Edwards v Edwards
[2009] VSC 190
•21 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. Prob 96 of 2007
| IN THE MATTER OF THE WILL AND ESTATE OF BRYAN WATSON EDWARDS (Deceased) CORNELIA PETRONELLA EDWARDS | Plaintiff |
| v | |
| BERNADETTE MARY EDWARDS | Defendant |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2009 | |
DATE OF JUDGMENT: | 21 May 2009 | |
CASE MAY BE CITED AS: | Edwards v Edwards | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 190 | |
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WILLS - Probate and Administration – Testamentary capacity – Ability of represented person under Guardianship and Administration Act 1985 (Vic) to make a Will – Wills Act 1997 (Vic).
STATUTORY CONSTRUCTION – s 35 Interpretation of Legislation Act 1984 (Vic) –
s.52 (2) Guardianship and Administration Act 1986 (Vic) - Whether statutory definition of “dealing” covers testamentary disposition.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Phillips | Connley and Co |
| For the Defendant | Mr P.N. Wikramanayake SC with Mr D. Carlile | Simon Parsons & Co |
HIS HONOUR:
Introduction
This is an application by Bernardette Edwards, the daughter of the late Bryan Edwards, to dismiss the motion of Cornelia Edwards, Bryan’s wife, for probate of his Will.
The short and interesting point raised by Bernadette is that at the time that the Will was executed by her father on 10 January 2007, he was the subject of a guardianship order made by the Victorian Civil and Administrative Tribunal (“the Tribunal”). Therefore, it is argued, as he was a represented person under s 52(2) of the Guardianship and Administration Act 1986 (Vic) (“the GAA”) the Will is void without an order of the Tribunal or the written consent of the administrator; no such order or consent was obtained and, says Bernadette’s counsel, it follows that the Will is a nullity.
Factual background
On 26 April 2006, Bryan executed a Will appointing Bernadette as his executor. The major beneficiaries were Bernadette and her sisters. By November 2006, Bryan had commenced to suffer from the effects of a brain tumour.
On 5 December 2006, a temporary guardianship order over Bryan was made by a member of the Victorian Civil and Administrative Tribunal (“the Tribunal”) pursuant to s 22 of the GAA. On 9 December 2006, Bryan married Cornelia. Three days later the Tribunal extended the temporary guardianship order until 24 January 2007. On 8 January 2007, an order was made by the Tribunal appointing State Trustees Limited as the administrator of Bryan’s estate. I shall refer to the terms of that order in a moment. On 10 January 2007, Bryan made his final Will, leaving his estate to Cornelia. On 5 February 2007 the Public Advocate was appointed Bryan’s guardian.
Bryan died on 29 July 2007.
Cornelia then sought to propound the 10 January 2007 Will. Bernadette lodged a caveat against the grant of probate to Cornelia, identifying four grounds:
(a) non-compliance with s 7 of the Wills Act 1997;
(b) lack of testamentary capacity during the period shortly before and at the time of execution of the 2007 Will;
(c) the undue influence of the propounder;
(d) that the deceased did not know and approve the contents of the 2007 Will.
The relevant section
Section 52, which forms the crux of the argument on behalf of Bernadette, reads as follows:
“Restriction on powers of represented person to enter into contracts etc.
(1) Where the Tribunal has made an administration order the represented person whilst a represented person or until the Tribunal revokes that order is, to the extent that the represented person's estate is under the control of the administrator, deemed incapable of dealing with, transferring, alienating or charging her or his money or property or any part thereof or becoming liable under any contract without the order of the Tribunal or the written consent of the administrator.
(2) Every dealing, transfer, alienation or charge by any represented person in respect of any part of the estate which is under the control of the administrator is void and of no effect, and the money or property the subject of the dealing, transfer, alienation or charge is recoverable by the administrator in any court of competent jurisdiction.” (Emphasis added).
The background and the Scheme of the Guardianship and Administration Act
Laws regulating the control of property held by a person with a mental infirmity have existed since Roman times and continued in various draconian forms in England into the 19th Century. The earliest predecessor of the current legislation is the English 1832 Act for the Care and Treatment of Insane Persons. The history of such legislation in the United Kingdom and Australia is helpfully and comprehensively described by Gobbo J in Wise v Rosenbaum & Public Trustee.[1]
[1][1981] VR 765, 769.
In this State, the first domestic provision was the Lunacy Act 1890, which provided for the appointment of a guardian for the “protection, care and management of the person” found to be a lunatic. In 1943 the Lunacy Act was renamed the Mental Hygiene Act and was subsequently consolidated into the Mental Health Act 1959.[2] From 1939, the administration of an estate of a person with a “mental infirmity” [3] was undertaken by the Public Trustee pursuant to the Public Trustee Act 1939.
[2]For a brief history of the relevant Acts see Stuart v Kirkland-Veenstra (2009) 254 ALR 432 [30].
[3]Described as “protected persons” under the Public Trustee Act 1959.
During the 1970s there were a number of significant developments concerning the rights of persons with intellectual impairments or mental disorders. In December 1971, the United Nations General Assembly published the declaration of the rights of mentally retarded persons. In this State, in August 1977, the Committee on Mental Retardation published a report[4] with a number of recommendations for Government. Similar reports were published in other States.[5] In 1977, significant amendments were made to the Mental Health Act of South Australia, which resulted in the establishment of a Guardianship Board. This set the scene for the establishment of a Parliamentary committee in this State in December 1980 to formulate proposals for legislation to deal with the protection of intellectually handicapped persons. This Committee first met in February of 1981 and in 1983 (after the publication of a discussion paper and a series of public hearings) delivered its report to the Minister for Health. That comprehensive report, entitled “A Report of the Minister’s Committee of Rights and Protective Legislation for Handicapped Persons 1982”, (“the Committee report”) provided the structure for the GAA. In the Second Reading Speech,[6] it was noted that the Committee report formed the basis for the Bill.
[4]Report of the Victorian Committee on Mental Retardation, Government Printer Melbourne 1977.
[5]e.g. The Law and Persons with Handicaps, Vol 2, Intellectual Handicap, Government Printer South Australia 1981, Discrimination and Intellectual Handicap, Anti-discrimination Board (NSW), Government Printer NSW 1981.
[6]Mr Roper, Hansard 28 November 1985.
The relevant parts of the GAA came into force on 14 July 1987. Its objects are:[7]
“(b) to provide for the appointment of a Public Advocate; and
(c) to enable the making of guardianship orders and administration orders; and
(d) to ensure that persons with a disability and represented persons are informed of and make use of the provisions of this Act.”
[7]S 4 of the GAA.
The primary purpose of the GAA is to ensure that persons with a disability, defined by s 3 as meaning “intellectual impairment, mental disorder, brain injury, physical disability or dementia”, may be represented by a guardian and/or have his or her estate protected by an administrator. The GAA gives separate roles to guardians and administrators and provides the Tribunal with the power of appointment..[8] A guardian, in effect, makes many day-to-day decisions for the represented person in relation to matters such as accommodation, work, health care and the like.[9] An administrator, on the other hand, is responsible for preserving and protecting the assets of a represented person. The specific powers of both a guardian and an administrator are set out within the GAA under Part 4 and Part 5 respectively. This case concerns the powers of the administrator.
[8]S. 22 in respect of a guardian and s 46 in respect of an administrator.
[9]S. 24
Within Part 5, s 43(1) provides:
“Any person may apply to the Tribunal for an order appointing an administrator in respect of the estate of a person with a disability who has attained the age of 18 years or to take effect upon the person attaining the age of 18 years.”
Section 46 gives the Tribunal the power to appoint an administrator. It relevantly provides:
“(1) If the Tribunal is satisfied that-
(a) the person in respect of whom an application for an order appointing an administrator is made-
(i) is a person with a disability; and
(ii) is unable to make reasonable judgments in respect of the matters relating to all or any part of her or his estate by reason of the disability; and
(iii) is in need of an administrator of her or his estate –
…
The Tribunal may make an order appointing an administrator of that person’s estate.
(2) In determining whether or not a person is in need of an administrator of her or his estate, the Tribunal must consider-
(a) whether the needs of the person in respect of whom the application is made could be met by other means less restrictive of the person's freedom of decision and action; and
(b) the wishes of the person in respect of whom the application is made, so far as they can be ascertained.
(3) The Tribunal cannot make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the person in respect of whom the application is made.
(4) Where the Tribunal makes an order appointing an administrator of a person's estate, the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.”
The Tribunal is obliged to monitor guardianship or administration orders made by it and can, of its own motion, re-assess an order at any time.[10]
[10]Part 6 Division 2.
Mention should also be made of s 54 of the Act, which reads as follows:
“The Tribunal may either before or after the death of a represented person open and read any paper or writing which is purported or alleged to be the will of the represented person.”
The order made by the Tribunal
The relevant parts of the Tribunal’s orders made 8 January 2007 as to the administration of Bryan’s estate were as follows:
“Having reassessed the temporary guardianship order dated the 5th December 2006 the Tribunal orders that the guardianship order is revoked.
The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about their estate; and needs an administrator.
The Tribunal orders that:
1.State Trustees Limited, 168 Exhibition Street, Melbourne Vic 3000, be appointed administrator of the estate of the represented person with all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986.
…
3.The administrator shall not, without prior approval of the Tribunal, dispose of the represented person’s property situated at –
19 Albert Street, Port Albert, VIC 3971
4.This administration order be reassessed no later than 08 January 2010.
5.This order shall continue to have effect until further order of the Tribunal.
6.The administrator shall immediately notify the principal registrar in writing of any change of address of the represented person or the administrator.
The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.”
Submissions of the parties
I hope that I do no disservice to counsel for Bernadette and Cornelia in summarizing their arguments in the following brief fashion.
Mr Wikramanayake SC and Mr Carlile, who appear for Bernadette, contend that the execution of the Will constitutes a “dealing” by the deceased with his property and therefore, by reason of s 52(2), is void. A “dealing”, so the argument runs, includes a testamentary disposition. That means that once an order is made, it deprives the represented person of the ability to make a valid Will. This, it is said, is consistent with the breadth of powers given to the administrator pursuant to s 58B(1) and (2) of the GAA. They also contend, in part to sheet home an argument concerning the decision by the Western Australian Full Court in Re The Full Board of the Guardianship and Administration Board[11] (“Re The Full Board”)[12], that an administrator has a power to make a Will as provided by s 20 and s 29 of the Wills Act, which they say has impliedly repealed s 50(2) of the GAA. They also argue that the decision of Re The Full Board –
[11](2003) 27 WAR 475.
[12]Which considered an equivalent Western Australian provision. See [21] – [24] of these reasons.
(a) was wrongly decided; and/or
(b) the provisions of the two pieces of legislation are sufficiently different to render the decision inapplicable to interpretation of the GAA.
Counsel concluded their submissions by asking, rhetorically, whether Parliament could have intended that an administrator would or could control every facet of a represented person’s financial affairs (to the point of purchasing bread by means of an allowance from the administrator) and left intact the power to make a Will.
Mr Phillips, who appears for Cornelia, contends that “dealing” does not cover a testamentary disposition. The word, in its ordinary meaning, does not encompass the making of a Will. Its context also militates against such a construction. Further, to give it effect over testamentary dispositions would be to remove a represented person’s right to make a Will, which is a fundamental right. Only the clearest of words could remove such a right, he contends, and there is not only the common law presumption to support that proposition, but also the provisions of s 4(2) of the GAA, which require a Court to read the Act in a way which is the least restrictive of the freedom of decision of a represented person. He further argues, adopting the reasoning in Re The Full Board, that the GAA has limited operation confined to the protection of assets during the lifetime of the represented person and should not be read to extend to inhibiting testamentary dispositions. He also relies upon the legislative history of the GAA and the extrinsic materials to support this proposition, and says that there is nothing in the Act which would set aside centuries of learning concerning testamentary capacity, which is the true test for determining whether a Will has or has not been properly made by a person with a mental impairment.
The decision of the Western Australian Full Court in Re The Full Board of the Guardianship and Administration Board[13]
[13](2003) 27 WAR 475.
Understandably, counsel for both Cornelia and Bernadette spent a considerable time analysing this decision, which deals with an analogous provision to s 52(3) of the GAA in the Western Australian Guardianship and Administration Act 1990 (WA) (“GAA (WA)”) which, by s 77, provides:
“So long as there is in force a declaration by the Board[14] under section 64(1) that a person is in need of an administrator of his estate, that person is –
(a) incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein; or
(b) subject to Part 9, appointing or conferring any power on an agent or attorney in respect thereof,
except to the extent that the administrator, with the consent of the Board, in writing authorises him to do so.” (Emphasis added).
[14]The current version of this Act refers to the “State Administrative Tribunal”.
In Re the Full Board, a Bench of five was constituted to reconsider an earlier (but nonetheless recent) decision of the Full Court in Johnson v Staniforth.[15] Putting to one side the question of the reconsideration of a previous decision of the Full Court, the focus in Re the Full Board (which involved a referral from the Guardianship and Administration Board) was whether s 77(1) prevented a person whose estate was under administration pursuant to the GAA (WA), from making a valid Will. Although the wording of s 52(2) of the GAA is somewhat different, a represented person is “incapable of entering into any contract or making any disposition in respect of his estate” as opposed to s 77 of the GAA (WA) deeming the represented person “incapable of dealing with, transferring, alienating or charging his or her money or property or any part thereof or becoming liable under any contract”, the similarities are readily apparent. Both sections aim to preclude a person whose estate is under administration from disposing or dealing with assets under the control of the administrator.
[15][2002] WASCA 97.
The ratio of the decision is to be found in the judgment of EM Heenan J.[16] His Honour concluded that a disposition by a represented person within the meaning of the GAA (WA) did not extend to the execution of a Will; therefore a Will made by a person under administration was to be determined by reference to the usual principles of testamentary capacity. As I read his Honour’s judgment, the reasoning for this conclusion was as follows:
[16]Anderson J and Miller J agreed, without qualification, that what was said by EM Heenan J, who delivered the leading judgment of the Court. McClure J also agreed with EM Heenan J, but added several qualifications. Statler J agreed with McClure J.
(a) The GAA (WA) is directed to conserving the property and financial resources of the disabled person during his or her lifetime for his or her own needs and welfare.[17]
[17](2003) 27 WAR 475 [44]
(b) The death of the testator is the event which affects the disposition of his or her property and not the making of the Will, as any Will can be revoked up until the time of death. It is the death that affects the disposition of the property and the executors derive title at that time.[18]
[18]Ibid [47]-[50].
(c) The principles relevant to testamentary capacity have been recognised for centuries and will determine whether probate of the Will is granted. It is unlikely that Parliament, in enacting the GAA (WA), including s 77(1)(c) was intending to impose an additional condition upon the validity of the Will other than that provided for by the Wills Act and the common law.[19]
[19]Ibid [52]-[57].
(d) The reasoning of the majority in Johnson v Staniforth was wrong in that it was primarily dependent upon the proposition that a Will from the time it was validly made operates as a contingent disposition of the testator’s estate. No such interest is created or conferred by a Will until the death of the testator.[20]
(e) The GAA (WA) does not vest the estate of the represented person in the administrator. More significantly, none of the functions which may be conferred on an administrator include the power of the administrator to make a Will or other testamentary instrument. The rule forbidding delegation of testamentary power is well known. Absent legislative provisions providing for the conferral of the Will-making power upon an administrator or other such person, it is unlikely that the legislature intended to deprive the represented person of the right to make a Will.[21]
(f) A represented person may have testamentary capacity to make a valid Will during a lucid interval and there is a basic principle that any person of full age may make a valid and effective Will which should be admitted to probate after death, provided such testamentary capacity is established.[22]
[20]Ibid [58]-[62].
[21]Ibid [68]-[74].
[22]Ibid [76]-[78].
I do not accept the submission made by counsel for Bernadette that the provisions of the GAA(WA) are so dissimilar to the GAA as to render the reasoning of the Full Court irrelevant. To the contrary the resolution of the issue by the Full Court is applicable to the consideration of an analogous scheme using similar words. The distinction as to the ambit of the Administrator’s powers (one prescribed by statute, the other by administrative order) is not persuasive.
Analysis
I am satisfied that as a matter of interpretation s 52(2) of the GAA does not extend to a Will or other testamentary disposition and therefore Bernadette’s application should be dismissed.
Interpretation of the GAA
I should, before I set out my reasons for reaching this conclusion, refer to some fundamental principles relating to the interpretation of this provision. A Court’s primary task is, of course, to construe the GAA in accordance with the legislative purpose or intention.[23] The GAA itself provides its own direction as to construction of the powers “conferred or imposed” by the Act. Section 4(2), provides:
[23]Interpretation of Legislation Act 1984 (Vic), s 35.
“It is the intention of Parliament that the provisions of this Act be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that-
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability are promoted; and
(c) the wishes of a person with a disability are wherever possible given effect to”. (My emphasis).
So, where a particular power is conferred upon the administrator, it must be interpreted in such a way as to be the least restrictive of the represented person’s freedom of decision and to ensure that the wishes of a person with a disability are, wherever possible, given effect to. This statutory direction is important; it is unusual and demonstrates the need to interpret the GAA in a way which will interfere as little as possible with the rights of the represented person. The requirement to interpret the GAA in this fashion has been recognised in several decisions of this Court. In Moore v Guardianship & Administration Board,[24] Gobbo J said:
[24][1990] VR 902, 917.
Moreover, as is said in the report relied upon by Parliament in framing the legislation and referred to in Hansard, it must be a very rare case that will see an order made against the wishes of a represented person.
In McDonald v Guardianship Board,[25] the Full Court said:
The tribunal has itself recognised that the appointment of a plenary guardian under the Board Act, since it officially and formally removes the whole of a person’s legal rights over person and circumstances, is to be made only as a last resort: Re M. & R and Guardianship and Administration Board (1988) 2 VA.R. 213, at pp 219–21. The appointment of an administrator under the Board Act is also obviously capable of being gravely intrusive upon the rights of a represented person, as the Act itself impliedly recognises. Consideration must be given to the question whether other and less restrictive means than an administration order might meet the needs of the propositus. Moreover, if an administration order is made, the order must be that which is in the circumstances the least restrictive of the freedom of decision and action of the propositus. Plainly enough, the Board Act recognises that administration orders may be designed to vary in their reach and their intrusiveness; and it is expected that any administration order made will be tailored to the circumstances, being privative only to the extent actually required.” (Emphasis added.)
[25][1993] 1 VR 521, 531-532.
“Dealing” in the context of s 52(2)
Section 52(2) renders void “every dealing, transfer, alienation or charge” by the represented person.[26] There is no definition of “dealing” in the Act. The New Shorter Oxford English Dictionary[27] defines “dealing” as follows:
“1 Division, distribution, delivering (of gifts, blows, cards, etc.); sharing out. LME. 2 sing. & (now usu.) in pl. Friendly or business communication (with); personal connection or association (with). LME. 3 sing. & in pl. Mode of acting towards others, treatment of others; conduct, behaviour. (Foll. By with the person(s) towards whom the behaviour is directed.) L15. 4 sing. & in pl. Trading, trafficking; buying and selling, esp. of a particular commodity. M17.”
[26]Absent approval by the administrator or the tribunal.
[27]Clarendon Press Oxford 1993, see also Shorter Oxford English Dictionary on Historical Principles 5th Edition.
“Dealing” therefore has a number of disparate meanings. In modern usage, the word “dealing”, by itself, I think connotes some form of commercial transaction or, at the least, a transaction involving consideration moving from one party to the other. Moreover, when one examines the word in the context of the section and the words surrounding it, the meaning is relatively clear. The High Court in Prior v Sherwood:[28] referred with approval to the principle set out in Maxwell on the Interpretation of Statutes:[29]
“When two or more words, susceptible of analogous meaning, are coupled together, noscuntur a sociis; they are understood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the less general.”
This statement is consistent with modern principles of interpretation. The words used in a statute are to be looked at in context.[30] The application of this maxim does not involve departure from the meaning of the word, but ensures where there might be ambiguity or lack of clarity, that the true meaning is ascertained.[31]
[28](1906) 3 CLR 1054, 1072.
[29]3rd Edition 461.
[30]CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384, 408.
[31]Commissioner of Taxation v Whitehouse (1960) 104 CLR 25, 30; see also R v Morton (1986) 42 SASR 571, 575.
The context in which the word is placed is illuminating. The words “transfer” and “alienation” bespeak some conduct on the part of the owner to vest the property in another, be it by gift or sale. A common thread of the descriptive words is that each of a dealing, transfer, alienation or charge provides the recipient with a right enforceable at law.
By contrast, the right of a beneficiary under a Will is contingent, it is not a transfer or a gift – it gives no rights to another, it is not enforceable at law – for the very reason that the Will or testamentary instrument may at any moment prior to death be revoked by the testator. It has no commercial value. In Re Walker,[32] Vaughan Williams LJ said:
“Then it is said, if a lunatic has this capacity to make a will which can be proved after his death, why should he not also have power to execute a deed which on the face of it is only to take effect upon his death, and creates only reversionary interests arising after the death of the lunatic? It does certainly seem at first sight a little inconsistent that the law should recognise the capacity of the lunatic to make a will, and should refuse to recognise his capacity to execute a deed which is intended to take effect only after his death. But the answer to this is, that the beneficiaries under a will have no interest and no locus standi whatever until after the death of the testator. The will is ambulatory and may be revoked by the maker of it at any time before his death, and the result is that the execution of a will gives no immediate interest to the beneficiaries either in possession or in reversion. The will is of no effect until the death of the maker of it, and the consequence is that the making of it does not give rise to any conflict of control. The beneficiaries under such a will cannot, when orders are being made in respect of the lunatic’s property, come forward and claim to interfere in anyway, whereas those claiming under a deed could successfully insist upon a locus standi to be heard, and immediately thereupon a conflict of jurisdiction would arise.” (Emphasis added).
[32][1905] 1 Ch 160, 172-173.
The reasoning of EM Heenan J in Re the Full Board[33] demonstrates the application of this reasoning to the powers of administrators in a legislative scheme such as the GAA. A testamentary disposition is not an effective disposition at law until the death of the represented person. It is the death of the represented person that then provides for the transmission of the estate to the executors or to the administrators in the case of intestacy. The role of the administrator under the Act ceases forthwith. If the making of a Will cannot be regarded as a “disposition” under the GAA (WA), then it could hardly be thought to be covered by the word “dealing” under the GAA.
[33]Supra [47]-[50].
I conclude that the making of a Will does not constitute a “dealing” within the meaning of s. 52(2).
It is appropriate now to look at the scheme of the Act and the powers of the administrator to see whether, notwithstanding what I think is the natural meaning of the word, “dealing” within s. 52(2), the legislative intention disclosed in the context of the Act[34] is that the section’s reach extends to the Will-making power of a represented person.
[34]R v Lavender (2005) 222 CLR 67, [33]; CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384, 408.
The GAA: the scheme of the administration provisions and their legislative history
Section 48 of the GAA sets out the powers of an administrator:
“(1) An administrator has the powers and duties conferred by this Division and such of the powers and duties referred to in Division 3A as the Tribunal may specify in the order.
(3) Where a decision is made, action taken, consent given or thing done by an administrator under an order made by the Tribunal the decision, action, consent or thing has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.
(4) Upon the death of a represented person any order appointing an administrator of that person's estate under this Act lapses and the law relating to the administration of a deceased person's estate applies accordingly.”
Section 49 deals with the exercise of power by an administrator:
“(1) An administrator must act in the best interests of the represented person.
(2) Without limiting subsection (1) an administrator acts in the best interests of the represented person if the administrator acts as far as possible-
(a) in such a way as to encourage and assist the represented person to become capable of administering the estate; and
(b) in consultation with the represented person, taking into account as far as possible the wishes of the represented person.”
Section 58B (within Division 3A) then, in considerable detail, sets out the powers and duties of an administrator:
“(1) Subject to and in accordance with this Act and the administration order appointing an administrator in each case-
(a) the administrator has the general care and management of the estate of the represented person; and
(b) it is the duty of the administrator to take possession and care of, recover, collect, preserve and administer the property and estate of the represented person and generally to manage the affairs of the represented person and to exercise all rights statutory or otherwise which the represented person might exercise if the represented person had legal capacity; and
(c) the administrator in the name and on behalf of the represented person may generally do all acts and exercise all powers with respect to the estate as effectually and in the same manner as the represented person could have done if the represented person were not under a legal disability.
(2) Without limiting subsection (1), an administrator may in the name and on behalf of a represented person-
(a) collect, receive and recover income of and money due or which becomes due to and any compensation or damages for injury to the estate or person of the represented person; and
(b) invest any money in any security in which trustees may by law invest; and
(c) demise land at a rent and on conditions as the administrator thinks fit for any term not exceeding 5 years or, with the consent of the Tribunal, for any longer term; and
(d) exercise to the extent and in the manner the administrator thinks proper any power of leasing vested in the represented person; and
(e) surrender any lease, accept any lease, accept the surrender of any lease or renew any lease; and
(f) bring land under the Transfer of Land Act 1958; and
(g) sell, exchange, partition or convert into money any property; and
(h) mortgage or charge any property; and
(i) pay any debts and settle, adjust or compromise any demand made by or against the estate and discharge any encumbrance on the estate; and
(j) carry on so far as appears desirable any trade, profession or business which the represented person carried on; and
(k) agree to any alteration of the conditions of any partnership into which any represented person has entered or to a dissolution and distribution of the assets of the partnership; and
(l) bring and defend actions and other legal proceedings in the name of the represented person; and
(m) execute and sign deeds, instruments and other documents; and
(n) complete any contract for the performance of which the represented person was liable, or enter into any agreement terminating liability; and
(o) pay any sum for the maintenance of the represented person (and, in the event of his or her death, for funeral expenses) and for the maintenance of his or her spouse or domestic partner or any child, parent or other person dependent upon him or her and for the maintenance and education of his or her children as to the administrator seems expedient and reasonable; and
(p) do all matters necessary or incidental to the performance of any of the above-mentioned matters and apply any money from the estate which it is necessary to apply for the purposes of this Act.
(3) An administrator may if it seems to be expedient and reasonable-
(a) pay or cause to be paid to the represented person for the personal use of that person any amount of money standing to the credit of that person with the administrator; and
(b) give or cause to be given to the represented person for the personal use of that person any personal property which belongs to that person and is under the control of the administrator.”
The GAA also gives ancillary powers to the administrator to give effect to the powers provided to such person[35] and the power to make gifts and to make investments.[36]
[35]Section 50(1).
[36]Section 50A and s 51.
Counsel for Bernadette made the point that the administrator is given such wide ranging powers in dealing with a represented person’s assets that it is natural that Parliament intended that such a person not be able to make a Will and, secondly, that an administrator be empowered to do so.
I am afraid that I do not draw the same conclusion from an analysis of the administrator’s powers. First, each of the various powers is directed towards the use, preservation and protection of the represented person’s assets during his or her lifetime. None of the powers cover the disposition of assets after the death of the deceased person. Moreover, as discussed subsequently, Parliament’s interdiction upon the administrator having a Will-making power (s. 50(2)) is indicative of an intent to limit his or her role to the protection of assets during the lifetime of the represented person. Secondly, while it is true, as counsel suggested, that the administrator has an extraordinary degree of control over the assets and funds which may be utilised by the represented person during his or her lifetime, that does not, to my mind, lead to an inference that the personal choice involved in the making of a Will by a represented person was to be deliberately put to one side. Rather, as I have said, it solely demonstrates an intention to protect the represented person for his or her lifetime. The role of the administrator ceases upon the death of the represented person.[37]
[37]Section 58D(1)(b) of the GAA requires the administrator to deliver up all property of the represented person to his or her personal representative upon notification of the death of the represented person.
The extrinsic material referable to the enactment of the GAA does not reveal any intent on the part of Parliament to prohibit a represented person making a Will or, to put it more accurately, for the word “dealing” to cover a testamentary disposition. Section 35 of the Interpretation of Legislation Act 1984 permits the use of extrinsic material including reports of the Parliamentary Committee as an aid to determining the purpose of a particular statutory provision. I am conscious that the purpose for which extrinsic material may be used is that of determining the objective intention of Parliament[38] and the overriding obligation upon a Court is to determine what Parliament meant by the words it used, rather than what it might have intended to say.[39]
[38]Eastman v R (2000) 203 CLR 1, [146] – [147].
[39]Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1, [10], Harrison v Melhem [2008] NSWCA 67, [14] – [16], [159] – [171]. Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 [82].
In this case the extrinsic materials are not confined to the Parliamentary Speeches but include the committee report which formed the basis for the legislation.[40] It can in these circumstances, be used if necessary, to shed light on the Parliamentary intent. Counsel for Cornelia directed my attention to a statement of principle contained within the Committee report concerning the role of an administrator:
“The legislation should ensure that an estate administrator is appointed to make decisions in those areas only in which the handicapped person lacks decision-making ability. It should guarantee the person a fair hearing and should reinforce the common law presumption that every adult is capable of looking after his own affairs. It should prohibit the appointment of an estate administrator whose personal or financial interests conflict or are likely to conflict with those of the represented person. The legislation should guarantee a service which is visible and highly accessible at all times to potential members of the consumer group. Finally, the benefits of the legislation should be made available, insofar as this is possible, on a needs basis, rather than upon categorisation of an individual as being a person with a specific qualifying handicap.”[41] (Emphasis added).
This statement is reflected in the objects of the Act and the interpretation provision of the Act (s 4(2)).[42]
[40] See [10] above.
[41]Committee Report [19].
[42]See [11] and [26] above.
The thrust of the Committee report on the issue of an administrator handling a represented person’s financial affairs during the course of his or her lifetime was as follows:
“The concept of the least restrictive alternative was one of the guiding principles underlying our recommendations on guardianship. It is equally applicable to estate administration. … Thus, where a person’s lack of ability to manage his own financial affairs can be remedied through a training programme and where such a programme can be made available to the handicapped person who is the subject of the application, the Tribunal may not then need to make an order appointing an administrator of his estate. Where an order appointing an administrator is desirable, the order should be the least restrictive of the person’s freedom of decision and action as is possible in the circumstances. … A tailor-made order could reflect these needs by ensuring that the developmentally disabled person retains some limited residual control over his property while at the same time protecting him from financial exploitation.”[43] (Emphasis added).
[43]Committee Report p.21.
The Committee report reflects the tenor of the Act, namely, as limited as possible interference with the represented person’s personal and financial affairs during the course of his or her lifetime. There is no suggestion in the report that a represented person would be deprived of the ability to make a Will, albeit that his or her estate was the subject of administration. That approach is reflected in the terms of the GAA.
Finally on this issue, the legislative history of the administration of represented persons’ estates is consistent with the administrator’s role being confined to the protection of assets. Section 50(a) – (q) of the Public Trustee Act 1959, set out the powers of the Public Trustee under that Act over the estate of a protected persons. These powers were, in effect, replicated by s 58B of the GAA.[44] In Pisak v Hegedus & Anor[45] the Public Trustee was described as the “statutory manager” of the estate. Following a review of the Public Trustee’s statutory powers and duties McInerney J said[46]:
“Those provisions indicate that the Public Trustee is not in the strict legal sense a trustee of the estate of a protected person. He exercises on behalf of and pursuant to the authority conferred on him by the statute, namely the Public Trustee Act 1958, all such powers rights and privileges as he is enabled by that statute to exercise. It may be doubted whether it is even correct to speak of him as a statutory agent of the protected person. In some of the cases he is referred to as a manager, and in one of the cases which was cited to us this morning, Isaacs v Chinery (1896) 74 LT 320; 12 TLR 302, it was held that a person who was the committee authorized to carry on the business of a lunatic under the direction of the court for the benefit of the lunatic was to be regarded as being in the position of a bailiff and not in that of an agent, receiver, manager or other officer appointed by the court who would be held personally liable.”
[44]The Public Trustee Act was first enacted in 1939 and gave the Public Trustee a range of specific powers in relation to the management of the estates of “infirm persons”. In 1959 that Act was significantly amended by the Mental Hygiene Act 1959.
[45][1983] 2 VR 386.
[46]Ibid [392] –[ 393] with whom Murray J and Jenkinson J agreed.
This statement underpins two relevant propositions. First, that the Public Trustee’s role was confined to management of the estate alone, consistent with the specific powers given to the Public Trustee under the Act. Second, that there was no statutory intention under that earlier legislation to give the administrator the power to make a Will on behalf of the protected person, nor to deprive the protected person of the right of making a Will.
The scheme of the Act, the relevant extrinsic materials and the legislative history are such that I can glean no legislative intention that the Act intended to interfere with the right of a represented person to make a Will or, more precisely, that the word “dealing” in s 52(2) was intended to include a testamentary disposition. The Act focuses on the preservation and maintenance of the estate during the lifetime of the represented person.
No right of an administrator to make a Will
As has been seen, whilst there are wide specific powers given to the administrator, the GAA gives the administrator no power to deal with the estate consequent to the death of the represented person.[47] Section 50(2) of the GAA deals with the administrator’s powers in relation to Will-making. It is the only provision in Part 5 which deals with the making of a Will and reads as follows:
“This Act does not confer on an administrator the power to execute a will in the name of a represented person.”
[47]S.58D
Whilst s 50(2) of the GAA precludes an administrator from executing a Will, both the GAA and the Wills Act are silent in relation to the ability of a represented person to make a Will. At the time of enactment of the GAA Parliament can be taken to be aware of the provisions of the Wills Act 1958 and the common law principles relating to testamentary capacity. In those circumstances, it can be inferred, taking into account the terms of s 50(2), that Parliament did not intend that the GAA would interfere with a represented person’s right to make a Will. This is particularly so given the statement of principle in s 4(2) of the GAA. Whether the Will is valid is another issue to be determined by the application of the principles of testamentary capacity.[48]
[48]See Kantor v Vosahlo [2004] VSCA 235.
The Wills Act 1997
The Wills Act 1997, by Part 2, sets out the manner in which a Will may be executed. The 1997 Act repealed the Wills Act 1958 and came into operation on 20 July 1998. Part 3 Division 2 deals with “Court Authorised Wills” for persons lacking testamentary capacity.
It was argued on behalf of Bernadette that the provisions of s 21 and s 29 of the Wills Act in some way inhibit (or as it was put, impliedly repeal) the specific terms of s 52(2) of the GAA and permit an administrator to make a Will.
Section 21 reads as follows
“(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.”
Section 29 reads as follows:
“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.”
Contrary to the argument put on behalf of Bernadette, s 29 does not, either by terms or implication, empower a guardian or administrator to make a Will. It merely provides an entitlement to appear at an application made under s 21, which permits the Court to sanction a Will where a person does not have testamentary capacity. It is facilitative for the purpose of an application under s 21. It would be a very odd thing if Parliament had intended to repeal a substantive provision of one Act by a procedural provision of another. Moreover, as already noted, there is nothing in the Wills Act 1997 which prevents a represented person making a will. Nor is there any provision that an administrator has the power to make a Will on behalf of a represented person. If there is a lack of testamentary capacity, then the Court can, under Division 2 of Part 3, authorise a Will. This does not deprive a represented person of the right to make a Will.
As was pointed out by EM Heenan J in Re the Full Board:
“The conferral of a power on some other person to make a Will or other testamentary instrument for or on behalf of a person would constitute such a fundamental change in the law that it could only be accomplished by express legislation to such effect.”[49]
Interestingly, his Honour referred to Division 2, Part III of the Victorian Wills Act 1997 as being an example of empowering persons to make Wills for or on behalf of persons with a disability and without testamentary capacity.[50] In fact, Division 2, by s 21, empowers a Court to make an order authorising a Will. The power resides in the Court alone which must be satisfied of a lack of testamentary capacity, as well as the likely intentions of the person before it can make such an order.[51].
[49](2003) 27 WAR 475 [74].
[50]Ibid
[51]S. 26
Contrary to Bernadette’s submissions, I conclude that Parliament did not intend, by the enactment of Division 2 Part 3, to alter or remove the fundamental right of a represented person to make a Will. Rather it provided a specific power to a court to authorise a Will where a person lacks testamentary capacity.
Principles of testamentary capacity remain unaffected
The principles of testamentary capacity and their application to the validity of a Will and a consequential grant of probate are an established part of the legal landscape in this country.[52]
[52]Banks v Goodfellow (1869 - 1870) LR 5 QB 549, 565, Kerr v Badran [2004] NSWSC 735 [49], Nicholson v Knaggs [2009] VSC 64, [95] – [100].
The test laid down by the GAA under s 46(1) does not involve the same application of principle as the test for testamentary capacity. An administration order is made at a fixed point of time. Mental illness can wax and wane. Indubitably, at times a represented person may have sufficient soundness of mind to be able to execute a Will with appropriate testamentary capacity, albeit that at an earlier or later point of time such capacity had dissipated. It cannot be thought that Parliament would have intended by implication arising out of s 52(2) to have removed by a side-wind a fundamental and longstanding method of determining whether a person with a mental impairment had or had not made a valid Will.
In Norris v Tuppen,[53] Ashley J said:
“It was also common ground and it is the law, that an administration order does not itself prevent a represented person from making a will; and that it does not conclude the question whether such a person has testamentary capacity at a particular time.”
This observation[54] is consistent with what was said by Powell JA in Perpetual Trustee Co Limited v Fairlie-Cunningham[55] in which his Honour held that the existence of the equivalent of an administration order should not lead to the deceased being conclusively presumed to have lacked testamentary capacity at the time the Will was made.
[53][1999] VSC 228 [66].
[54]I accept the submission made on behalf of Bernadette that this statement of his Honour was obiter dicta.
[55](1993) 32 NSWLR 377.
It is unlikely, given the enactment of the Wills Act 1997 and the existence of the principles of testamentary capacity (recognised in the Wills Act) that Parliament intended by s.52(2) of the GAA to add an additional condition to, or a prohibition upon, the right of a represented person to make a Will.
Interference with the rights of the represented person
It is a well enshrined principle that if the legislature wishes to interfere with the established rights of a citizen, it is necessary to do so in clear and unambiguous language.[56] The right to make a Will is such a right. In Grey v Harrison,[57] Callaway JA (with whom Charles JA and Tadgell JA agreed) said as follows:
“Secondly, it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else.”
[56]See Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 [19]-[21] and [118]-[119] where the extent of the principle is considered.
[57][1997] 2 VR 359 at 366.
In Electrolux Home Products Pty Ltd v Australian Workers’ Union,[58] Gleeson CJ said:
“Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation.. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied.” (Emphasis added.)
The context in which this principle is to be applied is made clear from s 4(2) of the GAA. The right of a represented person to have freedom of choice, insofar as it is capable of being expressed, is enshrined and the Act is to be interpreted in a way which is “least restrictive of a person’s freedom of decision”.[59] That freedom of decision extends to the ability to make a Will which, as was noted in Grey v Harrison, is an important human right. Indeed, it is a fundamental common law right recognised by statute in the form of the Wills Act.
[58](2004) 221 CLR 309 [19].
[59]See [26] above.
The presumption created by s 4(2) of the GAA and the principle requiring clear legislative intention to effect or alter existing rights holds good. If Parliament intended to remove the right of a represented person exercising his or her decision-making powers, it could only do so in “unmistakable and unambiguous”[60] language or, to put it another way, with “irresistible clearness”,[61] not by a dubious implication arising out of a section designed to protect the assets of a represented person during his or her lifetime. The GAA itself provides a clear example of what Parliament could have said, had it so intended. Section 50(2) specifically declares that an administrator does not have the power to execute a Will. If Parliament had intended to preclude a represented person from making a Will, then such an intention could have been clearly and unequivocally expressed. It was not.
[60]Coco v The Queen (1994) 179 CLR 427, 437.
[61]Potter v Minahan (1908) 7 CLR 277, 304. See also Bropho v State of Western Australia (1990) 171 CLR 1, 17-18, Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, [27] – [30], Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, [36].
Conclusion
In summary, a represented person has a right, like any other member of the community, to make a Will. The validity of that Will depends upon the person’s testamentary capacity at the time of the making of the Will. There is no reason to think that Parliament intended by s 52(2) of the GAA to interfere with the represented person’s right to make a Will; rather, the section was intended to protect and preserve the represented person’s estate during his or her lifetime. Bernadette’s application must be dismissed.
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