In the Estate of GRACE GERALDINE BROWN (DECEASED) - [2010] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of GRACE GERALDINE BROWN (DECEASED)
[2010] SASC 90
Judgment of The Honourable Justice Gray
7 April 2010
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY
Application for admission to probate of will in common form - proposed testator without testamentary capacity - Court made order authorising the making of a statutory will pursuant to section 7 of Wills Act - proposed testator died after order made but before signing of will by Registrar - whether will a valid will.
Held: direct Registrar to admit to probate the will - substantial difference between statutory will and any other will - the authority for the will is not the proposed testator's decision to formally execute it, it is the Court's order that it be executed - upon a proper construction of section 7, the Court order authorising the making of the will is the substantive order - matters that follow are essentially mechanical.
Wills Act 1936 (SA) s 7; Succession Act 2006 (NSW) s 18(3) and s 23(2); Wills Act 2000 (NT) s 19; Succession Act 1981 (Qld) s 21(2)(b); Wills Act 2008 (Tas) s 22(3); Wills Act 1997 (Vic) s 40(2)(a); Wills Act 1970 (WA) s 40(2)(a); Mental Health Act 1959 (Vic) s 103A, referred to.
In the matter of Grace Geraldine Brown [2009] SASC 345; In re Davey (Court of Protection) [1981] 1 WLR 164; Rak [2009] SASC 288; Hoffmann v Waters (2007) 98 SASR 500, considered.

In the Estate of GRACE GERALDINE BROWN (DECEASED)
[2010] SASC 90
GRAY J.
Introduction

This is an application for the admission to probate of a will in common form.
Background
On 30 October 2009, following an application made under section 7 of the Wills Act 1936 (SA), I made an order pursuant to that section authorising the making of a will for Grace Geraldine Brown. The background of this matter can be found in In the Matter of Grace Geraldine Brown,[1] where, on 11 November 2009, I published reasons for the making of the section 7 order.
[1] In the matter of Grace Geraldine Brown [2009] SASC 345.
Section 7 of the Wills Act empowers the court to authorise the making of a will on behalf of a person who lacks testamentary capacity. There was ample evidence before me in that application to satisfy me that Mrs Brown lacked testamentary capacity. For the reasons there given, I was also satisfied that the proposed will would accurately reflect the likely intentions of Mrs Brown if she did have testamentary capacity. The order I made authorised the making of a statutory will in the terms proposed and annexed to the judgment.
An order authorising the making of a statutory will, pursuant to the relevant terms of the Wills Act, will generally be in the following terms:[2]
[2] See for example Rak [2009] SASC 288; Hoffmann v Waters (2007) 98 SASR 500.
The plaintiffs are permitted to make this application.
The Court approves and authorises the making of a will on behalf of [the person lacking testamentary capacity] in the terms of the copy annexed.
The will be signed by the Registrar of Probates in the presence of [a nominated person] and sealed with the seal of the Court.
The will be retained by the Registrar of Probates, and not to be withdrawn from deposit with the Registrar by or on behalf of the [the person lacking testamentary capacity] unless by order of the Court pursuant to section 7(11) of the Wills Act 1936 (SA).
In the present matter, in accordance with the order of the Court, procedures were put in place for the final drafting of the will in the terms ordered on 30 October 2009. The Registrar signed that will on 26 November 2009. Mrs Brown however, had died five days earlier, on 21 November 2009. An application for a grant of probate of the will in common form has been made.
Questions immediately arise as to the validity of the will, in view of the death of Mrs Brown before the signing of the will by the Registrar. It is instructive to observe at the outset that there are substantial differences between a statutory will and any other will. It is for these reasons that this matter was referred to me by the Registrar.
Statutory Wills
Modern Parliaments have recognised the need for the provision of a mechanism by which wills are made by authority of the court if a person lacks testamentary capacity. A recent decision of Palmer J in the Supreme Court of New South Wales reviewed the history and exposition of the laws in this area both in England and Australia.[3]
[3] Re Fenwick [2009] NSWSC 530; 1 ASTLR 440.
The relevant South Australian provision, section 7 of the Wills Act, is in the following terms:
(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.
(5)     An order may be made under this section in relation to a minor.
(6)     The Court is not bound by rules of evidence in proceedings under this section.
…
(8)     In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit.
(9)     A will or instrument altering or revoking a will made pursuant to an order under this section must be executed as follows:
(a)     it must be signed by the Registrar; and
(b)     it must be sealed with the seal of the Court.
(10) The will or instrument altering or revoking a will must be retained by the Registrar and will be taken to have been deposited with the Registrar under section 13 of the Administration and Probate Act 1919.
(11)   The will may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless the Court has made an order under this section authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order) or the person has acquired or regained testamentary capacity.
Uniformly across Australia, the wills legislation expressly provide that the proposed testator must be alive at the date of the making of the order authorising the statutory will.[4] In South Australia, however, this is implicit in the language of the section. Section 7(1) of the Wills Act refers to the “proposed testator”, and a will being made on behalf of a person who lacks testamentary capacity. This language and tense assumes that the proposed testator is alive at the date of the proceedings.
[4] Succession Act 2006 (NSW) section 18(3); Wills Act 2000 (NT) section 19(3); Succession Act 1981 (Qld) section 21(2)(b); Wills Act 2008 (Tas) section 22(3); Wills Act 1997 (Vic) section 21(3); Wills Act 1970 (WA) section 40(2)(a).
The New South Wales and Northern Territory provisions specifically provide that when the Registrar signs the will, he or she may only do so upon proof that the proposed testator is alive.[5] There is no similar provision in South Australia. In his book Succession Law in South Australia, Haines suggests that all that is necessary in South Australia is that the proposed testator be alive at the date of the order, and that the death of the proposed testator between the date of the order and the date of the will, does not render the will invalid.[6] Further, commentary in Australian Succession Law,[7] suggests that the relevant jurisdiction and the statutory will are enlivened by the order of the court, not the signing by the Registrar. In light of the foregoing, and without any express or implied suggestion in the South Australian legislation to the contrary, it would be odd that in order for a valid will to be created, the proposed testator would need to be alive at the time of the signing of the will by the Registrar.
[5]    Succession Act 2006 (NSW), section 23(2); Wills Act 2000 (NT), section 19.
[6]    Haines, Succession Law in South Australia (2006), [9.20].
[7]    Haines, Englefield & Guille, Australian Succession Law (2009), [160.1150].
Potentially at variance with the above observation are the terms of section 7(9) of the Wills Act, which contemplate the signing of the will by the Registrar for the ‘execution’ of the will. So too do orders made by courts in statutory wills cases. Apart from express provisions in New South Wales and the Northern Territory requiring that the proposed testator be alive at the time of the signing of the will by the Registrar, also of note is section 103A of the Mental Health Act 1959 (UK). That section, which is no longer in force, provided that a statutory will executed according to the requirements of the legislation will have the like effect for all purposes as if the proposed testator were capable of making a valid will and the will had been executed by him in accordance with the manner required by the relevant Wills Act. Cases interpreting that section have considered it to mean that in circumstances such as those of the within matter, where the proposed testator has died after the order is made but before execution of the will, are analogous to those where a testator has capacity when giving instructions, but dies before executing the will.[8] In these circumstances, the person would die intestate.
[8] See for example, In re Davey (Court of Protection) [1981] 1 WLR 164 at 172 (Fox J).
I would not construe the terms of section 7 of the Wills Act in the manner described above. Importantly, the English legislation provides that the statutory will be executed with due formality, similar to the formality required by section 8 of the Wills Act for validity of wills. There is no such requirement in section 7 with respect to statutory wills. The statutory will is created by the authorisation of its creation in terms approved by the Court. Thus, notwithstanding the use of the term ‘execution’ in section 7(9), for the reasons given, I am of the view that it is the order which creates the will for the purposes of the Wills Act, not the signing of it by the Registrar. It follows that the proposed testator need only be alive at the date of the order of the Court authorising the making of a statutory will for it to be valid for the purposes of section 7 of the Wills Act.
This above construction takes into account the significant difference between a statutory will and any other will – the proposed testator does not have capacity to make the will. The authority for the will is not the proposed testator’s decision to formally execute it, but the Court’s order that it be executed in the terms annexed to that order. In this respect, the order of the Court is the substantive order for the purposes of section 7 of the Wills Act, and the matters that follow from that order are essentially mechanical.
Order
I direct the Registrar of Probates to admit to probate the statutory will of Grace Geraldine Brown signed by the Registrar on 26 November 2009.