IN THE ESTATE OF SNOSWELL - [2023] SASC 35

Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF SNOSWELL
[2023] SASC 35
Reasons for the Orders of the Honourable Justice Bampton
10 March 2023
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Application of the making of a will for the proposed testator – proposed testator suffers Alzheimer’s and vascular dementia – absent a statutory will, the proposed testator will die intestate – whether the proposed testator lacks testamentary capacity – whether the proposed wills reflect the likely intentions of the proposed testator if he had testamentary capacity – whether it is reasonable in the circumstances to make the order sought.
Held: Order made pursuant to s 7(1) of the Wills Act 1936 (SA) approving the making of a will on behalf of the proposed testator who lacks testamentary capacity.
Wills Act 1936 (SA) ss 7(1), 7(4), 7(10), 7(11); Inheritance (Family Provision) Act 1972 (SA); Family Relationships Act 1975 (SA) s 11B, referred to.
Griffin v Boardman [2009] SASC 315; Timbury v Coffee (1941) 66 CLR 277; In Re P [2009] 2 All ER 1198; In Re D (J) (1982) Ch 237, considered.

IN THE ESTATE OF SNOSWELL
[2023] SASC 35
Testamentary Causes Jurisdiction

BAMPTON J: Raymond Ross Snoswell (“Ross”) was born 22 February 1935 and lived with his parents at their home in Largs Bay (“the Largs Bay property”) for all but the last five years. Ross began living with his long-term partner Margaret Gallary (“Margaret”) at her at her unit, following his discharge from rehabilitation for injuries he sustained in a fall. Ross met Margaret at the Wonderland Dance Hall in his 20s.
Ross has never made a will, does not know the value of his estate, and does not have the capacity to make a will. His estate, which includes the Largs Bay property valued at $1 million, is significant.
As Ross is 88 years old, I considered it prudent to finalize orders on the Public Trustee’s application for the making of a statutory will (“the Public Trustee’s application”) following a hearing on 9 March 2023 and before the Adelaide Cup Day long weekend. These reasons detail the background to my orders pursuant to s 7(1) of the Wills Act 1936 (SA) (“the Wills Act”), approving and authorising the making of a will on behalf Ross.
Heloise Snoswell transfers the Largs Bay property to herself and Ross
Following his father’s death in 1971, Ross’ mother Heloise Snoswell (“Heloise”) transferred the Largs Bay property to herself and Ross as joint tenants. The memorandum of transfer is dated 26 August 1976 and records the transfer was “in consideration of the love and affection I have and bear towards my son Raymond Ross Snoswell … and without any consideration whatsoever”.[1]
[1] Affidavit of Bree Jean Burns affirmed 13 February 2023 (FDN 21), Annexure “BJB1”.
Ross, whose only sibling Rhonda Cammis (“Rhonda”) died on 28 January 2020, has never married and has no children.
When Heloise died in 1988, Ross took the whole ownership of the Largs Bay property by survivorship. The effect of the transfer in 1976 to him and his mother as joint tenants meant that Rhonda did not receive any interest in that property on Heloise’s death.
The affidavit evidence before me does not permit me to make any findings concerning the circumstances in which Ross came to acquire his interest in the Largs Bay property. There is no evidence Rhonda received any gift from Heloise during Heloise’s lifetime in lieu of any interest she might have had in the Largs Bay property. There was no grant of probate in Heloise’s estate.
Ross’ relatives
Rhonda is survived by her husband, Kingsley Cammiss (“Kingsley”), and her children, Pamela Crouch (“Pamela”) and David Cammiss (“David”). Pamela is Ross’ niece and David is his nephew.
Peter Crouch’s evidence
The evidence, in particular the matters deposed by Pamela’s husband, Peter Crouch (“Peter”),[2] a retired police detective, reveals Rhonda sought guidance from him regarding Heloise’s estate following Heloise’s death. Peter deposes he ascertained for Rhonda that the Largs Bay property had been transferred to Heloise and Ross as joint tenants. Peter says he explained to Rhonda she should obtain legal advice and, if successful, the Largs Bay property “would have to be sold and Ross would probably have to move out”.[3] Peter deposes to his knowledge from conversations he had with Rhonda she did not want to create such a predicament for Ross and took no action. Peter further explains the consensus of the family at the time was it would cause unnecessary hardship for Ross to take action that could force him out of the Largs Bay property. Peter states he was unaware that Ross owned other residential property at the date of Heloise’s death.
[2] Affidavit of Peter Andrew Crouch affirmed 1 February 2023 (FDN 15).
[3] FDN 15, at [10].
I infer, from the evidence before me, that Ross is a private person who kept his affairs to himself such that his family were not aware of his other residential property and his accumulating financial investments.
Peter explains that he began to visit Ross at the Largs Bay property occasionally throughout the 1990s when he was working in the area. He called in to check on Ross’ welfare and became a conduit for how he was doing for the rest of the family. David, who lived interstate, also continued to keep in contact with Ross, visited him and did odd jobs for him when he was in Adelaide.
Peter says that during the period he was visiting Ross, Ross began to talk more and let Peter know how he was doing. He also trusted Peter to take family photographs off the wall to have them copied on the proviso that they were returned. Peter expresses the view that this was a big step for Ross as he appeared to Peter to be very possessive and distrusting of others.
Peter says it was also during this period that Ross began to send the birthday and Christmas cards to Rhonda and Pamela. He also recalled Ross making the odd phone call to Rhonda which he said was unusual behaviour for Ross.
Peter recalls receiving a phone call from Rhonda about Ross in the early 2000s during a heat wave. Rhonda reported that Ross had called and sounded very confused. Peter telephoned Ross who said he had heard noises in the roof of the house and as he was concerned about fire, contacted ETSA and the power was disconnected. Peter considered Ross sounded very unwell. Peter and Pamela then met an ambulance at the Largs Bay property, which took Ross to the Queen Elizabeth Hospital. Peter believes Ross was suffering from both dehydration and a psychotic episode.
Peter recalls Ross was discharged from the Queen Elizabeth Hospital to Northfield and that he was visited at Northfield by Rhonda and her husband. Peter deposes that Ross spoke to Rhonda about the title to the Largs Bay property, indicating to her that he wanted to “make it right” regarding the “deed” to the property as he did not care anymore.[4] I infer this conversation was reported to Peter by Rhonda and, or Kingsley.
[4] FDN 15 at [19].
Ross continued to live in the Largs Bay property until he suffered a fall in 2018, injuring his hip. Ross was taken to hospital for treatment and discharged to the Hampstead Hospital for rehabilitation.
Peter recalls picking Margaret up on occasions to take her to see Ross at Hampstead. He also recalls attending family meetings at Hampstead on behalf of Ross’ family. He learned during one of the meetings that Ross had dementia, was having difficulty understanding financial issues, and did not have a will, power of attorney, or an advanced care directive.
There is no evidence before me that causes me to doubt Peter’s evidence.
The SACAT orders
Ross was diagnosed in 2018 with Alzheimer’s and vascular dementia. Pursuant to a South Australian Civil and Administrative Tribunal order made on 30 April 2018 (“the SACAT order”), the Public Trustee was appointed full administrator of his estate. A variation to the SACAT order on 1 December 2021 appointed Margaret and her niece, Selena Paoletti (“Selena”), limited guardians for healthcare and in home support services.
Ross’ testamentary capacity
As the SACAT order mandates Ross can only make a will with the consent of the Public Trustee, the Public Trustee requested a geriatrician assess Ross’ testamentary capacity. The geriatrician, Dr Alicia Innis, informed the Public Trustee in June 2022 that Ross did not having sufficient capacity to make a will.
The Public Trustee’s application
Ross is the respondent to the Public Trustee’s application. On 7 September 2022, pursuant to s 7(1) of the Wills Act, I granted permission to the Public Trustee to make the application and appointed the solicitor, Mark Jordan, Ross’ litigation guardian for the purposes of the application. Margaret, Pamela, and David are named as interested parties.
The Wills Act
Before making an order under s 7(1) of the Wills Act, I must be satisfied of the matters specified in s 7(3):
(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.
“Testamentary capacity” is defined in s 7(12) as follows:
testamentary capacity means the capacity to make a will1.
Note—
1The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
To make a will a testator must have sufficient mental capacity to understand the nature of what they are doing, its effects, to appreciate the extent and character of their property, and to assess the claims which naturally ought to press upon them.[5] In order to understand these matters, it is essential their “mind should be free to act in a natural, regular, and ordinary manner”.[6]
[5] Timbury v Coffee (1941) 66 CLR 277 at 283 (Dixon J).
[6] Ibid.
In considering an application under s 7(1), I must take into account the matters specified in s 7(4) of the Wills Act which provides:
(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.
The affidavits and submissions
In determining the Public Trustee’s application, I have had regard to affidavits filed on behalf the Public Trustee, by Mr Jordan following his meetings with Ross, by Margaret, Pamela, David, and Peter, as well as the written and oral submissions of the parties.
The proposed wills
A proposed will is exhibited to the Public Trustee’s solicitor’s affidavit,[7] (“the Public Trustee’s proposed will”), appointing Margaret executor, gifting the Largs Bay property to Margaret, gifting $30,000 to Rod Hunter, and gifting $50,000 each to Pamela and David. The Public Trustee’s proposed will provides that the residue is divided into four equal parts, two of which are gifted to Margaret, one part to Selena and her partner, Scott Pitts (“Scott”), and one part to Margaret’s great nephew, Wayne Sribar (“Wayne”).
[7] FDN 1.
A proposed will is attached to Mr Jordan’s affidavit,[8] which appoints the Public Trustee executor, makes no provision for Pamela and David, and provides the residue is divided into six equal parts, three of which are gifted to Margaret, one part to Selena, one part to Wayne, and one part to the Women’s and Children’s Hospital.
[8] FDN 7.
A proposed will is annexed to submissions filed on behalf of Pamela and David,[9] which provides that Pamela and David receive the Largs Bay property in equal shares and the residue is disposed of as suggested in the Public Trustee’s proposed will.
[9] FDN 22.
Ross lacks testamentary capacity
There is no dispute, and I am satisfied, that Ross lacks testamentary capacity due to his diagnosis of dementia and is unlikely to recover it.
What will happen to Ross’ estate is he dies intestate?
If I do not approve the making of a statutory will for Ross and Margaret obtains a declaration under s 11B of the Family Relationships Act 1975 (SA), Ross’ estate will pass to her on intestacy. If she does not obtain such a declaration, it will pass to Pamela and David.
Information provided to the Public Trustee by Selena
In an email to the Public Trustee on 24 June 2022, Selena purports to provide details of Ross’ instructions for the making of a will including a wish that Pamela and David are not left anything.[10] Pamela also attributes to Ross statements to the effect:
[10] FDN 18, Annexure MPJ6, document 2.8 at p 3.
1.David and Pamela have had nothing to do with him for 40 years
2.Margaret, David and Pamela would expect to inherit from his estate.
3.He does not want Margaret:[11]
… hassled after my death by my relatives over my house, shares or money therefore I will consider them.
David Cammiss consideration has been given $50,000 Fifty Thousand dollars
[11] FDN 18, Annexure MPJ6, document 2.8 at p 3.
Pam and Peter Crouch consideration has been given $50,000 Fifty Thousand dollars together
(Emphasis in original)
4.He wanted Margaret, Selena, Scott, Wayne, and his neighbour, Rod Hunter, to inherit.
It is significant to note the comment attributed to Selena as recorded by a Public Trustee employee in a Public Trustee file note on Ross’ file headed “CTMS Contact Record” dated 26 April 2022 as follows:[12]
his sister has died and her son David from Qld seems to always appear when PP is sick, seems to put his hand up thinking he will get funds. Has tried to become guardian, Margaret and Selena applied to be guardian to ensure David didn’t.
This assertion is inconsistent with Ross’ purported statement that David has had nothing to do with him for 40 years. It is inconsistent with Peter and David’s affidavit evidence.[13] I accept that David did not put his hand up to be guardian. It is also of note that Selena stands to benefit handsomely from Ross’ estate.
[12] FDN 29, Annexure DSD2.
[13] FDN 15, FDN 16, and FDN 32.
Ross’ litigation guardian
By reference to the affidavits filed by Mr Jordan,[14] it is clear Ross understands he owns residential property at Largs Bay and other property. He has been consistent in expressing his wish that Margaret receives the Largs Bay property and 50 percent of the residue of his estate upon his death.
[14] FDN 7, FDN 10, and FDN 20.
Ross has also expressed a wish to recognise his friend Rod Hunter, Selena, Scott, and Wayne, who have provided assistance and support to him. Mr Jordan has also ascertained he does not want to provide a gift for the Women’s and Children’s Hospital or any charity.
Mr Jordan deposes in his affidavit that at his second meeting with Ross on 1 March 2023:[15]
[15] FDN 31.
10Ross was consistent with his previously strongly expressed views that he wanted Margaret to receive his property at Largs Bay and half of the rest of his estate – noting that his friend Rod Hunter was to receive $30,000.00. He stated to me that these were the people who “have helped Margaret and myself” and that he “wanted them to be paid with some money for what they have done for me”. He repeated that “There’s four people, Margaret, Wayne, Selena, and my friend Rod.” I asked Ross to summarise what he wanted his Will to say and we have the following exchange: –
MJ:    If you could prepare you own Will right at this moment with me and I could draw it up, tell me what I would write in it
R:    The only things I would want, I always said that Margaret is to be looked after, because she’s done so much work for me over the years, many, many years
MJ:    Of course. When you say looked after though, what sort of assets would you like her to receive?
R:    The house
MJ:    And when you say the house, you’re talking about …
R:    Walcot Street
MJ:    Walcot Street, Largs Bay, your house?
R:    Yes
MJ:    Done, no problems, well that makes sense, and? Anything else?
R:    And 50% also to Margaret
MJ:    50% of … anything else that’s there?
R:    That’s right, and Wayne 25%, Selena 25%. And Rod $30K.
11I proceeded to explain to Ross what sort of value would pass to each of Selena Paoletti and Wayne Scribar if they were to receive 25% of his residuary estate. Ross indicated that he was not aware as to how that translated in dollar figures and seemed surprises to learn of the amounts involved. When question about the values, he responded by saying “You’ve informed me – that’s something I didn’t know” but then expressed an intention not to change the benefits and said “I think I’ll go along with that. That’s the figure I said. It’s what I quoted”. I asked if there were any other people he might like to benefit in his Will, given the amounts involved, and he indicated that there was nobody else and that the majority of other friends in his life had all passed away now. In relation to Wayne, Ross stated “Wayne was exceptional, what he did for Margaret and myself, he never ever queried or kicked up a fuss about taking Margaret to the bank or anything like that and he used to get up early in the morning and go to the supermarket and do the shopping, and bring it back to the house for Margaret” noting that Selena assists in this way now.
12Later in our discussion, the topic of the distribution of his estate was raised again with Ross providing a consistent response including that the remaining half of his estate was to pass equally to Selena and Wayne. I note that this was not the case on the previous occasion when Ross could not identify the people to whom he wished to devise the remaining half of his residuary estate. This provided me with some concern that Ross may have been “coached” in relation to the division of his remaining estate. I asked Ross whether he had been discussing his Will with anyone to which he replied “No”. I challenged Ross on this stating that I found it very hard to believe that he would not have discussed his Will with anyone else – for example Margaret – and pointed out the handwritten notes on the dining room table at the conclusion of our meeting which he told me were written by Margaret. Ross conceded that he had discussed the matter with Margaret.
13I remain concerned that Ross is open to influence from others, however, given the nature of our discussions and the responses that Ross gave to my queries in this regard, I consider that his responses align with what one would consider, objectively, to be his likely intentions if he had capacity: that is, giving his estate to those around him who have loved and cared for him.
14Ross’s expressed views about his nephew David Cammiss and Pamela Crouch remained consistent with the views that he expressed during my previous meeting. He was adamant that he had little to do with them in his life and did not wish for them to receive any benefit from his estate. He expressed concerns regarding [them] stating “what concerns me mainly is that David and Pam, they are after all they can get out of me”. When I noted that they had put an alternative Will to the Court regarding the Largs Bay property passing to them, his response was immediate: “And that’s not right, I don’t want that! I don’t want … Margaret and myself, over many, many years have not ever heard from them, not one phone call even.” Ross continually referred to David having said things about him such as Ross being a “bad person” which he said was not true. When quizzed about what had allegedly been said about him Ross could not provide any specifics and only said that it happened “a while back”. The final comment regarding David and Pam from Ross was “I’m adamant that I do not want David and Pam and that to have any of my Will, because they have never been in my life, we don’t want, we never had anything to do with them until now, and just recently, and David said he didn’t do it, but he tried to put me in a nursing home, and I’m not nursing home material!”.
…
16I queried Ross about the Largs Bay property and, more particularly, how it [came] to be in his name and whether any portion of this property should pass to David and Pam given that their mother (and Ross’s sister) Rhonda, missed out on an inheritance from her parents. In relation to the Largs Bay property being transferred into joint names as between him and his mother, Ross stated “I didn’t have anything to do with that, that was all done by mum” who was “very disappointed with Rhonda”. Ross later repeated that he “never ever tried to put pressure on her or anything, it was purely and simply mum’s judgment”. Ross explained that “Mum was very accomplished on the sewing machine and she’d done untold hours of work for Rhonda, and all that was forgotten when I asked her [for] a little help, and she said that’s your problem. And I took on the effort myself”. Ross strongly disagreed with the concept of any portion of the Largs Bay property (or any benefit at all) passing to David and Pam. I told him that David and Pam’s lawyers were suggesting that Ross had a moral obligation to leave the Largs Bay property to them to which he responded “That’s not on!” and “Well, that’s how desperate they are!”.
17Ross stated that he used to own a rental property at Largs Bay – two street over on Persic Street – and that “David found out about this and he said to me, now I’ve found out about your rental property – which was none of his business – he said, I’m going to kick you out of your house”. When quizzed if that was what was really said he stated “On my word of honour, he said I’m going to kick you out of your house”. I asked him why David would say something like that to him to which he replied “Because that’s the sort of person he is” and “he is always desperate to get his hands on my money”. Ross also stated that “I was most annoyed when he said that when he heard that, when I talked about my rental property, I never disclosed it and I just kept quiet of it, and he said, when he found out about it, he said, if I’d have known earlier, I’d have kicked you out of your house at Walcot Street, and I lived there all my life”. Ross continued by saying “what I’m afraid of is that people like David, they’re breaking their neck to get my house too and they will give Margaret a hard time”.
18I asked Ross whether he would reconsider providing a benefit to David and Pam in the event that they had not said anything “bad” about him in the following exchange: –
R:    Well, what’s upset me is what I’ve had to put up with from David and Pam and co, and the way they have rubbished me to try and show the light that I’m a bad person and it’s totally wrong, I’m the opposite of that, I’m a caring person!
MJ:    Yeah. Here’s a question for you, if they hadn’t said you were a bad person, so if they never said anything like that, never, never said anything bad about you, would you given them money then?
R:    No, because they’ve never been in our lives for years and years and years
MJ:    You’ve said that, that’s fine, that makes sense
R:    And, to be honest, we are really quiet living people Margaret and myself, and we look after each other, and the thing is we don’t want nastiness of any kind, and we wont associate with them ever again
19It was clear from our discussions that Ross had read some Affidavit material filed in the within action. In particular, he made references [to] facts deposed to in the Affidavits of Peter Crouch and David Cammiss. He strongly denied receiving any trophy from David and that all of his trophies are ones that he won in the MG Car Club.
…
21Of particular concern was the following exchanges with Ross regarding Selena: –
Exchange 1
MJ:    So why would you say Selena was – I’m talking about Selena, this is Margaret’s niece I’m talking about – that she’s trying to control things?
R:    Well, she openly said to me that she wants my house
MJ:    Selena?
R:    Yes
MJ:    But that’s going to Margaret?
R:    That’s right
MJ:    Yeah
R:    She stated that she wants my house and she said that she’ll be going hard at it and that she’s got her name down to have first choice on my house
MJ:    Really?
R:    Yes
MJ:    Selena’s married to Wayne, yeah?
R:    No, she’s got a partner
MJ:    Sorry, partnered to Wayne?
R:    No, not to Wayne, Scott.
MJ:    Scott, Thank you, I’m getting my names mixed up, it’s my fault
R:    It’s alright
Exchange 2
MJ:    But I am worried about the whole question of people persuading you and influencing you, Ross.
R:    No, there is nobody influencing me, I can think for myself, and …
MJ:    You mentioned Selena can be controlling, is she putting any pressure on you?
R:    She wants my home
MJ:    I know, but surely that’s some pressure on you as well, isn’t it?
R:    Yeah, I don’t want that to happen
Exchange 3
MJ:    I’m concerned by some of the comments you mention about control from Selena, and that she wants your house, that worries me.
R:    She also done some pretty shoddy things to Margaret
MJ:    Who?
R:    Selena
MJ:    Shoddy? Like what?
R:    Wanted her to alter her Will so that a certain amount of Margaret’s Will went to her sister.
MJ:    Ah, her mum? Selena’s mum?
R:    Yeah
MJ:    Well, I can’t comment on any of that, I don’t know, but you’re telling me that from your point of view you’ve got some concerns there?
R:    Yes, I have
MJ:    But you still want to give her some money in your Will?
R:    Yes, I feel obliged to, because, as I said, she was very good with the use of her car, taking Margaret and myself to Walcot Street, and also taking us to Dr Mark, and now a lady doctor comes to the house …
MJ:    Dr Anne?
R:    Anne, yeah
MJ:    And Selena?
R:    She comes to the house here with the groceries for us, because Wayne can’t do it anymore
MJ:    Right
R:    And I’ve got to make sure of my words that I use to her, because I don’t want to upset the kettle as the saying goes, because Margaret depends on her to take her to the bank
MJ:    So you worry if you don’t leave her something in the Will she might not care for you anymore?
R:    That’s right
MJ:    Really
R:    Yeah
MJ:    Well that’s not a reason to put her in the Will though
R:    I think that what she has done over that period of time for us, she should receive something
…
27I have had two lengthy discussions with Ross and having heard him clearly and consistently expressing his wishes to me, notwithstanding the medically trained assessment that he lacks testamentary capacity, I consider that his is a case of “borderline incapacity”. In saying this, I acknowledge that I am not medically trained and cannot put my view any higher as a result.
(Italics in original)
Discussion

Noting Ross’ consistent wish regarding the gifts to Margaret and Rod Hunter, a will providing for such gifts would, pursuant to s 7(3)(b) of the Wills Act, accurately reflect the likely intentions of Ross if he had testamentary capacity. The issue for my determination is how the residue of Ross’ estate is disposed of.
In the circumstances of Ross’ mental incapacity and Mr Jordan’s concern regarding Ross being open to influence from others and that he may have been “coached” in relation to the division of his residuary estate, I do not regard the comments attributed to him regarding Rhonda, Pamela, and David as being decisive. Further, the Public Trustee’s file note dated 26 April 2022 of the telephone call with Selena referred to above does hint at an attempt to queer, at least, David’s pitch as regards Ross’ estate.
Whilst I cannot make any finding regarding the circumstances in which Ross acquired his interest in the Largs Bay property, Ross’ explanation for the transfer appears to relate an annoyance he, not Heloise, had with Rhonda. I query whether it was he, rather than Heloise, who was very disappointed in Rhonda. Ross has also expressed a view that “people like David” are “breaking their neck to get my house too and they will give Margaret a hard time”. Selena’s email to the Public Trustee on 24 June 2022 refers to Ross’ purported comment that he wanted to give Pamela and David $50,000 each to, I infer, forestall Margaret being “hassled” after his death by his relatives over his house, shares, or money. Such comments are arguably suggestive of Ross’ awareness that Rhonda may have had a legitimate claim regarding the Largs Bay property.
In Griffin v Boardman,[16] White J referred to the decision of In Re P,[17] where Lewiston J considered what was in the “best interests” of the incapacitated testator. Justice White noted the Mental Capacity Act 2005 (UK) requires a “best interests” test to be applied, and not the “likely intentions” of the testator prescribed by s 7(3)(b) of the Wills Act. Justice Lewiston determined the best interests of the incapacitated testator would include the way in which they were likely to be remembered after death by family and friends. Justice Lewiston considered belief by those who survived the incapacitated testator that the testator had “done the right thing” in the will may have some bearing upon that memory. Having regard to Lewiston J’s comments, White J determined that:[18]
... ss 7(3)(b) and 7(4)(g) permit a testator’s wishes concerning their memory to be taken into account in determining their “likely intentions” if they did have testamentary capacity.
[16] [2009] SASC 315.
[17] [2009] EWHC 163; (2009) 2 All ER 1198.
[18] [2009] SASC 315 at [54].
I adopt White J’s reasoning and find it is reasonable to suppose that, if he did have testamentary capacity and was not open to influence,[19] Ross would, in gifting the Largs Bay property to Margaret, make a monetary gift to Pamela and David representing a quarter share each in the value of the property.
[19] Mr Jordan articulated his concern in this regard at [13] of FDN 31.
I also adopt White J’s comments regarding the assuaging of animus such that Ross’ feelings towards his relatives may have softened or mellowed over time if he had not lost testamentary capacity and was not open to influence from others. As White J stated, the observations of Sir Robert Megarry VC in In Re D(J) are pertinent in this regard:[20]
Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last at full capacity, for sometimes strong feelings mellow into indifference and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason.
(Emphasis added)
[20] (1982) Ch 237 at 243.
Section 7(4)(d)(iv) requires that I take account of the interests of persons who have cared for or provided emotional support to Ross. It would appear Selena, Scott, Rod Hunter, and Wayne are persons who have cared for or provided emotional support to Ross.
If Ross did have testamentary capacity, he no doubt would have appreciated the value of his estate, which includes the Largs Bay property valued at approximately $1 million. I consider it likely, if he did have capacity and was not open to influence from others, he would recognise he had ample assets to make a will which provides for Margaret in the manner he wishes, as well as monetary gifts to Pamela and David equal to approximately half the value of the Largs Bay property.
Conclusion
I am satisfied that Ross lacks testamentary capacity and is unlikely to recover it. I was satisfied, taking into account the matters prescribed by s 7(4) of the Wills Act, the proposed will provided to my chambers following the hearing:
1.appointing the Public Trustee executor;
2.giving the Largs Bay property to Margaret;
3.giving $30,000 to Rod Hunter;
4.providing the residue of Ross’ estate be divided into four equal parts to be disposed of as follows:
(a)two parts (50 percent) to Margaret;
(b)from the remaining two parts:
(i)     giving $250,000 to Pamela;
(ii)    giving $250,000 to David; and
(iii)   dividing the balance of the residue into two equal parts to be disposed of as follows:
(A)one part to Selena and Scott; and
(B)one part to Wayne;
accurately reflects the likely intentions of Ross if he had testamentary capacity.
I was satisfied that it is reasonable in all the circumstances to make the following orders:
1.Pursuant to s 7(1) of the Wills Act 1936 (SA), the Court hereby approves and authorises the making of a will on behalf of the respondent in the terms of the will that is annexed to these orders and marked “A”.[21]
[21] The annexure marked “A” is not annexed to these reasons.
2.Pursuant to s 7(10) of the Wills Act 1936 (SA), the original of the said will referred to in order 1 herein be produced to the Registrar of Probates, to be signed by the Registrar of Probates, sealed with the seal of the Court and be retained by the Registrar of Probates pursuant to s 7(10) of the Wills Act 1936 (SA).
3.Pursuant to s 7(11) of the Wills Act 1936 (SA), the sealed said will is not to be withdrawn from deposit with the Registrar of Probates by or on behalf of the respondent unless by an order of the Supreme Court of South Australia.
4.The costs of and incidental to this application and order incurred by the applicant, the respondent, the first interested party, the second interested party and the third interested party, be paid on a solicitor and own client basis to be taxed or agreed from the respondent’s protected estate.