Bryant v Blake

Case [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

  1. 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.

  2. 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.

  3. 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…

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Bryant v Blake [2004] SASC 369
Case
[2004] SASC 369
Decision Date

CaseChat Overview and Summary

Bryant v Blake was a case before the court where the plaintiff, the defendant's mother, applied for an order to authorise the making of a will on behalf of the defendant. The defendant had been severely injured in a motor vehicle accident and had been in a comatose state for two years, with no speech for four years. The plaintiff had been caring for the defendant on a full-time and permanent basis since 1982, and had not engaged in any paid employment due to this care. The plaintiff argued that the defendant lacked testamentary capacity, and that a proposed will, which would leave the entirety of the defendant's estate to the plaintiff, would reflect the likely intentions of the defendant if they had testamentary capacity.

The legal issues before the court were whether the defendant lacked testamentary capacity, whether the proposed will reflected the likely intentions of the defendant, and whether the proposed will was reasonable in all the circumstances. The court considered the purpose of the requirement for leave in section 7(1) of the Wills Act 1936, which was to ensure that the will made was the genuine expression of the deceased's wishes. The court also considered the factors set out in section 7(3) of the Act, which required the court to be satisfied that the deceased lacked testamentary capacity, that the proposed will would accurately reflect the likely intentions of the deceased if they had testamentary capacity, and that it was reasonable in all the circumstances to make the proposed will.

The court found that the defendant did lack testamentary capacity due to the severity of their injuries and the long-term care required. The court also found that the proposed will reflected the likely intentions of the defendant if they had testamentary capacity, as the plaintiff had been the only person to care for the defendant on a full-time and permanent basis for many years. The court considered the factors set out in section 7(3) of the Act and found that it was reasonable in all the circumstances to make the proposed will. The court noted that other persons entitled to share in the defendant's estate on an intestacy or under the Inheritance (Family Provision) Act 1972 had had limited contact with the defendant or had consented to the will being made in the terms advanced by the plaintiff.

The court made an order authorising the making of the proposed will, which left the entirety of the defendant's estate to the plaintiff. The court found that the proposed will was reasonable in all the circumstances, given the full-time and permanent care provided by the plaintiff, and the lack of any other person who had cared for or provided emotional support for the defendant. The court also noted that the plaintiff had no funds to purchase the half share of the house to which the defendant's father would be entitled if the defendant died intestate.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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