In the Estate of HAROLD IDLE - [2009] SASC 388

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of HAROLD IDLE
[2009] SASC 388
Judgment of The Honourable Justice Sulan
17 December 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
Application to admit a will made by the testator who was the subject of a Guardianship Board order restricting his testamentary capacity - whether the will had been validly executed in accordance with the order of the Board, requiring that any will be executed in the presence of and with the consent of the Public Trustee - whether Public Trustee was exercising a power or function authorised by the Public Trustee Act 1995 (SA) and whether the delegation of that function was valid - delegation was authorised and within power - will valid.
Probate Rules 2004 r 77; Guardianship and Administration Act 1993 (SA) s 5, s 56; Public Trustee Act 1995 (SA) s 5, s 8; Crown Proceedings Act 1992 (SA) s 9(2)(a); Public Trustee Bill 1995 (SA); Supreme Court Rules 2006 r 79, referred to.
Hunter v McKinnon (2002) 81 SASR 229, distinguished.
R v Lampe ex parte Maddalozzo [1963] 5 FLR 160; Symonds v Hawkins (1906) WALR 70, considered.

In the Estate of HAROLD IDLE
[2009] SASC 388
Civil

SULAN J: This is an application in the matter of the estate of Harold Idle (“the testator”) to admit a will made by the testator who was the subject of a Guardianship Board (“the Board”) order restricting his testamentary capacity. The application has been referred to me by the Registrar of Probates, pursuant to r 77 of The Probate Rules 2004.
Background
On 15 August 2003, the Board made orders that the Public Trustee be appointed full administrator of the estate of Harold Idle, and that Harold Idle not make any will or testamentary disposition after 15 August 2003, except in the presence of and with the consent of the Public Trustee. The order was reviewed on 25 September 2006 by the Board and confirmed.[1]
[1] Guardianship and Administration Act 1993 (SA), s 56.
The testator died on 13 July 2008. On 31 March 2004, the testator executed a will (“the Will”) appointing Ralph Curtis and Michael Adrian Idle as joint executors of the Will and named Michael Adrian Idle, the testator’s son, as sole beneficiary of the testator’s estate. The Will was executed in the presence of David Owen Ward, a solicitor, and Joseph Nicotra, a technical officer employed in the office of the Public Trustee.
The ultimate issue to be determined is whether the Will has been validly executed in accordance with the order of the Board which required that any will be executed in the presence of and with the consent of the Public Trustee. The Registrar sought a determination of the Court as to whether, in the circumstances, the Public Trustee was exercising a power or function authorised by the Public Trustee Act 1995 (SA) and, if so, whether the delegation of that function was valid. The Registrar referred to the decision of Mullighan J in Hunter v McKinnon,[2] and sought a determination as to the relevance of that decision to the circumstances of this case.
[2] (2002) 81 SASR 229.
Upon the hearing of the application, the Attorney-General intervened, pursuant to s 9(2)(a) of the Crown Proceedings Act 1992 (SA) and the Public Trustee sought permission to intervene as amicus curiae. I granted permission. Mr S Stretton SC, the Crown Solicitor, appeared with Mrs D M Gray, for both the Attorney‑General and the Public Trustee.
David Owen Ward, the solicitor for the executors, prepared the Will on instructions of the testator. He was present when the testator executed the Will. On 31 March 2004, Joseph Nicotra of the office of the Public Trustee, was also present. Mr Ward deposes that the testator had been assessed by Dr R Behrens, a senior psychiatric registrar, at the Daw Park Repatriation Hospital on the day upon which the testator executed the Will. Dr Behrens reported that the testator had the capacity to make appropriate decisions in relation to changing his will.
In his report, Dr Behrens stated that the testator indicated that he wished to leave his assets to his son who had previously been excluded from the testator’s will. The testator had changed his mind because his relationship with his son had significantly improved over the past year.
When the matter was first listed for hearing before me on 17 November 2009, the Crown Solicitor referred to Dr Behrens’ report which suggested that there had been a will excluding Michael Idle. The Crown Solicitor sought an adjournment so that further inquiries could be made of Dr Behrens as to whether there had been a previous will.
Ms Elizabeth Watson, the solicitor who had conduct of the matter on behalf of the Public Trustee, examined the files kept at the Repatriation General Hospital. In the files, she located a copy of a will dated 18 November 1997. She also found reference to a will in a letter to the testator, dated 11 January 1994, from Messrs Reilly Basheer Downs and Humphries, solicitors. She was informed that Messrs Duncan Basheer and Hannon, solicitors, held an original will of the testator, which was executed on 11 February 1994. The sole beneficiary of that will is the son of the testator, Mr Michael Idle. A number of wills have been located.
It appears that the most recent previous will to the subject Will is the will executed on 18 November 1997, which appoints Mr Brian Authers as the testator’s executor and provides as follows:
4.MY EXECUTORS shall hold my estate on trust:
(a)     if my son MICHAEL ADRIAN IDLE survives me for a period of twenty-eight (28) days:
(i)to hold all of my tools, machinery and any other like equipment on trust for him for life;
(ii)upon the death of my said son MICHAEL ADRIAN IDLE my tools, machinery and other like equipment fall into the residue of my estate;
(b)     to divide the residue of my estate equally between those of my grandchildren ADRIAN ROY IDLE, HAYLEY LEAN IDLE and JESSICA MARIA IDLE who survive me and who attain the age of twenty-five (25) years.
5.MY EXECUTORS may in their discretion:
(a)     exercise the powers of a trustee for sale in respect of any assets in my estate;
(b)     in addition to those investments authorised by law, invest in the following:
(i)land of any tenure
(ii)mortgages, including contributory mortgages
(iii)insurance bonds.
6.I DIRECT that my body be disposed of by burial.
7.I HAVE NOT provided for my son MICHAEL ADRIAN IDLE save and except for the trust as set out in paragraph 4(a) herein, because I have already provided for him adequately during my life time.
The beneficiaries under that will are Adrian Roy Idle, Hayley Lean Idle and Jessica Maria Idle, who are the children of Michael Adrian Idle. Counsel for the executors, Mr R Ward, informed me that the children had indicated that they did not wish to contest the validity of the Will the subject of these proceedings.
I considered that the interests of Hayley Lean Idle and Jessica Maria Idle should be represented, as they are minors and require independent representation. I appointed Brian Leigh Carpenter of 35 Coglin Street, Adelaide, a solicitor, to be litigation guardian of the minor beneficiaries in order to represent their interests and advise them independently.[3]
[3] Supreme Court Rules 2006, r 79.
When the matter resumed on 10 December 2009, Mr D Howard, upon instructions of Mr Carpenter, appeared for the two child beneficiaries. He indicated that his instructions were to support the submission of the Crown Solicitor that the Will is valid and should be admitted to Probate.
I am satisfied that all the interested parties who can be identified and located have been made aware of this application, and there are no other interested parties who should have been served with the proceedings.
Mr Ward stated in his affidavit as follows:[4]
Mr Nicotra and I firstly considered the said letter of Dr Behrens and then satisfied ourselves that Mr Idle had the requisite testamentary capacity to provide instructions by asking the deceased certain questions, the responses to which indicated that he fully understood what it was he was doing. I then took the deceased’s instructions with regard to his Will in the presence of Mr Nicotra and then immediately drew up the Will. The Will was then read through with the deceased in the presence of Mr Nicotra. The Will was then executed by the deceased in the presence of both Mr Nicotra and me. Mr Nicotra and I both witnessed the Will.
I did not have any concern as to the deceased’s testamentary capacity on 31 March 2004. I was satisfied he [sic] deceased knew and understood the effect of his instructions and his wishes, in particular, with regard to his son Mr Michael Idle.
[4] Affidavit of David Owen Ward, dated 16 November 2009, [4], [5].
Joseph Dean Nicotra is a client service officer with the title of technical officer, employed in the office of the Public Trustee. He has worked at the Public Trustee since June 1971. In 1991, he was classified as an ASO4 officer.
On 29 June 2001 the then Public Trustee, Judith Worrall, executed a delegation of authority in the following terms:
Pursuant to the authority vested in me by Section 8 of the Public Trustee Act 1995, I delegate to the following persons, the powers, authorities, duties and functions hereinafter mentioned:
1. To all CLIENT SERVICES OFFICERS (ASO4 level or above)
-In the absence of the Public Trustee to be present at and to consent to the making and execution of a will or testamentary disposition by a protected person.
The delegation has remained in force and was current as at 31 March 2004.
Mr Nicotra attended at the offices of Mr D Ward on 31 March 2004 for the purpose of ascertaining the capacity of the testator and, if appropriate, witnessing his will. Mr Nicotra interviewed the testator and was present when Mr Ward explained to the testator the contents of his will and the effect of the instructions the he, Mr Ward, had been given. The testator indicated that he wished to leave his residual estate to his son, Michael. Mr Nicotra formed the opinion that the testator had testamentary capacity. He witnessed the testator executing the Will.
Mr Mark Bodycoat, the current Public Trustee, confirmed that on 29 June 2001 the then Public Trustee, Ms Worrall, executed an instrument of delegation in the terms described above. He further confirmed that Mr Nicotra was an officer of the Public Trustee to whom the delegation applied on 31 March 2004.
On 31 March 2004, the then Public Trustee, Ms Catherine O’Loughlin, was present in Melbourne, Victoria, attending a national council meeting of the Trustees Corporation Association of Australia. Mr Bodycoat stated that one of the functions conducted by the office of the Public Trustee is to attend at the office of solicitors to form a view as to whether persons who are subject to protection orders have the testamentary capacity to make a will. All officers of the Public Trustee who have delegated authority to attend upon protected persons and assess their testamentary capacity and witness their wills are experienced officers, varying between 11 and 38 years’ service at the Public Trustee.
The relevant legislative provisions
Section 56 of the Guardianship and Administration Act 1993 (SA) provides:
56—Restriction of testamentary capacity of protected person
(1)The Board may direct that any testamentary provisions by a protected person be made only after compliance with such precautions as the Board thinks fit to direct.
(2)If, after the Board has given a direction under subsection (1), the protected person makes a testamentary provision otherwise than in accordance with that direction, the testamentary provision is ineffectual.
(3)Except as provided by subsection (2), nothing in this section affects the law relating to testamentary dispositions.
On 15 August 2003, the Board made an order pursuant to s 56 with respect to the testator, Harold Idle. It ordered:
1.THAT PUBLIC TRUSTEE of 25 Franklin Street, ADELAIDE 5000 be appointed full administrator of the estate of the protected person.
2.…
3.THAT PUBLIC TRUSTEE shall provide an annual report to the Board and the protected person on its administration of the estate of the protected person.
4.THAT the protected person shall not make any will or other testamentary disposition after this date except in the presence of, and with the consent of, Public Trustee.
5.…
The section was enacted to ensure that any testamentary provisions made by protected persons are made of their own free will and at a time when they have the capacity to understand the effect of their instructions.
In construing the order, I have had regard to s 5(d) of the Guardianship and Administration Act 1993 (SA), which stipulates that when the Board makes an order under the Act, “the decision or order made must be one that is the least restrictive of the person’s rights and personal autonomy as is consistent with his or her proper care and protection”.
The Crown Solicitor submits that, to make testamentary dispositions is a fundamental common law right, and the order of the Board should be construed as to impinge on that right to the smallest degree that is consistent with the necessary protection of the interests of the protected person.
Section 56 gives the Board wide discretionary powers to give directions for the protection of persons who are subject to guardianship or administration orders. The Board was empowered to make the orders dated 15 August 2003.
Section 8(1) of the Public Trustee Act 1995 (SA) provides:
8 – Delegations
(1) The Public Trustee may delegate any of the Public Trustee’s functions or powers –
(a)to a person employed in the Public Service; or
(b)to the person for the time being occupying a specified position in the Public Service.
(2) A delegation under this section –
(a)must be in writing; and
(b)may be conditional or unconditional; and
(c)is revocable at will; and
(d)does not prevent the delegator from acting in any matter.
Section 5 of the Public Trustee Act 1995 deals with the functions and powers of the Public Trustee. Section 5(2) provides:
5 – Functions and powers
(1)     Subject to this Act, the Public Trustee has the powers of a natural person.
(2)     The Public Trustee may, for example –
(a)act as a trustee, executor of a will, administrator of an estate (whether or not of a deceased person), manager, receiver, committee, curator, guardian, next friend, agent, attorney or stakeholder; or
(b)act in any other capacity provided for under this or any other Act. (underlining is mine)
(3)     The Public Trustee may, with the approval of the Court, act in the same matter or transaction in different capacities or in the same capacity but as representative of different persons or interests and, in so doing, may commence and maintain proceedings against the Public Trustee.
(4)     The Court may, in granting its approval, give directions to the Public Trustee.
The Public Trustee’s functions include acting as administrator of estates of persons subject to an administration order under the Guardianship and Administration Act 1993.
When introducing the Public Trustee Bill 1995 (SA), the then Attorney-General spoke of the function of the Public Trustee to carry out various community service obligations, such as act as executor and trustee of any estate, regardless of its size, and often in cases in which private trustees will not act as the cost of administration outweighs any fees or commissions that can be charged. He also referred to other community service obligations, such as appointments by the Supreme Court as a protector of interests of those who cannot look after their own interests. Many of the Public Trustee’s functions are statutory public service obligations not requiring the Public Trustee’s consent. The Public Trustee’s role under the Guardianship and Administration Act 1993 is one of those functions.
Is the delegation valid?
Turning to whether the delegation in this case is valid, the general rule is that a person vested with a statutory power must exercise it personally, rather than delegate its exercise to others. However, the presumption against the power to delegate must be considered in the context of the legislation to which the Court must have regard. If the legislative intent is clear, then the rule will not apply.
In R v Lampe ex parte Maddalozzo[5] Bridge J said:
Whilst, in general, a delegate of specified legislative powers must discharge the legislative functions thereby given and cannot transfer them to other authorities, it seems doubtful whether that principle can be properly based on the maxim delegatus non potest delegare. To my mind, a better basis exists in the proposition that a delegation of specified legislative powers does not extend beyond the powers so specified, and except in so far as they include a power to sub-delegate, any purported sub-delegation of any of them is ultra vires the terms of the delegation (citations omitted).
[5] [1963] 5 FLR 160, 171.
In considering whether a particular function or power is capable of delegation, the Court will have regard to the nature of the power, the subject matter of the relevant power, the position of the delegate and whether the delegate is subject to the same restraints and procedures as the delegator as described by the Act. A delegate who is not subject to the same restraints and procedures may not be able to validly exercise the delegated power.
Section 8 of the Public Trustee Act 1995 provides that the Public Trustee may delegate any of the Public Trustee’s functions to a person employed in the public service or to a person for the time being occupying a specific position in the public service. The words are clear and unambiguous. The Public Trustee is not required to delegate to a specified person. The Public Trustee can delegate his or her function to a person (unspecified) occupying a specified position. The Public Trustee has delegated her powers and functions to persons who are employed in the office of the Public Trustee, who are senior officers of or over a certain classification. Those to whom the delegation applies are officers of the Public Trustee and are subject to the restraints which apply to the Public Trustee. They are experienced officers who have been employed at the Public Trustee over many years. I am satisfied that the delegation was authorised and within power.
The order of the Board
The Board was concerned with the ability of the testator to make a will. The order made by the Board conferred a specified function upon the Public Trustee to decide whether to consent to the testator making a will and, further, that any wills executed by the testator be in the presence of the Public Trustee.
In Hunter v McKinnon,[6] the testator was the subject of a protection order in similar terms to the protection order considered in this case. The testator’s uncle contacted the Public Trustee to arrange for the testator to make a will. At a meeting with the testator at which the testator’s uncle and an officer employed by the Public Trustee were present, instructions were given as to the testator’s testamentary intention. The officer drafted the Will, in accordance with the testator’s instructions. The will was not executed in the presence of the Public Trustee. Instead, a letter under the hand of the Deputy Trustee was sent to a local bank manager asking that he and another officer of the bank attest to the execution of the prepared will.
[6] (2002) 81 SASR 229.

The testator executed the will in the presence of the bank manager and another employee of the bank. Some time later, the testator was informed by the Public Trustee that the will was invalid as it was not executed in compliance with the protection order. No further will was made.
The applicant, the beneficiary of the will, brought an application seeking to have the protection order relating to the testator’s testamentary capacity set aside. Mullighan J rejected the application. He said:[7]
In my view, the evidence clearly establishes that at the time the order was made, not only was the protection order desirable, but the limitation of the testamentary power of the deceased was fully justified.
…
The effect of the order is plain. The Court had decided on the evidence that precautions must be laid down and observed before [the testator] could make a valid will. Those precautions were specified. Public Trustee had to consent and the will had to be made in his presence. These functions could be exercised by Public Trustee and perhaps Deputy Public Trustee in certain circumstances, but not by anyone else and for good reason. Public Trustee was obliged to make judgments for himself and could employ whatever experts he considered necessary for that purpose. What he could not do was delegate those functions to anyone except perhaps Deputy Public Trustee. He had to be satisfied that the instructions for the will accorded with [the testator’s] own wishes and that he had relevant capacity. At the time of execution of the document, he also had to be satisfied that [the testator] understood the document.
…
The bank manager could not be seen as an agent of the Public Trustee as he could not discharge the function of the Public Trustee as laid down by the Court.
[7] Ibid, 236-7 [44], [48] – [50].
The case is distinguishable as it was decided before the current provision empowering the Public Trustee to delegate his or her functions came into force. There is now an express power of delegation vested in the Public Trustee. The Public Trustee has delegated her particular power and function in accordance with s 8 of the Public Trustee Act 1995. In Hunter, there was no express statutory power to delegate vested in the Public Trustee. Further, in Hunter’s case, the function of the Public Trustee to witness the execution of the will was delegated to someone outside the office of the Public Trustee, and not subject to any of the restraints or procedures of the Public Trustee. That is not the position in the present case.
Was the will executed in the absence of the Public Trustee?
The Crown Solicitor submits that the words “in the absence of” should be given their ordinary meaning. He submits that they should be read to mean that if the Public Trustee is physically not present, that is, away from the place at which the testator is to be assessed and the will is to be witnessed, then it is appropriate for a person delegated by the Public Trustee to undertake the Public Trustee’s functions.
Approximately 40 wills per year are made by the Public Trustee for protected persons. The Public Trustee has numerous functions. In my view it would be administratively unrealistic to require the Public Trustee to be present in person on each occasion when persons subject to protection orders execute wills. The requirement for the Public Trustee to be present on each occasion would cause undue hardship and inconvenience to persons wishing to make testamentary dispositions.
If the Public Trustee is unable, for any reason, to be present when a protected person executes a will, then a duly authorised delegate can exercise the function. The reason for the Public Trustee’s absence is not relevant. The words of the section do not restrict a delegate from acting in the Public Trustee’s absence.
I conclude that the words “in the absence of the Public Trustee”, in the instrument of delegation, should be interpreted to authorise a delegate to act on any occasion when the Public Trustee is not personally physically present with the protected person at the time that that person makes their will. The word “absence” should be given its ordinary meaning. There is no requirement to limit it in any way, such as requiring proof that the Public Trustee’s absence was reasonable or necessary.[8]
[8] Symonds v Hawkins (1906) WALR 70.
Conclusion
I am satisfied that the Public Trustee had the power to delegate her functions, including the functions and duties imposed upon the Public Trustee by the order of the Board. I am satisfied that the Public Trustee had delegated her functions and that Mr Joseph Dean Nicotra was duly authorised to carry out those functions. I am satisfied that the testator was of sufficient sound mind and understood the nature and effect of his instructions and of the Will he executed.
I conclude that the Will is validly executed.