In the Matter of Jesse Colin Corner
[2015] SASC 100
•10 July 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Matter of JESSE COLIN CORNER
[2015] SASC 100
Judgment of The Honourable Justice Bampton
10 July 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
An application was made by the mother of the proposed testator pursuant to s 7 of the Wills Act 1936 (SA) for an order authorising the making of a will – the proposed testator is severely physically and intellectually disabled – the proposed testator’s parents separated in 1987 and he has not had contact with his father since 2002 – where no prior will has been made – whether permission to proceed with the application should be granted – whether the proposed testator lacks testamentary capacity – whether the proposed will would accurately reflect the likely intentions of the proposed testator if he had testamentary capacity – whether it is reasonable in all the circumstances that the order should be made.
Held:
1) Permission to proceed with the application.
2) The proposed testator lacks testamentary capacity.
3) The terms of the will proposed by the proposed testator’s litigation guardian reflect the likely intentions of the proposed testator.
4) It is reasonable in all the circumstances that an order be made authorising the making of a will in terms of the draft will exhibited to the litigation guardian’s written submissions.
Wills Act 1936 (SA) s 7, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Boulton v Sanders (2004) 9 VR 495; Bryant v Blake (2004) 237 LSJS 23; Hoffmann v Waters (2007) 98 SASR 500; In the Matter of Brown [2009] SASC 345; In the Matter of Shaun Arthur Pickles [2013] SASC 175; In The Will of Wilson (1897) 23 VLR 197; Re Fenwick (2009) 76 NSWLR 22; Timbury v Coffee (1941) 66 CLR 277, considered.
In the Matter of JESSE COLIN CORNER
[2015] SASC 100Testamentary Causes Jurisdiction
BAMPTON J. Alison Joy Karlovassitis (“Mrs Karlovassitis”) is the mother of Jesse Colin Corner (“Jesse”). Jesse is severely physically and intellectually disabled.
Mrs Karlovassitis seeks permission to bring an application pursuant to s 7 of the Wills Act 1936 (SA) (“the Act”) and, if permission is granted, an order authorising the making of a will on behalf of Jesse.
The application
Mrs Karlovassitis seeks orders that the Court approve and authorise the making of a will in the terms of the proposed will exhibited as AJK4 to her affidavit sworn on 15 December 2014.
The Acting Deputy Registrar of Probates ordered that Ms Pamela Jean McEwin (“Ms McEwin”) be appointed litigation guardian for Jesse.
In accordance with a direction of the Court, the Public Advocate was served with a copy of Mrs Karlovassitis’ summons and the affidavits filed in support of her application. By letter dated 15 May 2015, the office of the Public Advocate advised the Court that the Public Advocate did not wish to appear at the hearing of the matter. The letter stated that, on the basis of the materials provided, it appears likely to the Public Advocate that (a) Jesse lacks testamentary capacity, and (b) the proposed will would accurately reflect the likely intentions of Jesse if he had testamentary capacity.
Jesse’s father, Colin Edward Beck (“Mr Beck”), was served with the proceedings. In an email to Mrs Karlovassitis’ solicitors dated 7 April 2015, Mr Beck indicated that he opposed the application.
At a directions hearing before me on 20 May 2015, I ordered that Mr Beck be joined as a second defendant to the proceedings. I adjourned the matter allowing time for Jesse’s litigation guardian and Mr Beck to file responding affidavits to the application.
The hearing of the application
On 26 June 2015, I heard submissions from the parties supplementing their written submissions. Mrs Karlovassitis was represented by Mr Mead. Jesse was represented by his litigation guardian, Ms McEwin, and Mr Beck was represented by Ms Millard. The following affidavits were received into evidence:
·affidavits of Mrs Karlovassitis sworn 15 December 2014 (the December affidavit), 20 March 2015 and 11 June 2015;
·affidavits of Thomas William Mead sworn on 18 February 2015 and 14 April 2015;
·affidavit of Pamela Jean McEwin sworn on 11 June 2015; and
·affidavit of Colin Edward Beck sworn on 11 June 2015.
Background
In the December affidavit, Mrs Karlovassitis describes Jesse’s traumatic birth in Western Australia on 18 January 1986. Jesse suffered foetal distress for 12 hours during labour and was born with an APGAR score of 1 at one minute. He was placed on life support for over a week after developing seizures and was eventually discharged on 27 January 1986. Jesse is blind and unable to stand up. He suffers spastic diplegia, severe mental retardation and fits.[1]
[1] AJK1 Karlovassitis affidavit sworn 15 December 2014.
Jesse and Mrs Karlovassitis issued proceedings in Western Australia against the obstetrician managing Mrs Karlovassitis’ labour and delivery of Jesse and the hospital where he was born. The proceedings were settled in 1996 on confidential terms.
Jesse’s parents separated in 1987 and their marriage was dissolved on 1 November 1988.[2]
[2] AJK1 Karlovassitis affidavit sworn 20 March 2015.
Mr Beck re-married in 1991 and Mrs Karlovassitis remarried Parry Karlovassitis (“Mr Karlovassitis”) in 1997. Mr Beck has two further children with his second wife, Jarrod and Tayla. Mrs Karlovassitis and Mr Karlovassitis are the parents of Mia and Thomas.
Mrs Karlovassitis moved to Berri, South Australia, in 2002 with Jesse to be with Mr Karlovassitis. Jesse moved to live in supported accommodation in Craigmore, in June 2008. Mr Beck has continued to reside in Western Australia and has had no contact with Jesse since 2002.
In the December affidavit Mrs Karlovassitis deposed that she became Jesse’s main carer after the breakdown of her marriage and that Mr Beck has had minimal contact with Jesse since that time.
Mrs Karlovassitis stated that the expenses of Jesse living in the supported accommodation would have exhausted Jesse’s funds if it were not for her and Mr Karlovassitis’ efforts in preserving those funds. I accept that it was through the efforts of Mr and Mrs Karlovassitis that Jesse still has money available to him.
Mrs Karlovassitis deposed to Mr Karlovassitis providing a purpose built home in 2002 to accommodate Jesse and their expanding family. She stated that Mr Karlovassitis has spent an enormous amount of his own money in providing Jesse’s care and has never asked for any of Jesse’s money to provide for Jesse’s care. I accept that Mr Karlovassitis has provided care for Jesse over many years out of love for Mrs Karlovassitis and for Jesse and at a financial cost to himself.
In his affidavit sworn 11 June 2015, Mr Beck deposed to the circumstances surrounding the breakdown of his marriage to Mrs Karlovassitis, the level of financial care that he says he provided to Jesse and the level of contact he had with Jesse.
Mr Beck deposed to having cared for Jesse when he lived in Western Australia. He stated that when he was caring for Jesse his two younger children interacted with him. Mr Beck said that his contact with Jesse ceased when Jesse was moved to South Australia. It was submitted by Ms Millard that the geographical distance and Jesse’s disabilities make it very difficult for Mr Beck and his family to establish a relationship with him. Ms Millard submitted that had Jesse remained living in Western Australia there would have been ongoing contact with his father and his half siblings. Further Ms Millard suggested that had Jesse been of capacity it is likely electronic contact would have breached the distance.
There are many issues in dispute between Mrs Karlovassitis and Mr Beck regarding the breakdown of their relationship, about the relationship between Mr Beck and Jesse, and about the level of financial support provided by Mr Beck. It is not necessary for me to resolve these disputed matters as the Court’s focus must be on Jesse and determining the form of will which should be made for him pursuant to s 7of the Act.[3] [4]
Section 7 of the Wills Act 1936
[3] [2014] SASC 45.
[4] [2014] SASC 45.
The Court’s power prescribed by s 7 of the Act was discussed by Gray J in In the Matter of Shaun Arthur Pickles:[5]
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. The legislation contemplates a two-stage process: an application for permission to proceed and, upon that permission being granted, an application for an order authorising the will.[6] In proceedings such as this, where the application is not obviously without merit, it is appropriate that leave to proceed and the substantial application be heard concurrently.[7] The purpose of a grant of leave to proceed is to provide a mechanism by which baseless or unmeritorious applications are screened out.[8]
[5] [2013] SASC 175.
[6] See Bryant v Blake (2004) 237 LSJS 23, 28.
[7] Hoffmann v Waters (2007) 98 SASR 500, [10].
[8] Hoffmann v Waters (2007) 98 SASR 500, [10] citing Monger v Taylor [2000] VSC 304, [22]; see eg 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].
Permission to bring the application pursuant to s 7(1) of the Act
Section 7(1) of the Act provides that Mrs Karlovassitis must obtain the Court’s permission to bring this application.
In Hoffmann v Waters,[9] Debelle J stated the requirement for Court permission to apply is a process intended to screen out baseless or unmeritorious claims, particularly as to lack of testamentary capacity.[10]
[9] (2007) 98 SASR 500.
[10] (2007) 98 SASR 500, [10].
Having regard to Jesse’s lack of testamentary capacity (discussed later) and the desirability of avoiding intestacy, I am of the view that this application is not baseless and that permission for the application to proceed should be granted.
Pursuant to s 7(3) of the Act, to make an order authorising the making of a will under s 7(1), I must be satisfied that Jesse lacks testamentary capacity, that the proposed will would accurately reflect the likely intentions of Jesse if he had testamentary capacity, and it is reasonable in all the circumstances that the order should be made. Section 7(4) lists matters which I must take into account when determining whether an order should be made. They are:
(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.
Testamentary capacity
Testamentary capacity is defined in s 7(12) as “the capacity to make a will”. The note to that subsection provides:
The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
A test for capacity
In Banks v Goodfellow,[11] Cockburn CJ held that to have testamentary 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.[12] In In The Will of Wilson,[13] Hood J noted 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”.[14] Justice Dixon cited these observations with approval in Timbury v Coffee.[15]
[11] (1870) LR 5 QB 549.
[12] Banks v Goodfellow (1870) LR 5 QB 549, 565.
[13] (1897) 23 VLR 197.
[14] (1897) 23 VLR 197, 199.
[15] (1941) 66 CLR 277, 283.
The evidence regarding Jesse’s testamentary capacity
Ms McEwin, in her affidavit, deposed to having attended upon Jesse on 22 May 2015. Ms McEwin noted Jesse is severely disabled and was unable to provide any verbal response to any of her comments. However, she observed that Jesse became animated and smiled when she spoke about his mother, stepfather, and sister, Mia. Jesse did not give such a strong response when his stepbrother was mentioned, however, Ms McEwin stated this may be because she referred to Jesse’s brother as Tom rather than Thomas in error. Ms McEwin formed the opinion that Jesse lacks testamentary to make a will.
In his report dated 30 September 2014, which is exhibited to the December affidavit of Mrs Karlovassitis, Jesse’s general practitioner, Dr Boo Hin Khoo, stated that “Jesse suffers from a very severe form of Cerebral Palsy since birth”. Dr Khoo’s opinion is that Jesse does not have mental capacity to understand his estate and is incapable of making any decision about a will.[16]
[16] AJK3 Karlovassitis affidavit sworn 15 December 2014
The parties agree and it is clear on the evidence that Jesse lacks testamentary capacity and will not gain testamentary capacity.
Estate
A statement from Perpetual Trustee issued 17 January 2015 shows a total portfolio of $419,222.86 in Jesse’s name.[17] Mrs Karlovassitis deposes to $32,700 in a Westpac Bank account in her name that she regards as being held on trust for Jesse. Jesse’s estate would therefore total around $452,000.
[17] AJK2.
Likely testamentary intention
In determining this issue the law distinguishes between “lost capacity” and “nil capacity” cases.[18] In the case of a proposed testator who once had testamentary capacity and then lost it, they are said to have “lost capacity”. A matter concerning a proposed testator who has never had capacity is said to be a case of “nil capacity”. It is clear on the evidence in this matter that Jesse has never had capacity to make a will and has never made a will. In a nil capacity case it is harder to determine the proposed testator’s likely intention as there is no previous will to refer back to that could assist the Court to ascertain their likely intention.
[18] See In the Matter of Brown [2009] SASC 345.
On intestacy, Jesse’s estate would pass in equal shares to his parents; Mrs Karlovassitis and Mr Beck. It is undisputed that Mrs Karlovassitis has been much more involved in Jesse’s care than Mr Beck. It is acknowledged that she has made significant sacrifices for Jesse. The parties agree that Jesse’s likely intention would be that 100 per cent of his estate would go to his mother.
The dispute between the parties is confined to gifts in substitution of the primary gift to Mrs Karlovassitis.
The evidence of the relationships that Jesse has with his potential beneficiaries is of assistance in ascertaining Jesse’s likely testamentary intention. Apart for Mrs Karlovassitis the potential beneficiaries are Mr Beck, Jesse’s four half siblings[19] and his stepfather “who has cared for or provided emotional support” to him.[20]
[19] Wills Act 1936 (SA) s 7(4)(d)(ii).
[20] Wills Act 1936 (SA) s 7(4)(d)(iv).
Affidavit of Jesse’s litigation guardian
In her affidavit sworn 11 June 2015, Ms McEwin deposed to meeting with Mr Karlovassitis and Jesse at Jesse’s supported accommodation facility. Ms McEwin attempted conversation with Jesse who was unable to give any verbal response. She said that Jesse gave clear positive responses when his “mummy”, Mr Karlovassitis and his sister Mia were mentioned. She noted that it was clear from the way one of Jesse’s carers communicated with Mr Karlovassitis that he was a familiar visitor. She said that Mr Karlovassitis touched Jesse in an affectionate and familiar way and that it was clear to her that Mr Karlovassitis must have been a regular visitor.
The will proposed by Mrs Karlovassitis
The will proposed by Mrs Karlovassitis appoints Mr and Mrs Karlovassitis as executors and trustees, or if they die before Jesse or are unable or unwilling to act, Peter Robert Corner. Mr Corner is Jesse’s maternal uncle.
The proposed will leaves a cash legacy of $10,000 to Sandra Wilkinson of Perth, Western Australia. The residuary estate after payment of debts, funeral, memorial and testamentary expenses and any other duties is left to Mrs Karlovassitis for her own use and benefit absolutely.
If Mrs Karlovassitis predeceases Jesse, the estate is left to Mr Karlovassitis. If Mr Karlovassitis predeceases Jesse, the estate is left to Jesse’s sister, Mia Karlovassitis, and brother, Thomas Karlovassitis provided they survive Jesse and reach the age of 21 years.
During submissions, Mr Mead for Mrs Karlovassitis conceded that the cash legacy to Ms Wilkinson was not appropriate. It was also conceded that in the event that Mrs Karlovassitis predeceases Jesse, there ought to be some provision made for Mr Beck.
Mr Mead submitted that no more than 15 per cent of the residuary estate should be left for Mr Beck in substitution. If provision was to be made for Mr Beck’s two children by his second marriage, Mr Mead submitted that they and Mr Beck each receive no more than five per cent in substitution.
The will proposed by Jesse’s litigation guardian
Ms McEwin submitted that, although there is a relationship between Mr Karlovassitis and Jesse, she thought it unlikely that Jesse would wish for the whole of his estate to pass to Mr Karlovassitis in the event his mother’s death.
Ms McEwin pointed out that as Mr Karlovassitis “has cared for or provided emotional support for Jesse”, s 7(4)(d)(iv) of the Act provides that provision can be made for him out of the estate. Ms McEwin said it is her opinion that this is a case where Jesse as a statutory testator would likely wish to leave some of his estate to his stepfather.
Ms McEwin submitted that the whole of Jesse’s estate should pass to Mrs Karlovassitis on Jesse’s death. In the event Mrs Karlovassitis predecease Jesse Ms McEwin submitted the estate should be divided as follows:
·25 per cent to Mr Beck;
·25 per cent to Mr Karlovassitis;
·10 per cent to Jarrad Beck and Tayla Beck (shared if both still living);
·40 per cent to Thomas Karlovassitis and Mia Karlovassitis (shared if both still living).
Ms McEwin explained that the gift to Mr Beck and Mr Karlovassitis should be equal. It was her view that the balance of the estate by way of substitutionary gift should favour Jesse’s half siblings Thomas and Mia Karlovassitis. This is in recognition of their greater contact and relationship with Jesse and the fact that they were living in the same household for a period of time which would have affected their lifestyle and the availability of their mother to care for them.
Having regard to Mr Beck’s evidence, Ms McEwin noted that his children Jarrod and Tayla would have been 11 and eight in 2002 when they ceased contact with Jesse. Ms McEwin submitted, using the decision in Bryant v Bryant,[21] as a guide that 10 per cent of the estate be allocated to Jarrod and Tayla and 40 per cent to Thomas and Mia. Exhibited to Ms McEwin’s written submissions is a draft will in the terms she proposes.
[21] [2004] SASC 369, where no provision was made in the gift in substitution for a half-sister who was 20 years younger and had not cared for or provided emotional support to the proposed testator.
Mr Beck strongly supports the terms of the will proposed by Ms McEwin.
Conclusion
It is clear that Mr Beck has been an absent father and Mrs Karlovassitis has carried the psychological, physical, financial and emotional burden of caring for their severely disabled son. Mr Karlovassitis has supported his wife and provided a home suitable for Jesse at personal cost. The evidence before me demonstrates that all of the affection and care provided to Jesse since at least 2002 has been provided by his mother, Mr Karlovassitis, Thomas and Mia.
Despite the undisputed fact that Mr Beck has been an absent father I am satisfied that had Jesse not suffered intellectual disability it is likely he would have had a desire to know and make contact with his biological father and half siblings. It follows that had Jesse been of testamentary capacity it is likely he would have made some provision for his biological father and half siblings.
Jesse does not and will not have testamentary capacity. No previous will has been made by Jesse. The application brought by Mrs Karlovassitis is not baseless. I therefore grant permission to make the application pursuant to s 7(1) of the Act.
I am satisfied on the evidence that Jesse’s likely intention is that his estate pass wholly to his mother, Mrs Karlovassitis.
In the event that Mrs Karlovassitis predeceases Jesse, I am satisfied that Jesse would be likely to make provision for Mr Karlovassitis and for Mr Beck. I am also satisfied that Jesse would be likely to make some provision for his half siblings, Thomas and Mia Karlovassitis, and some small provision for Jarrad and Tayla Beck.
Having considered the submissions and the matters deposed to in the affidavits, I am satisfied that the will proposed by Ms McEwin reflects the likely intentions of Jesse on the assumption that he possessed testamentary capacity at this time.
I am therefore satisfied that, having regard to all the factors I must take into account prescribed by s 7(4) of the Act, it is reasonable in all the circumstances that the order be made authorising the making of a will in the terms of the draft will exhibited to the written submissions of Ms McEwin and reproduced in Appendix 1 to these reasons.
Appendix 1
THIS IS THE LAST WILL of me JESSE COLIN CORNER of 4 Alawa Court Craigmore in the State of South Australia.
1.I REVOKE all wills and testamentary dispositions previously made by me.
2.I APPOINT my mother ALISON JOY KARLOVASSITIS sole executor and trustee of this my will but if she:
(a)predeceases me; or
(b)survives me but is unwilling or unable to obtain a grant of probate of this my will; or
(c)survives me but dies without having obtained a grant of probate of this my will
then I APPOINT my uncle PETER ROBERT CORNER and my step‑father PARRY KARLOVASSITIS executors and trustees of my will in place of my said mother.
3.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.
4.I GIVE the whole of my estate to my trustee UPON TRUST to pay thereout my debts and funeral and testamentary expenses and to hold the balance then remaining (“my residuary estate”) UPON TRUST for my mother ALISON JOY KARLOVASSITIS absolutely if she survives me by the period of twenty eight days.
5.IF my mother fails to survive me by that period then I DIRECT my trustees to hold my residuary estate UPON TRUST as follows:
(a)As to twenty five per cent thereof for my father COLIN EDWARD BECK absolutely if he is living at my death.
(b)As to twenty five per cent thereof for my step-father PARRY KARLOVASSITIS absolutely if he is living at my death.
(c)As to ten per cent thereof for such of them my siblings JARRAD BECK and TAYLA BECK absolutely as shall be living at my death and if both then in equal shares absolutely.
(d)As to the remaining forty percent thereof for such of them siblings THOMAS KARLOVASSITIS and MIA KARLOVASSITIS as shall be living at my death as shall attain or shall have attained the age of twenty one years and if both then in equal shares absolutely.
6.IF either of them my said father or step-father 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 one years then I DIRECT that the said child or children shall take and if more than one then in equal shares all the share and interest in my residuary estate which their his or her father would have taken if he had survived me.
7.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 one years towards the maintenance education or advancement in life or generally for the benefit of such beneficiary and I further empower my trustee at his or her 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.
IN WITNESS
whereof I have hereunto set my hand this day
of Two Thousand and Fifteen.
SIGNED by the abovenamed JESSE COLIN )
CORNER the testator as and for his last will )
and testament in the presence of us both )
present at the same time who at his request in )
his presence and in the presence of each other )
have hereunto subscribed our names as )
witnesses )
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