other interested person who is served with notice of a statutory will application but does not participate may be noted as one of

many factors, their full claim may not be before the court and considered in the same way as if they make a family provision claim after death. Notwithstanding these differences, the factual findings made by a court on hearing a statutory will application and the court’s reasons for making an order authorising the making of a statutory will are matters that could be taken into account on the hearing of a family provision application. In Tasmania, there is a specific statutory provision to this effect; the Testator’s Family Maintenance Act 1912 (Tas) s 8A(1A) provides: (1A) Where an application under section 3(1) relates to a will made under Part 3 of the Wills Act 2008 by the Guardianship and Administration Board or the Court, the Court or judge may have regard to the records of the Board or Court relating to the person for whom the will was made and the reasons given by the Board or Court for making an order authorising the making or alteration of a will in specific terms.

[page 141] In CMPA (Statutory Will),31 the Guardianship and Administration Board, in publishing its reasons and orders in a de-identified form, stated32 that it was doing so ‘if necessary, for the purposes of’ s 8A(1A).

New South Wales 6.4 In New South Wales, two further aspects of the family provision legislation require consideration: the release of a person’s rights to apply for a family provision order, and ‘notional estate’. These matters are particular to New South Wales.

Release of rights 6.5 New South Wales is the only Australian jurisdiction that allows a person to ‘contract out’ of family provision by releasing their rights to apply for a family provision order, with the approval of the court. The relevant statutory provision is the Succession Act 2006 (NSW) s 95: 95 Release of rights under Chapter (1) A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been

revoked by the Court. (2) Proceedings for the approval by the Court of a release of a person’s rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order. (3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person. (4) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether …

In all other Australian jurisdictions, an agreement to release family provision rights or not to pursue a family provision claim is ineffective, on the grounds of public policy.33 In respect of statutory will applications made in New South Wales, a question arises as to whether it may in some circumstances be appropriate for an applicant or other interested person to release their rights pursuant to s 95, in connection with the statutory will application. The potential for these two matters to be dealt with in the same application was noted in Scott v Scott:34 All parties must also have had in their minds, at least for a time, the possibility that, if a family settlement could be agreed upon for the purpose of bringing to an end not only the current proceedings, but prospective family provision proceedings, the court might be invited: first, to approve a release of rights under Ch 3 of the Succession Act (pursuant to s 95 of the Act) in anticipation of the death, at least, of Dr Scott; and, secondly, to approach the application for a court authorised, ‘statutory will’ for Marjorie (pursuant to ss 18–26 of the Succession Act) with greater certainty than might otherwise be available about the prospect that orders made for the final determination of these proceedings will bring to an end litigation between Susan, Jamie and Dr Scott about the family inheritance of the younger generation of the Scott family. … in the absence of court approval of a release of Susan’s and (perhaps more importantly) Jamie’s prospective rights to apply for family provision relief in relation to the deceased estates of Marjorie and Dr Scott, there is a live issue about the utility

[page 142] of any order that might be made in these proceedings for a statutory will to be made in Marjorie’s name … What’s the point in making an order for a statutory will that is unlikely to settle any controversy and may, indeed, serve only to distort a relatively simple family provision application, able to be based upon an assessment of Jamie’s then needs, after Marjorie’s death? 35

In appropriate circumstances, a release of rights application could support a position taken by an applicant or other interested person in relation to a proposed statutory will, by providing increased certainty as to the ultimate devolution of the proposed testator’s estate. This may assist the court in its

consideration of whether the core test is met, and whether it is appropriate that the order be made. The possibility of a release of rights could also be taken into account, in appropriate cases, during consultation or negotiation between the applicant and other interested persons. A release could be factored into proposed terms of compromise, subject to the court being satisfied as to such terms (see 4.27), thereby enabling the parties to reach a binding settlement of all issues. Importantly, for a release of rights to be approved, the person proposing to provide the release must make an application under s 95. As is evident from Scott v Scott,36 the court cannot impose a release of rights on the hearing of a statutory will application. Similarly, the applicant on a statutory will application, or any other party or interested person, cannot require a release of rights by any other person.

Notional estate 6.6 The notional estate provisions in New South Wales may also be relevant in the context of statutory will applications. This is because they can have the effect of extending the court’s jurisdiction when deciding a family provision claim beyond that of the court when deciding a statutory will application. The notional estate provisions enable the court in New South Wales in certain circumstances to designate and make awards of provision from property that does not form part of the actual estate of the testator.37 The Succession Act 2008 (NSW) s 80 is one of the powers that the court has: 80

Notional estate order may be made where estate affected by relevant property transaction (1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that the deceased person entered into a relevant property transaction before his or her death and that the transaction is a transaction to which this section applies. …

No other Australian jurisdiction has notional estate provisions. Importantly, the Supreme Court of New South Wales does not, when considering statutory will applications, have any notional estate powers. These powers only apply after the death of the proposed testator. However, the consideration of potential family provision claims must in New South

Wales necessarily include a consideration of the relevance of notional estate to those potential claims. 1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

Family Provision Act 1969 (ACT); Succession Act 2006 (NSW) Chapter 3; Family Provision Act 1970 (NT); Succession Act 1981 (Qld) Part 4; Inheritance (Family Provision) Act 1972 (SA); Testator’s Family Maintenance Act 1912 (Tas); Administration and Probate Act 1958 (Vic) Part IV; Family Provision Act 1972 (WA). Wills Act 1968 (ACT) s 16B(2); see 9.1; Succession Act 2006 (NSW) s 19; see 9.2; Wills Act 2000 (NT) s 20(2); see 9.3; Succession Act 1981 (Qld) s 23; see 9.4; Wills Act 1936 (SA) s 7(4); see 9.5; Wills Act 2008 (Tas) s 23(2); see 9.6; Wills Act 1997 (Vic) s 28; see 9.7. In South Australia, pursuant to the Wills Act 1936 s 7(4)(d)(iii), information is to be provided as to ‘the interests of any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die’. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. At [194]. At [196]. At [197]. [2000] VSC 304; see 8.42. At [98]–[104]. [2011] NSWSC 624; see 8.9. At [187]–[188]. At [189]–[192]. At [203]–[204]. At [205]. (2012) 7 ASTLR 299; [2012] NSWSC 1541; see 8.12. At [52]–[59]. (1985) 2 NSWLR 65. At [316]–[317]. [2001] VSC 83; see 8.43. At [14]. At [14]. [2011] VSC 45; see 8.50. [2012] VSC 574; see 8.51. Unreported, Supreme Court of Queensland, No 10819 of 2009, Mullins J, 30 November 2009; see 8.19. [2013] QSC 289; see 8.29. At [29]. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 15; [2009] NSWSC 1078 at [15]–[16]. (1994) 181 CLR 201; [1994] HCA 40. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. At [198]–[199]. [2005] TASGAB 1; see 8.40. At [1]. Lieberman v Morris (1944) 69 CLR 69; Barns v Barns (2003) 214 CLR 169. (2012) 7 ASTLR 299; [2012] NSWSC 1541; see 8.12. At [57]–[59].

36. (2012) 7 ASTLR 299; [2012] NSWSC 1541; see 8.12. 37. See B Hor, ‘NSW Notional Estate Provisions — Upsetting the Best Laid Plans’ (2013) 16(4) REP 79.

[page 143]

CHAPTER 7 Costs 7.1

General Principles Successful applications Unsuccessful applications Discontinued applications Examples of Costs Orders

7.2 7.3 7.4 7.5

Would Specific Statutory Costs Provisions be Desirable?

7.6

General Principles 7.1 The court has a wide discretion as to costs on the hearing of a statutory will application (see 2.25). The statutory wills legislation does not state any principles to be applied in determining whether costs orders should be made, and if so, on what basis. It is possible to state some general principles that are evident from the cases to date. However, it is clear that the costs position depends to a large extent on the particular facts and outcome of the case.

Successful applications 7.2 Where the application is unopposed and is successful, the costs position is straightforward in many cases. For example, Re Rak1 was a successful, unopposed application made by the parents of the proposed testator. An order was made that the costs of all parties (the plaintiffs, the proposed testator’s

brother, and the proposed testator’s sister who by order of the court acted as litigation guardian for that brother) be taxed as between solicitor and client and paid from the proposed testator’s estate. Gray J observed,2 in making this order, that the application was a ‘genuine’ one, made in the absence of any will, and was a reasonable one in the circumstances. The costs orders made in some other unopposed successful applications are noted at 7.5. If an opposed application is successful, the costs position is more complex. This is illustrated by the early Victorian statutory will costs decision, Hill v Hill (No 2).3 In that case, the application had been brought by the proposed testator’s mother. By order of Beach J, the proposed testator and the Cat Protection Society were added as defendants. State Trustees filed an appearance as the proposed testator’s administrator, and filed material in opposition to the application. At trial, the State Trustees opposed [page 144] the making of the orders sought. The Society similarly filed material in opposition and was represented at trial, opposing the application. In analysing the costs position, Byrne J noted that there was no guidance as to costs contained in the Wills Act 1997 (Vic), and identified the key issue as follows: The issue as to costs before me came down to the claimed entitlement of the Society to have its costs from the fund representing the assets of Mrs Hill, notwithstanding that it was an unsuccessful party in this proceeding. The daughter’s position was that each party should bear its own costs but that, if the Society obtained an order for costs, she, too, should have hers from the fund.4

It appears therefore that the daughter, notwithstanding that she was a successful applicant, did not press for an order for her own costs. The position of State Trustees was that no order for costs should be made, so that the costs of the litigation guardian and State Trustees on behalf of the proposed testator should be paid out of her assets. It was suggested by counsel for the plaintiff that the costs principles that apply to testamentary capacity cases could provide guidance, but his Honour was not persuaded by that argument: … I do not think these authorities are apposite to a case such as the present where the misfortune of Mrs Hill is that she is incapable of making a will to give effect to her intention as I have found it. There is no estate to which the contending parties assert an entitlement under

some will or other instrument. There is no public interest in the present application as there is in the true testamentary capacity case where the court must be concerned that the devolution of assets take place in accordance with a will properly made. Mrs Hill is not to be criticised for having failed to make a will after 1996. For the same reason, I put to one side those cases which deal with the costs of contending parties in a case where the terms of the will or a trust deed may be uncertain.5

An analogy could be drawn, his Honour said, with family provision cases, where the general rule is that, as between the contending parties, a successful applicant will have their costs on a solicitor and client basis out of the estate, and an unsuccessful defendant may have its costs on the same basis when it is reasonable to have resisted the claim. However, the analogy was not ideal: ‘… even these cases are not truly analogous because, in a case such as the present, the will-maker is still alive and entitled, so long as she lives, to enjoy her assets undiminished by the burden of paying the costs of those whose claims anticipate her demise.’6 His Honour determined that the more apposite approach was for the ordinary rule in contentious litigation to apply: costs follow the event. He said as follows: … In such a case as the present, the contending parties, on the one hand, are seeking a benefit, and on the other are protecting their expected benefit from the estate in due course. Neither is seeking to enforce or to protect a presently existing right to a fund so that the equity rule does not apply. The present plaintiff, unlike a plaintiff in a [family provision] application, asserts no moral or other claim upon the bounty of the will-maker; she seeks to establish and to give effect to the inferred intention of her mother. If she is successful, her costs in due course may be recouped from the estate which she may inherit. The beneficiary, for its part, defends the expectation of a testamentary benefit. If successful, it too may recover its costs from this benefit if and when it is received. In each case, however, there is no certainty that the successful party will enjoy this benefit; the [proposed testator’s existing] will, like the statutory will, may

[page 145] be revoked or changed by a further statutory will or by the will-maker herself, upon regaining testamentary capacity.7 [emphasis added]

However, the position of the Society, as defendant, was noted to be different to that which applied to unsuccessful defendants in other kinds of estate litigation: I am mindful of the fact that the Society is a party who has been brought into the litigation at the behest of the plaintiff as a person having ‘a genuine interest in the matter’.8 The Society asserts

an expectancy as a beneficiary under a valid will which could not otherwise be revoked or changed so long as the will-maker lacks capacity. Furthermore, its presence in the litigation ensures that the court has the benefit of the evidence and argument of the party whose interests under the existing will compete with the plaintiff’s claim. In Re HMF9 Goulding J observed that it was desirable that such persons be joined for this purpose in an application under the comparable English legislation. It would be a matter of regret if they were dissuaded from providing this assistance for fear that they might be obliged to do so at their own expense. On the other hand, in many cases it will be a desire to preserve its expectancy that provides such a beneficiary with the incentive to incur legal costs for that purpose, if it be advised to do so.10 [emphasis added]

Applying these principles, his Honour started from the proposition that, as an unsuccessful party, the Society ought not to obtain its costs, but indicated that other factors also needed to be taken into account that weighed against an order being made requiring it to pay the plaintiff’s costs: … in an application such as the present, this rule may yield to special circumstances, I have regard also to the modest size of the assets of the will-maker who is, of course, in no way responsible for this claim. Such enjoyment of life which she now has by reason of these assets should not lightly be interfered with. I have regard, too, to the fact that her only substantial asset is a piece of real estate which will have to be sold if the costs of the contending parties are to be paid from the estate. In such an event the financial position of the will-maker may indeed be precarious. Furthermore, if the statutory will is proved in due course, the burden of the costs of the Society will then fall upon the daughter as sole beneficiary. I have regard to the fact that the Society played a minor role in the proceeding. Apart from filing material in opposition, it was content to adopt the case presented on behalf of State Trustees. In saying this, I offer no criticism of the Society or its legal representatives. There was, as I indicated at the outset of the trial, no need for it to duplicate the work ably done on behalf of State Trustees. These parties, as it appeared to me, had a common interest in opposing the application and on the same basis. I have no regard to the fact that the Society is a charity, as put on its behalf, nor to the fact that it has ample financial resources, as put on behalf of the daughter.11 [emphasis added]

His Honour was satisfied that the ‘justice of the case’ required that the Society bear its own costs. The outcome was therefore that no order was made as to costs. In Plowright v Burge,12 Hansen J considered the position of an applicant who does not have a personal interest as a beneficiary of the proposed testator in the outcome of the application. In that case, the applicant was the proposed testator’s administrator. The application was successful. His Honour said as follows: On questions of costs it is important to bear in mind the actual circumstances of the particular case. In this case the plaintiff brought the application as administrator of [the proposed testator’s] estate. He had no personal financial interest in the outcome. He did not stand to gain, or lose, by the application succeeding or failing. He was

[page 146] a disinterested administrator. As such, in my view, he would at least normally be entitled to recoup his costs out of the estate of the represented person. That does not mean that where appropriate he may not recover costs from another party. Then, as to the defendant, he did not initiate a claim for a statutory will in his favour but opposed the application seeking to retain the benefit for himself under the [existing] will. It is true, however, that in opposing the application he went far beyond the mere testing of the application to the area of positively advancing false evidence to bolster his opposition.13 [emphasis added]

The submissions as to costs that were made on behalf of the parties are considered at 8.49.

Unsuccessful applications 7.3 The general position as to costs where an application is unsuccessful was stated by Hallen AsJ in Re Will of Jane: The Act provides no guidance as to what should happen in relation to the costs of an application for approval of a proposed statutory will. In a case where the application fails, the general principle that costs follow the event might be appropriate, especially if the application is opposed and the person making the application seeks to benefit under the will that has been proposed. However, the burden of costs remains in the discretion of the court.14

His Honour provided a detailed analysis of relevant factors to be taken into account when considering the costs orders to be made following an unsuccessful application; see 8.9. Similarly, in Boulton v Sanders,15 Dodds-Streeton AJA said as follows: Where an application is brought by and for the benefit of persons including the applicant, rather than by a disinterested administrator, the ordinary principles governing costs in adversarial litigation properly apply. It should not be presumed that the estate, rather than an unsuccessful applicant, will be ordered to pay the costs of the proceeding merely because there is ‘a fair case of dispute’.16 In determining whether it is appropriate to exercise the discretion to order that the costs of [a statutory will application] be paid from the estate of a living but incapacitated person, the avoidance of any potentially adverse impact on that vulnerable person’s long-term security and welfare will always be an important consideration.17 [emphasis added]

Her Honour noted that little guidance could be drawn from the English authorities as to costs in statutory will applications, given the different nature of the legislation in the United Kingdom, under which the statutory willmaking power is but an aspect of a broad protection jurisdiction, without the

constraint imposed by the focus (in the Victorian legislation) on the proposed testator’s ‘likely intentions’. It is therefore clear that the starting point where the application is unsuccessful is that the applicant is likely to be ordered to pay their own costs and those of the other parties. The applicant’s costs will not usually be met from the proposed testator’s assets, although the court may at its discretion make such an order. [page 147] Some further relevant factors are apparent from the judgment of Debelle J in Hoffman v Waters,18 including the matter of whether the proposed testator has any existing will: A number of competing considerations bear upon what order should be made as to costs on an application under s 7. Where a will already exists, the contending parties are either seeking a benefit from the estate or are seeking to protect an existing benefit from the estate under the existing will: Hill v Hill (No 2) [2001] VSC 135 at [9]. In such a case any order for costs might follow the event. In Victoria, costs followed the event in Hill v Hill (No 2) and in Boulton v Sanders (No 2) [2003] VSC 409. In a case like the present, where no will exists and the will is proposed on behalf of a person who has never had testamentary capacity, a number of interests might properly be before the court. It is desirable that all relevant interests are before the court: Re HMF [1976] Ch 33 at 38. I agree with Byrne J in Hill v Hill (No 2) at [10] that it would be a matter for regret if those persons were dissuaded from providing assistance to the court for fear that they might be obliged to do so at their own expense.19

It should be noted that in Hill v Hill (No 2),20 the reference made by Byrne J to the desirability of persons providing assistance to the court was made in the context of his Honour’s consideration of the costs position of the defendant who had been joined to the proceeding;21 see 7.2. Debelle J continued as follows: In my view, there is a strong argument that, since parties are seeking to advance individual interests, each party should bear his own costs. Such an order was made in Monger v Taylor. That consideration must be weighed against the fact that there is a public interest in a person being able to make a will so as to enable the orderly disposition of his assets on death. So, where the applicant is the guardian of the person who lacks testamentary capacity, there might be good reason to allow the applicant to recover his costs out of the estate of the person who lacked testamentary capacity. Another relevant factor is that the estate might be small or, as in this case, be intended to provide for the maintenance, well-being and support of the person who lacks testamentary capacity. In either case, it would be entirely

inappropriate for the estate to be depleted by the costs of an application under s 7. Plainly, careful consideration must be given to the issue of costs. The order as to costs will depend upon the individual facts and circumstances of each case.22 [emphasis added]

A further costs judgment that should be noted is Saunders v Pedemont (No 2).23 The submissions made as to costs in that case are summarised at 8.51. Habersberger J noted in particular the position of the plaintiff, who was not in the position of a disinterested applicant: … I do not accept that this was an application which had to be brought before the court or that there was any public interest in the litigation. Mr Macquire had a will. The plaintiff chose in his own interest and that of his wife and his brother and his wife to apply to have that will revoked by a statutory will benefiting the four of them. On the other hand, the defendant was not merely a contradictor, she was seeking to protect the benefit she would receive under her grandfather’s existing will. …24

His Honour characterised the application as being adversarial litigation, in which costs should follow the event. The case also contains a consideration of the basis on which the defendant’s costs should be ordered to be paid, and whether the difference [page 148] between the amount of those costs on a solicitor-client basis and the amount of those costs on a party-party basis should be recovered from the estate. On this, his Honour concluded as follows: I do not consider that the assets of Mr Macquire, who may yet survive for a few more years, should be diminished by such a costs order. It was in the defendant’s own interest to oppose the plaintiff’s application, which she successfully did and she will receive the benefit of a costs order in her favour. In my opinion, the defendant is in no different situation from any party to adversarial litigation with respect to the fact that costs ordered to be taxed on a party and party basis do not normally provide the recipient of such an order with a full recovery. She has no entitlement to recover the balance of her costs from the estate of Mr Macquire.25

As regards the costs of State Trustees, the administrator of the proposed testator, his Honour said: … I consider that there should be an order that the plaintiff pay State Trustees’ costs, even though it was never formally made a party. Once it was clear that the person with the greatest interest and relevant knowledge was going to oppose the application, State Trustees sensibly did not duplicate costs by seeking to be added as a defendant and participating in the hearing. Instead, it limited its involvement in the proceeding, thereby keeping down the amount of costs it would incur. But it was obliged, in my opinion, to protect Mr Macquire’s estate from costs orders and as such it was appropriate for it to be represented at the directions hearing, the start

of the trial and the argument about costs. Had the plaintiff not made the application for a statutory will, those costs and the costs of preparing Mr Misale’s affidavit and any other costs relating to the proceeding would not have been incurred. I see no reason why the plaintiff should not, therefore, be ordered to pay State Trustees’ costs rather than there being an order that all of State Trustees’ costs be paid from the estate of Mr Macquire.26

An order was made that the plaintiff pay the costs of State Trustees on a party-party basis. However, a further order was made that State Trustees be reimbursed from the estate the difference between the amount of its costs of the proceeding on a solicitor-client basis, and the amount of its costs on a party-party basis recoverable from the plaintiff. His Honour’s reasons for this were that: … It may be that State Trustees can recover the difference in costs as part of the normal costs of administering Mr Macquire’s affairs, but … I consider that I should remove any doubt about its entitlement. Although such an order would have the regrettable consequence that Mr Macquire’s estate will be slightly diminished if there is in fact any shortfall on costs, it seems to me to be an appropriate step to make such an order. …27

Re Keane; Mace v Malone (No 2)28 provides an excellent illustration of the complexity of the submissions that may need to be made on costs, in unsuccessful proceedings that involve several parties; see 8.22.

Discontinued applications 7.4 An applicant who commences a statutory will application but subsequently discontinues it may be ordered to pay the defendant’s costs, as well as bearing their own costs. This occurred in Jones v Sherlock.29 The application was made by the proposed testator’s mother. Notice of it was provided to the proposed testator’s father, who applied to be joined as a defendant. Brereton J outlined the competing considerations, as follows: [page 149] I have not found the costs issue a straightforward one. On the one hand, the application was not unreasonably made by the plaintiff in the first place, and it was not made in the course of ordinary adversarial litigation. The defendant chose to intervene in the proceedings without being required to do so, and in that sense it was the defendant’s choice to incur costs by becoming involved and opposing the application. But two factors are decisive ultimately. The first is that the will, leave to make which was sought, substantially duplicated what would transpire on intestacy in any event, so that the need for the application was at best dubious. Secondly, and more significantly, the defendant’s intervention has been totally vindicated, by

the ultimate decision of the plaintiff to seek leave to discontinue the proceedings.30

In these circumstances, an order was made that the plaintiff pay the defendant’s costs of the proceedings. The applicant may be at risk of an adverse costs outcome even if the application has merit, if the application does not reach its conclusion because the proposed testator dies during the proceeding.

Examples of Costs Orders 7.5 In addition to the cases considered above, some further examples of costs orders made in other published cases are as follows: In Re Manley,31 it was noted that the Health Services Charitable Gifts Board had been the only contradictor before the court, and had a proper interest in the proceedings. The plaintiffs’ application having failed, an order was made that they pay the Board’s costs on a party-party basis. The case of Application by Peter Leslie Kelso32 concerned a successful unopposed application by a solicitor on behalf of the proposed testator. An order was made that the costs of the application be paid out of the proposed testator’s estate on a solicitor-client basis. Re Estate of S33 was similarly a successful unopposed application. The plaintiff was named as executor in the proposed will and a beneficiary as to one third of the residuary estate. The costs of the application were ordered to be paid out of the estate of ‘S’ on a solicitor-client basis. McKay v McKay34 and Re Matsis35 were successful, unopposed applications. In both cases, the costs of the applicant were ordered to be paid out of the estate of the proposed testator, on the indemnity basis. In Re Keane; Mace v Malone (No 2),36 the costs judgment concerned an unsuccessful application. Daubney J found that the benefit of success in the litigation was for the respondent, who protected their ultimate entitlement to receive the estate of the proposed testator, Patrick, when he died. There was found to be no benefit to Patrick in the litigation. His Honour saw no reason why the assets that were available to maintain Patrick in a nursing home should in any way be diminished by ‘this spat between the competing camps in the family’.37 In the circumstances, there

was found to be no reason to depart from the usual rule that costs follow the [page 150] event. An order was made that the applicant pay the respondent’s costs of and incidental to the application, to be assessed on standard (partyparty) basis. In Hickson v Humphrey,38 the application was unsuccessfully opposed by the proposed testator’s father. An order was nevertheless made that the father’s costs be paid out of the proposed testator’s estate (in addition to the costs of the applicant), on the basis that he was entitled to be heard on the application.

Would Specific Statutory Costs Provisions be Desirable? 7.6 The Victorian Law Reform Commission has recently considered whether it would be desirable for some specific costs provisions to be introduced into the statutory wills legislation. The Commission’s observations and conclusions were as follows: In the consultation paper on wills, the Commission outlined the general principles that courts have developed in this area and asked whether specific legislative costs provisions should be enacted for statutory will applications. Most submissions that addressed this issue indicated a preference for the court to retain its general discretion over costs. Reasons given for this included that the current principles are appropriate and fair and must be applied on a case by case basis and, given that only a small number of applications are made, special provisions need not be enacted. Other submissions argued that more specific costs rules should apply, for example: A distinction should be made between interested and disinterested applicants. There should be a statutory presumption that disinterested applicants receive their costs out of the estate at the time of judgment. There should be a statutory presumption that a successful interested applicant, and any defendant beneficiary or executor, should receive their costs from the incapacitated person’s estate after death. In the Commission’s view, it is appropriate for the court to retain a general discretion in

relation to costs for statutory will applications. The costs principles have been developing in a consistent way across Australian jurisdictions and no other jurisdiction has legislative costs principles in this field. The principles that have been developed so far are generally perceived as fair and appropriate and the Commission considers that they should remain in the discretion of the court.39

Similar comments can be made in relation to the application of the costs principles to date in the other Australian jurisdictions. The Commission also provided an insight into costs orders that have been made in Victoria in cases where an application for a statutory will has been successful. In its review of 25 cases of that type, the Commission found that: (1) costs were paid from the estate of the proposed testator in 15 cases, 10 of which involved an applicant who received a benefit under the statutory will; (2) no order for costs was made in nine cases; and (3) costs were ordered to be paid by an unsuccessful defendant in one case.40 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

17. 18. 19. 20. 21. 22.

[2009] SASC 288; see 8.35. At [27]. [2001] VSC 135; see 8.43. At [5]. At [7]. At [8]. At [9]. Wills Act 1997 (Vic) s 29(e). [1976] Ch 33 ; [1975] 2 All ER 795. At [10]. At [12]. [2006] VSC 69; see 8.49. At [10] and [11]. [2011] NSWSC 624 at [100]; see 8.9. (2004) 9 VR 495; [2004] VSCA 122; see 8.47. Her Honour noted earlier in her reasons, at [143], that in Re D(J) [1982] Ch 237, Megarry V-C had endorsed the view taken in Re CEFD [1963] 1 WLR 329 that ‘in any fair case of dispute those concerned have a reasonable expectation of having their costs, on a common fund basis, paid out of the estate so far as the hearing at first instance in concerned…’. At [153]–[154]. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. At [22] and [23]. [2001] VSC 135; see 8.43. This observation was made by Habersberger J in Saunders v Pedemont (No 2) [2012] VSC 601 at [13]. At [25].

23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

[2012] VSC 601; see 8.51. At [12]. At [19]. At [20]. At [22]. [2011] QSC 98. [2009] NSWSC 246. At [4]–[6]. [2013] SASC 134; see 8.39. [2010] NSWSC 357; see 8.4. [2012] NSWSC 1281; see 8.11. (2011) 4 ASTLR 429; [2011] QSC 230; see 8.24. Re Matsis; Charalambous v Charalambous [2012] QSC 349; see 8.26. [2011] QSC 98; see 8.22. At [5]. Unreported, Supreme Court of Queensland, No 384 of 2011, de Jersey CJ, 8 April 2011; see 8.23. Victorian Law Reform Commission, ‘Succession Laws’, Report, August 2013 at [3.52]–[3.55]; see 2.28. 40. Victorian Law Reform Commission, ‘Succession Laws’, Report, August 2013 at [3.51].

[page 151]

CHAPTER 8 Review of Case Law Australian Capital Territory Re DH; Application by JE and SM

8.1

New South Wales Re Fenwick; Application of J R Fenwick & Re Charles AB v CB Application by Peter Leslie Kelso Re Estate of Crawley Application of Sultana Application of Wosif Elayoubi Re Levy Estate — Application of Samuels Re Will of Jane Hausfeld v Hausfeld Re Estate of S Scott v Scott Burns v The Estate of Troy Mitchell Burns, a Protected Person Northern Territory

8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11 8.12 8.13 8.14

Queensland Re Winstanley Re Joachim

8.15 8.16

Deecke v Deecke Re Weick Bielby v Denny Payne v Smyth as Litigation Guardian for Welk Bock v Bock Re Keane; Mace v Malone Hickson v Humphrey McKay v McKay Wickham v Smith Re Matsis; Charalambous v Charalambous Sadler v Eggmolesse Re Kann Lawrie v Hwang Doughan v Straguszi

8.17 8.18 8.19 8.20 8.21 8.22 8.23 8.24 8.25 8.26 8.27 8.28 8.29 8.30 [page 152]

South Australia Public Trustee v Phillips No SCCIV-03-800 Bryant v Blake Hoffman v Waters Jeavons v Chapman (No 2) Re Rak Griffin v Boardman Re Grace Geraldine Brown Re Martina Pieternella de Jager Re Manley Tasmania

8.31 8.32 8.33 8.34 8.35 8.36 8.37 8.38 8.39

CMPA (Statutory Will) EKI (Statutory Will)

8.40 8.41

Victoria Monger v Taylor Hill v Hill Re Fletcher; Ex parte Papaleo State Trustees Limited v Hayden Re Palmer Boulton v Sanders De Gois v Korp Plowright v Burge State Trustees Limited v Do and Nguyen Saunders v Pedemont

8.42 8.43 8.44 8.45 8.46 8.47 8.48 8.49 8.50 8.51

Western Australia In the Will of Doris May Frances Davies

8.52

In this chapter, the parties, proposed testator and other interested persons are referred to, without disrespect, by their first names, for ease of reference.

Australian Capital Territory Re DH; Application by JE and SM1 Lost capacity — making a will — application unopposed — conduct of interested persons — notice to interested persons 8.1 This was the first application for a statutory will in the Australian Capital Territory. Harper M noted that the applicable Australian Capital Territory legislation was very similar to the legislation enacted in New South Wales. [page 153]

The application was brought in respect of a male in his late sixties who was named as respondent but for privacy reasons was referred to as ‘DH’. For the last seven years, he had lived in a secure dementia ward. DH had never been married or fathered any children. He was an only child. His parents both died in the early 1980s. He had migrated to Australia in about 1964. In 1990, he commenced a de facto relationship with the applicant ‘JE’, a lady a few years younger than him, with three children. They had been living together for not much more than a year when DH had a heart attack, resulting in permanent brain damage. He was then aged 50. It was likely that they would have married had this catastrophe not occurred. JE and her daughter ‘SM’ were appointed as guardians and managers of DH. DH’s assets were approximately $1.1 million. DH had never made a will. The applicant had engaged a genealogist in England. Despite inquiries, no living relatives who might take on intestacy had been identified. DH had had no contact with any relatives for many years, possibly since he had migrated to Australia. His Honour said: The devotion shown to the respondent by the applicant speaks for itself. I have no doubt that, if he had capacity to make a will, he would be motivated to make a will along the lines of the will drafted by the applicant’s solicitors. The draft will appoints the applicant and her daughter as executors, and leaves his estate to the applicant, or, if she fails to survive him, to her children in equal shares, with gifts over to her grandchildren in the event that any of her children does not survive him. The will is otherwise in conventional form, conferring wide but appropriate powers upon the executors.2

Leave was granted for the application to be made, and the orders sought in the originating application were made.

New South Wales Re Fenwick; Application of J R Fenwick & Re Charles3 Nil capacity — pre-empted capacity — lost capacity — making a will — amending a will — application unopposed — appropriate applicant — charitable gifts — conduct of interested persons — consideration of Re D(J)

— core test — evidence of intention — family provision — notice to interested persons — privacy — terms of statutory will 8.2 The following is limited to a summary of the facts and outcome in these proceedings. Further analysis is provided at 1.22. This case involved two distinct applications, with Palmer J providing a joint judgment dealing with both proceedings. Re Fenwick involved an application by John Fenwick for a statutory will to be made for his brother, Robert Fenwick, who was 60 years of age. Robert made a will in 1987, and then in 1997 he suffered a severe head injury in the workplace, which resulted in severe and permanent cognitive impairment. John was Robert’s full-time carer, and had also been appointed as his financial manager by the Guardianship Tribunal. The evidence was found to clearly demonstrate that Robert did not have any understanding of his affairs or testamentary arrangements, and that he lacked and would not recover testamentary capacity. Robert’s assets had a value of approximately $2 million. His existing 1997 will left his entire estate to John. If John did not survive Robert, then Robert’s estate was given to his children (of which there were none and it was virtually impossible that there would be any), [page 154] and in default of children, to such of his cousins, Rae and Joan, as survived him. Each of those potential beneficiaries was older than Robert, and all were said to have life threatening medical conditions that made it possible that Robert could outlive all of them, with the result that his estate would pass on intestacy. If that occurred, his only surviving relative who would take on intestacy was an uncle, Thomas, who was 84 years of age at the time of the trial. It was therefore a possibility that Robert’s estate could pass to the Crown as bona vacantia. John sought a codicil to the existing will, to provide that if he, Rae and Joan died before Robert, the estate would pass to the children of Rae and Joan. Since the proposed codicil sought to remove any possibility for Thomas to

benefit on intestacy, he was given notice of the proceeding, but did not appear. His Honour was satisfied that Thomas was the only relevant interested person, and that he did not wish to contest the application. His Honour noted that Robert had not had any association or relationship with any member of his extended family that could have supported a family provision claim, nor had he received any support from any charitable institution. His Honour then considered Robert’s likely intentions if he had testamentary capacity. It was noted that Robert’s estate was substantial, and that the terms of his existing will made it clear that he intended to avoid an intestacy. His Honour was satisfied that it was reasonably likely, being expressed as meaning that there was ‘a fairly good chance’, that if Robert had been able to make a decision about the selection of default beneficiaries if both Rae and Joan died before him he would have selected further beneficiaries, rather than allowing his estate to be distributed on intestacy. His Honour then considered whether the proposed default gifts to Rae and Joan’s children were the reasonably likely gifts that Robert would have made, and was satisfied that they were. This was on the basis that they were Robert’s next nearest family members, and because there was no other person who could assert any claim on his estate. It was found that John, as Robert’s financial manager and sole carer, was an appropriate person to make the application. It was noted that the matter was not contentious, and nothing gave rise to any doubt that the order should be made. Re Charles involved a very different situation to Re Fenwick, as it concerned an 11 year old, ‘Charles’, who had sustained severe injuries when he was four months of age. Charles’ injuries were consistent with ‘shaken baby syndrome’. His parents denied that they had injured him. Charles had been removed from his parents’ care, and was subject to a care order. A substantial victim of crime compensation award was made to Charles, with that amount being held for him on trust by the Public Trustee until the age of 18 years. It was noted that Charles’ life expectancy was likely to be diminished due to his injuries. There was no doubt that Charles lacked and always would lack testamentary capacity, as his intellectual disability was severe and permanent.

The application was made by the Minister for Community Services, who was formally responsible for Charles’ welfare. The application was made on the basis that the Minister believed Charles’ parents should not benefit in the event of an intestacy, but rather that Charles’ estate should go to his sister, with a default to the Sydney Children’s Hospital Foundation and the Spastic Centre, being two charities that provided benefits and care to disabled children such as Charles. His Honour reviewed the circumstances of Charles’ injuries, which included that the parents had not admitted any wrongdoing, but there was evidence from various sources giving rise to the possibility that they had been involved in his injuries. The Crown Solicitor had written to Charles’ parents before commencing the proceeding, setting out the terms of the will that would be sought. The parents [page 155] provided a joint letter stating that they had no objection to the proposed will, and that they did not wish at that time to be represented at the hearing. The parents were formally served with a copy of the summons, the affidavit and exhibits. They responded by a further joint letter, stating that they did not agree with where the funds comprising Charles’ estate came from and why they were awarded to Charles, and that they had always maintained their innocence. However, they also stated that they did not object to the proposed will, and did not wish to be represented. They were called at the hearing but did not appear. At the hearing, the Crown Solicitor produced evidence to attempt to show what Charles’ likely intentions may have been, in accordance with the approach taken in Re C (a patient).4 In relation to this, his Honour said as follows: For the reasons which I have discussed in paragraphs [174]–[176], I decline to perpetuate this fictitious test. I decline to pretend that an eleven year old child whose testamentary intentions are, and will always remain, a complete blank is a normal adult of at least eighteen years of age who has some concept of community standards of decency and fairness and that I am divining

what his testamentary intentions are likely to be. For the reasons I have given, I prefer to adopt the entirely objective approach to the questions posed by s 22(b).5

His Honour posed the question in terms of whether there was a ‘fairly good chance’ that a reasonable person, in Charles’ circumstances, would choose to die intestate leaving his assets to his parents. In relation to the cause of Charles’ injuries, his Honour noted that while there had been no charges or criminal finding, this was not the standard on which the court assessed ‘likely intentions’. The question was what Charles would be reasonably likely to do in the circumstances. His Honour was satisfied that the evidence raised a suspicion that Charles’ parents caused his injuries, and that they had chosen not to appear on being presented with the evidence and an inference of wrongdoing against them. On the other hand, it was noted that there was evidence that the parents visited Charles regularly, and demonstrated affection towards him. It was not necessary for the court to find whether or not the parents caused Charles’ injuries, but only whether there was a fairly good chance that a reasonable person in Charles’ position, faced with such evidence as there was as to the cause of those injuries, would decide not to permit their estate to pass to their parents on intestacy. The next question was whether there was a ‘fairly good chance’ that a reasonable person in the circumstances would make the will proposed, and this led to a consideration of the circumstances of Charles’ sister, including her visits to Charles. The potential moral claim of Charles’ carer of 10 years was also raised and recognised, however the carer had made it clear that she did not wish to receive anything from Charles’ estate. The judgment notes that had the carer not done so, the court would have required that some provision be made for her in the statutory will. His Honour concluded that it was not only ‘reasonably likely’ but ‘highly probable’ that a reasonable person in Charles’ circumstances would give all of his estate to his sister. It was found that there was a ‘fairly good chance’ that a reasonable person faced with Charles’ circumstances would further choose to benefit the two named charities. His Honour made the following observations on practice and procedure in New South Wales: The applications in Re Fenwick and Re Charles have been straightforward and unopposed. The evidence has been so clear and convincing as to all matters upon which the court

[page 156] must be satisfied under s 19 and s 22 of the Succession Act that there was no need for the court to see and hear any witness. Counsel for the applicants provided precise and well directed written submissions. There are likely to be many such applications in the future and it is desirable that they should be dealt with by the court as expeditiously as possible and with as little expense to the parties as possible. There is no need for straightforward, unopposed cases such as Re Fenwick and Re Charles to be heard in open court and for counsel to appear to make submissions. Such applications can be dealt with on the papers by a Judge in Chambers, pursuant to s 71(d) or s 71(f) Civil Procedure Act. Many applications for orders under the Protected Estates Act 1983 (NSW) and the Adoption Act 2000 (NSW) are dealt with in this way. If an application is, or may be, opposed it should be listed and heard in open court in the usual way. Likewise, if a Judge dealing with the matter in Chambers has reservations about the quality of the evidence adduced, the matter can be listed in court so that the Judge can see and hear the witnesses whose affidavit evidence is unsatisfactory. However, if the Judge merely has a query about a particular aspect of the information provided, the query may be addressed by a requisition from the Registrar. As with decisions made in Chambers in uncontested applications under the Protected Estates Act and the Adoption Act, there is no need for publication of reasons for a decision made in Chambers in straightforward, unopposed applications for a statutory will. Many of such applications will involve minors or mental health issues or matters of concern only to the immediate family members. There is no public interest in publishing reasons for judgment in such cases. Further, the dispensation of the requirement to give reasons in such applications will permit them to be dealt with far more quickly than otherwise. Of course, when an application is contested and heard in open court, reasons for the decision will be required in the normal way.6

AB v CB7 Pre-empted capacity — making a will — application unopposed — charitable gifts — conduct of interested persons — core test — notice to interested persons — privacy — separate representation 8.3 A month after delivering judgment in Re Fenwick,8 Palmer J heard this application for the authorisation of a statutory will on behalf of ‘CB’, a severely incapacitated girl who had lost capacity after suffering a very severe brain injury in a motor vehicle accident at the age of 16. CB was 21 years old at the time of the application. His Honour indicated that this was the first case to come before the court that involved ‘pre-empted capacity’, in the sense in which he had outlined that category in Re Fenwick, noting: … [CB] was sixteen at the time of the accident and she obviously had formed relationships, both familial and extra-familial. She would have been able to express views about how she

would wish to make testamentary disposition if it had been necessary for her to make such a decision prior to her injuries.9

The application was made by CB’s mother, ‘AB’. CB’s family consisted of AB, CB’s father (referred to as ‘FB’) and her younger brother (referred to as ‘SB’). The father ceased living with the family from the time that CB was 9 years of age. CB lived with AB from that time. Following the accident, AB had been entirely responsible for CB’s dayto-day care and support. SB was around 19 years of age at the time of the application and was not residing with the family, although the evidence indicated that he was still close to the family. It was understood that he was able-bodied and in employment. [page 157] CB had received a very substantial damages award, which reflected the fact that she had a long life expectancy and extremely high care needs. If her estate was carefully managed, and depending on medical and other expenses, it was possible that there might still be a substantial sum left upon her death. CB had no will. As matters stood, on an intestacy, CB’s estate would pass to AB and FB equally. The proposed will provided for the appointment of AB as executor, and for the whole of the estate to pass to AB if she survived CB, or in default to SB. It also included a further gift over in favour of two charities, in equal shares. There was evidence that before her injury, CB had been involved in the work of those two charities. There was expert medical evidence which clearly demonstrated that CB had extremely limited residual intellectual capacity, and was virtually unable to communicate. It was clear that she did not have testamentary capacity, and would never regain it. The nature of the relationship between CB and FB was described as follows: FB has had very little to do with the family since CB was nine years of age. The evidence suggests that he has had severe drug and alcohol abuse problems. Some time ago he left Australia and is now resident in the United Kingdom. He had very little contact with CB before her accident. He appeared at the Guardianship Tribunal hearing which appointed AB as guardian and financial manager of CB and FB supported that application. Thereafter he has had little, if any, contact with CB and AB.10

The proceeding named CB, SB and FB as defendants. FB was served, as was FB’s mother. FB did not appear and his mother declined to be involved in the proceeding. FB did not oppose the application. In determining whether the core test was met, his Honour followed the mixed subjective/objective approach that he had previously outlined for ‘preempted capacity’ cases in Re Fenwick, by focusing on whether there was a ‘fairly good chance’ that the proposed will would represent the actual intentions of CB if she had testamentary capacity and was aware of the present circumstances. He accordingly found as follows: It seems to me that there is, to quote the words which I have used in Re Fenwick, ‘a fairly good chance’ that the proposed will, in excluding FB, would represent the actual intentions of CB if she were now of testamentary capacity and aware of the present circumstances. I accept that, for whatever reason, FB has removed himself from responsibility and care within the family, at least from the time that CB was aged nine. I accept that there has been no normal relationship of father and daughter, at least in an on-going caring sense between the two of them since that time. It seems to me that there is a fairly good chance that the proposed will reflects what a reasonable person in CB’s position would do to recognise in her testamentary provision the fact that AB will have devoted the whole of the remainder of her life to the very onerous task of caring for CB. A reasonable person in CB’s position would recognise that the overwhelming moral responsibility which she had in regard to testamentary provision was in favour of AB. It seems also to me that there is a fairly good chance, in the sense in which I have used that phrase in Re Fenwick, that if AB predeceased CB, CB would recognise that her testamentary obligation was directed towards SB and, if not to him, then to the two charities with which she was actively involved. I do not think that one can say, having regard to the absence of FB in the family involvement for now more than 10 years, that there is a fairly good chance that CB would wish to make any provision for him. As matters stand, therefore, I am persuaded that the proposed will is one that CB is reasonably likely to have made.11

[page 158] There was no evidence that CB had expressed any testamentary intention before the accident. However, his Honour considered it reasonable to suppose that had she been aware that she would have a substantial estate to dispose of, she would have intended to make a will. As regards any possible family provision claim in future, it was noted that, having regard to CB’s total dependency upon her mother and her inability to

communicate, there was no likelihood that CB would ever form a relationship with any person such as to make that person an eligible claimant for family provision. An order was made accordingly that the will be authorised to be made, and that the costs of the application be paid out of CB’s estate. The judgment also dealt with two important matters of procedure: (1) the non-identification of parties, and (2) whether it was appropriate for a representation order to be made. Counsel for AB as the plaintiff asked that the judgment, when published, not identify the parties by name or otherwise disclose any particulars by which they might be identified. His Honour acceded to this request, on the basis that the proceedings could have been determined in the absence of the public pursuant to the Civil Procedure Act 2005 (NSW) s 71, and also because of the nature of the proceedings: The statutory will making jurisdiction conferred on the court by Chapter 2, Pt 2.2, Div 2 of the Succession Act 2006 (NSW) is very much of the same character as the protective, or paternal, jurisdiction which the Courts of Chancery and the Equity Division of this Court have always administered in relation to those in need of special protection, such as children not within the jurisdiction of the Family Court and persons who are mentally infirm or incapacitated: see the history of the statutory will making provisions referred to in Re Fenwick [2009] NSWSC 530. In business arising in the protective, or paternal, jurisdiction of the Equity Division, noncontentious applications are uniformly dealt with by the Judge in Chambers: for example, unopposed applications for adoption and unopposed applications for the appointment of a financial manager for a person incapable of managing his or her affairs under s 13 of the Protected Estates Act 1983 (NSW) (now s 41 of the New South Wales Trustee and Guardian Act 2009). Uncontested applications of this character provide some of the few exceptions to the strict rule that justice is administered in open court. This is because the Judge who is administering the protective, or paternal, jurisdiction is not deciding a contested question in adversarial litigation. The Judge’s position is as administrator: the court’s decision is not as to which of two contestants is to win the day but, rather, what is in the best interests of the person whose affairs are in the charge of the court, either because he or she is a minor or because he or she is incapacitated and needs the court’s protection. Of cases in this category, Lord Shaw of Dunfermline said in Scott v Scott [1913] AC 417, at 483: ‘The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognised that an appeal for the protection of the court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.’ This case is a classic instance of an application to the court, in its protective jurisdiction, to adjust rights within a family, in the best interests of an incapacitated person, without having to decide any contest. It falls squarely within the category of cases which do not require to be adjudicated in open court and do not require the publication of reasons for judgment. Had it

been necessary to do so at the time the matter was called on for hearing, I would have ordered that the proceedings be conducted in the absence of the public pursuant to s 71(f) CPA.12

[page 159] An order was therefore made that the reasons for judgment be published with pseudonyms used to protect the privacy of the parties, and his Honour further stated: In the future, where uncontested applications of this type are dealt with in private chambers, reasons for the orders made will not usually be published unless some point of law or procedure of general application arises.13

On the question of whether a representation order should be made, his Honour declined to order separate representation for CB. Such an order was requested by a solicitor who appeared on behalf of the trustee company that was administering the financial affairs of CB. In respect of that statutory power, his Honour made the following observations: The Act, in s 25, enables the court to order separate representation for an incapacitated person if it appears to the court that such person should be separately represented. There is no guideline expressly given in the section or otherwise in the Act as to what circumstances should impel the court to order separate representation, but clearly enough one of those circumstances would be where it appears to the court that there is at least the possibility of a conflict of interest between the person applying for the statutory will and the person for whom the will is sought to be made. The circumstances in which such a conflict of interest may arise vary infinitely. For example, the circumstances may suggest that the proposed will may not be in terms which the incapacitated person would himself or herself have made. There may be a suggestion that that the incapacitated person is more capable of expressing a testamentary intention than the applicant asserts, so that more investigation of the person’s residual capacity is justified. These are but some examples.14

In this particular case, there was no purpose to be served by the appointment of a separate representative for CB. There was no evidence that CB would not wish to leave her estate in accordance with the terms of the proposed will, nor that her wishes, so far as they were known, and the state of her relationship with her parents, were not as stated in the affidavit evidence before the court. In light of the medical evidence, it was highly improbable that any attempt to interview CB would produce any useful further evidence.

Application by Peter Leslie Kelso15 Lost capacity — making a will — appropriate applicant — conduct of

interested persons — core test — establishing lack of testamentary capacity — evidence of intention — notice to interested person — terms of statutory will — costs 8.4 The proposed testator Hua Tippins moved from China in 2000 to live in Australia, to marry Greg Tippins. At the time of the application she was in a coma and on life support, and her death was imminent. Evidence was presented to Ball J that Greg had caused Hua’s current and previous physical injuries. His Honour was asked to make a statutory will excluding Greg from benefiting from Hua’s estate on intestacy, as she had not previously made a will. The applicant was a solicitor who had acted for Hua in 2009 when she made a victim of crime compensation application, from which she received approximately $9,000. The judgment does not disclose whether that was the extent of her estate. His Honour accepted that the evidence of a treating doctor established that Hua lacked testamentary capacity, was unlikely to regain consciousness, and would have severe brain damage if she ever did regain consciousness. [page 160] A draft will was presented to the court by the applicant, and was amended by the applicant following discussion between his Honour and counsel regarding its terms. His Honour was satisfied that it was appropriate for Mr Kelso, as Hua’s former solicitor, to make the application. It was noted that he had no real interest in the outcome of the application and that it would be appropriate for him to charge reasonably for the administration of her estate. In assessing whether the proposed will was, or was reasonably likely to be, one that Hua would have made if she had testamentary capacity, his Honour concluded that it was ‘inconceivable’ in the circumstances that Hua would have wanted any part of her estate to go to Greg. He then considered which other persons Hua might have wanted to benefit by her will. There was some suggestion that she had a sister, but insufficient evidence to establish that, if

so, such sister was still living. The only relevant relationships that Hua was known to have had were with a women’s refuge and a person who she had spoken of as ‘China Mum’, who lived in China. His Honour concluded that the proposed will dividing her estate between those beneficiaries was consistent with what Hua would have wanted. In concluding that adequate steps had been taken to allow representation of all persons with any interest in the application, careful consideration was given to whether it was necessary to serve notice on Greg and ‘China Mum’. Greg had been given notice of the application, albeit earlier that afternoon, and in any event his Honour concluded that ‘I find it difficult to see how it can be said that he [Greg] has a legitimate interest in the application given his conduct’.16 He did not appear at the hearing. In relation to service of notice of the application on ‘China Mum’, his Honour said that what were ‘adequate steps’ must be judged in the particular context of the case.17 In this case, the context was that the person lived in China, and that it was urgent that the application be heard due to Hua’s health. He concluded that the direction in the legislation to serve interested persons did not require service on ‘China Mum’ in the circumstances. It was also likely to have been relevant that the granting of the application would confer a benefit on ‘China Mum’, rather than reduce or take away an existing entitlement; however this reason is not expressly stated in the judgment. A statutory will was made in the terms of the amended draft, and an order made that the costs of the application be paid from Hua’s estate on a solicitorclient basis.

Re Estate of Crawley18 Lost capacity — amending a will — application unopposed — charitable gifts — conduct of interested persons — notice to interested persons — two-stage process 8.5 The proposed testator, Ms Crawley, was 93 years of age and resided in a nursing home. She had severe dementia, and there was no doubt that she had irretrievably lost testamentary capacity. She had never married and had no children. She had no surviving parents, siblings, aunts or uncles. The application was brought by Richard McCosker, the husband of Ms Crawley’s sister Esther, who had died in 2009.

Ms Crawley had an existing will, made in 1997. It was prepared by a solicitor, and there was no suggestion that she lacked testamentary capacity at that time. Under that will, Ms Crawley appointed her sisters Ellen and Ethel as joint executors, gave $500 each to Richard and a charity, and gave her residuary estate to Ellen and Ethel. [page 161] There was no gift over. Since Ellen and Ethel had predeceased her, the effect of the will was that her estate would pass on intestacy and, there being no next of kin who could take, would vest in the Crown as bona vacantia. Richard proposed a will under which he would be appointed as executor, a gift would be made to the charity named in the 1997 will and the residue of the estate would pass to him, provided that he survived Ms Crawley for 30 days. Prior to this hearing, Palmer J had granted leave to Richard to make the application. It is not clear from the published reasons why leave was granted, since it is stated that his Honour was not satisfied by the evidence, as it then stood, that the proposed will met the core test. In particular, his Honour was not satisfied that Mr Crawley would have given the whole of her estate to Richard when, in her 1997 will, she had given him a relatively small bequest, equal in amount to that which she gave to the charity. In any event, by the time of this hearing, further evidence had been filed by Richard, and the charity had been served with the summons and affidavits but declined to appear. His Honour was satisfied that: (1) Richard had a close family association with Ms Crawley while her sister Esther was alive and he had actively managed Ms Crawley’s affairs for more than 10 years. (2) Ms Crawley’s 1997 will showed that she regarded the only persons having a claim on her testamentary bounty as her sisters and Richard and that she favoured no charitable purposes save those of the single named charity. (3) It was reasonably likely that Ms Crawley did not make greater provision

for Richard in her 1997 will because she believed that Esther, who was considerably younger, would survive her, and that Richard would benefit from his wife’s inheritance. (4) It was reasonably likely that Ms Crawley intended to dispose effectively of the whole of her estate by will, and that she believed that her 1997 will would achieve that result, having regard to the fact that she was much older than her sisters. (5) It was reasonably likely that if Ms Crawley had testamentary capacity she would not wish her estate to go to the Crown, but would wish Richard to take the major benefit, with an increased benefit to the charity to reflect the present value of the gift made by her 1997 will, and a gift over of the residue to the charity if Richard did not survive her by 30 days. An order was made accordingly, approving the proposed will.

Application of Sultana19 Nil capacity — making a will — conduct of interested persons — establishing lack of testamentary capacity — notice to interested persons 8.6 This case involved an application made by the sister of the proposed testator, Vincent. Vincent had never had capacity, as a consequence of Down’s Syndrome. The application proposed that a statutory will be made that would provide for his estate to go to his mother if she survived him, or if she did not, then to his sister Lina (who was the plaintiff). Vincent’s only property was a term deposit of $63,000, which was held by Lina on trust for him. His mother had originally provided those funds, to assist with him being looked after. This was a relevant factor identified as supporting the finding that a statutory will should be made benefiting the mother. Palmer J had regard to documents provided by Lina to the New South Wales Guardianship Tribunal, when she had previously applied to be appointed as Vincent’s [page 162]

financial manager. Vincent was also in court, and the judgment notes the court’s observations of him as supporting the finding that he had always lacked the intellectual capacity needed to make a will, and that this would never change. If a statutory will was not made, then a share in Vincent’s intestate estate would potentially be received by his father, with whom he had not had any contact for some 20 years. The potential competing claims of three other siblings were also noted, however they had not had contact with Vincent for over 15 years. Lina and Vincent’s mother had always looked after him. His Honour dispensed with the usual requirement that interested persons be given notice of the proceedings, and approved the proposed will: Having regard to the size of Vincent’s estate now … and having regard to the fact that that whole estate is derived from a gift from the mother, I don’t think it is appropriate that the other potential beneficiaries of Vincent’s estate be given notice of these proceedings. This is a very clear and simple case in which the small amount of this estate should go to the mother … as she is in poor financial circumstances…20

In default of the mother surviving Vincent, provision was made in the will for Lina to receive his estate. Leave to make the application was granted and the will was authorised to be made.

Application of Wosif Elayoubi21 Nil capacity — making a will — application unopposed — conduct of interested persons 8.7 An application was made for a statutory will for Kaled Elayoubi, by his brother Wosif Elayoubi. Kaled was 25 years of age. He suffered from spastic quadriplegia, severe scoliosis, and extremely severe cerebral palsy due to complications during his birth. It was clear that he had always lacked, and would never gain, testamentary capacity. There was some considerable urgency to the application because of Kaled’s medical condition. It was highly likely that he would not live for much longer. Kaled’s estate was in excess of $5 million, as a result of damages awarded to him in respect of injuries arising from the circumstances of his birth. There was no dispute that his parents and his brother Wosif were the persons who might have a claim to his testamentary bounty.

Palmer J noted that this was a ‘nil capacity’ case: ‘Kaled has been unable to communicate all of his life. It is impossible to know what likely dispositions he would have made under his will, but the evidence points strongly to what a person in his position would have done had he had testamentary capacity’.22 Kaled’s father had been estranged from the family for many years. He suffered from schizophrenia. His estate was subject to financial management by the New South Wales Guardian and Trustee. A solicitor from the New South Wales Trustee and Guardian, Mr French, appeared on the application to put forward the father’s wishes. His Honour took those wishes into account and found as follows: …It seems to me that the vastly superior claim to Kaled’s testamentary bounty would be that of his mother, who has looked after him with unfailing love and attention from his birth and has coped with all of his severe disabilities. However, the estate of Khaled is sufficiently large to provide comfortably for his mother in the event of his death … it is also sufficiently large to provide something for his father.

[page 163] It seems to me in those circumstances, the estate of Kaled being so large that his mother can comfortably be provided for, that a person of testamentary capacity in the position of Kaled would likely have made some provision for his father, bearing in mind his father’s disabilities and his situation in life.23

The proposed will provided for a gift of $1 million to a trust for Kaled’s father for his life, with the remainder to his mother. The balance of the estate would pass to his mother. The will included terms that authorised capital expenditure out of the $1 million for the purchase of a home for Kaled’s father. Mr French suggested that rather than a life interest there should be an outright gift of the $1 million, with the New South Wales Trustee and Guardian having control of that fund. His Honour’s view on this was as follows: There is much to be said for that course, however I do not think that it sufficiently recognises that the claim of the father is really one to his own maintenance and care and not for the benefit perhaps of the beneficiaries of the estate. It seems to me that the provision of a trust fund for life for the benefit of the father amply provides for his own needs during that time, and indirectly of course for the needs of those who are dependent upon him, but recognises that the vastly superior claim to Kaled’s estate is that of his mother.24

Accordingly, the terms of the proposed will were approved.

Re Levy Estate — Application of Samuels25 Lost capacity — revoking a will — application unopposed — establishing lack of testamentary capacity 8.8 This was a successful application to revoke a will made by in 2010 by Rebecca Levy. Rebecca was 93 years of age at the time of the application. The beneficiary of the 2010 will was a person who was then a tenant of Rebecca. Rebecca had no familial relationship with that person, and had only known him for the three years that he had been her tenant. The plaintiff’s solicitor gave evidence that that person had been given notice of the proceeding, and had clearly stated that he did not wish to participate. The size and nature of Rebecca’s estate is not stated in the judgment. Evidence was adduced from a psychiatrist and a clinical neuropsychologist that Rebecca had dementia, and was suffering from a severe cognitive impairment. Both of those experts expressed a view that at the time Rebecca made the 2010 will, she did not have testamentary capacity. This was accepted by the court, and an order made for the revocation of the 2010 will. The effect of this was to leave a previous will operative. There was no application before the court to make a further statutory will for Rebecca.

Re Will of Jane26 Lost capacity — amending a will — application opposed — appropriate applicant — charitable gifts — conduct of interested persons — core test — evidence of intention — family provision — notice to interested persons — privacy — separate representation — two-stage process — unsuccessful application — costs 8.9 The proposed testator was 86 years of age at the time of the hearing of this statutory will application, which was made by her son. Her estate was valued at approximately $1.96 million. For privacy, the reasons of Hallen AsJ were published [page 164]

using the pseudonym ‘Jane’ for the proposed testator, and referring to the other parties by their title in the proceedings. An order had previously been made for Jane’s separate representation, under the Succession Act 2006 s 25. The New South Wales Trustee and Guardian was appointed to represent Jane in the substantive proceedings. The second and third defendants were Jane’s daughter and another son, who each appeared in person. The application was opposed by all three defendants. Jane had married her husband, the father of the applicant and of the second and third defendants, in 1958. Jane’s only known will was made in 1962. It appointed her husband as sole executor, and left her estate to her husband, or if he did not survive her, to her children in equal shares. Jane’s husband died in 2007. Jane was diagnosed with dementia in 2006, and in 2007 was admitted to hospital, then to a nursing home. Shortly after her admission to hospital, her daughter (the second defendant) was appointed as her financial manager. Around the same time, the Public Guardian was appointed as Jane’s guardian. The proposed will sought by the plaintiff provided for the Public Trustee (at the time of hearing, the New South Wales Trustee and Guardian) to be appointed as executor, and for the whole of Jane’s estate to be left to the plaintiff, or if he did not survive her, to charity (as to 40 per cent to BoysTown, 40 per cent to Guide Dogs NSW/ACT and 20 per cent to the Royal Blind Society of New South Wales). The essence of the application was that, in the plaintiff’s submission, Jane would be reasonably likely to make a will in this form because of what he described as ‘reprehensible conduct’ of the second and third defendants, and the fact that they each had no need that was not of their own making. During submissions the plaintiff sought, as an alternative, that a will be made for Jane in the same terms as her 1962 will, but with the New South Wales Trustee and Guardian as executor. Jane’s counsel conceded that it was reasonably likely that Jane would want to minimise conflicts between her children, and that that might be achieved by appointing an independent executor. The second defendant opposed such an appointment, on the basis that she had never heard Jane state that she had wanted to appoint a corporate executor. The third defendant also opposed such appointment. There was no dispute that Jane lacked testamentary capacity. A report

confirmed that she had been resident in a dementia specific unit since 2008 and was dependent on others for all activities of daily living. The second defendant gave evidence that Jane supported charities, using a small part of her income, by way of buying fund-raising merchandise rather than making donations. There was no evidence that Jane had, since losing capacity, received any support from any charitable institution. On the application for leave, Hallen AsJ considered the nature of the various requirements under the Succession Act 2006 (NSW) s 22, and in particular stated that: (1) On the application for leave, it is sufficient to demonstrate a reasonable likelihood of testamentary incapacity, whereas to obtain a final order, it must be established that the proposed testator actually lacks testamentary capacity. The test to be applied is that in Banks v Goodfellow.27 (2) The core test, under s 22(b), is to be applied as follows: The court’s concern … is with the actual, or reasonably likely, subjective intention of the person lacking capacity. It is the specific individual person who is, or is

[page 165] reasonably likely to be incapable of making a will, that must be considered. It is not an objective, or hypothetical, person who is considered. The jurisdiction of the court is, so far as is possible, to make a statutory will in the terms in which a will would have been made by that person if the person had testamentary capacity at the time of the hearing of the application. … If an actual intention cannot be established, the sub-section speaks in the chameleon-like language of reasonable likelihood … Whether the proposed statutory will is ‘reasonably likely’ must be derived from all relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person in the past, by reference to what is known of his, or her, relationships, history, personality and the size of the estate. Thus, it seems, what is required is to establish the chance of an event occurring (the proposed will is one that is, or would have been reasonably likely to have been, made by the incapable person, if he, or she, had testamentary capacity) that is above mere possibility, but not so high as to be more likely than not. In other words, more is required than mere assertion, suspicion, or conjecture. If the actual, or reasonably likely, testamentary intentions are established, the next question is whether those intentions would have been carried into testamentary effect by the person ‘if he or she had testamentary capacity’? A previous will, or wills, may give a

clear indication of the person’s testamentary choices and preferences such as to provide evidence of what it is reasonably likely he, or she, would do if he, or she, had testamentary capacity. The question is not whether he, or she, would likely have preferred the proposed statutory will to intestacy, or to his or her prior will. Nor is it whether the proposed statutory will is one of a number of possible proposed wills, all of which might be equally likely to be one that he, or she, may have made if he, or she, had testamentary capacity. If the proposed statutory will does no more than reflect one of a number of other possible dispositions, in my view, the requirements of s 22(b) will not be satisfied since it would not be ‘reasonably likely’ to be a will that he, or she, would have made had he, or she, had testamentary capacity.28

(3) There is nothing in s 22(c) that provides guidance as to what circumstances, in addition to those set out in the other paragraphs of the section, are to be taken into account in determining whether a final order is, or may be, ‘appropriate’. The court must consider ‘whether the expressed intention is the product of the incapacitated person’s free choice, or has some undue pressure or influence been applied? Some assistance in answering this question is given by the information provided by s 19(2) and by the assessment of the terms of the proposed statutory will.’29 (4) Section 22(d) does not define who may, or who may not, be an ‘appropriate’ person to seek leave to make the application. It is doubtful that an officious bystander would qualify. Where the application is made by a person who is to benefit by the proposed will, which might be a circumstance exciting suspicion, that concern is avoided by the requirement of s 22(b), which involves a ‘vigilant and anxious examination of the evidence’ as to the incapable person’s actual, or reasonably likely, intentions. (5) The class of persons to be served under s 22(e) is likely to include beneficiaries under an earlier will, any persons entitled on intestacy, persons who may have a claim on the bounty of the proposed testator, and perhaps any person eligible to make a family provision claim. His Honour also made the following observations concerning the nature of the court’s power to authorise the making of a statutory will: The lack of testamentary capacity, the accurate reflection of testamentary intentions, and the adequacy of steps taken for proper contradictors are matters of fact that are to

[page 166]

be established. What may be described as the ‘appropriateness’ requirements involve the exercise of curial discretion. Thus, whilst relevant parties might consent to the terms of the proposed statutory will, that consent cannot be conclusive because the execution of a will for a person who lacks capacity is a decision to be made by the court. It has been said by Palmer J in Re Fenwick at [132]: ‘It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the Judge is not a referee; rather, the Judge is to endeavour to rectify a problem which is affecting people’s lives, in the best possible way.’ It is important to note also that the power vested in the court is not a power to review the reasonableness of the earlier dispositions made by a person then having testamentary capacity, on the grounds that the person now lacks such capacity. It is a power only to be exercised in situations where the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he, or she, had testamentary capacity. Thus, it is not a power of ‘substituted judgment’. Equally important is the overarching principle in relation to any decision made on behalf of an incapable person that it must be made in his, or her, best interests.30 [emphasis added]

His Honour examined the evidence relating to the plaintiff’s assertion that the second defendant’s conduct in bringing or defending various separate Supreme Court proceedings concerning Jane was ‘reprehensible’. The second defendant had successfully obtained orders that required the plaintiff to repay monies that he had transferred out of Jane’s bank accounts, prior to the financial administration order, for his own use. There had also been a family provision claim by the plaintiff against his father’s estate, which had resulted in an order that he should receive a lump sum of $400,000 out of the notional estate, being designated property that had passed to Jane by survivorship. The second defendant, as administrator, had also commenced proceedings to obtain vacant possession of the house, which was occupied by the plaintiff. His Honour reached the conclusion that there was nothing in the conduct of the second defendant as a party in that other litigation that would lead a person with testamentary capacity to alter her will in the way proposed by the plaintiff, nor had there been any undue influence exerted by the second defendant over Jane that had prevented her from changing her 1962 will. Furthermore, his Honour was not persuaded that the plaintiff’s various criticisms of the conduct of the second and third defendants in 2007, in relation to Jane’s care and proceedings before the Guardianship Tribunal, were warranted or justified. The s 19 requirements were then considered. The following points should be noted, in particular: (1) In relation to s 19(2)(e) (evidence of Jane’s wishes), various evidence

was sought to be relied on by the plaintiff and the second and third defendants, of conversations between Jane and others, regarding Jane’s testamentary wishes. His Honour noted this evidence but gave no indication of the weight that he attached to it. (2) There was a strong likelihood of family provision claims, that was required to be taken into account under s 19(2)(i): It is likely that one, or more, of Jane’s children, will make an application for such an order. In fact, the Plaintiff discloses such an intention in his affidavit. The second Defendant and/or the third Defendant may make such a claim if the statutory will in the form proposed by the Plaintiff is made and they receive no share of her estate. Certainly each states, on oath, that her, and his, financial and material circumstances are apt for the making of a claim. It follows that whatever the result of this application, an application [for family provision] in respect of the property of Jane will be made. This seems to be the likelihood, despite the fact that, assuming the value of Jane’s estate is as estimated

[page 167] (leaving aside any claims that may be made against one, or more, of her children), each will be entitled to, on present estimates of value, at least $600,000.31

(3) For the purposes of s 19(2)(j) (evidence of circumstances of any person for whom provision might reasonably be expected to be made by will by Jane), his Honour noted that there was some historical, as well as other, evidence of the financial and material circumstances of each of the plaintiff and the second and third defendants, and their respective relationships with Jane, but there is no indication in the judgment of the weight that he attached to that evidence. (4) In relation to s 19(2)(k) (evidence of a gift for a charitable or other purpose that Jane might reasonably be expected to make by will), there was no evidence of Jane’s ‘connection’ during her lifetime with any of the charities listed in the proposed will. Turning then to the requirements for leave, under s 22, his Honour was satisfied that Jane lacked testamentary capacity, that the plaintiff was an appropriate applicant, and that appropriate steps had been taken to allow representation of all persons with a legitimate interest in the application. However, the core test was not met; his Honour was not satisfied that the proposed will was an accurate reflection of Jane’s testamentary intentions, or

likely testamentary intentions, or that it was reasonably likely to be one that Jane would have made if she had testamentary capacity. The reasons supporting this conclusion included the following:32 (1) The terms of Jane’s 1962 will afforded ‘a clear, coherent, rational, sensible, responsible and realisable expression of Jane’s wishes when she had capacity. They clearly indicate an intention to benefit her only three children equally. Those wishes were maintained for 45 years.’ (2) The 1962 will was not altered at any time, despite Jane having had ‘more than enough opportunity’ to do so. (3) There was ‘no objectively provable evidence’ to enable a finding that there had been any disentitling conduct on the part of the second or third defendants, that would lead to the conclusion that Jane would wish to reduce her, or his, equal share of her estate. Accordingly, leave was refused. Leave was also refused in respect of the alternative proposed statutory will, involving the insertion of the New South Wales Trustee and Guardian as executor of the 1982 will. His Honour was unable to conclude, on the evidence, that such alteration satisfied the core test. As regards costs, his Honour observed that: The Act provides no guidance as to what should happen in relation to the costs of an application for approval of a proposed statutory will. In a case where the application fails, the general principle that costs follow the event might be appropriate, especially if the application is opposed and the person making the application seeks to benefit under the will that has been proposed. However, the burden of costs remains in the discretion of the court.33

Submissions on costs were then considered in Re Will of Jane (No 2).34 His Honour set out the relevant statutory provisions and procedural rules in some detail: (1) The Civil Procedure Act 2005 (NSW) s 98(1) provides that, subject to the Rules of Court, and that, or any other, Act, costs are in the discretion of the court. The discretion is a broad judicial discretion. [page 168]

(2) The Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) r 42.1 provides that costs should follow the event, unless it appears to the court that some other order should be made as to the whole, or any part, of the costs. (3) The UCPR r 42.20 provides that if the court makes an order for dismissal of proceedings, then, unless the court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed. (4) The Succession Act 2006 (NSW) does not contain any relevant provision to which s 98 would be subject. In this case, the effect of these rules was that the plaintiff should be ordered to pay the first defendant’s costs unless the court were to order otherwise, and the court could only order otherwise if there was a discretionary decision to depart from what the rules provide. His Honour noted that there had not been any cases in New South Wales that had dealt with the costs of an unsuccessful application for a statutory will, although some relevant principles applicable to such applications had been outlined in Boulton v Sanders,35 Hoffman v Waters,36 and Re Keane; Mace v Malone (No 2).37 Reference was also made to the costs position in probate suits, by way of analogy. In such cases, two questions that require consideration in relation to an application for costs of an unsuccessful party are: (1) Was there a reasonable ground for litigation? (2) Was it conducted bona fide? If both questions are answered in the affirmative, it is the usual practice of the court to order the general costs to be paid out of the estate. In the present case, the first question was not answered in the affirmative because an investigation in respect of a proposed statutory will was not warranted. There was no evidence that Jane had ever said that she wished to make a will that would completely exclude from benefit either or both of the second and third defendants. There was some evidence that she may have wished to ensure that the plaintiff was adequately housed, but there was no evidence that he would not be, bearing in mind the provision made for him under the 1962 will.

His Honour further noted that Jane had not left her testamentary papers in such a state that it was necessary to bring the matter before the court; and that proper applications for statutory wills ought not to be discouraged: … the jurisdiction relied upon by the Plaintiff involves a public benefit, and imposing a liability for costs in the event that the court does not accede to an application should not discourage its invocation. A disinterested applicant, who has real and genuine grounds for making an application for a statutory will, should not be deterred from taking that course by reason of a fear that, however genuine his, or her, case may be, he, or she, will have to bear the burden of costs.38

It was, however, important to bear in mind the circumstances of the particular case. In this case: … [the plaintiff] brought the application seeking, not only a greater share, but all, of Jane’s estate, on her death in the event he survived her. He had a personal financial interest in the outcome. He stood to benefit if the application was successful, but he did

[page 169] not lose if it was not, because he would remain a beneficiary named in the 1962 Will. He was not asserting a moral, or other, claim upon the bounty of the testatrix; he sought to establish and to give effect to what he said was, or was likely to be, her intention. He was far from a disinterested party. In seeking the whole of Jane’s estate if he survived her, the proposed statutory Will was solely for his own benefit.39

The position of the second and third defendants was said to be different. They were, at least in part, seeking to protect their expected benefit under a valid will that could not be revoked or altered because the testator lacked capacity. They did not, however, seek costs. His Honour concluded that the fact that Jane’s assets were sufficient to pay her own costs without any impact on her circumstances did not mean that she should bear the burden of costs. The plaintiff had some experience of litigation and ought to have been aware that he was at risk of costs. An order was made that the plaintiff should bear the burden of the first defendant’s costs, on the ordinary (party-party) basis. To the extent that there was a difference between the costs recovered from the plaintiff and the first defendant’s costs calculated on the indemnity basis, that difference was to be paid out of Jane’s estate. There was no order as to the costs of the second and third defendants.

Hausfeld v Hausfeld40 Lost capacity — amending a will — application unopposed — core test — estate planning — privacy — unsuccessful application 8.10 This application to alter a will was unsuccessful. The proposed testator, Colin Hausfeld, was 91 years of age and was suffering from dementia. He lacked testamentary capacity. His estate was valued at approximately $340,000. Colin’s existing will was made in 2004. Following the death of his wife in 2010, the effect of the will was that his estate would be left to his three children in equal shares. The application was brought by his son, Gregory Hausfeld, who sought to substitute his wife for himself as one of the beneficiaries. This was prompted by the fact that Gregory was a respondent in unresolved litigation in the Federal Court commenced by a company Gippsreal Limited that was claiming damages in respect of allegedly negligent property valuations. Gregory denied liability to Gippsreal Limited, but acknowledged that there was a prospect that he could be found liable in whole or part, and that this could give rise to substantial damages that could result in his bankruptcy. He gave evidence including the following: It is extremely likely that my father would not want my share of his estate to vest in a trustee in bankruptcy, or be appropriated by Gippsreal Limited (or any other creditor) if it succeeded in obtaining judgment against me in the proceedings. In those circumstances, he would want [my wife] to have the benefit of my proportionate share of his estate, with a view to ensuring that I am provided for, inter alia, by those moneys.41

In considering the core test, and determining the meaning to be given to the phrase ‘reasonably likely’ in that sub-section, White J cited with approval extracts from Re Fenwick.42 He was satisfied that the proposed alteration to the will was one that was reasonably likely to have been made by Colin if he had capacity. However, he [page 170] was not prepared to authorise the alteration, because its effect would be to defeat Gregory’s creditors:

In my view it is not appropriate, nor might it become appropriate, for the court to authorise an alteration to Colin Hausfeld’s will in order to defeat his son’s creditors. Whilst I accept that Colin Hausfeld, if he were capable, could leave the share of his estate that would otherwise pass to his son to his son’s wife in the expectation that she would provide for his son out of that share if his son were made bankrupt, I do not think that the court should condone such a course. The policy of the law is that people should pay their debts so far as they are able. It is not that they be sheltered in the way proposed.43

His Honour indicated that in any event he could not have granted the relief sought without Gippsland Limited having been joined as a defendant and being given an opportunity to be heard: … Both pursuant to s 28(e) and pursuant to general principles, an order should not be made that may adversely affect the interests of a third party unless that party has the opportunity, before the order is made, to make submissions (BP Australia Limited v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 at [134]).44

Accordingly, leave to make the application was refused. An order was made that Gregory pay the costs of the defendants (his siblings, who filed a submitting appearance). Gregory had also sought an order that the proceedings be determined in chambers. His Honour stated that it was not appropriate that the mater be dealt with otherwise than in open court, since the purpose of the application was to prevent Gregory from acquiring assets that would be available to satisfy a judgment debt if he was unsuccessful in defending the Federal Court proceedings. Further, Colin was not a minor or a protected person. This case is important in that it shows that even if the core test is satisfied, leave may still be refused if the court is not satisfied that it is or may be appropriate for the statutory will to be made.

Re Estate of S45 Lost capacity — amending a will — application unopposed — appropriate applicant — core test — evidence of intention — terms of statutory will — costs 8.11 A statutory will was approved in this case by Ward J, in circumstances where a will made many years before was found to be out of date due to the changed family circumstances of the proposed testator, ‘S’. At the time of the hearing, ‘S’ was 96 years of age, was suffering from dementia and was resident in an aged care facility. The value of her estate was approximately $776,000.

The family relationships were as follows: ‘S’ had been married to ‘F’, who had predeceased her in 1982. They had two children: a son ‘P’ who had died in 1994, and a daughter ‘D’. The plaintiff in this proceeding was ‘L’, who was the wife of ‘P’. There was one child of ‘L’ and ‘P’: ‘A1’. There were also two adult children from the previous marriage of ‘P’: ‘A2’ and ‘A3’. There were also two children of ‘D’: ‘K’ and ‘SH’. ‘L’ was one of two family members that had been appointed as administrator for ‘S’ by the New South Wales Guardianship Tribunal. The other was ‘D’. ‘D’ supported this application for a statutory will. [page 171] ‘S’ had last made a will in 1955. However, she gave instructions in 1999 to update her will and for the preparation of a power of attorney. She did not execute either the new will or her power of attorney, and by the time this was discovered by her family, she had lost capacity to do so. The effect of the 1955 will, since ‘P’ was deceased, was that if ‘D’ survived her mother ‘S’, she would receive all of the estate of ‘S’. If ‘D’ were to predecease ‘S’ then on intestacy, the five grandchildren would take the estate. The statutory will sought was in the terms of the draft 1999 will, which provided for the appointment of ‘L’ as executor, and for legacies of $10,000 to each of ‘A2’ and ‘A3’, with the residue to pass as to one-third to ‘L’ and two-thirds to ‘D’. Her Honour said the following about the need to first obtain the court’s leave before proceeding with an application: Pursuant to s 18 of the Succession Act, the court has power to make a will for a person who lacks testamentary capacity and who is alive at the time when the order is made (s 18(3)). Leave is required to make the application (s 19). (It is noted that the reason for the leave criteria was explained by Palmer J in Re Fenwick [2009] NSWSC 530; (2009) 76 NSWLR 22 as an to attempt to sift out baseless applications that are unlikely to succeed.) In uncontested cases or relatively straightforward cases, on the hearing of the leave application, the court may deal first with the leave application and then proceed immediately to deal with the matter as a final hearing (as I did). Section 21 provides that, on an application under s 18, the court can inform itself in a number of different ways and it is not bound by the rules of evidence.46

The judgment extracts with approval several parts of the judgment of

Palmer J in Re Fenwick47 in relation to how the ‘reasonably likely’ intention of a testator is to be ascertained in a ‘lost capacity’ case. Her Honour, adopting the words of Palmer J, noted that ‘the task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?’48 If that intention could be established, the next question that needed to be answered was whether the testator would have put that intention into effect by making a will accordingly. Applying those factors, her Honour held that it was reasonably likely that the draft will prepared in 1999 was a will that S would have made, had she had testamentary capacity: It is submitted by Mr Meek, and I accept, that the conversations that gave rise to S consulting a solicitor in order to prepare a will in 1999, taken with the draft of the will and the subsequent conversations S had with L, disclose an intention upon which the court can proceed as being reasonably likely to have been S’s intent to make a will in terms of the draft of the 1999 will.49

Her Honour found that the evidence showed that the testamentary intention of ‘S’, up until the time that she lost capacity, was to make provision for ‘L’ in the way set out in the proposed will. It was relevant that ‘S’ had a good relationship with ‘L’, and that the evidence established that ‘S’ had a ‘settled intention’ to provide for ‘L’ by her will, and that nothing had changed in their relationship after that time that would have altered that intention. There was found to be no evidence to support ‘S’ not having signed the will because of a change of intentions, and the explanation put forward [page 172] by ‘L’ for ‘S’ not having done so was that ‘S’ mistakenly believed that she had in fact finalised the will and power of attorney. An order was made that leave be granted, and the application to make a statutory will with the terms set out in the annexure to the summons be approved. Other consequential orders made included that the Registrar be authorised to sign and seal the will; that a copy of the signed and sealed will be provided to the plaintiff; that the original will be deposited with the

registry; and that the costs of the application be paid out of the estate of ‘S’ on a solicitor-client basis.

Scott v Scott50 Lost capacity — amending a will — application opposed — appropriate applicant — conduct of interested persons — evidence of intention — family provision — litigation guardian — privacy — terms of statutory will — costs 8.12 This case involved three sets of related proceedings concerning Marjorie Scott, who was suffering from an advanced form of dementia or Alzheimer’s Disease. At the time of the heading, she was 89 years of age. The proceedings included an application by her husband, Dr Scott, and others to make a statutory will for her. Marjorie had two adult children, Susan and Jamie, each of whom took an active part in the litigation. At the time of the hearing, Marjorie had net assets of approximately $2.83 million, and was said to have no needs that were not met. Lindsay J described the key issues in the proceedings in the following terms: The real questions in dispute driving the parties’ contests in these proceedings relate, at a high level of abstraction, to two particular issues. First, what, if any, provision can and should be made now, or prospectively, for Jamie out of Marjorie’s estate? Secondly, can some order be effected, now, in the succession plans of the Scott family (referable, at least, to Marjorie’s estate, if not also to Dr Scott’s estate) or are they to be condemned to the uncertainty of future family provision applications and the family chaos that could entail? Underlying these issues are questions about Jamie’s health, present circumstances, future prospects and stability. … I intend no harshness in this assessment of the proceedings. The parties’ respective selfinterests are not absent from their calculations. That is true. However, this litigation cannot be characterised simply as a contest about competing self interest. It is about family, family dilemmas, management of mental health issues within a family, and how to deal constructively with succession plans for family property.51

The consideration of a potential future family provision claim by Jamie was an important factor in his Honour’s consideration of the statutory will application: An additional factor which needs to be borne in mind in the resolution of the proceedings currently before the court is that decisions taken by Dr Scott, Susan and Jamie in their conduct of the proceedings cannot realistically have been taken without some calculation about the potential future operation of Ch 3 (ss 55–100) of the Succession Act 2006 (NSW). That

legislation now governs the court’s jurisdiction to grant ‘family provision orders’, in favour of ‘eligible persons’, in relation to deceased estates. … Each of Susan and Jamie is prospectively an ‘eligible person’ within the meaning of s 57 of the Succession Act in respect of the estates of Marjorie and Dr Scott… The prospect of the Scott family becoming embroiled in family provision litigation after the respective deaths of the Scotts senior is a real one, not readily excluded from consideration. One or both of Susan and Jamie may well survive one or both of Marjorie and Dr Scott. Both sides of the record have made submissions referable to the prospect

[page 173] of Jamie, at least, making an application for family provision relief in relation, at least, to Marjorie’s deceased estate. Dr Scott, Susan and Susan’s daughters generously invited the court to make a statutory will for Marjorie, for the benefit of Jamie, on the basis that they would not seek to disturb the effect of such a will via subsequent family provision proceedings. As an actual and prospective benefactor of his children, Dr Scott must have Ch 3 of the Succession Act prominently in mind in his ‘estate planning’ calculations. All parties must also have had in their minds, at least for a time, the possibility that, if a family settlement could be agreed upon for the purpose of bringing to an end not only the current proceedings, but prospective family provision proceedings, the court might be invited: first, to approve a release of rights under Ch 3 of the Succession Act (pursuant to s 95 of the Act) in anticipation of the death, at least, of Dr Scott; and, secondly, to approach the application for a court authorised, ‘statutory will’ for Marjorie (pursuant to ss 18–26 of the Succession Act) with greater certainty than might otherwise be available about the prospect that orders made for the final determination of these proceedings will bring to an end litigation between Susan, Jamie and Dr Scott about the family inheritance of the younger generation of the Scott family. … in the absence of court approval of a release of Susan’s and (perhaps more importantly) Jamie’s prospective rights to apply for family provision relief in relation to the deceased estates of Marjorie and Dr Scott, there is a live issue about the utility of any order that might be made in these proceedings for a statutory will to be made in Marjorie’s name … What’s the point in making an order for a statutory will that is unlikely to settle any controversy and may, indeed, serve only to distort a relatively simple family provision application, able to be based upon an assessment of Jamie’s then needs, after Marjorie’s death?52

Following a lengthy review of the law and evidence relating to the question of the validity of a power of attorney made by Marjorie, and whether she lacked the requisite mental capacity when it was made, his Honour turned to the application for a statutory will. The application was made by Dr Scott, Susan, and a solicitor acting as Marjorie’s tutor. Susan’s daughters, who stood to benefit under Marjorie’s 2003 will, supported the application. Jamie did not dispute that a statutory will was required. However, he put forward a different form of proposed will. His Honour said the following about who was an appropriate applicant in this case:

I am satisfied, for the purpose of s 22(d), that each of Dr Scott and Susan is ‘an appropriate person’ to make an application for a grant of leave. It is not necessary for Marjorie’s tutor to join in the application. Indeed, it may have been preferable for Marjorie to have been joined in the application as a defendant, rather than a plaintiff, and for her tutor to have filed a submitting appearance. However, it is not necessary, in the circumstances of this case, to consider whether Mrs Baker is, in her own right, or as Marjorie’s tutor, ‘an appropriate person’ to make an application. Her joinder in the application, as a plaintiff, is a formality going to the constitution of the proceedings rather than the substantive relief sought.53

It was noted that minor beneficiaries named in the 2003 will (Marjorie’s godchildren, the RSPCA and a girls’ school, Ascham) had not been served with notice of the application. His Honour was satisfied that this did not present a practical difficulty: … Nevertheless, I am satisfied, for the purpose of s 22(e) of the Succession Act, that, provided the modest provision made for them in the 2003 Will is maintained, they have no legitimate interest in the present application so as, by their absence, to impede its consideration.54

In considering the requirements of s 22 that were required to be satisfied in order for leave to be granted, his Honour indicated that the primary focus in this case was on the core test and on the s 22(d) requirement that ‘it is or may be appropriate for [page 174] the order to be made’. The following part of the judgment analysed Marjorie’s likely intention, with a particular focus on the amount and structure of the provision to be made for Jamie: The substantive difference between members of the family, in the context of the s 18 application, focuses upon their different ideas about how Marjorie’s deceased estate should be carved up. Those different ideas have, necessarily, been articulated by reference to Marjorie’s (presumed) actual, subjective intention: Re Fenwick [2009] NSWSC 530; (2009) 76 NSWLR 22 at 54–57. Everyone is agreed that, if Marjorie had testamentary capacity, she would affirmatively want her 2003 Will to be revised to make up for the present ‘inequality’ affecting the respective rights of Jamie, on the one hand, and Susan and her daughters, on the other. Everybody is also agreed that, having regard to Jamie’s ill health, present circumstances and limited prospects, Marjorie could well be expected, subjectively, to weight in Jamie’s favour the provision to be made for him out of her deceased estate vis-á-vis that to be made for Susan and her daughters. I would have thought, myself, that the terms in which Marjorie gave Mr Baker her initial instructions for the 2003 Will, coupled with more complete knowledge of Jamie’s health, present circumstances and future prospects, point in the direction of a ‘protective trust’ of income under s 45 of the Trustee Act 1925 (NSW). Not unnaturally, though, Jamie has not

embraced that idea. Although Dr Scott and Susan have raised for consideration similar ideas — including a ‘Crisp order’ — they have not pressed the point overmuch. … The temptation to entertain such ideas should, I think, be resisted for a few reasons. First, although Marjorie’s initial instructions for the 2003 Will might be taken as authentic evidence of her attraction to the idea of some form of maternalistic limitation on the provision to be made for Jamie, the fact that she did not, in terms, embrace such an idea in the 2003 Will counsels caution. Secondly, the creation of limited rights such as those contemplated by a Crisp order is not likely to be conducive to harmonious relations between family members in circumstances in which Jamie may be chafing at the bit to escape residential controls. Thirdly, imposition on the parties of a limited form of relief for Jamie might be nothing more than an invitation to the making of an application for family provision relief against one or the other, or both, of the deceased estates of Marjorie and Dr Scott. At one point Dr Scott and Susan suggested that the sort of provision Marjorie could be expected, in the current circumstances, herself to make for Jamie is provision designed to ensure that he has a secure right of residency in a home, a reasonable but modest income, and a modest fund to meet unforeseen contingencies. That formulation brings to mind Powell J’s standard for the provision that ordinarily should be made by a testator for his widow: Luciano v Rosenblum (1985) 2 NSWLR 65 at 69G–70A. It is not without some attraction. The difficulty of assessing the subjective intent of a compos mentis Marjorie is compounded because of the possibility that, before making any Will in the current circumstances, she would consult with Dr Scott, and make an assessment about what to do with her deceased estate with the benefit of knowledge about his testamentary intentions. The court is in no position to speculate about his intentions. Indeed, they may well depend on the outcome of these proceedings, whatever his current intentions may be. There is no certainty that Marjorie would, if well, consult Dr Scott before today making a Will. He made no Will in 2003 when she made hers. Throughout their active years, they both tended to make independent decisions about their separate property.55

Taking those factors into account, his Honour then detailed the elements of a statutory will that he believed would be reasonably likely to reflect Marjorie’s intentions if she had capacity. He then directed the parties to submit a will with those features for approval. The scheme for the will was described as follows: (a) [Marjorie’s] solicitors, Mr and Mrs Baker, are retained as her legal personal representatives. [page 175] (b) The gifts of chattels presently dealt with in clause 3 of the 2003 Will are retained. (c) The legacies presently provided for in clause 4(a) of the 2003 Will are retained. (d) The gift of the King’s Point properties presently provided for in favour of Susan, in clause 3(a) of the 2003 Will, is made, instead, in favour of Jamie. (e) The residue of Marjorie’s estate is divided between Susan, her daughters and Jamie. (f) If either Susan or Jamie were to predecease Marjorie, that share of Marjorie’s estate that would have gone to him or her goes to Susan’s daughters. (g) Any indebtedness Jamie may have to Marjorie is forgiven.

It is not easy to fix upon the proportions in which Marjorie would be likely to divide her residuary estate between Susan, Jamie and the grandchildren. I am inclined to think, however, that 20 per cent would be allocated to the grandchildren and 40 per cent to each of Susan and Jamie.56

The provision proposed to be made for Jamie was described as being analogous to that referred to in the family provision case of Luciano v Rosenblum,57 in that it would provide a residence for Jamie, some land to provide a future resource, and a fund to cover expenses. In relation to the issue of costs, his Honour determined that it was neither necessary nor appropriate for costs to be charged against Marjorie’s estate. The reason for this was that ‘Jamie is in need and … it is appropriate that provision be made for him out of Marjorie’s estate without it too readily being diminished by orders for costs’.58 Submissions were sought from the parties, with an indication that Dr Scott would be ordered to pay half of Jamie’s costs, and noting that Dr Scott had offered to cover all of the costs of the other parties. The judgment contains an addendum that records that, after further argument, an order was made for a statutory will, without stating the exact terms of that will. In relation to costs, Dr Scott was ordered to pay 75 per cent of Jamie’s costs. The judgment made the following comments about the publication of reasons: … before the Reasons for Judgment or any Supplementary Reasons are published beyond the parties, I will entertain such (if any) application as may be made by any or all of the parties for an order that there be some restriction on the general publication of the court’s Reasons. The possibility that some form of restriction may be appropriate flows from, and only from, the protective nature of the jurisdiction exercised by the court. It may be appropriate, because the proceedings have that character, to take steps to have these, or any other, Reasons for Judgment published in a redacted form or using pseudonyms.59

However, no party objected to publication.

Burns v The Estate of Troy Mitchell Burns, a Protected Person60 Lost capacity — making a will — application unopposed — conduct of interested persons — core test — establishing lack of testamentary capacity — evidence of intention — notice to interested persons — terms of statutory will — two-stage process

8.13 This decision relates to a successful application for leave to apply for the making of a statutory will for Troy Burns, who was 42 years of age at the time of the hearing of the leave application. The application was made by his mother, Carol Burns. Troy suffered a motor vehicle accident in 2005, resulting in an extremely severe traumatic brain injury. After spending several weeks in hospital, and some time in a [page 176] specialist recovery unit, he was transferred to care in a community home, where it was expected he would remain for the rest of his life. A sum of $7.9 million, subject to adjustments and plus costs, was received in respect of the injuries he suffered. Troy had one child, his daughter Aliesha Burns, who was born in 1991. His relationship with Aliesha’s mother, Joanne Spiteri, ended around 1992, after they had lived together for about a year. Troy’s father had died in 1991. Troy’s only other close relative, apart from Carol, was his brother Brett, who was 45 years of age at the time of the hearing. Shortly after the accident, Carol was appointed as Troy’s financial manager. In 2009, Brett was appointed jointly with her, due to her poor health. Troy did not have any will. If he were to die intestate, the sole beneficiary of his estate would be Aliesha. The proposed will provided for the New South Wales Trustee and Guardian to be appointed as executor and trustee, and for Troy’s estate to pass as to one half to Aliesha, one quarter to Carol and one quarter to Brett. If any of those three persons did not survive Troy, but was survived by children then living, those children would take their parent’s share at age 18. The likely effect of this default provision, having regard to Troy’s age and life expectancy, was that half of his estate would be left to Aliesha, and half to Brett. Notice of the application was given to Aliesha and Brett, and also to the New South Wales Trustee and Guardian. Joanne was notified of the proposed

application before it was made, and although she was not served with the relevant documents, she had attended an earlier directions hearing before the Registrar. She did not attend the hearing of the leave application. Aliesha and Brett were present in court for the hearing. Evidence as to Troy’s lack of testamentary capacity, and the fact that he was unlikely to regain capacity, was provided by way of a medical report from his treating specialist rehabilitation physician. The report specifically addressed the various criteria of the Banks v Goodfellow61 test, and the extracts contained in the judgment62 are helpful as an example of the kinds of factual matters that can usefully be contained in such a report, in respect of those criteria, in order to reach a diagnosis of lack of testamentary capacity. Evidence as to the size and character of Troy’s estate was provided in an affidavit of Carol and Brett, as his financial managers, to which was annexed their most recent accounts and an investment portfolio report. As regards evidence of Troy’s wishes, Carol stated in her affidavit that following his separation from Joanne some ten years earlier, he had said something to the effect of ‘everything should go to Aliesha, Joanne must not get anything’. However, it was not clear whether this may have been in relation to his superannuation, which was his only asset of any significance at that time, apart from his motorbike. Black J indicated that weight should not be attached to this: … It seems to me that that conversation is of little or no assistance as to the intentions which Troy would today form, if he had testamentary capacity, in circumstances that, first, he now has a substantial estate which is capable of being left by will and, second, Mrs Burns and Brett have at least some claim to be recognised in his will given the assistance which they have provided to him since his accident.63

In connection with the requirement that information be provided as to the likelihood of any family provision claims, it appeared that Joanne might be a potential claimant. His Honour accepted that the prospects of such a claim would be weakened by the long period since her relationship with Troy ended, and the limited contact she had had with Troy since his accident. [page 177] His Honour noted that the core test needed to be addressed at some length

in this case. Reference was made to the analysis of the meaning of ‘reasonably likely’ in the Succession Act 2006 (NSW) s 22(b) that had been undertaken by Palmer J in Re Fenwick,64 and the fact that if there is insufficient evidence for the court to form a view that ‘it is ‘reasonably likely’ — in the sense of ‘a fairly good chance’ — that the person would have made a will at some time or another, had not testamentary incapacity intervened’, the applicant will have failed to discharge the burden of proof in respect of the core test. Black J also referred with approval to the dicta of Hallen AsJ in Re Will of Jane,65 concerning the meaning of the phrase ‘reasonably likely’ in this context. In the present case, since the only statement made by Troy in respect of his testamentary intentions had been made many years ago when his asset position was very different, the court could not be satisfied as to his actual subjective intentions as to making any proposed will. The question for the court was therefore whether the proposed will was one that was ‘reasonably likely’ to have been made by him in all the relevant circumstances. After considering the various evidence as to what provision Troy might have made for Aliesha, with whom he had a very close relationship, and for Carol and Brett, who had assisted (but not cared for) Troy since his accident, his Honour recognised the difficulty posed by the fact that Troy might have disposed of his estate in several different ways: It is important to recognise that the question raised by s 22(b) of the Act is not whether the proposed will would be a ‘fair’ will (or, by contrast with s 22(c) of the Act, whether it would be an ‘appropriate’ will) but whether the particular will is one that Troy was reasonably likely to have made, in the sense noted above. I have been troubled by the question whether it can be said that it would be ‘reasonably likely’ that Troy would make a will in the proposed form, where there are a range of possibilities as to the contents of such a will. These possibilities include at least: the proposed will, which in effect gives equal weighting to the claims of Aliesha as his daughter and of Mrs Burns and Brett as contributing to his care; a will that gave greater weight to the needs of Aliesha as his daughter, and less weight to the needs of Mrs Burns and Brett or their efforts in visiting and providing assistance to him, and left a greater proportion or all of his estate to Aliesha; a will that gave lesser weight to the needs of Aliesha as his daughter, and greater weight to the efforts of Mrs Burns and Brett as persons who have visited and provided assistance to him, and left a greater proportion of his estate to them; or a will that did not leave monies to Mrs Burns, notwithstanding that Troy might appropriately be grateful for her efforts in assisting him, because of the objective probability that she would predecease him, so that a gift to her might well operate as a larger gift to Brett.

In particular, I have been concerned as to the possibility that it could not be said that any such will was ‘reasonably likely’ if each of those wills was possible and none was more probable than other. The issue in this regard is less straightforward than other cases where there might be, for example, a clear and binary choice between an inappropriate result on intestacy and a single appropriate result by will. The case is also less straightforward that [sic] one in which there was evidence of the attitude of the person for whom the will was proposed to the relevant matters — for example, the fact that his daughter had not regularly visited him in the community home, or that his mother and brother had devoted significant efforts to his welfare — which might allow the court to conclude that Troy, had he had testamentary capacity, would have acted in a manner consistent with that attitude.66 [emphasis added]

[page 178] Notwithstanding these difficulties, his Honour reached the conclusion that the proposed will did satisfy the core test, taking into account in particular that: (1) Considerable weight could be given to the fact that Aliesha was present in court and confirmed that she had had the opportunity to take legal advice and did not seek to oppose the proposed will. (2) The proposed will provided an apparently ‘fair’ balance between Aliesha’s claims as Troy’s daughter, and the claims of Carol and Brett who had devoted their efforts to assisting Troy since the accident. (3) This was not a case where there were many claimants with potentially inconsistent claims on the proposed testator’s estate. There were only three realistic claimants, and the only issue open to doubt was the extent to which their respective claims would be recognised. The risk that the court might potentially approve one of several possible wills is more theoretical than real, at least where the persons potentially interested in the estate are given notice of the application and an opportunity to make submissions as to that question. His Honour concluded: … I am satisfied that, in the relevant circumstances, the proposed will is reasonably likely, in the relevant sense, to be one that would have been made by Troy if he had testamentary capacity, for the purposes of s 22(b) of the Act … the fact that interested persons have been given notice of the application and, in the present case, Aliesha has attended in court and not opposed the application, and the other matters to which I have referred above means that the

proposed statutory will should ultimately be treated as not merely one of a number of possible proposed wills all of which might be equally likely.67

Leave was accordingly given for the substantive application to proceed, on a date to be fixed. It is not clear from the judgment why the court was not in a position in this case to proceed directly with the hearing of the substantive application. One further point of interest in this case is that there was some indication that Carol and Brett had derived some personal benefit from insurance monies paid out after the accident. His Honour noted that Carol was living in a house purchased from Troy’s funds, and Brett benefited from that arrangement because it allowed Carol to sell her house and give him the proceeds. These aspects were noted as ‘factors that might reduce provision’ for Carol and Brett, although they do not appear to have been given particular weight in his Honour’s analysis of the core test.

Northern Territory 8.14 There have not been any statutory will applications to date in the Northern Territory.68

Queensland Re Winstanley69 Nil capacity — making a will — application unopposed — appropriate applicant — establishing lack of testamentary capacity — evidence of intention — notice to interested persons 8.15 This was the first statutory will application in Queensland. The application was made by three persons who had been appointed as administrators of the proposed [page 179] testator, Herbert Winstanley. Daubney J was satisfied that the applicants were

appropriate persons to make the application. Herbert was aged 76 and had always been intellectually impaired. He had never married and had no de facto partner or children. His parents were deceased. His only income was a disability pension. His only asset of value was a property at Clontarf, in which he resided together with his sister Nita, who was also intellectually impaired, and ‘Uncle Cecil’ (Herbert’s brother, one of the applicants) who had cared for them both for a number of years. The application was prompted by the applicants’ concern that a will that had been made by Herbert relatively recently with the Public Trustee may be susceptible to challenge on the basis of lack of testamentary capacity. The evidence about lack of testamentary capacity was contained in reports from a consultant physician in psychiatry and a consultant psychiatrist. It was clear from those reports that there was no likelihood of Herbert acquiring testamentary capacity. His Honour had regard to a wish expressed by Herbert that ‘Uncle Cecil’ should be able to continue to live in the Clontarf property, to look after Nita, and also as his own home. Notice of the application had been given to all the living siblings of Herbert and all of the children of his deceased siblings. None of them opposed the application. An order was made authorising the making of a will in the terms proposed.

Re Joachim70 Nil capacity — making a will — application unopposed — charitable gifts 8.16 This was a ‘nil capacity’ case. The proposed testator, Deborah Jones, was aged 35 at the time the application was made. She had suffered hypoxia at birth. The application was brought by a second cousin of Deborah. The applicant was a trained psychologist, and a former Deputy President of the Guardian and Administration Tribunal. Deborah had required support of a fairly intensive nature during her life, most of which had been provided by her grandparents and the Endeavour Foundation, a registered not-for-profit organisation. She had also derived benefit from Riding for the Disabled Inc (Qld). She resided with two other

intellectually impaired persons, who were also supported by the Endeavour Foundation. Deborah had accumulated over $30,000 of savings during her lifetime. The applicant considered that she ought not to die intestate, and, given the lack of involvement in her life of various family members, submitted that the most appropriate beneficiaries would be the Endeavour Foundation and Riding for the Disabled Inc (Qld). The application was supported by further affidavits filed by Deborah’s mother, father and grandmother. The affidavit evidence confirmed that Deborah had benefitted from Riding for the Disabled. Dutney J was satisfied that these were circumstances in which s 21 was designed to operate, so that Deborah’s estate would go to those who had assisted her during her life, rather than to virtual strangers with whom she had had no contact. [page 180]

Deecke v Deecke71 Lost capacity — making a will — application opposed — appropriate applicant — charitable gifts — conduct of interested persons — establishing lack of testamentary capacity — evidence of intention — notice to interested persons 8.17 The proposed testator, Lynelle Deecke, was aged 31. She had had lifelong cystic fibrosis, developed insulin dependent diabetes at age 13 and had a history of epilepsy. She had sustained a major brain injury in 1998 that affected her condition and functioning, and which had left her with a severe impairment in cognitive function. Lynelle had three brothers. Her parents had separated and divorced in the late 1990’s. She lived with her mother, who was her full-time carer. She had no children and no spouse. The application was brought by her mother. Lynelle was named as first

respondent. Her father, who had remarried in 2005, was named as second respondent. Lynelle’s assets were substantial, because of the receipt of a settlement sum in respect of a claim for medical negligence. The fund was administered by a trustee company as administrator appointed under the Guardianship and Administration Act 2000. The potential estate was worth more than $1 million, although it would be progressively reduced by the costs of care. Lynelle had no will. Under the intestacy rules, her estate would pass to her parents in equal shares, if they survived her. The applicant believed this did not reflect what Lynelle would want, if she had capacity. The applicant proposed a will that would provide a bequest of $5,000 to Cystic Fibrosis Queensland Limited, and gift Lynelle’s residuary estate to the applicant. If the applicant failed to survive Lynelle, the residue would be divided among Lynelle’s three brothers. The proposed will appointed the applicant as executor and trustee, with a substitutionary appointment of Lynelle’s elder brother. Mullins J was satisfied that the applicant, as Lynelle’s carer and mother, was an appropriate person to make the application for leave. Each of Lynelle’s brothers swore an affidavit supporting the application. Her father, who lived overseas, did not file any affidavit. Her Honour stated it was important that he be given an opportunity to be represented on the application, because his potential interest in the estate would be displaced by the proposed will, and strictly speaking, personal service of the application on him was required. He had, however, communicated with the applicant’s solicitor by email. Those emails were exhibited to an affidavit of the solicitor. In those emails, the father said he did not consent to the application, and disputed many of the factual matters asserted by and on behalf of the applicant concerning the history of family relationships and events. He said he did not intend to appear on the application, provided his emails were drawn to the attention of the court. Her Honour was therefore prepared to deal with the application, despite the lack of personal service. Evidence as to lack of testamentary capacity was provided from two sources. The applicant’s solicitor had interviewed Lynelle, and made a lengthy note of the questions she put and Lynelle’s answers. From those

answers, she concluded that Lynelle did not appreciate the extent or value of her assets and did not have capacity to make a will. A letter was also provided by a thoracic physician who had been treating [page 181] Lynelle, stating that it was unlikely that Lynelle had, or would ever acquire or regain, testamentary capacity. The affidavit evidence showed that after Lynelle sustained the brain injury, it was her mother who constantly visited her in hospital, and into whose care she was released from hospital. Lynelle’s father had only infrequent contact with her. Her Honour found that: I accept that there is evidence that [Lynelle’s] relationship with [her mother], before her injury, was much stronger and closer (and with less friction) than her relationship with [her father]. If [Lynelle] did have testamentary capacity, it would be relevant to her consideration of how to dispose of her assets that her primary carer since sustaining the brain injury has been her mother.72

The evidence also showed that Lynelle had at one stage expressed a wish to her mother that if she were to come into money, she would like to give some to the Cystic Fibrosis Foundation because of the assistance provided to her. Her Honour was satisfied, on the application for leave, that the core test was met. The proposed will benefited Lynelle’s primary carer and made a small gift to a charity that had been of assistance to her. The gifts in substitution were also appropriate in Lynelle’s circumstances. On the substantive application, her Honour said as follows, in relation to the question of whether the applicant was an appropriate person to bring the application: It is relevant to consider that the application has been brought by the applicant who may benefit by the proposed will. The applicant was in the best position, however, to put the relevant information before the court in support of the application. The application could have been brought in the first respondent’s name by a litigation guardian. The problem with that course was that the persons who would best qualify for the role of litigation guardian, namely the applicant and the first respondent’s brothers who are of age, have an interest in the making of the orders.73

Re Weick74 Pre-empted capacity — making a will — application unopposed — conduct of interested persons — notice to interested persons 8.18 This was a ‘pre-empted capacity’ case. The proposed testator, Linda Weick, was named as first respondent. The beneficiaries under the proposed will were Linda’s mother and sister, who had been her carers in recent years, and were the only two members of the family with whom she had had a close relationship. Applegarth J found that Linda had a ‘very poor’ relationship with her father. His Honour considered that the father ‘would have no moral claim upon her assets’. Notice of the proposed application was provided to the father. In correspondence, he indicated that he had no objection to the proposed will. He did not enter an appearance. The application was also served on Linda’s litigation guardian, who consented to the proposed order. His Honour was satisfied that the will was in a form that Linda ‘would have been likely to make if she had testamentary capacity’. [page 182]

Bielby v Denny75 Lost capacity — application for sanction — establishing lack of testamentary capacity — litigation guardian 8.19 The proposed testator, Robert Bielby, was 103 years old. The application was brought by his son, Gary Bielby. It was prompted by a concern that a will that had been made by Robert on 18 April 2007 was invalid by reason of lack of testamentary capacity. The 2007 will was prepared by a solicitor who was aware that Robert had some mental health issues but considered it was his duty to assist him to make a will. The matters taken into account by the solicitor in preparing the will were before the court, and there was no criticism of his actions. In effect, Gary sought to have the 2007 will revoked, so that Robert’s previous will, made in 2005, could stand. The 2005 will benefited Gary, with a small

pecuniary legacy to Robert’s daughter, Carole. Carole was the respondent in this application. A report had been provided in May 2007 by a geriatrician who had seen Robert previously. That report supported the conclusion that Robert lacked testamentary capacity at the time he made the 2007 will. A solicitor experienced in succession law agreed to be appointed as litigation guardian for Robert for the purpose of the application. He interviewed Robert, and a recording and transcript of that interview was tendered in evidence. He also engaged in negotiations between the applicant and the respondent in an endeavor to compromise the application. In this regard, Mullins J noted that: … Although the court’s jurisdiction in ecclesiastical matters does not depend on nor is exercised solely by reference to the parties’ preferences, it is relevant to have regard to the careful consideration that has been given by the lawyers and the parties, including those representing Mr Robert Bielby, to the resolution of the problem created by the making of a will by him when he lacked testamentary capacity.76

Orders were made appointing that solicitor as litigation guardian of Robert, and joining Robert as second respondent. Submissions were made by counsel for each of the three parties. The submissions made by counsel for Carole, first respondent, concluded: ‘The proposed settlement reflects [Robert’s] stated wishes to benefit Carole, although it moderates the extent to which he had done so in the 2007 will. The settlement also takes into contemplation the risk of a family provision application being run and an award being made. It also regularises the probate affairs of [Robert], which are clearly problematic.’ Her Honour was satisfied that it was appropriate, effectively, to sanction the compromise that had been reached between the parties, which was reflected in a deed of settlement. Those terms provided for the revocation of the 2007 will upon a declaration of its invalidity for want of testamentary capacity, the making of a statutory will in terms similar to the 2005 will save for a legacy of $180,000 in substitution of the $20,000 legacy in favour of Carole, and for the costs of the parties to be paid from Robert’s assets. Her Honour said: This is an unusual matter. I am satisfied that it is appropriate to exercise the jurisdiction that is conferred under the statutory will provisions of the Succession Act 1981 in relation to the

particular circumstances of this case, without endeavouring to set out any matters of principle or to make any statements of general application.77

An order was made that, pursuant to the Succession Act 1981 ss 6(1) and 21(3), the will of Robert be declared invalid on the grounds of his testamentary capacity (sic). [page 183] Further orders were made granting leave and authorising the making of the statutory will, and in respect of the parties’ costs.

Payne v Smyth as Litigation Guardian for Welk78 Pre-empted capacity — making a will — application unopposed — charitable gifts — establishing lack of testamentary capacity — litigation guardian — notice to interested persons — terms of statutory will 8.20 The proposed testator, Kodie Welk, was 19 years old at the time of the application. He had sustained a permanent brain injury in a motor vehicle accident when he was six years old. The sum of $1.5 million had been received by way of a compromise of a personal injuries claim. The balance of that sum, as at the time of the application, was held by a trustee company, as administrator. The application for a statutory will was made by Kodie’s mother. The respondent was a paternal aunt of Kodie, who was an accredited specialist in succession law, and acted in the proceeding as his litigation guardian. The application was served on Kodie’s father and adult siblings, but they chose not to appear. The siblings who were minors were not separately represented, but M Wilson J noted that provision was made for them in the proposed will. Apart from time spent in hospital after his accident, Kodie had always lived with his mother, on whom he was dependent. He had never married or been in a de facto relationship, and had no children. His parents had separated several years after his accident. Kodie had had irregular contact with his father for a number of years, although he had recently started to have more contact, sometimes staying with his father for several days at a time and having a key to stay at his father’s house when he pleased.

Kodie had several siblings: an older brother and sister from his mother’s first marriage, and three younger siblings from his mother’s marriage to his father. He had a good relationship with all of them. Kodie had no existing will. The proposed draft will provided for the appointment of Kodie’s mother as executor, with a substitutionary appointment of his aunt, the litigation guardian. Apart from a specific gift of his golf clubs to his brother Hamish, the distribution of the residue of Kodie’s estate would depend on whether he had any child or children who survived him. If so, 50 per cent of the estate would pass to those children (with a substitutionary provision), 20 per cent to his mother and 12.5 per cent to his father (with a substitutionary provision for each of those two gifts, in favour of Kodie’s siblings), 16.5 per cent to his siblings, and 1 per cent to a charity, Teen Challenge. If Kodie was not survived by any children or children, 40 per cent would pass to his mother, 25 per cent to his father, 33 per cent to his siblings and 2 per cent to Teen Challenge. There was evidence that the charity Teen Challenge had assisted Kodie during his adolescence, and that he might wish to make some small bequest to that charity if he had testamentary capacity. Evidence as to lack of testamentary capacity was provided in various reports by a neurosurgeon (which specifically addressed the elements of the Banks v Goodfellow test), a psychiatrist, and a general practitioner. Kodie’s father expressed some disagreement with the proposed dispositions, but he did not appear to contest the application. In his affidavit, he sought to explain his [page 184] limited contact with Kodie, and the financial and other support that he had provided. He expressed the view that Kodie’s older siblings should not take under the will. Her Honour expressed a concern that the draft will did not provide for the possibility of Kodie having children, none of whom survived him, but one or more grandchildren who survived him. The solicitors for the applicant

provided a second draft of the will, with a substitutionary provision inserted to address that concern. Her Honour received further written submissions and dealt with the application on the papers, reaching the conclusion that the second draft will met the requirements of the core test. An order was made that the applicant’s costs of and incidental to the originating application be assessed on the indemnity basis and paid out of the assets of Kodie.

Bock v Bock79 Pre-empted capacity — making a will — application unopposed — conduct of interested persons — separate representation 8.21 Brett Bock suffered serious physical injuries at age 14, which led to his hospitalisation and eventually to severe brain damage. He acquired cerebral palsy because of the negligence of the hospital. A damages claim against the State was compromised for approximately $5.375 million. The fund was held for him by a trustee company. At the time this application was made for a statutory will, Brett was aged 25. He had no will. Under the intestacy rules, his parents would share equally in his estate. The applicant, Brett’s mother, had always been his primary carer. She was estranged from Brett’s father, substantially because he had not been prepared to participate in the 24 hour care which Brett required. Brett had a brother and two sisters, all of whom had left home and were self-supporting. De Jersey CJ authorised a will to be made appointing the applicant as executor and gifting the purpose-built house in which she resided with Brett to her. The residue was gifted as to 60 per cent to the applicant, 10 per cent to Brett’s father, and the balance of 30 per cent to Brett’s three siblings. His Honour said as follows: The applicant would be the substantial beneficiary under this proposed will, which is right because she has devoted her life to his care. On his death, she will be left without employment, assuming she survives him, and without a residence of her own. Brett’s relationship with his father is more distant. As mentioned, his siblings are not dependent in any way on Brett.80

The application was not opposed by Brett’s father (who was named as respondent), nor by Brett’s siblings. The trustee company was aware of the

application and had not opposed it. It was not found to be necessary to require that Brett be separately represented because there was no prospect of him giving instructions.

Re Keane; Mace v Malone81 Lost capacity — amending a will — application opposed — conduct of interested persons — consideration of Re D(J) — core test — unsuccessful application — costs 8.22 This application was unsuccessful. The proposed testator, Patrick Keane, was 91 years old, was physically and mentally infirm, and lived in a nursing home. He was the eldest of eight children. He had never married, and had no children. The application was brought by his youngest sister, Josephine Mace. [page 185] Patrick had an existing will, made in 2000. That will provided for specific legacies of $2,000 to each of Josephine and Patrick’s youngest sister, Joan, and for the residuary estate to pass to Patrick’s sister Mary, or in default to her children in equal shares. For much of his life, Patrick had lived in close proximity to, or with, Mary, who was two years younger than him. For many years, he and Mary collaborated in business and in the acquisition of properties. Mary died in 2007. She had seven children. One of those children, Kieran Malone, had effective carriage of the opposition to Josephine’s application as respondent, and swore the principal affidavits filed for that purpose. The will proposed by Josephine provided for all of Patrick’s estate to pass to Josephine and Joan. None of the estate would pass, directly or indirectly, to any of Mary’s children. The application was opposed by those family members who would lose an interest in Patrick’s estate if the proposed will was made. In 2006 and 2007, Mary had engaged in various transactions in respect of properties which she held with Patrick as joint tenants. Mary held an

enduring power of attorney (EPA) from Patrick, which had been signed when he executed his 2000 will. Those transactions were in various respects improper, and resulted in benefits to Mary and her daughter Leone. Following Mary’s death, Leone became Patrick’s attorney, under the terms of the EPA. In October 2007, the Adult Guardian suspended the EPA, and applied to the Guardianship and Administration Tribunal for orders that the Adult Guardian be appointed as Patrick’s guardian, and that the Public Trustee be appointed as his administrator. On 12 December 2007, the Tribunal made orders revoking the EPA, appointing Kieran and his brother Brendan as Patrick’s guardians, and appointing the Public Trustee as Patrick’s financial administrator. Daubney J observed that ‘By this time, the wider family had effectively split into two camps — Josephine’s and Kieran’s, with Patrick in the middle’.82 A number of applications were subsequently made to the Tribunal to review the appointment of Kieran and Brendan. On 15 April 2008, the Tribunal concluded that they should not remain as Patrick’s guardians, and appointed the Adult Guardian in their place. Also in April 2008, the Public Trustee, as administrator of Patrick’s affairs, issued proceedings against the administrator of Mary’s estate, seeking a revesting of interests in Patrick’s estate that had been alienated by Mary and an account for monies received on the sale of a certain property. Those proceedings were settled and, in effect, the value of Patrick’s estate was returned to at least what it had been prior to the improper transactions undertaken by Mary. His Honour was satisfied that Josephine was an appropriate applicant for a statutory will, on the basis that she had sufficient connection with Patrick and his affairs. The fundamental submission advanced on behalf of Josephine was that the conduct of Mary in misusing her power of attorney to divest Patrick of his proprietary interests in the properties, and to sell one of the properties without accounting to him for his share of the proceeds, was ‘so egregious as to cause Patrick to completely change his testamentary dispositions’.83 After reviewing at length the history of the property transactions that had taken place, the family dynamics, and the various Tribunal applications, his Honour found as follows:

The case for Josephine is that, knowing of these matters, Patrick’s response would be to disenfranchise Mary’s family from claim on his estate as punishment for Mary’s wrongdoing.

[page 186] I am far from satisfied that Patrick would adopt such a retributive approach. He would be aware of the long-standing history connecting him, Mary and Leone. He would be aware of the financial and practical circumstances, built up over many years, which led to him enjoying the benefit of a substantial estate which was intertwined with Mary’s. He would understand Mary’s desire to prefer Leone, particularly given the assumption that he is receiving competent legal advice about the operation of his 2000 will and the way in which his estate will be distributed to all of Mary’s children under that will. He would also know that neither Josephine nor Joan had in any way contributed to his estate. True it is that, apart from Leone, none of Mary’s other children contributed to Patrick’s estate. The result contended for by Josephine, however, would see Mary’s side of the family completely excluded from having an interest in Patrick’s estate. Given the extensive personal and financial history by which Patrick’s estate and Mary’s estate were so closely connected over so many years, I cannot accept that Patrick’s response as at today’s date, and knowing of the matters to which I have referred above, would be to exclude Mary’s family from receiving the bulk of his estate. Patrick would also, of course, know of the unseemly internecine squabbling which has occurred between, principally, Josephine and Kieran since Mary’s death in relation to Patrick’s care. As is clear from the reasons of the Tribunal …, neither party has acted commendably in that regard. I do not consider, however, that the criticisms of Kieran’s conduct would be regarded by Patrick as such as to warrant such a wholesale change to the terms of his will. Accordingly, I am not satisfied, on the particular facts of this case, that the will proposed by Josephine is or may be a will that Patrick would make if Patrick had testamentary capacity. As a corollary, I find that it is not appropriate for an order to be made under s 21 of the Succession Act 1981 in relation to Patrick.84

Leave was not, therefore, granted for the application to proceed. This case contains an analysis of the core test as it applies under the Succession Act 1981 (Qld) s 24(d). His Honour noted that the statutory will provisions had their genesis in the Mental Health Act 1959 (UK) and that the considerations to which the court should have regard in connection with the legislative requirements were set out by Megarry V-C in Re D(J),85 although that approach had been criticised by Palmer J in Re Fenwick86 as somewhat artificial. He concluded as follows: It seems to me that the appropriate approach under s 24(d) of the Queensland legislation ought be one which is informed by the five principles articulated by Megarry V-C in In Re D(J). The patent differences between the terms of the Queensland legislation and the statutory provisions in New South Wales, Victoria and South Australia render it quite inappropriate to import the tests which have been applied in those other places. The legislation with which Megarry V-C was concerned called for consideration of what ‘the patient might be expected to provide if he

were not mentally disordered’. The Queensland legislation aligns closely with that by requiring consideration of whether ‘the proposed will … is or may be a will … that the person would make if the person were to have testamentary capacity’. I would reject the submission that the exercise under the Queensland legislation requires an assessment of whether the proposed will would more accurately reflect the testator’s likely intentions more probably than other possible dispositions. That may be the appropriate test under legislation in other States, but it is not the test under s 24(d).87

On this basis, his Honour applied the Re D(J) principles in this case. Costs were dealt with in Re Keane; Mace v Malone (No 2).88 It is instructive to consider the submissions made by the various parties because they reveal the [page 187] multiplicity of considerations that may be relevant to the court’s consideration of the costs position where a statutory will application is unsuccessful. The following submissions were made on behalf of the applicant: (1) This was a ‘unique’ type of case and one in which costs should not follow the event. (2) The applicant only commenced proceeding in an honest belief that Patrick, if he had testamentary capacity, would have varied his will. (3) The proposed terms of the will were not for the sole benefit of the applicant but also for Patrick’s sister, Joan. The proposed terms were made with an honest belief that this would have been Patrick’s intention if he had capacity. (4) The application was unsuccessful because his Honour was not satisfied on the material that Patrick would have changed his will. (5) Patrick’s funds should be preserved for his needs for the remainder of his life. The applicant did not seek her costs of the proceeding, either from Patrick’s resources or from the respondent. (6) Only some of the beneficiaries of Patrick’s estate, pursuant to his existing will, were respondents to the proceeding. The respondents submitted that if an order was made that the respondents bear their own

costs, that would create an injustice. However, any perceived injustice should not be a determining factor. (7) The applicant commenced proceedings with merit and in an honest belief that Patrick would execute a new will in the circumstances. The applicant should not be ordered to pay the respondents’ costs, and costs should not follow the event. Each party should bear their own costs. The submissions on behalf of the respondents were that: (1) The applicant’s application was unsuccessful. (2) Ordinarily, costs should follow the event. (3) However, there were some unusual features of this matter that would favour an order for costs in the respondents’ favour out of the estate: (a) The application sought to dramatically alter the division of the estate in circumstances where Patrick had an existing will. The respondents were therefore, while upholding their own interests, also representing Patrick’s interests in seeking to uphold a will which he made while he had capacity. (b) The applicant gave evidence of her poor financial position. The court could be confident that she had no ability to meet a costs order against her. (c) Only some of the beneficiaries of Patrick’s estate were respondents to the proceeding. An order that the respondents bear their own costs, or that the applicant pay the respondents’ costs, would mean that those respondents who did not appear on the application would bear more of the costs associated with upholding Patrick’s will. There would be an element of injustice in that. (d) In the originating application, the applicant sought that her costs be paid from Patrick’s estate. The Public Trustee knew that this order was being sought but chose not to appear on the hearing. It could be fairly assumed that the Public Trustee did not oppose a costs order out of Patrick’s estate. (e) The applicant submitted at the hearing that she would not seek her costs out of Patrick’s estate if she was successful. She ought not to be entitled to her costs from his estate when she was unsuccessful. (4) It would be appropriate to order that the respondents obtain their costs of

and incidental to the application out of Patrick’s estate, and that the applicant pay [page 188] Patrick’s costs of and incidental to the application, to be assessed on an indemnity basis, including those costs Patrick’s estate may be ordered to pay to the respondents. (5) In the alternative, it should be ordered that the applicant pay the respondents’ costs of and incidental to the application, to be assessed on a standard basis. (6) In any event, the applicant should be ordered to pay her own costs. The submissions made on behalf of the Official Solicitor to the Public Trustee (as solicitor for Patrick) were that: (1) There was no reason to depart from the general rules as to costs. (2) No appearance was made in the proceeding on behalf of Patrick on the assurance by the applicant that no adverse costs order would be sought against him. (3) The successful respondents now asserted that Patrick should effectively pay their costs. (4) The applicant should not be entitled to recover any costs from Patrick. (5) The respondents should not be favoured with any order that, in effect, would cause the burden of costs to fall on Patrick because their contest of the applicant was motivated by them attempting to preserve an ultimate entitlement to Patrick’s estate on his death. (6) Patrick was a person under a disability, of advanced years, in a nursing home. His inter vivos estate should not be further diminished so as to deprive him of any part of it for his personal use and wellbeing. (7) The Public Trustee did not apply for a statutory will. (8) No benefit from the proceeding was derived by Patrick. (9) It was no answer for the respondents to assert that they should be reimbursed for costs incurred because the applicant had no capacity to

pay. The Public Trustee’s submissions were given due weight by his Honour: … In practical terms, the benefit of success in this piece of litigation was and is for the respondent, who has protected their ultimate entitlement to receive Patrick’s estate when he dies. There was, and is, no benefit to Patrick in this litigation. Moreover, I see no reason why the assets which are available to maintain Patrick in the nursing home should in any way be diminished by this spat between the competing camps in the family.89

His Honour found that, in these circumstances, there was no reason to depart from the usual rule that costs follow the event. An order was made that the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.

Hickson v Humphrey90 Making a will — application opposed — conduct of interested persons — litigation guardian — terms of statutory will — costs 8.23 This application was made by the mother of the proposed testator, Jessica Humphrey. It was opposed by Jessica’s father, who was the respondent. De Jersey CJ authorised the making of a will for Jessica, for reasons including that she had considerable assets, and distribution on an intestacy would be inappropriate. It was found not to be necessary for a litigation guardian to be appointed for Jessica, [page 189] because she could not give instructions. A litigation guardian did, however, appear for Jessica’s younger sister, Rebecca, who was not an adult. His Honour determined that the house should pass to the mother, and personal effects to Jessica’s sister Rebecca, as proposed. He further acknowledged the mother’s ‘vast commitment to Jessica’s care over the years’, and inferred that while the mother remained able to render that care, Jessica could reasonably be expected to commit the lion’s share of the residue to her mother, while also allowing a (much lesser) portion to Rebecca. The form of will that was authorised to be made was prepared by

the litigation guardian for Rebecca, and provided for the residue to pass as to 80 per cent to Jessica’s mother, 10 per cent to Rebecca and 10 per cent to Jessica’s father. Notwithstanding that the application was successful, and that most of the respondent’s evidence related to his unsuccessful efforts to see his daughters since his separation from the applicant, an order was made that the respondent’s costs also be paid from Jessica’s estate, on the basis that he was entitled to be heard upon the application.

McKay v McKay91 Lost capacity — making a will — application unopposed — appropriate applicant — consideration of Re D(J) — core test — evidence of intention 8.24 A successful application was made for a statutory will for Cecily McKay, by her husband, Ian McKay. In 2006, Cecily and Ian were involved in a motorcycle accident. Cecily suffered serious injuries that left her permanently and severely disabled. As a result of those injuries, she required 24 hour care, much of which was provided by Ian. Carers were also employed. A personal injuries claim had been brought on Cecily’s behalf, which resulted in the payment of substantial damages. Perpetual Trustees had been appointed to manage that fund, and had also been appointed as Cecily’s administrator by the Queensland Civil and Administrative Tribunal. Cecily and Ian had been married for more than 35 years. They had three children: Erin, Lee and Clare, each of whom was named as a respondent in the proceeding, as was Cecily. There was evidence that Cecily may have previously executed a will. Ian stated, in his affidavit, that in about 2005 he and Cecily had purchased ‘will kits’, which they had completed to reflect their intention that they would each leave their estate to the survivor of them, or in default, to their three children equally. Despite enquiries having been made of the children, and of solicitors and banks, the ‘will kit’ wills had not been located. Ian proposed that a will be made for Cecily in corresponding terms. In considering this application, Ann Lyons J referred first to the two-stage

process and the dicta of Debelle J in Hoffman v Waters92 concerning the ‘screening’ role of the first stage. Her Honour was satisfied that Ian was an appropriate applicant: In respect of s 24(a) I am satisfied that Mr McKay is an appropriate person to make the application as Mrs McKay’s husband of 35 years and the father of their three children. He resides with Mrs McKay and provides significant care to her. I consider that he has

[page 190] sufficient connection to her affairs to appropriately bring an application concerning the disposition of her estate. …93

Although Ian was also the person who may benefit under the proposed will, her Honour noted the comments of Mullins J in Deecke v Deecke94 to the effect that, in that case, an interested applicant was considered to be ‘in the best position’ to put the relevant information before the court. The only persons for whom Cecily might reasonably have been expected to have provided in her will were Ian and the three children. The children had been served as respondents. They were also the only persons who were entitled on intestacy, or to make a family provision application. All three children had sworn affidavits in support of the application. The position on intestacy, assuming that Cecily was survived by both Ian and the children, would be that Ian would be entitled to $150,000 and the household chattels and one third of the residuary estate, and the remainder of the residuary estate would pass to the children in equal shares. Her Honour considered whether Perpetual Trustees might have a ‘proper interest in the application’, for the purposes of the Succession Act 1981 (Qld) s 24(b). Perpetual had been served with the application but had advised the solicitors for the applicant that they did not wish to appear on the hearing of the application. Perpetual indicated that they considered that their only interest in the application, as administrator, related to the legal costs that might have to be met out of Cecily’s assets. Without deciding the matter, her Honour stated as follows: … it would seem to me that it is arguable that an administrator in the circumstances of a particular case could take the view that as administrator it was appropriate to obtain legal advice about the adult’s legal rights in relation to a particular application for a statutory will that relates

to their client. It also seems to me that given the nature of the inquiry that the court is required to undertake in relation to the making of a statutory will that an administrator may well be required to provide specific information to the court in relation to such matters as the adult’s financial affairs and current support arrangements. It is clear that s 25(b) of the Act provides that the court may inform itself of any matter relating to the application in any way it considers appropriate and s 25 (c) provides that the court is not bound by the rules of evidence. There may also be an argument that an administrator is an ‘appropriate person’ to bring an application for a statutory will to be made in the circumstances of a particular case In some cases it may be that the administrator is the only person in the adult’s life.95

Perpetual’s approach, in advising the court of their intention to abide by the order of the court and not seeking to appear, was viewed as ‘entirely appropriate’. In considering the other requirements for the grant of leave, her Honour applied the test for testamentary capacity stated in Banks v Goodfellow,96 (as restated by Applegarth J in Frizzo v Frizzo97), and noted the dicta of Palmer J in Re Fenwick98 that it is a serious matter for a court to make a will for a person who lacks capacity, and the level of satisfaction that a court must feel as to the level of incapacity must reflect the gravity of the power being exercised and its consequences. In Cecily’s case, the various medical reports before the court enabled a finding, to a ‘high degree of satisfaction’, that there were reasonable grounds for believing that she lacked testamentary capacity. [page 191] Ian and the three children, in their affidavits, had each outlined discussions that they had had with Cecily concerning her testamentary intentions, before her injuries. There was also Ian’s evidence regarding the ‘will kit’ wills. Her Honour was further satisfied, in considering the core test, that a division of Cecily’s assets in accordance with the intestacy provisions would be inconsistent with Cecily’s previously expressed intentions. Her Honour chose not to follow the approach that had been taken by Daubney J in Re Keane; Mace v Malone,99 which was premised on an application of the Re D(J)100 principles: Accordingly in the current circumstances I propose to simply focus on the words of the section. I simply need to ascertain whether the proposed will is one that Mrs McKay would or may make if she were to have testamentary capacity. I consider that the present case can be clearly distinguished from Re Keane; Mace v Malone where the court was asked to approve a proposed

will which was completely different to the will which had in fact been previously executed. I am not convinced that the approach by Megarry V-C in In Re D(J) is necessarily the appropriate approach in the circumstances of this case and also note the criticisms of the approach by Palmer J in Re Fenwick who considered the approach as artificial, counter-factual and involving mental gymnastics. In the present case the evidence indicates that the proposed will is in the terms of a previous will made by Mrs McKay which has been misplaced. Furthermore each family member gave clear evidence as to Mrs McKay’s intentions prior to her injuries. Therefore when considering whether the proposed will is or may be one which Mrs McKay would make if she were to have testamentary capacity I am necessarily influenced by Mrs McKay’s clearly expressed previous wishes and indeed by the evidence that the missing ‘will kit’ will clearly set that out. In my view each of the members of Mrs McKay’s immediate family concur as to Mrs McKay’s testamentary intentions before she suffered personal injuries. The proposed will appears, on the individual evidence of each family member, to be a will that Mrs McKay would make if she were to have testamentary capacity at the date of the Orders. There is nothing to suggest that despite the terrible injuries Mrs McKay has suffered circumstances have significantly changed to warrant a diversion from the wishes Mrs McKay expressed when most recently of full cognitive capacity.101

Leave was granted and an order made authorising the making of a will in the terms proposed by Ian. As regards costs, it was ordered that the parties’ costs of the application be assessed on the indemnity basis and paid out of Cecily’s estate.

Wickham v Smith102 Lost capacity — making a will — application unopposed — conduct of interested persons — core test — evidence of intention — superannuation 8.25 This application was brought by the mother of the proposed testator, Heath Hawes, who was aged 33. Four persons were named as respondents: Heath’s estranged father and his three siblings (the youngest of whom, a halfsister, was almost 18, and in respect of whom Daubney J was satisfied that the matter could proceed without a litigation guardian being appointed). In addition to the applicant’s affidavit, two of the siblings and Heath’s stepfather also filed affidavits supporting the application. At age 27, Heath was involved in a motor vehicle accident. He suffered permanent brain damage and was severely incapacitated. A personal injuries claim was settled for a sum in excess of $5.3 million. Perpetual Trustees Company Limited was appointed as administrator of the settlement sum. The amount under management at the time

[page 192] of the application was approximately $4.9 million. Perpetual Trustees was served with the application but did not take part in the proceeding. The applicant was appointed administrator for Heath’s finances, apart from the settlement sum. His Honour noted that Heath had long been estranged from his father, who had not seen Heath since he was 16, and prior to that saw him rarely. The father was served with the application, but there was no appearance by him. It was also clear that Heath had no relationship with any of his half siblings, being the children of his father from other relationships. Heath had no spouse and no children. He had not made a will. The proposed will was in simple form. It provided for Heath’s mother to be appointed as executor. The estate would pass as to 70 per cent to Heath’s mother (with a gift over to the three siblings, should she predecease him) and as to the remaining 30 per cent to the three siblings in equal shares, with a default gift to their children. In respect of the core test, his Honour said as follows: Whilst it is true that the draft will favours the applicant (Heath’s mother) over the other proposed beneficiaries, it seems to me that this represents, in the circumstances of this case, a will which is or may be a will that Heath would make, were he to have testamentary capacity. In that regard, it is relevant to have regard to the fact that Heath’s mother has spent the last six years of her life in devoted care of Heath. That she is now 65 years old, and on Heath’s death, she will likely to be elderly, without employment, and otherwise in herself in need of some care; that she will have no roof over her head but for that provided during her care of Heath; and that she will otherwise, during the time she is caring for Heath, have no means to establish investments to look after her own interests. The proposed allocation of Heath’s estate in that way clearly has regard to the primary position which has been adopted by Heath’s mother in caring for him, but also has regard to the undoubted relationship that he had, and has, with his siblings, the second third and fourth respondents.103

There was some indirect evidence of Heath’s likely testamentary wishes. While he had no will, he had executed a nomination in respect of his superannuation fund. That provided for 50 per cent to pass to his sister Erin, 25 per cent to his brother Matthew and 25 per cent to his mother. However, this pre-dated the accident, and therefore pre-dated his mother’s extensive and full-time care for him. There was an explanation for why his sister Danielle was not named: she was only 12 at the time the form was filled out.

His Honour was satisfied that these three siblings enjoyed a close and loving relationship with Heath, and that it could be expected they would be the recipients of gifts by his will if he were able to make one.

Re Matsis; Charalambous v Charalambous104 Lost capacity — amending a will — application unopposed — core test — establishing lack of testamentary capacity — estate planning 8.26 This case is significant because it concerns the making of a statutory codicil specifically for estate-planning (tax planning and asset protection) reasons. The proposed testator, John Matsis, was 90 years of age. His estate was valued in excess of $13 million, comprising assets in excess of $7 million in Australia, and assets of $6 million in Greece. His wife, Despina, had died in 2007. Under his existing will made in 2001, his house would pass to one of his grandsons, John Paul Charalambous, and his residuary estate to such of his three grandsons (Harry Charalambous, Carl [page 193] Charalambous and John Paul Charalambous) as survived him for 30 days, and if more than one, as tenants in common in equal shares. The will did not provide for any gift to John’s adopted daughter, Esther Charalambous (mother of Harry, Carl and John Paul), because she had no need for provision from his estate, by reason of her own personal wealth. Apart from Esther, John did not have any other living natural or adopted children. Harry, Carl and John Paul were aged 26, 25 and 19 respectively at the time of the application. None of them had any children or was married. Harry and Carl were engaged in businesses that involved a degree of financial risk but, importantly, there was no evidence that they were subject to any creditor claims or exposed to liability at the time of the application.105 John Paul was a student, and in his supporting affidavit, he recognised that receiving his inheritance in trust would provide a degree of protection. The application was brought by Carl. Esther, Harry and John Paul were

named as respondents. Each of the respondents filed an affidavit in support of the application. The essence of the proposed codicil was that the residuary estate would be held on three testamentary discretionary trusts for Harry, Carl and John Paul respectively, instead of the existing gifts passing to them outright. The class of beneficiaries of each trust was widely defined to include various family members and related companies and trusts. Ann Lyons J accepted that there were sound estate planning reasons for that. The draft codicil did not seek to alter the appointment of the executors, nor to affect the gift of the house to John Paul. It provided for the estate to pass to and for the benefit of the same persons who were beneficiaries under the 2001 will, but through testamentary trusts. The terms of those trusts were based on a precedent provided by a legal firm that specialised in the applicable tax, trust law, superannuation and other estate planning considerations. Flexible powers for the executor and trustees had also been included. The terms also provided for an appointor, and for the appointment of a corporation to act as trustee of each the testamentary trusts, together with the principal beneficiary of the respective trust. John had been a full-time resident of a dementia unit of a nursing home since 2009. An affidavit filed by his solicitor, Mr Bowles, who had significant experience in wills and estates, and who had been managing John’s financial affairs and personal health matters pursuant to an enduring power of attorney, indicated that John likely ceased to have capacity around 2007. A medical report was provided which clearly indicated that John had severe dementia, which was permanent. On the basis of this evidence, it was found by her Honour to be clear that John lacked and would not regain capacity. Her Honour was satisfied that the requirements for leave were met. As regards the application of the core test, her Honour adopted the same course that she had taken in McKay v McKay,106 noting: … I have to be satisfied that the proposed alteration is or may be an alteration that [the proposed testator] would make were he to have testamentary capacity. It is clear, therefore, that the applicant does not have to satisfy the court that this is the codicil [the proposed testator] would make, but, rather, it is a codicil he ‘may’ make were he to have capacity.107

The test in Re D(J)108 was referred to in passing; it was said that the codicil would also satisfy that test.

[page 194] Importantly, Mr Bowles’ affidavit provided evidence of John’s approach to financial and property matters. This included the following: … [John] often discussed those years with me, telling me about the long hours he worked and his satisfaction from doing so. It was clear to me that he took significant pride from the fact that he was the founder of the family fortune that the benefit of his hard work would pass through the generations. From my knowledge of [John], I can state unequivocally that he was at that time, and would today if he had testamentary capacity continue to be, very supportive of any measure which would increase the ability of his grandsons to be entrepreneurial to engage in their own business enterprises. Accordingly, I am strongly of the view that were I today able to have the opportunity to explain to [John], and were he able to understand, the protection that a testamentary trust can give to a person who is self-employed in quarantining assets, he would have been strongly supportive of the concept and would have wished to execute a codicil into his 2001 Will basic testamentary trusts of the kind that are contained in the Draft Codicil. I base this belief on my understanding of his views derived from acting as his Solicitor for more than a decade.109

This enabled her Honour to reach the conclusion that the inclusion of testamentary trusts in the will was ‘entirely consistent’ with John’s entrepreneurial approach, which he strongly instilled into his grandsons, and his strong emphasis on keeping wealth within the family. An order was made that the costs of and incidental to the application be assessed on the indemnity basis and paid out of John’s assets.

Sadler v Eggmolesse110 Nil capacity — making a will — application unopposed — appropriate applicant — charitable gifts — conduct of interested persons — consideration of Re D(J) — core test — notice to interested persons 8.27 An application was made by Fay Sadler for a statutory will to be made for her son, Matthew Eggmolesse, who was 25 years of age at the time of the hearing. As a result of complications at birth, Matthew suffered a severe brain injury in respect of which compensation of approximately $1.77 million was paid, which was held by the Public Trustee on trust for him. Matthew was one of three children of the marriage of Fay and Timothy

Eggmolesse. Matthew’s two younger brothers, Bill and Hunter, were 21 and 20 years of age respectively at the time of the hearing. Fay and Timothy had been separated since 1994 (when Matthew was 6 years of age). Since his release from hospital, Matthew had been cared for almost exclusively by Fay, who provided full-time care. Matthew had extremely limited physical abilities, and his communication ability was limited to blinking to signify his wishes and desires. The home in which they lived, together with Bill and Hunter, had been purchased by the Public Trustee on trust for Matthew. Matthew had no existing will. The effect of him dying intestate would be that Fay and Timothy would each receive half of his estate. Atkinson J noted that, given that the home owned on Matthew’s behalf was his mother’s residence, and given the close relationship between her and Matthew, that would appear to be an inappropriate result. The solicitor acting for Fay had, prior to filing the application, written to Bill, Hunter and Timothy, explaining the nature of the application, and providing an [page 195] opportunity for them to provide their ‘thoughts and opinions’. Timothy responded, through a solicitor, to the effect that he did not support the terms of the proposed will, and putting forward an alternative proposed will. Following discussion between the family members, they agreed that it would be appropriate for a will to be proposed that provided for the following gifts: $5,000 to the Disabled Surfers’ Association of Queensland (which was an organisation that had given Matthew some benefit), the interest in the land to Fay, and the residue as to 50 per cent to Fay, 25 per cent to Bill and 25 per cent to Hunter. On this basis, the application was unopposed. Affidavits in support were filed by Fay, Bill and Hunter. In addition, an affidavit was filed by the solicitor acting for the applicant, who practised predominantly in the area of succession and estate litigation. She expressed an opinion that the proposed will met the core test, and setting out her reasons for that opinion.

Her Honour noted that, in relation to the two-stage process, one of the situations in which it may be appropriate for the application for leave to be made separately is when not all of the evidence necessary to support the application itself is then available. Where all of the evidence that should be put before the court is available, the appropriate course, to save costs, is for the leave application to be made at the same time as the substantive application.111 Her Honour reviewed the history of the introduction of the relevant statutory provisions in Queensland that conferred the court’s power to authorise the making of statutory wills. She noted that notwithstanding the Uniform Succession Laws project initiated by the Standing Committee of Attorneys-General (and co-ordinated by the Queensland Law Reform Commission), the desire for uniform statutory provisions was not met. In particular, differences existed in the wording of the core test between the States. Her Honour cited with approval the three categories of cases identified by Palmer J in Re Fenwick.112 The present case was within the second category (‘nil capacity’). Importantly, her Honour outlined the approach that should be taken in applying the core test in such a case, as follows: This is a case in the second category, as Matthew has never had testamentary capacity. In such a circumstance, it would be extremely artificial to adopt a test used in England, under different legislation, by Megarry V-C in Re D(J) [1982] Ch 237, of attempting to pretend that Matthew had a lucid interval and what would he do during that lucid interval, and I expressly do not follow that approach. I agree with all the criticisms made of that approach by Justice Palmer in Re Fenwick and by Justice Ann Lyons in McKay v McKay [2011] QSC 230. I agree with Justice Palmer’s observation at [148] that what this Court should do is to start with a ‘clean slate’ and ‘interpret the words of the section in the light of the problems and difficulties which the legislation seeks to remedy, bearing in mind that legislation of this kind should receive a benevolent construction’. So I turn to the wording of the statute. The wording of the statute in New South Wales is different, and therefore I cannot apply the cases on that statute to an interpretation of this statute, but it is an unnecessary complication to do so in any event, since the words of this statute in the Queensland Act are quite clear and quite capable of being given effect to by the court without reference to cases determined under different statutory provisions and without introducing hypothetical or artificial counter-factual arguments or those involving mental gymnastics, as referred to by Justice Ann Lyons in McKay v McKay at [79].113

[page 196]

Her Honour was satisfied that the core test was satisfied, for the following reasons: Looking at Matthew’s position, if he were able to understand the way in which his mother has cared for him and devoted her life to him since his birth, it is without doubt that he would want to benefit her in the way in which he has in the will. Further, in view of the affection shown to him by his brothers and their close relationship with him, I have no doubt that the proposed will which disposes of some of Matthew’s property to them is one that he would want to make if he had testamentary capacity. The same is true of the gift to the charity which has been chosen in view of its relationship with Matthew and the work it has done for Matthew.114

In respect of the other statutory requirements for the grant of leave, her Honour was satisfied that: (1) Fay, as Matthew’s mother and carer, was an appropriate person to make the application, notwithstanding that she would be a beneficiary under the will. Her Honour said: ‘… that fact does cause me to exercise care in considering whether or not she is an appropriate applicant for leave. However in cases of this kind, it is almost inevitable that the applicant will be someone who will benefit from the proposed will, and that is certainly not a disqualifying factor’.115 (2) Adequate steps had been taken to allow representation of all persons with a proper interest in the application. All those persons were represented on the application. (3) There was ‘ample evidence’ that Mathew lacked testamentary capacity (although the judgment does not state whether medical evidence was provided in this respect). (4) It was appropriate for an order to be made: ‘It is appropriate in this case where the alternative is … an intestacy, where the mother, who has had more or less sole care of Matthew all his life, and the father who has not lived in the same household since Matthew was not quite seven, would benefit equally under the will.’116 As regards costs, orders were made that the applicant’s costs of and incidental to the application on the indemnity basis be paid out of Matthew’s assets, and that the respondent’s costs of and incidental to the application be paid out of Matthew’s estate in the sum of $2,000.

Re Kann117 Lost capacity — amending a will — application unopposed — appropriate

applicant — charitable gifts — establishing lack of testamentary capacity — two-stage process 8.28 An unopposed application was made for a statutory will to be made for Edward Kann, who was 97 years of age. The applicant was Edward’s nephew. The application was made in circumstances of extreme urgency, as Edward was in the very last stages of life. Edward had an existing will which he had made in 2009, without legal advice, using a pre-printed ‘post office’ will form. As a consequence of his wife predeceasing him, his estate would pass according to the rules of intestacy. There was evidence that such an outcome would not reflect Edward’s testamentary wishes. The applicant was one of the two family members who would benefit on intestacy. The application was served on the other. Both provided affidavits in support. Various [page 197] other family members also provided affidavits in support. The affidavit evidence notably touched on Edward’s charitable intentions, which were also reflected in an earlier will. In the very limited time available, it had not been possible to obtain a medical report to confirm that Edward lacked testamentary capacity. The evidence in that regard was therefore provided in an affidavit sworn by the family member who had had the closest contact with Edward in the preceding months, and who was able to state his own direct observations of Edward’s physical and mental state and the circumstances of his recent decline in health. In allowing the application, Applegarth J provided very brief reasons, noting that the circumstances that gave rise to the application were comprehensively set out in the submissions prepared by counsel for the applicant and that ‘in the circumstances it would only take time — and valuable time — for me to recite them’. His Honour indicated that his reasons should be taken as effectively incorporating those written submissions.

An order was made granting leave and authorising the making of the will in the terms proposed.

Lawrie v Hwang118 Lost capacity — making a will — application opposed — appropriate applicant — conduct of interested persons — core test — establishing lack of testamentary capacity — evidence of intention — family provision — notice to interested persons 8.29 The proposed testator, Keith Lawrie, was 82 years of age at the time of this application for a statutory will. He had significant short term memory problems as a result of two strokes, and was suffering from dementia. The application was made by his son, Mitchell Lawrie. Keith’s wife, Kumok Hwang was named as respondent. Keith’s most recent will, made in 2006, had been revoked by his marriage to Ms Hwang. He had met Ms Hwang in May 2011 through an introductions agency, during a trip to South Korea. They were married shortly thereafter in three separate wedding ceremonies that took place in South Korea on 26 July 2011, in Brisbane on 22 September 2011 and in Las Vegas in November 2011. At the time of the wedding ceremonies, there were significant concerns for Keith’s mental capacity. In August 2011, the Public Trustee was appointed as administrator for Keith’s financial affairs. From around that same time onwards, a number of financial transactions took place whereby approximately $3.1 million was transferred from bank accounts of Keith and his asset-holding company, Lawmar Pty Ltd (‘Lawmar’), into South Korean accounts in the name of Ms Hwang. Proceedings were commenced by Keith (by his litigation guardian) and Lawmar against Ms Hwang and her company Goldpearl Pty Ltd for engaging in fraud, undue influence and unconscionable conduct in procuring the bank transfers. In December 2012, following a three day trial, Philippides J found119 that Ms Hwang had acted dishonestly as she had known that Keith did not have the capacity to authorise the bank transfers. Ms Hwang was ordered to pay to Lawmar a sum of more than $3 million plus interest, and to transfer her interests in various South Korean real properties to Lawmar or its nominee. Ms Hwang also took steps to secure a matrimonial property settlement, by

commencing proceedings in the Sydney registry of the Federal Circuit Court, but she discontinued those proceedings in May 2013. [page 198] In June 2013, Ms Hwang was charged with fraud and attempted fraud, and was arrested and remanded in custody. In July 2013, she was found to be in contempt of court for failing to comply with the orders made by Philippides J. An order was made that she remain in custody until she complied with the orders made. At the time of the statutory will application, Ms Hwang was still in custody. The basis of the statutory will application was that, if Keith had testamentary capacity, he would want no part of his estate to pass to Ms Hwang, given her conduct in relation to him and her actions in transferring away his assets. Furthermore, he would want the terms of his current will to reflect those of the 2006 will. The proposed draft will was accordingly framed in terms that were broadly equivalent to those of the 2006 will. It provided for: (1) the appointment of Keith’s close friend Mr Kirby, who had acted as Keith’s solicitor for more than 30 years, as executor and trustee, with the applicant as executor in default; (2) a gift of a 50 per cent interest in Keith’s home property to his stepdaughter, Kristin Cosgrove; (3) a gift of the shares in another company that he owned, which acted as a nominee company, to his sons Tasman and Mitchell, in equal shares; and (4) the residue to be divided equally between Tasman and Mitchell, with substitutionary provisions in favour of their issue, and an ultimate default gift in favour of Kristin. The proposed draft will made no provision at all for Ms Hwang. The application came on for hearing before Ann Lyons J. On the application for leave, Ms Hwang made a request for an adjournment. Her Honour declined to delay the hearing of the application:

Ms Hwang has again today applied for an adjournment on the basis that she has not been able to obtain legal assistance. Boddice J informed Ms Hwang on 2 October 2013 that the matter needed to proceed urgently and that it would proceed to a hearing today. I am satisfied that Ms Hwang has been given appropriate notice and has had over two weeks to prepare. I also note that she has had no difficulty in the past obtaining legal assistance from a number of legal firms … I am also concerned that Ms Hwang appeared in court today without any documents or material whatsoever despite being provided with all of that material in advance. Ms Hwang was again provided with the applicant’s submissions. Having heard Ms Hwang’s oral submission on the adjournment of the application, it is also clear to me that she understands the issues and she has been able to respond to arguments advanced by counsel for the applicant. I also take into account the findings by previous judges of this Court that Ms Hwang is able to understand the nature of the proceedings. I also take into account the fact that even if the application is successful, Ms Hwang’s rights are not extinguished as it would seem that Ms Hwang would still have rights under s 41 of the Succession Act to bring an application for provision out of the estate upon Mr Lawrie’s death, although no doubt her conduct would be a very relevant factor.120 [emphasis added]

Her Honour was accordingly satisfied that the application should proceed to be heard. The requirement that the applicant must be an appropriate person to make the application was considered: In terms of s 24, I must be satisfied that the applicant is an appropriate person to make the application. In this case, the applicant, Mr Mitchell Lawrie, is one of the two sons of

[page 199] Mr Lawrie. I am satisfied that he is the only child living in the jurisdiction as Mr Lawrie’s other son, Tasman Lawrie, resides overseas. The applicant was also the applicant in the QCAT proceedings. He will of course be a beneficiary under the Proposed Will and whilst that requires me to exercise caution in determining whether he is an appropriate applicant, that will often be the case in applications of this nature and it is not a disqualifying feature. Having considered the affidavit material, I am satisfied that the applicant is appropriate.121 [emphasis added]

Her Honour was also satisfied that adequate steps had been taken to allow representation of all persons with a proper interest in the application. Tasman had been served and had provided written confirmation that he supported the application, as had Kristin. The threshold requirement of lack of testamentary capacity was satisfied by evidence from several sources: (1) Findings made by Philippides J in the previous proceedings.

(2) The orders made in 2011 and 2012 appointing an administrator and guardian for Keith. (3) Two medical reports that had been prepared in connection with the hearings at which those appointments were made. (4) An affidavit by Mr Kirby who had, during his longstanding professional relationship with Keith, observed changes in his mental state over time. Mr Kirby stated that, in his view, Keith had lacked capacity to make a will since early 2011. He also stated: The decline in Keith’s mental state has reached the point where, at least for the last 12 months, he appears to remember me when I meet with him, but does not appear to me to remember some other persons we have both known for many years, without being prompted as to who they are. I have noticed in particular that he can ask me repeatedly, sometimes up to approximately 20 times in the course of a meeting, how old I am, how old he is, and how long he has known me. He cannot recall past events without being prompted … Given the decline in Keith’s mental state, I would not feel able now to accept instructions from him for the preparation of a will. I have no hesitation in saying that, in my opinion, he clearly lacks testamentary capacity according to the test in Banks v Goodfellow.122

(5) Observations by the applicant, in his affidavit, relating to his father’s condition, including ‘He does not appear to remember who Ms Hwang is or what she has done.’ In considering the core test, her Honour had regard to various factual findings that had been made by Philippides J in the previous proceedings, citing the following parts of that judgment: I find that in respect of transactions occurring after 24 August 2011, Ms Hwang was well aware that the Public Trustee of Queensland had been appointed administrator for Mr Lawrie for financial matters as a protective measure and, inter alia, in order to prevent her from taking advantage of his mental impairment, to take his or Lawmar’s money for herself. I am also satisfied that dishonesty established on the basis that Ms Hwang well knew and believed that Mr Lawrie did not have capacity to make decisions about his assets or finances at the time of each of the impugned transactions from 27 June 2011. I am satisfied that Ms Hwang implemented a scheme to orchestrate and effect the transfer of moneys to her and Goldpearl. …

[page 200] From the totality of the evidence, I am prepared to infer that a scheme was

implemented, not lacking in sophistication, to achieve an outcome that the moneys be transferred for Ms Hwang’s benefit and in part utilised by Goldpearl. …123

Ms Hwang opposed the making of the statutory will on various grounds: (1) That Keith had promised her $2 million if she would marry him and that he desperately wanted a wife so that he could be happy. (2) That Keith wanted her to have the house, and had made an appointment to see a solicitor and executed documents to transfer the house into her name. On this point, her Honour noted that an appointment had been made to see a solicitor who was not Keith’s usual solicitor, and that documents had been executed, but further noted that this took place after the Public Trustee had been appointed as Keith’s administrator. (3) That Keith would not want to make a will in terms of the 2006 will, as he did not wish his stepdaughter Kristin to have part ownership of the house. Her Honour noted that the evidence of Mr Kirby was that Keith had not, since 2000, given him instructions to prepare a new will and that, in his view, there had been no alteration to Keith’s wishes to provide for his stepdaughter. (4) That she had been ‘a good wife’ and lived happily with Keith for 18 months and cared for him. Her Honour accepted that Ms Hwang had been good to Keith and had cared for him. However, her Honour could not look behind the findings of Philippides J relating to the transfer of in excess of $3 million out of the jurisdiction into accounts owned by Ms Hwang. In applying the core test contained in the Succession Act 1981 (Qld) s 24(d), her Honour followed the same approach that she had taken previously in McKay v McKay,124 stating that ‘the focus of the test should be on the words of the section’.125 Specific reference was made to the evidence provided by Mr Kirby: … In coming to a determination in this matter, I have taken into account in particular the extensive affidavit material, particularly the affidavit of Mr Kirby, who was well acquainted with Mr Lawrie’s testamentary intentions and the evolution of his intentions over the years.126

Orders were made granting leave and authorising the making of a statutory will in the terms sought, and for the applicant’s costs of and incidental to the application to be assessed on the indemnity basis and paid out of Keith’s assets.

Doughan v Straguszi127 Lost capacity — making a will — application unopposed — core test — estate planning — evidence of intention 8.30 An application was made by Lynette Doughan for a statutory will to be made for her mother, Rose Straguszi. Lynette acted as attorney for Rose, under an enduring power of attorney. Lynette was found to be an appropriate applicant, for the following reasons: The applicant undoubtedly has standing to make the application and, indeed, holds an enduring power of attorney of the testatrix. She can speak for and act in the apprehended interests of the testatrix.

[page 201] It was clear that Rose was suffering from dementia and lacked testamentary capacity. She had an existing will, but Henry J noted that it contained ‘a variety of uncertainties and complications borne of a failure to properly deal specifically and accurately with the various assets that, in effect, comprise the family farm, but in reality are a number of separate properties’. The application was prompted by two matters: (1) The difficulties with the existing will. (2) The fact that Rose’s son was at risk of bankruptcy, as a result of his involvement with a group of companies that had recently been placed in receivership. His Honour indicated that the son’s risk of bankruptcy evidently had some influence on the timing of the statutory will application: … generally speaking, the evidentiary material identifies as the reason behind the application, the creation of a new will that, in a better way than the former will, deals with how the family farm is to be held by future generations. It is reasonable to infer that the timing of this exercise is connected with Mr Straguszi’s business problems, however that connection arises more as a matter of focusing minds on the testatrix’s future testamentary disposition and not as a matter of altering Mr Straguszi’s present ownership of assets.

The will that was proposed contained testamentary trusts, primarily for the benefit of Lynette and all of Rose’s grandchildren, together with remoter

issue. The broad thrust of this planning was to ensure that the family farm was retained for the benefit of future generations. As well as the son, eight other family members were named as respondents. All parties who might conceivably have a potential beneficial interest under the existing will had been served, and had indicated that they supported the application. There was no appearance on behalf of any of the respondents. Importantly, his Honour noted that the son’s creditors had ‘no actual direct interest’ in the statutory will proceeding. As regards the core test, the evidence indicated that it was the family’s intention, including Rose’s intention, that the farm would be kept in the family for the benefit of future generations. His Honour said: I am satisfied of that, not merely by reason of express statements to that effect but by reason of the broader context also of the family’s history in connection with this family farm, representing as it does, the work of three generations across two families. A statement by the testatrix to her granddaughter neatly summarises the testatrix’s undoubted wishes. That statement was to the effect, ‘Your grandfather worked all his life so that you kids could have this farm.’

The core test was found to be met. However, it was noted that there might be a possible argument that the arrangement was being pursued to defeat the interests of the son’s creditors, which could impact on whether it was appropriate for the order to be made. His Honour posed the question in this way: There is no doubt that, if the testatrix had capacity, even if it was her intention to remove the prospect of the son inheriting property so it would not go to his creditors, she would have every right to make a will achieving that end. The question here is whether it is appropriate for the court to make the orders sought. In considering orders of this kind, the court places itself, in effect, in the position of the testatrix with a view to determining, by implication, the testatrix’s likely wishes, a determination obviously made upon the known materials. If there be a difference regarding the exercise in which the court is engaged in this context, it is whether, having regard to the requirement that that court must consider whether the orders [sic] appropriate … it is appropriate to make an order that might arguably have the effect of at some future time possibly defeating creditors. [emphasis added]

[page 202] The case of Hausfeld v Hausfeld,128 which had similarly involved a statutory will application made in circumstances where the proposed will

would have the effect of protecting assets from the creditors of the son of the proposed testator, was considered but distinguished: What is proposed here is quite different. There is no material to suggest that any part of the proposed testamentary arrangement is structured to allow someone else to provide for Mr Straguszi in the event he is made bankrupt. To the contrary, the materials show, if there be any connection between the proposed new will and Mr Straguszi’s problems, that the intention is to protect a much broader array of family members and their future potential interest. The intention is that part or all of the family farm not be lost to them because of Mr Straguszi’s specific problems. That is, the actuating purpose, if it be connected at all with Mr Straguszi’s present problems, is not to defeat his creditors but to protect the broader family’s future beneficial interest, an interest which the testatrix plainly long aspired would persist through the generations. [emphasis added]

His Honour noted that a further point of distinction between this case and Hausfeld was that there was direct evidence that in this case the ‘actuating purpose’ was, in addition to achieving a more effective testamentary disposition to preserve the family farm for future generations, also to avoid the drafting errors and complications in the existing will. It was further noted that the son did not have any actual present interest in the property, only a future theoretical interest. His Honour observed that: ‘It is not, as it were, part of his current battery of assets to which creditors might potentially have access.’ He concluded: Against that background, whilst I perceive it is possible that a consideration as to whether an order is appropriate might include consideration of whether an arrangement is calculated at defeating creditors, I conclude that the proposed arrangement cannot fairly be categorised in that way and I do not characterise it in that way. There is, in my view, nothing at all improper about the proposed course of action and as already indicated it is entirely consistent with what I am persuaded would be the testatrix’s intentions for the future. [emphasis added]

Leave was granted accordingly, and an order was made for the statutory will to be made in the terms proposed. No order was made as to costs.

South Australia Public Trustee v Phillips No SCCIV-03-800129 Lost capacity — revoking a will — conduct of interested person — evidence of intention — litigation guardian — notice to interested persons 8.31 The revocation of an existing will made by Joyce Phillips in 1993 was sought by the Public Trustee, who had been appointed as administrator of

Joyce’s estate in 1996, following a finding that she lacked capacity to manage her own financial affairs by reason of dementia. At the time of the application, Joyce was 83 years of age and her estate was worth approximately $80,000. The application was prompted by a concern that the 1993 will had been made under the influence of a person with whom Joyce had formed an attachment, Phillip Venning, who had long since ceased contact with her, and that it had been made at a time when her capacity was declining. [page 203] The Public Advocate was appointed as litigation guardian for Joyce, who was named as defendant in the proceeding. The Public Advocate appeared at the hearing on her behalf and supported the making of the order sought. A question arose in relation to whether notice of the application should have been served on Phillip as an interested person. Doyle CJ determined that an application should have been made pursuant to the Probate Rules 1998 (SA) r 98.08 for directions regarding the service of notice of the application on interested persons. That had not been done. However, in the circumstances, his Honour was satisfied that if an order had been made by the Registrar requiring that Phillip be given notice of the application, it would not have been possible to do so in the particular circumstances of this case. Phillip had been imprisoned in 1997 for an offence unrelated to Joyce, and on his release in 1998 had moved overseas with outstanding warrants for his arrest in Australia, and had not had any contact with Joyce since that time. His whereabouts were unknown, even to his family. His Honour indicated that notice of the application should have been given to Phillip’s parents in Australia, so that they could have brought it to his attention if possible, but that in the circumstances, it was clear that Phillip would not have participated in the proceeding in any event. It was found, from evidence including the opinion of Joyce’s long term doctor, that she had lacked the capacity to manage her own affairs without assistance since about 1993. It was unclear on the evidence whether Joyce had testamentary capacity at the time the will had been made.

His Honour found that Joyce met and came under the influence of Phillip in 1992. Phillip became appointed as her attorney, and entered into a number of transactions on her behalf that were not to her advantage, and which significantly reduced the value of her assets. The will made in 1993 appointed Phillip as executor, and gave him a power of appointment that could be used to appoint himself as sole beneficiary of Joyce’s estate. When interviewed by the Public Advocate in 2004 about her will, Joyce expressed a wish to leave all of her estate to her son, although at the time of expressing that wish, her memory was significantly impaired, and she had only a limited understanding of her affairs and appreciation of her circumstances. His Honour found that the 1993 will was made by Joyce ‘as a result of influence exercised over her by [Phillip] and without a proper appreciation of his motives’.130 It was also relevant that since making that will Joyce was not aware that Phillip caused her to use her assets in a way that benefited him and was detrimental to her interests. His Honour further found that Phillip ‘had deserted her and had no concern for her’,131 and that while when the will was made, Joyce may have felt some gratitude or friendship to Phillip, that would not now be the case. While the wishes of Joyce to benefit her son were taken into account, and found to be likely to reflect her intention, ultimately it was not necessary to determine that, as the effect of the revocation ordered was to benefit him on intestacy: I do not have to make an affirmative finding as to whether Mrs Phillips would now wish to benefit her son. I suspect that she would, but it suffices to find that the will of May 1993 should be revoked.132

The 1993 will was revoked, and no new will made. [page 204]

Bryant v Blake133 Nil capacity — making a will — application unopposed — conduct of interested persons — establishing lack of testamentary capacity — evidence

of intention — litigation guardian — notice to interested persons — twostage process 8.32 This was an application to make a will for a 38 year old proposed testator, Tracy Blake, who had lost capacity as a result of a motor vehicle accident when she was six years of age. The application was made by Tracy’s mother, Elvira Bryant, who had been her carer since her accident. Tracy’s estate was valued at approximately $650,000 and comprised the balance of a compensation payment made to her as a consequence of her accident and a house in which Tracy and Elivra lived that had been purchased from that payment. Her assets were managed by the Public Trustee. Tracy’s father had not had any significant contact with her since her accident. If Tracy died intestate, her estate would be distributed equally between Elvira and Tracy’s father. A will was proposed whereby her estate would pass to Elvira, or in default to one of Tracy’s two half siblings, Stewart. Tracy was named as defendant in the proceeding. A lawyer was appointed by the court Registrar as litigation guardian for her. An order was made that Tracy’s father and the Public Trustee be served with notice of the application. Following service, the father filed an affidavit confirming that he was aware of the application, and consented to the proposed will being made. He acknowledged that he would not receive any part of Tracy’s estate. He did not appear at the hearing. It was found that the only persons who had cared for Tracy, other than for periods when she received professional care, were Elvira, Stewart and Stewart’s wife. A high level of care was required. It was relevant that if Tracy were to die intestate, Elvira would need to purchase from Tracy’s father half of the house in which she lived with Tracy, in order to retain her residence. Elvira did not have the financial capacity to do that. She had minimal assets. She not been employed due to her role as carer, and did not have any qualifications. She had also made contributions to maintaining the residence in good repair. It was found that Tracy had had only a low level of contact and relationship with her father since the accident, and that he had not contributed to her care. Tracy’s half-sister, Chantelle, had not been in contact with Tracy

for a number of years and had not provided any care or emotional support for her. Stewart gave evidence that he was aware that he would have a right to claim provision from Tracy’s estate on the basis of his contributions to her. However, he ‘strongly supported’ Elvira’s application to receive all of the estate. Various medical reports were provided, in relation to capacity, by a neurologist Professor Thompson and by a neuropsychologist. Besanko J noted as follows: Professor Thompson states that Tracy has evidence of mild intellectual disability as well as significant impairments of language and memory. It is likely that her testamentary capacity would be significantly impaired. … Professor Thompson expresses the opinion that given that the significant impairments of language and memory have continued since the accident, it is most unlikely that there would be any improvement in Tracy’s condition sufficient for her to attain testamentary capacity. Professor Thompson believes that Tracy’s cognitive function would not enable her to have sufficient testamentary capacity to make a valid will at the present time or at any time in the future.134

[page 205] Tracy’s lack of testamentary capacity was confirmed by the litigation guardian, and by evidence from the lawyer for Elvira arising from her observations when she served documents on Tracy. The litigation guardian gave evidence of Tracy’s affection for Elvira and Stewart, and that she showed no recognition or affection when her father or Chantelle was mentioned. His Honour made the following comments about the application of the two-stage process in South Australia: … In this case I am satisfied that leave should be granted and the order sought should be made so it is unnecessary for me to discuss in any detail what an applicant for leave under s 7(1) must establish. I will say that it seems to me that in the case of the South Australian provision the purpose of requiring leave is to enable the court to weed out what are plainly unmeritorious applications at an early stage. In other words, if an application under s 7 of the Act appears to have merit on the information put before the court, then the application for leave and for the order authorising the making of a will can be heard and determined at the same time. However, if it appears to the court or the opposing party that the application is without merit, then a separate hearing as to whether or not the court should grant leave should be ordered.135

While the litigation guardian did not oppose a default provision making some gift to Tracy’s father and Chantelle, his Honour concluded that this was not appropriate in the circumstances. The proposed will was made in the terms sought by the plaintiff.

Hoffman v Waters136 Nil capacity — making a will — application unopposed — consideration of Re D(J) — core test — litigation guardian — two-stage process — costs 8.33 The proposed testator, Adam Waters, was 31 years of age at the time of the application. He had suffered severe head and brain injuries as a result of a car accident when he was three years old, and had never had testamentary capacity. In 1986, he had received an award of compensation for his injuries. When that compensation award was made, an order was also made pursuant to the Aged and Infirm Persons’ Property Act 1940 (SA) to the effect that Adam could only make a will with the consent and in the presence of the Public Trustee. Adam’s parents separated in 1988 and divorced in 1990. While his father had continued contact and paid maintenance, contact became intermittent from about 1994. Until that time, Adam’s mother had cared for him. In 1994, she had a breakdown, and Adam moved to care provided by Anglicare for the next 10 years, with his mother visiting regularly. His mother resumed as his full-time carer in 2004. The statutory will application was made by Adam’s mother, to exclude his father from benefit in the event of an intestacy. The terms of the proposed will provided for the appointment of Adam’s brother and sister as executors, and for his estate to pass to his mother, or if she did not survive him, then to his brother and sister in equal shares (with default gifts in favour of their children). At the time of the hearing, Adam’s estate, managed by the Public Trustee, was valued at approximately $800,000, including the house property in which he resided with his mother. Notice of the application was provided to the relevant interested persons. The following extract from the judgment summarises the positions taken by them on the hearing of the application:

[page 206] … Adam’s father stated through his solicitor that he did not wish to be heard on the application and would abide the order of the court. Adam’s siblings did not enter an appearance. However, they were present in court on the hearing of the application. In answer to questions from me, each consented to the application. The Public Advocate appeared at the hearing and supported the application. Public Trustee and Ms McEwin, as guardian ad litem, did not oppose the application.137

The judgment contains138 a detailed analysis of how the court should approach a determination of the proposed testator’s ‘likely intentions’, in a ‘nil capacity’ case. Debelle J summarised the challenge the court faces: … However, in many cases such as this, where the person who lacks testamentary capacity has never been able to comprehend what is involved in making a will, it will be especially difficult, if not quite realistic, for the court to be able to determine what his likely intentions are. In other cases, it might be less difficult to determine the likely intention of the person who lacks testamentary capacity. …139

His Honour concluded that it was appropriate to follow the English approach, as set out in the cases of Re C (a patient)140 and Re D(J).141 In considering what Adam’s likely intentions would be, Debelle J considered the position that would apply upon intestacy, the fact that Adam’s father would not have a family provision claim against Adam’s estate as a result of his lack of contact with Adam, and also the following factual matters: Adam’s father has only infrequently communicated with him since 1994. His mother has cared for him except for the period of 10 years when she was recovering from her mental breakdown. She continues to care for him and is his full-time carer. Ms McEwin, as Adam’s guardian ad litem, expresses the view that her observations are that Adam’s mother is devoted to her son and that Adam is happy and well cared for at home. … The will that is proposed is of a kind that one would reasonably expect would be made by a young man whose mother has cared for him and who has had little contact with his father. …142

His Honour was satisfied that a will should be authorised in the proposed terms. The question of costs was considered at some length, starting with the proposition that the legislation clearly gave the court a wide discretion in relation to costs, but did not provide any guidance to the court as to what order should be made. The ‘ordinary rule’ in probate matters that costs follow the event unless the litigation was caused by the testator was noted.143 His Honour stated obiter that where there is an existing will, parties to the

proceeding may be either seeking to uphold, or seeking to create, provision for themselves, and in those circumstances it may be appropriate that costs follow the event. However, where there is no existing will, it is desirable that all relevant interests are before the court. His Honour agreed with the view expressed by Byrne J in Hill v Hill (No 2)144 that ‘it would be a matter for regret if those persons were dissuaded from providing assistance to the court for fear that they might be obliged to do so at their own expense’.145 It was noted that the usual position in England was that the costs of a successful applicant and other interested persons are usually paid out of the testator’s estate. However, in his Honour’s [page 207] view, there was a strong argument that parties seeking to advance their individual interests should bear their own costs, as in Monger v Taylor.146 Where the estate is small, or required to provide for the wellbeing of the testator, it would be entirely inappropriate for it to be depleted by the costs of a statutory will application. However, this was to be weighed against the public interest in a statutory will being able to be made where appropriate. His Honour noted that an application by a guardian of the testator could result in that person recovering their costs from the estate of the testator. The only parties to seek costs in this case were the applicant mother, and the litigation guardian on behalf of Adam. In relation to the mother, his Honour was satisfied that in the circumstances it was a ‘genuine application … made with proper altruism’, which offset the fact that the mother would benefit under the proposed will. It was also held to be proper that the litigation guardian’s costs be paid. The other parties (including the Public Trustee and the Public Advocate) did not seek a costs order, and this was described as being ‘a realistic attitude as to costs’. The case concludes with some comments about the two-stage process in statutory will applications: There is a real question whether the obligation to obtain the permission of the court to make an application pursuant to s 7 is an otiose and unnecessary step. As noted in paragraph 10, the need to obtain leave is a process intended to screen out frivolous or vexatious or unmeritorious claims. However, no application will have any prospects of success unless the applicant is able to establish that the person for whom the court is to authorise a will lacks testamentary capacity

… Generally speaking, it is a fact which will have to be established by evidence of a neurologist. The fact that it is necessary to establish lack of testamentary capacity is a sufficient safeguard to prevent frivolous, vexatious or unmeritorious applications. In its report, Wills for Persons Lacking Will-Making Capacity (1992) LRC 68, the New South Wales Law Reform Commission said at paragraph 2.14 that permission to make an application should be required to screen out applications by relatives who might bring an application to ascertain what provision, if any, the person who is the subject of the application has made for them in a will. The costs of making an application are relatively substantial. If an applicant brings a frivolous, vexatious or unmeritorious claim, those costs will be payable by the applicant who will be subject to the risk of paying the costs on an indemnity basis. That is, I suggest, a sufficient disincentive. I suggest this reform because the cost of an application for permission to make an application under s 7 adds an unnecessary cost burden on what is already an expensive process.147

Debelle J concluded his judgment with a recommendation that consideration should be given to amending the core test, which required that the proposed will ‘would accurately reflect the likely intention’ of the testator, expressing a view that this was ‘a wholly unrealistic requirement’.148

Jeavons v Chapman (No 2)149 Lost capacity — amending a will — application opposed — appropriate applicant — charitable gifts — conduct of interested persons — evidence of intention — litigation guardian — unsuccessful application — costs 8.34 This somewhat unusual application was made by the court-appointed managers of the estate of the proposed testator, Torrie Chapman, who was 88 years of age at the time of the hearing. Torrie had a large estate of $8–10 million, and only remote family [page 208] members (issue of relatives of the fourth degree) living. One of those family members was Juliet Jeavons, a niece. Julie and her husband Steven had initially applied in their personal capacity for a statutory will to be made for Torrie. They then sought a direction from the court that they be empowered, in their capacity as managers for Torrie pursuant to the Aged and Infirm Persons’ Property Act 1940 (SA), to continue that application. They also sought to be indemnified for their costs of doing so, from Torrie’s estate. Both applications were dismissed.

The judgment contains150 a detailed analysis of the affidavit evidence of Torrie’s likely testamentary intentions given by various people to whom she had spoken about the subject. While Gray J noted that to determine the interlocutory application he was not required to make findings of fact, he expressed his ‘preliminary views’ about evidence, concluding as follows: … There is real difficulty, in my view, in evaluating the affidavit evidence other than to observe that subsequent to the making of the 5 April 1991 will, Mrs Chapman has spoken about inconsistent possible disposals of her property on her death. It could be inferred that Mrs Chapman was an elderly woman who was fickle in her relationships and affections with her family and friends.151

In relation to the first question in the application, being whether the Jeavons as managers for Torrie should be given permission (leave) to make the application, his Honour found that the statutory will legislation contemplated ‘any person’ making an application with the court’s permission, and that this should not be read down. It followed that the Jeavons could make the application, provided their powers as managers were sufficiently broad to allow them to do so. The Jeavons relied on three points that they said supported their application, and his Honour dealt separately with each of these. They were: that Torrie lacked testamentary capacity; that her existing will did not accurately reflect her likely intentions; and that her likely intentions could be ascertained. In relation to the first issue of lack of testamentary capacity, evidence was given by reports from a consultant physician with expertise in aged care and rehabilitation, and a senior consultant psychiatrist. While they agreed that testamentary capacity was lacking, they disagreed about whether Torrie was suffering from paranoia constituting delusions. Torrie had made her last will in 1991 with the following terms: … Under this will… a number of individuals and entities were named as beneficiaries. For the purposes of these reasons, it is sufficient to record that the National Trust were to receive the Crafers property, including the antiques, Prince Alfred College were to receive the Bordertown Property and the rural land, and a Queensland property and the residue of the estate were left to Helen Ellemor.152

The Jeavons produced a draft will dated earlier than the last will, bearing amendments made by hand that they said were made by Torrie around 1996. That document had not been signed. The document had a number of differences in relation to executors compared to the signed last will, however

the main difference was that the gifts to Helen Ellemor were crossed out. The Jeavons contended that the amended draft will reflected Torrie’s likely intentions, and that those intentions had been confirmed in discussions with her. His Honour noted that Torrie had retained capacity for at least [page 209] 10 years after making the 1991 will, and had therefore chosen to leave it unrevoked and unchanged for that period. It was further noted that the Jeavons clearly had standing in their personal capacity to continue with their application for a statutory will, however what they were seeking was to ‘change their status’ in the proceeding, to instead continue as managers. Their purpose in doing so was said to be paid as managers for making the statutory will application, and to have a complete indemnity from legal costs, regardless of the outcome of the application. The litigation guardian for Torrie did not accept that the Jeavons were authorised by their appointment as managers to apply for a statutory will. The litigation guardian submitted that the control and management of a protected estate did not extend to the making of a statutory will, and further that because a person lacking capacity could not apply for a statutory will, it was not appropriate for a manager acting on their behalf to do so. A final point made by the litigation guardian was that there was a potential conflict of interest if the Jeavons made the application in their personal capacity. The beneficiary of the 1991 will, Helen Ellemore, was represented at the hearing, and made the following arguments against the Jeavons having the power within their appointment to apply for a statutory will: … It was submitted that the functions of a manager were fairly narrow and were addressed to the protection and maintenance of the protected person’s existing property and to the prudent conduct of her financial affairs. It was submitted that the protected person’s personal affairs, including the way in which a protected person has chosen to dispose of a property after her death, can be of no concern of Mr and Mrs Jeavons in their capacity as managers … It was pointed out that the institution of a testamentary cause does not appear to fall within any of the heads of power under section 13(1) [of the Aged and Infirm Persons’ Property Act], and it would not appear to fall within the phrase ‘in respect of the protected estate’ in section 13(2). It was conceded that the testamentary causes proceeding instituted by Mr and Mrs Jeavons was not directed to the preservation, betterment, recovery or management of Mrs

Chapman’s estates, but rather it was for the extraneous purpose of redistributing those assets on her death.153

His Honour did not accept that there were no circumstances whereby a manager could be empowered by the court to apply for a statutory will: … the court’s wide discretion under section 13(2) of the Aged and Infirm Persons’ Property Act, would permit a manager in an appropriate case to pursue an application for the making of a statutory will … I reject the submission that a manager of a protected estate cannot under any circumstance be authorised to pursue an application for the making of a statutory will. The question to be determined in this case is whether the court should so authorise Mr and Mrs Jeavons.154

In approaching that question, it was noted that the court needed to assess the evidence and determine whether the Jeavons would be justified in taking the proceedings. This required a consideration of the prospects of success of the proposed application, and whether the application being brought was in the best interests of Torrie. His Honour was not satisfied that the changes proposed to the existing will had any connection with the management of Torrie’s estate, as the legislation under which the Jeavons were appointed was directed to maintaining assets during life, not the disposition of those assets on the person’s death.155 The Jeavons argued that they felt a moral duty to make the application. His Honour concluded that their evidence on that matter showed that it was their ‘personal, moral and familial obligation’ to [page 210] Torrie that was driving the application, and that there was no basis advanced for why such an application was a matter concerning the management of the protected estate. This gave rise to a conflict of interest, and accordingly his Honour declined to give the authorisation sought: Mr and Mrs Jeavons wish to pursue their personal, moral and familial obligations, but at the legal and other financial expense of the estate. It is at this point that their duties as managers give rise to a conflict with their personal position. There is, as the guardian ad litem submitted, a conflict of interest. In these circumstances the court should not authorise that the proceeding be at the expense of the estate. There is no moral or familial obligation on Mr and Mrs Jeavons as managers to pursue the making of a statutory will.156

Given this conclusion, there was no need to decide the costs indemnity

issue. However, his Honour did express the following view about that application: Had I taken the view that Mr and Mrs Jeavons should be granted permission as managers to pursue the testamentary causes proceeding, I would not have made any indemnification order. In my view, the making of such an order would be both undesirable and premature at this stage of the proceedings. If the application were found to be meritorious, then Mr and Mrs Jeavons would be adequately protected. If the application were dismissed, but it had been reasonably pursued, it might be expected that Mr and Mrs Jeavons again might be adequately protected. In the event that the court reached the conclusion that the plaintiffs had acted unreasonably or inappropriately, then the court would retain its unfettered discretion to make an appropriate order as to costs.157

In their evidence, the Jeavons had indicated that if they were not authorised to proceed with their application as managers and given an indemnity from costs, they would reconsider continuing the pending application made in their personal capacity. Without his Honour needing to express a concluded view of the merits of the application for a statutory will itself, several comments made through the judgment indicate that the application was perhaps not strong.

Re Rak158 Nil capacity — making a will — application unopposed — core test — establishing lack of testamentary capacity — litigation guardian — costs 8.35 This was an unopposed application made by the parents of the 30 year old proposed testator, Anthony Rak. Anthony had assets totalling approximately $4.12 million, derived from a compensation payment received by him for hypoxic brain injury suffered by choking on a toy when he was a child of five and a half years of age. Anthony had never had testamentary capacity, and did not have a spouse or children. His estate would pass on intestacy first to those of his parents, Valarie and Jurik Rak, who survived him or, if neither of them survived him, then to his brother and sister, Damien and Katrina. Valarie and Jurik were concerned that if they died before Anthony, the part of his substantial estate that would pass to Damien would not be managed effectively. Damien had a form of autism, and evidence was adduced in the proceeding that he lacked mental capacity to manage his own affairs. Valarie and Jurik sought the authorisation of a will that would provide for Damien’s share in Anthony’s

estate to be held on trust for him, by the same professional (accountant) trustee as held Anthony’s assets, or otherwise by Katrina. [page 211] Under the proposed will, the estate would be divided equally between Valarie and Jurik, Katrina and Damien, with Damien’s share to be held on trust for him to receive discretionary distributions of income and/or capital, and on Damien’s death the trust property would pass to Katrina. Provision was also proposed to be made for default gifts from Valarie and Jurik to each other, then the other beneficiaries, and from Katrina to her children who attained the age of 25 years. The fact that neither Katrina nor Valarie and Jurik put their respective financial positions before the court was not regarded as a factor that counted against them, for reasons including the size of Anthony’s estate. Katrina was appointed as litigation guardian for her brother Damien in the proceedings. A litigation guardian was also appointed for Anthony. She provided relevant evidence: The litigation guardian has deposed to meeting Anthony at his parents’ home in May 2009. The guardian described the defendant as a ‘physically healthy, fully grown young man who was very shy’, and confirmed that there appeared to be no doubt that the defendant suffers severe mental impairment. Although the guardian described the defendant as making one-word responses to basic questions, she also assessed his understanding of conversation as ‘extremely limited’ — she recalled that when the issue of a will was raised, the defendant ‘appeared totally unable to understand the concepts of a will as a disposition of property after his death’. The guardian further deposed that the same meeting included a conversation between herself and Anthony’s parents. Mrs Rak advised that the defendant had no concept of money, or the value of money, other than to understand it is necessary to hand over notes and coins in exchange for items at a shop.159

The expert evidence of a Dr Gabor Kiss was also put before the court, which concluded that Anthony was not capable of managing his own affairs and that his lack of testamentary capacity would not improve in the future. This medical evidence and the conclusions it contained was accepted by Gray J, who cited160 with approval the following passage from Re Fenwick: The best evidence will always be that of a specialist professional, e.g. a psychiatrist, consultant physician or clinical psychologist, who has recently examined the incapacitated person and who expresses an opinion in a report which complies with the expert witness rules of court. The

report should state the testing which has been carried out and should give a conclusion by express reference to each of the elements of testamentary capacity enunciated in Banks v Goodfellow. The latter requirement is unnecessary, of course, if it is a nil capacity case in which brain injury at an early age has rendered the patient incapable of ever developing adult cognitive faculties.161

Gray J considered the purpose of the two-stage process in screening out baseless or unmeritorious applications, and said as follows: … It is clear that Anthony lacks testamentary capacity and is unlikely to ever gain that capacity. His estate is substantial. It is sensible that Anthony’s assets should not go on intestacy. Accordingly, there exist good reasons to grant leave to proceed with the application.162

In respect of Anthony’s likely testamentary intentions, his Honour noted that there was no evidence adduced as to what they were, nor could there be, as this was a ‘nil capacity’ case.163 He then considered Hoffmann v Waters,164 in which Debelle J had [page 212] indicated that while care should be taken in doing so, in a ‘nil capacity’ case some guidance could be taken from the English authorities including Re D(J)165 and Re C (a patient),166 which in summary required the application of ‘legal fictions’, including that the person was having a brief lucid interval, and had a full knowledge of the past. Consideration was then given to Re Fenwick,167 in which Palmer J had indicated that those legal fictions were unnecessary because the words ‘reasonably likely’ can be applied ‘sensibly and pragmatically’ without such fictions, and that the application of such words involve considerations that are entirely objective. Gray J found as follows: Taking note of the above observations, I record that the wording of section 7 itself is of primary importance in this current enquiry. As such, it is also to be noted that the wording of the New South Wales provisions in the above respect does differ to that employed in the South Australian legislation. [His Honour then noted that the New South Wales provision was phrased in terms of ‘is, or is reasonably likely to be’ whereas the South Australian provision was phrased in terms of ‘would accurately reflect the likely intentions’] … I am of the view that, this being a nil capacity case, the difference between a proposed will accurately reflecting likely intentions or being reasonably likely to be one which the person would have made, is not material to the present inquiry.168

In this case, there was evidence from the litigation guardian for Anthony to the effect that he enjoyed a close relationship with his parents and Katrina,

and that in light of the substantial value of his assets, he would wish to benefit his siblings as well as his parents. His Honour concluded: Either of the approaches outlined above taken to the present enquiry, will lead to the same conclusion in this case. I am satisfied that in light of the substantial value of Anthony’s estate, it is likely that he would wish to benefit those persons close to him who have provided care and comfort to him, and that it is likely that he would seek to provide funds to be held in a protective trust for the benefit of his brother Damien.169

His Honour was satisfied that the proposed will accurately reflected Anthony’s likely intentions, ‘to reflect his close relationship with his parents and siblings, and that it is reasonable in all the circumstances that the order should be made.’170 The costs of the applicants and both litigation guardians of and incidental to the application were ordered to be paid from the assets of Anthony on a solicitor-client basis, his Honour stating that the application was a genuine and reasonable one, made in the absence of any existing will.

Griffin v Boardman171 Lost capacity — amending a will — application unopposed — charitable gifts — conduct of interested persons — consideration of Re D(J) — core test — establishing lack of testamentary capacity — evidence of intention — litigation guardian — terms of statutory will 8.36 This decision involved an application to make a will on behalf of Agnes Boardman, who was 92 years of age. She had last made a will in 1987 leaving her entire estate to her second husband, Henry. Henry had died before her, however the will failed to provide for a default gift of Agnes’ estate, which was valued at approximately $600,000. [page 213] The application was made by Agnes’ stepdaughter, Brenda Griffin. A litigation guardian for Agnes, appointed by the Registrar of Probates, was also represented at the hearing. A second litigation guardian was appointed to represent a class of relatives of the fourth degree of Agnes. Brenda sought that a will be made for Agnes that left modest cash gifts to

two charities and a friend of Agnes, gave her collection of books and literature to a friend in the United Kingdom, and gifted her residuary estate as to 80 per cent to Brenda and her husband, and 20 per cent to Brenda’s sister, June Stewart. It was also proposed that Brenda and her husband be appointed as executors of the will. Agnes had married Brenda’s father, Henry, in the United Kingdom in 1983, and he moved with her to Australia, where he died in 2001. Agnes did not have any biological children, either with Henry, or from her first marriage to John, who died in 1977. Agnes’ only sister and both her parents died before her, without children. Of Henry’s children, only Brenda and June had maintained a relationship with Agnes. Brenda had a good relationship with Agnes, that included staying with her and Henry over many years, and maintaining weekly visits following Agnes moving to a nursing home in 2006. Agnes had appointed Brenda has her attorney and guardian, and had appointed Brenda’s husband to undertake these roles in default of Brenda continuing to do so. Evidence by affidavit was given by Brenda as applicant, June and both litigation guardians. Medical evidence of Agnes’ lack of testamentary capacity and general medical condition was adduced by means of a letter from a geriatrician to Brenda’s solicitors, which those solicitors then annexed to an affidavit. No party sought to have any of those witnesses attend for cross-examination. White J was satisfied that Agnes lacked testamentary capacity, that this had been the case for approximately two years, and that her loss of capacity was permanent. That finding was based on the medical evidence annexed to the affidavit of Brenda’s solicitor, and the evidence of Brenda and other family members, the substance of which his Honour summarised as follows: The plaintiff, who has had regular contact with Agnes, has deposed to the difficulties with memory and understanding of financial arrangements which Agnes experiences. Mr Welden and Mrs Quick have each spoken to Agnes in relation to the current application. Their accounts of their respective interviews indicate that Agnes’ dementia is not complete but are consistent with the existence of a dementia as diagnosed by Dr Peh. I am satisfied that Agnes does not comprehend the amount of her assets, nor the place and nature of her investments and that she is unable to make rational decisions concerning the disposition of those assets upon her death.172

As Agnes did not make a new will following the death of Henry, without a statutory will being made she would die intestate. In her family circumstances, the beneficiaries on intestacy would be ‘beneficiaries of the

fourth degree’, being uncles and aunts, however it was found to be unlikely that any of those relatives would be living, given that Agnes was 92 years of age. The potential for issue of those beneficiaries to be living was noted, but his Honour concluded that it was probable that Agnes’ estate would pass to the Crown on her intestacy: … I made a direction that it was not necessary for Ms Millard to make actual investigations to ascertain the possible existence of such issue. Any such investigation was likely to be expensive with the expense to be borne ultimately by Agnes’ estate. There is no evidence that such issue do exist, and, even if they do, there is no evidence at all to indicate that it is likely Agnes would wish to make provision for them in her will or that they would have any moral claim on her bounty. Agnes has now been

[page 214] resident in Australia for over 25 years and there is no evidence of any contact at all with issue of her grandparents (apart from Carolina) in that period.173

That Agnes would not wish to die intestate was found to be ‘readily inferred’ from matters including that she had previously made a will in 1987, that she would not wish her estate to pass to the Crown, and that there was no advantage to Agnes or anyone associated with her by her dying intestate. In identifying Agnes’s likely testamentary intentions, his Honour considered evidence from Brenda about discussions she had with Agnes, including before the development of Agnes’ dementia. In summary, those discussions indicated wishes in the terms of the proposed will, except that the charitable gifts were to be increased from what had been discussed with Agnes, and Agnes had indicated a wish that Brenda and her husband receive all of her residuary estate. Brenda was reluctant to seek all of the residuary estate. She gave evidence that she had tried unsuccessfully to persuade Agnes to make gifts to Henry’s other children (her siblings), including June, who had visited Agnes. Agnes did not wish to make other gifts. His Honour noted that ‘[Brenda’s] reservations are understandable and appropriate. To a certain extent they mirror the caution required of this Court when asked to approve the making of a statutory will, the effect of which will be to advantage the applicant for the order’.174 The appointments of Brenda and her husband as attorneys and guardians for Agnes were found to be significant, as they had been made when Agnes

had mental capacity, and showed trust and a close relationship. The support of Brenda and her husband for Agnes was not in dispute on the evidence before the court, and this was said to make it ‘natural that Agnes would wish to recognise that support in her will, especially in the absence of others who may be thought to be Agnes’ nature beneficiaries’.175 Agnes’ litigation guardian gave evidence of private discussions she had had with Agnes that confirmed Agens’ affection for Brenda and her husband, and their close relationship. The records of the nursing home in which Agnes lived also confirmed the frequent and ongoing visits and close relationship. His Honour was accordingly satisfied that the substantial benefit to Brenda and her husband contained in the proposed will did reflect the likely intentions of Agnes. The proposed charitable gifts were approved on the basis of the evidence of Agnes’ stated intentions in relation to them, and because she had worked during her life to assist one of the charities. The increase in amount of the gifts from that discussed with Agnes ($5,000 to $15,000 each) was said to be justified by the size of Agnes’ estate. The proposed charitable beneficiaries were not represented at the hearing. The gift to June was approved, even though Agnes had expressed a contrary intention not to make any gift to June by her will. His Honour found that because Agnes had done so at a time when she lacked capacity, that limited the weight that could be given to that expressed subjective intention. This also needed to be balanced against the stated intention to benefit Brenda and her husband, people who had assisted and supported her. Evidence that June had assisted Agnes with cleaning, gardening and shopping, and had enjoyed and continued to enjoy a close relationship with her, was found to be relevant. The following part of June’s affidavit extracted in the judgment is noteworthy: I am not surprised to hear [that Agnes expressed a wish that I not receive anything from her estate] but I am deeply hurt. I would be very happy for all of Agnes’ estate to go to Brenda and Bob or even to the Government if that is Agnes’ true wishes. My disappointment comes from the ‘lack of value’ that Agnes has placed on our

[page 215] relationship which I have considered to be immeasurable. In conversation with Agnes she has

always been very supportive and positive towards me. I do not know why Agnes would deliberately not wish me to receive anything from her estate. I only hope that she became flustered in the situation and wanted it all finished with.176

His Honour considered the extent to which it was relevant to consider whether Agnes would like to be considered as having ‘done the right thing’ by their will. The decision of Re P177 was cited as authority for that being a permissible consideration in connection with the English legislation. His Honour was of the opinion that the legislation in South Australia did permit ‘a testator’s wishes concerning their memory to be taken into account in determining their ‘likely intentions’ …’178 and that in this case Agnes would not wish to cause hurt to June by excluding her from her will. Further, the following statement by Sir Robert Megarry in the English decision Re D(J)179 were said to be pertinent: Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last at full capacity, for sometimes strong feelings mellow into indifference and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason.180 [emphasis added by White J]

Whether Agnes would have benefited her other step children was also considered. It was found, however, that due to their lack of contact and relationship with her, she would not have done so. A statutory will was made in the terms sought by Brenda, and submissions sought from the parties in relation to costs.

Re Grace Geraldine Brown181 Lost capacity — amending a will — application unopposed — appropriate applicant — charitable gifts — consideration of Re D(J) — death of testator before will is executed — establishing lack of testamentary capacity — evidence of intention — litigation guardian 8.37 This application was successful, however a further hearing was required when the proposed testator, Geraldine Brown, died between the court order that a statutory will be made, and the signing of that will by the Registrar. At the time of the application, Geraldine was 89 years of age. She was a widow without children. She had made a will in 1976 leaving her estate to

her brother and sister in equal shares, and in default her brother’s share would pass to his children and the other share would pass to the Religious Society of Friends (Quakers). Both her brother and sister died before her, and her only living relatives were her two nieces, Ms Richards and Ms Arthur. Her estate at the time of the hearing was worth approximately $800,000. The application was made by John Gray, a retired solicitor from Hobart, Tasmania. He had been Geraldine’s solicitor when she lived in Tasmania, and had managed her financial affairs pursuant to a power of attorney since 1991. He was appointed as [page 216] administrator of her estate by the Guardianship Board of South Australia in 2009. The Public Advocate and a Dr Herbert Stock were appointed by the Board as limited guardians for Geraldine. When appointing the applicant as administrator, the Board instructed him to take the steps necessary to have a new will made for Geraldine that reflected her current testamentary intentions. In 2009, the applicant attended with a solicitor to take instructions from Geraldine for a new will. From those discussions, the applicant formed the view that she had no real understanding of the extent and value of her assets. However, a will was prepared and signed that reflected the following instructions taken from her, and the applicant gave evidence that Geraldine had a reasonable comprehension of that will: … the plaintiff understood that it was Mrs Brown’s primary intention in respect of her estate that she wished it to be applied to benefit ‘poor people who do not smoke or drink’; she wished to give Anthea Gregory, a woman who had recently befriended her, a cash legacy to acknowledge her friendship and support. Mrs Brown was unable to give instruction as to an amount and did not respond to the tentative suggestions of the plaintiff of the amounts of $10,000 and $20,000. Finally, Mrs Brown conveyed that she wished to benefit her nieces from her estate and approved distribution of 50 per cent of the value of her estate as being reasonable.182

The statutory will application sought authorisation of the making of a will for Geraldine in the terms of the 2009 will. Notice of the application was served on the Public Advocate, Ms Gregory, Geraldine’s nieces, the Religious Society of Friends, and Geraldine’s

guardians. The Public Advocate by affidavit expressed a view that the statutory will sought was appropriate, and Geraldine’s other guardian consented to the orders sought. The nieces and the Religious Society of Friends advised the applicant’s solicitor that they did not wish to be heard by the court, and Ms Gregory did not express any view or appear at the hearing. The litigation guardian for Geraldine also delivered a copy of the application documents to the nursing home at which she lived, to be given to her if she wished to see them. The litigation guardian met with Geraldine, and had a lengthy discussion about the proceedings. She gave evidence that Geraldine was aware of the nature of a will, appeared familiar with the provisions of the will that she had signed in 2009, and did not express any testamentary views that were inconsistent with the terms of the 2009 will. However, at times she was unable to answer, or provide an appropriate answer. Taking into account this evidence, together with medical evidence provided for the earlier Guardianship Board hearing and the report of a geriatrician, Gray J was satisfied that Geraldine lacked testamentary capacity, finding that while she appeared ‘able to make her general wishes known, her limited insight and deficits in planning, problem solving and abstract thought, materially impair her ability to weigh up the relative merits of different options for the distribution of her estate’.183 In ascertaining Geraldine’s likely testamentary intentions, his Honour considered the approach taken in the English decisions of Re D(J)184 and Re C (a patient),185 which had been applied in the Victorian case of State Trustees Limited v Hayden.186 That approach was said by Debelle J in Hoffmann v Waters187 to provide guidance to courts exercising the statutory wills jurisdiction in South Australia and Debelle J [page 217] had therefore applied it in that case. Gray J also considered188 the then recent case of Re Fenwick189 in New South Wales, noting that in that decision Palmer J had provided ‘an alternative starting point for consideration of these matters’, by classifying statutory will cases into ‘lost capacity’, ‘nil capacity’ and ‘pre-empted capacity’. His Honour then said the following about what he

said was the critical distinction between ‘lost capacity’ and ‘nil capacity’ cases: … This distinction lies primarily in the fact that in a lost capacity case, a proposed testator was once able to give effect to their wishes and views. This provides a basis upon which the court can consider if the terms of the proposed will reflect the ‘likely intentions’ of the proposed testator, were they to have testamentary capacity. It follows that the enquiry in the present proceedings is far less problematic than that embarked upon in a nil-capacity case …190

His Honour cited with approval Palmer J’s analysis of the approach to be taken in a ‘lost capacity’ case, and continued: … in a lost capacity case, the question to be posed is whether the incapacitated person has expressed the intention attributed to them in the proposed will and, whether that person would have held that intention if they had testamentary capacity. The first part of the posed question involves fact finding and the second part is an enquiry based on the best possible assessment the court can make having regard to the evidence before it.191

Applying this approach, his Honour was satisfied that if Geraldine did have testamentary capacity she would want to make a gift to Ms Gregory, in recognition of her help and support, and that the proposed amount of $15,000 reflected her likely intention. He was also satisfied that there was evidence of an intention to benefit the other proposed beneficiaries, noting that, save for the identity of the executor and the provision for Ms Gregory, the effect of the proposed will was largely in accordance with the intentions expressed in the 1976 will. An order was made that a statutory will be made in the terms sought, which were set out in an annexure to the judgment. Unfortunately, Geraldine died before the Registrar of the Supreme Court of South Australia could sign the statutory will. A further application was therefore required to confirm the effect of that on the validity of the statutory will for probate purposes.192 The statutory will was signed 27 days after the order for it was made, however Geraldine had died five days before that signing. The executors named in the proposed statutory will applied for a grant of probate of that will in common form. The Registrar referred the common form application to Gray J for determination. His Honour noted that in all Australian jurisdictions there was a requirement in the legislation that the proposed testator be alive at the time of the hearing of the application, with this being implicit in the legislation in South Australia. The judgment notes that in New South Wales and the Northern Territory, there is an express requirement in the legislation for the

Registrar to confirm that the proposed testator is living when the statutory will is signed, however there was no such requirement in South Australia. Notwithstanding a statement in the Wills Act 1936 (SA) s 7(9) that the signing by the Registrar constituted the ‘execution’ of the will, [page 218] his Honour concluded that it was the order of the court that made the statutory will effective: … The authority for the will is not the proposed testator’s decision to formally execute it, but the court’s order that it be executed in the terms annexed to that order. In this respect, the order of the court is the substantive order … and the matters that follow from that order are essentially mechanical.193

An order was made that the will be admitted to probate.

Re Martina Pieternella de Jager194 Lost capacity — amending a will — application for sanction — charitable gifts — conduct of interested persons — establishing lack of testamentary capacity — evidence of intention — litigation guardian — terms of statutory will — costs 8.38 A key issue in this case was determining whether or not a proposed testator with multiple sclerosis lacked testamentary capacity in circumstances where her physical incapacity inhibited effective testing for capacity. The proposed testator, Martina Pieternella De Jager, was 59 years of age at the time of the proceedings. Her assets consisted of a residence worth approximately $250,000. Martina had made her last will on 10 June 2005, appointing her then partner, Jodie, as executor, with one of her brothers, Andrew, as substitute executor. The will left her whole estate to Jodie, or if she did not survive her then one half to Andrew and one half to be shared equally between two nephews and a niece of Jodie. Martina’s relationship with Jodie ended in 2006 after many years, with a full settlement of their property affairs. In April 2009, the Public Trustee was appointed as Martina’s administrator.

An application was made by the Public Trustee for a statutory will to be made for Martina, and a solicitor was appointed as litigation guardian for her. The litigation guardian did not support the application other than to the extent of the revocation of the 2005 will. The application was also initially contested by Jodie. However, a settlement was then reached between the litigation guardian, Jodie, the Public Trustee and Andrew, on the basis that the parties would apply to the court to make a statutory will in the terms attached to a Deed of Settlement. In summary, the proposed statutory will revoked the 2005 will, provided for the appointment of Jodie and Andrew as executors, and provided for Martina’s residuary estate to be divided equally between Jodie and Andrew (with substitutionary gifts, in the event they did not survive Martina). The terms of the will put forward on the compromise were said to be different to those initially proposed by the Public Trustee. After summarising the test for testamentary capacity,195 Gray J reviewed the medical evidence relating to capacity. In 2008, Martina had been assessed by a neuropsychologist, and the following extracts from her report were regarded as relevant, leading to a conclusion that Martina at that time required a guardian to make decisions about her accommodation: [Martina] … was not particularly compliant with neuropsychological testing and assessment was incomplete in part because of this. Fatigue and visual and motor disabilities also limited assessment breadth. Neuropsychological screening revealed significant impairments in orientation, verbal attention and immediate memory, verbal reasoning and cognitive flexibility. Insight too was impaired. I could not identify any cognitive strengths. If the findings do represent her ‘normal’ level of

[page 219] functioning then she is most definitely not in a position to be able to make important lifestyle decisions such as accommodation when there are life-threatening medical consequences to this. …196

A different neuropsychologist conducted an assessment of Martina in January 2012, after staff of the Public Trustee had been unable to communicate with her to assess her testamentary capacity. This neuropsychologist concluded that she lacked and would not regain testamentary capacity, due to impaired cogitation. That conclusion was

reached even though Martina’s physical disabilities meant that normal tests for capacity were not able to be used: In my opinion, given Ms De Jager does not have a reliable yes/no response, it is not possible to determine her understanding around her Will or estate. Her unreliable responses suggest that her cognition is impaired and that her communication difficulty is not solely a consequence of physical disability. Given Dr O’Connell found Ms De Jager had significant cognitive impairment in 2008, it is likely that this has continued to deteriorate. It is my opinion that Ms De Jager does not have testamentary capacity…197

There was evidence from the litigation guardian that communication with Martina was extremely difficult, and that she did not seem to obtain consistent responses from Martina, by way of blinking, when communicating with her. Staff members at the assisted accommodation where Martina resided stated that in their view she had full capacity, but had difficulty communicating. Evidence from Andrew indicated that while Martina initially lost her speech, she appeared be following what he was saying, that had changed, and she now only appeared to following ‘very simple conversation and jokes’. Critically, the footnote to the Wills Act 1936 (SA) s 7(12) expressly provided that ‘the cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.’ This enabled his Honour to conclude as follows: … To my mind, there is clear and unequivocal evidence that the effects of Ms De Jager’s multiple sclerosis have created a physical incapacity to communicate her testamentary intentions. This alone is sufficient to allow a conclusion that Ms De Jager lacks testamentary capacity. … In light of my conclusions regarding Ms De Jager’s physical incapacity to communicate her testamentary intentions, it is unnecessary for me to finally resolve whether she also has mental incapacity … I find that as a result of the deteriorating nature of this illness, Ms De Jager will not regain testamentary capacity.198

His Honour then turned to consider what Martina’s likely testamentary intentions would be in the circumstances, noting that it was necessary to consider her relationships with the beneficiaries of the 2005 will, and with those who would benefit under the proposed statutory will put forward by the parties.199 The judgment contains a summary and analysis of the various relationships. Importantly, Martina and Jodie had remained on good terms even though they had separated as a couple. Martina appointed her as both guardian and attorney after their separation. However in recent times, Jodie had re-partnered, and her contact with Martina had become less frequent. The

nature of Martina’s relationships with members of her family was also considered. It was found that while Martina would no longer want Jodie to be the sole beneficiary as she was under the 2005 will, because of their separation as a couple, they had been in ‘a loving and caring relationship for almost 20 years’, and ‘it might be expected in [page 220] those circumstances that [Martina] would wish to benefit [Jodie]’.200 The proposed gift of half of the residuary estate to her was therefore approved, on the basis that this reflected Martina’s likely intentions if she had testamentary capacity. In relation to the other proposed residuary beneficiary, one of Martina’s brothers, this was also found to be appropriate, as they had a close relationship growing up, and he had maintained contact with her when other family members had not. It was relevant that Andrew was named as a beneficiary in default of Jodie in Martina’s 2005 will. The proposed substitute/default beneficiaries were also approved, after an analysis of Martina’s relationship with each of them. Consideration was also given to whether Martina would have been likely to include a gift to the Multiple Sclerosis Society. (The judgment does not say whether this was a gift included in the statutory will initially proposed by the Public Trustee.) While the Multiple Sclerosis Society had assisted Martina, they had done so even before the 2005 will, and she had not made a gift to them. This led his Honour to conclude that ‘[Martina] did not include a benefit to the Multiple Sclerosis Society. I find that [Martina] would have made a conscious decision not to do so and would have had a reason for that. Accordingly, I am of the opinion that it was appropriate not to include the Multiple Sclerosis Society as a beneficiary in the proposed will.’201 The costs of all parties to the settlement and the proceedings were ordered to be paid on a solicitor-client basis from Martina’s estate.

Re Manley202 Lost capacity — amending a will — application opposed — charitable gifts

— consideration of Re D(J) — core test — evidence of intention — litigation guardian — notice to interested persons — terms of statutory will — unsuccessful application — costs 8.39 This was an unsuccessful application made by two grandchildren of the proposed testator, Marion Manley. At the time of the application, Marion was 89 years of age and lacked testamentary capacity as a result of a stroke that she suffered in 2005, which left her with severe cognitive defect. Since the stroke, Marion had been unable to communicate verbally or in writing and had been confined to an aged care facility. Her estate was worth approximately $220,000 at the time of the hearing. Marion’s husband, William, died in August 2012. There was one child of their marriage, Patricia Laidlaw. By her last will, made in 2004, Marion left her whole estate to William if he survived her, with a default gift of $5,000 to Patricia and a gift of the residue to the Royal Adelaide Hospital Research Fund for the purposes of stroke and heart disease research. That Fund was not a legal entity, but in accordance with the Health Services Charitable Gifts Act 2011 (SA), the Health Services Charitable Gifts Board (‘the Board’) would be entitled to the monies gifted to that Fund. Patricia died in 2006. The applicants for the statutory will were Patricia’s two children, Steven Laidlaw and Nicole Tallowin. In the proceeding, Marion and the Board were named as defendants. The proposed will provided for a gift of $5,000 to the RAH Research Fund and for the residue to be divided equally between Steven and Nicole. Stanley J noted that in accordance with the Wills Act 1936 (SA) s 7(7), certain persons were entitled to appear and be heard on the application, including the Public [page 221] Advocate. His Honour directed that the Public Advocate be served with a copy of the proceeding and a copy of the transcript and afforded the opportunity, should he so wish, to be heard and adduce evidence on the

application. The Public Advocate indicated that he did not wish to call evidence or be heard. Marion and her husband William Manley had made wills in 1989 and 2004. The 1989 wills could not be found. Their 2004 wills were mirror wills. There was evidence that their decision to leave only $5,000 to Patricia had been prompted by their view that Patricia had adequate financial means and that there had been a deterioration in their relationship with Patricia, as a result of animosity between them and Patricia’s husband. They did not wish their son-in-law to receive any benefit from their estates. In 2005, following Marion’s stroke, William made a new will with the same solicitor, which provided for his estate to pass to Marion, or in default of Marion surviving him then equally between the RAH Research Fund and Patricia. This change appeared to be prompted by the fact that William had been having more contact with Patricia, felt uncomfortable that he was leaving her only $5,000, and was aware her Patricia’s health was deteriorating. Patricia died in 2006. There was evidence that after that time, a reconciliation occurred between William and his son-in-law, who started to take William to medical and other appointments and also visited Marion on a regular basis. In 2007, William made a further will, leaving his whole estate upon trust for Marion for her lifetime, and upon her death a legacy of $5,000 to the RAH Research Fund and the residue to be divided equally between Steven and Nicole. William died in August 2012, leaving an estate of approximately $210,000. Following his death, Steven was appointed administrator of Marion’s affairs. He gave evidence that he had a good relationship with her all of his life, and continued to visit her, although she could only communicate with him by smiling and squeezing his hand. He also gave evidence that, after Marion’s stroke, William had told him that he (William) had done the wrong thing in relation to his will and wanted to fix it because he felt guilty, and that William blamed the Royal Adelaide Hospital for Marion’s second stroke because of a mix up with her medication. Steven was financially secure, as was Nicole. His Honour noted that this was a ‘lost capacity’ case, and referred to the Re

D(J)203 principles and the approach outlined by Palmer J in Re Fenwick204 for ‘lost capacity’ cases, including the requirement that: If the court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person ‘if he or she had testamentary capacity’?205

His Honour also noted the difference between the statutory test in South Australia, compared with the other Australian jurisdictions, and that each case depends on its own facts. As regards the threshold for the court exercising its statutory jurisdiction, he said as follows: The exercise of the power conferred on the court is conditioned upon satisfaction of the three matters prescribed in s 7(3). It is not enough that the proposed testator lacks testamentary capacity. The court is empowered to make a ‘statutory’ will only where the terms of s 7(3)(b) and (c) are satisfied. This reflects the traditional reluctance to

[page 222] interfere in the free exercise of a testator’s testamentary disposition. The Victorian authorities emphasise that the court will only exercise the power to make a will on behalf of a testator who lacks testamentary capacity where it can be satisfied that the proposed will accurately reflects the likely intentions of the proposed testator and it is otherwise reasonable in the circumstances that a new will should be made. It is not enough that the court thinks the terms of the proposed will are reasonable. In Re Fletcher; Ex parte Papaleo Byrne J approved the dictum of Hoffmann J in Re C (a patient), that the proposed will must reflect what the proposed testator might be expected to make, not, if it be different, what some reasonable person in the proposed testator’s position would have done. In Boulton v Sanders Dodds-Streeton AJA said the legislative insistence on an accurate reflection of the likely intentions of the proposed testator precludes the authorisation of a will which no more probably reflects the likely intentions than any number of other possible wills. If the proposed will no more probably reflects ‘likely intentions’ than a number of other possible dispositions, the requirements of s 7(3)(b) will not be satisfied.206 [emphasis added]

The plaintiffs submitted that that court should be satisfied, on the balance of probabilities, that the core test was satisfied, for a number of reasons: (1) The factors which motivated Marion to make the will in the terms that she did in 2004 were now absent. (2) Consequently, Marion would not seek to make a will now in the terms made by her in 2004. (3) An important factor that was now different compared to 2004 was that the primary recipient of the gifts under her 2004 will, namely her

(4)

(5) (6) (7) (8)

(9)

(10)

(11)

(12)

husband, was dead. Marion would have rethought the question of who should be her primary beneficiary or beneficiaries. Following the death of Patricia, Marion would no longer be motivated by a concern that by leaving her estate to Patricia, that estate could end up, against her wishes, in the hands of Patricia’s husband. In 2013, Marion would not be motivated by any animosity to Patricia’s husband such that she would not wish to provide for her grandchildren. Marion would seek advice and act on the advice given by a competent solicitor. The solicitor would advise her about legitimate claims on her testamentary bounty of her grandchildren. The solicitor would advise her about the entitlement of her grandchildren to seek provision from her estate by way of a family provision claim. Marion and William were accustomed to collectively forming a view as to their testamentary intentions through discussions between them. It was therefore likely, on a balance of probabilities, that if Marion had capacity she would have made a will in the same terms as William in 2007. Marion would have a proper appreciation by the time William made his 2007 will, and in any event by the present time, as to why there had been discord between herself and her daughter. Marion would have revised her thinking in that regard through the passage of the years, and following the death of Patricia. Marion would then have given proper and serious consideration to the legitimate claims on her testamentary bounty of the next generation being her two grandchildren. Marion would conclude in 2013 that her testamentary bounty was best expressed by leaving only a small legacy to the Royal Adelaide Hospital Research Fund, of [page 223]

the amount left by William in his last will, and that her residuary estate should be left to her grandchildren. The Board submitted that the court should find, on the evidence, that there were three factors which motivated Marion to make her 2004 will in the terms she did: (a) she was confident that Patricia was financially secure; (b) she was grateful for the care and support she and her husband had received at the Royal Adelaide Hospital; and (c) she had fallen out with Patricia because of the intense animosity she felt towards Patricia’s husband. There was clear evidence, the Board said, that Marion had actively turned her mind to the question of disinheriting her grandchildren and had decided to do so. In these circumstances, there was no reason to think that, if Marion had testamentary capacity, her intentions would have changed. Nor would her attitude to her son-in-law have changed, nor her attitude towards the Hospital. Counsel for Marion adopted a neutral position in relation to the application, submitting that the court could find that after William’s death, if she had testamentary capacity, Marion would have made a new will, but it was open to question whether she would have done so in the terms of the proposed will. His Honour found that there was no evidence of the wishes of Marion beyond the terms of her last will. There was no evidence that she had expressed any contrary testamentary intention in the three months between making that will and suffering the stroke. After considering the evidence against the statutory requirements, his Honour concluded that while Marion would have reviewed, upon the death of William, the testamentary provisions she had made, he was not satisfied that she would have made a new will in the terms of the proposed will: The death of her husband would not inevitably have led her to make a new will. The death of her husband was merely the realisation of a contingency for which she had made provision in her last will. It does not follow that she would have wished to make any different testamentary provision than she had in 2004. The difficulty for the plaintiffs and the court is that there is no evidence relating to Mrs Manley’s wishes as to what testamentary provision she wanted to make, other than her last will, given that she lost testamentary capacity, and the capacity to communicate, only three months after making her last will.

The plaintiffs’ application is predicated upon the proposition that, in changed circumstances, Mrs Manley would have made a different testamentary disposition than occurred in 2004. They submit, that like their grandfather, Mrs Manley would have recognised that the terms of her 2004 will reflected a misjudgment or misunderstanding on her part concerning both her daughter and her son-in-law. Once she had recognised this error, she would have rectified the position by making a new will in the terms of her husband’s last will, leaving the vast bulk of her estate to her grandchildren, save and except for a small legacy in favour of the RAH Research Fund. In my view, this proposition is speculative. … I cannot know whether, had she had testamentary capacity in 2007, Mrs Manley would have made a will in the same terms as her husband did. It may be that she would have. It may be that Mrs Manley would have made a will in 2007 which was in the same terms as the will made by Mr Manley at that time. It may be that she would have made a will in those terms now if she had testamentary capacity. Equally, she may not have changed the terms of the 2004 will at all. Her attitude towards her daughter might have changed. But it may not have. In any event, her daughter has been dead for seven years. Her attitude towards her son-in-law may have changed. But it may not have. …207

[page 224] His Honour noted the serious nature of the statutory will-making power, in determining that the core test was not met: It is a serious step to make a will. It is not for me to impose upon Mrs Manley an intention which I think she might or ought to have. Section 7(3)(b) requires that I make a finding as to her supposed likely intentions. The application requires me to make a finding that her likely intentions are those set out in the proposed statutory will. I am unable to do so. I cannot be satisfied that the proposed will more probably reflects the likely intentions of Mrs Manley than any number of other possible wills.208

Accordingly, while the application for permission to proceed with the application was granted, the substantive application was refused. A separate judgment was given as to costs.209 Orders were made that the plaintiffs pay the Board’s costs on a party-party basis, and that the costs of and incidental to the application of the proposed testator and her litigation guardian be paid on an indemnity basis from the estate of the proposed testator. His Honour referred to the source of the court’s power in relation to costs, in the Wills Act 1936 (SA) s 7(8), and the wide nature of the discretion, as had been indicated by Debelle J in Hoffman v Waters.210 He found that the application had been brought by the plaintiffs to advance their own interests. The proposed will would have adversely affected the interests of the Board. The Board was the only contradictor before the court, and had a

proper interest in the proceeding. The plaintiffs’ application having failed, they should meet the Board’s costs on a party-party basis.

Tasmania CMPA (Statutory Will)211 Nil capacity — making a will — application unopposed — appropriate applicant — core test — notice to interested persons — privacy — terms of statutory will 8.40 This case involved an application to make a will for ‘C’, who was 21 years of age at the time of the hearing. C had acquired brain injury suffered when he was an infant, and was and always had been incapable of making a will. Evidence of C’s lack of testamentary capacity was given in the form of a ‘Health Care Professional Report’ prepared as part of the application process to the Guardianship and Administration Tribunal. C’s brain injury was caused by his mother, ‘K’, severely assaulting him, the day after an unsuccessful application had been made by K to the Magistrate’s Court to have C placed with foster parents. K was convicted of causing grievous bodily harm to C, resulting in a sentence of 18 months’ imprisonment. An application for criminal injuries compensation was made on C’s behalf, and $10,000 was awarded. That amount was administered for C by the Public Trustee. At the time of the hearing, the amount held by the Public Trustee was approximately $35,000. The application was made by C’s grandmother, ‘BFA’, who sought that a will be made in favour of K and C’s current carer, ‘R’. It was proposed that if K predeceased C, her share should pass to K’s nephews and nieces (‘AA’, ‘SA’ and ‘JA’). R had been C’s carer since 1996, taking over at that time when his previous carer (a friend of the family) had died. C’s condition was described as follows, indicating a high level of care required of R: [page 225]

C is quadriplegic, has intellectual disability, cortical blindness and epilepsy. He is totally dependent upon others for his daily needs. His language is limited to two to three words, but he can express some preferences and needs.212

C had had no contact with his father for 15 years, and his father had never paid any maintenance. Attempts made by an investigation officer of the Board to contact him had been unsuccessful. While there was no suggestion that C’s father had been involved in inflicting C’s injuries, the Board concluded that ‘clearly, C has no personal relationship with his father such as would lead the Board to consider making him a beneficiary under a Will’.213 The structure of the Board’s decision is helpful in that each of the statutory factors is outlined, followed by a brief analysis of the evidence and issues relating to that factor. A key issue was whether K should benefit from C’s will in the circumstances. It was noted that K had schizophrenia, and lived in supported accommodation. She made contact with C a couple of times each year, and there was evidence that he responded well to her visits. Due to her illness, the Board’s investigation officer was not able to discuss the proceeding with her. The evidence of the applicant grandmother was that K did not acknowledge or understand that she had caused C’s injuries, due to the severity of her mental illness. K was in receipt of Centrelink benefits. If C died intestate, his estate would be divided equally between his parents, resulting in K receiving half of his estate. The Board noted that the fact that K had caused C’s injuries would not preclude her from inheriting from C. While the Board expressed ‘deep consternation in that K should not profit by her criminal actions’,214 the fact that K could not be heard on the application due to her health was said to be problematic. In relation to the core test, the Board adopted215 the test set out in the English decision of Re C (a patient),216 that had been cited with approval in the Victorian decision of Nancarrow,217 which had similar facts as it involved parents who had inflicted severe injuries on their child. In Re C (a patient), the test was outlined as follows: In all relevant aspects, the record of her individual preferences and personality is a blank on which nothing has been written. Accordingly, there is no material on which to construct a subjective assessment of what the patient would have wanted to do … The court must assume that she would have been a normal decent person, acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any person …218

The Board noted that Cummins J in Nancarrow had summarised the

approach as follows: In my view … the proper test to apply is that of a normal decent person acting in accordance with contemporary standards of morality. The test is not reasonableness but decency and fairness.

Applying this approach, the Board identified what it described as three applicable ‘principles’. In summary, these were that: (1) C, as a son of K who had a severe mental illness, if C was decent and fair, would not want to leave K unprovided for, and would make a gift to her in his will for her maintenance. [page 226] (2) C, as a victim of a serious crime that had ‘completely destroyed’ his quality of life might forgive K as the perpetrator, but not to the extent of benefiting her by his will. (3) It was decent and fair that K should not benefit from the compensation paid to C as a consequence of her crime.219 The Board found that if C had testamentary capacity ‘he would want an outcome that balances each of those three principles’.220 The conclusion was that ‘indirect’ provision be made for K, by gifting 25 per cent of C’s estate to the provider of her supported accommodation at the date of C’s death. An order was made directing the Public Trustee to prepare and submit to the Board a will that would give effect to the ‘dispositions and objectives’ set out in the Board’s decision. This included a gift of the residue (75 per cent) of the estate to R, with default gifts to R’s children if R did not survive C. The decision does not state what, if any, orders were made in relation to costs. In publishing its reasons and orders in a de-identified form, pursuant to the Guardianship and Administration Act 1995 (Tas) s 13(2), the Board stated that it was doing so ‘if necessary, for the purposes of section 8A(1A) of the Testator’s Family Maintenance Act 1912 (Tas)’221 which is the provision that allows the Supreme Court to take account of the reasons given by the Board for the making of a statutory will.

EKI (Statutory Will)222 Lost capacity — making a will — amending will — application unopposed — conduct of interested persons — core test — notice to interested persons — privacy — unsuccessful application 8.41 This decision of the Tasmanian Guardianship and Administration Board was a ‘lost capacity’ case, in which the Public Trustee applied for a statutory will to be made for 93 year old female, ‘EKI’. The value of EKI’s estate was approximately $723,000. The application was prompted by a concern on the part of the Public Trustee to ensure that a debt owed to EKI by her former administrator, ‘NX’ (EKI’s niece) was formally acknowledged in EKI’s proposed will. In 2003, shortly after EKI had been widowed, NX had been appointed as her administrator and guardian in Victoria. EKI was moved to Tasmania later that year, and those appointments were recognised by order of the Board. In 2005, NX applied to the Board for approval of an investment of $100,000 of EKI’s funds in a residential property to be purchased with NX in her personal capacity, with a part share in the property to be registered in EKI’s name. The Board was told that NX held a will made by EKI believed to be her last will, that left all of her estate to her sister, ‘CD’, NX, and NX’s sister, ‘KH’. A copy of that will was provided to the Board. The Board gave approval, on conditions including that the title to the property must reflect the contribution of funds, and be held as tenants in common. The property was purchased, and the conditions were complied with, albeit that an additional $10,000 of EKI’s funds was invested. When the administration was next reviewed in 2007, NX disclosed that a gift of $70,000 of EKI’s funds had been made to NX’s mother’s estate, without the approval of the Board. An investigation revealed that NX had also used EKI’s funds for NX’s [page 227] personal expenditure, and that the amount of the gift to NX’s mother was $72,000. A total of $73,793.75 was ‘disallowed’, and the Board declared that

NX was personally liable to EKI for that amount. The Public Trustee was appointed as administrator for EKI, in place of NX, and NX entered into an agreement to repay the funds. An amount of $72,000 was then repaid. It was subsequently discovered by the Public Trustee that NX had, at the time of purchasing the residential property, arranged a mortgage not in her sole name but with EKI as co-mortgagor. Further, while the $72,000 had been repaid, there was still an amount of approximately $9,348 outstanding from NX to EKI’s estate. A mediation was held. At that mediation, NX disputed the amount owing, and it became clear that the document that NX had previously referred to as the ‘will’ of EKI appeared to be an ‘informal note’, signed by EKI at a time when she lacked testamentary capacity. This prompted the Public Trustee to make an application to the Board for a statutory will for EKI, to avoid subsequent litigation as to whether the document was a valid will, and to secure repayment of NX’s outstanding debt. It was found that in 2003, EKI had signed a file note made by a lawyer when taking instructions for her will. She had not signed a will produced in accordance with those instructions. Three months later, she was declared to lack capacity to manage her own financial affairs. It was common ground that she also lacked that capacity when the note was signed three months earlier. The lawyer who had prepared the note had expressed doubts at that time about EKI’s testamentary capacity. If able to be admitted to probate as an informal will, the effect of the note was to gift EKI’s estate equally between EKI’s sister (CD) and her nieces (NX and KH). When the Public Trustee’s application for a statutory will first came before the Board, a question arose as to the status of the note signed in 2003. For the application to be heard by the Board (rather than the Supreme Court of Tasmania), the Public Trustee (as applicant) was required, under the Wills Act 2008 (Tas) s 32(1)(f), to make a statutory declaration that he believed that EKI had not made any will ‘or any purported will’. The Public Trustee subsequently sought advice from counsel on this issue before proceeding with the application, and based on that advice, formed the view that the note was incapable of being admitted to probate. Notice was given to various family members with a potential interest under the 2003 note or on an intestacy, and an investigator of the Board interviewed

them about their attitudes towards the making of a statutory will. Some supported a will in the terms provided for on intestacy, but for the deduction of the debt owed to the estate by NX. It appears from the decision that effectively two alternatives for a statutory will were put forward by the Public Trustee — a will that reflected an intestacy, or a will that reflected the terms of the 2003 note. For both, the Public Trustee sought that provision be made in the will for the debt owed by NX to be taken into account. Why that debt could not simply have been taken into account in the administration of the estate, as a debt to the estate, is not clear. The Board considered a copy of the advice that the Public Trustee had obtained from counsel, which suggested that it was that it was open to the Board to conclude, on the evidence, that due to lack of testamentary capacity, the 2003 note was not a ‘purported will’. However, while noting that the term ‘purported will’ was not defined in the Act, the Board concluded that because the 2003 note was ‘expressed to be a testamentary intention and had the tenor or sense of such a document …’,223 the fact that it would most likely not be admitted to probate did not change the fact that it [page 228] was a ‘purported will’. The application was therefore dismissed, on the basis that only the Supreme Court had jurisdiction to make a statutory will for EKI. It was noted that the Public Trustee may not have needed to proceed to apply to the Supreme Court if NX repaid the debt. It is not stated what, if any, orders were made in relation to costs.

Victoria Monger v Taylor224 Lost capacity — making a will — application for sanction — appropriate applicant — evidence of intention — notice to interested persons — terms of statutory will — costs

8.42 This early statutory wills decision of Gillard J concerned an application by Desmond Monger for a statutory will to be made for his aunt, Letitia Power, who was 86 years of age at the time of the hearing. Her estate was a relatively small one of approximately $112,000. Letitia’s husband, Michael Power, had died in 1994. They had no children. Shortly before his death, Michael had arranged for a solicitor to prepare a will for Letitia. That will provided for her estate to be divided equally between Desmond and his wife, Beverley. However, it had not been signed because a nurse had expressed a view that Letitia had Alzheimer’s disease and was not of sound mind. Desmond and Beverley had for many years had a close relationship with Letitia and Michael, and Desmond had provided various support to them. From 1995, he had acted as administrator of Letitia’s estate. Desmond’s initial application proposed that a will be made under which Letitia’s estate would pass to Desmond and Beverley. However, as a result of investigations made by his solicitor to establish Letitia’s next of kin, an address was located for her sister, Bonnie Taylor. If Letitia were to die intestate, Bonnie would be entitled to receive her whole estate. Orders were made that Bonnie be joined as a defendant, that affidavits be served on her, and that a mediation take place. The mediation was unsuccessful but a compromise was then reached. A different proposed will was presented to the court, effectively by both parties, for approval. That will provided for a legacy of $47,000 for Bonnie, or in default for her children (nephews and nieces of Leticia). The balance of the estate would pass to Desmond and Beverley. In relation to the two-stage process, his Honour noted that the purpose of the first stage is ‘to provide a screening process to ensure that frivolous baseless claims are not made and in particular a baseless allegation that a person lacks testamentary capacity’.225 His Honour went on to say that effectively the parties to a statutory will application should adopt a procedure that minimises costs. That included the plaintiff taking steps, prior to the leave application, to identify and locate persons who may have a genuine interest in the application, such as (but not limited to) beneficiaries under an earlier will, persons entitled on intestacy and those who may have a claim on the bounty of the proposed testator:

Plaintiffs and their legal practitioners should identify all those who could possibly have an interest in the proceeding prior to the issue of the motion, refer to them in the affidavit and give them notice prior to the return date of the application for leave to

[page 229] make application, so that if any person wishes to be heard he or she can attend at the first hearing. By adopting that procedure, court appearances can be kept to a minimum.226

While the proceeding had been compromised, that did not mean that the court did not still have to consider all relevant matters, determine whether leave should be granted, and if so, consider whether the proposed will should be made in the terms put forward by the parties. It was noted that ‘although weight would usually be given to any compromise effected by the interested parties, the ultimate decision must rest with the court …’227 In considering the core test, his Honour cited with approval the Re D(J)228 principles, although noting that the English legislation did not involve a separate leave application: A consideration of Division 2 of Part 3 of the Act leads to the conclusion that the leave application is at least as important as the application itself and in most cases would be the more important application. … The legislation sets out in some detail the matters that must be taken into account on an application for leave and the matters listed in s 28 reinforced by the obligation in the Rules to provide the information to the court establishes the importance of the leave application. In addition, the legislature has recognised that the actual application can be heard at the same hearing as the application for leave to apply if leave is granted. See s 27(2). Because under s 26 the court must be satisfied of certain matters before it can grant leave to apply, the granting of leave would only be made in circumstances where most if not all relevant matters which would be relevant to the application itself were considered and determined. That is not to say that there may be some cases where there are two hearings and where there are changed facts or circumstances which would cause the court to further consider the application after leave is granted but in many cases the next step would be a mere formality once leave is granted. Given that that is the scheme of the legislation in my opinion much of what Sir Robert Megarry V-C said [in Re D(J)] applies to an application for leave to make the application.229

On considering the evidence, it was found that Letitia did not have capacity to make a will. As regards the evidence of Letitia’s testamentary intentions, his Honour noted that it was clear that Letitia did not like Bonnie, and that they had had no contact for about 38 years. It was further found that ‘[Letitia] never made a will so there is no evidence of her thoughts, views or intentions of what she intended to do with her estate based upon a previous

will’.230 The unsigned will did not give any insight into those intentions, as she had not given instructions directly for it, and was suffering from dementia at the time. Noting that Letitia would most likely not wish to leave anything to her sister, his Honour said the following about ascertaining her likely intentions in the circumstances: However, in considering the likely intentions of the person concerned it is relevant to take into account that she would be advised by competent and careful solicitors, who would seek to ascertain who may have a claim on her bounty, advise whether she should respond to that claim and more particularly that if she did not, advise on the likelihood of an application being made under Part 4 of the Administration and Probate Act 1958. …231

[page 230] A submission was made that Bonnie had prospects of making a successful claim for provision, if provision for her was not made by will. This was put on the basis that Letitia had allegedly failed to make payments to Bonnie due under their mother’s will, and because of Bonnie’s poor financial position. His Honour was persuaded that in the circumstances (and having regard to the Re D(J) principles) ‘a careful competent solicitor would advise a testatrix when considering the terms of a proposed will of the likelihood of a claim and the likely outcome and persuade that person to make some allowance to avoid the cost and acrimony which can arise out of such an application subsequent to death’.232 This led to the conclusion that if Letitia was properly advised, and was aware of her sister’s financial circumstances, she would be likely to decide that some provision should be made for her. His Honour then considered whether the amount of the proposed legacy for Bonnie reflected the likely intentions of Letitia if she had capacity. The terms of the compromise were said to be relevant to this consideration, along with the prospects of a successful family provision application by Bonnie. In considering whether it was reasonable in all the circumstances for the court to authorise the making of the will in the terms proposed, his Honour had regard to the relatively small size of the estate, and noted that the court should avoid, if possible, the prospect of it being diminished by litigation. In relation to the proposed gift to Desmond and his wife, the evidence of their close relationship with Letitia, and Desmond’s assistance to her, were

sufficient to satisfy the court that the provision for them in the proposed will reflected Letitia’s likely intentions. The proposed will was made in the terms put forward for approval, with no order made as to costs.

Hill v Hill233 Lost capacity — amending a will — application opposed — charitable gifts — conduct of interested persons — evidence of intention — family provision — terms of statutory will — costs 8.43 This application was made by Norena Hill as plaintiff, seeking that a statutory will be made for her mother, Rhona Hill, that would increase the provision for her from half of the estate to all of the estate. Rhona was 93 years of age at the time of the hearing, and was living in a nursing home. State Trustees had been appointed in 1998 to act as her administrator. Her estate consisted of a property in St Kilda, worth approximately $221,000. Rhona had made a will in 1996, by which she appointed the treasurer of the Cat Protection Society of Victoria (‘the Society’) as her executor and gifted her estate equally between the Society and Norena. When the application was brought, the only party was Norena as plaintiff. By order of Beach J, Rhona and the Society were added as defendants. State Trustees, as administrator, filed an appearance on Rhona’s behalf. It was said to be common ground between the parties that Rhona had lost and would not regain testamentary capacity. This was confirmed by evidence from her treating doctor. [page 231] Evidence was given of Rhona’s passion for cats, and that she had been ‘an enthusiastic member of the Society’,234 having been involved with it since it was started in 1961. Evidence was also given of statements made by Rhona that she had a strained relationship with Norena, and wished to benefit the

Society rather than Norena by her will, but was prevailed upon to include her daughter, as to half of her estate. It was not in dispute that Rhona had testamentary capacity when she made the 1996 will. Norena argued that Rhona’s attitude towards her had changed after she made the 1996 will, and adduced evidence from carers involved with both of them to substantiate this, and also evidence of statements by Rhona that she regretted the terms of her current will and wished Norma to inherit her house property. That evidence was accepted by the court. Byrne J noted that ‘with the deterioration of her mental capacity since [1998] I was asked to infer that her changed attitude would continue and therefore represented present testamentary intention …’235 In relation to evidence from Norena about Rhona’s changed intentions, it was noted that while that evidence was not rejected, the court preferred to rely upon the evidence of the independent witnesses. State Trustees and the Society both urged the court to ‘approach with caution the task of determining the supposed intention of [Rhona]’.236 It can be inferred that the Society opposed a statutory will, and sought to have the existing 1996 will upheld. Their arguments included the propositions that in 1996, Rhona was apprehensive that she would be pressured by Norena to change her will in her favour, that a statement of intention was different to the formal step of changing a will, and that when Rhona made statements indicating a changed intention her capacity was starting to diminish. His Honour concluded that the evidence did establish that Rhona had changed her mind, and did intend to benefit Norena, ‘at the expense of the Society for which she had had a long association’.237 The reasons for her change of mind where identified and examined, and they were said to include that Rhona realised that the strains in her relationship with Norena may have been due to Norena’s mental illness. Having determined what Rhona’s likely intentions were, his Honour then considered the statutory requirement of whether it was reasonable in all of the circumstances to authorise the making of the proposed will. Norena’s modest assets and income were said to be relevant to this. Also of relevance was an argument advanced by the Society and State Trustees that Norena could make a family provision application following Rhona’s death, although his Honour found that this in fact supported a statutory will being made because Rhona, properly advised,

would take this into account when deciding what provision to make for Norena. Leave to make the application was granted, and a statutory will then authorised by reference to the same findings of fact. A statutory will was made leaving Rhona’s estate to Norena, in a form annexed to Norena’s affidavit filed in the proceeding. In relation to the issue of costs, in Hill v Hill (No 2),238 State Trustees took the position that no order as to costs should be made. Norena’s position was that each party should bear its own costs but, if the Society obtained an order for costs, that she too should have her from the assets of Rhona. His Honour noted that both State Trustees and the Society had filed affidavits in opposition in the proceeding, although the Society played a minor part in the proceeding. It was relevant that the Society [page 232] had been brought into the litigation at the behest of the plaintiff, as a person having a genuine interest in the matter, and that it fulfilled the role of a contradictor. His Honour determined that, as a starting point, the Society as unsuccessful party should not obtain its costs but this rule may yield in special circumstances. However, the estate in this case was modest and such enjoyment of life as the plaintiff had by reason of her assets should not be lightly interfered with. The only substantial asset was a piece of real estate which would have to be sold if the costs of the contending parties were to be paid from the estate. Accordingly, no order was made as to the costs of any party.

Re Fletcher; Ex parte Papaleo239 Lost capacity — amending a will — consideration of Re D(J) — core test — evidence of intention — unsuccessful application 8.44 This was an unsuccessful application for leave to apply for an order that the court authorise the making of a statutory will for Olive Fletcher, an elderly widow in poor physical health who lacked testamentary capacity. At the time of the application, her estate was valued at approximately $259,000.

The application was made by a Mr Papaelo, a solicitor who had for a number of years acted as administrator of Olive’s affairs. Olive had an existing will, made in 1967, in relation to which she had executed a codicil in 1970. Under the will and codicil, she appointed her two children, John and Celia, as executors, and gifted her estate to them in equal shares. The reason for the application was that Mr Papaleo considered that the equality between the two children that appeared to have been the objective of the will and codicil had been disturbed because John had received several loans from his parents. Mr Papaleo had made a formal demand for repayment of those loans, but in 1996 John became bankrupt, and was released from his provable debts. The effect of this was that John had, during Olive’s lifetime, received benefits totaling approximately $63,555. The judgment indicates that Celia was aware that the application for a statutory will was being made, but no notice had been given to John, who was thought to be somewhere in the United States. Byrne J, on the leave application, concluded that the facts did not provide a basis for a statutory will to be authorised. His Honour referred to the history of the Wills Act 1997 (Vic) s 26, and cited the considerations outlined by Megarry V-C in Re D(J)240 in relation to decisions under English legislation. However, he distinguished the application of the core test under Victorian law as follows: … Nevertheless, the solution in this State must be informed by the statute which I must interpret and apply to discover ‘the likely intentions of the person, if he or she had testamentary capacity’ and then to authorise the making of a will which reflects and gives effect to these intentions. This statutory emphasis on the likely intentions of the will-maker is to be contrasted with the terminology of the United Kingdom statute which directs the inquiry as to the ‘persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered’ and that the power should be exercised with a regard to the desirability of making provision for the obligations of the patient, including non-enforceable obligations. This means that the English courts have been ready to suppose a hypothetical set of circumstances in which the will-maker is presumed to find themself with testamentary capacity, and then to fashion a disposition of their assets which the court considers the will-maker

[page 233] might reasonably choose in these circumstances. In Victoria the court must be satisfied in the assumed circumstances as to the likely intentions of the will-maker. The use by Parliament of

the emphasised words means that there must be some indication as to what testamentary course it is probable that the will-maker would have in mind, assuming testamentary capacity.241

It was clear that Olive lacked testamentary capacity, but there was insufficient indication of her what likely intentions would have been if she had capacity. A number of years had passed since she made her 1970 codicil, and it was not clear whether she would have insisted that John’s share in her estate be diminished in order to restore the equality which she had sought to achieve. His Honour therefore concluded: … It is a serious step to make or to modify a will. It is not for me to impose upon [Olive] an intention which I think she might or ought to have. The section requires that I make a finding as to her supposed likely intentions. The application requires me to make a finding that her likely intentions are those set out in the proposed statutory will. This I am unable to do.242

State Trustees Limited v Hayden243 Lost capacity — amending a will — application opposed — charitable gifts — conduct of interested persons — consideration of Re D (J) — core test — evidence of intention — terms of statutory will — appeal 8.45 This decision of Mandie J involved an application for a statutory will for Wynne Sleight, who was 98 years of age at the time of the hearing, and had an estate worth approximately $1.7 million. The application was commenced by originating motion on 27 November 2000, by one of the then administrators of Wynne. However, by the time the application was heard State Trustees Limited had been appointed administrator, and had become the plaintiff in the proceedings. Wynne had made her last known will in 1995. Under that will, Roger Hayden, who was the defendant in the proceeding, was named as executor and made a major beneficiary. Wynne had known Roger since about 1977. She regularly visited him at his travel agency near her home, and they became good friends. Their relationship was described as follows by Mandie J: As the defendant further deposed, Mrs Sleight, ‘was like a member of my family over many years’. The defendant produced photographs, inter alia, showing Mrs Sleight celebrating Christmas at the defendant’s house with his family in 1988, and the defendant celebrating with Mrs Sleight on her birthday in 1994, 1998 and 1999. He also produced a photograph showing Mrs Sleight with his three sons labelled September 1981 (although the year is probably incorrect). The defendant assisted Mrs Sleight, from the early 80s onwards, in a number of ways which are set out in his affidavit, including work in relation to her properties and, later on, looking after her banking, bills and the like.244

The plaintiff proposed a will the effect of which would be to remove Roger as a beneficiary, as well as making some further changes, as compared with the 1995 will. The application was initially determined by a Judge in the Practice Court, approving the statutory will that excluded Roger from benefit. However, Roger successfully [page 234] appealed that decision to the Victorian Court of Appeal,245 on the ground that he had been denied natural justice by not being allowed to place further evidence before the court. The Court of Appeal remitted the proceeding for expedited hearing, without needing to deal with the merits of the application. Wynne had made several wills previously. In 1980, she made a will that included specific gifts to her two brothers, a niece and two nephews, her sister-in-law, a friend, a charity and Sir Edward Dunlop who had been one of her doctors for many years. Her residuary estate was left to a trust for several charities. She amended that will in a relatively minor way by codicil. In 1989 she made a new will, which made different gifts to family, friends and charities, with Roger included as a beneficiary as to $20,000. She next made a will in May 1993, again with gifts to family, friends and charities, but with differences in the amounts and choice of beneficiaries. The legacy to Roger was reduced to $15,000. Her next will, made in July 1993, excluded a beneficiary, varied the previous specific gifts, and left her residuary estate between Roger and another person equally. She then made a further will in August 1993 which appointed Roger as sole executor, varied her previous specific gifts, and left her home and contents, and half of her residuary estate, to Roger. Roger was also appointed as attorney for Wynne at the same time. Roger was appointed as administrator for Wynne in 1995. In 1997, he had her sign an agreement to lend him or his nominee $320,000 to lease a hotel property in Collingwood, Victoria. By solicitors, he requested and received approval of this transaction from the Guardianship Board. Roger was found by his Honour to have given false instructions to his lawyers that were put to the Board in support of that application, namely that he was her nephew, and

that he was the only beneficiary of her will, neither of which were true. The Board approved the transaction on 17 March 1998. His Honour said the following about that approval: On the material before the court, I must comment that it seems an extraordinary and improper order for the Board to have made, permitting an administrator to lend to himself or a nominee substantial monies from Mrs Sleight’s estate for a business venture of his own without any apparent security other than the business itself, notwithstanding the charge to be granted over his potential interest under what might or might not in due course be proved as her last will.246

While interest was paid for some time, Roger eventually lost the lease, and at the time of the hearing his company owed approximately $400,000 to Wynne. Roger was removed as administrator for Wynne on 18 February 2000, following complaints to the Board from various persons. The effect of excluding Roger from benefit under the will was analysed as follows: … If it be assumed that Mrs Sleight’s net estate will on her death be, say, $1.5M, a distribution under the will of 12 January 1995 would result in an approximate benefit of some $558,000 to the defendant (the net proceeds of $945,000 plus house contents less the loan and interest of $400,000 charged thereon). That would leave some $948,000 to be distributed pro-rata amongst pecuniary legatees who were left a total of $1,240,000. There would be no residuary estate. If, on the other hand, all benefits to the defendant were removed from the will as the plaintiff seeks, the pecuniary legatees would receive their full amounts and there would be some $260,000 payable to the remaining residuary beneficiary.247

The medical evidence about Wynne’s capacity was contained in a letter from Dr J Mannerheim of the Dorcas Street Medical Clinic, summarising her patient [page 235] history notes since she became a patient in 2000. His Honour was satisfied, on the material before the court, that Wynne had not possessed testamentary capacity for some years and would not regain it. His Honour considered the relevant principles from Re D(J),248 as had been applied in Monger v Taylor,249 but noted that ‘the express requirement in s 26(b) of satisfaction that the proposed will or revocation ‘accurately reflects the likely intentions of the person, if he or she had testamentary

capacity’ must at all times be borne in mind.’250 In relation to this core test, he said as follows: In order to meet the requirements of s 26(b) of the Wills Act 1997, the court must be satisfied on the balance of probabilities that the proposed will or revocation accurately reflects the ‘likely’ intentions of the person. The use of the word ‘accurately’ indicates the need for the proposed will to reproduce the person’s intentions with a substantial degree of precision and exactitude. Nevertheless, it is the ‘likely’ intentions of the person which are to be ascertained. Of necessity, the likely intentions must be derived from all such relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person from time to time in the past — but that is not to say, in a given case, that a court may not be able to conclude in the absence of much or any evidence concerning the particular person, that it is more likely than not that the person in the events which have occurred would have, as a normal decent person, reacted in a particular way to those events and formed the relevant intentions as a result.251 [emphasis added]

His Honour found that there was no direct subjective evidence as to whether Wynne would have altered her will, and if so how, in the light of events since her last known will. In such circumstances, the court was entitled to assume that ‘she is likely to have acted or reacted as a normal, decent person is likely to have acted or reacted in all the circumstances’.252 The following matters were noted in relation to the conduct of Roger: In my opinion the conduct of the defendant since 12 January 1995 has been such that Mrs Sleight, if possessing testamentary capacity and knowledge of that conduct, is likely to have removed all benefits in his favour from her will. The principal features of his conduct were: the procuring from Mrs Sleight of the written agreement to invest $320,000 in the hotel business at a time when her estate was in need of and therefore under administration and he was the administrator; the misrepresentation to the Board that he was a nephew of Mrs Sleight; his evident failure, despite the Board’s approval of the loan, to consider sufficiently the interests of Mrs Sleight or to put her interests before his own in procuring the loan for his own somewhat speculative business interests; his failure to provide the guarantee required by the Board; again as administrator, procuring an advance of $12,000 from Mrs Sleight’s estate in December 1999 for the purpose of working capital, when the risk of business failure was apparent and interest on the loan was already in arrears; his behaviour both as administrator and personally … I consider that the defendant’s said conduct in relation to Mrs Sleight would be considered by most people to be reprehensible and disgraceful. There is no specific evidence of what Mrs Sleight’s own attitude would have been likely to be in relation to such conduct but it is evident that she was a normal, decent person. I consider that Mrs Sleight in her position, if possessing testamentary capacity, is very likely to

[page 236] have reacted in the way most normal, decent people would react to such conduct. I am strongly of the view that Mrs Sleight is likely to have regarded the defendant’s conduct as reprehensible and disgraceful. There was evidence that Mrs Sleight was more than ready to change her testamentary provisions and beneficiaries from time to time. I find that Mrs Sleight is likely to have disinherited the defendant as a result of his said conduct. I am satisfied on the balance of probabilities that a will which excludes the defendant from all benefits accurately reflects the likely intentions of Mrs Sleight, if she had testamentary capacity. …253 [emphasis added]

Leave to make the application was granted and final orders made authorising a statutory will in the terms sought. Submissions were sought from the parties in relation to costs.

Re Palmer254 Nil capacity — making a will — application unopposed — appropriate applicant — conduct of interested persons — evidence of intention — notice to interested person — terms of statutory will — costs 8.46 This was a successful application for a statutory will for Gregory Palmer, who had never had testamentary capacity and who was 45 years of age at the time of the hearing. The application was made by Gregory’s mother, Dorothy, and his sister Karen. Gregory had been adopted by Dorothy and her husband as an infant. They had also adopted Karen, and had a biological son, Robert. Robert supported the application. Gregory had never had any contact with his biological parents. He was intellectually disabled from birth, and had attended special schools. When he was 19 years of age, he was subjected to sexual abuse at an institution where he was living in residential care. He subsequently received compensation that was held on trust for him. While the amount of the settlement and its current value was disclosed to the court by affidavit, it was noted that the settlement included a confidentiality clause, and those details were not stated in the judgment. It was, however, noted that the settlement fund constituted most of Gregory’s assets, although he did have other cash and investments totalling approximately $39,000. Ashley J considered evidence provided by Gregory’s treating family doctor, that Gregory had no meaningful understanding of a will, and lacked

testamentary capacity (although his Honour noted that that was, strictly, a matter for the court to determine). The medical opinion was consistent with the other evidence of Gregory’s lack of capacity. Despite this, Gregory had signed a will in 1996 that had been prepared by Dorothy. That will purported to divide his estate between the four children of Karen and Robert. The will was produced to the court, but his Honour was unable to conclude, from the mere fact that Gregory had signed it, that he understood it or approved its contents. In 1999, Dorothy and Karen were appointed as joint administrators of Gregory’s estate. The will that they proposed should be made for Gregory reflected the terms of the 1996 will. They did not seek to derive any personal benefit from Gregory’s estate. It was clear that this was a ‘nil capacity’ case. His Honour approached the task of ascertaining the likely intentions of Gregory as follows: … In the present case, I am dealing with a person whom I conclude has never had testamentary capacity. The case is different to one in which a will was made in the past by a person with testamentary capacity, where leave is sought for the court’s authorisation of a will to different effect, testamentary capacity having been lost. It seems to me that

[page 237] the situation is one such as Hoffman, J described in Re C (a patient).255 His Lordship there said that the patient had lacked capacity since birth, in which circumstances the record of her individual preferences and personality was a blank page. It was impossible, then, to construct a subjective assessment of what the patient would have wished to do. His Lordship went on to say: ‘…I think that in those circumstances the court must assume that she would have been a normal, decent person acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any person .. .’256

In Gregory’s case, his Honour considered that he might well conclude that his biological parents and siblings had adequate means of support, and that he would not wish to benefit the charitable organisation at which he had suffered abuse. Furthermore, he might well think that his biological parents had no claim on his estate, and would ‘focus upon his nephews and … see no basis for distinguishing between them in making disposition in their favour’.257 In considering whether it was reasonable in all the circumstances to make

the proposed will, his Honour noted that Gregory’s assets were ‘not inconsequential’, that he was single, and that it was better that his estate should not pass by intestacy.258 Noting the requirement that interested persons be given notice and the opportunity to appear, his Honour found that there was no entitlement for the nephews to appear, and in any event they were all minors and their parents either had notice of (or were involved in) the proceeding. A statutory will was ordered to be made in the terms of the proposed draft. No order was made as to costs.

Boulton v Sanders259 Lost capacity — making a will — application opposed — appropriate applicant — consideration of Re D(J) — core test — evidence of intention — separate representation — terms of statutory will — unsuccessful application — costs — appeal 8.47 This decision of Balmford J was unsuccessfully appealed to the Victorian Court of Appeal, and resulted in the test for the making of a statutory will in Victoria being changed by legislation, relaxing the requirement that the proposed will ‘accurately’ reflects the proposed testator’s intentions. The first instance decision and the appeal decision remain highly instructive in terms of the difficulties that can arise for a court asked to identify the likely intention of a testator who has lost capacity having made previous wills.

First instance decision as to leave The proposed testator, Amy Sanders, was 89 years of age at the time of the application. She had never married nor had children. Her closest living relatives were nieces and nephews, who were all named as defendants to the proceeding. The application was made by Elaine Boulton, the daughter of a close friend of Amy. Elaine had had contact with Amy all her life and had assisted Amy for several years, following the death of Amy’s long-time companion, Ruth Coulsell. State Trustees had been appointed as Amy’s administrator, however they declined to take part in the proceeding. At the time of the hearing, Amy’s total estate was approximately $969,000.

[page 238] Amy made her last will in 1997. It included legacies of $145,000, and gifted her residential unit and her residuary estate to Ruth. However, Ruth died before Amy, and the will did not make any default gift of residue in those circumstances, which would have resulted in the residue passing on intestacy to Amy’s nieces and nephews. The court considered three previous will made by Amy from 1989 to 1996. These wills made the same gift to Ruth, but did contain default provisions in relation to residue, in favour of various persons including some of her nieces and nephews, however the individuals included varied from will to will. The legacies also varied from will to will, but with several gifts repeated. It was evident that Amy no longer had testamentary capacity and would not regain it, based on evidence from her general practitioner. The proposed will had the support of Elaine, and the first and fifth defendants. It appears not to have had the support of the other defendants. Her Honour referred with approval260 to the approach that had been taken in the Victorian cases of Monger v Taylor261 and Hill v Hill,262 in respect of determining whether the proposed will accurately reflected the likely intentions of the proposed testator. She noted that the first question to be determined was whether Amy would have made a new will, or whether she would have been content with the intestacy that would result from her 1997 will. The plaintiff and the first to fifth defendants sought to rely on the default provisions in the other wills as supporting the proposed will. They argued that from those wills an inference could be drawn that Amy wished to avoid an intestacy, and further that inferences could be drawn from those wills to establish whom she would intend to benefit. Her Honour was not satisfied that there was sufficient evidence from which she could infer that the absence of a default gift in the will was accidental or unintended by Amy. Further, there was found to be no evidence of an expressed intention by Amy to change her 1997 will after the death of Ruth in 2000, and there was a brief period of time in which she could have done so before she started to lose capacity. Her Honour concluded that ‘… it is entirely possible that, when making the 1997 will, [Amy] had formed the view that if [Ruth] was not to be there to take the residue of her estate, she preferred to leave the

distribution of the residue to the law rather than continuing to select among relatives, friends and charities’.263 Applying this approach led to the following conclusion: … It is … a serious matter to make or modify a will, and it is not to be lightly undertaken. On the evidence before me, I cannot be satisfied on the balance of probabilities that the proposed will, including as it does the provision for the distribution of residue … ‘accurately reflects the likely intentions of [Miss Sanders if she] had testamentary capacity’ so as to satisfy the requirement of section 26(b) of the Act. Accordingly, I am unable to grant leave to apply for the order sought by the plaintiff …264

The application for leave was dismissed, and submissions sought in relation to costs.

First instance costs decision A separate costs judgment was given,265 with her Honour awarding costs against Elaine as plaintiff, on a party-party basis. Her Honour was not persuaded to award costs at the higher solicitor-client level. [page 239] Elaine submitted that the Amy’s estate should pay the costs of all parties, on various grounds, including that such a costs order would not adversely affect Amy’s lifestyle, and that while Elaine had a personal interest in the application, she was one of several parties with such interest. It was also submitted that there was a public benefit in the jurisdiction to make a statutory will for a person without testamentary capacity being invoked from time to time, and that if an order for costs were made against the plaintiff, this would discourage the initiation of proceedings in that jurisdiction’.266 All of the defendants sought that the plaintiff pay the costs, on the basis that costs should follow the event, or, in the alternative, that Amy’s estate should pay the costs. Her Honour reached the following conclusion: While the facts in the present case are not on all fours with those in Hill (No 2), I find on consideration of the judgment in that case and of the submissions put before me, no reason to depart from the ordinary principle. Most litigation involves the risk of a costs order. If

successful in her application, the plaintiff would have received a substantial benefit over and above the legacy to which she would otherwise be entitled. However, she was unsuccessful. Having said that, I do not wish to suggest that I would regard the ordinary principle that costs follow the event as necessarily appropriate to every application made under section 21. I am concerned only with the matter which is before me.267

Court of Appeal decision Elaine appealed to the Court of Appeal.268 The judgment of the court was given by Dodds-Streeton AJA, with Charles JA consenting, and Ormiston JA consenting and stating brief additional reasons. The judgment of Dodds-Streeton AJA provides a detailed summary of the Victorian legislation,269 the legislation and cases in the United Kingdom,270 law reform steps in Australia starting from 1985,271 the introduction of legislation in Victoria in 1997,272 and a comprehensive summary of the Victorian decisions from the introduction of the court’s powers in 1997 to mid-2004.273 A detailed review of the facts and evidence before the court at first instance then follows, including a detailed summary of Amy’s history of will making.274 In respect of the ascertainment of the proposed testator’s testamentary intentions, the Court of Appeal outlined the correct approach in the following part of the judgment: In cases where the evidence does not permit the court to form any view of the testator’s likely intentions, it is neither empowered nor required to ‘do the best it can’ to authorise a proposed will, even where the alternative is an intestacy which the testator probably did not intend. Under the United Kingdom legislation, regard may properly be had to many factors (including legal or non-legal obligations) from which a will may be constructed, albeit for an actual person on whom such factors or obligations are taken to impinge. As Hoffman J observed in Re C (a patient),275 under the United Kingdom legislation if a disposition is consistent with the guiding principles ‘it is not necessary for the court to be satisfied that the patient would definitely have chosen one way of giving effect to

[page 240] them rather than another’.276 His Lordship recognised that a provision which the patient ‘might be expected to provide’ allowed for, in matters of detail, ‘a range of choices which would be equally valid’.277 Under the Victorian legislation, the legislative insistence on an accurate reflection of the likely intentions of the testator precludes the authorisation of a will which

no more probably reflects likely intentions than any number of other possible wills, although it may accord with an assumed desire to avoid intestacy. While not excluding flexibility in matters of ‘detail’, s 26(b) requires satisfaction on the balance of probabilities that the proposed will accurately reflects the testator’s likely intentions. The question is not whether the testator would probably have preferred the proposed will to intestacy; nor whether the proposed will is one of a number of possible proposed wills, all of which might be equally likely to reflect the testator’s likely intentions. If the proposed will no more probably reflects ‘likely intentions’ than a number of other possible dispositions, in my view the requirements of s 26(b) will not be satisfied. Section 26(b) does not demand certainty, but probability. However, as Mandie, J.278 recognised, the requirement of accurate reflection demands a substantial degree of precision and exactitude about the ‘likely intentions’.279 [emphasis added]

The appellant contended that, while there was no subjective evidence of Amy’s intentions, such intentions could be inferred from her family relationships and associations, and the ‘pattern’ of her will making. Further, the appellant contented that Balmford J had concluded in error, contrary to the evidence, that Amy intended an intestacy as to residue if Ruth did not survive her, and that such a finding led to her Honour failing to properly consider whether the proposed will accurately reflected Amy’s likely intentions. Her Honour did not accept that Balmford J had concluded that Amy intended an intestacy: … While it is probable, in my opinion, that the learned trial judge’s comments simply reflected her conclusion that the proposed will did not satisfy the requirements of s 26(b) because it was no more likely to reflect Ms Sanders’ probable intentions than intestacy, it is unnecessary to determine that issue…280

Critically, it was found that ‘there was no unforeseen event or other evidence from which to conclude that [Amy] had subsequently changed her mind. The appellant’s reliance on previous wills is question-begging as the execution of a new will denotes a deliberate intention to alter at least some existing dispositions’.281 The judgment considers closely the appellant’s two bases for establishing ‘likely intention’. By doing so, the Court of Appeal did not say that those matters were not relevant considerations, or that they could never without evidence of subjective intention suffice, but rather that in this case they did not prove what Amy’s likely intentions were with sufficient certainty. It was noted that Amy had no particularly close relationships or obvious beneficiaries, and that there was no evidence from the potential beneficiaries that she owed them a duty to provide, or that they were in need. Also, the

charities and family members included in the existing 1997 were already left a modest gift that exceeded any reasonable claims that they could have asserted. Amy’s history of will making was considered in detail, however the Court of Appeal did not accept that a reliable ‘pattern’ was ascertainable. [page 241] Her Honour concluded with the following finding: Ms Sanders made a new will relatively frequently and often changed her mind. Given the degree of change between the various wills, I am not persuaded that there is any compelling pattern which establishes, on the balance of probabilities, that the proposed will accurately reflects Ms Sanders’ likely intentions.282

Court of Appeal decision as to costs Elaine, as plaintiff, had also appealed against the first instance costs decision, which awarded costs against her on a party-party basis. On appeal, Elaine maintained her arguments in support of costs being paid from the estate on a solicitor-client basis, and argued that it was ‘perverse’ for her to be ordered to pay the costs of the defendants who had supported her position in the first instance proceeding. A primary contention made by Elaine as appellant in support of her appeal in relation to costs was that the principles in the English decisions of Re D(J)283 and Re CEFD284 should apply to statutory will applications in Victoria. The principle was said to be that in any ‘fair case of dispute’ the Court would be justified in awarded costs from the estate of the proposed testator on a solicitor-client basis, regardless of whether the application was successful. Her Honour said the following about this submission, in dismissing the appeal in relation to costs: The English authorities on which the appellant relied (whatever their factual similarities to the present case) are clearly distinguishable on a number of bases. First, in each of those cases, the protected person was represented and his or her estate was a party. Secondly, in Re D(J) the applicant was successful both at the initial hearing and on appeal. In the present case the State Trustees, as administrator of Ms Sanders’ estate, was neither joined as a party to the proceeding nor served with any material …

Neither the plaintiff nor any other party at any stage applied for an order that the State Trustees or Ms Sanders be joined as a party to the proceeding. Neither Ms Sanders nor State Trustees as administrator of her estate was represented at the hearing at first instance or on appeal. The learned trial judge cannot be said to have erred in declining to make a costs order against Ms Sanders’ estate when it was not a party to the proceeding. Further, [the appellant’s counsel] conceded that the appellant had not raised the submission opposing the appellant’s payment of the first and fourth defendants’ costs below.285

Her Honour indicated that there was a further ground on which the basis for the appeal could not succeed, being that the appellant’s reliance on principles derived from the English cases could not be supported. This was because the jurisdiction in Victoria was said to be very different from that of the courts in the United Kingdom, which made it inappropriate to routinely apply principles from decisions from the United Kingdom: … Under the United Kingdom legislation, the statutory will-making power is but an aspect of a broad protection jurisdiction, which permits the curial drafting of a will on the basis of a wide range of factors informed by a fundamental goal of benefit to the patient and his or her family. In contrast, the Victorian statutory will-making power is not part of a broad protective jurisdiction. Further, it is constrained by the necessity that the proposed will accurately reflect ‘likely intentions’.286

[page 242] Her Honour further said: Where an application is brought by and for the benefit of persons including the applicant, rather than by a disinterested administrator, the ordinary principles governing costs in adversarial litigation properly apply. It should not be presumed that the estate, rather than an unsuccessful applicant, will be ordered to pay the costs of the proceeding merely because there is ‘a fair case of dispute’. In determining whether it is appropriate to exercise the discretion to order that the costs of [a statutory will application] be paid from the estate of a living but incapacitated person, the avoidance of any potentially adverse impact on that vulnerable person’s long-term security and welfare will always be an important consideration.287 [emphasis added]

A final point to note is that the Court of Appeal was critical of the State Trustees, as Amy’s administrator, for not seeking to actively defend her estate from the burden of a costs order. The change to the legislation in Victoria following the Court of Appeal decision is reviewed at 1.21.

De Gois v Korp288 Lost capacity — amending a will — application unopposed — conduct of interested persons — evidence of intention — notice to interested persons 8.48 This decision of Mandie J received a great deal of publicity, as it involved an application for a statutory will to be made for Maria Korp, shortly before her death, and at a time when her husband Joseph Korp had been charged with her attempted murder. The application for a statutory will was made by Maria’s daughter by her marriage to her first husband. Under Maria’s existing will, made in 1996, Joseph was appointed as executor and would receive the whole of Maria’s estate if he survived her. The estate would otherwise pass eventually to the applicant and the son of Maria’s marriage to Joseph. Maria’s daughter proposed that a will be made that revoked all prior wills, appointed her and a solicitor as executors, and left Maria’s estate on trust in terms that followed the default provisions under the 1996 will. The effect of the proposed will would therefore be to delete the appointment of Joseph as executor and beneficiary. At the time of the hearing, Maria was said to be in a persistent vegetative state as a result of severe brain injury, after being found unconscious in the boot of her car. The applicant had been appointed as administrator of Maria’s estate, and had acted to sever the joint tenancy in the property that Maria held with Joseph. The Public Advocate had been appointed as Maria’s guardian. Due to decisions that had been made in relation to Maria’s medical treatment, it was likely that she would die within a matter of weeks. Maria’s estate had an approximate value of $475,000, and was said to include her half interest as tenant in common in the property owned with Joseph, and superannuation and life insurance entitlements. His Honour reviewed the police summary of evidence. It was relevant that Joseph’s mistress had pleaded guilty to Maria’s attempted murder, and was sentenced to 12 years imprisonment. While Joseph was named as a defendant in the statutory will application, there was no appearance by him or on his behalf at the hearing. Service

[page 243] on him had been effected by way of substituted service of documents on the solicitors acting for him in the criminal proceeding. His Honour was satisfied that Maria lacked testamentary capacity and that the proposed will accurately reflected her likely intentions. He found that (in accordance with the Re D(J) principles) for the purpose of determining this hypothetical question, Maria should be taken to have testamentary capacity and knowledge of the relevant circumstances including: Joseph’s affair, the serious allegations made against him by the police, the attack on Maria by his mistress, and that even if acquitted … it appeared that [Joseph] bore, at the very least, considerable moral responsibility for what had happened to her’.289 The application was heard and a statutory will approved on 1 August 2005, with the reasons for judgment provided on 18 August 2005, due to urgency arising from Maria’s health. A footnote to the judgment states that Maria died on 5 August 2005, and Joseph died on 12 August 2005. Those matters are noted as not having had any bearing on reasons for the orders made.290

Plowright v Burge291 Lost capacity — amending a will — application opposed — charitable gifts — conduct of interested persons — evidence of intention — terms of statutory will — costs 8.49 This case involved an application by Ronald Plowright for a statutory will to be made for his sister, Pamela Wilson, which would have the effect of removing her former partner, Geoffrey Burge, as a beneficiary under her existing will. Pamela was 59 years of age at the time of the hearing. She had suffered a severe head injury in 1997, by falling from a horse. As a result of that injury, she was severely incapacitated, and had little quality of life. Her general medical practitioner gave evidence that she lacked testamentary capacity and in all likelihood would not regain it. Pamela’s estate was approximately $700,000 in value, including a small amount of superannuation.

Pamela’s existing will, made in 1994, appointed Geoffrey as executor (with a default appointment of the solicitor who had prepared the will), contained gifts totalling $50,000 to her nieces and her stepson, and provided for the residue to pass to Geoffrey, with a default gift to the Geelong Hospice Care Association. Pamela had worked for more than ten years for the Hospice, as a palliative care nurse. At the time the 1994 will was made, Geoffrey and Pamela were in a de facto relationship. They had met in in 1992 and he had moved in with her in April 1993. Their relationship had, however, ended on 1 July 1996, when he ceased living with her. There was evidence that she intended to remove him from her will, but she had not done so by the time of her accident. The proposed will provided for Ronald to be appointed as executor in place of Geoffrey, and for the gift of residue to be to the Association only. The gifts to the nieces and stepson were unchanged. At the time of the hearing, the Association had ceased to operate. The proposed will therefore contained a provision to the effect that if the gift to the Association could not take effect, the executor was to distribute the residue to one or more charitable organisations with similar objects. [page 244] Geoffrey opposed the application, and was added as a defendant. He swore five affidavits as to the facts on which he based his opposition. A number of the persons who had provided affidavit evidence were crossexamined. Hansen J preferred the evidence given by Ronald and the witnesses called on his behalf, to that given by Geoffrey and his witnesses. A specific finding was made that Geoffrey was an unreliable witness who had given false evidence, in which he stated that his relationship with Pamela had continued to the time of her accident, even though he had ceased living with her on 1 July 1996. The cross-examination of Geoffrey was summarised by his Honour as follows: … [Geoffrey] was [cross-examined] and, in my view, in a manner and to an extent that was open and appropriate in the circumstances. But for the cross-examination [his] evidence may well have misled me as to the truth of his relationship with [Pamela] and related circumstances. The result of the cross-examination was to expose evidence of [Geoffrey] as misleading and

false the purpose of which evidence must have been to establish a relationship of such a nature as to lead the court not to be satisfied that the removal of [Geoffrey] as the residuary beneficiary accorded with [Pamela’s] actual likely intentions, or that it was not reasonable to authorise the making of the proposed will. Hence, while the case was not an inquiry into [Geoffrey] he, by his evidence, raised issues of fact which led to his credit being an issue. Once the issues of fact and credit were raised I have had to resolve them.292

The judgment summarises the extensive evidence given about Pamela’s relationship with Geoffrey in 1996–1997, and about her intention to change her will to exclude him as a beneficiary following their separation. While they had ceased living together, Geoffrey contended that their relationship was continuing at the time of Pamela’s accident. In cross-examination, however, he conceded that they had ‘agreed to go their own ways’. He also conceded that, while he had made a will at the same time as Pamela in 1994, leaving his estate to her, he had in 1997 made a further will in favour of his children, which did not include any provision for Pamela. The following submissions were made on behalf of Geoffrey:293 (1) That the court should approach the determination of Pamela’s likely intentions with caution, given that her statements as to changing her will to exclude Geoffrey were made more than eight years previously. (2) It was not sufficient that Pamela had made those statements; she must have intended to change her will. The statements should not be relied on as evidence of a settled intention or a likely intention in August 2005 to exclude Geoffrey. (3) The evidence did not establish that the proposed will accurately reflected the likely intentions of Pamela if she had testamentary capacity. Pamela might wish to benefit Geoffrey, who had visited her in hospital, since she had no children of her own. She might leave her whole estate to him, or at least a gift. It was not relevant that Geoffrey had changed his will. (4) The Geelong Hospice no longer existed, and it would not be Pamela’s likely intention to nominate a beneficiary that had ceased to exist. Ronald countered those submissions by relying in particular on statements made by Pamela to various people as to her intention to change her will, and the separation between her and Geoffrey in 1996–1997. His Honour said the following about the task of ascertaining Pamela’s ‘likely intentions’: … as to the matters in s 26(b) and (c), the defendant [contended] that the evidence is not

sufficient to enable the court to be satisfied of either matter on the balance of

[page 245] probabilities. It is further said that the court ‘should approach with caution the task of determining the supposed intention of’ Mrs Wilson.294 I do so approach the task mindful of the serious consequences of a decision under s 21 and the difficulty involved in discerning that the proposed will accurately reflects the likely intentions of a person unable because of her condition to inform the court on the matter and whose actual last words on the subject were spoken something over eight years ago. I also bear in mind the seriousness of the consequences involved in the decision under these new statutory provisions. Nevertheless, the jurisdiction under s 21 is conferred and on invocation the court must resolve the application on the balance of probabilities.295

It was found that Pamela had stated an intention to change her will (and this was conceded by Geoffrey), their relationship had in fact ended, and that Geoffrey had given false evidence about that relationship continuing. Further, Geoffrey had made no financial or other contributions to Pamela, and had admitted to making a new will that contained no provision for her. Difficulties with having Geoffrey move out of her home, and Geoffrey’s relationships with other women, were also found to be relevant. His Honour approached the application of the ‘core test’, and the requirement that it be reasonable in all the circumstances for the court to authorise the making of the proposed will, as follows: … the question is whether the proposed will accurately reflects [Pamela’s] likely intentions. For this purpose she is to be regarded as if she had testamentary capacity. So regarding her, she would, I consider, have engaged a competent solicitor to advise upon and draw a new will to carry her intentions into effect. It should also be assumed that she would have informed herself of all relevant matters pertaining to her testamentary decision. Those matters would include, in my view, the position and conduct of the defendant including any maintenance and support he had provided to her since her accident and whether she remained a beneficiary of his will. In my view it is more than probable that such a consideration would have reinforced in Mrs Wilson the intentions she expressed before her accident. … Having considered the submission I conclude that s 26(b) is satisfied in relation to the proposed will. The substitutionary gift in the 1994 will and Mrs Wilson’s statements that she would remove the defendant and give her estate to the Geelong Hospice made clear her regard for the Hospice as a recipient of her benefaction. Her regard for the Hospice doubtless was founded in her employment with it to the time of her accident. There is no reason not to suppose, and every reason to do so, that if the Hospice were to resume its activity, or another body were to be performing that work with that name, that she would desire that it have the benefit of her residuary estate when she died. And, if not, that her residuary estate be given to a charitable organisation most nearly fulfilling the object she intended to benefit, as provided in the proposed will. Thus framed, the proposed will makes provision for the object of her desired

residual benefaction yet also provides flexibility in the event that that gift cannot take effect. The provisions dealing with management and investment and other powers in the proposed will are of the type that are incidental in a sense but which might be expected to be included in a will drawn by a solicitor. They do not affect who are beneficiaries. It is for these reasons I conclude, on the balance of probabilities, that the proposed will accurately reflects [Pamela’s] likely intentions. That leaves for consideration the question under s 26(c) whether it is reasonable in all the circumstances for the court to authorise the making of the will. For the reasons stated above I am satisfied that it is reasonable to authorise the making of the will. The defendant’s point here was based upon the Geelong Hospice having closed. That being so, it was submitted, it was not reasonable for the court to authorise the making of a will which leaves the residuary estate to that institution. I have regard to that point but, being satisfied on the balance of probabilities that the proposed will accurately reflects

[page 246] her likely intentions, I am similarly satisfied that it is reasonable to authorise the making of the will as that is the step that enables her intentions to be fulfilled …296

Orders were made accordingly, providing leave and authorising a will to be made in the terms proposed. A separate costs decision followed.297 Counsel for Ronald, as the successful plaintiff, made various submissions: … that the defendant should be ordered to pay the plaintiff’s costs of the proceeding but limited to the costs incurred as a result of the defendant’s opposition to the application. This submission acknowledged that the plaintiff had had to commence the application and must therefore have incurred costs in any event. It was further submitted that the costs to be paid by the defendant should be paid on an indemnity or solicitor and client basis. This submission was put on the following basis, in substance. The defendant could have stood aside and let the application proceed unopposed. Rather than take that course he came into the proceeding and actively opposed it, not out of appropriate regard for Mrs Wilson but opportunistically for his own financial gain. Moreover, as the court found, the defendant gave false evidence in seeking to advance, and give credence to, his opposition. He falsely represented the nature of his relationship with Mrs Wilson. His behaviour was equivalent to seeking to obtain a financial advantage by deception.298

Counsel for Geoffrey, the unsuccessful defendant, responded: … that the defendant should have his costs or, alternatively, that there should be no order for costs. He pointed out that the defendant was brought into the proceeding at the behest of the plaintiff as a person with a genuine interest in the matter. It was a benefit to the court to have the defendant participate in the case. Further there were real questions on the evidence as to satisfaction of the requirements of s 26(b) and (c). As to those matters the defendant’s opposition was not frivolous. Further, he was seeking to maintain the continuance of the 1994 will under which he would, by law, have an entitlement as the residuary beneficiary. Finally, it was not appropriate to order costs on an indemnity or a solicitor and client basis.299

Dealing first with Ronald’s costs, his Honour noted that Ronald had brought the application as administrator, and had no personal financial interest in the outcome. As a disinterested administrator, he should normally be entitled to recoup his costs out of the estate of the represented person, although that did not mean that he could not recover costs from another party. This case was therefore, his Honour said, to be distinguished from Boulton v Sanders,300 where an unsuccessful plaintiff who sought a statutory will for her own benefit was ordered to pay the defendants’ costs. As regards Geoffrey’s role in the proceeding, it was noted that while he had not initiated the application for a statutory will in his favour, he had opposed the application, and had done so seeking to retain the gift to him made by the 1994 will. In doing so, he ‘went far beyond the mere testing of the application to the area of positively advancing false evidence to bolster his application’.301 However, his Honour found it ‘impractical’ to require Geoffrey to pay Ronald’s costs incurred as a result of Geoffrey’s opposition: … The submission does not distinguish between, on the one hand, costs occasioned by the advancing of false evidence and, on the other hand, costs otherwise incurred by reason of opposition to the application. And it is difficult to discern where the line would be drawn between costs in the latter category and costs that must have

[page 247] been incurred in any event by the plaintiff in bringing the proceeding to hearing and determination. There is substance in the submission that the defendant possessed a genuine interest and properly participated in the proceeding to test the application with a view to retaining the benefit which he had under the 1994 will. He was entitled to do that. He did not initiate. He responded. Against that consideration of course is that in responding he overreached into the realm of advancing evidence which falsely described his relationship with [Pamela]. He did so, as I concluded at [184] of my judgment, for the purpose of raising issues of fact that would tend to reduce the chance of the plaintiff establishing satisfaction of the matters in s 26(b) and (c). And, as I found at [186], the defendant gave false evidence in an attempt to bolster his case and lead the court from the truth. These were serious matters and are properly to be taken into account in determining the appropriate order for costs.302

The costs of Ronald were ordered to be paid from Pamela’s estate on a solicitor-client basis. There was no order for the costs of Geoffrey.

State Trustees Limited v Do and Nguyen303 Lost capacity — making a will — application unopposed—appropriate

applicant — charitable gifts — core test — evidence of intention — family provision — terms of statutory will 8.50 This application was made by State Trustees Limited, as administrator of the estate of Lydia Aukland, seeking the authorisation of the making of a statutory will on her behalf. Lydia was 88 years of age and suffering from dementia. Her estate was valued at approximately $700,000. It was clear from medical evidence that she did not have testamentary capacity. Lydia had no spouse and no children. The court had directed State Trustees to make enquiries to locate other family members. Those enquiries had identified that Lydia had a sister, Olga, living in Belarus, and a deceased brother who had a surviving son, Youri. It was not certain whether there might have been other siblings of Lydia. Lydia had made eight wills since 1989. Bell J stated that, of those, the earlier ones were of ‘doubtful validity’ and the later ones were of ‘undoubted invalidity’. The most recent of those wills was based on a false legal assumption which would defeat its main expressed intention. The application for a statutory will, if successful, would avoid a full or partial intestacy. His Honour noted that, since the change to the core test effected by the Wills Amendment Act 2007 (Vic), it was sufficient for the court to be satisfied that the proposed will would reflect the proposed testator’s ‘likely’ or ‘reasonably … expected’ intentions. His Honour considered that ‘a broadbrush approach is required, for otherwise the beneficial purpose of the [court’s] function might be defeated’.304 In this case, Lydia’s ‘likely’ or ‘reasonably … expected’ intentions were found to be best revealed by the terms of her previous wills: … With all their difficulties, it is possible to identify a mind with an intention at work in these wills. The wills, read with the relationship evidence, show [Lydia] to be focused on her family, her godson and her two neighbours. Without going into the details, the wills so read tend to favour those persons.305

The two neighbours referred to were a husband and wife, to whom Lydia had become very attached. They were joined as defendants in the proceeding. Lydia had made substantial gifts to them and their family, which led to litigation being [page 248]

commenced by State Trustees on her behalf. That litigation had been settled, on the basis that they would repay a certain amount and State Trustees would include their interests (calculated at 12.5 per cent of the estate) in this application for a statutory will. His Honour found that that share represented Lydia’s likely intentions. As regards the godson, Gregory, Lydia had made various and inconsistent provision for him under her wills. His Honour was nevertheless persuaded that the terms of those wills, and the relationship evidence, indicated that Lydia was still likely to have intended to make provision for him in her will, in the amount of 12.5 per cent. His Honour was satisfied that Lydia’s likely intentions would have been to leave the balance of her estate to her siblings who survived her, or to the surviving issue of a sibling who did not survive her. There were no other family members who would likely have come within the scope of her testamentary bounty. The special needs of Olga needed, however, to be taken into account: there was evidence that she was very poor and in ill-health. There was also evidence that indicated a strong relationship between Lydia and Olga, such that his Honour was satisfied that Lydia would likely have intended to make additional provision for her. Accordingly, and taking into account Olga’s right to make a claim for further and better provision, his Honour considered that a separate disposition of 12.5 per cent of the estate should be made in favour of Olga, in addition to the share that she would receive as a sister of Lydia. At his Honour’s suggestion, State Trustees sought leave to amend the application along those lines and produced a revised draft will. In respect of this amendment, he said as follows: … The jurisdiction of the court, on application by leave, is to authorise the making of a will in the proposed terms, and not itself to write that will. This does not prevent the court from making appropriate remarks about what it might authorise and the applicant from seeking to amend their application accordingly.306

The proposed will provided for the balance of the estate (62.5 per cent) to pass equally to Lydia’s surviving siblings (specifically including Olga) or to the surviving issue of her non-surviving siblings (which would include Youri). In this regard, his Honour took into account the claims which those siblings, and their children, might have on intestacy. The proposed will also made two modest pecuniary legacies to two

charities, as well as making provision for Lydia’s cremation, which was consistent with the terms of her previous wills and her apparent wishes when lucid.

Saunders v Pedemont307 Lost capacity — amending a will — application opposed — appropriate applicant — evidence of intention — family provision — unsuccessful application — costs 8.51 This was an unsuccessful application for a statutory will to be made for Ronald Macquire, who was 91 years of age at the time of the hearing. Ronald had an existing will, made in 1973, under which he left his whole estate to his wife, or if she predeceased him, to his son, Graeme. Both Ronald’s wife and Graeme had predeceased him. However, Graeme was survived by a daughter, Nicole Pedemont, and by a statutory default provision,308 she was entitled to receive Ronald’s estate in her father’s place. [page 249] Ronald’s surviving family included Garry Saunders and his brother Brian Saunders, who were the children of Ronald’s late wife’s sister. There was also a surviving nephew, Max Goldstein, who was the son of Ronald’s sister. Ronald’s assets at the time of the hearing totalled approximately $515,000, comprising $338,000 invested with State Trustees, his administrator, and $177,000 held in an accommodation bond. The application for a statutory will was made by Garry. The will that he proposed provided for him and his wife Vilma Saunders to be appointed as executors, and for Ronald’s estate to be divided as to one half to Garry and Vilma, and the other half to Brian and his wife Heather Saunders. The application was served on State Trustees, and on Nicole. State Trustees indicated that it adopted a neutral position in relation to the application. Nicole was added as a defendant. It came to light during the hearing that Max may have had an interest in the proceeding but had not been served. The existence of Max only emerged during cross-examination of

Garry, who said that he had spoken to Max before making the application but Max did not want any involvement in it. Habersberger J was critical of this, and said that the fact that Max had declined to be ‘involved’ in Garry’s proposed application did not mean that he would not have wanted to be heard once he knew that the application had been issued and what was sought by the proposed will. Max’s view of Ronald’s testamentary intentions might have been of some assistance. His Honour further said that, had he been prepared to make an order (granting leave), he would have had to delay doing so until Max had been given the opportunity to be heard. Max was a person who may have had ‘a genuine interest in the matter’ within the meaning of the Wills Act 1997 (Vic) s 29(e). Evidence as to Ronald’s lack of testamentary capacity was provided by way of a medical report from his general practitioner, annexed to an affidavit of Garry’s solicitor. The report stated that Ronald suffered from advanced dementia with profound cognitive loss, and expressed a clear conclusion that he did not have testamentary capacity, and would not regain it in the future. His Honour considered the two-stage process, and noted that in Boulton v Sanders,309 Dodds-Streeton AJA had stated that the requirement for leave ‘permits baseless or unmeritorious applications to be screened out at an early stage’.310 His Honour expressed a different view: With the greatest respect, I doubt that this observation is accurate. In order to obtain leave an applicant must satisfy the court of the three critical requirements in s 26 and, if required by the court, give the information set out in s 28, which means putting all relevant evidence before the court. Leave should only be refused after all of these matters have been taken into account. On the other hand, once leave has been given, it is extremely unlikely, in my opinion, that an order authorising a will to be made would be refused by the court. It is, therefore, very hard to see why the second step was thought to be necessary as it seems to me that it serves no useful purpose.311

Prior to the hearing, a second proposed draft will was put forward, which provided for Ronald’s estate to be divided into five equal parts, one each for Garry, Vilma, Brian, Heather and Nicole. During the course of the hearing, further drafts were advanced. The third draft was the same as the second, except that it provided for Nicole’s share to be held on trust for her until she came out of a period of bankruptcy. A fourth and final draft was put forward during final submissions, and his Honour gave leave for that draft to be relied on. That proposed will provided for the estate to

[page 250] be divided into three equal parts, the first for Garry and Vilma jointly, the second for Brian and Heather jointly, and the third for Nicole, with her share to be held on trust until she was discharged from bankruptcy. His Honour said as follows, concerning this late amendment: … I decided that I would allow the plaintiff’s application to amend to include as the proposed will what I have referred to as the fourth proposed will. I did so because, although the application to amend was made extremely late in the hearing, it did not mean that there would have been any change in the evidence that was called on behalf of the defendant. Whilst late amendments are not to be encouraged and … multiple amendments run the risk of possibly being detrimental to a party’s case, I could not see any reason to deny the plaintiff the opportunity to rely on the case that he finally sought to advance.312

Affidavit evidence was provided by various relatives, from both the Saunders and the Pedemont sides of the family. The judgment contains a detailed analysis of that evidence, and in particular what was said about the relationships that the various family members had with Ronald. The effect of the 1973 will, and the corresponding will prepared by Ronald’s wife at the same time, was then reviewed. His Honour formed the following view regarding the likely intentions of Ronald, in respect of the devolution of his estate in the event that he was not survived by Graeme: It seems to me that it is probable that as the 1973 wills were drawn by a solicitor the effect of s 31(1) of the Wills Act 1958 would have been explained to, and understood by, Mr and Mrs Macquire. Although the idea that Graeme might predecease one or both of his parents would have been thought to be unlikely, I consider that Mr and Mrs Macquire would have been content with the outcome that his issue take under their wills in that unlikely event, as they would have considered that Graeme was still of an age when marriage and children were distinct possibilities.313

The arguments advanced for the various proposed wills included that if Ronald had capacity, he would want to benefit his family who had been his close family for decades, and who had benefited him. This was said to be based on both the closeness of the actual relationships, and statements alleged to have been made by Ronald that he wished to leave his house to Heather. Garry asserted that while he was not a blood relative, he was in effect a nephew of Ronald in terms of their actual relationship. His Honour considered the ‘core test’, and determined that the decision of Palmer J in Re Fenwick314 provided the best guidance to the approach that should be taken by the court. His Honour summarised that approach and

concluded with an extract from the part of Re Fenwick that stated that in a ‘lost capacity’ case such as this, the court needed to look to the actual, or ‘reasonably likely’, subjective intention of the incapacitated person.315 He also made the following further comments about the effect of the change of the legislation in Victoria following the decision of the Court of Appeal in Boulton v Sanders:316 Whilst the phrases now used in the Victorian Act require the proposed will to reflect ‘what the intentions of the person would be likely to be’ or ‘what the intentions of the person might reasonably be expected to be’, and are therefore different to the ‘reasonably likely’ wording of the New South Wales Act, I consider Palmer J’s analysis of that wording to be of assistance in construing the alternative phrase in s 26(b). To adopt his Honour’s language, the phrase can mean ‘a fairly good chance that the proposed will reflects what might be the testator’s intentions’, or ‘some reasonable people could

[page 251] think that the proposed will reflects what might be the testator’s intentions’, or ‘some reasonable people could think that there is a fairly good chance that the proposed will reflects what might be the testator’s intentions’.317

It was noted that the only subjective evidence of Ronald’s likely intentions was the evidence of Heather that he wanted to leave his house to her. However, none of the proposed wills reflected that. Furthermore, the evidence indicated that Ronald had lacked testamentary capacity by the time of his son Graeme’s death, and that any statements made by him after that time about giving his home to Heather had to be considered in that context. The alleged statements made by Ronald about the house could not therefore be relied upon as a valid expression of his testamentary intentions. In relation to the argument that the close family relationship could signify a likely intention to benefit those family members, his Honour said as follows: However, even accepting that this relationship was as close as the Saunders witnesses maintained, it is clear that they had little, or no, understanding of the relationship between the Macquires and their granddaughter. This became clear once Nicole’s affidavit and its exhibits were served. At best for the Saunders witnesses, they misread the Macquires’ feelings for their granddaughter. At worst, they presented a completely distorted picture of that relationship. In the circumstances, it is not necessary for me to make any finding on that issue because, even on the most favourable view of the evidence for the Saunders families, I am not satisfied on the balance of probabilities that the fourth proposed will reflects what Mr Macquire’s intentions would be likely to be, or what his intentions might reasonably be expected to be, or

that there is a fairly good chance that it reflects what his intentions might be, or that some reasonable people could think that it reflects what might be his intentions, or that some reasonable people could think that there is a fairly good chance that it reflects what might be his intentions, if he had testamentary capacity after the death of his son and wife. I am not satisfied that he would want to change his will to prevent his granddaughter from inheriting the whole of his estate.318

The relevance of potential family provision claims was also considered. Garry suggested that if Ronald had testamentary capacity and was properly advised, Ronald would have considered potential claims that may be made by members of the Saunders family. This was countered by Nicole, who argued that those family members had no financial need, in contrast to her own poor financial position. His Honour noted that the court takes a different approach to considering such matters on a statutory will application, compared to a family provision application, and concluded that a consideration of the likelihood of family provision applications being made did not alter his view that Garry’s application should be refused. Consideration was also given to whether there was sufficient evidence to justify the making of a new will: … in my opinion, where there is a valid and operative will, an applicant for a statutory will has to make out a case for the court interfering with the existing arrangements. I agree with the statement of Byrne J in Re Fletcher; Ex parte Papaleo, that ‘it is a serious step to make or to modify a will’. As I have said, I am not persuaded that I should do so. I agree with the submission by the defendant’s counsel that the fact the proposed beneficiaries had a good relationship with Mr Macquire and provided him with some level of care, particularly after Graeme’s death, does not mean that Mr Macquire is reasonably likely to have provided for them in his will in preference to his only grandchild receiving the share her father would have taken had he not predeceased his parents.319

[page 252] His Honour found that, even if it had been accepted that Ronald would want to make some provision for the other family members, the evidence of those family members as to his likely intentions was ‘very vague’, including seeking four different versions of the proposed statutory will: In the light of these frequent and continuing changes it seems to me that I can place little, or no, weight on the evidence from the four Saunders witnesses as to what Mr Macquire’s likely intentions were because they really had no idea themselves other than that their families, in one form or other, should receive the major share of the estate.320

This led his Honour to conclude that, even allowing for some flexibility in matters of detail, the fourth proposed will could not meet the core test, and as the role of the court was to rule on the proposed will, not to approve a ‘completely different’ will drafted by the court, the fourth proposed will could not be approved. In relation to the proposal that Nicole’s share be protected from bankruptcy, the rationale advanced by Garry for this was that a competent solicitor would have advised Ronald (if Ronald had testamentary capacity to make a will) that this was ‘a sensible and lawful step to take’. His Honour did not accept that this was necessarily the case, noting that Ronald may have thought that the best outcome for Nicole was to pay out her creditors and bring her bankruptcy to an end. For these various reasons, leave to apply for an order authorising the will was refused. Costs were dealt with in a separate hearing and judgment.321 Nicole sought an order that Garry bear his own costs and pay her costs on a solicitor-client basis, or alternatively on a party-party basis with the difference between the amount of her costs on a solicitor-client basis and on a party-party basis paid from Ronald’s estate. State Trustees sought its costs from Garry on a solicitor-client basis. Garry’s position was that he should bear his own costs, but the costs of Nicole and the State Trustees be paid from the estate. His Honour noted the decision of Byrne J in Hill v Hill (No 2),322 in which no orders were made for the costs of any party, meaning that the parties bore their own respective costs. In that case, the successful plaintiff became the sole beneficiary of the estate, and the Cat Protection Society of Victoria (as a beneficiary in a previous will) lost all of its interest under that will. The statement by Byrne J that the approach taken to costs in testamentary capacity and family provision cases was not helpful in statutory will cases was noted, with apparent approval. Byrne J’s preference was that, where contending parties sought either a benefit from the estate or to protect a benefit from the estate, the ordinary rule for contentious litigation, that costs follow the event, should apply. It was submitted on behalf of Gary that it was proper for Nicole to receive her costs, as a proper contradictor in the proceeding, but that those costs should be paid from Ronald’s estate and not by Garry. Reference was made

to another statement of Byrne J in Hill v Hill (No 2) that parties should not be discouraged from participating in statutory will cases because of the risk that they might have to pay their own costs. It was further argued that this should also mean that unsuccessful plaintiffs should not have costs awarded against them, because there was a public interest in having a proposed testator’s testamentary intentions determined by the court, and that Ronald’s estate was sufficiently large to be able to bear the costs without there being an adverse impact on his security and welfare. [page 253] His Honour did not agree with those submissions, finding that this was not an application that was required to be brought before the court, and that there was no public interest in the litigation. It was relevant that Ronald had a will, and that Garry made a choice to seek to have that existing will replaced by a statutory will that would benefit him and his family members. It was also relevant that Nicole was ‘not merely a contradictor’, but rather was seeking to protect the benefit that she would receive under the existing will. The situation was said to fall squarely within the ‘contending parties’ situation referred to by Byrne J in Hill v Hill (No 2), and by the Court of Appeal in Boulton v Sanders.323 His Honour also noted that the comments of Byrne J referred to above were directed towards potential defendants not being discouraged by costs risk from participating in statutory will cases, and were not directed at plaintiffs, or in particular unsuccessful plaintiffs. In relation to the question of whether the assets of Ronald’s estate should be used to pay costs, his Honour was of the view that any reduction in his assets should be kept to a minimum, even if such assets were more than sufficient to meet Ronald’s needs. A costs order against the estate would effectively result in the successful defendant paying her own costs from the assets she would ultimately inherit from the proposed testator. His Honour concluded as follows: Therefore, I consider that this application should be regarded as adversarial litigation, and that costs should follow the event, that is, that there should be an order that the unsuccessful plaintiff pay the successful defendant’s costs.324

As regards the basis on which Nicole’s costs should be paid, it was submitted on her behalf that the solicitor-client basis was appropriate because Garry had no reasonable basis for bringing the application, particularly after her affidavit was received. His Honour did not accept this. Nor was he persuaded to order that Nicole should be able to recover the balance of her costs, in excess of her costs on a party-party basis, from Ronald’s estate. It was noted that her defence of the application was in her own interests, and that in adversarial litigation, costs orders do not normally result in full recovery. Turning to the costs of the State Trustees as Ronald’s administrator, a complication here was that the State Trustees had never formally been made a party. This was said to be sensible on the part of the State Trustees, to minimise costs by limiting its involvement, in circumstances where Nicole was actively opposing the application. However, his Honour was satisfied that State Trustees was obliged to protect Ronald’s estate from costs orders, and as such, it was appropriate for it to be represented at the directions hearing, the start of the trial and the argument about costs. Had Garry not made the application for a statutory will, those costs (and other incidental costs) would not have been incurred. The outcome was therefore that Garry was ordered to pay Nicole’s costs on a party-party basis, and the costs of State Trustees (as Ronald’s administrator) on a party-party basis. A further order was made that State Trustees be reimbursed from Ronald’s estate for any difference between the party-party costs that Garry was ordered to pay and its costs on a solicitorclient basis. [page 254]

Western Australia In the Will of Doris May Frances Davies325 Lost capacity — making a will — application unopposed 8.52 An application was made for a statutory will to be made, to take account

of a significant change in the circumstances of the proposed testator that had resulted from the sale of a farming property in the Wheatbelt district of Western Australia in 1996. That property had comprised the major asset of her estate at the time that her existing will was made. Partial distributions of the proceeds of the sale of the farm had been made shortly after the sale, among members of the family. A large portion of the balance had been used to purchase a home for the proposed testator and to invest in various forms of shares and securities, creating a significant investment portfolio which provided her with a significant income. The proposed draft will appointed a named executor and provided for a series of gifts to named children of the proposed testator, and for the residuary estate to be divided equally between six beneficiaries. Evidence was presented that the proposed testator’s health had declined, and that from about 2003 onwards she had lacked testamentary capacity, and that it was improbable that capacity would be regained. The application was made by the proposed executor. Each of the other intended beneficiaries and children of the proposed testator were named as defendants. All of those persons entered appearances to the originating summons and consented to the terms of the proposed draft will. An order was made by the Principal Registrar of the court, approving the making of a will in the terms proposed. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

[2011] ACTSC 69, Harper M. At [15]. (2009) 76 NSWLR 22; [2009] NSWSC 530, Palmer J. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. At [245]. At [262]–[265]. [2009] NSWSC 680, Palmer J. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. At [28]. At [32]. At [41]–[46]. At [5]–[6]. At [8]. At [13]–[14]. [2010] NSWSC 357, Ball J. At [15]. At [15].

18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64.

[2010] NSWSC 618, Palmer J. [2010] NSWSC 915, Palmer J. At [5]. [2010] NSWSC 1004, Palmer J. At [3]. At [7]–[8]. At [10]. [2010] NSWSC 1014, Palmer J. [2011] NSWSC 624, Hallen AsJ. (1870) LR 5 QB 549. At [73]–[83]. At [85]–[86]. At [96]–[99]. At [187]–[188]. At [205]. At [100]. [2011] NSWSC 883. (2004) 9 VR 495; [2004] VSCA 112; see 8.47. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. [2011] QSC 98; see 8.22. At [32]. At [38]–[39]. [2012] NSWSC 989, White J. At [7]. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [151], [152] and [161]. At [13]. At [14]. [2012] NSWSC 1281, Ward J. At [13]–[14]. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. At [18]. At [27]. (2012) 7 ASTLR 299; [2012] NSWSC 1541, Lindsay J. At [19] and [21]. At [52]–[59]. At [302]. At [299]. At [308H314]. At [315]–[316]. (1985) 2 NSWLR 65. At [326]. At [331]–[332]. [2013] NSWSC 1550, Black J. (1870) LR 5 QB 549. At [9]. At [13]. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [151]–[152]; see 8.2.

65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80.

[2011] NSWSC 624; see 8.9. At [38]—[39]. At [42]. Information provided by Registrar, Supreme Court of the Northern Territory, 12 August 2013. Unreported, Supreme Court of Queensland, No 11203 of 2007, Daubney J, 18 January 2008. Unreported, Supreme Court of Queensland, No 12325 of 2008, Dutney J, 22 December 2008. [2009] QSC 65, Mullins J. At [19]. At [33]. Unreported, Supreme Court of Queensland, No 7033 of 2009, Applegarth J, 27 August 2009. Unreported, Supreme Court of Queensland, No 10819 of 2009, Mullins J, 30 November 2009. At page 1–3, line 40. At page 1–4, line 20. [2010] QSC 45, M Wilson J. Unreported, Supreme Court of Queensland, No 8794 of 2010, de Jersey CJ, 23 September 2010. At page 1–3, line 30. This extract is reproduced with permission of the Supreme Court of Queensland. 81. [2012] 1 Qd R 319; [2011] QSC 49, Daubney J. 82. At [34]. 83. At [75]. 84. At [80]–[84]. 85. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 86. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 87. At [73]. 88. [2011] QSC 98. 89. At [5]. 90. Unreported, Supreme Court of Queensland, No 384 of 2011, de Jersey CJ, 8 April 2011. 91. (2011) 4 ATSLR 429; [2011] QSC 230, Ann Lyons J. 92. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. 93. At [11]. 94. [2009] QSC 65 at [33]; see 8.17. 95. At [18]. 96. (1870) LR 5 QB 549. 97. [2011] QSC 107. 98. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [130]. 99. [2012] 1 Qd R 319; [2011] QSC 49; see 8.22. 100. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 101. At [79]–[80]. 102. Unreported, Supreme Court of Queensland, No 11730 of 2011, Daubney J, 8 February 2012. 103. At page 1–6, line 40. 104. [2012] QSC 349, Ann Lyons J. The author Richard Williams appeared as counsel for the applicant in this case. 105. Contrast Hausfeld v Hausfeld [2012] NSWSC 989; see 8.10. 106. (2011) 4 ATSLR 429; [2011] QSC 230; see 8.24. 107. At [23]. 108. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 109. At [27]. 110. [2013] QSC 40, Atkinson J.

111. At page 1–3, lines 10 to 40. 112. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 113. At page 1–13, line 1 to page 1–14, line 5. 114. At page 1–15, lines 25 to 50. 115. At page 1–14, lines 30 to 40. 116. At page 1–15, line 50 to page 1–16, line 5. 117. Unreported, Supreme Court of Queensland, No 5309 of 2013, Applegarth J, 13 June 2013. The author Richard Williams appeared as counsel for the applicant in this case. These details are provided by kind permission of Edward’s executor. 118. [2013] QSC 289, Ann Lyons J. The author Richard Williams appeared as counsel for the applicant in this case. 119. Lawrie v Hwang [2012] QSC 422. 120. At [28H29]. 121. At [24]. 122. These extracts are stated at [32]. 123. At [39]. 124. (2011) 4 ATSLR 429; [2011] QSC 230; see 8.24. 125. At [47]. 126. At [48]. 127. [2013] QSC 295, Henry J. 128. [2012] NSWSC 989; see 8.10. 129. [2004] SASC 142, Doyle CJ. 130. At [21]. 131. At [24]. 132. At [27]. 133. (2004) 237 LSJS 23; [2004] SASC 369, Besanko J. 134. At [19]. 135. At [25]. 136. (2007) 98 SASR 500; [2007] SASC 273, Debelle J. 137. At [9]. 138. At [14] onwards. 139. At [16]. 140. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. 141. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 142. At [18]. 143. At [21]. 144. [2001] VSC 135; see 8.43. 145. At [23]. 146. [2000] VSC 304; see 8.42. 147. At [27]–[28]. 148. At [30]. 149. [2009] SASC 3, Gray J. 150. At [17]–[26]. 151. At [26]. 152. At [39]. 153. At [63]–[64]. 154. At [65]. 155. At [68]. 156. At [71]–[72].

157. At [80]. 158. [2009] SASC 288, Gray J. 159. At [16]. 160. At [17]. 161. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [127]. 162. At [11]. 163. At [19]. 164. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. 165. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 166. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. 167. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [172]–[176]. 168. At [22]. 169. At [24]. 170. At [26]. 171. [2009] SASC 315, White J. 172. At [15]. 173. At [28]. 174. At [33]. 175. At [37]. 176. At [51]. 177. [2010] Ch 33; [2009] 2 All ER 1198; see 1.9. 178. At [54]. 179. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 180. At [55]. 181. [2009] SASC 345, Gray J. 182. At [16]. 183. At [28]. 184. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 185. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. 186. (2002) 4 VR 229; [2002] VSC 98; see 8.45. 187. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. 188. At [31]. 189. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 190. At [34]. 191. At [34]. 192. Re Grace Geraldine Brown (dec’d) (2010) 106 SASR 516; [2010] SASC 90, Gray J. 193. At [17]. 194. (2012) 7 ASTLR 584; [2012] SASC 236, Gray J. 195. At [11]–[12]. 196. At [14]. 197. At [18]. 198. At [26]–[27]. 199. At [30]. 200. At [57]. 201. At [63]. 202. [2013] SASC 98, Stanley J. 203. [1982] Ch 237; [1982] 2 All ER 37; see 1.4.

204. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 205. Re Fenwick at [157]. 206. At [56]. 207. At [74]–[80]. 208. At [82]. 209. Re Manley [2013] SASC 134. 210. (2007) 98 SASR 500; [2007] SASC 273; see 8.33. 211. [2005] TASGAB 1. 212. At [10]. 213. At [16]. 214. At [28]. 215. At [30]. 216. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. 217. Secretary of the Department of Human Services v Anette Nancarrow and Lee Nancarrow [2004] VSC 450. 218. [1991] 3 All ER 866 at 870. 219. At [32]. 220. At [33]. 221. At [1]. 222. [2010] TASGAB 12. 223. At [34]. 224. [2000] VSC 304, Gillard J. 225. At [22]. 226. At [30]. 227. At [50]. 228. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 229. At [64]–[67]. 230. At [97]. 231. At [100]. 232. At [103]. 233. [2001] VSC 83, Byrne J. 234. At [4]. 235. At [6]. 236. At [8]. 237. At [10]. 238. [2001] VSC 135. 239. [2001] VSC 109, Byrne J. 240. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 241. At [20]. 242. At [22]. 243. (2002) 4 VR 229; [2002] VSC 98, Mandie J. 244. At [9]. 245. Hayden v State Trustees Ltd [2002] VSCA 11. 246. At [29]. 247. At [34]. 248. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 249. [2000] VSC 304; see 8.42. 250. At [36]. 251. At [39].

252. At [41]. 253. At [45]–[46]. 254. [2003] VSC 21, Ashley J. 255. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. 256. At [15]. 257. At [16]. 258. At [17]. 259. [2003] VSC 405. 260. At [13]–[14]. 261. [2000] VSC 304; see 8.42. 262. [2001] VSC 83; see 8.43. 263. At [30]. 264. At [32]. 265. Boulton v Sanders (No 2) [2003] VSC 409. 266. At [4]. 267. At [9]–[10]. 268. Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112. 269. At [10]–[17]. 270. At [18]–[26]. 271. At [27]–[35]. 272. At [36]–[39]. 273. At [40]–[54]. 274. At [55]–[85]. 275. [1992] 1 FLR 51; [1991] 3 All ER 866; see 1.6. 276. [1991] 3 All ER 866 at 870. 277. [1991] 3 All ER 866 at 870. 278. State Trustees v Hayden (2002) 4 VR 229; [2002] VSC 98; see 8.45. 279. At [109]–[112]. 280. At [117]. 281. At [119]. 282. At [133]. 283. [1982] Ch 237; [1982] 2 All ER 37; see 1.4. 284. [1963] 1 WLR 329. 285. At [146]–[149]. 286. At [151]. 287. At [152]–[153]. 288. [2005] VSC 326, Mandie J. 289. At [21]. 290. Footnote 5 to the judgment. 291. [2005] VSC 490, Hansen J. 292. At [20]. 293. At [164H170]. 294. Hill v Hill [2001] VSC 83 at [8]; see 8.43. 295. At [180]. 296. At [200]–[203]. 297. Plowright v Burge [2006] VSC 69. 298. At [7]. 299. At [8]. 300. Boulton v Sanders (No 2) [2003] VSC 409; Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112; see 8.47.

301. At [11]. 302. At [13]. 303. [2011] VSC 45, Bell J. 304. At [11]. 305. At [12]. 306. At [17]. 307. [2012] VSC 574, Habersberger J. 308. Wills Act 1958 (Vic) s 31(1). 309. (2004) 9 VR 495; [2004] VSCA 112; see 1.21 and 8.47. 310. Boulton v Sanders At [11]. 311. At [9]. 312. At [19]. 313. At [63]. 314. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 8.2. 315. The approach taken by Palmer J in Re Fenwick is summarised at 1.22. 316. (2004) 9 VR 495; [2004] VSCA 112; see 8.47. 317. At [97]. 318. At [109]–[110]. 319. At [118]. 320. At [121]. 321. Saunders v Pedemont (No 2) [2012] VSC 601. 322. [2001] VSC 135; see 8.43. 323. (2004) 9 VR 495; [2004] VSCA 112; see 8.47. 324. At [15]. 325. Unreported, Supreme Court of Western Australia, CIV 3332 of 2011. The authors are grateful to the Hon Justice E M Heenan of the Supreme Court of Western Australia for providing details of this case.

[page 255]

CHAPTER 9 Extracts from Legislation and Procedural Rules Australian Capital Territory

9.1

Wills Act 1968 (ACT) Part 3A New South Wales

9.2

Succession Act 2006 (NSW) Chapter 2, Part 2.2, Division 2 Northern Territory

9.3

Wills Act (NT) Part 3, Division 2 Supreme Court Rules (NT) regs 88.05B and 88.05D Queensland

9.4

Succession Act 1981 (Qld) Part 2, Division 4, Subdivision 3 South Australia

9.5

Wills Act 1936 (SA) Part 2, Division 2 Probate Rules 2004 (SA) r 98 Tasmania Wills Act 2008 (Tas) Part 3, Divisions 2 and 3 Supreme Court Rules 2000 (Tas) r 803

9.6

9.7

Victoria Wills Act 1997 (Vic) Part 3, Division 2 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) Order 17

9.8

Western Australia Wills Act 1970 (WA) Part XI, Division 1 Supreme Court Consolidated Practice Directions 2009 (WA) 9.3

9.9

England and Wales Mental Health Act 1959 ss 101, 102(1) and 103(1) Mental Capacity Act 2005 ss 1 and 4

[page 256]

Australian Capital Territory 9.1 The relevant legislation in the Australian Capital Territory is as follows:

Wills Act 1968 (ACT) Part 3A Part 3A

Court authorised wills testamentary capacity

for

people

without

16A Court may authorise will to be made, altered or revoked for person without testamentary capacity (1) The Supreme Court may, on application, make an order authorising — (a) a will to be made or altered, in the terms approved by the court, for a person who does not have testamentary capacity; or (b) a will, or part of a will, to be revoked for a person who does not have testamentary capacity. Note A person may only make an application for an order if the person has obtained the leave of the Court — see s 16B. (2) An order under this section may authorise — (a) the making or alteration of a will that deals with the whole or part of the property

of a person who does not have testamentary capacity; or (b) the alteration of part of the will of the person. (3) The Supreme Court must not make an order under this section unless the person for whom the order is sought is alive when the order is made. (4) The Supreme Court may make an order under this section for a child who does not have testamentary capacity. (5) In making an order under this section, the Supreme Court may give any necessary related orders or directions. (6) A will that is authorised to be made or altered by an order under this section must be deposited with the registrar under section 32. (7) A failure to comply with subsection (6) does not affect the validity of the will. 16B Information required in support of application for leave (1) A person may apply for an order under section 16A only with the Supreme Court’s leave. (2) On an application for leave a person must, unless the Supreme Court otherwise directs, give the court the following information: (a) a written statement of the general nature of the application and the reasons for making it; (b) satisfactory evidence that the person for whom the order is sought does not have testamentary capacity; (c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person for whom the order is sought; (d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the court’s approval; (e) any evidence available to the applicant of the wishes of the person for whom the order is sought; (f) any evidence available to the applicant of the likelihood of the person for whom the order is sought acquiring or regaining testamentary capacity; (g) any evidence available to the applicant of the terms of any will previously made by the person for whom the order is sought; (h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any people who might be entitled to claim on the intestacy of the person for whom the order is sought; (i) any evidence available to the applicant of the likelihood of an application being made under the Family Provision Act 1969 in relation to the property of the person for whom the order is sought;

[page 257] (j)

any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person for whom the order is sought; (k) any evidence available to the applicant of a gift for a charitable or other purpose that the person for whom the order is sought might reasonably be expected to make by will; (l) any other facts of which the applicant is aware that are relevant to the

application. 16C Hearing of application for leave (1) On hearing an application for leave the Supreme Court may — (a) give leave and allow the application for leave to proceed as an application for an order under section 16A (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity); and (b) if satisfied of the matters set out in section 16E (Court must be satisfied about certain matters), make the order. (2) Without limiting the action the Supreme Court may take in hearing an application for leave, the court may revise the terms of any draft of the proposed will, alteration or revocation for which the court’s approval is sought. 16D Hearing of application for order In considering an application for an order under section 16A (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity), the Supreme Court — (a) may have regard to any information given to the court under section 16B (Information required in support of application for leave); and (b) may inform itself of any other matter in any manner it sees fit; and (c) is not bound by the rules of evidence. 16E Court must be satisfied about certain matters The Supreme Court must refuse leave to make an application for an order under section 16A (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity) unless the court is satisfied that — (a) there is reason to believe that the person for whom the order is sought is, or is reasonably likely to be, incapable of making a will; and (b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity; and (c) it is or may be appropriate for the order to be made; and (d) the applicant for leave is an appropriate person to make the application; and (e) adequate steps have been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from the estate of the person for whom the order is sought. 16F Execution of will made under order (1) A will that is made or altered by an order under section 16A (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity) is properly executed if — (a) it is in writing; and (b) it is signed by the registrar and sealed with the seal of the Supreme Court. (2) A will may only be signed by the registrar if the person in relation to whom the order is made is alive. 16G Retention of will (1) Despite section 32 (4), a will deposited with the registrar in accordance with this part must not be delivered to the person for whom it was made unless —

[page 258]

(a) the Supreme Court has made an order under section 16A (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity) authorising the revocation of the whole of the will; or (b) the person has acquired or regained testamentary capacity. (2) If the registrar is given a copy of an order made under section 16A authorising the revocation of the whole of a will, the registrar must— (a) enter the particulars of the order in the index; and (b) with the permission of a judge of the Supreme Court, cause the will to be destroyed; and (c) enter the date when the will was destroyed in the index. 16H Separate representation of person without testamentary capacity If it appears to the Supreme Court that the person who does not have testamentary capacity should be separately represented in proceedings under this part, the court may — (a) order that the person be separately represented; and (b) make any orders it considers necessary to secure that representation. 16I Recognition of statutory wills (1) A statutory will made in accordance with the law of the place where the deceased person was resident at the time of the execution of the will is to be regarded as a valid will of the deceased person. (2) In this section: statutory will means a will executed in accordance with a law of the Territory, or another place for a person who, at the time of execution, did not have testamentary capacity.

New South Wales 9.2 The relevant legislation in New South Wales is as follows:

Succession Act 2006 (NSW) Chapter 2, Part 2.2 Division 2 18

Court authorised wills for persons who do not have testamentary capacity

Court may authorise a will to be made, altered or revoked for a person without testamentary capacity (1) The Court may, on application by any person, make an order authorising: (a) a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or (b) a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity. Note. A person may only make an application for an order if the person has obtained the leave of the Court — see section 19. (2) An order under this section may authorise: (a) the making or alteration of a will that deals with the whole or part of the property of the person who lacks testamentary capacity, or (b) the alteration of part only of the will of the person.

(3) The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made. (4) The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity. (5) In making an order, the Court may give any necessary related orders or directions.

[page 259] Note. The power of the Court to make orders includes a power to make orders on such terms and conditions as the Court thinks fit — see section 86 of the Civil Procedure Act 2005. The Court also has extensive powers to make directions under sections 61 and 62 of that Act.

19

(6) A will that is authorised to be made or altered by an order under this section must be deposited with the Registrar under Part 2.5. (7) A failure to comply with subsection (6) does not affect the validity of the will. Information required in support of application for leave (1) A person must obtain the leave of the Court to make an application to the Court for an order under section 18. (2) In applying for leave, the person must (unless the Court otherwise directs) give the Court the following information: (a) a written statement of the general nature of the application and the reasons for making it, (b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought, (c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought, (d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court’s approval, (e) any evidence available to the applicant of the person’s wishes, (f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity, (g) any evidence available to the applicant of the terms of any will previously made by the person, (h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person, (i) any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person, (j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person, (k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will, (l) any other facts of which the applicant is aware that are relevant to the application.

20

Hearing of application for leave

21

(1) On hearing an application for leave the Court may: (a) give leave and allow the application for leave to proceed as an application for an order under section 18, and (b) if satisfied of the matters set out in section 22, make the order. (2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court’s approval is sought. Hearing an application for an order In considering an application for an order under section 18, the Court: (a) may have regard to any information given to the Court in support of the application under section 19, and (b) may inform itself of any other matter in any manner it sees fit, and (c) is not bound by the rules of evidence.

[page 260] 22

Court must be satisfied about certain matters

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The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that: (a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and (b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and (c) it is or may be appropriate for the order to be made, and (d) the applicant for leave is an appropriate person to make the application, and (e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought. Execution of will made under order

24

(1) A will that is made or altered by an order under section 18 is properly executed if: (a) it is in writing, and (b) it is signed by the Registrar and sealed with the seal of the Court. (2) A will may only be signed by the Registrar if the person in relation to whom the order was made is alive. Retention of will

25

(1) Despite section 52 (Delivery of wills by Registrar), a will deposited with the Registrar in accordance with this Part may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless: (a) the Court has made an order under section 18 authorising the revocation of the whole of the will, or (b) the person has acquired or regained testamentary capacity. (2) On being presented with a copy of an order under section 18 authorising the revocation of the whole of a will, the Registrar must withdraw the will from deposit. Separate representation of person lacking testamentary capacity

26

If it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings under this Division, the Court may order that the person be separately represented, and may also make such orders as it considers necessary to secure that representation. Recognition of statutory wills (1) A statutory will made according to the law of the place where the deceased was resident at the time of the execution of the will is to be regarded as a valid will of the deceased. (2) In this section: statutory will means a will executed by virtue of a provision of an Act of New South Wales or other place on behalf of a person who, at the time of execution, lacked testamentary capacity.

Northern Territory 9.3 The relevant legislation and procedural rules in the Northern Territory are as follows:

Wills Act (NT) Part 3 Division 2 Wills for persons without testamentary capacity 19 Court may make certain orders regarding persons without testamentary capacity (1) The Court may, on application, make an order under this Division authorising:

[page 261]

20

(a) the making or alteration of a will in the terms approved by the Court; or (b) the revocation of the whole or a part of a will, for and on behalf of a person who lacks testamentary capacity. (2) An order referred to in subsection (1)(a) may authorise: (a) the making or alteration of a will that deals with the whole or part only of the property of the person; or (b) the alteration of part only of the will of the person. (3) The Court must not make an order under this Division unless the person in respect of whom the application is made is alive when the order is made. (4) The Court may make an order under this Division in respect of a minor. Leave of Court is required to make application (1) A person must obtain the leave of the Court to make an application to the Court for an order under this Division. (2) In applying for the leave of the Court, the person must file at the Court: (a) a written statement of the general nature of the application for the order and the reasons for making it; (b) an estimate, to the extent that the person is aware, of the size and character of the

21

estate of the person in respect of whom the application is proposed to be made (the proposed testator); (c) an initial draft of the proposed will, alteration or revocation to be authorised by the order; (d) evidence, to the extent that it is available, relating to the wishes of the proposed testator; (e) evidence of the likelihood of the proposed testator acquiring or regaining capacity to make a will at any future time; (f) a will or a copy of a will of the proposed testator that is in the person’s possession or any details known to the person of a will of the proposed testator; (g) evidence of the interests, to the extent that they are known to the person or can be discovered with reasonable diligence, of a person who would be entitled to receive a part of the estate of the proposed testator if he or she were to die intestate; (h) evidence of any facts, to the extent that they are known to the person or can be discovered with reasonable diligence, indicating the likelihood of an application relating to the proposed testator being made under the Family Provision Act; (j) evidence of the circumstances, to the extent that they are known to the person or can be discovered with reasonable diligence, of a person for whom the proposed testator might reasonably be expected to make provision under a will; (k) a reference to any gift for a body, whether charitable or otherwise, or for a charitable purpose that the proposed testator might reasonably be expected to give or make by will; and (m) any other facts that the applicant considers to be relevant to the application as the Court requires. Court must be satisfied as to certain matters The Court must refuse leave to make an application for an order under this Division unless the Court is satisfied that: (a) there is reason to believe that the proposed testator is or may be incapable of making a will; (b) the proposed will or alteration or revocation of a will is or might be one that would have been made by the proposed testator if he or she had testamentary capacity; (c) it is or may be appropriate for an order authorising the making, alteration or revocation of a will to be made for the proposed testator; (d) the applicant is an appropriate person to make the application; and

[page 262]

22

(e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the making of the application, including persons who have reason to expect a gift or benefit from the estate of the proposed testator. Orders Court may make on application for leave On hearing an application for leave to make an application for an order under this Division, the Court may: (a) refuse the application; (b) adjourn the application;

23

(c) give directions, including directions about the attendance of a person as a witness and, if it considers appropriate, the attendance of the proposed testator; (d) revise the terms of any initial draft of the proposed will, alteration or revocation provided to the Court; (e) grant the application on the terms it considers just; or (f) if it is satisfied of the propriety of the application: (i) allow the application for leave to proceed as an application for an order under this Division authorising the making, alteration or revocation of a will; and (ii) allow the application for an order and make an order in accordance with sections 19 and 23 authorising the making, alteration or revocation of a will, as the case requires. Application for authorisation of making etc. of will

24

(1) In considering an application for an order under this Division authorising the making, alteration or revocation of a will, the Court: (a) may have regard to any information given to the Court in support of an application for leave to make the application; (b) may inform itself on any matter in the manner it considers fit; and (c) is not bound by the rules of evidence. (2) On hearing the application, the Court may, after considering the outcome of the application for leave to make the application and any further material or evidence it requires: (a) refuse the application; or (b) grant the application subject to the terms and conditions it considers just. Execution of will

25

A will or instrument altering or revoking a will pursuant to an order under this Division is to be signed by the Registrar and sealed with the seal of the Court. Retention of will or instrument

26

(1) A will or instrument altering or revoking a will pursuant to an order under this Division must be retained by a prescribed person and, on being retained by a prescribed person, is to be taken to have been deposited with the prescribed person in accordance with Part 6. (2) Despite section 51, a will referred to in subsection (1) may not be withdrawn from deposit with the prescribed person by or on behalf of the person on whose behalf it was made unless: (a) the Court makes an order under this Division authorising the revocation of the will; or (b) the person acquires or regains testamentary capacity. (3) On being presented a copy of an order referred to in subsection (2)(a), the prescribed person must comply with the order. Recognition of statutory wills (1) In this section, statutory will means a will executed by virtue of a provision of or under an Act of the Territory or another place on behalf of a person who, at the time of execution, lacked testamentary capacity. (2) A statutory will made in accordance with the law in force in the place where the deceased was residing at the time of execution of the will is a valid will of the deceased.

[page 263]

Supreme Court Rules (NT) regs 88.05B and 88.05D 88.05B Application for leave to apply for order regarding will of person without testamentary capacity (1) An application under section 20 of the Wills Act for leave to apply for an order authorising the making or altering of a will, or the revoking of the whole or a part of a will, for and on behalf of a person who lacks testamentary capacity is to be made by originating motion in accordance with Form 5D. (2) An application referred to in subrule (1) is to be supported by an affidavit by the applicant that specifies the information, and has annexed to it the documents, required by the Court under section 20(2) of the Wills Act. (3) When the application for leave first comes before the Court, the Court must — (a) consider who are the persons who have reason to expect a gift or benefit from the estate of the proposed testator or who otherwise have a legitimate interest in the making of the application; and (b) give the directions the Court considers appropriate to ensure that adequate steps are taken to allow those persons representation at the hearing of application. (4) If the Court grants the application for leave, the application is to be taken to be, and is to proceed as if it were, an application for the order for which the Court granted the leave.

88.05D Application under section 18, 20 or 27 of Wills Act to be heard by Judge An application under section 18, 20 or 27 of the Wills Act is to be heard by the Court constituted by a Judge.

Queensland 9.4 The relevant legislation in Queensland is as follows:

Succession Act 1981 (Qld) Part 2, Division 4 Subdivision 3 Persons without testamentary capacity 21 Court may authorise a will to be made, altered or revoked for person without testamentary capacity (1) The court may, on application, make an order authorising — (a) a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or (b) a will or part of a will to be revoked on behalf of a person without testamentary capacity. (2) The court may make the order only if —

(3) (4) (5)

(6) (7)

the person in relation to whom the order is sought lacks testamentary capacity; (a) and (b) the person is alive when the order is made; and (c) the court has approved the proposed will, alteration or revocation. For the order, the court may make or give any necessary related orders or directions. The court may make the order on the conditions the court considers appropriate. The court may order that costs in relation to either or both of the following be paid out of the person’s assets — (a) an application for an order under this section; (b) an application for leave under section 22. To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property. In this section — person without testamentary capacity includes a minor.

[page 264] 22

Leave to apply for s 21 order

23

(1) A person may apply for an order under section 21 only with the court’s leave. (2) The court may give leave on the conditions the court considers appropriate. (3) The court may hear an application for an order under section 21 with or immediately after the application for leave to make the application. Information required by court in support of application for leave On the hearing of an application for leave under section 22, the applicant must give the court the following information, unless the court directs otherwise — (a) a written statement of the general nature of the application to be made by the applicant under section 21 and the reasons for making it; (b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 21 is sought; (c) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the likelihood of the person acquiring or regaining testamentary capacity; (d) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the person’s estate; (e) a draft of the proposed will, alteration or revocation in relation to which the order is sought; (f) any evidence available to the applicant of the person’s wishes; (g) any evidence available to the applicant of the terms of any will previously made by the person; (h) any evidence available to the applicant of the likelihood of an application being made under section 41 in relation to the person; (i) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to give by will; (j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of a person for whom provision might reasonably be expected to be made by a will by the person in relation to whom the order is sought; (k) any evidence available to the applicant, or that can be discovered with reasonable

24

diligence, of any persons who might be entitled to claim on intestacy; (l) any other facts of which the applicant is aware that are relevant to the application. Matters court must be satisfied of before giving leave

25

A court may give leave under section 22 only if the court is satisfied of the following matters — (a) the applicant for leave is an appropriate person to make the application; (b) adequate steps have been taken to allow representation of all persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom an order under section 21 is sought; (c) there are reasonable grounds for believing that the person does not have testamentary capacity; (d) the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity; (e) it is or may be appropriate for an order to be made under section 21 in relation to the person. Hearing an application for leave or for an order On the hearing of an application for leave under section 22 or for an order under section 21, the court — (a) may have regard to any information given to the court under section 23; and (b) may inform itself of any other matter relating to the application in any way it considers appropriate; and (c) is not bound by the rules of evidence.

[page 265] 26

Execution of will or other instrument made under order (1) A will or other instrument made under an order under section 21 is properly executed if — (a) it is in writing; and (b) it is signed by the registrar and sealed with the seal of the court. (2) A will or other instrument made under an order under section 21 may only be signed by the registrar if the person in relation to whom the order was made is alive. Note — For the holding of the will or other instrument by the registrar, see subdivision 4.

27

Validity of will or other instrument made under order (1) A will made under an order under section 21 has the same effect for all purposes as if — (a) the person without testamentary capacity were capable of making a valid will; and (b) the person executed the will under section 10. (2) An instrument, revoking a will or part of a will, made under an order under section 21 has the same effect for all purposes as if — (a) the person were capable of validly revoking a will or part of a will; and (b) the person executed the instrument under section 13(d)(ii).

28

(3) An instrument, altering a will, made under an order under section 21 has the same effect for all purposes as if — (a) the person were capable of making a valid alteration of a will; and (b) the person executed the instrument under section 16(1)(a). Relationship with Guardianship and Administration Act 2000 and Powers of Attorney Act 1998 Nothing in the Guardianship and Administration Act 2000 or the Powers of Attorney Act 1998 prevents a person from making an application for an order under section 21 or for leave under section 22.

Subdivision 4 Particular wills held by registrar 29 Registrar to hold will or other instrument made under order under s 19

30

(1) A will or other instrument made under an order under section 19 must be held by the registrar. (2) The registrar may stop holding the will or other instrument only if — (a) the testator is at least 18 years and has testamentary capacity; or (b) the court makes an order — (i) under section 19 authorising the minor to revoke the will; or (ii) under section 21 authorising the will to be revoked; or (c) the will or other instrument is given to a person under section 32. (3) A failure to comply with subsection (1) or (2) does not affect the validity of the will or other instrument. Registrar to hold will or other instrument made under order under s 21 (1) A will or other instrument made under an order under section 21 must be held by the registrar. (2) The registrar may stop holding the will or other instrument only if — (a) the person on whose behalf the will or other instrument has been made (the relevant person) has acquired or regained testamentary capacity; or (b) the court makes an order — (i) under section 19 authorising the relevant person to revoke the will; or (ii) under section 21 authorising the will to be revoked; or (c) the will or other instrument is given to a person under section 32. (3) A failure to comply with subsection (1) or (2) does not affect the validity of the will or other instrument.

[page 266] 31

Envelope required for will held by registrar (1) A will or other instrument held by the registrar under section 29 or 30 must be in a sealed envelope that has written on it — (a) the name and address of the minor or other person without testamentary capacity as they appear on the will or other instrument; and (b) the name and address, as they appear on the will, of any executor; and (c) the date of the will or other instrument; and (d) for a will or other instrument held under section 30 — the name of the person who applied for the order under section 21.

32

The registrar may examine the will or other instrument to enable the registrar to (2) comply with this subdivision. Delivery of will or other instrument if testator has died (1) This section applies if — (a) a will or other instrument is held by the registrar under section 29 or 30; and (b) the minor or other person without testamentary capacity has died. (2) An executor named in the will, an executor by representation or a person entitled to apply for letters of administration with the will, may apply in writing to the registrar to be given the will or other instrument. (3) On receiving the application, the registrar must give the will or other instrument to — (a) the applicant; or (b) any legal practitioner or trustee company nominated by the applicant; or (c) the public trustee, if nominated by the applicant. (4) If there is doubt about the person to whom the will or other instrument should be given, the registrar or anyone else may apply to the court for directions. (5) The registrar must make an accurate copy of each will or other instrument given to a person under subsection (3) and hold the copy. (6) In this section — trustee company see the Trustee Companies Act 1968, section 4.

South Australia 9.5 The relevant legislation and procedural rules in South Australia are as follows:

Wills Act 1936 (SA) Part 2 Division 2 Testamentary capacity 5 Will of minor [not reproduced] 6 Will of minor pursuant to leave of Court [not reproduced] 7 Will of person lacking testamentary capacity pursuant to permission of court (1) The Court may, on application by any person made with the permission of the Court, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of a will, on behalf of a person who lacks testamentary capacity. (2) An authorisation under this section may be granted on such conditions as the Court thinks fit. (3) Before making an order under this section, the Court must be satisfied that — (a) the person lacks testamentary capacity; and (b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and (c) it is reasonable in all the circumstances that the order should be made.

[page 267] (4) In considering an application for an order under this section, the Court must take into account the following matters: (a) any evidence relating to the wishes of the person; (b) the likelihood of the person acquiring or regaining testamentary capacity; (c) the terms of any will previously made by the person; (d) the interests of — (i) the beneficiaries under any will previously made by the person; (ii) any person who would be entitled to receive any part of the estate of the person if the person were to die intestate; (iii) any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die; (iv) any other person who has cared for or provided emotional support to the person; (e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will; (f) the likely size of the estate; (g) any other matter that the Court considers to be relevant. (5) An order may be made under this section in relation to a minor. (6) The Court is not bound by rules of evidence in proceedings under this section. (7) The following persons are entitled to appear and be heard at proceedings under this section: (a) the person in relation to whom the order is proposed to be made; (b) a legal practitioner representing the person or, with the permission of the Court, some other person representing the person; (c) the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993; (d) the person’s administrator, if one has been appointed under the Guardianship and Administration Act 1993; (e) the person’s guardian or enduring guardian, if one has been appointed under the Guardianship and Administration Act 1993; (f) the person’s manager, if one has been appointed under the Aged and Infirm Persons’ Property Act 1993; (g) the person’s attorney, if one has been appointed under an enduring power of attorney; (h) any other person who has, in the opinion of the Court, a proper interest in the matter. (8) In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit. (9) A will or instrument altering or revoking a will made pursuant to an order under this section must be executed as follows: (a) it must be signed by the Registrar; and (b) it must be sealed with the seal of the Court. (10) The will or instrument altering or revoking a will must be retained by the Registrar and will be taken to have been deposited with the Registrar under section 13 of the Administration and Probate Act 1919. (11) The will may not be withdrawn from deposit with the Registrar by or on behalf of the

person on whose behalf it was made unless the Court has made an order under this section authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order) or the person has acquired or regained testamentary capacity. (12) In this section — testamentary capacity means the capacity to make a will.1 Note — 1 The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.

[page 268]

Probate Rules 2004 (SA) r 98 Will for person lacking testamentary capacity pursuant to permission of Court

98.01 “Proposed testator” under Rule 98 means a person lacking testamentary capacity who is the subject of an application under section 7 of the Wills Act, 1936. 98.02 Every application under section 7 of the Wills Act 1936 shall be heard by a Judge in Chambers unless the Judge otherwise directs. 98.03 An application under section 7 of the Wills Act,1 936 for an order authorising the making or alteration or revocation of a will on behalf of a proposed testator must include an application for permission to apply for such order and shall be made by inter partes summons in the Form No. 33 modification (3) and the applicant must be described as plaintiff and the proposed testator as defendant. 98.04 (1) The application for permission to apply shall be heard by a Judge in Chambers without notice to any other party or upon such notice to other interested persons as the Court or Judge may direct and must be supported by an affidavit setting out the grounds on which such permission is sought and any facts necessary to substantiate those grounds. (2) Where all necessary parties are represented on the hearing for permission to apply the Judge may treat that hearing as the substantive application and determine the summons accordingly.

98.05 Except in a case to which Rule 98.04(2) applies the summons must be served on the defendant personally and an affidavit of service filed before the application is set down for hearing and the affidavit of service must state the means by which it was established that the person served was the proposed testator and what such person said or did when served: Provided that the Court or the Registrar may in special circumstances dispense with any of the requirements of this Rule. 98.06 Where no appearance to the summons has been entered on behalf of the proposed testator the applicant must before proceeding with the summons obtain an order from the Court or the Registrar appointing a guardian ad litem for the proposed testator. 98.07 In any proceeding to which the proposed testator has entered an appearance the Court or the Registrar may, if it is in the interest of the proposed testator to do so, appoint a guardian ad litem for the proposed testator, and may remove or substitute any such guardian. 98.08 Subject to these Rules upon permission being granted under Rule 98.04(1) notice of the application shall be given to: (1) such of the persons mentioned in section 7(7) of the Wills Act, 1936; and (2) such other persons who appear to the Court or the Registrar to be interested as the Court or the Registrar may direct. 98.09 Unless the Court or the Registrar shall otherwise direct the time limited for filing an appearance by any person served with the summons or notice of the application shall be in accordance with Rule 8 of the Supreme Court Rules. 98.10 Except where these Rules otherwise provide, the substantive application must be supported by an affidavit setting out all the facts on which the applicant relies, including: (a) The full name, residential address and age of the proposed testator. (b) Evidence that the proposed testator lacks testamentary capacity.

(c) The full name and address and details of the appointment of the proposed testator’s administrator, guardian or enduring guardian, if one has been appointed under the Guardianship and Administration Act 1993, or the proposed testator’s manager, if one has been appointed under the Aged and Infirm Persons’ Property Act 1940, or the proposed testator’s attorney if one has been appointed under an enduring power of attorney and where any such appointment has been made a sealed copy of the order or a certified copy of the enduring power of attorney must be exhibited to the affidavit: Provided that if the applicant is not able to exhibit a copy of the enduring power of attorney, then it must be so stated in his or her affidavit. [page 269] (d) Full details relating to all of the matters referred to in sub-paragraphs (a) to (h) inclusive of section 7(4) of the Wills Act 1936. (e) The terms of any will, codicil, draft of a will or codicil, written instructions for the same or any other document of a testamentary nature made by or under the direction of the proposed testator of which the applicant has knowledge, and whether the applicant has or has not such documents in his or her possession and where any document is not in the applicant’s possession, the name and address of the person in whose possession it is, or is believed to be, or if the applicant does not know that information it should be so stated: Provided that every such document in the custody or control of the applicant must be exhibited to the affidavit. (f) Evidence in the Form No. 34 that the proposed executor or executors consent to act. (g) The reasons why in all the circumstances the applicant considers that the order should be made.

98.11 The evidence of a legally qualified medical practitioner in an application under section 7 of the Wills Act 1936 may be given by a report signed by the medical practitioner which is duly exhibited to an affidavit sworn by the applicant or the applicant’s solicitor who must depose to the fact that he or she has received the report in relation to the proceedings: Provided that the Court or a Judge may at the request of any other party, or may of its or the Judge’s own volition, decline to receive the evidence of a medical practitioner adduced in such

manner and may require such evidence to be proved in such way as the Court or the Judge thinks fit. 98.12 (1) Notwithstanding Rule 98.10, the Court or a Judge may accept and act upon a statement of facts or such other evidence, whether oral or written, as the Court or the Judge considers sufficient, although not given on oath. (2) A statement of facts or other written evidence under Rule 98.12(1) must: (a) be drawn up in numbered paragraphs and dated; (b) set out the matters specified in paragraphs (a) to (f) of Rule 98.10; and (c) be signed by the person by whom it is made.

Tasmania 9.6 The relevant legislation and procedural rules in Tasmania are as follows:

Wills Act 2008 (Tas) Part 3 Division 2

Power of Court to authorise the making of statutory will, or alteration or revocation of a will for persons lacking testamentary capacity

21

Interpretation

22

In this Division — proposed testator means the person on whose behalf authorisation for the making of a will or of any alteration or revocation of a will is sought under this Division. Court may make certain orders (1) The Court may, on application by any person make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of the whole or any part of a will, on behalf of a person who lacks testamentary capacity. (2) The Court may authorise the making or alteration of a will that deals with the whole of the property of a person, the making or alteration of a will that deals with part only of the property of a person or the alteration of part only of any will. (3) The Court is not to make an order under this Division unless the person on whose behalf approval for the making of a will is sought is alive when the order is made.

[page 270]

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(4) The Court may make an order under this Division in respect of a minor who lacks testamentary capacity by reason of disability or injury. (5) The Court may make an order under this Division even if the will was made before the commencement of this Act. Leave of Court required to make application

24

(1) The leave of the Court must be obtained before an application for an order under this Division is made. (2) In applying for leave to make an application for an order under this Division, the applicant for leave must, subject to the Court’s discretion, furnish to the Court — (a) a written statement of the general nature of the application and the reasons for making it; and (b) satisfactory evidence of the lack of testamentary capacity of the proposed testator; and (c) an estimate, so far as the applicant is aware of it, of the size and character of the estate of the proposed testator; and (d) an initial draft of the proposed will, alteration or revocation for which the applicant is seeking the Court’s approval; and (e) any evidence, so far as it is available, relating to the wishes of the proposed testator; and (f) evidence of the likelihood of the proposed testator acquiring or regaining capacity to make a will at any future time; and (g) any will, or any copy of any will, in the possession of the applicant, or details known to the applicant of any will, of the proposed testator; and (h) any evidence of the interests, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person who would be entitled to receive any part of the estate of the proposed testator if the proposed testator were to die intestate; and (i) any evidence of any facts so far as they are known to the applicant, or can be discovered with reasonable diligence, indicating the likelihood of an application being made under the Testator’s Family Maintenance Act 1912; and (j) any evidence of the circumstances, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person for whom the proposed testator might reasonably be expected to make provision under a will; and (k) a reference to any disposition for a body, whether charitable or not, or for a charitable purpose that the proposed testator might reasonably be expected to give or make by will; and (l) any other facts that the applicant considers to be relevant to the application. Court must be satisfied as to certain matters The Court must refuse leave to make an application for an order under this Division unless the Court is satisfied that — (a) the applicant is an appropriate person to make an application; and (b) there is reason to believe that the proposed testator is or may be incapable of making a will; and (c) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a disposition or benefit from the estate of the proposed testator; and (d) it is or may be appropriate for an order authorising the making, alteration or revocation of a will to be made for the proposed testator; and

25

(e) the proposed will, alteration or revocation is or is reasonably likely to be one that would have been made by the proposed testator if he or she had had testamentary capacity. Hearing of application for leave (1) On hearing an application for leave, the Court may —

[page 271]

26

(a) give leave and allow the application for leave to proceed as an application for an order under section 22; and (b) if satisfied of the matters set out in section 24, make the order. (2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court’s authorisation is sought. Hearing of application for order

27

In considering an application for an order authorising the making, alteration or revocation of a will, the Court — (a) may have regard to any information given to the Court in support of an application for leave under section 23; and (b) may inform itself of any other matter in any manner it sees fit; and (c) is not bound by the rules of evidence. Execution of a will

28

A will, or instrument altering or revoking a will, made pursuant to an order under this Division, must be signed by the Registrar and must be sealed with the seal of the Court. Will or instrument to be forwarded to certain persons On the execution of a statutory will, or an instrument altering or revoking a will, made pursuant to an order under this Division the Registrar must forward — (a) the will to the executor named in the will or, if the executor is not the Public Trustee or a trustee company within the meaning of the Trustee Companies Act 1953, to a law practice nominated by the executor; and (b) the instrument to the executor named in the will which the instrument is altering or revoking and any executor named in the instrument or, if the executor is not the Public Trustee or a trustee company within the meaning of the Trustee Companies Act 1953, to a law practice nominated by the executor; and (c) a copy of the will or instrument to the proposed testator.

Division 3

Power of Board to make statutory will for person lacking in testamentary capacity

29

Interpretation

30

In this Division — proposed testator means the person on whose behalf an order authorising the making of a will is sought under this Division. Board may make certain orders (1) The Board may, in accordance with this Division, make orders authorising the making of a will in specific terms approved by the Board on behalf of a person who lacks

testamentary capacity. (2) For the purposes of this Division, a person does not lack testamentary capacity by reason only of the fact that he or she is a minor, but does lack testamentary capacity if he or she is a minor and lacks testamentary capacity by reason of disability or injury. (3) The powers of the Board under subsection (1) may be exercised — (a) on the application of any person; or (b) of its own motion — but the Board must first hold a hearing in accordance with Division 1 of Part 10 of the Guardianship and Administration Act 1995. (4) The Board may not make an order under subsection (1) unless it is satisfied, after making such enquiries as it considers reasonable, that the person has not made a will or any purported will. (5) The Board may authorise the making of a will that deals with the whole or part of the property of the person.

[page 272]

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(6) The Board is not to make an order under this Division unless the person on whose behalf authorisation for the making of the will is sought is alive when the order is made. (7) The Board may at any time direct that a matter before the Board pursuant to this Division proceed by way of an application to the Court under Division 2. Validity of statutory wills made by Board

32

A statutory will made by the Board is invalid if there exists a prior will, which is not a statutory will made by the Board, of the person for whom it is made. Application for a statutory will (1) In applying to the Board for a statutory will under this Division, the applicant must, subject to the Board’s discretion, furnish to the Board — (a) a written statement of the general nature of the application and the reasons for making it, including the grounds on which it is alleged that the person for whom the will is proposed to be made lacks testamentary capacity; and (b) an estimate, so far as the applicant is aware of it, of the size and character of the estate of the proposed testator; and (c) a proposal nominating the persons who should benefit under the proposed will and the extent to which each person nominated should share in the estate; and (d) any evidence, so far as it is available, relating to the wishes of the proposed testator; and (e) evidence of the likelihood of the proposed testator acquiring or regaining capacity to make a will at any future time; and (f) a statutory declaration stating that it is the applicant’s belief that the proposed testator has not made a will or any purported will and setting out the reasons for that belief; and (g) any evidence of the interests, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person who would be entitled to receive any part of the estate of the proposed testator if the proposed testator were to die intestate; and

33

(h) any evidence of any facts indicating the likelihood, so far as they are known to the applicant, or can be discovered with reasonable diligence, of an application being made under the Testator’s Family Maintenance Act 1912; and (i) any evidence of the circumstances, so far as they are known to the applicant, or can be discovered with reasonable diligence, of any person for whom the proposed testator might reasonably be expected to make provision under a will; and (j) a reference to any disposition for a body, whether charitable or not, or for a charitable purpose that the proposed testator might reasonably be expected to give or make by will; and (k) any other facts that the applicant considers to be relevant to the application. (2) An application under subsection (1) is to be lodged with the registrar of the Board. Board must be satisfied of certain matters The Board must not make an order authorising the making of a will for a proposed testator unless it is satisfied — (a) if there is an applicant, that the applicant is an appropriate person to make the application; and (b) that there is reason to believe that the proposed testator is incapable of making a will; and (c) following such enquiries as are reasonable, that the proposed testator has not made a will or any purported will; and (d) that adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a disposition or benefit from the estate of the proposed testator; and

[page 273]

34

(e) that it is appropriate to make an order for the execution of a will for a proposed testator; and (f) that the proposed will, alteration of revocation is or is reasonably likely to be one that would have been made by the proposed testator if he or she had had testamentary capacity. Hearing by Board of application

35

In considering an application for an order authorising the making of a will, the Board — (a) may have regard to any information given to the Board in support of the application; and (b) may inform itself of any other matter in any manner it sees fit; and (c) is not bound by the rules of evidence. Execution of a will made under this Division

36

If the Board makes an order authorising the making of a will for any person, a will executed under that order is to be — (a) signed by the President or Deputy President of the Board in the presence of 2 or more witnesses present at the same time; and (b) attested and subscribed by those witnesses in the presence of the President or Deputy President. Alteration of statutory will made by Board

37

The Board may alter a statutory will made by the Board on application by a person in accordance with this Division as if references to the procedure for making a statutory will were read as references to the procedure for alteration of a statutory will. Revocation of statutory will made by Board

38

(1) The Board may revoke a statutory will made by the Board on application by a person in accordance with this Division as if references to the procedure for making a statutory will were read as references to the procedure for revocation of a statutory will. (2) A person who acquires or regains capacity to make a will after a statutory will has been made on his or her behalf may revoke the statutory will in the same manner as a will may be revoked under Division 3 of Part 2. Statutory will made by Board to be forwarded to executor On the execution of a statutory will, the Board must forward — (a) the will to the executor named in the will or, if the executor is not the Public Trustee or a Trustee Company within the meaning of the Trustee Companies Act 1953, to a law practice nominated by the executor; and (b) a copy of the will to the proposed testator.

Division 4 Statutory wills generally 39 Effect of statutory will

40

A statutory will has the same effect for all purposes as if — (a) the person for whom it is made were capable of making a will; and (b) the statutory will had been executed by him or her in the manner required by Division 2 of Part 2. Recognition of statutory wills A statutory will made according to the law of the place where the deceased was resident at the time of execution is to be regarded as a valid will of the deceased.

[page 274] 41

Application of common law and equity to statutory wills The principles and rules of the common law and of equity are, to the extent that they are not inconsistent with this Part, to apply to a valid statutory will in the same way as they apply to a will executed in accordance with Division 2 of Part 2.

Supreme Court Rules 2000 (Tas) r 803 803 Application for leave to apply for certain orders (1) An application for leave under section 23 of the Wills Act 2008 — (a) may be made without the intervention of a litigation guardian; and (b) is to be supported by an affidavit of the applicant containing the following: (i) the full name, address, occupation and date of birth of the applicant; (ii) the full name, address, occupation and date of birth of the person on whose behalf the application is made; (iii) the full name, address, occupation and date of birth and relationship to the

proposed testator of any of the persons described in section 23(2)(h), section 23(2)(j) and section 23(2)(k) of the Wills Act 2008; and (c) is to be served personally on each of the persons described in section 23(2)(h), section 23(2)(j) and section 23(2)(k) of the Wills Act 2008, unless the Court or a judge otherwise orders. (2) If the Court or a judge is of the opinion that a person who appears to have an interest in proceedings ought to be given notice of those proceedings, the Court or the judge may — (a) direct that the person be served with the application; and (b) give directions as to the future conduct of the proceedings. (3) A person who wishes to object to the application for leave — (a) is to file and serve, no later than 28 days after the service of the application, an affidavit setting out the basis of any objection and the facts and circumstances on which it is based; and (b) is not required to enter an appearance. (4) If revocation of a will or part of a will is sought, the original will is to be produced to the Court, or its absence explained by affidavit, at the hearing of the application for leave.

Victoria 9.7 The relevant legislation and procedural rules in Victoria are as follows:

Wills Act 1997 (Vic) Part 3 Division 2 21

Court authorised wills for persons who do not have testamentary capacity

Wills for persons who do not have testamentary capacity authorised by the Court (1) The Court may make an order authorising a will to be made in specific terms approved by the Court or revoked on behalf of a person who does not have testamentary capacity. (2) Any person may make an application for an order under this section if the person has first obtained leave of the Court to make the application. (3) The Court may make an order under this section on behalf of a person who is a minor and who does not have testamentary capacity, but must not make an order under this section on behalf of a person who is deceased at the time the order is made.

[page 275] 22

Hearing an application for an order (1) In considering an application for an order under section 21 — (a) the Court may have regard to any information given to the Court in support of an application for leave under section 28; and

23

(b) the Court may inform itself of any other matter in any manner it sees fit; and (c) the Court is not bound by the rules of evidence. (2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21. Powers of the Court in making an order

24

In making an order under section 21, the Court may make any necessary related orders or directions. Revocation of a will made under an order under section 21

25

If a will has been made under an order under section 21 on behalf of a person who acquires or regains testamentary capacity after the making of the order, that person may revoke or deal with the will without an order under section 21. Execution and storage of wills made under an order under section 21

26

27

(1) A will which is made under an order under section 21 is not valid unless it is in writing, signed by the Registrar and sealed with the seal of the Court. (2) The revocation of a will which is made under an order under section 21 is not valid unless it is effected by a document which is signed by the Registrar and sealed with the seal of the Court. (3) Any will and any document to which this section applies must be deposited with the Registrar under Part 1, Division 1A of the Administration and Probate Act 1958. (4) Despite section 5C of the Administration and Probate Act 1958, any will and any document to which this section applies, which has been deposited with the Registrar, must not be withdrawn from the deposit unless — (a) the Court has made an order under this section revoking the will; or (b) the person on whose behalf the will has been made has acquired or regained testamentary capacity. (5) A failure to comply with subsection (3) does not affect the validity of the will. Matters of which Court must be satisfied before application for leave to make an application may be granted Before granting leave to apply for an order under section 21, the Court must be satisfied that — (a) the person on whose behalf the will is to be made or revoked does not have testamentary capacity; and (b) the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity; and (c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will or the revocation of the will for the person. Hearing an application for leave (1) In considering an application for leave to make an order under section 21 — (a) in addition to any matter which the Court may take into account under section 28, the Court may inform itself in any manner it sees fit; and (b) the Court is not bound by the rules of evidence. (1A) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an application under section 21. (2) If the Court is satisfied, on the evidence tendered under subsection (1) of the matters set out in section 26(a) to (c), the Court may determine that the application for leave to apply for an order under section 21 proceed as an application for such an order.

[page 276] 28

Information which the Court may require in support of an application for leave

29

In proceedings for the hearing of an application for leave to apply for an order under section 21, the applicant must, if so required by the Court, give — (a) a written statement of the general nature of the application and the reasons for making it; (b) a reasonable estimate, formed from any evidence available to the applicant, of the size and character of the estate of the person on whose behalf the will is to be made; (c) a draft of the proposed will for which the applicant is seeking the Court’s approval; (d) any evidence available to the applicant of the wishes of the person; (e) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity; (f) any evidence available to the applicant of the terms of any will previously made by the person; (g) any evidence available to the applicant of the likelihood of an application being made under Part IV of the Administration and Probate Act 1958 in respect of property of the person; (h) any evidence available to the applicant of the circumstances of any person for whom provision might reasonably be expected to be made under the will; (i) any evidence available to the applicant of any persons who might be entitled to claim on intestacy; (j) any evidence available to the applicant of any gift for a charitable or other purpose that the person might reasonably be expected to give or make by will; (k) any other evidence available to the applicant and which is relevant to the application. Persons who are entitled to appear at an application for leave

30

Each of the following persons is entitled to appear and be heard in any proceedings for the hearing of an application for leave to apply for an order under section 21 — (a) the person on whose behalf the will is to be made; (b) an Australian legal practitioner (within the meaning of the Legal Profession Act 2004) representing that person; (c) an attorney appointed by that person under an enduring power of attorney; (d) any guardian or administrator of the person within the meaning of the Guardianship and Administration Act 1986; (e) any other person who has, in the opinion of the Court, a genuine interest in the matter. Recognition of statutory wills (1) A statutory will made according to the law of the place where the deceased was resident at the time of the execution of the will is deemed to be a valid will of the deceased. (2) In this section, statutory will means a will executed under a statutory provision on behalf of a person who, at the time of the execution, lacked testamentary capacity.

Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) Order 17 — Court Authorised Wills

17.01 Definition In this Order, the Act means the Wills Act 1997. 17.02 Application of Order (1) This Order applies to applications under sections 20 and 21 of the Act. (2) This Order applies to a codicil in the same manner as it applies to a will.

[page 277] 17.03 Minors (1) An application under section 20 of the Act shall be made by originating motion supported by an affidavit. (2) The affidavit shall exhibit a draft of the will for which authorisation is sought and, if the affidavit is being made by a person other than the minor, shall account for the absence of an affidavit from the minor. (3) The affidavit shall state whether the application is made upon notice and, if so, to whom notice has been given or is proposed to be given. (4) The affidavit shall also state the acts, facts, matters and circumstances relied upon to satisfy the Court under section 20(5) of the Act. 17.04 Jurisdiction of Associate Judge under section 20 If there are funds in Court for the minor, the application under section 20 of the Act may be heard and determined by an Associate Judge. 17.05 Want of testamentary capacity (1) An application under section 21(2) of the Act for leave to make application for an order under section 21(1) shall be made by originating motion supported by an affidavit. (2) The affidavit shall state the acts, facts, matters and circumstances relied upon to satisfy the Court that — (a) the person on whose behalf the will is to be made or revoked does not have testamentary capacity; (b) the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity; (c) it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will, or the revocation of the will, for the person. (3) Without limiting paragraph (2), the affidavit shall — (a) describe the general nature of the application to be made for an order under section 21(1) of the Act and give the reasons for making that application; (b) give a reasonable estimate, formed from any evidence available to the plaintiff (the nature of which shall be stated), of the size and character of the estate of the person on whose behalf the will is to be made or revoked; (c) exhibit the proposed will for which the plaintiff is seeking the Court’s approval or a copy of the will which the plaintiff is seeking to have revoked, as the case may be; (d) set out any evidence available to the plaintiff of each of the matters referred to in

paragraphs (d), (e), (f), (g), (h), (i) and (j) of section 28 of the Act if such matter is relevant to the application for an order under section 21(1) of the Act or, if not relevant, state why such matter is not relevant; and (e) set out any other evidence relevant to the application. (4) The affidavit shall state whether the application for leave is made upon notice and, if so, to whom notice has been given or is proposed to be given. (5) On the hearing of the application for leave, where revocation is sought, the original will shall be produced to the Court or its absence shall be explained by affidavit. 17.06 If leave granted If the Court grants leave under section 21(2) of the Act to make an application for an order under section 21(1) of the Act, the Court may — (a) proceed forthwith to hear and determined [sic] the application; or (b) give directions in relation to the application.

[page 278] 17.07 Jurisdiction of Associate Judge under section 21 If there are funds in Court for the person who does not have testamentary capacity, an application under section 21 of the Act, including an application for leave, may be heard and determined by an Associate Judge.

Western Australia 9.8 The relevant legislation and procedural rules in Western Australia are as follows:

Wills Act 1970 (WA) Part XI — Wills of persons who lack testamentary capacity Division 1 39

Jurisdiction of Supreme Court to authorise the making, alteration and revocation of wills

Terms used (1) In this Part — Court means the Supreme Court; person concerned has the meaning given by section 40(1); Principal Registrar means the person for the time being holding or acting in the office designated under the Supreme Court Act 1935 as the “Principal Registrar of the Supreme Court”. (2) For the purposes of sections 6, 9(1), 10(2) and 15(b), a will or instrument signed in accordance with section 40(4) is to be taken to be executed by the person concerned in a manner permitted by this Act.

40

Jurisdiction of Court to make, alter or revoke will

41

(1) The Court may, on application made by any person, make an order authorising — (a) the making or alteration of a will in specific terms approved by the Court; or (b) the revocation of the whole or any part of a will, on behalf of a person who lacks testamentary capacity (the person concerned). (2) The Court is not to make an order under subsection (1) unless, at the time when the order is made, the person concerned — (a) is living; and (b) has reached the age of 18 years. (3) An order under subsection (1) may authorise — (a) the making or alteration of a will that deals with the whole, or with only part, of the property of the person concerned; or (b) the alteration of only part of the person’s will. (4) A will or instrument authorised under subsection (1) must be signed by the Principal Registrar and sealed with the seal of the Court. Content of application under section 40 (1) In an application under section 40, the applicant must furnish the following to the Court, except to the extent that the Court otherwise allows — (a) a written statement of the nature of the application and the reasons for it; (b) an estimate of the nature and value of the assets of the person concerned and of the nature and amount of the person’s liabilities, so far as that information is known to the applicant; (c) a suggested draft of the proposed will or alteration or of the instrument of revocation; (d) any evidence available to the applicant as to the wishes of the person concerned; (e) evidence as to the likelihood of the person concerned having testamentary capacity at a later time;

[page 279] (f)

any will, or a copy of any will, of the person concerned in the possession of the applicant, or details known to the applicant of the contents of any will of the person concerned, and evidence that the applicant has made reasonable enquiry to locate such wills, or details of the contents of such wills, as may have been made by the person concerned; (g) evidence that the applicant has made reasonable enquiry concerning the interests of any person who would be entitled to receive any part of the estate of the person concerned either under a previous will or if the person were to die intestate, and any evidence of those interests so far as they are known to the applicant; (h) evidence that the applicant has made reasonable enquiry concerning the likelihood of an application being made under the Family Provision Act 1972, and evidence of any facts known to the applicant indicating such a likelihood; (i) evidence that the applicant has made reasonable enquiry concerning the circumstances of any person for whom the person concerned might reasonably be expected to make provision under a will, and any evidence of those

circumstances so far as they are known to the applicant; a reference to any gift to a body, whether charitable or not, or for a charitable purpose, that the person concerned might reasonably be expected to make by will; (k) evidence of any other facts that the applicant considers to be relevant to the application. (j)

42

(2) In subsection (1) — previous will, in paragraph (g), means a will made before a will furnished to the Court, or details of which are furnished to the Court, in accordance with paragraph (f); will, in paragraphs (f) and (g), includes a document that is a will by operation of Part X. Certain criteria to be applied by Court

43

(1) In exercising its powers under section 40 the Court must refuse an application if it is not satisfied that — (a) the person concerned is incapable of making a valid will or of altering or revoking the person’s will, as the case may be; (b) the suggested will, alteration or revocation, or that will, alteration or revocation as revised under section 43(1)(b), is one which could be made by the person concerned if the person were not lacking testamentary capacity; (c) the applicant is an appropriate person to make the application; and (d) adequate steps have been taken to allow all persons with a legitimate interest in the application, including persons who have reason to expect any benefit from the estate of the person concerned, to be represented in the proceedings. (2) Subsection (1) does not prevent the Court from refusing an application for any other reason. Further powers of Court

44

(1) In proceedings under section 40 the Court may — (a) give directions, including directions about the attendance of any person as a witness and, if it thinks fit, the attendance of the person concerned; (b) revise the terms of the suggested draft of the proposed will, alteration or revocation furnished to the Court under section 41(1)(c); (c) inform itself as to any matter in any manner it thinks fit; and (d) make any order it thinks fit as to the costs of and incidental to the proceedings. (2) The Court is not bound by the rules of evidence in proceedings under section 40. Deposit of wills made under this Part with Principal Registrar (1) After a will or instrument has been signed by the Principal Registrar under section 40(4) —

[page 280] (a) it must be deposited in the office of the Principal Registrar; and (b) the fee prescribed under section 171(1)(c) of the Supreme Court Act 1935 must be paid by the person who made the relevant application under section 40. (2) A will or instrument deposited in the office of the Principal Registrar under subsection (1) must be in a sealed envelope that has written on it — (a) the name and address of the person concerned, as they appear in the will or

45

instrument; (b) the name and address of any executor as they appear in the will or instrument; and (c) the date of the will or instrument. (3) If the Court has made an order authorising the revocation of a will deposited under subsection (1), the Principal Registrar must release the will to the person who made the relevant application under section 40. (4) If the person concerned has acquired or regained testamentary capacity to the satisfaction of the Court, the Principal Registrar must release to that person a will deposited under subsection (1). Court may allow access to will

46

(1) A person may, with the leave of the Court and in accordance with the terms of the leave, request the Principal Registrar to provide the person with a copy of a will deposited in the office of the Principal Registrar under section 44, and the Principal Registrar must comply with a request so made. (2) The Court may, on the application of any person, grant leave to the person for the purposes of subsection (1) on such terms as it thinks fit, but only if — (a) the Court is satisfied that adequate steps have been taken to allow all persons with a legitimate interest in the application to be represented in the proceedings; and (b) it appears to the Court to be necessary or desirable for the proper carrying out of the provisions of the will that leave be granted. Alteration or revocation of will authorised under this Part

47

(1) This section applies if — (a) a will has been made on behalf of a person under this Part; and (b) the person acquires or regains testamentary capacity. (2) The will — (a) may be altered by the person in accordance with section 10 or by a document that has effect under Part X; (b) may be revoked in whole or in part by the person in accordance with section 15 or by a document that has effect under Part X; and (c) is subject to revocation under section 14(1) or 14A(2), as if it were a will executed in accordance with section 8. Protection of privacy of persons to whom applications relate (1) In proceedings under section 40, the Court may do any or all of the following, either on its own initiative or on the application of a party to the proceedings — (a) order that the whole or any part of the proceedings be heard in closed court; (b) order that only persons or classes of persons specified by the Court may be present during the whole or any part of the proceedings; (c) make an order prohibiting the publication of a report of — (i) the whole or any part of the proceedings; or (ii) any information derived from or relating to the proceedings, including any order made by the Court. (2) Instead of making an order described in subsection (1)(c), the Court may make such an order but with exceptions allowing the publication, in the manner or to the persons specified in the order, of particulars or information, or particulars or information of a kind, so specified.

[page 281] Division 2 48

Wills of persons who lack testamentary capacity made under the law of another place

Recognition of wills (1) In this section — statutory will means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity, and includes an alteration to and a revocation of a statutory or other will. (2) A statutory will made according to the law of the place where the deceased was resident at the time of execution is to be regarded as a valid will of the deceased or a valid alteration or revocation of a will, as the case may be, for the purposes of the law of this State. (3) The application of subsection (2) extends to a statutory will made before the commencement of section 24 of the Wills Amendment Act 2007.

Supreme Court Consolidated Practice Directions 2009 (WA) 9.3 Wills Act 1970 9.3.1 Wills Act 1970, pt XI and pt XII Purpose 1.

This Practice Direction sets out procedures for applications under pt XI and pt XII of the Wills Act 1970.

The Originating Summons 2. 3.

4.

Applications under s 40 and s 50 of the Wills Act 1970 shall be made by originating summons with fees payable in accordance with the provisions of the Supreme Court (Fees) Regulations 2002, as amended from time to time. In the case of an application under s 40 of the Wills Act 1970: (a) the originating summons must set out the nature of the relief sought and the persons or classes of persons affected, including any persons who would be entitled to receive part of the estate of the person concerned under a previous will or under the Administration Act 1903 if the person concerned were to die intestate, any person who may be entitled to apply under the Inheritance (Family and Dependants Provision) Act 1972, and any body or charitable purpose that the person concerned might reasonably be expected to make a gift by will; (b) unless making the application, the person concerned and his or her legal guardian or attorney are always defendants; and (c) except in relation to the person concerned and his or her legal guardian or attorney, no other party should be given notice until the Court has so directed. [...]

Affidavit 5. 6.

An affidavit in support of the application must be filed with applications under s 40 or s 50 of the Wills Act 1970. Practitioners must always exercise care when drafting affidavits. Unnecessary affidavit

7.

8.

material will be taken into account on costs: see O 37 r 6(3) of the Rules of the Supreme Court 1971. In the case of applications under s 40 of the Wills Act 1970: (a) the affidavit must address the testamentary capacity of the person concerned, the appropriateness of the applicant to make the application, and, save where the Court allows otherwise, all matters set out in s 41 of the Act; and (b) where the Court’s leave is being sought to not address any of the matters set out in s 41 of the Act, reasons should be included in the affidavit filed in accordance with par 7(a) above. [...]

[page 282] Discovery 9.

It is not expected that discovery will usually be ordered in actions under pt XI or pt XII of the Wills Act 1970. 10. If a particular need arises for discovery then any application must be supported by an affidavit that shows why discovery is necessary. 11. Because these proceedings can be tried on affidavit evidence, any application for discovery of the documents must show how documents discovered will be put in evidence. Deposit of pt XI wills 12. After a will or instrument has been signed by the Principal Registrar under s 40(4) of the Act, it must be deposited in a sealed envelope in accordance with s 44(2) of the Act in the office of the Principal Registrar and the prescribed fee paid. 13. Should a person depositing a pt XI will or instrument in the office of the Principal Registrar wish to be issued with a receipt for that will or instrument, the will or instrument should only be sealed in the manner prescribed under s 44(2) in the presence of a member of staff of the Principal Registrar’s office. 14. The fee payable upon the deposit of wills or instruments under pt XI of the Wills Act 1970 will be the same fee stipulated in the Supreme Court (Fees) Regulations 2002, as amended from time to time. ...

England and Wales 9.9 The relevant former and current legislation in England and Wales is as follows:

Mental Health Act 19591 ss 101, 102(1) and 103(1) 101 The functions of the judge under this Part of this Act shall be exercisable where, after considering medical evidence, he is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs; and a person as to whom the judge is so satisfied is referred to in this Part of this Act as a patient.

(1) The judge may, with respect to the property and affairs of a patient, do or secure the 102 doing of all such things as appear necessary or expedient — (a) for the maintenance or other benefit of the patient, (b) for the maintenance or other benefit of members of the patient’s family, (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered, or (d) otherwise for administering the patient’s affairs. ... 103 (1) Without prejudice to the generality of the foregoing section, the judge shall have power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section, and in particular may for those purposes make orders or give directions or authorities for — ... (d) the settlement of any property of the patient ... (dd) the execution for the patient of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered ...2

[page 283]

Mental Capacity Act 2005 ss 1 and 4 1

The principles

4

(1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Best interests (1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of — (a) the person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3) He must consider — (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be.

He must, so far as reasonably practicable, permit and encourage the person to (4) participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. (6) He must consider, so far as is reasonably ascertainable — (a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of — (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6). (8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which — (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

[page 284] (9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned. (10) “Life-sustaining treatment ” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life. (11) “ Relevant circumstances ” are those — (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant. 1.

2.

These provisions of the Mental Health Act 1959 are no longer in force but they are relevant to an understanding of the legislative framework as it stood at the time of the decision in Re D(J) [1982] Ch 237; [1982] 2 All ER 37; see 1.4. These provisions were re-enacted in Part VII of the Mental Health Act 1983, which was subsequently repealed by the Mental Capacity Act 2005. Section 103(1)(dd) was inserted by the Administration of Justice Act 1969 s 17.

[page 285]

CHAPTER 10 Precedents Checklist for Taking Initial Instructions Correspondence With applicant client With medical practitioner With interested persons, giving notice of proceedings

10.1 10.2

Form of Orders

10.3 10.4 10.5 10.6

Sample Execution Clause

10.7

Checklist for Taking Initial Instructions 10.1 The following is a suggested checklist for taking initial instructions from a client where a statutory will application is contemplated. This is not intended to be exhaustive; reference should be made to the applicable statutory requirements and procedural rules in the particular State or Territory (see Chapters 2 and 9), as relevant to the particular circumstances that are presented: see Chapters 3 and 4. (1) Proposed testator: Personal details: name, address, date of birth, marital status. Health and capacity generally; details of current and past treating medical practitioners.

Financial circumstances: assets, liabilities, superannuation, personal insurances, interests/roles in trusts; for each — description, value, ownership, any special features/issues. Family and personal circumstances (general): immediate family, extended family, friends and carers where relevant or potentially relevant; for each relevant person — name, address, date of birth or age, health, financial position, relationship with proposed testator, likely position in relation to application. (2) Establishing whether a statutory will is or may be required: Existing testamentary arrangements: identify and obtain copies of all actual and potential wills and other testamentary documents, review terms and likely effect if those documents were applied to the proposed testator’s personal and financial circumstances; if intestacy, identify likely intestacy beneficiaries and entitlements. What is the rationale for the proposed application: see Chapter 3? Statutory will, codicil or revocation? [page 286] Compare and contrast outcome under existing will or intestacy, to potential outcome under statutory will, codicil or revocation. Consider potential alternative solutions. (3) Terms of the proposed statutory will or codicil (see 4.15): Proposed executor(s). Do they consent to act? What dispositive terms are proposed? Are the terms to be based on an existing will? What administrative provisions are required, having regard to the likely assets of the estate, identity of executor(s), and dispositive terms of the proposed will?

(4) Evidence of lack of testamentary capacity (see 4.8 and 4.14): Identify the facts, matters and circumstances evidencing lack of testamentary capacity. Identify sources of evidence of those matters: family members, friends, carers, past and current treating medical practitioners, documents appointing alternative decision makers (see below), observations of proposed testator him or herself (where possible and appropriate). Is a further medical assessment and report needed? If so, can a current treating medical practitioner provide this, or will a referral be needed? For medical evidence: consider source of authority to authorise release of current or past medical information; consider whether report, affidavit or both are required; consider whether original medical documents (e.g. patient history notes) are required. Attorney or administrator appointed? If so, obtain copy of document or orders appointing them (including any available factual findings leading to those orders) and their identity and contact details; consider their potential role and likely position in relation to application. Guardian or other decision maker in relation to medical and lifestyle matters appointed? If so, obtain copy of document or orders appointing them (including any available factual findings leading to those orders) and their identity and contact details; consider their potential role and likely position in relation to application. Is there any possibility that capacity may be regained? Consider whether the health of the proposed testator gives rise to urgency. (5) Who is the most appropriate applicant: see 4.11? Is the person who has made initial contact the most appropriate applicant? Is it proposed that they will derive a benefit under the statutory will? If so, is there a person who will not derive a personal benefit under

the statutory will who may instead be prepared to act as applicant? Who is best placed to gather the relevant supporting information? Should the lawyer be instructed by another person? (6) Can sufficient evidence be gathered to satisfy the threshold requirements? Ensure that the listed information that relates directly to the threshold requirements is obtained: Lack of testamentary capacity (see 4.8 and above). Meeting the core test (see 4.8 and 4.9). [page 287] Appropriate for the order to be made (see 4.10). Appropriate applicant (see 4.11 and above). Representation of persons with a legitimate interest — identify who has a legitimate interest (see 4.12). (7) Obtain evidence of the matters specified in the other listed information (refer to relevant statutory provision; see 2.14), including: Persons entitled to claim on intestacy (see 4.18). Likelihood of family provision claims (see 4.19). Circumstances of any person for whom provision might reasonably be expected to be made by the proposed testator by will (see 4.20). Any evidence that the proposed testator might be expected to make any gift by will for a charitable or other purpose: (see 4.21)? Any other relevant facts (see 4.22). (8) Is the application likely to be contested? If so, by whom, potentially on what grounds, and what alternative outcome might they seek? Is there any scope for a negotiated solution (see 4.27 and Chapter 5)?

(9) Consider whether the proposed testator will require a litigation guardian and who might act in that role (see 5.2–5.5). (10) Costs (see 4.23: What are the costs arrangements as between the applicant and lawyer? Advise about costs risk, including the risk of an adverse costs order. Provide retainer and costs disclosure, including counsel’s fees. (11) Privacy: consider whether privacy of sensitive information can and should be maintained (see 4.33). (12) Identify and plan next steps, including briefing counsel.

Correspondence 10.2 The following provides suggested content for the three key types of correspondence that may be required. This content should be adapted as required and as appropriate in the circumstances.

With applicant client 10.3 Correspondence between a lawyer and their applicant client should potentially include the following: (1) Confirmation of instructions: Who the client is. The scope of the instructions (ie, what is required). Whether or not there is urgency to any aspect of those instructions. (2) A summary of the purpose of the correspondence, which will be one or more of the following: To confirm instructions and next steps. To provide preliminary advice only.

To provide detailed advice. [page 288] To confirm instructions and information held for the purpose of preparing the application. To confirm instructions to be included in a brief to counsel. The following parts (3) to (5) are examples of content that may be relevant where the client requires written advice, or where it is necessary or appropriate to confirm advice and instructions in writing. This will depend on the circumstances. These items may be addressed in a single advice letter, or by a combination of advice in conference, advice by letter, and advice from counsel. (3) General summary of the law and procedure relating to statutory wills in the jurisdiction, not tailored to the specific circumstances: The source of the court’s power to make a statutory will (see 2.3). A summary of the threshold requirements, referring both to the statutory requirements and to the leading cases that confirm how these requirements can be met (see 4.7–4.12). (4) Summary of the key instructions and information provided about the following, which are detailed at 10.1: The proposed testator. Establishing whether a statutory will, codicil or revocation is or may be required. The terms of the proposed statutory will, codicil or revocation. Evidence of lack of testamentary capacity. Who is the most appropriate applicant. Evidence held, or required to be gathered, to satisfy the threshold requirements.

The other listed information. Whether the application is likely to be contested. Whether privacy is an issue. (5) Analysis and advice, based on the instructions and information summarised in (4), in particular: Advice about whether the threshold requirements can be met. Advice about any potential alternative solutions. Advice about issues relating to service of interested persons. Advice about the terms of the proposed statutory will, codicil or revocation. Identification of any gaps in the evidence, with recommendations as to how the additional evidence can be gathered. Identification of any weaknesses in the application, and advice about how those may be cured or improved. Advice and warnings, as appropriate, about costs and costs risk. It is suggested that counsel should be engaged to advise on the matters in parts (3) (advice about the law) and (5) (analysis and advice) where the lawyer does not have sufficient expertise and experience in the area, or where counsel has been or will be briefed and it is appropriate or desirable for counsel to provide the advice. (6) Confirmation of the process and next steps: Confirmation of what the lawyer will do and when. Confirmation of what the applicant will do and when. Timing of next steps: the preparation of the application and supporting evidence; the filing of the application; the service of interested persons; [page 289]

procedural hearings (if applicable); final hearing; execution of the will; general potential for appeals. (7) Costs (see 4.23): What are the costs arrangements as between the applicant and lawyer? Advise about costs risk, including the risk of an adverse costs order. Provide retainer and costs disclosure, including counsel’s fees.

With medical practitioner 10.4 Correspondence with a medical practitioner in relation to the capacity of the proposed testator should potentially include the following: (1) Introductory/background matters: Identify who the lawyer acts for, and that person’s connection to the proposed testator. The proposed testator’s personal details: name, address, date of birth. Refer to any previous contact and correspondence. Context: current patient, former patient, or new patient for assessment; note recent or future appointment. (2) Purpose of correspondence: To obtain information and evidence to potentially be used for the purpose of an application for a statutory will, codicil or revocation, giving a brief summary of what it is. What is sought from them, identifying whether it is: medical records, report summarising past dealings, report on current capacity, appointment for assessment and report. Whether information and evidence is sought in relation to capacity only, or also physical health. Brief summary of the process, including whether and when they may need to be available to give evidence.

(3) If medical records are sought, identify: The period for which records are sought. Whether all records held are sought, or identify specific records. (4) If evidence and/or an opinion about testamentary capacity are sought: Summarise the nature and effect of the proposed will, and enclose a copy where possible. Summarise the status quo under an existing will or intestacy, and identify the key differences between this and the proposed statutory will, codicil or revocation. State the legal test for testamentary capacity (see 4.8) and explain that they should state the basis for their opinion/conclusion, by reference to the elements of that test. Provide background personal and financial information that is needed in order to assess responses from the proposed testator. Provide other relevant background about health and capacity. (5) Matters to be covered in any report or letter requested from them: The form required: letter, report or affidavit. Documents that should be annexed. [page 290] Summary of their medical qualifications and expertise. Matters on which their opinion is sought. (6) Practical matters: The form/method of response required: documents only, letter, report, affidavit, or evidence in person.

Whether a copy of instructions should be annexed to the report — provided the instructions are properly prepared, this is usually desirable. Contact details for any persons they may need to contact or deal with in relation to their evidence, including other relevant medical practitioners. Cost arrangements. Timeframes: when response required; any urgency; when a hearing may take place if evidence in person may be required. Put on notice of potential for subpoena to produce documents and/or to attend to give evidence, if that may be required. It is important to keep in mind that the purpose of this correspondence is to gather evidence for use in proposed proceeding. The lawyer needs to be mindful of their duty to the court and related professional obligations relating to procuring evidence, and remember that instructions/requests for medical reports or opinions may be annexed to the material provided.

With interested persons, giving notice of proceedings 10.5 Correspondence with persons interested in a statutory will application, in particular those who have been or may be required to be served with notice of the application, should potentially include the following: (1) Introductory/background matters: Identify who the lawyer acts for, and that person’s family relationship with the proposed testator, or other connection that the person is understood to have with the proposed testator. The proposed testator’s personal details: name, address, date of birth. Refer to any previous contact and correspondence (consider attaching a complete set of correspondence). (2) Purpose of correspondence, which will be one or more of the following: To seek their views about a proposed statutory will, codicil or

revocation before an application is made. To put a compromise proposal to them (note that the terms of any compromise proposal cannot be advanced without a full consideration of the core test; see 4.27; advice should be obtained from counsel on this). To give them notice of an application made, including providing copies of documents. To obtain an acknowledgement of receipt of documents, or a consent and. To give them notice of a hearing. (3) Information: The current status of the application. The next court date, and likely final hearing date or timeframe (if known). [page 291] A summary of the nature and effect of the proposed will, codicil or revocation; and a comparison between that and the status quo. Their interest or potential interest as an existing or potential beneficiary, or otherwise as a family member or interested person.. (4) Enclosures: Any formal notice or court form required to be served on them. Originating process. If served outside the jurisdiction, a notice pursuant to the Service and Execution of Process Act 1992 (Cth), in respect of service of the originating process. Affidavits (to which should be exhibited a draft of the proposed will,

codicil or revocation, and where applicable, copies of previous wills). Any documents that may be relied on at hearing but which are not included in affidavits: medical documents and reports; other documents; statements/ documents from other parties. (5) What is required of them: Request for any acknowledgement of receipt of documents, or a consent. Their options: seek independent legal advice (noting that you are not in a position to advise them); appear at hearing; contact the court (providing contact details); advise the party or the court of their position in relation to the application; seek to put affidavit material and submissions before the court; oppose, consent to, do not object to, or take no action in relation to, the application; take no action. Contact you in writing to provide any response.

Form of Orders 10.6 The orders sought should be prepared by counsel, by reference to the applicable statutory and procedural requirements. An example of possible orders for an application in Queensland is as follows: THE ORDER OF THE COURT IS THAT: 1. Pursuant to section 22 of the Succession Act 1981 (Qld) (‘the Act’), the Applicant have leave to apply for an order pursuant to section 21 of the Act authorising a Will to be made for John David Smith. 2. Pursuant to section 21 of the Act, a Will be authorised to be made for John David Smith in terms of the draft Will which is exhibit ‘RS-1’ to the affidavit of Rachel Smith filed on 1 October 2013. 3. The Applicant’s costs of and incidental to this application be assessed on the indemnity basis and paid out of the assets of John David Smith.

Sample Execution Clause

10.7 The precise requirements for the execution clause should be confirmed with the local registry. An example of a possible execution clause for a statutory will, by reference to the requirements in Queensland, is as follows: [page 292] SIGNED for and on behalf of JOHN DAVID SMITH as his last Will by ______________________________ a Registrar of the Supreme Court of Queensland, Brisbane and sealed with the seal of the Supreme Court of Queensland as required by section 26(1)(b) of the Succession Act 1981 pursuant to an Order of Justice _________________________ under section 21(1) of the Act made on _____October 2013

) ) ) ) ............................. ) ) ) ) ) ) )

The registrar’s signature does not need to be witnessed (see the statutory execution requirements at 2.22).

[page 293]

CHAPTER 11 Case Studies 11.1

Introduction Case Study 1: ‘Nil Capacity’ Case Facts Analysis Case Study 2: Changing Gifts in an Existing Will, in Contested Circumstances Facts Analysis Case Study 3: Statutory Will for Tax and Asset Protection Planning Facts Analysis

11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 11.10

Introduction 11.1 In this chapter, case studies are used to illustrate the application of the statutory provisions, in three very different factual scenarios. The analysis is necessarily non-exhaustive, since more detailed factual information would need to be gathered in each of these cases in order to provide firm advice. The purpose of this analysis is to show the general approach that might be

taken in each of these scenarios, and to highlight some of the key issues that may be relevant and require particular consideration and investigation.

Case Study 1: ‘Nil Capacity’ Case 11.2 In Re Fenwick,1 Palmer J identified ‘nil capacity’ cases as a distinct category of statutory will applications. There have been numerous applications of this type, including AB v CB2, Application of Wosif Elayoubi,3 Payne v Smyth as Litigation Guardian for Welk4 and Wickham v Smith.5 [page 294]

Facts 11.3 The following facts provide the basis for this case study: (1) Andrew Henderson is 21 years old, and lives in Port Stephens, New South Wales. Andrew was seriously injured in a car accident when he was six years old, suffering a severe brain injury and paraplegia. The accident occurred in circumstances where Andrew’s father, Gilbert, was drink-driving, for which he received a suspended prison sentence. (2) Andrew received a substantial amount of compensation as a consequence of the accident. The Public Trustee of New South Wales was appointed as his administrator, and manages the compensation fund. The fund has a current value of $2.1 million, representing almost the entirety of Andrew’s estate. This includes a house worth $1.2 million that he lives in with his mother, Jo. The balance is used to pay all of Andrew’s living and medical expenses. (3) Andrew is cared for primarily by Jo, who has been his carer for around 15 years following his accident. Andrew’s daily care needs are extensive and ongoing, and he is seen regularly by his general practitioner. Jo was at the start of a promising career as a dentist when Andrew had his accident. She gave this up to be his full-time carer. She is now 47 years of age. (4) Andrew has one full sibling, a sister, Elsie, aged 24. Elsie lives in a

(5)

(6)

(7)

(8)

nearby suburb with her husband and young child. They all have regular contact with Andrew, and he enjoys an excellent relationship with them. Andrew also receives the benefit of services from a charity, ‘FunBus’, which for a number of years has taken him on day trips once a week. Andrew had little contact with his father, Gilbert, for many years. Around a year after the accident, Gilbert separated from Jo, as he found it difficult to come to terms with Andrew’s injuries. Gilbert then remarried, and has two young children from that marriage, Grace and Stephen, whom Andrew has not met. In the last two years, Gilbert has moved back to New South Wales, and has visited Andrew on several occasions. Andrew has never had capacity to make a will, and his estate would pass in accordance with the law of intestacy in New South Wales equally between Jo and Gilbert, or the survivor of them,6 or if neither of them survived him, equally between Elsie and Andrew’s half siblings, Grace and Stephen.7 It is clear that Andrew lacks testamentary capacity. This was confirmed recently in a report prepared by a specialist medical practitioner, who saw Andrew for that purpose at the request of the New South Wales Trustee and Guardian. The report also states that there is no possibility of Andrew ever regaining capacity. He is, however, able to form and maintain personal relationships, and shows clear affection for Jo, and for Elsie and her family. Andrew is expected to have a shorter than usual life expectancy. Jo is Andrew’s appointed guardian.

Analysis 11.4 The following key issues should be considered: (1) The relevant statutory wills legislation is the Succession Act 2006 (NSW) (see 9.2). Reference should also be made to Re Will of Jane,8 concerning the [page 295]

court’s approach to the hearing of statutory will applications in New South Wales. An order could be sought for the making of a will for Andrew, and the example of possible orders provided at 10.6 could be used as a starting point when preparing the originating process (see 4.24). (2) As Andrew has never had the capacity to make a will, a statutory will could be supported on a number of grounds, including that: Gilbert would receive half (if Jo was alive at Andrew’s death) or all (if Jo was not alive) of Andrew’s estate in the event of an intestacy. This may not be appropriate given the needs, circumstances and contributions of Jo (see 3.3), the previous lack of contact between Gilbert and Andrew (see 3.5), and the responsibility of Gilbert for causing Andrew’s injuries and incapacity (see 3.6). A distribution on intestacy (in the event that neither Gilbert nor Jo survives Andrew) equally between Elsie, whom Andrew is very close to, and his half siblings, whom he does not know, may not be appropriate (see 3.8). (3) The terms of the statutory will could possibly include: The appointment of the New South Wales Trustee and Guardian as executor. Specific charitable gifts that Andrew might be expected to make (see 4.21), for example, to FunBus in recognition of their assistance to him. A gift of the residence, or any residence purchased in substitution for it, to Jo. A division and distribution of Andrew’s residuary estate as to 80 per cent to Jo, and 20 per cent to Elsie. Default gifts to Elsie in place of Jo, and to Elsie’s children in default of Elsie. Appropriate administrative provisions. (4) Consideration should be given to who is the most appropriate applicant

in the circumstances (see 4.4): Is it Jo, on the basis that she is Andrew’s guardian and carer, and notwithstanding that the effect of the will, if approved, will be to adjust the intestacy outcome in her favour? (see 4.11) An alternative (or additional) applicant may be Elsie, who would be in a position to provide at least some of the listed information. While Elsie would be unlikely to be wholly disinterested as a beneficiary of Andrew’s estate, she would arguably have a less direct personal interest than Jo. However, she may not be able to provide all of the required information as to Andrew’s financial position. A further alternative may be the Public Trustee, as Andrew’s administrator (see 4.11). (5) Lack of testamentary capacity (see 4.8) does not appear likely to be in issue in the circumstances. The applicant would need to provide evidence sufficient to satisfy this threshold requirement (see 4.14). This could include a report from Andrew’s general practitioner, a report from the specialist who conducted the recent assessment, and also evidence from Jo about her own observations of Andrew’s capacity to undertake daily activities. The matters listed at 10.4 may assist with obtaining this evidence from medical practitioners. (6) The requirement that it be appropriate for an order authorising a statutory will to be made (see 4.10) should not be difficult to satisfy in these circumstances, subject to the other threshold requirements being met. [page 296] (7) The persons with a legitimate interest in the application (see 4.5 and 4.12) include: Jo; Elsie; Gilbert; the New South Wales Trustee and Guardian as Andrew’s administrator; and potentially Grace and Stephen by their parent or litigation guardian (see 5.6). Service should be by personal service where possible (see 4.26). Whether Andrew needs to be separately represented (see 5.3), and the position of the Public Trustee as

his administrator in relation to the application (see 5.7), would also require consideration. (8) The applicant would need to provide the listed information (see 2.14 and 4.13–4.22). Key matters, in addition to those already considered, would include: evidence of persons entitled to claim on intestacy in the various possible scenarios (see 4.18), and evidence of the circumstances of the persons for whom Andrew might be expected to provide by will (see 4.20). Potential family provision claims are also raised as an issue on the facts (see 4.19 and Chapter 6), and issues particular to New South Wales in this area, including the potential for a release of family provision rights (see 6.5), may require consideration. (9) The following matters will be relevant to addressing the ‘core test’ (see 4.9 and 4.16), by reference to the listed information: The approach in a ‘nil capacity’ case is the starting point when assessing the core test, and reference should be made in particular to the comments of Palmer J in Re Fenwick9 (see 1.22). The care and support provided by Jo to Andrew is likely to weigh heavily in the court’s consideration of the core test, and may support a finding that it is reasonably likely that Andrew would have made a gift of most or all of his estate to Jo. Andrew’s lack of a comparable close relationship and regular contact with Gilbert would be a relevant factor. The fact that Gilbert was responsible for causing Andrew’s injuries, compensation for which forms the source of Andrew’s assets to which the terms of a statutory will would apply, is likely to count against (but not necessarily prevent) Gilbert from benefiting under a statutory will (see 3.6). However, the recent improvement in Gilbert’s relationship with Andrew should be taken into account (see 3.7), and the size of Andrew’s estate may support an argument that it is reasonably likely that Andrew would have made some provision for his father. Jo’s relatively young age and earning potential after Andrew’s death would also be relevant considerations. The closeness of Andrew’s relationship with his sister, Elsie, compared to the absence of any relationship with his other siblings, is

likely to count strongly in favour of the proposed provision for Elsie and default gifts to her children. (10) How Gilbert responds to the application when he receives notice is an important consideration for him (see 5.11–5.16), and the grounds on which he could seek to oppose the application (see 5.17) are important considerations for both Gilbert and the applicant. Whether in the circumstances there can be negotiation and a potential compromise put to the court for approval (see 4.27) should be investigated. Gilbert should be advised as to the potential costs consequences of an unsuccessful defence of an application (see 7.2 and 7.5). (11) Consideration should be given to privacy in the proceeding (see 4.33), particularly given Andrew’s condition, the family history matters, and the fact [page 297] that interested persons are minors. This could potentially be achieved by seeking that any reasons for judgment be de-identified.

Case Study 2: Changing Gifts in an Existing Will, in Contested Circumstances 11.5 Where an application seeks to substantially change the existing testamentary arrangements of the proposed testator under a will made before they lost capacity, conflict can arise between the existing and proposed beneficiaries. Cases of this type include Boulton v Sanders10 and Plowright v Burge.11

Facts 11.6 The following facts provide the basis for this case study: (1) Charlie Briggs is 53 years old and lives in Hurstbridge, Victoria. He suffered a stroke five years ago in 2008, which has resulted in significant cognitive impairment, including the complete loss of speech.

(2)

(3)

(4)

(5)

Charlie lives in supported accommodation, and requires assistance from carers with basic daily tasks, including personal hygiene and feeding. In the last twelve months, his treating doctors have identified a new treatment that Charlie could commence, which offers a small but real chance of him regaining capacity, over several years. Charlie’s estate consists of a residential property in Hurstbridge worth $900,000, which was his former home. It is subject to a mortgage, on which $200,000 is owing. $300,000 remains in a retail superannuation fund, which includes proceeds from a payment under a total and permanent disability insurance policy which was received as a consequence of Charlie’s stroke. Charlie remains married to Cynthia Briggs, with whom he was living at the time of his stroke. They had been married in 2007 (the year before Charlie’s stroke), but there are no children of their marriage. Cynthia initially cared for Charlie for a short period when he returned home following hospitalisation after his stroke, however she soon found that she could not cope with his care, and arranged for him to move to the group home where he now lives. Cynthia has recently commenced family law proceedings for an adjustment of property interests between herself and Charlie. Charlie has three children from a previous marriage: Dallas (23 years of age), Bridget (19 years of age), and Kurt (16 years of age). Kurt has severe autism, and lives with his mother. Following Charlie’s accident, Cynthia took over the management of his financial affairs as his attorney appointed by an enduring power of attorney. During the Global Financial Crisis, she withdrew a substantial amount of Charlie’s superannuation, and made speculative investments in her personal capacity, including putting up the Hurstbridge property as security for margin loans. A total of $450,000 was lost as a consequence, which resulted in Cynthia being removed as attorney, and Charlie’s father, Frank Briggs, being appointed in her place as Charlie’s financial administrator. Cynthia also invested and lost most of her own assets, and is struggling to make ends meet. She remains living in the Hurstbridge property.

[page 298] (6) In 2006, two years before his stroke, Charlie made a will in contemplation of marriage. In that will, he appointed Cynthia as his executor, gifted $50,000 to each of his children, and gave his residuary estate to Cynthia if she survived him. In default of Cynthia, he left his residuary estate on a life estate for Kurt, with the remainder interest to his other children, Dallas and Bridget, in equal shares. That will revoked a will made by Charlie five years earlier in 2001, before he met Cynthia, which left his estate as to a third to each of Dallas and Bridget, and a third to a protective trust for Kurt. Both wills are held by the lawyer in Thornbury, Victoria, who had prepared them on Charlie’s instructions. At the same time as he made the 2006 will, Charlie also made a binding death benefit nomination in respect of his superannuation fund, requiring that his superannuation be paid equally between his children. (7) Frank has recently been approached by Dallas and Bridget, who feel that an application should be made for a statutory will for Charlie. They propose that the appointment of Cynthia as executor be changed to Frank, and that all gifts to Cynthia be removed. They effectively seek the reinstatement of the will made by Charlie in 2001. Frank agrees with the need for an application, and that all gifts to Cynthia should be removed. However, he seeks to have the share for Kurt held in a Special Disability Trust12 for his benefit, instead of a protective trust. He also feels that Kurt has a greater need than his siblings, and should receive more from his father’s estate than they do. Frank has discussed this with Kurt’s mother, who agrees that this would be in Kurt’s best interests, and feels that 50 per cent to a trust for Kurt and 25 per cent to each of Dallas and Bridget would be appropriate. (8) Frank has raised the issue of Charlie’s will with Cynthia by telephone, however she opposes a statutory will being made in either the terms proposed by Charlie’s adult children, or those proposed by Frank. She argues that she remains married to Charlie, and that they were separated only because of his incapacity. She points out her financial need. In fact, she feels that due to the impact of the losses incurred in the Global Financial Crisis, Charlie’s assets are now inadequate to provide benefits to his adult children, and the gifts to them should be removed. She

accepts that the existing gift to Kurt should remain, but does not want it to be increased. (9) Frank seeks legal advice from the lawyer in Thornbury who acted for Charlie previously.

Analysis 11.7 The following key issues should be considered: (1) The relevant statutory wills legislation is the Wills Act 1997 (Vic) (see 9.7), and the specific procedural requirements that apply to statutory will applications in Victoria should also be noted and followed (see 2.15). The relevant Victorian case law at 8.42–8.51 should be referred to. (2) As Charlie has an existing will that would take effect if a statutory will is not made, the application could seek to have a new will made for Charlie that revokes his existing will. (3) The terms of the statutory will to be included as a draft as part of the listed information (see 4.15) might include: The appointment of Frank as executor, with an appropriate default appointment if Frank was unable or unwilling to act as executor. [page 299] If the scheme of distribution proposed by Dallas and Bridget is to be sought, the draft will could provide for a gift of Charlie’s residuary estate in the same proportions as under the previous will made in 2001. If instead the scheme of distribution preferred by Frank is pursued, the draft will would need to provide for a division of residue in those adjusted proportions, and additional provisions would need to be included, for the share for Kurt to be held on the terms of a Special Disability Trust. Consideration would need to be given to whether the terms of that trust would be set out in the will, or whether a trust

would be established separately from Charlie’s estate, to which Kurt’s share could then be gifted by the proposed will. Reference should be made to the terms of both of Charlie’s previous wills, and where possible and appropriate, the substance of those provisions should be reproduced. Default gifts of the shares of Dallas and Bridget to their respective children should be included. The possibility that on Kurt’s death, some of the trust assets may remain should be considered, and appropriate default beneficiaries should be identified. Appropriate administrative provisions should be included. (4) Frank appears to be an appropriate applicant in the circumstances (see 4.4), as he does not have a direct personal interest in Charlie’s estate, is Charlie’s father, and is acting as his administrator. He also appears appropriate as the grandfather of the three children involved, and in light of the position he is taking in an effort to protect Kurt’s interest. The facts also raise the possibility that Cynthia may seek to apply as applicant for a statutory will in the terms she prefers. (5) Meeting the threshold requirement that Charlie lacks capacity (see 4.8) does not appear to be an issue on the facts, however there is at least some possibility that he may regain capacity. The likelihood of this is a factor that must be addressed (see 4.14), and this would be taken into account by the court when determining whether it is reasonable for an order approving a statutory will to be made (see 4.10). The applicant would need to provide evidence from the medical specialists as to Charlie’s condition and capacity generally, including evidence about the possible treatment and the prospects of Charlie regaining capacity as a result of it. It appears likely on the facts that if the court was satisfied that the threshold requirements for the approval of the making of a will were met, the possibility that Charlie may regain capacity, many years in the future, would not be likely to cause the court not to approve a statutory will. The position when a proposed testator for whom a statutory will has been made subsequently regains capacity is considered at 2.27.

(6) The persons with a legitimate interest in the application (see 4.5 and 4.12) include: Cynthia; Dallas; Bridget; Kurt by his parent or litigation guardian (see 5.6); and Frank. Whether Kurt needs to be separately represented (see 5.3) would require consideration, with there being the potential for his mother to act as his litigation guardian. (7) Key matters that would need to be covered in the listed information (see 2.14 and 4.13–4.22), in addition to those already considered, include evidence (if any is available) of Charlie’s wishes (see 4.16), evidence of the circumstances of the person(s) for whom Charlie might be expected to provide by will (see 4.20), and the potential for family provision claims (see 4.19). The terms of both of Charlie’s existing wills, including potential confidentiality considerations arising for Charlie’s previous lawyer, would also require careful consideration (see 4.17). [page 300] This is a ‘lost capacity’ case. Charlie has made two wills. As the court will be concerned with ascertaining Charlie’s subjective intention when assessing whether the core test (see 4.9) is met, this evidence is likely to be very important. The consideration of those for whom Charlie might be expected to provide and the related matter of potential family provision claims go directly to the court’s assessment of the core test, in circumstances where existing and proposed beneficiaries are competing for benefit. The likelihood of a family provision claim by one or more of Charlie’s children or Cynthia is also likely to be an important issue in the proceeding. (8) Cynthia’s misconduct in respect of the management of Charlie’s assets is a fact relevant to the assessment of the core test (see 3.6). A further matter that may impact on provision for her is the fact that her relationship with Charlie appears to have ended (see 3.5), in circumstances where their relationship and marriage before Charlie’s loss of capacity was only of a short duration. On the other hand, Cynthia’s poor financial position is a factor relevant to the requirement for evidence to be put before the court as to the extent to which Charlie might be expected to provide for her by will, and whether there is a

(9)

(10)

(11)

(12)

likelihood that she may make a family provision claim (see 4.20 and 4.19 respectively). The family law proceedings issued by Cynthia would require consideration. The relevance of proceedings of this kind is noted at 4.22. Depending on the status of the family law proceedings at the time of the hearing of the application, an issue may arise in connection with whether the requirement that it is reasonable for an order to be made is satisfied (see 4.10), in circumstances where the details of the property that will comprise Charlie’s estate, and the property that Cynthia may receive from his assets, will be settled by other proceedings. How the provision for Kurt is structured by Charlie’s will is likely to be an important consideration for the parties and the court, as Kurt is a vulnerable beneficiary (see 3.23). The terms could impact on any social security entitlements Kurt may have in the future (see 3.22). While the inclusion of the protective trust in Charlie’s will made in 2001, and the inclusion of a life estate provision in the default gift in his will made in 2006, would support Charlie being likely to continue to favour one or both of those structures if he had capacity, the additional benefits that a Special Disability Trust can now provide supports that being an option that he would likely have considered, if he had capacity. Given that the proposed will put forward by Frank is not substantially different from that proposed by Dallas and Bridget, it would be sensible for them to discuss whether they can reach some common ground, before an application is made. For example, it may be that agreement can be reached at least on the type of trust for Kurt, and who the trustee of that trust should be. As it appears likely that Cynthia will seek a statutory will in very different terms, it would be better that Frank and his grandchildren put forward a united and consistent position, if possible. The fact that superannuation of $300,000 is currently held outside of Charlie’s personal ownership will be an important consideration, and details of this would need to be included in the required listed information (see 4.22). The existence, currency and effect of the death benefit nomination made for or by Charlie would need to be investigated, as well as the rules of the fund in which the account is held that relate to the payment of death benefits. The nomination previously

made by Charlie may be relevant, both in terms of whether it could direct or influence how superannuation would be paid from the fund on Charlie’s death, and also in relation to what that nomination indicates about Charlie’s likely intentions in relation to his overall financial resources on his death. Cynthia [page 301] remains a spouse for superannuation purposes (subject to the specific rules of the fund), and each of Charlie’s children qualify as dependants for superannuation and tax purposes. Kurt’s disability may make it possible for any death benefits received by him to be paid as a pension.

Case Study 3: Statutory Will for Tax and Asset Protection Planning 11.8 Courts have accepted that statutory wills can be made for what can be described as ‘estate planning’ purposes, commonly tax or asset protection benefits. The decision in Re Matsis13 provides an example of the statutory wills jurisdiction being successfully utilised to deliver these benefits for the beneficiaries of the proposed testator; see 3.20–3.21. However, as the case of Hausfeld v Hausfeld14 demonstrated, there are limits to the extent to which the court will facilitate certain purposes, particularly where the interests of third parties may be adversely affected if the proposed will is made.15

Facts 11.9 The following facts provide the basis for this case study: (1) Peter Savage is 72 years of age, and has Alzheimer’s disease and terminal liver cancer. His physical health is extremely poor, and he is expected to have only a short time left to live. Peter lives in Hervey Bay, Queensland. (2) Peter’s estate consists of an investment portfolio worth $1.2 million. (3) Peter’s wife, Jean Savage, died three years ago. They have one son,

(4)

(5) (6)

(7)

Mark, who is 40 years of age. Mark is married to Valerie, and while they remain living together they have had a rocky marriage, including periods of separation and reconciliation. They are financially comfortable. They have three children, two of whom are nearing the end of schooling, and the third is at university. Peter made a will many years ago at the same time as Jean, with each of them leaving their estate to the other, and all to Mark on the death of the second of them. Their wills included an acknowledgement that they had made their wills at the same time, and in terms that they both agreed with. There is no doubt that Peter lacks testamentary capacity (see 4.8 and 4.14), and that there is no prospect that he will regain capacity. Peter had appointed Jean as his attorney under an enduring power of attorney, but had not made an appointment in default of her being alive and able to act in that role. Mark has been administering his father’s investments informally, using internet share trading, and by having Peter sign documents where required. Peter had a very acrimonious relationship with his daughter-in-law, Valerie, arising from a falling out at a family barbecue many years before. Peter and Jean had not spoken with or had any contact with Valerie since that time, and would only see Mark and his children if Valerie was not present. Peter made his strong dislike of Valerie clear to anyone who would listen. Peter and Jean left a document titled ‘Letter of Wishes’ with their lawyer, stating their jointly held strong view [page 302] that on the death of the second of them, their combined financial resources should only benefit Mark, his children, and his descendants, and that in no circumstances should Valerie benefit from them.

(8) Peter and Jean had a very close relationship with their grandchildren, and paid all of their school fees. (9) Mark is concerned that any inheritance that he receives personally from Peter could be exposed to potential family law proceedings if he

separates from Valerie in the future.

Analysis 11.10 The following key issues should be considered: (1) The application for a statutory will could be made pursuant to the Succession Act 1981 (Qld) (see 9.4). (2) Mark could act as applicant, and propose a statutory will containing the following terms: The appointment of a lawyer or trustee company as executor. A gift of Peter’s residuary estate on a testamentary discretionary trust. The terms of that trust could include provision for a trustee independent of Mark, with Mark either excluded as a beneficiary, or his entitlements limited, and with the beneficiaries of the trust including Mark’s children and his lineal descendants. Consideration should be given to including trust terms that require a mandatory (i.e. not wholly discretionary) provision of benefits to Peter’s grandchildren, including a requirement that the trust pay for their education to continue. (3) An alternative applicant to Mark should be considered (see 4.4 and 4.11), ideally someone who can focus on the interests of Peter’s grandchildren. (4) Confirmation of lack of testamentary capacity (see 4.8) could be provided by a report from Peter’s specialist who made the initial diagnosis of Alzheimer’s. (5) The persons with a legitimate interest in the application (see 4.5 and 4.12) include: Mark; potentially Valerie (see below); and potentially Mark’s children by Valerie as their parent or litigation guardian (see 5.6). (6) The key listed information (see 2.14 and 4.13) will include evidence of Peter’s wishes (see 4.16), evidence of the terms of Peter’s existing will (see 4.17) and the circumstances of Mark and his children as people for whom Peter might be expected to provide by his will (see 4.20).

(7) Matters particularly relevant to the core test (see 4.9) include: Evidence of Peter’s feelings towards Valerie, which would include the Letter of Wishes, the evidence of Peter’s lawyer, and evidence from Mark and other persons with whom Peter discussed his feelings towards Valerie and his intentions for his estate. The terms of Peter’s existing will would also be relevant, in particular whether there is a default provision in favour of Mark’s children in the event that Mark does not survive the second to die of Peter and Jean. There appear to be strong grounds for an argument that Peter would be likely to intend an estate planning strategy that would minimise the exposure of an inheritance left for the benefit of Mark and his children to the risk of a claim by Valerie. [page 303] Peter’s close relationship with his grandchildren, and his financial support of them, supports him being likely to leave his estate to a testamentary trust structure primarily for their benefit, particularly if the trustee of the trust is required to continue financial support Peter had been providing during life. Mark’s financial comfort arguably supports Peter being more likely to provide primarily for his grandchildren instead of Mark. The potential tax benefits of the testamentary discretionary trust structure, where distributions could be made to Mark’s children or in the future to later generations, would be relevant to whether Peter would be likely to choose the structure. (8) If the threshold requirement of the core test can be satisfied, it would also need to be checked that the requirement that it be appropriate for the order to be made authorising the statutory will can be satisfied (see 4.10). Relevant considerations to this threshold requirement include:

The effect of the statutory will if made, compared to the effect of Peter’s existing will, would be to move the inheritance from Mark’s personal ownership to a testamentary discretionary trust that Mark would not control, and from which he may receive little or no direct personal benefit. This could be viewed by Valerie as undesirable, as it would move this financial resource away from Mark (and indirectly her) while their relationship is continuing, and would potentially remove the inheritance from the pool of matrimonial property that could be considered by the Family Court if Valerie and Mark were to separate. There is likely to be an argument against it being appropriate to make the order, on the basis that the dominant purpose of the change of Peter’s arrangements could be said to be the protection of the inheritance from Mark’s potential family law proceedings (see 3.20 and 4.10). Arguments supporting the order being appropriate include that at the time of the application Mark has not separated from Valerie, and that there are no family law proceedings on foot or likely to commence in the near future. While it is theoretically possible that Mark and Valerie may separate in the future, they also may not. Of critical importance will be the view Valerie takes of the application. Given that the proposed will seeks to primarily benefit her children and her lineal descendants, and she has not separated from Mark, it may be that she in fact supports the application. If such support were to be confirmed to the court, or if Valerie is served with notice and does not take a position against the statutory will, then the court may have little difficulty in finding that this threshold requirement is satisfied. (9) Further inquiries would need to be made to establish whether Peter made a mutual will with Jean. If so, this is a relevant consideration, and would need to be included by the applicant in the evidence put before the court under the ‘other relevant facts’ item in the listed information (see 4.22). The particular terms of the mutual will agreement would require consideration. Depending on the facts, the proposed statutory will might not breach that arrangement, as it seeks to benefit only lineal

descendants as beneficiaries, which may be within the scope of what was agreed between Peter and Jean. It would be possible for Mark to confirm his non-opposition to the variation of Peter’s arrangements, to the extent that they reduce or exclude him from benefit. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 1.22. [2009] NSWSC 680; see 8.3. [2010] NSWSC 1004; see 8.7. [2010] QSC 45; see 8.20. Unreported, Supreme Court of Queensland, No 11730 of 2011, Daubney J, 8 February 2012; see 8.25. Succession Act 2006 (NSW) s 128. Succession Act 2006 (NSW) s 129. [2011] NSWSC 624; see 8.9. Re Fenwick; Application of J R Fenwick & Re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530; see 1.22. [2003] VSC 405; see 8.47. [2005] VSC 490; see 8.49. Social Security Act 1991 (Cth) Part 3.18A. Re Matsis; Charalambous v Charalambous [2012] QSC 349; see 8.26. [2012] NSWSC 989; see 8.10. The ‘actuating purpose’ is also an important consideration: Doughan v Straguszi [2013] QSC 295; see 8.30.

Catchword Index References are to paragraphs

Amending a will Re Fenwick, 8.2; Re Estate of Crawley, 8.5; Re Will of Jane, 8.9; Hausfeld v Hausfeld, 8.10; Re Estate of S, 8.11; Scott v Scott, 8.12; Re Keane; Mace v Malone, 8.22; Re Matsis; Charalambous v Charalambous, 8.26; Re Kann, 8.28; Jeavons v Chapman (No 2), 8.34; Griffin v Boardman, 8.36; Re Grace Geraldine Brown, 8.37; Re Martina Pieternella de Jager, 8.38; Re Manley, 8.39; EKI (Statutory Will), 8.41; Hill v Hill, 8.43; Re Fletcher; Ex parte Papaleo, 8.44; State Trustees Limited v Hayden, 8.45; De Gois v Korp, 8.48; Plowright v Burge, 8.49; Saunders v Pedemont, 8.51

Appeal State Trustees Limited v Hayden, 8.45; Boulton v Sanders, 8.47

Application for sanction Bielby v Denny, 8.19; Re Martina Pieternella de Jager, 8.38; Monger v Taylor, 8.42

Application opposed Re Will of Jane, 8.9; Scott v Scott, 8.12; Deecke v Deecke, 8.17; Re Keane; Mace v Malone, 8.22; Hickson v Humphrey, 8.23; Lawrie v Hwang, 8.29; Jeavons v Chapman (No 2), 8.34; Re Manley, 8.39; Hill v Hill, 8.43; State Trustees Limited v Hayden, 8.45; Boulton v Sanders, 8.47; Plowright v Burge, 8.49; Saunders v Pedemont, 8.51

Application unopposed Re DH; Application by JE and SM, 8.1; Re Fenwick, 8.2; AB v CB, 8.3; Re Estate of Crawley, 8.5; Application of Wosif Elayoubi, 8.7; Re Levy Estate — Application of Samuels, 8.8; Hausfeld v Hausfeld, 8.10; Re Estate of S, 8.11; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Re Winstanley, 8.15; Re Joachim, 8.16; Re Weick, 8.18; Payne v Smyth as Litigation Guardian for Welk, 8.20; Bock v Bock, 8.21; McKay v McKay, 8.24; Wickham v Smith, 8.25; Re Matsis; Charalambous v Charalambous, 8.26; Sadler v Eggmolesse, 8.27; Re Kann, 8.28; Doughan v Straguszi, 8.30; Bryant v Blake, 8.32; Hoffman v Waters, 8.33; Re Rak, 8.35; Griffin v Boardman, 8.36; Re Grace Geraldine Brown, 8.37; CMPA (Statutory Will), 8.40; EKI (Statutory Will), 8.41; Re Palmer, 8.46; De Gois v Korp, 8.48; State Trustees Limited v Do and Nguyen, 8.50; In the Will of Doris May Frances Davies, 8.52

Appropriate applicant Re Fenwick, 8.2; Application by Peter Leslie Kelso, 8.4; Re Will of Jane, 8.9; Re Estate of S, 8.11; Scott v Scott, 8.12; Re Winstanley, 8.15; Deecke v Deecke, 8.17; McKay v McKay, 8.24; Sadler v Eggmolesse, 8.27; Re Kann, 8.28; Lawrie v Hwang, 8.29; Jeavons v Chapman (No 2), 8.34; Re Grace Geraldine Brown, 8.37; CMPA (Statutory Will), 8.40; Monger v Taylor, 8.42; Re Palmer, 8.46; Boulton v Sanders, 8.47; State Trustees Limited v Do and Nguyen, 8.50; Saunders v Pedemont, 8.51

Charitable gifts Re Fenwick, 8.2; AB v CB, 8.3; Re Estate of Crawley, 8.5; Re Will of Jane, 8.9; Re Joachim, 8.16; Deecke v Deecke, 8.17; Payne v Smyth as Litigation Guardian for Welk, 8.20; Sadler v Eggmolesse, 8.27; Re Kann, 8.28; Jeavons v Chapman (No 2), 8.34; Griffin v Boardman, 8.36; Re Grace Geraldine Brown, 8.37; Re Martina Pieternella de Jager, 8.38; Re Manley, 8.39; Hill v Hill, 8.43; State Trustees Limited v Hayden, 8.45; Plowright v Burge, 8.49; State Trustees Limited v Do and Nguyen, 8.50

Conduct of interested persons Re DH; Application by JE and SM, 8.1; Re Fenwick, 8.2; AB v CB, 8.3;

Application by Peter Leslie Kelso, 8.4; Re Estate of Crawley, 8.5; Application of Sultana, 8.6; Application of Wosif Elayoubi, 8.7; Re Will of Jane, 8.9; Scott v Scott, 8.12; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Deecke v Deecke, 8.17; Re Weick, 8.18; Bock v Bock, 8.21; Re Keane; Mace v Malone, 8.22; Hickson v Humphrey, 8.23; Wickham v Smith, 8.25; Sadler v Eggmolesse, 8.27; Lawrie v Hwang, 8.29; Public Trustee v Phillips No SCCIV-03-800, 8.31; Bryant v Blake, 8.32; Jeavons v Chapman (No 2), 8.34; Griffin v Boardman, 8.36; Re Martina Pieternella de Jager, 8.38; EKI (Statutory Will), 8.41; Hill v Hill, 8.43; State Trustees Limited v Hayden, 8.45; Re Palmer, 8.46; De Gois v Korp, 8.48; Plowright v Burge, 8.49

Consideration of Re D(J) Re Fenwick, 8.2; Re Keane; Mace v Malone, 8.22; McKay v McKay, 8.24; Sadler v Eggmolesse, 8.27; Hoffman v Waters, 8.33; Griffin v Boardman, 8.36; Re Grace Geraldine Brown, 8.37; Re Manley, 8.39; Re Fletcher; Ex parte Papaleo, 8.44; State Trustees Limited v Hayden, 8.45; Boulton v Sanders, 8.47

Core test Re Fenwick, 8.2; AB v CB, 8.3; Application by Peter Leslie Kelso, 8.4; Re Will of Jane, 8.9; Hausfeld v Hausfeld, 8.10; Re Estate of S, 8.11; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Re Keane; Mace v Malone, 8.22; McKay v McKay, 8.24; Wickham v Smith, 8.25; Re Matsis; Charalambous v Charalambous, 8.26; Sadler v Eggmolesse, 8.27; Lawrie v Hwang, 8.29; Doughan v Straguszi, 8.30; Hoffman v Waters, 8.33; Re Rak, 8.35; Griffin v Boardman, 8.36; Re Manley, 8.39; CMPA (Statutory Will), 8.40; EKI (Statutory Will), 8.41; Re Fletcher; Ex parte Papaleo, 8.44; State Trustees Limited v Hayden, 8.45; Boulton v Sanders, 8.47; State Trustees Limited v Do and Nguyen, 8.50

Costs Application by Peter Leslie Kelso, 8.4; Re Will of Jane, 8.9; Re Estate of S, 8.11; Scott v Scott, 8.12; Re Keane; Mace v Malone, 8.22; Hickson v Humphrey, 8.23; Hoffman v Waters, 8.33; Jeavons v Chapman (No 2), 8.34;

Re Rak, 8.35; Re Martina Pieternella de Jager, 8.38; Re Manley, 8.39; Monger v Taylor, 8.42; Hill v Hill, 8.43; Re Palmer, 8.46; Boulton v Sanders, 8.47; Plowright v Burge, 8.49; Saunders v Pedemont, 8.51

Death of testator before will is executed Grace Geraldine Brown (Deceased), 8.37

Establishing lack of testamentary capacity Application by Peter Leslie Kelso, 8.4; Application of Sultana, 8.6; Re Levy Estate — Application of Samuels, 8.8; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Re Winstanley, 8.15; Deecke v Deecke, 8.17; Bielby v Denny, 8.19; Payne v Smyth as Litigation Guardian for Welk, 8.20; Re Matsis; Charalambous v Charalambous, 8.26; Re Kann, 8.28; Lawrie v Hwang, 8.29; Bryant v Blake, 8.32; Re Rak, 8.35; Griffin v Boardman, 8.36; Re Grace Geraldine Brown, 8.37; Re Martina Pieternella de Jager, 8.38

Estate planning Hausfeld v Hausfeld, 8.10; Re Matsis; Charalambous v Charalambous, 8.26; Doughan v Straguszi, 8.30

Evidence of intention Re Fenwick, 8.2; Application by Peter Leslie Kelso, 8.4; Re Will of Jane, 8.9; Re Estate of S, 8.11; Scott v Scott, 8.12; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Re Winstanley, 8.15; Deecke v Deecke, 8.17; McKay v McKay, 8.24; Wickham v Smith, 8.25; Lawrie v Hwang, 8.29; Doughan v Straguszi, 8.30; Public Trustee v Phillips No SCCIV-03800, 8.31; Bryant v Blake, 8.32; Jeavons v Chapman (No 2), 8.34; Griffin v Boardman, 8.36; Re Grace Geraldine Brown, 8.37; Re Martina Pieternella de Jager, 8.38; Re Manley, 8.39; Monger v Taylor, 8.42; Hill v Hill, 8.43; Re Fletcher; Ex parte Papaleo, 8.44; State Trustees Limited v Hayden, 8.45; Re Palmer, 8.46; Boulton v Sanders, 8.47; De Gois v Korp, 8.48; Plowright v Burge, 8.49; State Trustees Limited v Do and Nguyen, 8.50; Saunders v Pedemont, 8.51

Family provision Re Fenwick, 8.2; Re Will of Jane, 8.9; Scott v Scott, 8.12; Lawrie v Hwang, 8.29; Hill v Hill, 8.43; State Trustees Limited v Do and Nguyen, 8.50; Saunders v Pedemont, 8.51

Litigation guardian Scott v Scott, 8.12; Bielby v Denny, 8.19; Payne v Smyth as Litigation Guardian for Welk, 8.20; Hickson v Humphrey, 8.23; Public Trustee v Phillips No SCCIV-03-800, 8.31; Bryant v Blake, 8.32; Hoffman v Waters, 8.33; Jeavons v Chapman (No 2), 8.34; Re Rak, 8.35; Griffin v Boardman, 8.36; Re Grace Geraldine Brown, 8.37; Re Martina Pieternella de Jager, 8.38; Re Manley, 8.39

‘Lost capacity’ Re DH; Application by JE and SM, 8.1; Re Fenwick, 8.2; Application by Peter Leslie Kelso, 8.4; Re Estate of Crawley, 8.5; Re Levy Estate — Application of Samuels, 8.8; Re Will of Jane, 8.9; Hausfeld v Hausfeld, 8.10; Re Estate of S, 8.11; Scott v Scott, 8.12; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Deecke v Deecke, 8.17; Bielby v Denny, 8.19; Re Keane; Mace v Malone, 8.22; McKay v McKay, 8.24; Wickham v Smith, 8.25; Re Matsis; Charalambous v Charalambous, 8.26; ReKann, 8.28; Lawrie v Hwang, 8.29; Doughan v Straguszi, 8.30; Public Trustee v Phillips No SCCIV-03-800, 8.31; Jeavons v Chapman (No 2), 8.34; Griffin v Boardman, 8.36; Re Grace Geraldine Brown, 8.37; Re Martina Pieternella de Jager, 8.38; Re Manley, 8.39; EKI (Statutory Will), 8.41; Monger v Taylor, 8.42; Hill v Hill, 8.43; Re Fletcher; Ex parte Papaleo, 8.44; State Trustees Limited v Hayden, 8.45; Boulton v Sanders, 8.47; De Gois v Korp, 8.48; Plowright v Burge, 8.49; State Trustees Limited v Do and Nguyen, 8.50; Saunders v Pedemont, 8.51; In the Will of Doris May Frances Davies, 8.52

Making a will Re DH; Application by JE and SM, 8.1; Re Fenwick, 8.2; AB v CB, 8.3; Application by Peter Leslie Kelso, 8.4; Application of Sultana, 8.6; Application of Wosif Elayoubi, 8.7; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Re Winstanley, 8.15; Re Joachim, 8.16;

Deecke v Deecke, 8.17; Re Weick, 8.18; Payne v Smyth as Litigation Guardian for Welk, 8.20; Bock v Bock, 8.21; Hickson v Humphrey, 8.23; McKay v McKay, 8.24; Wickham v Smith, 8.25; Sadler v Eggmolesse, 8.27; Lawrie v Hwang, 8.29; Doughan v Straguszi, 8.30; Bryant v Blake, 8.32; Hoffman v Waters, 8.33; Re Rak, 8.35; CMPA (Statutory Will), 8.40; EKI (Statutory Will), 8.41; Monger v Taylor, 8.42; Re Palmer, 8.46; Boulton v Sanders, 8.47; State Trustees Limited v Do and Nguyen, 8.50; In the Will of Doris May Frances Davies, 8.52

‘Nil capacity’ Re Fenwick, 8.2; Application of Sultana, 8.6; Application of Wosif Elayoubi, 8.7; Re Winstanley, 8.15; Re Joachim, 8.16; Sadler v Eggmolesse, 8.27; Bryant v Blake, 8.32; Hoffman v Waters, 8.33; Re Rak, 8.35; CMPA (Statutory Will), 8.40; Re Palmer, 8.46

Notice to interested persons Re DH; Application by JE and SM, 8.1; Re Fenwick, 8.2; AB v CB, 8.3; Application by Peter Leslie Kelso, 8.4; Re Estate of Crawley, 8.5; Application of Sultana, 8.6; Re Will of Jane, 8.9; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Re Winstanley, 8.15; Deecke v Deecke, 8.17; Re Weick, 8.18; Payne v Smyth as Litigation Guardian for Welk, 8.20; Sadler v Eggmolesse, 8.27; Lawrie v Hwang, 8.29; Public Trustee v Phillips No SCCIV-03-800, 8.31; Bryant v Blake, 8.32; Re Manley, 8.39; CMPA (Statutory Will), 8.40; EKI (Statutory Will), 8.41; Monger v Taylor, 8.42; Re Palmer, 8.46; De Gois v Korp, 8.48

‘Pre-empted capacity’ Re Fenwick, 8.2; AB v CB, 8.3; Re Weick, 8.18; Payne v Smyth as Litigation Guardian for Welk, 8.20; Bock v Bock, 8.21

Privacy Re Fenwick, 8.2; AB v CB, 8.3; Re Will of Jane, 8.9; Hausfeld v Hausfeld, 8.10; Scott v Scott, 8.12; CMPA (Statutory Will), 8.40; EKI (Statutory Will), 8.41

Revoking a will Re Levy Estate — Application of Samuels, 8.8; Public Trustee v Phillips No SCCIV- 03-800, 8.31

Separate representation AB v CB, 8.3; Re Will of Jane, 8.9; Bock v Bock, 8.21; Boulton v Sanders, 8.47

Superannuation Wickham v Smith, 8.25

Terms of statutory will Re Fenwick, 8.2; Application by Peter Leslie Kelso, 8.4; Re Estate of S, 8.11; Scott v Scott, 8.12; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Payne v Smyth as Litigation Guardian for Welk, 8.20; Hickson v Humphrey, 8.23; Griffin v Boardman, 8.36; Re Martina Pieternella de Jager, 8.38; Re Manley, 8.39; CMPA (Statutory Will), 8.40; Monger v Taylor, 8.42; Hill v Hill, 8.43; State Trustees Limited v Hayden, 8.45; Re Palmer, 8.46; Boulton v Sanders, 8.47; Plowright v Burge, 8.49; State Trustees Limited v Do and Nguyen, 8.50

Two-stage process Re Estate of Crawley, 8.5; Re Will of Jane, 8.9; Burns v The Estate of Troy Mitchell Burns, a Protected Person, 8.13; Re Kann, 8.28; Bryant v Blake, 8.32; Hoffman v Waters, 8.33

Unsuccessful application Re Will of Jane, 8.9; Hausfeld v Hausfeld, 8.10; Re Keane; Mace v Malone, 8.22; Jeavons v Chapman (No 2), 8.34; Re Manley, 8.39; EKI (Statutory Will), 8.41; Re Fletcher; Ex parte Papaleo, 8.44; Boulton v Sanders, 8.47; Saunders v Pedemont, 8.51

Index References are to paragraphs

A Active participation …. 5.16 Adeemed gift …. 3.13 Adjournment requests …. 4.30 Adjusting beneficial entitlements attempted murder …. 3.6 carer parent versus absent parent …. 3.3 change in circumstances …. 3.9 changed testamentary intentions …. 3.4 conduct of interested persons …. 3.6 financial misconduct …. 3.6 improvement in poor relationship …. 3.7 misconduct by beneficiary …. 3.6 relationship between testator and beneficiary ended …. 3.5 statutory will used for …. 3.2–3.9 worthy recipients, including …. 3.8 Administrator role in application proceedings …. 4.11, 5.7 Aged care means test planning …. 3.22 Alteration of statutory will …. 4.36, 4.37 Amendment of existing will see Existing will Applicant acting for …. 4.1–4.37 checklist for taking instructions …. 10.1

appropriate applicant …. 2.12, 4.11 cases …. 8.2, 8.4, 8.9, 8.11, 8.12, 8.15, 8.17, 8.24, 8.27, 8.28, 8.29, 8.34, 8.37, 8.40, 8.42, 8.46, 8.47, 8.50, 8.51 identifying …. 4.4, 10.1 threshold requirement …. 2.8, 2.12, 4.11 correspondence with …. 10.3 interest in outcome …. 4.4, 4.11 who can apply …. 1.14, 4.4, 4.11 Applications see Statutory will applications Appropriate applicant see Applicant Appropriate for order to be made meaning …. 2.11 threshold requirement …. 2.8, 2.11 Asset protection case study …. 11.8–11.10 creditors of beneficiary …. 3.20 definition …. 3.20 statutory codicil for …. 8.26 statutory will used for …. 3.20, 11.8–11.10 testamentary trust …. 3.20, 11.10 Attempted murder adjustment of entitlement …. 3.6 Attorney role in application proceedings …. 5.7 Australian applications Australian Capital Territory …. 1.24, 8.1 New South Wales …. 1.22, 1.25, 8.2–8.13 Northern Territory (none) …. 1.26 Queensland …. 1.27, 8.15–8.30 South Australia …. 1.28, 8.31–8.39 statistics on …. 1.23 Tasmania …. 1.29, 8.40–8.41 Victoria …. 1.21, 1.30, 8.42–8.51 Western Australia …. 1.31, 8.52 Australian Capital Territory appropriate applicant …. 2.12, 9.1 cases …. 1.24, 8.1

core test …. 2.4, 2.10, 4.9, 9.1 costs …. 2.25 execution of will …. 2.22, 9.1 hearing of leave application …. 2.16, 9.1 hearing of substantive application …. 2.17, 9.1 minors …. 2.6, 9.1 orders that can be made …. 2.18, 9.1 representation of interested persons …. 2.13, 9.1 recognition of statutory wills …. 2.26 retention of will …. 2.23, 9.1 revision of draft will or codicil …. 2.20 separate representation of proposed testator …. 2.21, 5.3 standing to apply …. 2.5, 9.1 statutory scheme …. 2.4, 9.1 commencement of …. 2.4 threshold requirements …. 2.8–2.13, 9.1 Australian case law Australian Capital Territory …. 1.24, 8.1 leading authorities …. 1.20 New South Wales …. 1.22, 1.25, 8.2–8.13 Northern Territory (none) …. 1.26 Queensland …. 1.27, 8.15–8.30 South Australia …. 1.28, 8.31–8.39 Tasmania …. 1.29, 8.40–8.41 Victoria …. 1.21, 1.30, 8.42–8.51 Western Australia …. 1.31, 8.52 Australian legislation development of …. 1.12–1.18 enactment of …. 1.19 general statutory scheme …. 2.3, 2.4 National Committee for Uniform Succession Laws …. 1.18 1997 Report …. 1.18 NSW Law Reform Commission paper 1989 …. 1.14 NSW Law Reform Commission report 1992 …. 1.14, 4.11 Qld Law Reform Commission paper 1994 …. 1.17 Vic Law Reform Commission report 1985 …. 1.13 Vic Law Reform Commission report 1994 …. 1.16

B Beneficiary creditors of …. 3.20, 5.9 debts owed to testator by …. 4.22 interested persons …. 5.9 misconduct by …. 3.6 more worthy recipients …. 3.8 relationship between testator and end of …. 3.5, 4.9 improvement in …. 3.7 updating will where changes …. 4.36 vulnerable, protection of …. 3.23 Best interests approach determining best interests …. 1.8 doubts as to validity of recent will …. 1.10 England Wales …. 1.8–1.11, 9.9 goal of inquiry …. 1.9 remembered for doing the right thing …. 1.9, 1.11 substituted judgment compared …. 1.9, 1.11 Bona vacantia avoiding property passing as …. 3.12 property vesting under intestacy rules …. 3.11 ‘Brief interval of sanity’ …. 1.3, 1.4

C Carer carer parent versus absent parent …. 3.3 worthy recipient, inclusion of …. 3.3, 3.8 Case studies estate planning …. 11.8–11.10 ‘lost capacity’, amendment of existing will …. 11.5–11.7 ‘nil capacity’ …. 11.2–11.4 Change in circumstances adjustment of entitlements …. 3.9 review and update of will …. 4.36

testamentary intentions, impacting on …. 3.9, 4.16 Charitable gifts cases …. 8.2, 8.3, 8.5, 8.9, 8.16, 8.17, 8.20, 8.27, 8.28, 8.34, 8.36, 8.37, 8.38, 8.39, 8.43, 8.45, 8.49, 8.50 evidence of expectation …. 4.21 examples …. 4.21 ‘normal decent person’ …. 1.6 worthy recipients …. 3.8 Charities gifts to see Charitable gifts interested persons …. 5.9 Checklist for taking instructions …. 10.1 Codicil …. 2.3, 2.20, 2.22, 2.23, 2.26, 4.6, 4.15, 4.17, 4.31, 4.35 Consultation …. 4.27 Core test Australian Capital Territory …. 2.4, 2.10, 4.9 ‘best interests’ (UK) …. 1.8–1.11 carer parent versus absent parent …. 3.3 cases …. 8.2, 8.3, 8.4, 8.9, 8.10, 8.11, 8.13, 8.22, 8.24, 8.25, 8.26, 8.27, 8.29, 8.30, 8.33, 8.35, 8.36, 8.39, 8.40, 8.41, 8.44, 8.45, 8.47, 8.50 consideration of Re D(J), cases …. 8.2, 8.22, 8.24, 8.27, 8.33, 8.36, 8.37, 8.39, 8.44, 8.45, 8.47 counter-factual assumptions …. 1.4, 4.9 fairness not relevant …. 4.9 family provision claims compared …. 6.3 focus of wording of …. 4.9 ‘lost capacity’ …. 1.22 New South Wales …. 1.22, 2.4, 2.10, 4.9 ‘nil capacity’ …. 1.22 ‘normal decent person’ …. 1.6 Northern Territory …. 2.4, 2.10, 4.9 opposition claiming that not met …. 5.17 ‘pre-empted capacity’ …. 1.22, 4.9 Queensland …. 2.4, 2.10, 4.9 ‘reasonably likely’ …. 1.22, 4.9 satisfied, but not appropriate for order to be made …. 4.10 South Australia …. 2.4, 2.10

‘substituted judgment’ (UK) …. 1.2–1.7, 1.22 Tasmania …. 2.4, 2.10, 4.9 threshold requirement …. 2.8, 2.10, 4.9 variation between States and Territories …. 2.10, 4.9 Victoria …. 1.21, 2.4, 2.10, 2.28, 4.9 Western Australia …. 2.4, 2.10 will which would have been made by the person …. 1.14 wishes of proposed testator …. 1.22, 4.9 Correspondence applicant, with …. 10.3 interested persons, with …. 10.5 medical practitioner, with …. 10.4 precedents …. 10.2–10.5 Costs advising applicant about …. 4.23 cases …. 8.4, 8.9, 8.11, 8.12, 8.22, 8.23, 8.33, 8.34, 8.35, 8.38, 8.39, 8.42, 8.43, 8.46, 8.47, 8.49, 8.51 checklist for taking instructions …. 10.1 discontinued applications …. 7.4 examples of orders …. 7.5 follow the event …. 7.3 general principles …. 7.1–7.4 indemnity basis …. 7.5 justice of the case …. 7.2 litigation guardian …. 5.2–5.5, 5.6 minimising …. 4.29 opposed applications successful …. 7.2, 7.5 unsuccessful …. 7.3, 7.5 party-party basis …. 7.3, 7.5 small estate likely to be significantly eroded by …. 4.23 State Trustees …. 7.3 statutory provisions about …. 2.25, 7.1, 7.6 submissions on …. 7.2 successful applications …. 7.2, 7.5 unopposed applications …. 7.2, 7.5 unsuccessful applications …. 7.3, 7.5

D Death of proposed testator application for statutory will after …. 1.18 before will executed …. 8.37 exclusion of court’s jurisdiction …. 1.18 Defective previous will …. 3.16 Discontinued applications costs …. 7.4 Discretionary trusts asset protection …. 8.26, 11.10 authorisation of will involving …. 1.27

E End of relationship adjustment of entitlement …. 3.5 intention to exclude former partner …. 3.5, 4.9 England and Wales best interests approach …. 1.8–1.11, 9.9 Australian reports based on …. 1.13, 1.14 origins of jurisdiction in …. 1.1 substituted judgment approach …. 1.2–1.7 Estate litigation avoiding …. 3.10, 3.18 family provision claims see Family provision claims Estate planning aged care means test planning …. 3.22 asset protection …. 3.20, 8.26, 11.8–11.10 Australian cases …. 8.10, 8.26, 8.30 case study …. 11.8–11.10 definition …. 3.19 protection of vulnerable beneficiary …. 3.23 social security means test planning …. 3.22 statutory will used for …. 3.19–3.23 tax planning …. 3.21, 11.8 testamentary trust …. 3.20, 11.10

Evidence affidavit …. 2.15, 4.13, 4.32 checklist …. 10.1 cross-examination …. 4.32 disputes of fact on …. 4.32 expert medical evidence …. 4.14 family provision claims, likelihood of …. 4.19, 6.2 gifts expected to be made …. 4.21 hearing of application, on …. 2.19, 4.32 intention, of, cases …. 8.2, 8.4, 8.9, 8.11, 8.12, 8.13, 8.15, 8.17, 8.24, 8.25, 8.29, 8.30, 8.31, 8.32, 8.34, 8.36, 8.37, 8.38, 8.39, 8.42, 8.43, 8.44, 8.45, 8.46, 8.47, 8.48, 8.49, 8.50, 8.51 lack of capacity, of …. 4.14 best evidence …. 4.14 checklist …. 10.1 least satisfactory evidence …. 4.14 next best evidence …. 4.14 standard of proof …. 1.14, 4.8 oral …. 4.32 persons entitled to claim on intestacy …. 4.18 persons expected to be provided for …. 4.20 previous will, terms of …. 4.17 proposed testator’s wishes, of …. 4.16 rules of …. 4.13 Execution of statutory will arranging …. 4.35 Australian Capital Territory …. 9.1 death of testator before …. 8.37 New South Wales …. 1.14, 9.2 Northern Territory …. 9.3 NSWLRC recommendations …. 1.14 sample execution clause …. 10.7 statutory requirements …. 2.22 Tasmania …. 9.6 urgent cases …. 4.35 Victoria …. 9.7 Existing will

adjusting beneficial entitlements …. 3.2–3.9 carer parent versus absent parent …. 3.3 change in circumstances …. 3.9, 8.52 changed testamentary intentions …. 3.4 improvement in poor relationship …. 3.7 misconduct by beneficiary …. 3.6 relationship between testator and beneficiary ended …. 3.5 worthy recipients, including …. 3.8 amendment of adjusting entitlements …. 3.2–3.9 cases …. 8.2, 8.5, 8.9, 8.10, 8.11, 8.12, 8.22, 8.26, 8.28, 8.34, 8.36, 8.37, 8.38, 8.39, 8.41, 8.43, 8.44, 8.45, 8.48, 8.49, 8.51 case study …. 11.2–11.4 application for execution of codicil …. 1.4 before loss of capacity …. 1.7, 1.14, 1.22 concern about testamentary capacity …. 3.14 construction applications, avoiding …. 3.17 copies of …. 4.17 direction for production of …. 4.17, 4.29 defeating claims or expectations …. 1.22 defective …. 3.16 direction for production of copy of …. 4.29 doubts as to effectiveness …. 3.11–3.13, 3.16–3.18 doubts as to validity …. 1.10, 3.14, 4.17 evidence of terms of …. 4.17 information about …. 4.17 missing …. 3.15 ‘purported will’ …. 8.41 rectification applications, avoiding …. 3.17 resolving problems with …. 3.10–3.18 adeemed gift …. 3.13 concern about testamentary capacity …. 3.14 construction applications, avoiding …. 3.17 defective will …. 3.16 estate litigation …. 3.10, 3.18 failure of gift …. 3.10 family provision claims, avoiding …. 3.18

lapsed gift …. 3.11 missing will …. 3.15 rectification applications, avoiding …. 3.17 revocation of, cases …. 8.8, 8.31

F Family law proceedings information about …. 4.22 Family provision claims avoiding …. 3.18 cases where considered …. 8.2, 8.9, 8.12, 8.29, 8.43, 8.50, 8.51 court’s power …. 6.1 disentitling conduct …. 6.2 evidence of likelihood of …. 4.19, 6.2 New South Wales …. 6.4 contracting out …. 6.5 notional estate …. 6.6 release of rights …. 6.5 statutory will applications approach by courts in deciding …. 6.2 differences …. 6.3 inter-relationship with …. 1.14, 6.1 overlap of relevant factors …. 6.3 statutory will made, where …. 6.3 statutory will refused, where …. 6.3 testamentary intentions …. 6.2 Fraud by beneficiary adjustment of entitlements …. 3.6

G Gifts to charities see Charitable gifts Guardian ad litem see Litigation guardian Guardianship and Administration Board (Tas) alteration of will made by …. 2.2, 9.6 evidence of lack of capacity …. 4.14

family provision claims …. 6.3 health care professional report …. 4.14 jurisdiction …. 1.29, 2.2, 9.6 revocation of will made by …. 2.2, 9.6 validity of statutory wills made by …. 2.2, 9.6

I Improvement in relationship adjustment of entitlement …. 3.7 Information to be provided Australian Capital Territory …. 2.14, 9.1 charitable gifts expected to be made …. 4.21 constructive trusts …. 4.22 copies of previous wills …. 4.17 debts owed by beneficiary …. 4.22 dispensing discretion …. 4.13 evidence of lack of capacity …. 4.14 standard of proof …. 1.14, 4.8 family law proceedings …. 4.22 family provision claims, likelihood of …. 4.19, 6.2 filing and serving …. 4.26 gifts expected to be made …. 4.21 joint tenancy assets …. 4.22 list of …. 2.14, 4.13 mutual will arrangements …. 4.22 New South Wales …. 2.14, 4.13, 9.2 Northern Territory …. 2.14, 9.3 persons entitled to claim on intestacy …. 4.18 persons expected to be provided for …. 4.20 previous wills …. 4.17 proprietary claims …. 4.22 providing listed information …. 4.13 Queensland …. 2.14, 9.4 relevant facts …. 4.22 remembrance …. 4.22 rules of evidence …. 4.13

South Australia …. 2.14, 9.5 statutory requirements …. 2.14 superannuation …. 4.22 Tasmania …. 2.14, 9.6 terms of previous will, evidence of …. 4.17 testamentary contracts …. 4.22 testamentary estoppels …. 4.22 trusts, interests in …. 4.22 Victoria …. 2.14, 4.13, 9.7 Western Australia …. 2.14, 9.8 wishes of proposed testator, evidence of …. 4.16 Instructions checklist for taking …. 10.1 direct, from testator …. 5.8 Intentions of person who lacks capacity advice of competent solicitor assumed …. 1.7 asset protection …. 3.20 change in circumstances impacting on …. 3.9, 4.16 change of, statutory will where …. 3.4 core test see Core test exclusion of former partner …. 3.5, 4.9 family provision claims and …. 6.2 keeping wealth within family …. 3.20 ‘lost capacity’ …. 1.22 minor …. 1.22 misconduct by beneficiary, where …. 3.6 ‘nil capacity’ …. 1.22, 4.9 ‘normal decent person’ …. 1.6 ‘pre-empted capacity’ …. 1.22, 4.9 previous will, terms of …. 4.17 reasonably likely …. 1.22, 4.9 valid will made …. 1.22 wishes expressed …. 4.9, 4.16 Interested persons absence of …. 4.12 acting for …. 5.1–5.17 active participation …. 5.16

categories of …. 5.9 conduct of …. 3.6 conduct of, cases …. 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.9, 8.12, 8.13, 8.17, 8.18, 8.21, 8.22, 8.23, 8.25, 8.27, 8.29, 8.31, 8.32, 8.34, 8.36, 8.38, 8.41, 8.43, 8.45, 8.46, 8.48, 8.49 correspondence with …. 10.5 family provision claims see Family provision claims identifying persons to be named and served …. 4.5 legitimate interest …. 4.5, 4.12 mediation, participation in …. 4.27, 5.14 methods of participation …. 5.11–5.16 minor beneficiaries …. 4.5 negotiation, participation in …. 4.27, 5.14 no involvement …. 5.12 notice to …. 1.14, 4.5, 4.27 notice to, cases …. 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.9, 8.13, 8.15, 8.17, 8.18, 8.20, 8.27, 8.29, 8.31, 8.32, 8.39, 8.40, 8.41, 8.42, 8.46, 8.48 opposition, grounds for …. 5.17 passive participation …. 5.15 personal service on (Tas) …. 4.26 practical assistance, providing …. 5.13 proper interest …. 4.12 representation of …. 2.13, 4.12, 5.6 rights of appearance …. 4.5 separate representation …. 5.6 service on …. 4.5, 4.26 undue influence by …. 3.6 Intestacy adjusting beneficial entitlements …. 3.2–3.9 carer parent versus absent parent …. 3.3 change in circumstances …. 3.9 changed testamentary intentions …. 3.4 improvement in poor relationship …. 3.7 misconduct by beneficiary …. 3.6 relationship between testator and beneficiary ended …. 3.5 worthy recipients, including …. 3.8 bona vacantia …. 3.11, 3.12

avoiding property passing as …. 3.12 conduct of interested persons …. 3.6 limitations of rules …. 1.14 persons entitled to claim on …. 5.9 resolving problems with …. 3.10–3.18 bona vacantia, avoiding …. 3.12 estate litigation …. 3.10 failure of gift …. 3.10 lapsed gift …. 3.11 unintended intestacy …. 3.10 statutory will application where …. 1.14 testamentary incapacity and …. 1.22 unintended …. 3.10

J Joint tenancy assets information about …. 4.22 Jurisdiction to authorise will Chancery Courts …. 1.1 discretionary …. 2.11, 4.10 exclusion by death of person …. 1.18 Guardianship and Administration Board (Tas) …. 1.29, 2.2, 9.6 origins in England and Wales …. 1.1 parens patriae jurisdiction …. 1.1 Supreme Court …. 2.1 Australian Capital Territory …. 9.1 New South Wales …. 9.2 Northern Territory …. 9.3 Queensland …. 9.4 South Australia …. 9.5 Tasmania …. 1.29, 2.2, 9.6 Victoria …. 2.1, 9.7 Western Australia …. 9.8

L

Lack of testamentary capacity cause of …. 2.9 concern about existing will …. 3.14 establishing, cases …. 8.4, 8.6, 8.8, 8.13, 8.15, 8.17, 8.19, 8.20, 8.26, 8.28, 8.29, 8.32, 8.35, 8.36, 8.37, 8.38 evidence of …. 4.14 best evidence …. 4.14 checklist …. 10.1 least satisfactory evidence …. 4.14 next best evidence …. 4.14 standard of proof …. 1.14, 4.8 lacking will-making capacity, definition …. 1.14, 4.8 ‘lost capacity’ see ‘Lost capacity’ ‘nil capacity’ see ‘Nil capacity’ ‘pre-empted capacity’ see ‘Pre-empted capacity’ proof of …. 1.14, 4.8, 4.14 since birth see ‘Nil capacity’ test of …. 4.8 testamentary capacity, meaning …. 2.9 threshold requirement …. 2.8, 2.9, 4.8 will made before onset of …. 1.7, 1.14 Lapsed gift consequence …. 3.11 intention to avoid …. 3.11 statutory will to avoid …. 3.11 Leave of court application for …. 2.3, 4.29 information in support see Information to be provided Northern Territory …. 9.3 procedure …. 2.15 South Australia …. 9.5 substantive application heard together with …. 4.29 hearing of application …. 2.16 adjournment request …. 4.30 Australian Capital Territory …. 9.1 entitlement to appear at …. 2.16, 4.32, 9.7 evidence on …. 2.19, 4.32

New South Wales …. 9.2 Queensland …. 9.4 South Australia …. 9.5 Tasmania …. 9.6 Victoria …. 9.7 requirement for …. 1.14, 2.3, 2.7 Northern Territory …. 9.3 Queensland …. 9.4 Tasmania …. 9.6 Litigation guardian cases …. 8.12, 8.19, 8.20, 8.23, 8.31, 8.32, 8.33, 8.34, 8.35, 8.36, 8.37, 8.38, 8.39 choice of …. 5.5 costs …. 5.4 NSW Trustee and Guardian …. 5.3 Public Advocate (SA) …. 5.4 Queensland …. 5.5 Registrar of Probates (SA) …. 5.4 representation of other persons …. 5.6 representation of testator …. 5.2–5.5 South Australia …. 5.4 ‘Lost capacity’ cases …. 8.1, 8.2, 8.4, 8.5, 8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.17, 8.19, 8.22, 8.24, 8.25, 8.26, 8.28, 8.29, 8.30, 8.31, 8.34, 8.36, 8.37, 8.38, 8.39, 8.41, 8.42, 8.43, 8.44, 8.45, 8.47, 8.48, 8.49, 8.50, 8.51, 8.52 definition …. 1.22 determining intention …. 1.22, 4.9 existing will …. 1.7, 1.14, 1.22 amendment of …. 11.5–11.7, 11.8–11.10 concern about capacity …. 3.14 minor …. 1.22, 2.6 will never made …. 1.22

M Medical practitioner correspondence with …. 10.4

expert medical evidence …. 4.14 Minors application of scheme to …. 1.14, 1.18, 2.6 ‘pre-empted capacity’ see ‘Pre-empted capacity’ Victoria …. 9.7 Misconduct by beneficiary adjustment of entitlements …. 3.6 financial …. 3.6 physical …. 3.6 Missing will copy of …. 3.15 statutory will where …. 3.15 Mutual will arrangements information about …. 4.22

N Negotiation or mediation ascertaining position of other party …. 4.27 compromise, terms of …. 4.27 participation in …. 4.27, 5.14 New South Wales appropriate applicant …. 2.12, 4.11, 9.2 cases …. 1.25, 8.2–8.13 core test …. 1.22, 2.4, 2.10, 4.9, 9.2 costs …. 2.25 execution of will …. 2.22, 9.2 family provision …. 6.4 contracting out …. 6.5 notional estate …. 6.6 release of rights …. 6.5 hearing of leave application …. 2.16, 9.2 hearing of substantive application …. 2.17, 9.2 information to be provided …. 2.14, 4.13, 9.2 Law Reform Commission paper 1989 …. 1.14 Law Reform Commission report 1992 …. 1.14, 4.11 minors …. 2.6, 9.2

notional estate …. 6.6 orders that can be made …. 2.18, 9.2 procedural rules …. 2.4 proposed scheme 1989 …. 1.14 recognition of statutory wills …. 2.26 representation of interested persons …. 2.13 retention of will …. 2.23, 9.2 revision of draft will or codicil …. 2.20 separate representation of proposed testator …. 2.21, 5.3 standing to apply …. 2.5, 9.2 statutory scheme …. 2.4, 9.2 commencement of …. 2.4 Succession Act 2006 …. 1.14, 1.19, 2.4, 9.2 threshold requirements …. 2.8–2.13, 9.2 ‘Nil capacity’ cases …. 8.2, 8.6, 8.7, 8.15, 8.16, 8.27, 8.32, 8.33, 8.35, 8.40, 8.46 case study …. 11.2–11.4 core test …. 1.22 definition …. 1.22 determining intentions …. 1.22, 4.9 ‘nil capacity’ since birth …. 1.6, 1.14, 1.22 Northern Territory affidavit supporting application …. 2.15 application procedure …. 2.15, 9.3 applications in …. 1.26 appropriate applicant …. 2.12, 9.3 core test …. 2.4, 2.10, 4.9, 9.3 costs …. 2.25 execution of will …. 2.22, 9.3 hearing of leave application …. 2.16, 9.3 hearing of substantive application …. 2.17, 9.3 minors …. 2.6, 9.3 orders that can be made …. 2.18, 9.3 procedural rules …. 2.4, 9.3 recognition of statutory wills …. 2.26 representation of interested persons …. 2.13 retention of will …. 2.23, 9.3

revision of draft will or codicil …. 2.20 standing to apply …. 2.5, 9.3 statutory scheme …. 2.4, 9.3 commencement of …. 2.4 Supreme Court Rules …. 2.4, 9.3 threshold requirements …. 2.8–2.13, 9.3 Notional estate …. 6.6

P Parens patriae jurisdiction …. 1.1 Parents carer parent versus absent parent …. 3.3 misconduct by …. 3.6 Passive participation …. 5.15 Precedents checklist for taking instructions …. 10.1 correspondence …. 10.2–10.5 execution clause …. 10.7 form of orders …. 10.6 ‘Pre-empted capacity’ cases …. 8.2, 8.3, 8.18, 8.20, 8.21 definition …. 1.22 determining intention …. 1.22, 4.9 minor …. 1.22 testamentary intention expressed …. 1.22 testamentary intention never expressed …. 1.22 Privacy cases …. 8.2, 8.3, 8.9, 8.10, 8.12, 8.40, 8.41 maintaining proposed testator’s …. 2.24, 4.33 open justice and …. 4.33 public interest and …. 4.33 Western Australia …. 9.8 Protective Commissioner (NSW) …. 1.14, 4.11 Public Advocate (SA) appearance at hearing …. 5.7, 5.10 litigation guardian …. 5.4

role in relation to application …. 5.7, 5.10 Public Trustee administrator, as …. 5.4, 5.7 affidavit by …. 4.13 previous will held by …. 4.17 direction for production of copy of …. 4.29 role in relation to application …. 5.7 service on …. 5.7

Q Queensland application procedure …. 9.4 applications in …. 1.27 appropriate applicant …. 2.12, 9.4 cases …. 1.27, 8.15–8.30 core test …. 2.4, 2.10, 4.9, 9.4 costs …. 2.25 execution of will …. 2.22, 9.4 guardianship and powers of attorney legislation …. 2.15 inter-relationship between statutory will applications and …. 2.15 hearing of leave application …. 2.16, 9.4 hearing of substantive application …. 2.17, 9.4 Law Reform Commission paper 1994 …. 1.17 litigation guardian …. 5.5 minors …. 2.6, 9.4 orders that can be made …. 2.18, 9.4 recognition of statutory wills …. 2.26 representation of interested persons …. 2.13 retention of will …. 2.23, 9.4 revision of draft will or codicil …. 2.20 separate representation of proposed testator …. 5.5 standing to apply …. 2.5, 9.4 statutory scheme …. 2.4, 9.4 commencement of …. 2.4 Succession Act 1981 …. 1.19, 2.4, 9.4 Succession Amendment Act 2006 …. 1.19

threshold requirements …. 2.8–2.13 validity of statutory will …. 2.26, 9.4

R Recognition of statutory will Australian Capital Territory …. 9.1 New South Wales …. 9.2 Northern Territory …. 9.3 Tasmania …. 9.6 statutory provisions …. 2.26 Western Australia …. 9.8 Relationship between testator and beneficiary end of …. 3.5, 4.9 improvement in …. 3.7 updating will where changes …. 4.36 Remembrance concept of …. 1.9, 4.22 doing the right thing, for …. 1.9, 1.11, 4.22 Representation interested persons …. 2.13, 4.12 identifying persons to be named and served …. 4.5 threshold requirement …. 2.8, 2.13, 4.12 litigation guardian see Litigation guardian separate, cases …. 8.3, 8.9, 8.21, 8.47 separate, for other persons …. 5.6 separate, for proposed testator …. 2.21, 5.2–5.5 Australian Capital Territory …. 2.21, 5.2, 5.3, 9.1 New South Wales …. 2.21, 5.2, 5.3, 9.2 Queensland …. 5.5 South Australia …. 5.2, 5.4 Retention of will, codicil or instrument of revocation …. 1.18, 2.23, 4.35 Australian Capital Territory …. 9.1 New South Wales …. 9.2 Northern Territory …. 9.3 Queensland …. 2.23, 9.4 South Australia …. 9.5

Tasmania …. 9.6 Victoria …. 9.7 Western Australia …. 9.8 Revision of draft will or codicil during course of application …. 4.31 statutory provisions …. 2.20 substantial amendments …. 4.31 Revocation of existing will see Existing will Revocation of statutory will NSWLRC recommendations …. 1.14 where testator acquires or regains capacity …. 4.37

S Separate representation see Representation Service identifying persons to be served …. 4.5 interested persons, on …. 4.26 Social security means test planning …. 3.22 South Australia application procedure …. 2.15, 9.5 applications in …. 1.28 appropriate applicant …. 4.11, 9.5 cases …. 1.28, 8.31–8.39 core test …. 2.4, 2.10, 9.5 costs …. 2.25 entitlement to appear at hearing …. 2.16, 4.32, 9.5 execution of will …. 2.22 form of application …. 2.15 hearing of leave application …. 2.16, 9.5 hearing of substantive application …. 2.17, 9.5 information to be provided in support of application …. 2.14, 9.5 litigation guardian …. 5.2, 5.4 minors …. 2.6, 9.5 orders that can be made …. 2.18, 9.5 procedural rules …. 2.4, 9.5 Public Advocate …. 5.4, 5.7, 5.10

retention of will …. 2.23 revision of draft will or codicil …. 2.20 separate representation of proposed testator …. 2.21, 5.2, 5.4 standing to apply …. 2.5, 9.5 statutory scheme …. 2.4, 9.5 commencement of …. 2.4 threshold requirements …. 2.8–2.13, 9.5 Standard of proof lack of capacity …. 1.14, 4.8 threshold requirements …. 4.7 Standing to apply …. 2.5, 2.12 State Trustees costs …. 7.3 role in relation to application …. 5.7 Statutory codicil see Codicil Statutory will adjusting entitlements see Adjusting beneficial entitlements alteration see Alteration of statutory will another jurisdiction, acceptance for probate in …. 1.18 application for see Statutory will applications costs see Costs effect …. 2.26 Tasmania …. 9.6 execution of see Execution of statutory will form of orders …. 10.6 general statutory scheme …. 2.3 key features …. 2.4 jurisdiction to authorise see Jurisdiction to authorise will likely intentions of person …. 1.21 making a, cases …. 8.1, 8.2, 8.3, 8.4, 8.6, 8.7, 8.13, 8.15, 8.16, 8.17, 8.18, 8.20, 8.21, 8.23, 8.24, 8.25, 8.27, 8.29, 8.30, 8.32, 8.33, 8.35, 8.40, 8.41, 8.42, 8.46, 8.47, 8.50, 8.52 minors …. 1.14, 1.18, 2.6 origins of jurisdiction to make …. 1.1 recognition …. 2.26 Australian Capital Territory …. 9.1

New South Wales …. 9.2 Northern Territory …. 9.3 Tasmania …. 9.6 Western Australia …. 9.8 regaining capacity after making of …. 1.18, 2.27, 4.37 retention/deposit of …. 1.18, 2.23, 4.35 Australian Capital Territory …. 9.1 New South Wales …. 9.2 Northern Territory …. 9.3 Queensland …. 9.4 Tasmania …. 9.6 Victoria …. 9.7 Western Australia …. 9.8 review and update …. 4.36 revocation see Revocation of statutory will same effect as ordinary will …. 1.14 terms of, cases …. 8.2, 8.4, 8.11, 8.12, 8.13, 8.20, 8.23, 8.36, 8.38, 8.39, 8.40, 8.42, 8.43, 8.45, 8.46, 8.47, 8.49, 8.50 threshold requirements see Threshold requirements urgent cases …. 4.35 when required …. 1.14, 3.1 adjusting beneficial entitlements …. 3.2–3.9 estate planning …. 3.19–3.23 resolving problems with existing will or intestacy …. 3.10–3.18 Statutory will applications acting for applicant …. 4.1–4.37 checklist for taking instructions …. 10.1 adjournment of hearing …. 4.30 administrator, role of …. 4.11, 5.7 affidavit supporting …. 2.15, 9.8 after death of proposed testator …. 1.18 appeal, cases …. 8.45, 8.47 appropriate applicant …. 2.12, 4.4, 4.11 identifying …. 4.4, 10.1 appropriate for order to be made …. 2.11, 4.10 attorney, position of …. 5.7 Australian see Australian applications

conducting …. 4.3 consultation …. 4.27 core test see Core test costs see Costs cross-examination of party/witness …. 4.32 direct instructions from testator …. 5.8 directions …. 4.29 discretion of court …. 2.11, 4.10 evidence see Evidence family provision claims and see Family provision claims filing material …. 4.26 general statutory scheme …. 2.3 key features …. 2.4 hearing of adjournment of …. 4.30 Australian Capital Territory …. 9.1 entitlement to appear at …. 2.16, 4.32 evidence at …. 2.19, 4.32 leave application see Leave of court leave application and substantive application together …. 4.29 New South Wales …. 9.2 Northern Territory …. 9.3 Queensland …. 9.4 South Australia …. 9.5 substantive application …. 2.17 Tasmania …. 9.6 Victoria …. 9.7 identifying client and applicant …. 4.4, 10.1 identifying orders sought …. 4.6 identifying persons to be named and served …. 4.5 independent legal advice, referrals for …. 4.4 information required see Information to be provided interested persons see Interested persons lack of capacity see Lack of testamentary capacity leave application see Leave of court leave of court …. 1.14, 2.3, 2.7 negotiation …. 4.27

notification of interested persons …. 1.14, 8.2 opposed, cases …. 8.9, 8.12, 8.17, 8.22, 8.23, 8.29, 8.34, 8.39, 8.43, 8.45, 8.47, 8.49, 8.51 opposition, grounds for …. 5.17 orders that can be made …. 2.18 appropriate for order to be made …. 2.11, 4.10 identifying orders sought …. 4.6 Northern Territory …. 9.3 Victoria …. 9.7 Western Australia …. 9.8 originating process …. 2.15, 4.2, 4.6, 4.24 filing and serving …. 4.26 originating summons (WA) …. 2.15, 9.8 participation by interested persons …. 5.11 active participation …. 5.16 negotiation or mediation …. 5.14 no involvement …. 5.12 passive participation …. 5.15 practical assistance …. 5.13 person lacking capacity joined as defendant …. 1.14 persons to be named and served …. 4.5, 4.12, 4.26 preparing …. 4.2 preparing material for court …. 4.28 privacy …. 2.24, 4.33 procedural requirements …. 2.15, 4.25 procedural rules …. 2.4 Northern Territory …. 2.4, 9.3 South Australia …. 2.4, 9.5 Tasmania …. 2.4, 9.6 Victoria …. 2.4, 9.7 Western Australia …. 2.4, 9.8 proof of lack of capacity …. 1.14, 4.8 protective and remedial aspects …. 1.14 Protective Commissioner …. 1.14, 4.11 Public Trustee, role of …. 5.7 Registrar’s jurisdiction …. 1.18 representation of interested persons …. 2.13, 4.12

identifying persons to be named and served …. 4.5 revision of draft will or codicil …. 2.20, 4.31 sanction, cases …. 8.19, 8.38, 8.42 separate representation other persons …. 5.6 proposed testator …. 2.21, 5.2–5.5 serving material …. 4.26 standing to apply …. 2.5, 2.12 statistics on …. 1.23 substantive application …. 2.7, 4.29 heard together with leave application …. 4.29 hearing …. 2.17 leave required before …. 2.3, 2.7 procedure …. 2.15 threshold requirements see Threshold requirements two stage process …. 2.3, 2.4, 2.7 cases …. 8.5, 8.9, 8.13, 8.28, 8.32, 8.33 leave application see Leave of court non-applicability in Western Australia …. 2.7 unsuccessful, cases …. 8.9, 8.10, 8.22, 8.34, 8.39, 8.41, 8.44, 8.47, 8.51 unopposed, cases …. 8.1, 8.2, 8.3, 8.5, 8.7, 8.8, 8.10, 8.11, 8.13, 8.15, 8.16, 8.18, 8.20, 8.21, 8.24, 8.25, 8.26, 8.27, 8.28, 8.30, 8.32, 8.33, 8.35, 8.36, 8.37, 8.40, 8.41, 8.46, 8.48, 8.50, 8.52 valid will never made …. 1.14 valid will previously made …. 1.7, 1.14 who can apply …. 1.14, 4.4, 4.11 ‘Substituted judgment’ approach actual patient, consideration of …. 1.4 Australian cases …. 1.22, 1.27 best interests compared …. 1.9, 1.11 ‘brief interval of sanity’ …. 1.3, 1.4 difficulty of applying …. 1.5, 1.22 England Wales …. 1.2–1.7, 1.22 five principles or factors …. 1.4 difficulty of applying …. 1.5 lack of capacity since birth …. 1.6 ‘normal decent person’ …. 1.6

objective approach …. 1.7 patient advised by competent solicitor …. 1.4, 4.9 ascertaining intent from assumption of …. 1.7 patient taking broad brush to claims …. 1.4 patient’s knowledge of mental state …. 1.4 will made before onset of illness …. 1.7 Superannuation evidence of intention …. 8.25 information about …. 4.22

T Tasmania affidavit supporting application …. 2.15 alteration of will …. 2.2, 9.6 application procedure …. 2.15, 9.6 applications in …. 1.29 appropriate applicant …. 2.12, 9.6 cases …. 1.29, 8.40–8.41 core test …. 2.4, 2.10, 4.9, 9.6 costs …. 2.25 effect of statutory will …. 2.26, 9.6 evidence of lack of capacity …. 4.14 execution of will …. 2.22, 9.6 family provision claims …. 6.3 Guardianship and Administration Board …. 2.2, 9.6 health care professional report …. 4.14 sharing jurisdiction with Supreme Court …. 1.29 validity of statutory wills made by …. 2.2, 9.6 hearing of leave application …. 2.16, 9.6 hearing of substantive application …. 2.17, 9.6 minors …. 2.6, 9.6 orders that can be made …. 2.18, 9.6 procedural rules …. 2.4, 9.6 recognition of statutory wills …. 2.26, 9.6 representation of interested persons …. 2.13 retention of will …. 2.23, 9.6

revision of draft will or codicil …. 2.20 revocation of statutory will …. 2.2, 9.6 service on interested persons …. 4.26 standing to apply …. 2.5, 9.6 statutory scheme …. 2.4, 9.6 commencement of …. 2.4 Supreme Court Rules 2000 …. 2.4, 9.6 testator regaining capacity …. 4.37 threshold requirements …. 2.8–2.13, 9.6 Wills Act 1992 …. 1.19, 2.2 Wills Act 2008 …. 1.19, 2.2, 2.4, 9.6 Tax planning …. 3.21 Testamentary capacity lack of see Lack of testamentary capacity meaning …. 2.9 opposition claiming that testator has …. 5.17 regaining after making of will …. 1.18, 2.27, 4.37 test for …. 2.9 Testamentary contracts information about …. 4.22 Testamentary estoppels information about …. 4.22 Testamentary freedom not to be usurped by State …. 1.22 Testamentary intention see Intentions of person who lacks capacity Testamentary trust asset protection …. 3.20, 11.10 tax planning …. 3.21 vulnerable beneficiary …. 3.23, 11.7 Testator (proposed) death of application for statutory will after …. 1.18 before will executed …. 8.37 exclusion of court’s jurisdiction …. 1.18 details required …. 10.1 direct instructions from …. 5.8 intentions of see Intentions of person who lacks capacity

lack of capacity see Lack of testamentary capacity litigation guardian see Litigation guardian separate representation …. 2.21, 5.2–5.5 Australian Capital Territory …. 2.21, 5.2, 5.3, 9.1 New South Wales …. 2.21, 5.2, 5.3, 9.2 Queensland …. 5.5 South Australia …. 5.2, 5.4 wishes of …. 4.9, 4.16 evidence of …. 4.16 intention, expressing …. 4.9, 4.16 taking into account …. 1.22, 4.16 Testator regaining capacity opposition on grounds of …. 5.17 steps to be taken …. 1.18, 2.27, 4.37 Threshold requirements advising applicant about …. 10.3 appropriate applicant …. 2.12, 4.4, 4.11 identifying …. 4.4, 10.1 appropriate for order to be made …. 2.11, 4.10 checklist for taking instructions …. 10.1 core test see Core test general statutory scheme …. 2.3 lack of testamentary capacity …. 2.9, 4.8 proof of …. 1.14, 4.8 test of …. 4.8 leave application, on …. 2.3, 2.8 list of …. 2.8 meeting …. 4.7–4.12 opposition claiming that not met …. 5.17 representation of interested persons …. 2.13, 4.12 identifying persons to be served …. 4.5 standard of proof …. 4.7 statutory provisions stating …. 2.8–2.13 Trusts asset protection …. 3.20 constructive …. 4.22 discretionary …. 1.27, 11.10

information about interests in …. 4.22 protective …. 11.6, 11.7 special disability trust …. 11.6, 11.7 tax planning …. 3.21 testamentary …. 3.20, 11.10

U Undue influence adjustment of entitlements …. 3.6

V Victoria affidavit supporting application …. 2.15 alteration, no jurisdiction for …. 2.1 application procedure …. 2.15, 9.7 applications in …. 1.21, 1.30 appropriate applicant …. 4.11, 9.7 cases …. 1.21, 1.30, 8.42–8.51 core test …. 2.4, 2.10, 2.28, 4.9, 9.7 costs …. 2.25 entitlement to appear at hearing …. 2.16, 4.32, 9.7 execution of will …. 2.22, 9.7 hearing of leave application …. 2.16, 9.7 hearing of substantive application …. 2.17, 9.7 information to be provided …. 2.14, 4.13, 9.7 Law Reform Commission report 1985 …. 1.13 Law Reform Commission report 1994 …. 1.16 minors …. 2.6, 9.7 orders that can be made …. 2.18, 9.7 procedural rules …. 2.4, 9.7 recognition of statutory wills …. 2.26 revision of draft will or codicil …. 2.20 retention of will …. 2.23, 9.7 standing to apply …. 2.5 statutory reform, possible …. 2.28

statutory scheme …. 2.4, 9.7 commencement of …. 2.4 testator regaining capacity …. 1.18, 2.27 threshold requirements …. 2.8–2.13, 9.7 want of testamentary capacity …. 9.7

W Western Australia access to will …. 9.8 affidavit supporting application …. 2.15, 9.8 application procedure …. 2.15, 9.8 applications in …. 1.31 appropriate applicant …. 2.12 cases …. 1.31, 8.52 core test …. 2.4, 2.10, 9.8 costs …. 2.25 directions of court …. 2.7 discovery …. 2.15, 9.8 execution of will …. 2.22 hearing of application …. 2.17, 9.8 information to be provided …. 2.14, 9.8 minors …. 2.6, 9.8 orders that can be made …. 2.18, 9.8 originating summons …. 2.15, 9.8 procedural rules …. 2.4, 9.8 recognition of statutory wills …. 2.26, 9.8 representation of interested persons …. 2.13 retention of will …. 2.23, 9.8 revision of draft will or codicil …. 2.20 standing to apply …. 2.5, 9.8 statutory scheme …. 2.4, 9.8 commencement of …. 2.4 Supreme Court Consolidated Practice Directions 2009 …. 2.4, 9.8 testator regaining capacity …. 2.27 threshold requirements …. 2.8–2.13, 9.8 Will previously made see Existing will

Wishes of proposed testator evidence of …. 4.16 intention, expressing …. 4.9, 4.16 taking into account …. 1.22, 4.16 Worthy recipients including or increasing benefits to …. 3.8