Bryant v Blake - [2004] SASC 369

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Matter of BLAKE
BRYANT v BLAKE
Judgment of The Honourable Justice Besanko
19 November 2004
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY
Application for an order authorising the making of a will on behalf of the defendant - where the defendant was severely injured in a motor vehicle accident - where the plaintiff, the defendant's mother, has cared for the defendant on a full time and permanent basis for many years - where other persons entitled to share in the defendant's estate on an intestacy or under the Inheritance (Family Provision) Act 1972 have had limited contact with the defendant or consent to a will being made in the terms advanced by the plaintiff - consideration of the purpose of the requirement for leave in s 7(1) of the Wills Act 1936 - whether the defendant lacks testamentary capacity - whether the proposed will reflects the likely intentions of the defendant if she had testamentary capacity - whether a gift of the whole of the defendant's estate to the plaintiff is reasonable in all the circumstances - held that an order should be made authorising the making of the proposed will.
Wills Act 1936 s 7; Administration and Probate Act 1919 s 72B, s 72l, s 72J; Inheritance (Family Provision) Act 1972 s 6; Wills Act 1997 (Vic) s 26, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; In the Will of Wilson (1897) 23 VLR 197; Monger v Taylor [2000] VSC 304; Hill v Hill [2001] VSC 83; Boulton v Sanders & Ors [2004] VSCA 112, considered.

BRYANT v BLAKE
[2004] SASC 369
Testamentary Causes Jurisdiction

BESANKO J: This is an application by summons for an order under s 7 of the Wills Act 1936 (“the Act”) authorising the making of a will on behalf of Tracy Joanne Blake. Tracy Joanne Blake is the defendant to the action, and I will refer to her as Tracy. Tracy is 38 years of age. The plaintiff is Ms Elvira Anne Bryant and she is Tracy’s mother. Ms Bryant is 58 years of age and she is Tracy’s full time carer. Mr Malcolm Edward Blake is Tracy’s father.
In 1972 when Tracy was six years old, she was severely injured in a motor vehicle accident. She received a large award of compensation and a protection order was made in relation to the compensation awarded to her. The Public Trustee was appointed the manager of that part of her estate.
Tracy has not made a will. If she dies without making a will, her estate will go to her mother and father, or such one of them as survives her. If neither her mother nor her father survive her, Tracy’s estate will go to her half brother and her half sister. (Sections 72B, 72I and 72J of the Administration and Probate Act 1919) The order sought by the plaintiff is an order authorising the making of a will which will appoint the Public Trustee the sole executor and trustee of the will, and give all her estate to the plaintiff. In the event that the plaintiff does not survive Tracy, then under the proposed will all of her estate would go to her half brother, Stewart Anthony Frew, who I will call Stewart.
The Public Trustee has given her consent to be the sole executor and trustee of the proposed will.
A guardian ad litem has been appointed for Tracy. Ms Pamela Jean McEwen, a legal practitioner, was appointed the guardian ad litem for Tracy by the Registrar of Probates. A Judge of this Court made an order that the summons and supporting affirmation of the plaintiff be served upon the Public Trustee and upon Tracy’s father, Mr Blake. That was done, and Mr Blake has filed an affidavit stating that he is aware of the proceedings and the order sought and that he consents to the making of the order sought. He states that he does so even though he knows he will not receive any benefit from Tracy’s estate. The Public Trustee did not seek to appear before the Court and put submissions. When the summons was called on for hearing I heard from counsel for the plaintiff and counsel for the defendant. No other party sought to appear.
The plaintiff submits that Tracy lacks testamentary capacity, that the proposed will would accurately reflect the likely intentions of Tracy if she had testamentary capacity and that it is reasonable in all the circumstances that an order authorising the making of the will should be made. These are the three criteria of which the Court must be satisfied before making an order authorising the making of the will (s 7(3) of the Act).
The facts
The Public Trustee continues to manage the compensation moneys and other assets on behalf of Tracy. As I understand it, those moneys and the assets purchased with those moneys are Tracy’s only assets. Tracy owns a house at 6 Norwich Avenue, Burnside in the State of South Australia, in which she and her mother reside. The house was purchased with part of the compensation moneys in 1978. The current value of the house is unclear but it may be in the order of $330,000.00. Based on a value for the house of $250,000, the total value of Tracy’s estate is in the order of $650,000.00. The investments in the estate earn an annual income in the order of $25,000.00.
The injuries sustained by Tracy in the motor vehicle accident were very severe. Tracy was unconscious for approximately two years after the accident and she had no speech for approximately four years after the accident. Her speech is indistinct and she is permanently in a wheelchair. The plaintiff began caring for Tracy on a full time and permanent basis in 1982 and with the exception of a period of two years between 1989 and 1991 when Tracy lived at Valhalla Place, that has continued to the present day. There have been short periods of time when the plaintiff’s son, Stewart, undertook the role of Tracy’s carer for periods of time during each of the years 1985, 1992, 1993 and 1996. Stewart continues to provide assistance with the care of Tracy and provides respite to the plaintiff when required. As I have said, the plaintiff and Tracy reside in the house at 6 Norwich Avenue, Burnside. The plaintiff makes all of Tracy’s meals, maintains her hygiene, including assisting her with toileting for bowel movements, dresses and undresses Tracy, cleans her teeth, and washes and irons her clothes. Tracy is able to feed herself, however all her meals must be vitamized and she may take up to one and a half hours to complete each meal. The plaintiff supervises Tracy in case of choking. The plaintiff states, and I accept, that Tracy requires monitoring 24 hours a day.
The plaintiff is and has been unable to engage in employment because of her need to care for Tracy. The plaintiff receives a carer’s pension from Centrelink, and she says, and I accept, that caring for Tracy is a full time occupation.
With the exception of professional carers and persons employed in the institutions where Tracy has from time to time resided in the years since her accident, there are no persons who have cared for or provided emotional support for Tracy other than the plaintiff, Stewart and Stewart’s wife. The plaintiff has no accommodation available to her other than the house at 6 Norwich Avenue, Burnside, and she has no funds which would enable her to purchase the half share of the house to which Tracy’s father would be entitled if Tracy died intestate. As I have said, the plaintiff has been unable to engage in employment since she began caring for Tracy full time in 1982. She has no recent qualifications which would permit her to easily re-enter the workforce, and she states, and I accept, that it is likely that she would continue to be dependent upon government benefits after Tracy’s death.
The plaintiff and Tracy’s father separated three months before Tracy’s accident, and they were divorced in April 1976. I must make some observations about Mr Blake’s relationship with Tracy. They are not intended to be critical of him. His attitude to this application is reasonable. However, I must comment on his relationship with Tracy in order to properly determine this application.
Mr Blake has had minimal contact with Tracy since the accident. He has provided no assistance to her and has not seen her since a time before Christmas 1995. He currently lives in Port Lincoln, and from time to time visits Adelaide, but he does not visit Tracy when he comes to Adelaide. He sends birthday and Christmas cards to Tracy. During the period from 1991 to 1995, Tracy’s father had brief and irregular contact with her, including a week in August 1991 in which he provided respite care for the plaintiff. He was not prepared to do this again. From 1972 to approximately 1980 Tracy’s father visited occasionally and he also saw Tracy on some occasions when the plaintiff took Stewart, who had been adopted by Tracy’s father, for access visits. In 1984 Tracy’s father refused an offer by the plaintiff to vacate the house at Burnside so that he and his wife could move in and take over as primary carers for Tracy for some months.
Stewart was born on 27^th January 1964 and he is two and a half years older than Tracy. He has been supportive of Tracy and involved in her care for many years. He left home when he was 18 years old and he returned when he was 21 years old and he cared for Tracy as her primary carer for a period of six months in 1985. When he returned to Adelaide from Darwin in 1989 he cared for Tracy for a period of three months in 1992, four months in 1993 and ten months in 1996. During 1998 he returned to live in the house with his family for a period of two and a half years and at that time gave substantial help with her care allowing respite for the plaintiff. Stewart now lives at 8 Fisher Street, Magill, South Australia, and provides assistance to the plaintiff and respite care when required.
In relation to the house at Burnside, the plaintiff does not pay any rent for her occupation of the property, but she does carry out and pay for maintenance and work in the garden to ensure the property stays in good repair and condition. Council rates and taxes, SA Water charges and major capital works such as painting and decorating are paid from the funds held by Public Trustee, but the plaintiff furnishes and equips the house and pays all other household expenses. The plaintiff drives a motor vehicle which is owned by Tracy. The plaintiff pays all running expenses except registration and insurance which are paid by the Public Trustee. Private health insurance and ambulance cover is also paid for Tracy from funds invested upon her behalf by the Public Trustee.
The plaintiff has put forward evidence of her current financial position. It is unnecessary to relate the details and it is sufficient to say that the plaintiff has very little by way of assets.
Tracy’s half sister is Chantelle. Chantelle is the child of Mr Blake’s second marriage. Chantelle is approximately 18 years of age. The last time the plaintiff saw Chantelle was in 1995 when she was in the company of her father and they were visiting a friend nearby. Chantelle has not maintained any contact with Tracy or the plaintiff, and the plaintiff is not aware of Chantelle’s occupation or current address. All she knows is that the last she heard Chantelle was living with her mother at Glenelg. Her mother was estranged from Mr Blake. It is clear that Chantelle has not provided any care or support for Tracy.
Stewart has filed an affidavit. He confirms the evidence of the plaintiff. He is aware that he would be eligible to make a claim pursuant to s 6(j) of the Inheritance (Family Provision) Act 1972 by reason of the fact that he has contributed to the maintenance of Tracy. Notwithstanding this, he does not wish to make any claim against Tracy’s estate if the plaintiff’s application to authorise the making of a will for Tracy is successful. He strongly supports his mother’s application as he believes the legal division of Tracy’s estate in the event that she died intestate would leave the plaintiff without accommodation because she could not afford to buy out the potential interest of Mr Blake in the house at Burnside. Stewart believes that in view of the financial and personal sacrifices made by the plaintiff for Tracy the outcome which would result from an intestacy would be “most unfair and unjust”.
Various medical reports have been put before me with a view to establishing that Tracy lacks testamentary capacity. In determining this question I have had regard to the relevant test for testamentary capacity (Banks v Goodfellow (1870) LR 5 QB 549; In the Will of Wilson (1897) 23 VLR 197) which I need not set out. I do not propose to discuss the medical evidence in any detail because in my opinion it clearly establishes that Tracy does not have testamentary capacity. It is sufficient to say the following. Professor P D Thompson is a neurologist and in 2003 he asked Dr L Denson, a neuropsychologist, to carry out a formal neuropsychological assessment of Tracy. That was done and I have read Dr Denson’s report. Dr Denson expresses the following conclusion:
“Opinion Ms Blake presented as a pleasant cooperative woman with estimated intellectual abilities in the Mild Intellectual Disability range, as well as significant impairments of verbal fluency and naming, and a severe memory disorder verging on an amnesia. Her adaptive living skills were assessed as being at the 4 to 5 year-old level for language and social skills, and even lower for motor skills and daily living skills.
On the question of testamentary capacity, it appears likely that Ms Blake’s capacity may be significantly limited by her intellectual disability, her language impairments, her severely impaired memory, and her limited adaptive living skills (specifically her language and social skills). In particular, she may have significant difficulty assessing complex situations and retaining new information in order to make informed decisions.”
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. In an affidavit sworn in October of this year, 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.
Ms Leonie Evans Millard, a legal practitioner, has sworn an affidavit dealing with the circumstances surrounding the service of the documents in this action on Tracy. She is a member of the firm of solicitors representing the plaintiff. Her evidence, so far as it goes, supports the medical evidence to the effect that Tracy does not have testamentary capacity. The same can be said about the affidavit sworn by Tracy’s guardian ad litem. Ms McEwen expresses the view that Tracy does not have testamentary capacity. From her conversations with Tracy, she formed the opinion that she had affection for her mother and for Stewart. There was no recognition or affection when she spoke to Tracy about her father and Chantelle.
Ms McEwen states that in view of Mr Blake’s consent to the application, she does not oppose a will being made which excludes him. As far as the proposed gift in substitution is concerned, she states that if put in the position of Tracy the majority of her estate should go to Stewart, but that a legacy comprising a portion of the non-real estate assets might go to Tracy’s father and/or her half sister, Chantelle.
Issues in the action
Section 7(1) of the Act provides as follows:
“A court may, on application by any person made with the leave 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.”
The authorisation may be granted on such conditions as the court thinks fit s (7(2)). I have already set out the three matters of which the court must be satisfied before making an order s (7(3)). Section 7(4) provides that in considering an application for an order under s 7, 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 for 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.”
Section 7(6) provides that in proceedings under s 7 the court is not bound by the rules of evidence, and s 7(7) defines the persons entitled to appear and be heard at proceedings under the section. Section 7(12) defines “testamentary capacity” to mean the capacity to make a will, and the note to the definition provides that the cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
Section 7(1) requires a plaintiff to obtain the leave of the court before making the application. The matters of which a court must be satisfied before making an order authorising the making of a will are set out in s 7(3). There was some debate before me as to the purpose of the requirement that leave be obtained. The equivalent section in Victoria also has a requirement that a plaintiff obtain leave but, unlike the section in the South Australian Act, leave may only be granted if the court is satisfied of what are effectively the three criteria in s 7(3) of the South Australian Act (s 26 Wills Act 1997 (Victoria)). The nature of the enquiry at the leave stage under the Victorian Act has been discussed in a number of cases (Monger v Taylor [2000] VSC 304; Hill v Hill [2001] VSC 83; Boulton v Sanders & Ors [2004] VSCA 112). 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.
As I have said, I am satisfied that Tracy lacks testamentary capacity. As far as the primary gift is concerned, I am satisfied that the proposed will accurately reflects the likely intentions of Tracy if she had testamentary capacity. I am satisfied that a gift of the whole of Tracy’s estate to her mother is reasonable in all the circumstances. In reaching the second and third conclusions I have considered the matters referred to in s 7(4). I think if Tracy had testamentary capacity her wish would be that her mother inherit the whole of her estate. There is no likelihood of Tracy acquiring or regaining testamentary capacity and she has not previously made a will. I have considered the persons who would be entitled to receive part of the estate if Tracy were to die intestate and persons who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of Tracy if she were to die, and persons who have cared for or provided emotional support to Tracy. Mr Blake has not cared for or provided emotional support to Tracy. I have considered his interests if Tracy were to die intestate and his potential claim under the Inheritance (Family Provision) Act 1972. Under the Inheritance (Family Provision) Act 1972 a parent or brother or sister of a deceased person is entitled to claim the benefit of the Act only if they satisfy the court that they have cared for, or contributed to the maintenance of the deceased during her lifetime (s 6). In view of his lack of contact with Tracy and the fact that the plaintiff has devoted the whole of her life to Tracy’s care since 1982, and that he consents to the proposed will, I do not think that his interests dictate a different will to that put forward. There is no question here of a gift for a charitable or other purpose. The likely size of the estate might suggest that a provision could be made for Mr Blake but I think that consideration is outweighed by the other matters to which I have referred.

That leaves for consideration the suggestion made by Tracy’s guardian ad litem that an order should not be made in relation to the proposed will because a modest provision should be made for Chantelle in the gift in substitution. Alternatively, it was suggested that the proceedings might be served on Chantelle so that she could appear and make submissions if she so wished. I have considered these submissions carefully. I am satisfied that the proposed will in its present form meets the requirements of s 7 of the Act. Chantelle was born in 1986 which was some 14 years after Tracy sustained serious injuries in the accident. Chantelle is the daughter of Tracy’s father by his second marriage. She has not cared for Tracy or provided emotional support to her. She has not maintained any contact with Tracy or with the plaintiff. In fact the plaintiff does not know where Chantelle lives or any details of her employment. When regard is had to those circumstances and the role played in Tracy’s life by the plaintiff and Stewart, I do not think it can be said the proposed will does not meet the requirements of s 7 because it does not make provision for Chantelle in the gift in substitution.
I will make an order authorising the making of the proposed will. I will hear the parties as to any other proposed orders.