In the Matter of Assimina Krinas - [2016] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Matter of ASSIMINA KRINAS
[2016] SASC 9
Reasons of Judge Dart a Master of the Supreme Court
8 February 2016
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Application for order authorising making of a will for person lacking testamentary capacity - not opposed - whether proposed testator lacks testamentary capacity - whether proposed will reflects likely intentions of testator - whether proposed order reasonable in circumstances - whether order of Guardianship Board prevents making of a statutory will.
Held: permission to make application granted - application granted - person lacks testamentary capacity - proposed will accurately reflects likely intentions.
Administration and Probate Act 1919 (SA) s 72B, s 72G; Guardianship and Administration Act 1993 (SA) s 56; Wills Act 1936 (SA) s 7, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; In the Matter of Brown [2009] SASC 345; In The Will of Wilson (1897) 23 VLR 197; Re Fenwick (2009) 76 NSWLR 22; Timbury v Coffee (1941) 66 CLR 277, discussed.
In the Matter of Marion Shirley Manley [2013] SASC 98; Hill v Hill [2001] VSC 83; In the Matter of Shaun Arthur Pickles [2013] SASC 175, considered.

In the Matter of ASSIMINA KRINAS
[2016] SASC 9
JUDGE DART:

These reasons deal with what was an urgent application for the making of a statutory will. An order was made on 25 January 2016 permitting the making of such a will.
Background
The application was made by Mr Peter Krinas, a nephew of Ms Assimina Krinas (“Ms Krinas”), the person for whom the will is to be made. The reason for the urgency of the matter was that Ms Krinas is suffering from advanced neurological disease. She has been in care at the Highgate Park Clinic since 2004 and is unable to communicate. She is in a vegetative state in palliative care. The medical evidence is that she has now entered the terminal phase of her disease and that she could die at any time.
Ms Krinas married Spiros Krinas (“Spiros”) in Greece, in 1982. It was her first marriage, but it was the second marriage for Spiros, who had a daughter by an earlier marriage. Spiros had previously lived in Australia and in 1983 the couple returned to Australia to live and remained in Australia thereafter.
Sprios’ brother George also lived in Adelaide. The applicant, Peter Krinos, is the son of George and, thus, the nephew of Ms Krinas. Spiros died in 2005. The couple had no children. Ms Krinas has no siblings. The evidence is that Ms Krinas’ mother has died. It is not known whether her father is still alive. He lived in Greece. It is believed that he has died as well, but there is no conclusive evidence as to that fact.
Upon moving to Adelaide Ms Krinas and Spiros socialised regularly with George and his family. Ms Krinas had limited English and it appears that she mainly socialised within the Greek community in Adelaide. It also appears she has had almost no contact with Spiros’ daughter.
After the death of Spiros, George and his family regularly visited Ms Krinas at her care facility. They took her out on day excursions. That continued until about 2012. By that time Ms Krinas’ health had deteriorated to such an extent she was no longer able to communicate. The visits from George and his family continued, but were less frequent thereafter.
The making of a statutory will
The Court’s jurisdiction to make a statutory will is found in s 7 of the Wills Act 1936 (SA), which provides as follows:
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.
(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.
(7)The following persons are entitled to appear and be heard at proceedings under this section:
(a)the person in relation to whom the order is proposed to be made;
(b)a legal practitioner representing the person or, with the permission of the Court, some other person representing the person;
(c)the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993;
(d)the person's administrator, if one has been appointed under the Guardianship and Administration Act 1993;
(e)the person's guardian, if one has been appointed under the Guardianship and Administration Act 1993;
(f)the person's manager, if one has been appointed under the Aged and Infirm Persons' Property Act 1940;
(g)the person's attorney, if one has been appointed under an enduring power of attorney;
(h)any other person who has, in the opinion of the Court, a proper interest in the matter.
(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.
(12)In this section—
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.
The Court’s jurisdiction to make a statutory will has been described as a novel jurisdiction.[1] The authorities identify two types of cases that come before the Court. They are lost capacity cases and nil capacity cases.
[1] Hill v Hill [2001] VSC 83 at [8].
In In the Matter of Marion Shirley Manley[2] Stanley J had to consider the distinction. He said:[3]
This is a “lost capacity” case. In In the Matter of Brown[4] Gray J had occasion to consider the distinction that should be drawn between these two kinds of cases. His Honour said the distinction lies primarily in the fact that in a lost capacity case, a proposed testator was once able to give effect to their wishes and views. This provides a basis upon which the Court can consider if the terms of the proposed will reflect the “likely intentions” of the proposed testator, were they to have testamentary capacity.[5] It follows that the enquiry in a lost capacity case is far less problematic than that embarked upon in a nil capacity case.
[2] [2013] SASC 98.
[3] In the Matter ofMarion Shirley Manley [2013] SASC 98 at [49].
[4] [2009] SASC 345.
[5] [2009] SASC 345 at [34].
Although this is a lost capacity case, it is still a difficult matter. There is no evidence that Ms Krinas ever prepared a will or expressed testamentary intentions to any party. All that can be relied upon in this case is the family relationships formed by Ms Krinas. They are of some assistance to the Court in coming to a conclusion as to the likely intentions of Ms Krinas.
The qualifying criteria, as set out in s 7(3), are that, a person lacks testamentary capacity, the proposed will would accurately reflect the likely intensions of the person if she had testamentary capacity, and that it is reasonable, in the circumstances, that an order should be made.
In the recent case of Shaun Arthur Pickles Gray J summarised the principles relating to testamentary capacity.[6] He said:[7]
Testamentary capacity is defined as “the capacity to make a will”.[8] The legislative note explains that the cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
In Banks v Goodfellow,[9] a test for capacity was advanced by Cockburn CJ. His Honour held that to have sufficient capacity a testator must understand the nature of the will and its effects, comprehend the extent of the property which is being disposed of, and understand and appreciate the claims to which he or she ought to give effect.[10] In In the Will of Wilson, Hood J observed that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular, and ordinary manner.”[11] These observations were cited with approval by Dixon J in Timbury v Coffee.[12]
[6]    In the Matter of Shaun Arthur Pickles [2013] SASC 175.
[7]    In the Matter of Shaun Arthur Pickles [2013] SASC 175 at [16] and [17].
[8]    Wills Act 1936 (SA) section 7(12).
[9]    Banks v Goodfellow (1870) LR 5 QB 549.
[10] Banks v Goodfellow (1870) LR 5 QB 549, 565.
[11] In The Will of Wilson (1897) 23 VLR 197, 199.
[12] Timbury v Coffee (1941) 66 CLR 277, 283; see also Re Fenwick (2009) 76 NSWLR 22, [126].
The medical evidence is clear; the testator lacks testamentary capacity and there is no prospect that her capacity will return. That criterion is satisfied.
The next issue, then, is whether the proposed will would accurately reflect the likely intentions of Ms Krinas if she had testamentary capacity.
The form of the will proposed is quite simple. Relevantly, clause 3 of the will provides as follows:
1. I give the whole of my estate to my trustee upon trust to pay my debts, funeral expenses and expenses directly related to administering my estate, and then to hold the balance of my estate for GEORGE KRINAS of 36 Maud Street Unley 5061 absolutely provided he survives me and if he fails to survive me then equally for such of his children who survive me.
The will, as finally proposed, was a variation on the original version of the will. The original proposed will provided for the whole of the estate to go to George Krinas, provided he survived Ms Krinas, but then provided that the whole of the estate go to the applicant, Peter Krinas. Given that Peter Krinas has a number of siblings, I was not satisfied that it was appropriate to exclude his siblings, nor was it likely to reflect the testamentary intensions of Ms Krinas.
It can be assumed that Ms Krinas would not wish to have died intestate. On the facts as known to the Court at the moment, it appears that there are no blood relatives who are able to take in an intestacy.[13]
[13] See s 72B and 72G of the Administration and Probate Act 1919 (SA).
The evidence before the Court is not as detailed as might ordinarily be expected to be the case. The value of the estate is quite modest. The lack of detail in the application is largely because of the urgency with which the application was made. It appears that Ms Krinas has no living relatives. During the period she lived in Adelaide prior to going into care, she regularly socialised with George and his family. I was satisfied it was appropriate to make a will in the form proposed. George and his family are the only people who could properly be described as having a familial relationship with Ms Krinas.
In the circumstances, I was prepared to accept that the proffered will did represent the likely testamentary intensions of Ms Krinas. I accepted that it was likely she would have wished her estate to go to those with whom she had the closest relationship during the period she lived in South Australia.
The final issue was whether it was reasonable, in the circumstances, the order be made. If there is an intestacy, it is probable the estate would vest in the Crown. In all of the circumstances, it was reasonable to make the order sought.
The Public Trustee
The Public Trustee is the administrator of the affairs of Ms Krinas. It is not clear on the evidence when the Public Trustee was first appointed as the administrator of the estate of Ms Krinas. An order of the Guardianship Board made on 15 January 2014 was produced to the Court. The order makes clear that the Guardianship Board had reviewed the administration that was then in place and ordered that it continue.
As mentioned, as at the date of the making of the order in respect of the statutory will, the Public Trustee was still the administrator of the affairs of Ms Krinas. It appeared at short notice on the application. It took a neutral position on the question of whether or not the Court ought make a statutory will.
The Public Trustee did bring one issue to the attention of the Court. The order of the Guardianship Board made on 15 January 2014 contained the usual prohibition on a protected person making a will. The order was in the following terms:
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 or an authorised Public Trustee officer.
The power to make such an order is found in s 56 of the Guardianship and Administration Act 1993 (SA) (“the Act”), which provides as follows:
56—Restriction of testamentary capacity of protected person
(1)The Tribunal may direct that any testamentary provisions by a protected person be made only after compliance with such precautions as the Tribunal thinks fit to direct.
(2)If, after the Tribunal 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.
The purpose of s 56 of the Act, and the order made, is to protect a person who is unable to administer his or her own affairs from the consequences of an imprudent testamentary provision. It provides the Public Trustee with a supervisory jurisdiction to ensure that any testamentary instrument made on behalf of a protected person is appropriate.
It was not suggested by Public Trustee that these provisions restrict or prevent the Court from making a statutory will. The provisions in relation to making a statutory will should be regarded as dealing with different circumstances. Both sets of provisions are protective of persons not in a position to make appropriate testamentary arrangements in the absence of such protection.
The provision in the Act deals with a protected person who is attempting to make a will or other testamentary disposition. In this matter it is the Court making the will, not the protected person. It is for that reason there is no conflict between the provisions.
In any event, to avoid any doubt, both sets of requirements can comfortably be complied with. I ordered the Registrar of Probates to make the will in the presence of an authorised Public Trustee officer. I understand that he did so.