ADAM v HARDY

[2007] SASC 277

Supreme Court of South Australia

(Civil)

ADAM v HARDY

[2007] SASC 277

Judgment of The Honourable Justice Debelle (ex tempore)

20 July 2007

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY

Plaintiff suffered severe brain injuries in motor vehicle accident – Public Trustee appointed to manage damages awarded to plaintiff – court ordered that plaintiff not to make will except with consent and in presence of Public Trustee – application for variation of order to permit plaintiff to make will with consent of Public Trustee but in presence of her solicitor – plaintiff permitted to make will in presence of solicitor upon satisfying Public Trustee that she has testamentary capacity.

Supreme Court Rules 1987 s 84.12, referred to.

ADAM v HARDY
[2007] SASC 277

Civil

1. DEBELLE J.        On 6 March 1990, White J made a substantial award of damages to the plaintiff, a young woman then aged 24 years, who had suffered severe injuries in a motor vehicle accident. Those injuries included severe brain injuries.

2. White J made further orders. One of those orders was to the effect that Public Trustee be appointed pursuant to the Aged and Infirm Persons’ Property Act1940 to manage the damages awarded to the plaintiff.  The plaintiff was described in the orders made by White J as “the protected person”.  Paragraph 6 of the orders was in these terms:

   That the protected person do not hereafter make any Will or testamentary provision except with the consent and in the presence of Public Trustee.

   By an application dated 26 June 2007, Public Trustee has applied for an order varying the order of White J made on 6 March 1990 in two respects, namely,

   (i)to remove the restriction on the testamentary capacity of the plaintiff, or, in the alternative;

   (ii)to provide that the plaintiff make a will with the consent of Public   Trustee but in the presence of her solicitor, Mr Richard Henschke of Halfpenny’s Lawyers.

3. The affidavit in support of the application proves that the plaintiff has resided in the Northern Territory for many years. She is married and has two children. She wishes to make a will. The application by Public Trustee follows a request made on the plaintiff’s behalf by Mr Richard Henschke of Halfpennys, who are solicitors in Darwin. Mr Henschke is the plaintiff’s present solicitor. In a letter to Public Trustee he states that the plaintiff wishes to make a will and sets out her instructions. He asks Public Trustee to apply for an order to facilitate the making of a will in the Northern Territory.  It is plainly both inconvenient and expensive for the plaintiff to have to travel to Adelaide to make a will. It is appropriate, therefore, to vary the order of White J to remove the requirement that any will be made in the presence of Public Trustee.

4. Public Trustee has a policy which requires that a person intending to make a will must produce to Public Trustee a certificate from a medical practitioner certifying that that person has testamentary capacity.

5. On initially considering this application, I was concerned that the plaintiff might lack testamentary capacity because of the injuries she had suffered. However, the reasons of White J disclose that he found that the plaintiff had the intellectual capacity to pass matriculation and to obtain a Bachelor of Arts degree or pass a course at a college of advanced education.  That finding together with the fact that the plaintiff is married and has had two children suggests that the plaintiff has testamentary capacity. Nevertheless, consistently with the order of White J, the plaintiff should obtain a certificate from a medical practitioner, preferably a neurologist, in Darwin certifying whether or not she has testamentary capacity.

6. For these reasons, while it is not necessary for the plaintiff to have to incur the expense of travelling to Adelaide to execute the will in the presence of Public Trustee, it is desirable not to amend the order of White J so as to remove the restriction as to the circumstances in which the plaintiff may make a will. It is desirable that Public Trustee be satisfied that the plaintiff has testamentary capacity. That is the intent of the order of White J. While it is quite likely that the plaintiff does have testamentary capacity, it should be positively established.

7. Given the change of the plaintiff’s circumstances since White J made the order, the interests of justice require that I vary the order pursuant to rule 84.12 of the Supreme Court Rules 1987. The appropriate order, therefore, is to vary the order so as to permit the plaintiff to make a will with the consent of Public Trustee but in the presence of her solicitor, Mr Richard Henschke of Halfpenny’s Lawyers. Public Trustee will be in a position to grant consent once the plaintiff has provided a medical certificate establishing that she has testamentary capacity.

8. For these reasons there will be orders as follows:

   1Vary paragraph 6 of the order White J made on 6 March 1990 by deleting there from the words “and in the presence”.

   2That, upon the plaintiff satisfying Public Trustee that she has testamentary capacity, the plaintiff be permitted to make a will in the presence of her solicitor, Mr Richard Henschke of Halfpenny Lawyers of 38 Beagle Street, Darwin in the Northern Territory.