In the Estate of A Protected Person (No 2) - [2022] SASC 102

Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF A PROTECTED PERSON (No 2)
[2022] SASC 102
Judgment of the Honourable Auxiliary Justice Bochner
16 September 2022
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
This is an application pursuant to s 7 of the Wills Act 1936 for permission to bring an action authorising the making of a will in specific terms approved by the Court on behalf of a person who lacks testamentary capacity.
The applicants require permission to bring this application.
Held:
1. Permission is granted to the applicants to bring this application.
2. I authorise the making of a will on behalf of the protected person.
3. I will hear the parties on the question of costs.
Wills Act 1936 (SA) s 7; Family Law Act 1975 (Cth) s 121; Inheritance (Family Provision) Act 1972 (SA); Guardianship and Administration Act 1993 (SA), referred to.
Boulton v Sanders [2004] VSCA 112; Re D. (J.) [1982] 1 Ch 237; Plowright v Burge [2005] VSC 490; Hoffmann v Waters [2007] SASC 273; Re Fenwick and Re Charles [2009] NSWSC 530; Gau v Gav [2014] QCA 308; Re K, JL [2016] SASC 53; Paoli v Paoli [2021] SASC 11; Argiro v Lagozino [2017] SASC 185; Re Grace Geraldine Brown [2009] SASC 345; Stanford v Stanford (2012) 247 CLR 108, considered.

IN THE ESTATE OF A PROTECTED PERSON (No 2)
[2022] SASC 102

This is an application pursuant to s 7 of the Wills Act 1936 (“the Act”) for permission to bring an action authorising the making of a will in specific terms approved by the Court on behalf of a person who lacks testamentary capacity. The three applicants are the children of the person lacking testamentary capacity. The respondents to the application are the person lacking testamentary capacity and her husband. The person lacking testamentary capacity appears through her litigation guardian, who supports the application.
There are currently proceedings in the Federal Circuit and Family Court of Australia (“FCFCOA”) between the applicants and the husband. Consequently, I will not refer to the parties by name, so as not to compromise the protection of identities provided by s 121 of the Family Law Act 1975 (Cth). I will refer to the applicants as “the applicants”, or individually by their initials. I will refer to the person who lacks testamentary capacity as “the protected person” and her husband as “the husband”.
The protected person’s penultimate will
By this will,[1] which was made on 15 May 1997 after her divorce from the applicants’ father, the protected person appointed her son, MRK, her executor and trustee. In the event that he predeceased her or was unable or unwilling to act as her executor, she appointed her daughter, TJK (referred to subsequently in these reasons as “TJS”), as her executor and trustee. She left the entirety of her estate to her children, MRK, TJS and PAK. In the event that one or more of them did not survive her, that share would go to their children. In the event that none of her children survived her and left no children of their own, she left her estate to her sister and brother.
[1] A1.
The protected person’s last known will
The last known will of the protected person was made by her on 28 December 2007.[2] It was made after her marriage to the husband. By this will, she appointed the husband as her executor and trustee; in the event that he failed to survive her or was unwilling or unable to act, she appointed the applicants in his place. She gave her trustees her home on trust to allow the husband to have sole use, occupation and enjoyment of it during his lifetime, rent free but on the basis that he paid all rates, taxes and insurance premiums and other outgoings. After the husband’s death, her home was to go to the applicants as tenants in common in equal shares.
[2] A2.
The protected person divided the residue of her estate into ten equal parts. She gave three of those parts to the husband for his sole use and benefit if he survived her. She gave the remaining seven parts to the applicants as tenants in common in equal shares.
On the same day that the protected person made her will, the husband also made a will. His will was a mirror will to that of the protected person: he gave the protected person a right to use and occupy his house for her lifetime, after which it was to go to his children. He also divided the residue of his estate into ten equal shares and left three of those to the protected person, with the balance to go to his children.
The proposed will
The applicants ask the Court to approve a new will for the protected person.[3] The proposed will appoints the applicants as her executors and trustees. It then leaves the entirety of her estate to the applicants in equal shares; in the event that one or more of them fails to survive her, that share is to pass to his or her children. All reference to the husband is removed.
[3] MFI A13.
The circumstances leading to the commencement of this action
The protected person and the husband were married in May 2004. It was the second marriage for each of them; they each had children from their first marriages. At the time of their marriage, the protected person owned a house in Torrensville, and the husband owned houses in Carrickalinga and Adelaide. They sold the houses in Torrensville and Adelaide and bought a block of land together in Adelaide on which they built a house. I will refer to this house as the marital home. The husband says that they paid for the marital home and land equally.[4] Initially, they owned the marital home as tenants in common. They shared their time between the marital home and the husband’s house in Carrickalinga.
[4] R24 [21].
The protected person retired in 2008 and the husband retired in 2010. From this time, they began to spend more time at Carrickalinga.
In 2009, the protected person and the husband set up a joint self-managed superannuation fund, which I will refer to as “the super fund”. The protected person contributed more to the super fund than the husband, contributing approximately 70% of the assets to the fund. In April 2009, the protected person and the husband signed Binding Death Benefit Nomination forms. The protected person nominated her three children each to receive 33% of her death benefit. Thus, 1% of her benefit remains unallocated. The husband nominated his two children to receive 50% each of his death benefit.[5] As at 30 June 2021, the net assets in the super fund were valued at $1,072,141. The protected person’s withdrawal benefit was $770,821 and the husband’s withdrawal benefit was $301,320.
[5] R29, MM-22.
On 10 December 2009, the husband transferred his interest in the marital home to the protected person. He gave two reasons for doing this.[6] The first reason was to avoid paying land tax on his house in Carrickalinga. The second was to “equalise” their shares in the super fund. Whatever the reason, the effect was that the protected person became the sole registered proprietor of the marital home, and the husband remained the sole registered proprietor of the house at Carrickalinga.
[6] Ibid, [25].
In summary, since the end of 2009, each of the protected person and the husband has been the sole registered proprietor of a property. They have had a joint self‑managed super fund, 70% of the capital of which was contributed by the protected person. Their distributions reflect the proportion of their initial contribution, as does their withdrawal benefit. In addition, they have, since 2006, been the owners of a property at Bookabie. This property is worth about $70,000. I do not deal further with the Bookabie property in these reasons.
While the evidence between the various parties varied as to when the protected person began exhibiting signs of dementia, it is clear that by 2014 she was showing increasing signs of a significant cognitive problem. In 2015, she was diagnosed with Alzheimer’s Disease. Her medical management was mainly by her general practitioner, although she was reviewed at least yearly at the Memory Clinic at the Flinders Medical Centre. Over time, her care needs increased, and the husband became her carer. By about 2019, she was unable to attend to most of her own care needs, and required assistance with feeding, dressing and all aspects of personal hygiene. She became unable to undertake any of the usual day to day tasks associated with home owning, such as cleaning and other maintenance. She was unable to cook or otherwise prepare food. By the time of this application, she was incontinent and almost completely non-verbal.
In 2019, the protected person began to attend Norman House Respite Care one half day per week.[7] In addition, she was visited once each week by an incontinence nurse. Otherwise, all of her care was provided by the husband.
[7] A20, [42].
On 24 April 2020, following an assessment by the Aged Care Assessment Team, the protected person was approved for permanent residential care, residential respite care at a high level, which allowed her up to sixty-three days of subsidised residential respite care in each financial year, and a Level 4 Home Care Package.[8] Her priority for home care was assessed at “Medium”. The approval letter, dated 24 April 2020 reads, in part:
At assessment you indicated that you are not seeking home care services at present. Therefore, you will not be placed on the national queue for access to home care.
[8] A3.
The Assessment Summary which accompanies the approval letter reads, in part:
[The protected person] is eligible for a home care package (HCP) but [the husband] is not interested in coordinated care at home at this stage.
On 13 October 2020, the husband assaulted the protected person. The assault was witnessed by a number of bystanders, one of whom recorded the incident on her phone and contacted the police. The police attended on the husband and charged him with aggravated assault. On 25 June 2021, he pleaded guilty to the charge. No conviction was recorded and the husband was placed on a good behaviour bond.
The husband did not tell any of the applicants of the assault or the criminal charge until some six months after it occurred. On 16 April 2021, he asked TJS to sign a character reference which he had drafted for her, to use at his trial.[9] This was the first time that they learned of the assault. TJS refused to sign the character reference.
[9] Ibid, [52].
Shortly after learning of the assault, the applicants brought an application in the South Australian Civil and Administrative Tribunal. They sought to have the husband removed as the protected person’s substitute decision maker, and to have themselves appointed her guardian and administrator. Initially, the husband opposed the orders sought.[10] In a written statement to the SACAT he said, in respect of the assault:
I do obviously regret this incident. This was however an aberration and has not been and will not be repeated… I am not in the habit of abusing [the protected person] and I take offence at any suggestion of this by [the protected person’s] children.[11]
[10] A7.
[11] Ibid.
The SACAT directed the Public Advocate to investigate the affairs of the protected person. While the investigation was being carried out, the Public Advocate was appointed her interim full guardian. The Public Advocate’s investigator spoke to the applicants, the husband, the team leader at Norman House and the protected person’s general practitioner. He also met with the protected person. In a report dated 1 July 2021, the investigator noted that:
·The relationship between the applicants and the husband had broken down following the charge of aggravated assault.
·The husband said that he intended to plead guilty to the charge.
·The husband said that he deeply regrets the incident.
·Neither the team leader at Norman House nor the protected person’s general practitioner had concerns about the husband’s care of the protected person.
·Emails between the husband and the applicants demonstrated the husband’s anger, which was mainly directed at TJS, for refusing to sign the character statement.
·The emails from the husband were sarcastic and passively aggressive.
·The husband, through a placement consultant, had identified a place in a care facility in Carrickalinga, however the applicants preferred a place to be found in Adelaide so that she could be visited easily by family and friends.
The investigator recommended that an independent third party be appointed to arrange the placement of the protected person in an appropriate care facility.[12]
[12] Ibid.
Final orders were made by the SACAT on 30 July 2021. At the commencement of the SACAT hearing, the husband withdrew his opposition to the orders sought by the applicants and advised that he was no longer willing to act as the substitute decision maker for the protected person. As a result, his appointment as her substitute decision maker (made by way of an advance care directive signed by the protected person in 2008) was revoked and the applicants were appointed jointly and severally as her substitute decision makers. They were also appointed her full administrators. The SACAT directed that the protected person was to reside in such a place as the applicants thought fit.
In September 2021, the protected person moved to a care facility, for a settling in period. She then moved into permanent accommodation in that facility, and she has not returned to the marital home. The husband continues to live in the marital home. Since she moved into the care facility, the protected person’s fees have been paid by PAK. The husband has made no contribution towards the fees, nor has the protected person’s own assets been used to pay the fees.
On 19 November 2021, PAK commenced an action as the protected person’s litigation guardian in the Federal Circuit and Family Court of Australia, seeking orders for a property settlement between the protected person and the husband.[13] I will refer to this action as the Family Court action.
[13] A8.
In his responding Family Court documents, the husband does not consent to any orders in respect of a property settlement being made in favour of the protected person, nor does he seek any orders in his own favour. In fact, he has asked that the application be dismissed.[14] In his affidavit in response, which was filed on 25 January 2022, he said:
… [the protected person] and I still do have an intact marriage and at no time was a decision made by either her or I to begin living separately. The proceedings have been initiated by [the protected person’s] children for the sole reason of being able to access her estate early.[15]
[14] A9.
[15] R23, MM-4, [2].
Under the heading “Conclusion”, he said of the applicants:
I firmly believe that they have initiated these proceedings purely for their self-interests so as to be able to obtain [the protected person’s] estate early.[16]
[16] Ibid, MM-4, [61].
In his affidavit, he also deposed to making a new will. In this regard, he said:
With [the protected person’s] illness she is obviously not able now to avail herself of a life interest in [the Carrickalinga house]. As such on 16 April 2019 I signed a new will whereby I have left my estate to my daughters equally.[17]
[17] Ibid, MM-4, [55].
A copy of the husband’s new will is exhibited to his affidavit.[18] Not only has he removed the protected person’s interest in the Carrickalinga property, he has removed her entitlement to any share in his residuary estate. She is, therefore, removed from his will entirely. This was the first time that the applicants became aware that the husband had changed his will so that it no longer mirrored the protected person’s will.
[18] Ibid.
On 8 February 2022, the husband lodged a caveat over the marital home. On the caveat form, he asserted a beneficial interest in the marital home as a result of his contributions to its acquisition, maintenance and improvement.[19]
[19] Ibid, MM-6.
On 1 April 2022, the applicants commenced this action.
The Act and the relevant authorities
Section 7 of the Act provides:
7—Will of person lacking testamentary capacity pursuant to permission of court

(1)The Court may, on application by any person made with the permission 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.
(2)An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3)     Before making an order under this section, the Court must be satisfied that—
(a)     the person lacks testamentary capacity; and
(b)     the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c)     it is reasonable in all the circumstances that the order should be made.
(4)In considering an application for an order under this section, 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 to 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.
In Boulton v Sanders,[20] Dodds-Streeton AJA provided a detailed analysis of the history behind the equivalent provision in Victoria, including tracing its roots back to the equivalent provisions and legislation in the United Kingdom. She summarised her discussion of one of the leading authorities in the United Kingdom, the case of Re D. (J.)[21] in the following way:
Sir Robert Megarry, V.-C. enunciated the following principles, which he acknowledged to be neither exhaustive nor very precise:
“1.     It is to be assumed that the patient is having a brief lucid interval at the time when the will is made.
2.    During the assumed lucid interval full knowledge of the past and a realisation of the future prognosis is to be attributed to the patient.
3.    The actual patient and not a hypothetical patient must be considered. Making due allowance for the patient’s known antipathies or affections, provided they are not ‘beyond reason’ the court is to do for the patient what the patient would fairly do for himself, if he could.
4.    The patient should be envisaged as advised by competent solicitors during the hypothetical interval.
5.    In all normal cases the patient is to be envisaged as taking a ‘broad brush’ to the claims on his bounty, rather than an accountant's pen.”[22]
[20] [2004] VSCA 112.
[21] [1982] 1 Ch 237.
[22] [2004] VSCA 112, [25].
She went on to say that:
The crucial differences between the Victorian and United Kingdom legislation, already recognised in the Victorian decisions, dictate a cautious approach to principles derived from the English cases.[23]
[23] Ibid, [54].

She did not specifically endorse the “assumed lucid interval” approach adopted by Megarry V.-C.
In Plowright v Burge,[24] Hansen J dealt with an application to authorise a statutory will where the orders sought were resisted by one of the beneficiaries of the protected person’s last will. The protected person received serious head injuries in a horse riding accident, as a result of which she lost capacity. The plaintiff was the protected person’s brother who received no benefit from either the last will or the proposed will. The defendant was the testator’s former partner.
[24] [2005] VSC 490.
By the protected person’s last will, she left small legacies to her nieces and step son and the residue of her estate to the defendant, with whom she was in a de facto relationship at the time that she made the will. She appointed the defendant her executor and trustee. By the time of the accident, the relationship had come to an end. The residue of her estate was valued at in excess of $650,000. The proposed will removed the defendant as executor and trustee and as the residuary beneficiary.
Hansen J found that, at the time that the protected person made her last will, the defendant made a will in which he left “an appreciable portion” of his estate to the protected person.[25] He changed his will to remove any benefit to the protected person after the accident. The trial judge also found that the protected person had told several friends that she intended to make a new will which removed all references to the defendant,[26] and that the defendant had made no financial contribution to her maintenance and support.[27] Hansen J authorised the making of the proposed will on behalf of the protected person and said:
The question is whether it is established on the balance of probabilities that the matters in s 26 are satisfied and, if they are, that an order should be made under s 21(1) authorising a will to be made in specific terms approved by the Court. Of course, there is no issue as to satisfaction of s 26(a) as it was conceded that Mrs Wilson does not have testamentary capacity.[28]
[25] Ibid, [31].
[26] Ibid, [181].
[27] Ibid, [187].
[28] Ibid, [179].
Having determined that the proposed will accurately reflected the intentions of the protected person, he went on to say:
And the question is whether the proposed will accurately reflects Mrs Wilson’s likely intentions. For this purpose she is to be regarded as if she had testamentary capacity. So regarding her, she would, I consider, have engaged a competent solicitor to advise upon and draw a new will to carry her intentions into effect. It should also be assumed that she would have informed herself of all relevant matters pertaining to her testamentary decision. Those matters would include, in my view, the position and conduct of the defendant including any maintenance and support he had provided to her since her accident and whether she remained a beneficiary of his will. In my view it is more than probable that such a consideration would have reinforced in Mrs Wilson the intentions she expressed before her accident.[29]
[29] Ibid, [200].
It appears that Hansen J adopted the “assumed lucid interval” approach.
In Hoffmann v Waters,[30] Debelle J considered the terms of s 7 of the Act. In this case, the protected person never had capacity, thus differentiating it from Boulton v Sanders and Plowright v Burge. He explained the purpose of the requirement for leave to bring such an application in the following way:
Section 7(1) of the Wills Act provides that an application may be made only if the applicant obtains the permission of the Court to do so. This requirement has been included to provide a process by which to screen out baseless or unmeritorious applications and, in particular, baseless claims that a person lacks testamentary capacity: Monger v Taylor [2000] VSC 304 at [22]; Boulton v Sanders (2004) 9 VR 495 at [11]; Bryant v Blake (2004) 237 LSJS 23 at [25]. The application for leave can be heard at the same time as the substantive application.[31]
[30] [2007] SASC 273.
[31] Ibid, [10].
Like Dodds-Streeton AJA, Debelle J referred to the principles enunciated by Megarry V.-C and then said:
I respectfully agree with Dodds-Stretton JA in Boulton v Sanders at [54] that care should be taken in applying the English decisions which are grounded on a different statutory provision. However, in many cases such as this, where the person who lacks testamentary capacity has never been able to comprehend what is involved in making a will, it will be especially difficult, if not quite realistic, for the Court to be able to determine what his likely intentions are. In other cases, it might be less difficult to determine the likely intention of the person who lacks testamentary capacity.[32]
[32] Ibid, [16].
In Re Fenwick and Re Charles,[33] Palmer J considered the equivalent provisions in New South Wales. He was dealing with two separate applications, one in relation to a protected person who had never had capacity to make a will, and the other who had lost that capacity. In respect of “lost capacity” cases, Palmer J said:
[33] [2009] NSWSC 530.
The easiest case is a lost capacity case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for a statutory codicil or new will.
The Court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do. The task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?
The evidence is likely to be on affidavit, at least in the first instance. There will be some cases in which the affidavit evidence is so clear and convincing that the Court will be satisfied at once that the incapacitated person has indeed expressed the intention reflected in the proposed will or codicil. In other cases, the Court will bear in mind that evidence on affidavit is easily moulded by the drafter and may give an impression which the Court would not receive if it saw and heard the deponent in person. Accordingly, where the affidavit evidence taken as a whole is not clear and convincing that the incapacitated person has actually expressed the testamentary wish contained in the proposed will or codicil, the Court should avail itself of the power under s 21(b) and (c) to see and hear the incapacitated person to verify the wish ascribed in the affidavit evidence.
If the Court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person “if he or she had testamentary capacity”? This question may pose little difficulty if the person’s testamentary capacity is borderline, i.e., the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty – a not infrequent symptom of testamentary incapacity.
In short, the Court should be conscious that there are two questions involved in a case of alleged actual intention under s 22(b): has the incapacitated person actually expressed the intention attributed; would the person have held that intention if possessed of testamentary capacity?
There is another question also: is the expressed intention the product of the incapacitated person’s free choice, or has some undue pressure or influence been applied? However, this question is better considered, I think, under s 22(c), to which I will come shortly.
Next is the lost capacity case in which an adult with established family or other personal relationships has made a valid will but, since losing testamentary capacity, has not expressed, or is incapable of expressing, any testamentary intention to deal with changed circumstances, such as, the birth of a child or the death of a beneficiary under the existing will.
In such a case the Court may be satisfied as to what the incapacitated person is “reasonably likely” to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person’s testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances.
For example, the will, coupled with family history, may show that it would be highly unlikely that the incapacitated person would have intended failure of a residuary bequest to create an intestacy because intestacy would benefit relatives with whom the person was not on good terms. In such a case, the Court would be satisfied that the incapacitated person would likely have made another residuary bequest; the question then is: does the proposed codicil confer the bequest on a person or charity whom or which the incapacitated person is reasonably likely to have chosen?[34]
[34] Ibid, [154] – [162].
Like its South Australian counterpart, the legislation considered by Palmer J required consideration of any person who might be able to make a claim against the estate of the protected person pursuant to the legislation equivalent to the Inheritance (Family Provision) Act. In this regard he said:
Paragraph (i) requires the Court to consider whether the proposed statutory will would accommodate a person who would have a successful claim under the family provision legislation, now Ch 3 of the Succession Act in respect of persons dying on or after 1 March 2009.
It would produce needless and wasteful litigation to authorise a statutory will which was bound to provoke a successful claim under the family provision legislation. In such a case, to grant leave under s 19(1) or to make a final order under s 18 would not be appropriate, within the meaning of s 22(c). The policy of the law is to quell disputes, not to create them.
There will inevitably be some applications for a statutory will in which there is a contest between the applicant and others seeking a provision in their favour on the basis that they would have a successful family provision claim. They would say that the statutory will should reflect a provision which the Court itself will ultimately make under Ch 3 Succession Act.
A complication in hearing such a putative family provision claim at the time of hearing the statutory will application is that in a family provision claim the Court’s decision is founded upon circumstances as they exist after the death of the testator and as at the time of the trial. In a contested statutory will case, the incapacitated person may live for many years to come, during which time the circumstances of those now postulating a successful family provision claim may change in a way which either defeats, or increases, the claim.
There is no express restriction in the Succession Act on the frequency of applications for a statutory will made by the same person. However, it would be disastrous to encourage the attitude that a statutory will can be made giving expression to putative family provision claims and that applications to vary the statutory will can be made as and when changes in the circumstances of the applicant occur throughout the lifetime of the incapacitated person. Bearing in mind the hostility and ruinous expense which so often accompany family provision claims, the Court should endeavour to limit their occurrence to once only in the administration of the estate of anyone, alive or dead.
Accordingly, if an application for a statutory will is made in respect of an incapacitated person who clearly has not much time to live, the Court may consider it desirable to hear a contested putative family provision claim in the course of the leave application in order to decide whether the terms of the statutory will are appropriate, within the meaning of s 22(c). The Court may take the view that the circumstances of the putative claimant, and the other relevant circumstances, are not likely to change materially between the making of the statutory will and the time that a family provision claim would be heard in the normal course of events.
On the other hand, however, when the incapacitated person is likely to live for some time, as in many nil capacity and pre-empted capacity cases, the Court should be very slow to hear a contested family provision claim in the course of the statutory will application. The putative family provision claimant should normally be left to make his or her application for a statutory will provision when and if the relevant circumstances warranting such an application have reached a state of immutability during the life of the incapacitated person. If that does not happen, he or she should be left to pursue a family provision claim as such under Ch 3 Succession Act.[35]
[35] Ibid, [193] – [199].
In Gau v Gav,[36] the Queensland Court of Appeal considered a case where there were concurrent proceedings in the Family Court between the applicant and one of the beneficiaries of the protected person’s existing will. The Court found that the trial judge had erred in that she had given primacy to the competing interests of the applicant and the beneficiary rather than to the likely wishes of the protected person.[37]
[36] [2014] QCA 308.
[37] Ibid, [57].
In Re K, JL,[38] Doyle J considered s 7 of the Act in the context of a protected person who had suffered a brain injury shortly after birth and, as a result, had never had capacity to make a will. As to the interaction between ss 7(3) and 7(4), he said:
On the face of the legislation, it is not clear how the requirement to take into account the matters listed in s 7(4) interacts with the need to be satisfied of the three conditions in s 7(3). Clearly, the s 7(4) considerations may be taken into account in addressing the reasonableness criterion in s 7(3)(c). However, in my view, some are also relevant to the assessment of the likely intentions of the protected person under s 7(3)(b).[39]
[38] [2016] SASC 53.
[39] Ibid, [14].
In considering the requirement of s 7(3)(b), he referred to the decision of Palmer J in Re Fenwick and said:
The second precondition under s 7(3) of the Wills Act is satisfaction that “the proposed will … would accurately reflect the likely intentions of the person if he or she had testamentary capacity”.
Some preliminary issues of principle
Several issues arise in considering this precondition.
The first is the need to focus upon whether the proposed will “accurately” reflects “the likely” intentions of the person. The words I have emphasised mean that it is not enough that the proposed will is merely a possible or potential reflection of the person’s intention. This presents a potential difficulty when the proposed will is simply one of a range of possible versions of the person’s potential intentions. That said, it is not fatal to an application that there are multiple potential or possible wills or versions of the person’s likely intentions. It is enough that despite the range of possibilities, the Court is satisfied (after hearing all the evidence, and the submissions of all interested parties) that a particular version emerges as “the likely” version of the person’s testamentary intentions. While that version must “accurately” reflect their intentions, it is my view that for the legislation to be workable (which is obviously what was intended) there must be some flexibility in terms of matters of detail.
The second matter is that there are two stages or aspects to the inquiry under s 7(3)(b). The first involves a search for the person’s likely intentions. The second involves satisfaction that the person would have acted upon those intentions by making a will (or by altering or revoking their will, as the case may be). In a case such as the present, this second aspect of the s 7(3)(b) inquiry is easily satisfied. In circumstances where the person in question has no will, has a significant estate, and intestacy would see the person’s estate distributed in a manner which clearly and significantly departs from their likely testamentary intentions, then the Court will be readily satisfied (as I am in this case) that the person would have acted on their testamentary intentions if they had testamentary capacity, and would have made a will reflecting their intentions.
The third matter is the extent to which expressions by the protected person of their (subjective) intentions can or should be taken into account in determining their likely intentions if they had testamentary capacity. The starting point in considering this issue is that the section is concerned with the person’s likely intentions “if” he or she had testamentary capacity, and hence involves consideration of a hypothetical. The issue is whether in considering this hypothetical the Court should be guided by objective or subjective considerations, or some combination of both. The issue is significant in this case because, as will be seen, the differences between the parties as to JLK’s likely intentions are in part explicable by a different weighting of the evidence as to JLK’s expressions of her subjective intentions or wishes.
In addressing this issue this Court has drawn a distinction between so-called “nil capacity” cases and “lost capacity” cases. This distinction stems from the reasons of Palmer J in Re Fenwick, in which his Honour also considered a third category, namely “pre-empted capacity” cases.
…
In relation to lost capacity cases, Palmer J described the fact - finding task as involving consideration of not only the person’s relationships and circumstances (and any changes in them since any earlier will), but also the person’s expressions of their likely testamentary intentions (by statements or otherwise). His Honour noted that the issue may pose little difficulty if the person’s testamentary capacity is borderline, in the sense that they fall only a little short of having testamentary capacity. It is clear from his Honour’s consideration of this category of case that he contemplated that evidence of the person’s subjective expressions of their testamentary intentions will often be available, and be highly relevant.
…
In summary, the hypothetical nature of the inquiry will always allow room for some objective considerations. In some cases there will be no evidence of the person’s subjective intentions, in which case the issue will be determined entirely objectively. This will be so in the typical “nil capacity” cases. On the other hand, there will often be evidence of the person’s actual or likely subjective intentions (for example, in many “lost capacity” and “pre-empted capacity” cases). In my view, not only is it appropriate given the nature of the inquiry under s 7(3)(b) that this evidence be taken into account, but also that approach is supported (if not required) by the provision in s 7(4)(a) to the effect that the Court must take into account any evidence relating to the wishes of the person. However, the weight that should be attached to such evidence can only be determined in an individual case by reference to considerations such as the person’s capacity to express their wishes, the nature of those wishes, the extent to which those wishes conflict with objective considerations, the extent to which the person’s expressed subjective intentions might have been influenced by the taking of advice prior to the formal making of a will, the age and maturity of the person when expressing their wishes, and the timing of the expression of wishes relative to the application to make a statutory will.[40]
(citations omitted)
[40] Ibid, [40] – [51].

In Paoli v Paoli,[41] Stanley J considered an application pursuant to s 7 of the Act in circumstances where the protected person attended on his solicitor on a number of occasions to provide instructions to make a new will. After his lawyer had drafted the will in accordance with his instructions but before he had executed it, the protected person suffered a stroke which deprived him of his testamentary capacity. He adopted the approach taken by Palmer J in Re Fenwick and, quoting from his own decision in Argiro v Lagozino,[42] he said:
The court must be satisfied that the proposed will accurately reflects the likely intentions of the protected person if he or she had testamentary capacity. It follows that the contents of the proposed will must be more than a mere possible or potential reflection of the testator’s intentions. But it is not fatal to an application that there are multiple potential or possible wills reflecting the testator’s likely intentions. It is sufficient that, despite the range of possibilities, the court is satisfied that a particular version can be identified as the “likely” version of the testator’s testamentary intentions. In this context, there is room for some flexibility in matters of detail.[43]
(citations omitted)
[41] [2021] SASC 11.
[42] [2017] SASC 185.
[43] [2021 SASC 11, [8].
The following principles can be distilled from the decisions of Palmer, Doyle and Stanley JJ:
·For a will accurately to reflect the likely intentions of the protected person, it must be more than a possible or potential reflection of the protected person’s intention.
·It is sufficient for the Court to be satisfied that the proposed will most accurately reflects the protected person’s likely intentions, bearing in mind that there may be more than one potential will that would reflect the protected person’s likely intentions. Some flexibility in terms of detail is permitted. Nonetheless, the Court must be satisfied that the testamentary intention attributed to the protected person goes beyond “mere wishful thinking”.[44]
·As well as determining the protected person’s likely intentions, the Court must determine that the protected person would have acted on those intentions.
·The starting point for the Court is to consider the intention that the protected person would likely form if he or she had testamentary capacity. In doing this, the Court is entitled to take into consideration both subjective and objective matters.
·This fact-finding task will involve consideration of the protected person’s relationships and circumstances and any changes to them since he or she last made a will. In addition, the Court will take into consideration any expression by the protected person of their intentions (as far as they are able to express any, given the lack of capacity).
[44] [2009] NSWSC 530, [155].
While the authorities in New South Wales and South Australia do not expressly adopt the “assumed lucid interval” approach espoused by Megarry V.‑C, they do require the Court to consider the intention the protected person would likely form if they had testamentary capacity, taking into account the protected person’s circumstances and any changes to those circumstances since he or she last made a will. On its face, this approach seems to lack some of the artificially of that described by Megarry V.-C; and there is, in fact, a clear difference between the two approaches in that Megarry V.-C’s approach includes the assumption of the receipt of competent legal advice as part of the hypothetical lucid interval, while this is not adverted to by Palmer or Stanley JJ. I note that in Re K, JL, two proposed wills were prepared for the protected person, one by the applicant, the protected person’s mother, and the other by her litigation guardian. The applicant was advised by and the litigation guardian was a solicitor experienced in wills and estates. Thus, in effect, the advice of two lawyers experienced in wills was effectively received by the Court. I reiterate, however, that this is not an element that has been specifically required by any recent South Australian case.
The evidence
Each of the witnesses gave their evidence-in-chief by way of affidavit. The applicants each gave evidence in support of the application. The husband and one of his daughters gave evidence in support of his opposition to the application. The litigation guardian also gave evidence. All of the witnesses except for the daughter and the litigation guardian were cross-examined. I will deal with the evidence of each of the witnesses in turn, in the order in which they gave evidence.
PAK
PAK gave his evidence-in-chief in two affidavits.[45]
[45] A14 and A15.
PAK lives in northern New South Wales, but says that he has always maintained a strong relationship with his mother. They would mostly keep in touch primarily by phone but also by email. In addition, he would try to visit Adelaide most years.
PAK described his mother’s gradual cognitive decline, as evidenced to him by conversations, text messages and emails between them. He described these signs as going back at least as early as 2010.[46]
[46] A15, [6] – [22].
PAK’s evidence was that his mother was affected deeply by physical discipline and that she did not believe in reprimanding children with force. She believed that violence in a relationship was unacceptable. She would be devastated that the husband had used force against her and she would regard this as an irreparable fracture of their relationship. She would regard it as a breach of trust, both as her husband and as her enduring guardian.[47]
[47] A14, [4] – [10].
PAK said that the protected person, in her role as a school principal, was required to report physical violence against children. Her experience led her to the conclusion that physical violence was “not a ‘once off’ event and a sign of someone not coping.”[48] He described his mother as a person who was passionate about standing up for herself and not diverging from her morals. He said: “If she did not agree with someone’s behaviour, she would confront it, be at home (sic) or in her school.”[49]
[48] Ibid, [11].
[49] Ibid, [12].
PAK expressed the view that his mother would be “furious” that the husband did not tell the applicants about the assault charge, until he wanted a character reference to use in court. He said that he did not believe that the protected person would trust the husband again and that she would separate from him.[50]
[50] Ibid, [15] – [18].
The balance of A14 largely deals with the breakdown of the relationship between the applicants and the husband and financial matters. PAK raised a number of discrepancies in the bank accounts of the protected person and the husband; I understand that these have largely been resolved following the production of financial records in answer to a number of subpoenas issued at the applicants’ request.
PAK says that, since the protected person’s entry into residential care, he has paid all of the related fees and charges.[51] This is not disputed by the husband.
[51] Ibid, [39].
The balance of A15 deals with the health and well-being of the protected person since her admission into residential care, and also with ongoing issues between the applicants and the husband.
In cross-examination, PAK did not seek to minimise or downplay the care that the husband provided to the protected person up until the time that she entered residential care. He acknowledged that she rarely came to stay with him after the onset of her symptoms of dementia, and that, while he visited her regularly, he never had to act as her carer during these visits. He agreed that he never visited her during her weekly attendances at Norman House.
PAK accepted that the husband has visited the protected person nearly every day since her entry into residential care, while he has visited her on only two occasions.
He agreed that he wrote to the protected person’s financial advisor in September 2021 and said that he believed that the protected person believes that she is still married to the husband.[52]
[52] T41.24-35.
PAK said that, in March 2022, he asked to be appointed a director of the trustee of the super fund in lieu of the protected person. He agreed that the husband agreed with this proposal but that, since that time he has not taken this request any further. His evidence was that this was “on pause” at the moment; the financial advisor had advised that he could either become a director of the super fund, or withdraw the protected person’s benefit and deposit it in a different fund.[53] In re‑examination, he clarified that this had been put “on pause” until the resolution of this action and the Family Court action.[54]
[53] T50.12-28.
[54] T66.29 - 67.14.
Mr Brohier for the husband suggested to PAK that, given the husband’s version of facts leading to the assault and the assault itself, the protected person would not want to change her will, when she considered the care that the husband had provided to her for nearly seven years. Nor would she wish to change her will, when she considered the care that the husband has continued to provide to her since she commenced residential care. PAK disagreed with both of these propositions.[55]
[55] T62.26 - 63.10.
Mr Brohier suggested to PAK that the purpose of the protected person’s superannuation was to meet her needs in retirement. PAK did not disagree with this proposition.[56]
[56] T63.14 - 22.
In answer to a number of questions about the separation of the protected person and the husband, PAK agreed that they were still married.[57]
[57] T66.23 - 26.
The balance of Mr Brohier’s cross-examination of PAK related to financial disputes that have arisen between the applicants and the husband since the protected person entered residential care.
MRK
MRK gave his evidence-in-chief in one affidavit.[58]
[58] A19.
He said that he moved from Adelaide to Canberra in 2000, and then moved to England in 2004. He later moved to Switzerland. He returned to Australia to live in June 2021. He now lives in Melbourne with his wife and son. He said that until the birth of his son in 2012, he would visit his mother in Australia about once each year; after his son was born, his visits were less frequent. The protected person visited him in London on several occasions with the husband, one of whose daughters also lived in London. MRK said that they would try to maximise the time that they spent together to catch up and that it was special for them both. They would speak on the phone about every two weeks, until her Alzheimer’s disease made communication with her difficult.[59]
[59] Ibid, [12] – [18].
MRK said that he always had a very good relationship with his mother. He described her as quite conservative, with high moral values and personal beliefs. She believed in doing what was right, even if it was not the best outcome for herself. She tried to see the best in people.[60]
[60] Ibid, [6] – [7].
MRK said that the protected person would not tolerate domestic violence. She would want her children to know about any police incident involving an assault on her. She believed in fairness and doing the right thing. The protected person told MRK that she and the husband had made mirror wills. MRK said that she would consider it dishonest and completely unacceptable if one will was changed without changing the other. She would consider it a fundamental breach of trust.[61]
[61] Ibid, [20] – [28].
In cross-examination, MRK acknowledged that the husband was the protected person’s sole carer until she entered residential care. His evidence was that since the onset of dementia, he had visited her on a number of occasions, took her on some outings and assisted with her care. He said that she may have stayed at his house but he could not recall the details.[62]
[62] T72.23 - 25.
During cross-examination, Mr Brohier sought to impugn the relationship that MRK had with the protected person. He suggested to MRK that the husband’s daughter usually provided accommodation for the protected person and the husband when they visited London, and picked them up from the airport. While it was clear that MRK did not agree with all of the propositions put to him by Mr Brohier, it appeared that, in fact, it was the case that they usually stayed with the daughter for the majority of their visit, if not the entirety of the visit, and that the protected person spent only limited time with MRK on each occasion. Mr Brohier focused on two occasions, the first when MRK’s son had just been born, and the second during a visit in 2016. He suggested to MRK that MRK’s treatment of the protected person on each of these occasions distressed her.[63]
[63] T72.31 – 79.18.
Mr Brohier then suggested to MRK that, if the protected person was aware now of how he had treated her when she visited him in London she would not want to change her will. MRK rejected this suggestion.[64] He conceded that since he returned to Australia in June 2021, he has visited his mother on only one occasion, on the day before this trial commenced.[65]
[64] T79.20 – 24.
[65] T80.6 – 9.
TJS
TJS’s evidence-in-chief was provided in two affidavits.[66]
[66] A20 and A21.
TJS said that she and her mother have a strong relationship and have been close throughout her life. She said that her mother has been a big part of her life.[67] TJS works four days per week as a teacher. She is married with two primary school aged children. She lives in Adelaide.
[67] A20, [3], A21, [22].
TJS described her mother as caring but strong. TJS said she:
…always stood up for those who could not use their own voice on matters such as domestic violence, animal cruelty and poverty.[68]
[68] A20, [4].
She said that, before the onset of her dementia, the protected person was an independent, strong person who believed in equality and fairness. She said her mother:
…believed in helping and empowering individuals especially women, cultural groups and the under-privileged.
…
She was a compassionate, well respected school principal and leader in education.[69]
[69] Ibid, [20] – [22].
TJS described the onset of the protected person’s symptoms. She believed that the protected person’s general practitioner was dismissive of her concerns about her mother’s problems with her memory. He referred the protected person to a specialist in relation to hypertension; it was this doctor who did a memory cognition test in response to TJS’s voicing her concerns. This led to her referral to a geriatrician at Flinders Medical Centre and ultimately the diagnosis of Alzheimer’s Disease.[70] TJS explained how she became increasingly concerned about her mother’s decline and that she had to push to get her assessed.[71]
[70] Ibid, [28] – [32].
[71] A21, [22].
TJS described a number of concerns that she had in relation to the care provided to her mother by the husband prior to the assault. These largely related to personal hygiene issues and issues regarding how she was dressed and her appearance.[72] She also raised a number of other issues in relation to the care provided by the husband, including relating to other health related issues, the use of alcohol, leaving her unsupervised at home[73] and ensuring she ate sufficiently.[74]
[72] Ibid, [9] – [18].
[73] Ibid, [19] – [27], [32] – [36].
[74] Ibid, [62] – [74].
TJS described a number of incidents of the husband “telling off” the protected person, either verbally or physically.[75] TJS said that she tried to offer support and advice to the husband, but that he did not respond well to this, and that he would not allow her to assume any of the responsibility for her care.[76]
[75] Ibid, [39] – [44].
[76] Ibid, [45] – [48].
TJS recounted two incidents, one in November 2019 and the other in November 2020 when the husband sent her photographs by text message of the protected person’s faeces while complaining about her incontinence. Of this incident, TJS said:
It shows that there was a lack of understanding for Mum’s health and needs and that he was not coping with the level of care Mum needed but denied any assistance or respite care.
Mum would be absolutely mortified if she knew her most vulnerable moments and toilet habits were being broadcast and effectively brandished like a badge of honour by [the husband] of his coping with her alone. Mum was always a very proper and discreate (sic) lady and this type of behaviour again would not have been tolerated.[77]
[77] Ibid, [60] – [61].
TJS described the husband’s dislike for nursing homes. She exhibited to A21 three emails that the husband sent to the applicants, his solicitor, his daughters, and some of the protected person’s friends in which he made critical and pejorative statements about the residential care facility to which she had just been admitted, its staff and its other residents.[78]
[78] Ibid, TJS-15.
In respect of the protected person’s likely reaction to the assault, TJS said:
72.Mum would not want or put up with this. As a child, I do not recall Mum once raising her voice to us. She was against any violence, verbal or physical harm. She would not have stood for this in any relationship whatsoever. She would be so against this type of behaviour and would never ever have tolerated this in her relationship and marriage.
73. [The husband’s] actions go against everything Mum stood for in life.[79]
[79] A20, [72] – [73].
In respect of the husband’s changing his will, she said:
29.Mum would be horrified to think that since her illness, [the husband] has taken advantage of her condition and his position. For instance:
…
29.2he changed his will in 2019 to remove her completely; and
29.3 not being upfront about his actions, knowing that Mum cannot make her own decisions or have a say about telling her family about decisions on her behalf and the aggravate assault charge.
30.For [the husband] to change his will to undermine their joint intentions of the wills, and for him not to be fair and equitable between both families would horrify her.
31.She would not agree or tolerate this. It was very apparent whilst living with them that a fair separation of assets, funds and possession was set up to occur.
32.[The husband’s] actions in this regard has been disrespectful and intentionally goes against Mums (sic) wishes for a fair agreement.
33.Knowing that [the husband] changed his Will to cut her out and not pursue their agreed fairness of their money and assets would be devastating for her.[80]
[80] A21, [29] – [33] (first time appearing).
In cross-examination, TJS agreed that the husband provided the protected person’s day to day care as her care needs increased. She conceded that, apart from one period of five days in 2018, her mother did not stay over night at her house once she was diagnosed with Alzheimer’s Disease. In response to questions about how frequently she was saw her mother in 2021, she said:
I tried to see mum as much as I could but sometimes you can’t. Like I work, I’ve got children.[81]
[81] T96.22 – 24.
In relation to the husband leaving the protected person unattended and TJS taking on more of the care of her mother, the following exchange took place between Mr Brohier and TJS:
Q.    You criticise him for leaving your mother in house by herself in your affidavit.
A.    Yes.
Q.But you knew that there were occasions that to properly operate life he had to go out by himself somewhere to do some - just the ordinary affairs of life.
A.As a mother, when you've got young children you don't leave children home alone, so I felt that [the husband] shouldn't leave Mum home alone due to her safety.
Q.    But you didn't offer to take your mum on weekends, for example, did you.
A.Because I couldn't properly care for her on weekends when I've got young children, and we're out at sporting or outdoor events, and I'm involved in things with my children, I felt like I couldn't safely look after her. I couldn't look after my children and look after my mum at the same time.[82]
[82] T99.12 – 28.

In respect of the photographs of the protected person’s faeces, TJS said that it was clear that the husband was not coping.[83] The following exchange then took place:
[83] T100.23 – 24.
Q.But it was only sending to to her daughter, wasn't it, it wasn't broadcasting it in the sense of letting the world know about it, it was letting you know, as her daughter, the stage things were getting to.
A.    Yes.
Q.    And that was a legitimate thing for [the husband] to do, I'd suggest.
A.    Yes.
Q.And that's a similar proposition for the next text, which is Exhibit TJS14, pages 37 and 38. Do you agree.
A.    What was the question, sorry?
Q.The text exchange at 37 and 38 was [the husband’s] way of coping, by letting you know the condition things were getting in terms of caring for [the protected person].
A.    Yes, I suppose.[84]
[84] T101.5 – 19.
TJS conceded that there was nothing in the case notes of the protected person’s general practitioner or the nurse who visited weekly to suggest any lack of care by the husband.
Mr Brohier suggested to TJS that, if the protected person knew of the care that the husband had given her, and continued to give her, she would not change her will. TJS rejected that suggestion.[85]
[85] T109.1 – 6.
The husband
The husband’s evidence-in-chief was contained in four affidavits.[86]
[86] R23, R24, R28 and R29.
The husband said that he seeks orders in the Family Court action that it be dismissed as he maintains that his marriage to the protected person is continuing and the current arrangements in respect of their property reflect their wishes. He said that, if the protected person had capacity, he believes that she would also seek to have the Family Court action dismissed. He is also of the view that, if the protected person had testamentary capacity, she would not wish to change her will. He said that, while he has lodged a caveat over the marital home, he does not seek orders in the FCFCOA adjusting the parties’ interests in respect of the marital home to recognise the interest that he asserts.[87] He said that he intends to continue living at the marital home both during the protected person’s life time and after her death.[88] In respect of the caveat, he said that his claim arises from the fact that he contributed half of the cost of acquiring it.[89]
[87] R23, [31] – [32].
[88] Ibid, M-44, [53].
[89] R24, [110].
The husband said that, since the protected person entered residential care, he visited her three times each day to feed her her meals, until January 2022, when a Covid 19 outbreak prevented his visiting. Since visiting recommenced in February, he visits twice each day to feed her lunch and dinner, and spends about four hours with her each day.[90]
[90] R23, [45] – [47].
R23, the husband’s first affidavit, relies largely on his affidavit filed in the Family Court action, which was exhibited as MM-4. In this affidavit, he said, of the Family Court action:
The proceedings have been initiated by [the protected person’s] children for the sole reason of being able to access her estate early.[91]
[91] MM-4, [2].
He reiterated this view later in his evidence, when he said:
[The protected person’s] and my separation is involuntary, due to her ill health and was initiated by [the applicants].
I firmly believe that they have initiated these proceedings purely for their self interests so as to be able to obtain [the protected person’s] estate early.[92]
[92] Ibid, [60] – [61].
The husband said that, prior to their marriage, the protected person owned a house in Torrensville, and he owned properties in Adelaide and Carrickalinga. They agreed to sell the Torrensville and Adelaide properties and bought what was to become the marital home from property developers. They paid for the marital home equally; the marital home was registered in their joint names as tenants in common. They spent the week days at the marital home and the weekends at Carrickalinga; after the husband retired, they began to spend more time at Carrickalinga.[93]
[93] Ibid, [6] – [9].
On 10 December 2009, the husband transferred his share in the marital home to the protected person. He said this was done to avoid paying land tax on the Carrickalinga property which he was liable for, as the marital home was considered his principal residence.[94]
[94] Ibid, [10]
Later, however, the husband gave a slightly different account for the transfer of his share in the marital home to the protected person. He said:
25.As I was registered proprietor of both [the Carrickalinga property] and [the marital home], I had to pay land tax on [the Carrickalinga property] as [the marital home] was considered my principal residence. We had set up a joint self-managed superannuation fund, [the Super Fund], in January 2009. As [the protected person] had contributed more towards [the Super Fund] than I had done, we discussed matters and agreed that in an effort to equalise our shares in [the Super Fund] I would transfer my share in [the marital home] to her. My share in [the marital home] was duly transferred to [the protected person] on 10 December 2009. I am not sure if we did at that time take any steps to notify our financial advisers who were looking after [the Super Fund] of this. Subsequently on 2 December 2013 I wrote to Revenue SA asking that [the Carrickalinga property] be exempted from land tax. By their letter dated 31 December 2013 Revenue SA agreed to exempt [the Carrickalinga property] from any land tax liability. I have collectively exhibited hereto marked “MM-3” copies of my letter to Revenue SA dated 2 December 2013 and the reply from Revenue SA dated 31 December 2013. I note that my letter to Revenue SA confirms the matters referred to above. Notwithstanding this transfer [the protected person] and I were always of the understanding that [the marital home] was our property and I am confident that if she were not suffering from an incapacity she would confirm this and the events I have described above.[95]
[95] Ibid, [25].
As to the onset of the protected person’s illness, the husband said that she suddenly started to become forgetful in 2014. She was diagnosed with Alzheimer’s Disease in 2015, and since that time, her condition deteriorated rapidly.[96] Until September 2021, he was her sole carer.[97]
[96] Ibid, [16] – [17].
[97] Ibid, [20].
The husband said that while the protected person qualified for residential care, he refused this option as he “knew” that he “was able to and did provide much better care for the [protected person] than she would receive in a residential care facility”.[98]
[98] Ibid, [25].
The husband said that the care and assistance provided by the applicants was minimal or non-existent and never volunteered. They were happy for him to make all of the arrangements for her future care.[99]
[99] Ibid, [26] – [28].
The husband provided an account of the assault. He set out his description of what occurred and said:
[The protected person] did not suffer any injury as a result of this incident.[100]
[100] Ibid, [36].
He said that the prosecutor “expressed sympathy with (sic) [his] plight” and at the conclusion of the matter in court, “turned to [him] and with obvious sincerity wished [him] ‘good luck’”.[101]
[101] Ibid, [37].
The husband said that he agreed to the orders sought by the applicants at SACAT because protracted proceedings would have distracted him from caring for the protected person.[102] In respect of his changing his will, he said:
With [the protected person’s] illness she is obviously not able now to avail herself of a life interest in [the Carrickalinga property]. As such on 6 April 2019 I signed a new Will whereby I have left my estate to my daughters equally.[103]
[102] Ibid, [39].
[103] Ibid, [55].
Later the husband said:
If [the protected person] knew of the behaviour of the Applicants towards me in these proceedings, the FCFCOA Proceedings and the SACAT proceedings and the baseless allegations they have made against me, the lack of care they have shown towards her in her illness and my continued care for her, she would have approved of this change in my will.[104]
[104] Ibid, [133].
In respect of his sending by text message photographs of the protected person’s faeces, he said:
40.I did all of the above tasks by myself and willingly. Caring for [the protected person] was challenging as her behavior at times was difficult. Some examples are the lack of understanding she had in relation to acts of daily living, so that she regularly defecated in the shower, which let to the text exchange between [TJS] and me which forms exhibits TJS 13 to FDN 45. I reject the allegation that I was “broadcasting” this information. I sent it to her daughter as a safety valve to tell someone what was going on. I said “just don’t forget your mum” because at that time [TJS] was only seeing [the protected person] about once a fortnight. As the text messages show, the only responses I received were those saying how busy [TJS’s] life was and that she needed down time herself for her “sanity and health”. While that may have been I think I hoped for more from [TJS] and hence I said “I just don’t think you are in the real world”. The text exchange “TJS 14” of FDN 45 was as a result of a similar incident a year later when [the protected person] brought me some faeces in her hand. Again, I sent the texts to [TJS] as my way of coping. These text messages show that I was continuing to care for my wife in difficult circumstances and shows that our relationship was strong and was (and is) ongoing.[105]
[105] Ibid, [40].
A significant portion of the husband’s affidavit evidence deals with the financial issues initially raised by the applicants.
The cross-examination of the husband commenced with questions about the financial arrangements between the husband and the protected person. The husband’s evidence was somewhat confused about the use of various bank accounts, and in particular whether his account with the Commonwealth Bank was used for every day living expenses, whether he received a pension and if so, what it was for, and when and how he ceased receiving pension payments.[106]
[106] See, for example, T125.13 – 131.21.
The husband conceded that matters in respect of the bank accounts held by the husband and the protected person remained unresolved as between the husband and the applicants. He accepted that the protected person’s finances were now controlled by the applicants but agreed that “nothing’s happened to date” in relation to transferring management of her financial affairs to the applicants.[107] When asked whether it would require the Family Court to sort out these matters, his response was:
I’m just in the hands of my lawyers as to what will happen next.[108]
[107] T133.19 – 29.
[108] T133.32 – 33.
In respect of the role of the Family Court, the following exchange occurred:
Q.Well, let me put it this way: if you and [PAK] don't come to an agreement about the ownership of that account, you accept a court's going to have to make an order about it, don't you.
A.    I guess I - yeah.
Q.    And at present there are proceedings in the Family Court, aren't there.
A.    As I understand.
Q.    So, that's the court where that order's going to be made, isn't it.
A.    I don't know.
Q.    Are you suggesting there's going to be proceedings in the Magistrates Court.
A.No. I'm just not aware of the general procedures in respect of that account. All I know is it's sitting there, just waiting to be sorted out in due course.[109]
[109] T134.8 – 23.
The husband’s answers to questions about his interest in the marital home were confused and unsatisfactory. He said that he had an interest in the property as a life tenant after her death, and that he “could look upon it as an equitable interest.”[110] He then confirmed that he regarded his expectation under the will of the protected person as an equitable interest.[111] He confirmed later that he lodged the caveat on the basis of his interest as a life tenant.[112] When asked if he made any other claim to an interest in the marital home, he said:
A.My claim by virtue of transferring my half interests in the property at [the marital home], my thoughts are that that's virtually bringing the whole superfund back to a better equity, like half each or thereabouts and that's the reason I transferred it. Also for the land tax aspect.[113]
[110] T138.27 – 34.
[111] T139.8 – 11.
[112] T141.21 – 24.
[113] T139.14 – 19.
His answers in respect of any current interest that he held in the marital home became even more confused when his answers to the questions asked were compared to the interest claimed on the caveat itself. He said:
Q.So this caveat says you're entitled to an interest in the land because you contributed to the acquisition, maintenance and improvement of the land described.
A.    Right.
Q.By virtue of lodging a caveat you're saying you have an interest today in it. Do you understand that.
A.    Yes.
Q.So when you instructed Mr Sekhon in February 2022 to lodge the caveat you were saying that today I have an interest in this land, weren't you.
A.    Yes.
Q.    But you've just told her Honour that in fact you don't have an interest in the land.
A.Well, I can in the final instance but it's an equitable type - it's an interest as potentially as a life tenant.
Q.Why did you lodge the caveat if you don't claim to have an interest at the present time in [the marital home].
A.    I thought I was lodging the caveat appropriately.
Q.Wasn't it the case you were worried that [PAK], [TJS] and [MRK] were going to sell [the marital home].
A.    That did come into my mind.
Q.And you lodged the caveat because you claimed you had rights to [the marital home], didn't you.
A.    Yes.
Q.You didn't claim you had rights when [the protected person] died. You claimed you had rights right now, didn't you.
A.Yes, I think, in equity but I was expecting a life estate and I just wanted to make sure it wasn't sold underneath me before we could sort of contest my situation.
Q.    You think today you have the right to live in [the marital home], don't you.
A.    Yes.
Q.Whether you call it moral or equitable or arising under the will, you think you're entitled to live there, don't you.
A.    I think so.
Q.And you're going to resist any attempt by [MRK], [TJS] and [PAK] to sell the house, aren't you.
A.    I would resist that, yes.[114]
[114] T142.1 – 143.3.
He confirmed that he did not intend voluntarily to leave the marital home.[115] He said that he considered that it would be morally wrong for the applicants to expect him to move out so that they could sell the property to fund the protected person’s residential care fees.
[115] T140.13 – 16.
In respect to the management of the super fund, the husband conceded that he “left everything up to Sam Saunders”,[116] his financial advisor.
[116] T146.37 – 38.
The husband agreed that he made a claim on part of the monies in the protected person’s super fund, as a result of his transferring his interest in the marital home to her.[117] He accepted that, however, despite the transfer of the interest in the marital home, the balance in their respective superannuation accounts was not adjusted and the protected person’s death benefit nomination was not amended to make him a beneficiary of any of her death benefit.[118]
[117] T150.4 – 22.
[118] T157.8 – 13.
The husband was asked what he considered the protected person would want in respect of her will if she had capacity. He said that he expected that she would want her will to remain as it is.[119]
[119] T159.11 – 14.
The husband agreed that he was not paying any of the residential care expenses incurred by the protected person.[120] He reiterated his view that it would be inappropriate for PAK to propose the sale of the marital home to pay the fees. He nonetheless conceded that the protected person’s money should be used to pay her residential care fees.[121]
[120] T162.1 – 4.
[121] T163.22 – 25.
During his cross-examination, the husband told the Court that he considered that he was the victim in the situation in which he found himself. He said:
Q.    Do you regard yourself as the victim here [the husband].
A.    I think I am.
Q.    I beg your pardon.
A.    I reckon I am, yes.
Q.    Yes, you're the victim.
A.    Yeah.
Q.    It's not [the protected person].
A.    No.
Q.No. The fact that you assaulted her means you're the victim. That's your evidence isn't it.
A.    It is.[122]
[122] T172.22 – 32.
It also became clear that, despite his plea of guilty to the charge of aggravated assault, the husband sought to maintain in this action that the assault did not occur:
…I thought the whole situation was nonsensical because my version of the incident is I did not assault my wife.[123]
[123] T172.35 - 37
In respect of the character reference that he presented to TJS, he denied that he asked her to sign it and said that “it was purely … a draft to guide her if she wished to support me…”.[124]
[124] T173.9 - 11
The husband denied the applicants’ allegations that he had hit or tapped with any force the protected person on the nose. He said that tapping her on the nose without force was a good means of communication.[125]
[125] 174.36 – 175.23
In respect of his 2019 will, the husband said that he did not think that the protected person would be upset if she knew that he had changed his will to remove any provision for her.[126] He went on to say:
I don’t think she would have changed her will. I consider that I contributed all those years to looking after [the protected person]. All I can see in this new will that she could not avail herself of the life estate because she’d never come out of a nursing home and I just received the further benefits that go to my kids.[127]
[126] T185.32 - 36
[127] T186.2 – 7.
On being reminded that he had changed his will before the protected person entered residential care, he said:
Well I construed her future needs as coming from her superannuation and things like that.[128]
[128] T186.17 – 18.
The husband’s daughter
The husband’s daughter gave evidence of the interactions between the protected person and MRK during visits to London. She was not required for cross‑examination.
The litigation guardian
The litigation guardian gave evidence of two visits with the protected person.[129] The first visit occurred in person, when the litigation guardian spent approximately 30 minutes with the protected person. The second visit was observed by the litigation guardian using FaceTime, as a member of her staff attended on the protected person.
[129] R1-35.
The litigation guardian described the visits, and the interactions with the protected person on each occasion. No cross-examination was required.
Summary of the evidence
I consider that PAK and TJS were reliable witnesses who were doing their best to assist the Court. The assistance that PAK could give was clearly limited as he does not live in South Australia and his opportunity to observe his mother and the husband’s interactions with her were limited. I accept that TJS was a witness of truth. She gave her evidence in a straightforward, albeit somewhat nervous manner, made concessions where appropriate and did not seek to exaggerate any of the facts that she was recounting. I generally accept the evidence of PAK and TJS.
I consider that MKR was less convincing. He appeared defensive in respect of the allegations of poor treatment of his mother on her visits to London, and his statements that he could not recall many of the events about which he was asked lacked conviction. His evidence was of little assistance.
I did not consider that the husband was a good witness. He was defensive. His anger at the applicants was openly acknowledged and at times it was clear that his anger and resentment has not diminished but was still strongly felt.[130] His evidence was, in parts, unconvincing and contradictory, for example in relation to the interest that he claimed in respect of the marital home, the financial interests held by him and the protected person, and how financial matters would be sorted out between himself and the applicants. At times, he was evasive.[131] I consider that many of his answers were self-serving.[132] I formed the view that his evidence was very much coloured by his anger towards the applicants and his perception of himself as the victim in the circumstances that have arisen in respect of the protected person. As a result, I do not accept his evidence unless it was corroborated by other evidence.
[130] See, for example, T177.19 – 38.
[131] See, for example, T134.8 – 23.
[132] See, for example, T167.15 – 19, T168.1 – 14 and T.172.13 – 21.

In respect of the disposal of the protected person’s body, Ms Varga submits that any will approved by the Court should be limited to directing that her body be cremated, without a direction as to the distribution of her ashes. This is in accord with her last will and her penultimate will.
Consideration
Testamentary capacity
I am satisfied that the protected person lacks testamentary capacity. I have formed this view based on the assessment of the Aged Care Assessment Team,[139] the report of her general practitioner which was provided to the SACAT,[140] and the affidavit of the litigation guardian.[141] I am further satisfied that there is no likelihood of the protected person regaining capacity. As a result, s 7(3)(a) of the Act is satisfied.
[139] A3.
[140] A7.
[141] R1-35.
The likely intentions of the protected person if she had testamentary capacity
In determining the protected person’s likely testamentary capacity, I will follow the principles that I set out in [48] hereof. I accept that the question is not whether her last will reflects her testamentary intentions, but whether the proposed will, MFI A13 does so. Nonetheless, the last will made by the protected person clearly and unequivocally establishes for the Court what her testamentary intentions were at the time it was made.
The protected person’s last will was made on 28 December 2007, approximately three years after her marriage to the husband. It was made at a time when she and the husband owned the marital home in equal shares as tenants in common, and the husband owned the Carrickalinga property. The will was made with the assistance of a solicitor; it can be assumed that the protected person received competent legal advice prior to executing the will. On the same day that the protected person made her will, the husband made a mirror will. His will was made with the assistance of the same solicitor who assisted the protected person.
The protected person’s last will gave the husband the right to occupy her share of the marital home during his lifetime, after which it went to her children. She divided the residue of her estate into ten parts and left three of those to the husband; the remaining seven went to her children. The husband’s will was in identical terms. Thus, each left the other the right to reside in any real property owned by them at the time of their death, and three tenths of the residue of the estate.
The last will of the protected person was also made in the context of her having signed a death benefit nomination in respect of her superannuation death benefit. She nominated her children to receive her superannuation death benefit in equal shares.
The protected person’s last will revoked her penultimate will. Her penultimate will was made after her divorce from the applicants’ father and prior to her marriage to the husband. It left the entirety of her estate to the applicants in equal shares.
I conclude from all of this evidence that the intention of the protected person at the time that she made her last will was to benefit her children in the first instance, with a lesser degree of benefit to the husband. Of her two major assets, her half share in the marital home and her superannuation, she left the entirety of her superannuation to her children by way of her nomination. She left the husband no more than a right to occupy her share of the marital home during his lifetime. While it is unclear what the residue of her estate is likely to be, she left the majority of that to her children.
I accept that the protected person has not been able to give any indication to her litigation guardian what her testamentary intentions are now. Thus, the only evidence that the Court has of her wishes is her last will.
The likely intentions of the protected person
Since the protected person made her will in 2007, her circumstances have undergone a radical change. She has lost any ability to care for herself. The husband provided her with significant care as her condition progressed. She no longer resides in the marital home with her husband. Her husband has been convicted of her aggravated assault. The relationship between her husband and her children has irreparably broken down. Her husband has changed his will to remove any benefit to her. Finally, at the time she made her last will, she owned the marital home jointly with the husband; she is now its sole registered proprietor.
The loss of capacity and the care provided by the husband
There is no doubt that, since the onset of her dementia, the husband has provided a significant level of care to the protected person, which has increased as her dementia has progressed. By the time that she was admitted to residential care, she was unable to dress herself or attend to any matters of personal hygiene. She was completely reliant on the husband for toileting, bathing, dressing and feeding. She depended on him entirely for clean clothes.
I accept that the husband provided the best care that he could for her. The evidence, however, has led me to conclude that as her needs progressed, his care became inadequate. That he lacked insight into the protected person’s condition is evidenced in his email to TJS dated 6 January 2018,[142] where he said, in response to the protected person being unable to find her bras:
No knowing where her bras were surprises me as I reasonably regularly show her where they are? (sic)
[142] A21 – TJS-07.
He then said:
I am continually perplexed and find it quite strange about her inability to turn the TV on and off…I am always showing her how it is done…it will hopefully sink in sooner than later…
TJS’s reply, also dated 6 January 2018 said:
I suppose with mum all those things about tv controls, not finding bras that’s all part of this disease.[143]
[143] Ibid, TJS-12.
The husband’s comments show a remarkable lack of insight into the protected person’s condition. I note that the protected person was seen by Dr Katherine Flynn, a consultant geriatrician at the Flinders Medical Centre on 14 February 2018, who expressed the view that she was suffering from moderately severe dementia which had progressed rapidly since she had last been since at the memory Clinic.[144] These notes also demonstrate an ongoing difference in perception as to the protected person’s needs and level of deterioration between TJS and the husband. Dr Flynn noted that the husband was “not particularly concerned about any progression of his wife’s dementia and feels they are managing well”, while TJS “feels there has been a reasonably significant deterioration in her mother’s cognition, particularly in the last 6 months.” This difference in perception is clear from their evidence, including in relation to the onset of the protected person’s dementia.
[144] R30.
In her email to the husband dated 2 December 2017,[145] TJS noted changes in her mother’s condition and expressed concern about her deterioration. She suggested that she and the husband start to consider longer term supports for the protected person and assistance for the husband. On 6 January 2018, TJS emailed the husband again, and said:
Yell out whenever you want to drop her round here and we can organise it so you can go off and do stuff. I really appreciate all that you do so please tell me anything you feels (sic) needs doing as I want to help more to support both of you.[146]
[145] A21 – TJS-11.
[146] Ibid, TJS-12.
This belies the husband’s assertion that TJS failed to offer assistance and support. In his evidence in chief, the husband said:
a. The assistance I received from her children was and has been minimal.
b. Where assistance was provided it was never volunteered and instead I would request it if I required it and then it was not always forthcoming.[147]
[147] R24, [73a – b].
This assertion is not borne out by the evidence. TJS has provided a number of examples of her offers of assistance;[148] the husband has provided no evidence of refusals to help or requests that were ignored, other than one example relating to the purchase of bras. Each of TJS and the husband has provided their version of this episode; each has a very different perception of what occurred.[149] I further note that it is TJS’ uncontradicted evidence that after the husband’s retirement, he and the protected person lived five days per week at his house at Carrickalinga and two days per week at the marital home. The two days in Adelaide were often during the week, when TJS was working, thus making it difficult for her to spend time with her mother.[150]
[148] For example, A21, TJS-06, TJS-11, TJS-12.
[149] See for example R24, [73f] and A21, [77].
[150] A21, [4] – [5].
All of the evidence summarised above has led me to conclude that the husband failed to understand the protected person’s illness and the ongoing progression of the disease, despite the clear deterioration in her condition. His surprise at her inability to remember things in these circumstances is, in itself, extremely surprising. I have also formed the view that the husband’s perception of the assistance and support offered by TJS has been coloured by recent events.
One further event requires mention. This is the sending to TJS photographs of the protected person’s faeces, which occurred on two occasions, the first on 5 November 2019 and the second on 8 November 2020. The husband said that he sent the photographs on the first occasion to TJS as a “safety valve” and on the second occasion “as [his] way of coping.”[151] In her cross-examination, TJS accepted the proposition that, by sending the photographs to her, the husband was not broadcasting them to the world. She agreed to the proposition that sending her the photographs by text message was a legitimate thing for him to do as a way of letting her know the “stage things were getting to” and that it was the husband’s way of coping.[152] She does not, nor was she asked to resile from her evidence in chief that:
Mum would be absolutely mortified if she knew her most vulnerable moments and toilet habits were being broadcast…Mum was always a very proper and discreate (sic) lady and this type of behaviour again would not have been tolerated.[153]
[151] R24, [40].
[152] T101.5-19.
[153] A21, [61].
The husband’s own evidence and the cross-examination of TJS focused only on the husband’s motivations and justification, rather than the likely reaction of the protected person to this incident. I accept TJS’s evidence that the protected person would have been mortified if she had known that photographs such as this were being sent to TJS.
In response to the first incident in November 2019, TJS offered support in respect of appointments for assessment for home assistance, and also offered to have the protected person one day per fortnight. She urged the husband to arrange extra assistance to care for the protected person. The husband’s responses, which came approximately two hours apart were:
I don’t think you are int (sic) the real world, sorry…just my observations!
And:
I will carry on without your import (sic) for the time being.[154]
[154] Ibid, TJS-13.
These responses indicate the husband’s unwillingness to accept any help.
It should also be noted that the protected person was approved as eligible to receive a Home Care Package Level 4 some five months after the first incident. The husband rejected this assistance on the basis that he considered that he was handling “the thing capably at that stage.[155] The level of resentment indicated in the tone of his messages to TJS and his failure to address the protected person’s likely reaction to this conduct rather than simply his own suggests that he was not in fact handling things capably.
[155] T201.22-25.
In his evidence, the husband asserted that TJS, prior to learning of the assault, believed that he was doing a good job in caring for the protected person.[156] TJS explained it in this way:
My tactic was to boost him up (telling him he is doing a good job, offer advice to sway him in the right direction), call in and be in contact with them as much as I could to be there.[157]
[156] See, for example, R24, [55l].
[157] A21, [47].
She expanded on this in her cross-examination, when she said:
A.Yeah. I felt I needed to support [the husband]. He was caring for her. He was her guardian, he was looking after her. I needed to support him, yes.
Q. And he was doing a great job in your view.
A.The way we managed things was - and I do this at my job - to help and support someone, I feel like you say 'Yes, you're doing a good job. This is the stuff that we can work on and this is how we'd like to go about doing it', and you give them advice, and that's how you support someone. So yes, they were my words.[158]
[158] T100.8-17.
I accept that, in praising the actions of the husband in the way that she did, TJS sought to provide him with support for what he was doing, and guidance in respect of areas where his care was lacking. The two examples relied on by the husband in fact demonstrate this technique, where she praises him for the care that he has given and offers constructive suggestions for providing improved care.[159] I reject the husband’s evidence that these statements amount to evidence of TJS’s belief that he was caring well for the protected person. I accept that they were attempts on her part to provide him with support and direction.
[159] Ibid, TSJ-11 and TJS-12.
I reject the husband’s criticisms of TJS in respect of the level of care that she provided for her mother. The evidence makes it clear that TJS offered assistance over time which was either openly rejected by the husband[160] or ignored. Further, from at least 2017, TJS was making practical suggestions for increased care for the protected person and respite for the husband, which were also ignored.
[160] See for example, ibid, TJS-13.
While I accept that PAK and MRK provided little care for the protected person, I am unable to place much weight on this. Neither has lived in South Australia for many years, and MRK in fact lived overseas until mid-2021. I accept the evidence of the husband’s daughter that MRK spent little time with the protected person when he visited her in London, and that she was upset by his behaviour.
I reject the many criticisms of the conduct of the applicants made by the husband. I consider that his evidence in this regard is tainted by his anger and resentment at their reaction to the aggravated assault charge.
The husband’s evidence was that, if the protected person was aware of the care that he had provided to her, she would not want to change her will. This evidence has been rejected by each of the applicants. I accept the applicants’ evidence in this regard. I consider that the husband has an overly positive view of the care that he provided to the protected person. His blindness to his shortcomings in this regard led him to reject offers of assistance from both TJS and paid carers. He failed to arrange paid assistance, including the Level 4 Home Care package when it was appropriate to do so. His failure to recognise his own shortcomings led him to a degree of frustration the caused him to assault the protected person. He has viewed all of the events that have occurred since the assault through the prism of his own interest and ego.
The aggravated assault
In discussing the conviction, I do not intend to examine the circumstances in which the incident leading to the charge occurred. It is necessary, however, to consider the various versions of the incident that have been put to this Court, directly or indirectly, by the husband.
The husband’s first version of the assault was that given to the police on the day it occurred. Without setting out his version in full, the husband told them that:
·He grabbed the protected person and shook her;
·He used a closed fist to strike her in the stomach but not hard;
·He cannot remember slapping her face but agreed that he was probably being physical with her.[161]
[161] A5.
In his lawyer’s letter to the Eastern Adelaide Criminal Justice Section of the South Australian Police dated 3 February 2021, the husband:
·Vehemently denied that he punched the protected person with a closed fist or that he slapped her or tried to drag her out of the car;
·Said that he would have “prodded or pushed her” with his hand in order to get her to cooperate;
·Said that he probably sought to stop the protected person from reaching for her seatbelt again and pushed her back in her seat in doing so, harder than he intended.[162]
[162] R24, MM-13.
The husband repeated this version in his plea in mitigation in the Magistrates Court.[163]
[163] Ibid, MM-14.
The husband drafted a statement for TJS to sign for his use in his plea in mitigation. In this statement he does not address the event as it occurred but says:
[The husband] is in reality, the victim in this matter, as my mother will never have any recollection of the said incident.[164]
[164] A20-TJS-01.
The investigator for the Public Advocate reported that the husband said that he deeply regretted the incident leading to the charge.[165]
[165] A7.
In his affidavit in the Family Court action, the husband said in respect of the assault:
·In attempting to prevent the protected person from reaching for her seatbelt, he moved too quickly and the back of his hand made contact with her upper body and she was pushed back into the seat;
·She did not suffer any injury.[166]
[166] R23, MM-4 [35] – [36].
On 21 May 2021, the husband provided an account to the SACAT of the incident. He said that:
·He had to manoeuvre the protected person in much the same way that one would have to move a young child in a baby seat to fix the seatbelt;
·He pushed the protected person back with his left arm when she reached for her seatbelt;
·He regretted the incident.[167]
[167] A7.
In his cross-examination in this Court, the husband said:
·He regards himself as the victim in this case;[168]
·His version of the incident is that he did not assault the protected person;[169]
·He did not ask TJS to sign the statement that he prepared for her; he prepared that document as a suggestion if she wished to support him;[170]
·He felt overwhelmed by the situation when he was visited by the police on the day of the assault and he felt like he “was being led down a form of entrapment upon reflection but they were trying to bait” him;[171]
·He accepted that he told the police officers that he used a closed fist to strike the protected person but denied that he had ever punched her with a closed fist.[172]
[168] T172.22-32.
[169] T172.36-37.
[170] 173.4-11.
[171] T192.8-15.
[172] T193.24-27.
It is clear that the husband’s response to the incident has been to minimise it over time, to the point that he now denies that it occurred. His response is to consider himself the victim. He expressed regret for the incident on only two occasions, in his statement to the SACAT, and in his interview with the investigator from the Office of the Public Advocate. It is clear that, in his negotiations with the police prior to the hearing of the charge, he sought to negotiate to have the charge withdrawn on the basis that the protected person be place in a full time care facility.[173] At no time has he expressed concern for the protected person, her plight, or her vulnerability in addressing the incident. He has sought to blame the applicants for the circumstances in which he now finds himself. He has failed to accept any responsibility. None of this reflects well on the husband.
[173] R24, MM-13, p122.
I have set out the evidence of the applicants in respect of the protected person’s attitude to physical abuse and domestic violence at [54] – [55], [71] and [77] – [78]. This evidence has not been contradicted. I accept this evidence.
The fact of the protected person’s separation from the husband and her departure from the marital home

There is no doubt that the protected person’s separation from the husband and her permanent departure from the marital home has been involuntary. They have been necessitated by her illness, although they may have been precipitated by the assault.
The husband’s new will
The protected person and the husband made mirror wills in 2007. The husband’s explanation for making a new will lacks conviction. He said that he made a new will because the protected person would no longer be able to benefit from the right to reside in the Carrickalinga property and because she would probably die before him. His 2007 will, however, provided for his daughters to inherit the entirety of his estate in the event that the protected person predeceased him.
I have set out the applicants’ evidence of the likely reaction to the husband’s making a new will at [71] and [85] hereof, and the husband’s evidence of it at [122] – [123] hereof.
None of the husband’s evidence has convinced me that the protected person would consider it anything but a breach of trust for the husband to have changed his will in the way that he did, particularly given that there was in fact no need for it, given that the only reason he has given for the removal of any right to the residue of his estate is his belief that the protected person will predecease him. I accept the evidence of the applicants in this regard.
The likely size of the protected person estate
The marital home is in the sole name of the wife. The husband has lodged a caveat in respect of it, citing his financial contribution to its purchase as grounding his interest in it. He was very clear in his evidence that he has no intention of vacating it, either before or after the protected person’s death. As matters currently stand, the husband has no legal right to remain in the marital home.
The husband’s evidence in respect of his interest in the marital home was evasive and confusing. His evidence in respect of his equitable interest in the marital home frankly lacked any credibility. He is a retired conveyancer, and yet sought to tell the Court that he believed that the right to reside in the property after the protected person’s death presently gave him an equitable interest that could be protected by a caveat.[174] It is difficult to accept that this is his honest belief. His evidence in respect of the relationship between the right to reside under the will and the caveat was confused and incoherent.[175] He expressed the view that he considered that he has a right to live in the marital home and that he would resist any attempt by the applicants to sell the house. Thus, at one point he said that he did not consider that he had any present interest in the marital home, and then said a short time later that he considered that he did have a present interest in it. His evidence in respect of the caveat was contradictory: he said it was to protect his interest if PAK sought to sell the house; or that it was to protect his life interest in the will; or that it was to protect his interest which arose as a result of his contribution of 50% of the purpose price.
[174] T138.32-139.11, T141.21-24.
[175] T142.1-143.3.
The effect of the husband’s evidence is that while he conceded that the marital home was in the protected person’s sole name, he claimed an interest in it as a result of it he would not voluntarily move out of it.
The husband’s evidence in respect of the transfer of his share in the marital home also does not stand scrutiny. In a written statement to the SACAT dated 21 May 2021, the husband said:
I note that [the protected person’s] children are concerned about her finances. They can rest assured that [the protected person’s] finances are well protected and I have ensured that she is financially secure. As an example of this despite [the protected person] and I having paid equally for the purchased (sic) of our home at [address redacted], about a year ago I transferred my half interest in the property to [the protected person] such that the property is in her name solely.[176]
[176] A7.
This is simply not the case, as can be seen from the objective evidence of the transfer, and the evidence that the husband has given in this Court. It also cannot be attributed to an inadvertent error. It is simply false. Not only is it not true, it does not reflect the fact that the husband maintains that he has an interest in the marital home, either as a result of his contribution to the purchase price, or to the life interest.
The husband’s explanation for the transfer of his share in the marital home is difficult to understand and is not supported by the surrounding evidence. His first reason for the transfer was that it was to “equalise” the contribution that each of them made to their superannuation. No corresponding adjustment, however, was made to their superannuation balances, nor was the husband’s “contribution” recognised in the protected person’s death benefit nomination: she made no change to her nomination of the applicants to receive the entirety of her benefit. Thus, the husband’s first explanation is not borne out.
The husband’s second reason for the transfer of his interest in the marital home was to avoid the payment of land tax on his Carrickalinga property. His interest in the marital home was transferred on 10 December 2009. He did not object to his liability to pay land tax in respect of the Carrickalinga property until 2 December 2013.[177] The delay between the transfer of the interest in the marital home and the notification to the Valuer-General has not been explained.
[177] R24, MM-3.
When the husband was a joint owner of the marital home with the protected person, it made sense for each to leave the other the right to reside in their half after their death; otherwise the survivor would be deprived of the ability to enjoy their own share of the marital home without buying or renting the deceased’s share. This was the case when the last will was made. The transfer of the husband’s share in the marital home changes that dynamic completely. While it might be assumed that the intention to allow the husband to continue to live in the marital home after the protected person’s death would remain if all other surrounding circumstances remained unaltered, that is not in fact the case. The surrounding circumstances have altered substantially; it would not be surprising if the protected person’s likely testamentary intentions altered accordingly.
In respect of the superannuation, the husband conceded that the protected person’s superannuation was solely in her name. His position is that the applicants should use her superannuation to fund her residential care. At the same time, however, he told the Court that he claimed an interest in her super fund as a result of his transfer of his share in the marital home to her.[178] It appears to be the case that he considers that he is entitled to half of her super fund.
[178] T150.4-22.
The husband has conceded that he makes no contribution to the cost of the protected person’s residential care. Nor is the cost met from her superannuation. It is currently met by PAK.
It is the case, therefore, that the husband makes a claim to an interest in both of the protected person’s main assets, the marital home and her super fund. As a result, the applicants have been able to use neither of them to fund her residential care.
The relevance of the Family Court action
I have already made plain my attitude to the Family Court action: it is a relevant circumstance that must be taken into account, but I must not try to predict its outcome or pre-empt its findings.
It has become clear, however, that the approach that the husband purports to take in the Family Court action is disingenuous. In that action, he says that he seeks no orders save that the action is dismissed with a costs order in his favour. This position must be disingenuous because in this action, he has told the Court that he claims a present interest in both the marital home and the protected person’s superannuation. He all but conceded in his cross-examination that these issues would need to be dealt with in the Family Court.[179]
[179] T143.7-9.
The husband’s case in the Family Court action rests on the decision of the High Court in Stanford v Stanford.[180] In Stanford, the wife entered residential care following a stroke and subsequently developed dementia which led to a loss of testamentary capacity. The wife’s daughters applied to the Family Court of Western Australia for orders for a property settlement between the wife and her husband. The Court declined to make an order for property settlement on the basis that it would not be just and equitable to do so. It said:
By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just.
When, as in this case, the separation of the parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter the property interests that lie behind whatever common use they may have made of assets when they were able to and did live together. Common use of some assets may very well continue, as it did here when the husband made provision for the wife's care and accommodation. Past arrangements that the parties have made about their property interests on the assumption, expressed or implicit, that those arrangements were sufficient and appropriate during the continuance of their marriage are not necessarily falsified. If both parties are competent, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually. And if one of the parties has become incompetent it is not to be assumed that the other party lacks the will and ability to make those necessary or desirable adjustments.[181]
(citation omitted)
[180] (2012) 247 CLR 108.
[181] Ibid, [43] – [45].
Likewise, the husband says that the separation of him and protected person is not a voluntary one, and that it would not be just and equitable to make orders for property settlement.
I note, however, that in the very next paragraph, the Court said:
Contrary to the submissions of the husband in this Court, there may be circumstances other than a voluntary separation of the parties marking the breakdown of their marital relationship in which a court may be satisfied that it is just and equitable to make a property settlement order. For example, demonstration of one party's unmet needs that cannot be answered by a maintenance order may well warrant the conclusion that it is just and equitable to make a property settlement order. It may be that there are circumstances other than need.[182]
[182] Ibid, [45].
Thus, it seems that there is a possibility that the FCFCOA may distinguish Stanford on its facts. While the separation of the husband and the protected person is not a voluntary one, the protected person does, in fact, have unmet needs. The husband is in no way meeting any of her financial needs, nor is he facilitating the use of her own assets to meet those needs. Currently PAK is meeting her financial needs. The husband’s attitude to that is:
Well, it’s up to PAK to work out, what is appropriate. I can see if he’s paying out of his own pocket well, it’s up to him to sort out I guess.[183]
[183] T163.19-21.
How PAK is meant to “work out, what is appropriate”, while the husband is making a claim to an interest in both the marital home and in the protected person’s super, but not seeking orders in the FCFCOA, is not explained by the husband.
In any event, I consider that the approach that I must take in this matter is to consider the evidence with a view to ascertaining the likely testamentary intentions of the protected person as her estate currently stands. I accept that there may be alterations to her estate as a result of the Family Court action. If that occurs, it may be necessary for the parties to consider whether it is likely that such alterations would lead to an alteration of her testamentary intentions.
The foreshadowing by the husband of a claim pursuant to the Inheritance (Family Provision) Act 1972
In Re Fenwick, Palmer J cautioned against authorising a statutory will which was bound to provoke a successful claim under the Inheritance (Family Provision) Act. In this matter, the husband submitted that he would have a strong claim under the Inheritance (Family Provision) Act, if no gift were made for him in the protected person’s will. This submission must be rejected.
It is next to impossible to estimate the likely success that the husband would have in any such claim, as it would depend on many circumstances which are currently unknown. For example, if the Family Court action were to result in orders altering the current property interests of the husband and the protected person, this Court is less likely to make orders for further provision from the protected person’s estate. The financial and other circumstances of the husband at the time of the protected person’s death are also unknown. He is currently the registered proprietor of a house at Carrickalinga, and has a healthy superannuation balance. If, at the time of making any claim under the Inheritance (Family Provision) Act, the Carrickalinga house was found to be of significant value and the husband continued to have a healthy superannuation balance, then there would be a reasonable prospect that he would be found not to be entitled to any provision from her estate.
Ultimately, however, this is no more than speculation. The likely success or otherwise of any claim for further provision cannot be determined. In Re Fenwick, Palmer J said:
The putative family provision claimant should normally be left to make his or her application for a statutory will provision when and if the relevant circumstances warranting such an application have reached a state of immutability during the life of the incapacitated person. If that does not happen, he or she should be left to pursue a family provision claim as such under Ch 3 Succession Act.[184]
[184] (2009) NSWSC 530, [199].
I consider that such is the case here. No estimate has been put to the Court as to the protected person’s life expectancy, although her health is not good. The Family Court proceedings remain extant. No evidence has been presented as to the value of the husband’s property at Carrickalinga or his other personal circumstances. I am unable to estimate the likelihood or otherwise of his success in such a claim.
Consequently, I determine that this is not a factor that weighs either in favour or against authorising the making of a will in the terms of MFI A13.
Conclusion in respect of the protected person’s likely intentions
I conclude that, in the circumstances that have arisen, the likely intention of the protected person would be to alter her will so as to remove any benefit to the husband. I accept that she deplored physical violence and domestic abuse, that she would have considered that the husband’s departure from their mirror wills a significant breach of trust and that she would have considered the husband’s self‑interested approach to her care, both in terms of its provision and its payment to be a matter of sadness and regret.
I consider that she would form the intention to revert to a will the same as or similar to that which she made prior her marriage to the husband, where she left the entirety of her estate to the applicants in equal shares.
Is it reasonable to make the orders sought?
Given my finding as to the protected person’s likely intention, I consider that it is reasonable to make orders granting the applicants leave to bring this application and authorising the making of a will which puts these intentions into effect. I have considered the interests of the beneficiaries under her last will, and the prospect of the husband bringing a claim pursuant to the Inheritance (Family Provision) Act. There is no other person who has been brought to the attention of the Court who has provided care or emotional support to the protected person, other than the applicants and the husband. As the protected person has not made a gift to any charity in her last or her penultimate will, I do not consider that it is necessary to consider whether she would intend to do so now.
Conclusion
I make the following orders:
1.Permission is granted to the applicants to bring this application.
2.I authorise the making of a will on behalf of the protected person in the terms of MFI A13.
3.I will hear the parties on the question of costs.