In the Matter of G, CL
[2015] SASC 80
•27 May 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Matter of G, CL
[2015] SASC 80
Reasons for Decision of The Honourable Justice Gray
27 May 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Application for making of a statutory will. CLG suffered a severe traumatic brain injury when she was seven years of age after a large brick column collapsed on top of her. A compromise of personal injury proceedings was approved by a Master in the District Court in 2012. As part of the compromise, a protection order was made and the Public Trustee was appointed litigation guardian and manager of the protected estate. CLG’s mother, JKM, the plaintiff in this action, applied for an order authorising the making of a statutory will pursuant to section 7 of the Wills Act 1936 (SA). CLG, her maternal half-siblings DOSM and EGM, and her father, MRG, were joined as defendants to the action. The main issue in dispute between the parties was the relationship between CLG and her father MRG, including the length of time MRG had lived with CLG and JKM, and why MRG ceased to have contact with CLG. The guardian ad litem appointed for CLG put forward a proposed will. JKM and the guardian ad litem for DOSM and EGM supported the terms of the proposed will but MRG did not.
Whether CLG lacks testamentary capacity. Whether CLG’s likely testamentary intentions accord with the proposed will. Whether the making of a will in the proposed terms is reasonable in the circumstances:
Held per Gray J (allowing the application):
1. CLG lacks testamentary capacity.
2. The will proposed by CLG’s guardian ad litem does not reflect CLG’s likely testamentary intentions based on her present and likely future relationships with particular members of her family.
3. The making of a will in the terms proposed in these reasons reflects CLG’s likely testamentary intentions and is reasonable in all the circumstances.
Aged and Infirm Persons’ Property Act 1940 (SA) s 8A; Wills Act 1936 (SA) s 7; Probate Rules 1997 (SA) r 98, referred to.
Re W, DJ [2015] SASC 45; In the Matter of Shaun Arthur Pickles [2013] SASC 175; In the Matter of Rak [2009] SASC 288; Re Brown [2009] SASC 345; In the Matter of De Jager [2012] SASC 236, considered.
In the Matter of G, CL
[2015] SASC 80Testamentary Causes Jurisdiction
GRAY J.
This is an application for the making of a statutory will.
The defendant, CLG, was born on 1 October 2001. She suffered a severe traumatic brain injury when she was about seven years of age after a large brick column collapsed on top of her. The injury resulted in a profound disability affecting gross and fine motor skills, cognition and communication. CLG is fed via a tube and is confined to a wheelchair. She is unable to mobilise herself and, except for some varied sounds and approximation of words, she cannot communicate verbally.
A compromise of personal injury proceedings was approved by a Master in the District Court on 10 December 2012. As part of the compromise, a protection order was made pursuant to section 8A of the Aged and Infirm Persons’ Property Act 1940 (SA) with the Public Trustee appointed litigation guardian and manager of the protected estate.
The defendant’s mother, JKM, the plaintiff in this action, applied for an order authorising the making of a statutory will pursuant to section 7 of the Wills Act 1936 (SA). CLG, her maternal half-siblings DOSM and EGM, and her father, MRG, were joined as defendants to the action. On 16 March 2015, the Registrar of Probates referred this matter to me and appointed solicitors Gaetano Anthony Aiello and Leonie Evans Millard as guardians ad litem for CLG and the maternal half-siblings respectively.
In her affidavit in support of the application, JKM annexed a proposed will. Leading up to the hearing of this matter Mr Aiello submitted two proposed wills. The first was filed after he met with CLG and the second was filed after he considered the affidavit material filed by MRG, who is the third defendant in these proceedings. At the hearing, Ms Millard and counsel for JKM supported the second will proposed by Mr Aiello. MRG contended that the second will did not accurately reflect CLG’s likely testamentary intentions but his counsel did not submit an alternative will.
At the hearing, I was not satisfied that the terms of the second proposed will accurately reflected CLG’s likely testamentary intentions and I asked for various alterations to be made. The bulk of CLG’s estate comprises superannuation and consequently, the parties were mainly in dispute in respect of the division of the residuary estate. I requested that Mr Aiello provide the Court with a revised draft will, leaving the percentages of the residuary estate to be held on trust for each beneficiary blank.
On 13 May 2015, I made an order authorising the making of a statutory will on behalf of CLG. Annexed as a Schedule to these reasons is the draft will I was prepared to approve and direct the Registrar to sign. My reasons for granting the order in the terms specified follow.
The Application
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. Section 7 relevantly provides:
(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.
…
(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.
Rule 98 of The Probate Rules 2004 (SA) is relevant to section 7 of the Wills Act and concerns the making of a will for a person lacking testamentary capacity pursuant to permission of the Court.
The present proceedings are similar to the matter of Re W, DJ.[1] That case concerned a 17 year old boy who suffered serious injury as a result of a complicated birth. A compromise of personal injury proceedings was approved by a Master in the District Court in 2012 and DJW received compensation of over $8,500,000.00. In that case I addressed the application process as follows:[2]
The legislation contemplates a two-stage process: an application for permission to proceed and, upon permission being granted, an application for an order authorising the will.[3] The purpose of a grant of leave to proceed is to provide a mechanism by which baseless or unmeritorious applications are screened out.[4] In proceedings such as this, where the application is not obviously without merit, it is appropriate that leave to proceed and the substantive application be heard concurrently.[5] DJW lacks testamentary capacity and is unlikely to ever gain that capacity. His estate is substantial. It is sensible that DJW’s assets should not go on intestacy.[6] Accordingly, good reasons exist to grant leave to proceed with the application.[7]
[1] Re W, DJ [2015] SASC 45.
[2] Re W, DJ [2015] SASC 45, [20].
[3] Bryant v Blake (2004) 237 LSJS 23, 28.
[4] Hoffmann v Waters (2007) 98 SASR 500, [10] citing Monger v Taylor [2000] VSC 304, [22]; see, e.g., Boulton v Sanders (2004) 9 VR 495, [11]; Bryant v Blake (2004) 237 LSJS 23, [28]; see also Re Fenwick (2009) 76 NSWLR 22, [119]-[125].
[5] Hoffmann v Waters (2007) 98 SASR 500, [10].
[6] See Re Palmer [2003] VSC 21, [17].
[7] See Hoffmann v Waters (2007) 98 SASR 500, [10].
There is no reason to distinguish the present proceedings. CLG has a substantial estate worth approximately $6,500,000.00 and she is unlikely to ever gain testamentary capacity. Considering the size of the estate it is preferable that intestacy is avoided.
Testamentary Capacity
In In the Matter of Shaun Arthur Pickles, I summarised the principles relating to testamentary capacity as follows:[8]
Testamentary capacity is defined as “the capacity to make a will”.[9] 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,[10] 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.[11] 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.”[12] These observations were cited with approval by Dixon J in Timbury v Coffee.[13]
[8] In the Matter of Shaun Arthur Pickles [2013] SASC 175, [16]-[17]; see also In the Matter of Rak [2009] SASC 288; Re Brown [2009] SASC 345; In the Matter of De Jager [2012] SASC 236.
[9] Wills Act 1936 (SA) section 7(12).
[10] Banks v Goodfellow (1870) LR 5 QB 549.
[11] Banks v Goodfellow (1870) LR 5 QB 549, 565.
[12] In The Will of Wilson (1897) 23 VLR 197, 199.
[13] Timbury v Coffee (1941) 66 CLR 277, 283; see also Re Fenwick (2009) 76 NSWLR 22, [126].
In these proceedings the parties did not dispute that CLG lacked testamentary capacity and that she would not attain testamentary capacity. Notwithstanding the parties’ consensus, it remains necessary for the Court to be satisfied of this fact.
JKM had obtained two medical reports in support of her application. The first was a report of James Rice dated 3 September 2013. Dr Rice had previously assessed CLG on 30 August 2010 and prepared a first report dated 17 February 2011. It is unclear whether Dr Rice assessed CLG again for the purpose of his second report, where he observed:
In regard to [CLG’s] testamentary capacity, based on my clinical impression of the extent of her neurological disability, she could not know and understand the concept of a will made on her behalf. She could not know and understand the property to which she has become entitled by virtue of her accident and consequent disability. She could not understand and weigh up the competing moral claims on her bounty. Whilst the level of cognitive ability required for such capacity would not yet be present in most, if not all, developmentally normal eleven year old children, I do not anticipate that [CLG] will subsequently show any degree of recovery from her injuries or further developmental progress sufficient to demonstrate this as an older adolescent or young adult.
The disorder of her mind which impacts upon her ability to make a will and dispose of her property is one of severe and permanent cognitive impairment as a direct result of the severe brain injury. This has impacted on executive functions and other general cognitive abilities which are essential for purposeful, goal-directed thoughts and planning. These functions are highly unlikely to develop to the level required for testamentary capacity. ...
JKM also obtained a report from a neuropsychologist, John Said, dated 6 November 2013. Mr Said states in his report that he had prepared a previous report in respect of CLG dated 30 November 2011 and that his last contact with CLG was on 29 July 2011. The report set out answers to a series of questions put to Mr Said by the solicitor for JKM:
Could [CLG] know and understand the concept of a will being made on her behalf?
In the context of the severe limitations outlined above, it is my opinion that [CLG] probably has the capacity to understand the concept of a will being made on her behalf each time this is explained to her but probably does not have capacity to know the concept of a will when it is not being explained to her.
Could [CLG] know and understand the property to which she has become entitled by virtue of her accident and consequent disability?
In my opinion, [CLG] does not have capacity to know and understand the property to which she has become entitled by virtue of her accident and consequent disability? [sic]
Could she understand and weigh up the competing moral claims of various family members and perhaps charities on her bounty?
In my opinion, [CLG] could not understand and weigh up the competing moral claims of various family members and perhaps charities upon her bounty? [sic]
Is there any disorder of her mind which would impact upon her ability to make a will and dispose of her property?
The extremely severe brain injury that [CLG] sustained in 2008 has a very significant impact on her ability to make a will and dispose of her property.
If answers to the above are at present in the negative, is it possible that with maturity, she may attain testamentary capacity in the future?
In my opinion, [CLG] will never attain testamentary capacity in the future.
I note that it may be that neither of these medical professionals have examined CLG since she was eight or nine years’ old. However, this is of little consequence considering that both have expressed the opinion that CLG will never attain testamentary capacity. I also note the affidavit of Mr Aiello, CLG’s guardian ad litem in the present proceeding. Mr Aiello deposed after visiting CLG on 27 March 2015:
My observations of [CLG] are that she would:-
- Not have testamentary capacity; and
- Not have the capacity to understand my role as her guardian ad litem.
- Be totally dependent on others for her care for [sic] rest of her life.
I am satisfied that CLG lacks testamentary capacity, as required under section 7(3)(a) of the Wills Act and that she will not attain that capacity.
Likely Testamentary Intentions
In Re W, DJ, I observed:[14]
Section 7(3)(b) of the Wills Act requires that the court, before making an order under section 7(1), be satisfied that the proposed will accurately reflects the likely intentions of the testator if that person had testamentary capacity.
In finding whether the proposed will accurately reflects the likely intentions of the proposed testator, the law distinguishes between “lost capacity” and “nil-capacity” cases. I discussed this distinction in Re Brown.[15] I adopt and apply my observations in that case.
In Re Fenwick, Palmer J classified cases where a person has been born with mental infirmity or has lost testamentary capacity well before ever being able to develop any notion of testamentary disposition as “the nil capacity cases”.[16] His Honour observed:[17]
As, in the absence of a statutory will, the person in a nil capacity case must inevitably die intestate, I do not think that the Court starts with the meaningless question: would this particular person have chosen to make a will if he or she had attained testamentary capacity? Rather, I think that the Court must start from the position that, if there are assets of any significance in the minor's estate, it should authorise some kind of statutory will unless it is satisfied that what would occur on intestacy would provide adequately for all the reasonable claims on the estate.
… In a nil capacity case, where there cannot be any meaningful search for actual or likely subjective intention, the Court of necessity must make objective assessments of likelihood. The Court can take notice of the fact that people in our society who have assets of any worth and who have a family and other relationships usually choose to make wills rather than die intestate. In my opinion, the Court can be satisfied by reference to common experience that if the incapacitated minor had attained testamentary capacity and had assets of any significant worth, then it is reasonably likely - in the sense of a fairly good chance - that, in common with most people, he or she would have chosen to make a will.
There is obvious difficulty associated with attempts to identify the likely intention of a person who has never had testamentary capacity.[18] When there are significant assets in an estate the subject of a statutory will application, it is necessary to consider whether intestacy would adequately provide for all reasonable claims on the estate.[19] This may be assessed by reference to the relationship of the defendant with relevant persons. Further, there exists a general proposition that persons with assets of value commonly make wills rather than die intestate.[20]
[14] Re W, DJ [2015] SASC 45, [33]–[36].
[15] Re Brown [2009] SASC 345.
[16] Re Fenwick (2009) 76 NSWLR 22, [26]-[27].
[17] Re Fenwick (2009) 76 NSWLR 22, [172]-[173]
[18] See In the Matter of Rak [2009] SASC 288, [19]; Re Fenwick (2009) 76 NSWLR 22, [171].
[19] Re Fenwick (2009) 76 NSWLR 22, [172].
[20] See, e.g., In the Matter of Rak [2009] SASC 288, [23]; Re Fenwick (2009) 76 NSWLR 22, [173].
As was the case in Re W, DJ, the present proceedings concerned a mother who was significantly more involved in the life of the testator than the father. Under the rules of intestacy, CLG’s estate would be left to her parents in equal shares, or her siblings should her parents predecease her. In a case such as this, where one parent is significantly more involved in the care of the testator, and where the estate is significant, it is highly probable that the testator would chose to make a will that would alter the position that would exist on intestacy. In order for the Court to determine the testator’s likely testamentary intentions, it is necessary to take an objective look at the testator’s relationships.
Relationship between CLG and Her Mother JKM
There was no dispute that JKM is the primary caregiver. CLG lives with JKM, two half-siblings and JKM’s husband, who is the father of CLG’s youngest half-sibling, in a newly built home designed to meet CLG’s needs. The home is in the Public Trustee’s name, as the manager and administrator of CLG’s estate, and was built using funds from the compensation payment.
After CLG’s accident, CLG spent about 10 months in hospital, during which JKM took turns with her mother to stay overnight. After CLG was discharged, JKM was unable to afford carers and attended to CLG’s high care needs herself with the support of her parents. JKM continues to care for CLG’s daily needs with assistance from carers and her husband.
It is important to note that JKM personally received $220,000.00 as part of the compromise reached in the District Court, $50,000.00 of which was compensation for the care JKM provided to CLG. JKM also receives a payment of $900.00 a week from the Public Trustee as manager of CLG’s estate to cover living expenses, utilities and maintenance of the family home. The Public Trustee makes a further weekly payment of $900.00 to cover CLG’s medical and rehabilitation costs. JKM did receive a carer’s pension but does not receive that anymore.
Relationship between CLG and Her Father MRG
The main issue in dispute between the parties was the relationship between CLG and her father MRG, including the length of time MRG had lived with CLG and JKM, and why MRG ceased to have contact with CLG.
The parties filed conflicting affidavits on where they were living at various times after CLG’s birth. Relevantly, JKM deposed that she and MRG had only lived together for a period of six to eight weeks at her parents’ home shortly after CLG’s birth. Counsel for MRG submitted that, on MRG’s evidence, MRG and JKM had lived together with CLG for a period of about two years.
JKM deposed that when CLG was twelve months old, MRG began to take CLG on access visits for a few hours on Wednesday evenings and on weekends. JKM deposed that it was an informal arrangement that ceased in or around November 2005. JKM ceased the arrangement because she believed that CLG was being sexually abused by MRG’s father, CLG’s paternal grandfather. JKM reported the alleged abuse to the police but did not proceed with the complaint as it would be too stressful and traumatic for CLG. JKM deposed that on the advice of a detective, she moved house and did not disclose her new contact details to MRG. From that time until the accident, MRG had no contact with JKM or CLG.
MRG strongly denied the allegations of abuse against his father. MRG deposed that JKM made it difficult for him to see CLG once JKM became aware that MRG’s new partner was pregnant. MRG further deposed that after JKM reported the alleged abuse, she would only allow MRG to have supervised access visits at the police station. MRG did not agree to this as he did not believe it would be suitable for CLG to be in a police station every week. MRG sought legal advice but did not pursue any action due to the costs involved.
MRG and JKM both deposed that the next time MRG had contact with CLG was at the hospital after hearing of CLG’s accident. After some conflict between JKM and MRG in respect of access, MRG applied to the Federal Magistrates Court to obtain access and was granted an order enabling him to see CLG for 30 minutes daily. MRG deposed that he continued to see CLG daily until December 2008, when he was advised by the hospital that CLG would be going into palliative care and that JKM would not allow MRG into her home. JKM deposed that CLG was not discharged from hospital until July 2009 but MRG ceased to visit in December 2008. JKM further deposed that MRG’s visits were irregular.
JKM deposed that she subsequently made an agreement with MRG that he relinquish his parental rights and in exchange he could cease to pay child support. Federal Magistrates Court proceedings in early 2009 culminated in an order that JKM have sole parental responsibility for CLG and that MRG’s time with CLG be suspended until CLG reached the palliative stage of her condition. MRG deposed that he represented himself in the proceedings as he could not fund legal representation and consequently felt “disillusioned by the whole process and felt like there was no point in making any further attempt to have contact”. MRG has continued to make child support payments.
MRG deposed that he wished to have contact with CLG but would prefer not to have to proceed with further court action. At the hearing of the matter counsel for JKM submitted that her client would not oppose MRG having some access visits in the appropriate circumstances.
Relationship between CLG and Her Maternal Grandparents
JKM deposed that she believed CLG would wish to leave a portion of her estate to CLG’s maternal grandparents as they “have continued to provide loving support and assistance in the care of [CLG] for the entirety of [CLG’s] life, and demonstrated unwavering support including whilst [CLG] was in hospital”.
JKM deposed that after CLG was born, JKM and CLG lived with the grandparents for 18 months. After CLG and JKM moved out, CLG continued to spend one night a week with her grandparents. CLG’s grandparents spent much time with CLG while she was in hospital, and CLG’s grandmother took turns with JKM to stay with CLG overnight. After CLG was discharged, and prior to the compensation payment, CLG’s grandparents would stay with CLG two days per week to assist.
JKM deposed that if she were to predecease CLG, her parents would become CLG’s primary carers with JKM’s husband. JKM gave her parents $25,000.00 of the compensation she received in respect of the accident in acknowledgement of the gratuitous services they provided to CLG.
Relationship between CLG and Her Half-Siblings
CLG has a maternal half-brother, DOSM, aged nine years and a maternal half-sister, EGM, aged 14 months. The guardian ad litem appointed to represent their interests, Ms Millard, deposed that DOSM “appeared quite at ease with [CLG’s] position and her special needs”. Due to the young age of EGM, it was not possible for Ms Millard to ascertain the nature of any relationship between EGM and CLG. Ms Millard further deposed that neither DOSM nor EGM appeared to have any special needs.
Ms Millard considered “it is likely that if [CLG] had testamentary capacity, she would wish to provide some significant benefit from her estate for [DOSM] and [EGM], as well as for [JKM]”.
CLG has two paternal half-siblings with whom she has no contact. MRG deposed that both paternal half-siblings have expressed a desire to meet CLG.
Proposed Will
As mentioned earlier, at the hearing of this matter, counsel for JKM and Ms Millard supported the second will proposed by Mr Aiello. The terms of this proposed will appointed JKM as executor and trustee of the estate. The proposed will left a gift of $100,000.00 to the Women’s and Children’s Hospital Foundation Inc and CLG’s personal effects such as toys, books and electronic devices to her maternal half-siblings. CLG’s interest in any real property and any furniture, clothing or motor vehicles was to be given to JKM. The residuary estate, which at this time comprises the bulk of CLG’s estate, was to be divided as follows; 50 per cent to JKM, 10 per cent to MRG, 30 per cent to CLG’s maternal half-siblings in equal shares, to be held on trust until they attain 25 years of age, and 10 per cent to CLG’s maternal grandparents. If JKM, MRG or the maternal grandparents were to predecease, their interests would be held on trust for CLG’s maternal half-siblings until they attained 25 years of age. The proposed will made no reference to the paternal half-siblings.
Discussion
As mentioned earlier, I was not satisfied that the proposed will accurately reflected the likely intentions of CLG if she had testamentary capacity. The proposed will left over 90 per cent of the estate to CLG’s maternal family. It is clear that JKM has been the primary caregiver and JKM’s parents have supported her by providing extensive support and assistance. However, I consider that CLG, knowing that her father loves her and cares about her wellbeing, would wish for him and his family to receive a larger portion of her estate. The opposing affidavit material on the amount of contact MRG had with CLG is irrelevant. It is highly probable that if CLG had capacity, she would wish to have a relationship with her father and her paternal half-siblings. Further, it is not unlikely that MRG will obtain some access rights in the near future. JKM has indicated that she is not opposed to the idea but it would need to be approached carefully with sensitivity to CLG’s condition.
In these circumstances I consider it likely that CLG would leave 20 per cent of her estate to MRG and if MRG was to predecease her, to her paternal half-siblings. In Re W, DJ, I agreed with the parties that a 25 per cent share to the father was appropriate. In that case the father had a greater involvement in the raising of the testator. However, the basic proposition remains the same. Children do not wish to get caught up in ill-feelings between their parents and would generally desire that any parent who loved them benefit from their estate.
At the hearing, I also expressed concern that should JKM predecease CLG, over 80 per cent of the residuary estate would be left to CLG’s maternal half-siblings, despite JKM’s parents taking over the role of primary caregiver. Ms Millard suggested that a change be made to the revised will whereby if JKM were to predecease CLG, half of JKM’s interest in the residuary estate would be left to CLG’s maternal grandparents and the other half to her maternal half-siblings in equal shares. The will annexed to these reasons contains that revision.
My final concern with the proposed will related to the gift of real property to JKM. In my view, CLG would take into consideration the compensation JKM received in respect of the personal injury action, and the fact that JKM receives the benefit of the family home and all living expenses. Having regard to these factors, and the fact that over time the family home may become a highly valuable asset in the context of the estate, I asked Mr Aiello to redraft the will such that JKM would not receive the family home as an outright gift, but rather be given the option to purchase the home using her entitlement from the residuary estate.
On 13 May 2015, prior to making an order authorising the making of the statutory will, I asked the parties whether they agreed with the revised terms of the draft will. Counsel for JKM expressed concern that the estate may diminish in value to such an extent that the family home became the only asset of value. This would result in a situation where JKM would need to pay out the entitlements of other beneficiaries, including MRG, in order to remain in the family home. I noted that this would be a material change in circumstance and would need to be dealt with by returning to Court to apply for the making of a codicil or further statutory will. No other issues were raised.
Conclusion
I am satisfied that the will annexed to these reasons accurately reflects CLG’s likely testamentary intentions if she had testamentary capacity. I believe it is desirable for an order to be granted authorising the making of the statutory will as intestacy should be avoided in these circumstances.
The will that I am prepared to direct the Registrar to sign divides the residuary estate as follows; 50 per cent to JKM, and if she predeceases, 25 per cent to CLG’s maternal grandparents and 25 per cent to CLG’s maternal half-siblings; 20 per cent to MRG, or his children if he predeceases; 10 per cent to CLG’s maternal grandparents; and 20 per cent to CLG’s maternal half-siblings in equal shares, to be held on trust until they attain 25 years of age.
I note that all parties, including CLG’s guardian ad litem, are comfortable with the division of the residuary estate but that JKM is not content with the option to purchase the family home in the alternative to the outright gift. It should be understood that if there is a material change in circumstances, such as the value of the estate greatly diminishing over CLG’s life, the parties could approach the Court again for further orders.
SCHEDULE
THIS IS THE LAST WILL of me CLG of [address] in the State of South Australia authorised by an Order dated the Thirteenth day of May 2015 made under Section 7 of the Wills Act 1936.
1.I REVOKE all former wills and testamentary dispositions previously made by me.
2.(a) I APPOINT PUBLIC TRUSTEE of 211 Victoria Square Adelaide in the said State to be the sole executor and trustee of this my will.
(b)I DECLARE that the expression "my trustee" in my will and in any and every codicil hereto shall mean the trustee or trustees for the time being whether original or substituted.
3.I GIVE the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) to the Women’s and Children’s Hospital Foundation Inc Adelaide South Australia AND I EXPRESS THE WISH that that sum be applied towards funding a home visiting programme in the rehabilitation unit of the Women’s and Children’s Hospital Adelaide and I DECLARE that the receipt of the treasurer or other officer of such Foundation shall be a full and sufficient discharge to my trustee who shall not be liable to see to the application of such sum.
4.(a) I GIVE all my books toys television sets computers compact disks digital video disks and jewellery to such of them my brother DOSM and my sister EGM as shall be living at my death and if both then in equal shares absolutely.
(b)IN the event that any brother or sister of mine shall be under the age of eighteen years at my death then I EMPOWER my trustee to deliver their share of the items referred to in sub-clause 4(a) to their parent or guardian for the time being and I DIRECT that the receipt of such parent or guardian shall be a full and sufficient discharge to my trustee who shall not be bound to see the application of the benefit hereby conferred.
5.SUBJECT to clause 4(a) of this my will I GIVE all my household furniture and effects my items of personal wear use and adornment and articles of domestic household use or ornament including any motor car to my mother JKM (hereinafter referred to as “my mother”) absolutely if she shall survive me by the period of twenty eight days but if she fails to survive me by that period then I DIRECT my trustee to hold the same upon the trusts declared by the provisions of clause 6(c) of this my will.
6.I GIVE all the rest of my estate to my trustee to pay thereout my debts and funeral and testamentary expenses and to hold the balance then remaining (“my residuary estate”) upon the following trusts namely:-
(a)As to FIFTY PER CENT (50%) thereof for my mother if she survives me by the period of twenty eight days but if she fails to survive me by that period then:-
(i) As to half thereof upon the trusts declared by the provisions of clause 6(c) of this my will; and
(ii) As to the remaining half thereof upon the trusts declared by the provisions of clause 6(d) of this my will.
(b)As to TWENTY PER CENT (20%) for my father MRG if he survives me but if he predeceases me then upon trust for such of them his children CJG and ACG and any further child or children of my father MRG hereinafter born as shall be living at my death and shall attain or shall have attained the age of twenty five years and if more than one then in equal shares absolutely.
(c)As to TWENTY PER CENT (20%) thereof for such of them my brother the said DOSM and my sister the said EGM and any further child or children of my mother JKM hereinafter born as shall be living at my death and shall attain or shall have attained the age of twenty five years and if more than one then in equal shares between them.
(d)As to the remaining TEN PER CENT (10%) thereof for such of them my grandmother GCAM and my grandfather BDM as shall be living at my death and if both then in equal shares absolutely PROVIDED HOWEVER if both of my said grandparents predecease me then upon the trust declared by the provisions of clause 6(c) of this my will.
7.IF any brother or sister of mine predeceases me or survives me but dies before attaining the age of twenty five years and in either event leaves a child or children who shall be living at my death or at the death of such deceased brother or sister of mine (which ever happens later) and shall attain or shall have attained the age of twenty five years then I DECLARE that the said child or children shall take and if more than one then in equal shares between them all the benefit share and interest in my estate which their his or her parent would have taken if such parent had survived me and attained the age of twenty five years.
8.IF no beneficiary lives to attain a vested interest in any part of my estate pursuant to the previous provisions of this my will then I DIRECT my trustee to hold such part of my estate UPON TRUST for such of them my aunts ARG and CMW and my uncle JDM as shall be living at my death and if more than one then in equal shares between them.
9.IF any of my said aunts or uncle predeceases me leaving a child or children who shall be living at my death and who shall attain or shall have attained the age of twenty five years then I DIRECT that such child or children shall take and if more than one then in equal shares all the benefit share and interest in my residuary estate which their his or her parent would have taken had such parent survived me.
10.I EMPOWER my trustee:-
(a)To apply the whole or any part of the contingent or vested share in the capital and income of my estate of any beneficiary of this my will under the age of twenty five years towards the maintenance education or advancement in life or generally for the benefit of such beneficiary and I further empower my trustee at their discretion to make such payments to the guardian for the time being of such beneficiary or to any person with whom such beneficiary may be living without being in any way answerable for the application thereof.
(b)At such time or times as my trustee shall think fit and in such manner and upon such terms and conditions as my trustee shall think fit to sell call in or convert into money any part or parts of my estate which shall not consist of money.
(c)To appropriate any part or parts of my estate in or towards the satisfaction of the share or interest of any beneficiary in my estate and for such purpose to determine the value or values of any asset or assets to be so appropriated.
(d)To retain in the same state of investment any property held by me at the date of my death notwithstanding that the same may be of a wasting speculative or reversionary nature and I declare that my trustee shall not be liable for any loss occasioned by retaining the said investments under the power herein contained.
(e)To determine in the absolute discretion of my trustee (in the event of my trustee disposing of or being deemed to have disposed of an asset) what part or parts of the capital or income of my trust estate will be resorted to in payment of any income tax liability flowing from the disposal or deemed disposal.
(f)From time to time to lease or let all or any part of the real or leasehold property forming part of my estate and remaining unsold either from year to year or for any period not exceeding three years at the best rent to be obtained therefor and in their absolute discretion to manage and superintend the management of such real or leasehold property and generally to deal therewith in a proper and due course of management as if beneficially entitled thereto.
11.In the event that following my death the trustee of any superannuation fund of which I am a member has a discretion as to the distribution of any superannuation held on my behalf then I EXPRESS the deepest desire that my superannuation is paid to the trustee of my Will to be distributed pursuant to the terms of my Will.
12.NOTWITHSTANDING the previous provisions of my will I DIRECT my trustee to offer to sell all of my estate and interest in my house property located at [insert] (“ my house property”) to my mother JKM (hereinafter called "the purchaser") if the purchaser shall be living at my death and I DECLARE that the following conditions shall apply to the said offer:-
(a)The price at which the house property shall be offered shall be equivalent to the value placed thereon by an independent valuer to be appointed by my trustee and such valuation is to be at the expense of my estate.
(b)The said offer shall be personal to the purchaser and shall lapse should she die before accepting the same.
(c)The offer shall be communicated in writing by my trustee to the purchaser as soon as conveniently may be after the property shall have been valued as aforesaid.
(d)The offer shall be accepted by the purchaser by notice in writing delivered to my trustee within one calendar month after the communication of the offer to the purchaser and in the event of the offer not being accepted by the purchaser within that period then the offer shall be deemed to have been declined.
(e)In the event of the purchaser accepting the offer then settlement shall be held three calendar months after the acceptance of the offer and at settlement the purchaser shall be entitled to vacant possession of the property.
(f)All rates and taxes and other outgoings shall be adjusted as at the date of settlement.
(g)All income (if any) derived in respect of the house property until the date of settlement shall belong to my estate.
(h)My trustee may (if my trustee thinks fit) permit the whole or any part of the purchase price of the house property to be met from the amount of the benefit to which the purchaser shall be entitled from my estate.
(i)The purchaser shall be entitled to purchase the property notwithstanding that the purchaser may be acting as an executor and trustee of this my will.
(j)If at the date of my death the purchaser shall be residing at the house property as the purchaser’s principal place of residence then the purchaser shall be entitled to continue to reside in the house property rent free until the said offer shall be declined by the purchaser or if accepted then until the date of the payment of the full purchase price for the property as determined by the provisions of clause 12(e) of this my will.
DATED the day of 2015
Registrar of
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