Hoffmann v Waters

Case [2007] SASC 273

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Matter of ADAM TROY WATERS

HOFFMANN v WATERS

[2007] SASC 273

Judgment of The Honourable Justice Debelle

20 July 2007

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

Statutory wills - application for court to make order authorising the making of a will on behalf of person lacking testamentary capacity – whether persons lacks testamentary capacity – intended testator has had little contact and communication with father – proposed will excludes interest of father - likely intention of the intended testator – whether costs of the application should be paid out of the estate of the intended testator.

Administration and Probate Act 1919 s 72(I), s 72(J); Inheritance (Family Provision) Act 1972 s 6; Mental Health Act 1959 (UK); Mental Health Act 1983 (UK) s 95, s 96, s97; Wills Act 1936 s 7, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Boulton v Sanders (2004) 9 VR 495; In the Will of Wilson (1897) 23 VLR 197; re C [1991] 3 All ER 866; re D(J) [1982] Ch 237, applied.
Boulton v Sanders (No 2) [2003] VSC 409; Bryant v Blake (2004) 237 LSJS 23; Hill v Hill (No 2) [2001] VSC 135; Monger v Taylor [2000] VSC 304; re HMF (1976) Ch 33; State Trustees Ltd v Hayden (2002) 4 VR 229; Timbury v Coffee (1941) 66 CLR 277, considered.

HOFFMANN v WATERS
[2007] SASC 273

Testamentary Causes Jurisdiction

  1. DEBELLE J.        Where a person lacks testamentary capacity, the court may, pursuant to s 7 of the Wills Act 1936, make an order authorising the making of the will on behalf of that person. On 17 July, I heard an application pursuant to s 7 on behalf of a person who has severe intellectual disabilities. I made an order authorising the making of a will. I said I would later publish reasons for the order. These are the reasons.

  2. The application was made by the mother of Adam Troy Waters, who I will refer to as “Adam”.  Adam is aged 31 years.  He was born on 15 January 1975.  His parents were married.  There were three children to the marriage.  Adam is the eldest child.  Another son was born in 1977 and a daughter in 1980.

  3. In 1978, when only three years old, Adam was struck by a motor car.  He suffered serious head and brain injuries.  He is now intellectually disabled.  He has impaired speech development.  The medical evidence is that he is unable to express himself but is able to respond to some questions with a single word. 

  4. By his father as next friend, Adam instituted an action in this court claiming damages.  On 8 August 1986, he recovered judgment in the sum of $492,893.49 and costs.  Public Trustee was appointed manager of his estate pursuant to the Aged and Infirm Persons’ Property Act 1940.  The order also…

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Hoffmann v Waters [2007] SASC 273
Case
[2007] SASC 273
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CaseChat Overview and Summary

In the matter of Hoffmann v Waters, the dispute centred on the ability of the defendant, Mr Waters, to make a will. Mr Hoffmann, the plaintiff, sought to have a will made on behalf of Mr Waters who was deemed to lack testamentary capacity. The Supreme Court of Victoria was tasked with determining whether Mr Waters indeed lacked testamentary capacity and if the proposed will accurately reflected his likely intentions. Additionally, the court had to decide whether the costs of the application should be borne by Mr Waters' estate.

The primary legal issue before the court was whether Mr Waters possessed the requisite testamentary capacity to make a will. The court was required to assess this based on the evidence presented, including Mr Waters' limited interaction with his father and the exclusion of his father's interest in the proposed will. Furthermore, the court had to determine whether the proposed will would accurately reflect Mr Waters' likely intentions, a requirement under Section 7(3) of the Wills Act 1936. Finally, the court had to decide on the allocation of costs for the application.

In reaching its decision, the court noted the unrealistic nature of the requirement that the proposed will must accurately reflect the likely intentions of the person lacking testamentary capacity. It suggested that this requirement could be amended, aligning with recommendations from the Probate Users Committee of the Supreme Court of Victoria and the legislation in the United Kingdom. The court found that Mr Waters did lack testamentary capacity and approved the making of a will on his behalf in the terms of the copy will annexed to the judgment. The court also ordered that the will be signed by the Registrar of Probates in the presence of the Public Trustee and sealed with the seal of the Court. The costs of the application were to be paid by the Public Trustee from funds held for Mr Waters.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEBELLE J
Consideration should also be given to amending the terms of s 7(3) to amend the requirement that the Court must be satisfied that the proposed will would accurately reflect the likely intention of the person lacking testamentary capacity. That is a wholly unrealistic requirement. In this respect, it is relevant to note that the Probate Users Committee of the Supreme Court of Victoria has recommended that the Wills Act in Victoria be amended along the lines of the legislation in the United Kingdom. Conclusion For these reasons, I made the following orders:1The plaintiff be and is hereby permitted to make this application.2The Court approves and authorises the making of a will on behalf of the defendant in the terms of the copy will annexed hereto.3The will be signed by the Registrar of Probates in the presence of Public Trustee and be sealed with the seal of the Court. 4The will be retained by the Registrar of Probates and not be withdrawn from the deposit with the Registrar of Probates by or on behalf of the defendant unless by an Order of the Court made under Section 7(11) of the Wills Act 1936.5The costs of and incidental to this application and order be taxed as between solicitor and client or agreed between the solicitors for the parties and Public Trustee and paid by Public Trustee from funds held by Public Trustee for the defendant.

Ratio Decidendi

Legal Principle Established

Established by: DEBELLE J

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