In the Matter of Marion Shirley Manley - [2013] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Matter of MARION SHIRLEY MANLEY
[2013] SASC 98
Judgment of The Honourable Justice Stanley
27 June 2013
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Application pursuant to s 7 of the Wills Act 1936 (SA) for an order authorising the making of a will on behalf of a person lacking testamentary capacity – applicants are the only grandchildren of the testator (Mrs Manley) – the proposed will provides a legacy of $5,000 to the Royal Adelaide Hospital Research Fund (RAH Research Fund) and leaves the residue to be divided equally between the applicants.
Mrs Manley is 89 years of age and lost testamentary capacity due to a stroke suffered in February 2005 – Mrs Manley’s last will was made in November 2004, which left the whole of her estate to her husband should he survive her, if that did not occur the balance of her estate after the grant of a legacy of $5,000 to her daughter, Patricia Laidlaw, to the RAH Research Fund – Mrs Manley’s husband died in August 2012 – Patricia Laidlaw died in 2006 – Mrs Manley and her husband felt animosity towards Patricia’s husband, and as a result, made very little provision for Patricia in her will – Mr Manley’s will reflected this animosity also.
Subsequent to Mrs Manley losing testamentary capacity – Mr Manley altered his will to make further provision for Patricia.
The applicants submit that the proposed will would, on the balance of probabilities, reflect the likely testamentary intentions of Mrs Manley if she presently had testamentary capacity – the second defendant submits that based on the factors that motivated Mrs Manley to make her will in November 2004, there is no reason to think that, if she presently possessed testamentary capacity, her intentions would have changed.
Held: The plaintiffs have permission to proceed with the application – the application is refused and the proceedings are dismissed.
The evidence is not persuasive that Mrs Manley would have changed her testamentary wishes merely on the basis that Mr Manley had done so – the fact that Mrs and Mr Manley enjoyed a close, consultative relationship does not mean that their testamentary intentions would mirror each other – the plaintiff’s application assumes that changed circumstances would lead to a change in testamentary intention – this is not the case.
It is a serious step to make a will – it is not the court’s job to impose upon Mrs Manley an intention that the court thinks she ought to have had – the application requires a finding that her likely intentions are those set out by the proposed will.
Wills Act 1936 (SA) s 7; Health Services Charitable Gifts Act 2011 (SA) s 4, s 16; Probate Rules 2004 r 98.11; Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
Boulton v Sanders (2004) 9 VR 495; Banks v Goodfellow (1870) LR 5 QB 549; In the Will of Wilson (1897) 23 VLR 197; Timbury v Coffee (1941) 66 CLR 283; In the Matter of Brown [2009] SASC 345; In Re D(J) [1982] Ch 237; In Re Fenwick (2009) 76 NSWLR 22; Re Fletcher, ex parte Papaleo [2001] VSC 109; State Trustees Ltd v Hayden (2002) 4 VR 229; Hoffmann v Waters (2007) 98 SASR 500, discussed.
In the Matter of Rak [2009] SASC 228; Re C (a patient) [1991] 3 All ER 866, considered.

In the Matter of MARION SHIRLEY MANLEY
[2013] SASC 98
Testamentary Causes Jurisdiction
STANLEY J:
Introduction

This is an application pursuant to s 7 of the Wills Act 1936 (SA) (the Act), for an order authorising the making of a will.
The applicants in this matter, Steven Laidlaw and Nicole Tallowin, are the only grandchildren of the proposed testator, Marion Shirley Manley (“Mrs Manley”). They are the children of Mrs Manley’s only child, Patricia Laidlaw.
The defendants to the application are Mrs Manley and the Health Services Charitable Gifts Board (“the Board”).
The proposed will provides a legacy of $5,000 to the Royal Adelaide Hospital Research Fund (“RAH Research Fund”) and leaves the residue of the estate to be divided equally between the applicants.
The Board is established pursuant to the Health Services Charitable Gifts Act 2011 (SA) (“the HSCG Act”). Under the HSCG Act the governor may, by proclamation, declare an entity or part of an entity, engaged in the provision of a health service, to be a “public health entity” for the purposes of that Act. If an entity is so proclaimed, s 16 of the HSCG Act has effect. Section 16 applies in relation to certain gifts defined as “prescribed gifts”. “Prescribed gifts” include property given by deed, will or otherwise, to an executor, trustee or other person, in trust for a public health entity. Where a prescribed gift consists of property given by deed, will or otherwise, to an executor, trustee or other person in trust, the property must be transferred to the Board by the executor, trustee or other person. In accordance with s 4 of the HSCG Act, that part of the Central Adelaide Local Health Network Incorporated known as the Royal Adelaide Hospital was declared to be a public health entity by proclamation made on 30 June 2011.[1]
[1] South Australian Government Gazette, 30 June 2011, p 2871.
The last will made by Mrs Manley left the whole of her estate to her husband, should he survive her. If that did not occur, she left the balance of her estate, after the grant of a legacy of $5,000 to Patricia Laidlaw, to the RAH Research Fund. The RAH Research Fund is not a legal entity. Accordingly, on the death of Mrs Manley, by the terms of her current will, the Board is entitled to payment of the moneys gifted to the RAH Research Fund.
Section 7 of the Act empowers the Court to authorise the making of a will on behalf of a person who lacks testamentary capacity. Section 7 contemplates a two-stage process: an application for permission to proceed, and an application for an order authorising the making of a will. It is settled that leave to proceed in this context is a mechanism by which baseless applications are filtered.[2] As the affidavit material before the Court satisfied me that the application was not without merit, I ordered that the substantive application and the application for permission be heard together.
[2] Hoffmann v Waters (2007) 98 SASR 500 at 503 [10]; In the Matter of Brown [2009] SASC 345 at [4].
I made this order notwithstanding that the Public Advocate had not been served with the application. Pursuant to s 7(7) of the Act certain prescribed persons are entitled to appear and be heard on an application. The Public Advocate is one of those persons.[3] In the circumstances, I directed that the Public Advocate be served with a copy of the proceedings and a copy of the transcript of the hearing before me, and afforded the opportunity, should he so wish, to be heard and adduce evidence on the application. The Public Advocate indicated that he did not wish to call evidence or be heard in the matter.
[3] See s 7(7)(c) of the Wills Act 1936 (SA).
Background
Mrs Manley currently is 89 years of age. Until his death in August 2012, she was married to William John Manley. By all accounts, theirs was a close, happy, consultative and mutually dependent relationship.
In February 2005 Mrs Manley suffered a severe stroke. It left her considerably incapacitated. Specifically, Mrs Manley suffers from severe expressive dysphasia, memory impairment and significant cognitive defects, as a result of a middle cerebral artery occlusion. Since the stroke, she has been confined to an aged care facility.
As a result of her stroke, Mrs Manley is unable to communicate verbally or in writing.
For some time, Mrs Manley and her husband retained the firm of Scales & Partners as their solicitors. In 1989 they each made a will. Those wills cannot now be found.
In November 2004 they again retained the services of that firm for the purposes of making new wills. They were mirror wills. Each left the whole of their estate to the other. In the event that they did not survive each other, each made a specific bequest of $5,000 to their daughter, Patricia Laidlaw, and left the residue of their estate to the RAH Research Fund for the purposes of stroke and heart disease research.
The circumstances in which these wills were made is deposed to in the affidavit of Susan Bell sworn 29 April 2013.
At the time Ms Bell was a solicitor in the firm of Scales & Partners.
On 26 October 2004 she was telephoned by Mr Manley to discuss the drafting of new wills for him and his wife. Those initial instructions were to prepare wills for each of them that left the sum of $5,000 to their daughter Patricia, and the balance of their respective estates to the RAH. Mr Manley explained that Patricia had adequate financial means and that he and his wife had suffered from drunken verbal abuse from their son-in-law, Patricia’s husband. Mr Manley explained that he had suffered three strokes and had epilepsy, and that Mrs Manley had suffered a stroke, and they had both been treated at the RAH for these conditions.
On 28 October 2004 there was a further telephone conversation between Ms Bell and Mr Manley. Mr Manley told Ms Bell that Patricia was financially secure and well provided for, and that she was receiving dialysis and awaiting a transplant. He said that Patricia was very angry with them because of their attitude towards her husband.
There was a further telephone conversation between Mr Manley and Ms Bell on 1 November 2004 where he clarified that the gift to the RAH was to be directed to the RAH Research Fund for the purposes of stroke and heart disease research.
On the basis of those instructions, Ms Bell prepared draft wills for Mr and Mrs Manley, and forwarded those drafts under cover of a letter. In accordance with her instructions, Ms Bell included in the draft wills a paragraph to the effect that no further provision was being made for Patricia because of the differences that had occurred between her and her parents, that she was financially secure, and that due to Patricia’s health problems, in recent years, she had not been very supportive of each of them during difficult times. Most of this was later struck out, leaving only that no further provision was being made by Mr and Mrs Manley for Patricia because Patricia was financially secure. Ms Bell cannot recall now who initiated the striking out of those instructions from the wills.
By appointment, Ms Bell attended at the home of Mr and Mrs Manley on 4 November 2004 for the purposes of the execution of the will. She did so in the company of Ms Vanessa Jones, a receptionist at the firm.
On this occasion, Ms Bell was concerned that all her communications had been with Mr Manley, and she wanted to satisfy herself that those instructions accurately reflected the intentions of Mrs Manley. Accordingly, she took the opportunity when Mr Manley was not present in the room to ascertain that Mrs Manley’s instructions were the same as those of her husband. Ms Bell states that Mrs Manley agreed with the instructions that had previously been provided by Mr Manley over the telephone. Ms Bell observed, in that discussion, that it was unusual not to leave a child or grandchild anything in a will, particularly in a case such as this where there is only one daughter. She observed that this was sad, and that most mothers and daughters are close. Ms Bell recalls that Mrs Manley was vehement and definite about the deterioration of the relationship with her daughter, and Mrs Manley attributed this to her son-in-law. Mrs Manley said that her daughter had her own financial means. She told Ms Bell that the RAH had been “absolutely fantastic” when she and Mr Manley had been hospitalised there, and that in the recent past, she and Mr Manley had felt that they had received more support from staff and doctors at the RAH than from Patricia and her family.
During the course of this appointment, Ms Bell recalls that Mr and Mrs Manley told her that while they still had some contact with Patricia and her husband and children, the animosity they felt for their son-in-law was the reason they did not wish to leave their estates to Patricia. They considered that Patricia was being influenced by her husband and they did not wish their son-in-law to receive the benefit of their estates. They also instructed Ms Bell that they did not wish to leave their estates to their grandchildren because the grandchildren were under the influence of their father, and were supportive of their father. They said that their son-in-law was meddlesome, that he snooped around their house, that they did not trust him and that this had affected their relationship with him and Patricia. Mr Manley showed Ms Bell a hidden cavity that he had created in a wardrobe in their house which contained substantial sums of money, jewellery boxes and papers. Mr Manley told her that he and his wife used the cavity to conceal things from their son-in-law.
Ms Bell says in her affidavit that during this visit, she formed the impression, from what was said, that Mr and Mrs Manley were aware of Patricia’s deteriorating health, and this had precipitated their desire to make new wills as they wished to ensure their son-in-law could not receive any benefit from their estates, either through Patricia or through their grandchildren. Ms Bell was left with the impression, from what was said, that it was Mrs Manley who was driving the change to the couple’s wills.
On 4 April 2005, Mr Manley attended at the offices of Scales & Partners and gave Ms Bell instructions to prepare a new will for him. This occurred after Mrs Manley’s stroke, and after she had moved into a nursing home. On this occasion Mr Manley instructed Ms Bell to prepare a new will that left the whole of his estate to Mrs Manley, but in the event that she did not survive him, he left half of his estate to Patricia and half to the RAH Research Fund. He told Ms Bell that the RAH Research Fund would still get all but $5,000 of Mrs Manley’s estate. He mentioned that he was lonely and missing his wife, and had been having more contact with Patricia, and felt uncomfortable that he was leaving her only $5,000. He mentioned that Patricia’s health was deteriorating, and that he had not changed his view about his son-in-law. Neither on this occasion nor during the course of two earlier telephone calls from Mr Manley in that year when he referred to the fact that Mrs Manley had suffered a massive stroke, does Ms Bell recall Mr Manley blaming the RAH for the stroke suffered by Mrs Manley in February of that year, nor any reference to a mistake to her medication being the cause of the stroke.
Ms Bell prepared a will in accordance with these instructions.
There is some evidence that after Mrs Manley’s stroke, Patricia visited her mother at the nursing home, notwithstanding her own ill health.
Patricia Laidlaw died in 2006.
There is evidence also that following Mrs Manley’s stroke, a reconciliation occurred between Mr Manley and his son-in-law. From that time until Mr Manley’s death, it appears that Mr Laidlaw would take Mr Manley to medical and other appointments, and visit on a regular basis, including taking him out for meals. He also visited Mrs Manley, on what Steven Laidlaw described, as a regular basis.
In 2007, Mr Manley provided instructions to Rebecca Butler, a solicitor at Scales & Partners, for the making of a new will. Mr Manley gave instructions that he wished to ensure the ongoing care of his wife, make a bequest to the stroke unit of the RAH, and leave the remainder of his estate to his grandchildren. Ms Butler believes that on the advice of one of the partners in the firm, the bequest to the stroke unit was changed to the RAH Research Fund.
Ms Butler prepared a will in accordance with his instructions.
In accordance with the terms of his will made on 27 August 2007, he left the whole of his estate upon trust for his wife during her lifetime, and upon her death, he gave a legacy of $5,000 to the RAH Research Fund, and divided the residue of his estate equally between his grandchildren, Steven Laidlaw and Nicole Tallowin.
As I have noted, Mr Manley died in August 2012.
Upon his death, Mr Manley left an estate of approximately $210,000.
Presently Mrs Manley’s estate is valued at approximately $220,000.
Nicole Tallowin now resides in Spain. She did not give evidence in the proceedings.
Steven Laidlaw gave evidence. Following the death of his grandfather, he was appointed by an order of the Guardianship Board as the administrator of his grandmother’s affairs. He told the Court he has had a good relationship with his grandmother the whole of his life. He has lived all but five years of his life in Adelaide. He continues to visit her, although she can only communicate with him by smiling and squeezing his hand.
He gave evidence of his observations of the extremely close relationship that existed between his grandparents. He gave evidence that his grandparents did everything together. They were reasonably equal partners.
Apart from noting that there was a deterioration in the relationship between his mother and his grandparents during the last years of his mother’s life when she suffered from ill health, he is unable to explain the terms in which his grandmother made her will in November 2004. He thinks that perhaps she struggled to come to terms with her daughter’s illness. Otherwise, he cannot understand the basis of the friction which undoubtedly existed at that time.
After his grandmother’s stroke, he says his grandfather told him that he had done the wrong thing in relation to his will, and wanted to fix it. He felt guilty.
He suggested that his grandfather blamed the RAH for the second stroke suffered by Mrs Manley because of a mix up with her medication.
He gave evidence that he and his sister have had a good relationship with their father since 2004.
He gave evidence that he is financially secure, and that he understands that is the position of his sister as well.
Section 7 of the Wills Act 1936 (SA)
Before making an order under s 7(1) of the Act, the Court must be satisfied of three matters, namely:[4]
(a)that the proposed testator lacks testamentary capacity;
(b)that the proposed will would accurately reflect the likely intentions of the proposed testator if she had testamentary capacity; and
(c)it is reasonable in the circumstances that the order should be made.
[4] Wills Act 1936 (SA) s 7(3).
The first two conditions, namely, want of testamentary capacity and the accurate reflection of likely intentions, are matters of fact. The third condition, that of reasonableness, involves the exercise of curial discretion.[5]
[5] In the Matter of Rak [2009] SASC 288 at [12] citing with approval Boulton v Sanders (2004) 9 VR 495 at 499.
In considering an application under s 7(1), s 7(4) requires the Court to take into account certain matters, namely:
(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.

Section 7(12) defines testamentary capacity as “the capacity to make a will”. The note in the subsection provides:
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[6] a test for capacity was propounded 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. In In The Will of Wilson,[7] 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.”[8] These observations were cited with approval by Dixon J in Timbury v Coffee.[9]
[6] (1870) LR 5 QB 549.
[7] (1897) 23 VLR 197.
[8] (1897) 23 VLR 197 at 199.
[9] (1941) 66 CLR 277 at 283.
In finding whether the proposed will accurately reflects the likely intentions of the proposed testator, the law distinguishes between what I describe as “lost capacity” and “nil capacity” cases. That is a distinction between proposed testators who, on the one hand, once had testamentary capacity and then lost it, and on the other hand, proposed testators who never enjoyed testamentary capacity.
This is a “lost capacity” case. In In the Matter of Brown[10] 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.[11] It follows that the enquiry in a lost capacity case is far less problematic than that embarked upon in a nil capacity case. This view is consistent with the observations of Megarry VC in In Re D(J):[12]
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 in 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.
[10] [2009] SASC 345.
[11] [2009] SASC 345 at [34].
[12] [1982] Ch 237 at 244.
With respect to “lost capacity” cases, Palmer J of the Supreme Court of New South Wales, in In Re Fenwick[13] observed:[14]
The easiest case is a lost capacity case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for a statutory codicil or new will.
The Court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do. The task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?
The evidence is likely to be on affidavit, at least in the first instance. There will be some cases in which the affidavit evidence is so clear and convincing that the Court will be satisfied at once that the incapacitated person has indeed expressed the intention reflected in the proposed will or codicil. In other cases, the Court will bear in mind that evidence on affidavit is easily moulded by the drafter and may give an impression which the Court would not receive if it saw and heard the deponent in person. Accordingly, where the affidavit evidence taken as a whole is not clear and convincing that the incapacitated person has actually expressed the testamentary wish contained in the proposed will or codicil, the Court should avail itself of the power under s 21(b) and (c) to see and hear the incapacitated person to verify the wish ascribed in the affidavit evidence.
If the Court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person “if he or she had testamentary capacity”? This question may pose little difficulty if the person’s testamentary capacity is borderline, i.e., the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty – a not infrequent symptom of testamentary incapacity.
[Emphasis added]
[13] (2009) 76 NSWLR 22.
[14] (2009) 76 NSWLR 22 at 54 – 55 [154] – [157] cited with approval in In the Matter of Brown [2009] SASC 345 at [34].
The authorities emphasise that in exercising the powers conferred on the Court by s 7, the Court must not lose sight of the particular statutory test imposed by the section. This assumes some significance because of the difference between the text of s 7 and comparable legislation in England and New South Wales. Authorities from those jurisdictions must be treated with some caution because of the different terms of that legislation. More assistance can be found from Victorian authorities because the statutory test is in the same terms as s 7.
In Re Fletcher; ex parte Papaleo[15] Byrne J noted that the statutory emphasis on the likely intentions of the will maker under the Victorian Act is to be contrasted with the terminology of the UK statute which directs the inquiry as to the “persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered”, and that the power should be exercised with a regard to the desirability of making provision for the obligations of the patient including non-enforceable obligations. His Honour observed that this means the English courts have been ready to suppose a hypothetical set of circumstances in which the will maker is presumed to find themself with testamentary capacity, and then to fashion a disposition of their assets which the court considers the will maker might reasonably choose in these circumstances.[16] By contrast, in Victoria and South Australia, the court must be satisfied in the assumed circumstances as to the likely intentions of the will maker. This means there must be some indication as to what testamentary course it is probable that the will maker would have in mind, assuming testamentary capacity. Where there is a lack of testamentary capacity, the court is obliged to investigate what that intention might otherwise have been. Where the will maker once possessed testamentary capacity, this will often be inferred from evidence of what the will maker in a sufficiently lucid moment has said about their intention, and by assuming that the intention so disclosed holds good at the date of the order.
[15] [2001] VSC 109.
[16] [2001] VSC 109 at [20].
In State Trustees Ltd v Hayden[17] Mandie J reviewed the history of the making of the Victorian legislation. His Honour concluded that it had been derived from the South Australian Act. While his Honour considered that some assistance could be derived from English authorities, the express requirement in the Victorian Act that the proposed will “accurately reflects the likely intentions of the person, if he or she had testamentary capacity”, must be borne in mind at all times. His Honour said:[18]
In order to meet the requirements of s. 26(b) of the Wills Act 1997, the Court must be satisfied on the balance of probabilities that the proposed will or revocation accurately reflects the “likely” intentions of the person. The use of the word “accurately” indicates the need for the proposed will to reproduce the person’s intentions with a substantial degree of precision and exactitude. Nevertheless, it is the “likely” intentions of the person which are to be ascertained. Of necessity, the likely intentions must be derived from all such relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person from time to time in the past - but that is not to say, in a given case, that a court may not be able to conclude in the absence of much or any evidence concerning the particular person, that it is more likely than not that the person in the events which have occurred would have, as a normal decent person, reacted in a particular way to those events and formed the relevant intentions as a result.
[17] (2002) 4 VR 229.
[18] (2002) 4 VR 229 at 241 [39].
On the other hand, in Hoffmann v Waters[19] Debelle J considered State Trustees Ltd v Hayden as follows:[20]
Section 7 of the Wills Act does not include the expression “might have been expected to provide” as appears in the legislation in the United Kingdom. Notwithstanding the absence of that expression, it is manifestly clear that is an appropriate factor to consider. It is a factor which is directly relevant to the question whether the proposed will would accurately reflect the likely intention of the intended testator. I respectfully agree with Dodds-Stretton JA in Boulton v Sanders that care should be taken in applying the English decisions which are grounded on a different statutory provision. However, in many cases such as this, where the person who lacks testamentary capacity has never been able to comprehend what is involved in making a will, it will be especially difficult, if not quite realistic, for the court to be able to determine what his likely intentions are. In other cases, it might be less difficult to determine the likely intention of the person who lacks testamentary capacity. In State Trustees Ltd v Hayden (2002) 4 VR 229 Mandie J applied the principles in Re D (J) and in Re C. Each case will depend on its own facts and circumstances. In this present case, it is appropriate to apply the approach in England.
[Footnote omitted]
[19] (2007) 98 SASR 500.
[20] (2007) 98 SASR 500 at 507 [16].
As Debelle J noted, each case depends on its own facts and circumstances. In that case, his Honour considered it appropriate to apply the English approach. His Honour was dealing with a nil capacity case. In my view, it is implicit in the reasons of Debelle J in Hoffmann v Waters that the statutory test makes the application of the English approach more problematic in a lost capacity case.
The exercise of the power conferred on the Court is conditioned upon satisfaction of the three matters prescribed in s 7(3). It is not enough that the proposed testator lacks testamentary capacity. The Court is empowered to make a “statutory” will only where the terms of s 7(3)(b) and (c) are satisfied. This reflects the traditional reluctance to interfere in the free exercise of a testator’s testamentary disposition. The Victorian authorities emphasise that the Court will only exercise the power to make a will on behalf of a testator who lacks testamentary capacity where it can be satisfied that the proposed will accurately reflects the likely intentions of the proposed testator and it is otherwise reasonable in the circumstances that a new will should be made. It is not enough that the Court thinks the terms of the proposed will are reasonable. In Re Fletcher; ex parte Papaleo[21] Byrne J approved the dictum of Hoffmann J in Re C (a patient),[22] that the proposed will must reflect what the proposed testator might be expected to make, not, if it be different, what some reasonable person in the proposed testator’s position would have done. In Boulton v Sanders[23] Dodds-Streeton AJA said the legislative insistence on an accurate reflection of the likely intentions of the proposed testator precludes the authorisation of a will which no more probably reflects the likely intentions than any number of other possible wills. If the proposed will no more probably reflects “likely intentions” than a number of other possible dispositions, the requirements of s 7(3)(b) will not be satisfied.
[21] [2001] VSC 109 at [19].
[22] [1991] 3 All ER 866 at 869.
[23] (2004) 9 VR 495 at 515 [110] – [111].
Testamentary capacity
I have received two reports, dated 31 May 2012 and 13 November 2012, from Dr Elizabeth Ramsey, Mrs Manley’s treating general practitioner since 1983.
Dr Ramsey opines that Mrs Manley has suffered a major left-middle cerebral artery stroke which has left her with a major right-sided paralysis and expressive and receptive dysphasias. She is unable to communicate except by one word answers, which are not always accurate, and has significant cognitive and short-term memory deficits. In Dr Ramsey’s opinion, she has not had testamentary capacity since February 2005.
On 29 November 2012 Leonie Millard was appointed by the Registrar of Probates as representative for Mrs Manley in the within proceedings. On 5 February 2013 she attended on Mrs Manley at the aged care facility where she resides. She introduced herself to Mrs Manley. She attempted to explain to her that she had been appointed by the Court to represent her interests in the proceedings commenced by her grandson concerning her will. She asked Mrs Manley if she knew her grandson, and that Ms Millard understood he came to visit her from time to time. A staff member in attendance confirmed that Mrs Manley was visited from time to time by a man whose name was not known to that staff member. It is common ground between the parties that this visitor is the first plaintiff.
Ms Millard proceeded to tell Mrs Manley that her grandson had begun a court action which sought to make a new will for her, similar to the final will made by Mr Manley. Ms Millard informed Mrs Manley that her existing will provided a large benefit for the RAH. She asked her if she wanted to change her will.
Apart from occasionally nodding or shaking her head, Mrs Manley did not respond verbally or with any discernible form of body language throughout the interview. Ms Millard concluded that Mrs Manley did not understand the discussion concerning her will and any possible changes to the will. In the circumstances, she did not leave her with any documents relating to the proceedings. She considered that Mrs Manley did not understand the purpose of her visit, nor was she able to give consideration to persons or entities who should receive any benefit from her estate.[24]
[24] Affidavit of Leonie Evans Millard sworn 7 February 2013.
I am satisfied on the basis of Dr Ramsey’s opinion, which I received pursuant to r 98.11 of the Probate Rules 2004, and the evidence of Ms Millard, that Mrs Manley lacks testamentary capacity. I am further satisfied that this has been the position since February 2005 when she suffered the stroke.
I am further satisfied that there is no likelihood of Mrs Manley regaining testamentary capacity in the future.
Both matters were conceded by counsel for Mrs Manley.
Likely testamentary intentions
As I understood the position of the parties, they agreed that the Court could proceed on the basis that Mrs Manley, had she possessed testamentary capacity, would have reviewed her testamentary dispositions after the death of her husband. Where the parties differ is whether she would have altered the terms of the will she made in November 2004.
The plaintiffs submit that the Court should be satisfied, on the balance of probabilities, that the terms of the proposed will reflect the likely intentions of Mrs Manley, if she presently had testamentary capacity, because:
(a)The factors which motivated Mrs Manley to make the will in the terms that she did in 2004 would now be absent.
(b)Consequently in 2013 Mrs Manley would not seek to make a will in the terms in fact made by her in 2004.
(c)The important factor of importance which is different in 2013 compared to 2004 is that the primary recipient of the gifts under her 2004 will, namely her husband, is dead, and consequently Mrs Manley would have rethought the question of who should now be her primary beneficiary or beneficiaries.
(d)Following the death of her daughter Patricia, the proposed testatrix would not be motivated by a concern that by leaving her estate to her daughter Patricia that estate could end up – against her then wishes – in the hands of Patricia’s husband after the death of Patricia.
(e)In 2013 Mrs Manley would not be motivated by any animosity to her deceased daughter’s husband such that she would not wish to provide for her grandchildren following the death of her only daughter.
(f)Mrs Manley would seek advice and act on the advice given by a competent and experienced solicitor.
(g)The solicitor would advise Mrs Manley about the legitimate claims on her testamentary bounty of her grandchildren following the death of her only child Patricia.
(h)The solicitor would advise Mrs Manley about the entitlement of her grandchildren, as the only eligible applicants, to seek provision from her estate under the Inheritance (Family Provision) Act 1972 (SA), and would advise her about the legitimate claims on her testamentary bounty of her grandchildren following the death of her daughter.
(i)Mrs Manley would earlier have made a will at the same time and in the same terms as the will made by her husband when he made his last will in 2007.
(j)Mrs Manley and her husband were accustomed to collectively forming a view as to their testamentary intentions through discussions between them, and once formed then acting in the same manner in making their wills. It is therefore likely, on the balance of probabilities, that Mrs Manley, had she had testamentary capacity, would have made a will in the same terms as her husband in 2007.
(k)Mrs Manley would have had a proper appreciation by the time her husband made his will in 2007, and in any event by the present time, as to why there had been discord between herself and her daughter.
(l)Mrs Manley would have revised her thinking in that regard through the passage of years, and following the death of her daughter. Mrs Manley would then have given proper and serious consideration to the legitimate claims on her testamentary bounty of the next generation being her two grandchildren once her daughter had passed away.
(m)Mrs Manley would conclude in 2013 that her testamentary bounty is best expressed by leaving only a small legacy to the Royal Adelaide Hospital Research Fund, of the amount left by her husband in his last will, and that the remainder of her estate should be left to her grandchildren.
The second defendant submits that the Court should find on the evidence that there were three factors which motivated Mrs Manley to make the November 2004 will in the terms she did. Those factors were:
(a)she was confident her daughter Patricia was financially secure;
(b)she was grateful for the care and support she and her husband had received at the RAH; and
(c)she had fallen out with her daughter because of the intense animosity she felt towards her son-in-law.
The Board submits that there was clear evidence that Mrs Manley had actively turned her mind to the question of disinheriting her grandchildren, and had determined to do so because of their support of their father.

The Board submits that in these circumstances there is no reason to think that, if she presently possessed testamentary capacity, her intentions would have changed. There is no reason to think Mrs Manley would have a different view of the financial security of her grandchildren. Nor that her attitude to her son-in-law would have changed, given her antipathy towards him in 2004 was stronger than her husband, and that her attitude towards her grandchildren would still be informed by their support for their father. Nor is there any reason to consider that her attitude towards the RAH would have changed.
Counsel for Mrs Manley adopted a neutral position in relation to the application. He submits that the Court could find that after her husband’s death, if she had testamentary capacity, Mrs Manley would have made a new will. Whether she would have done so in the terms of the proposed will is open to question.
Turning to consider the matters the Court must take into account pursuant to s 7(4), I make the following findings:
(a)There is no evidence of the wishes of the proposed testator beyond the terms of her last will. Mrs Manley suffered the severe stroke which resulted in the loss of her testamentary capacity only three months after executing that will. There is no evidence of her expressing any contrary testamentary intention in the intervening three months.
(b)As I have found, there is no likelihood of Mrs Manley regaining testamentary capacity.
(c)The last will made by Mrs Manley left the whole of her estate to her husband, should he survive her. That did not occur. In these circumstances she has left the balance of her estate to the RAH Research Fund, after the grant of a legacy of $5,000 to her daughter.
(d)The only will in evidence previously made by Mrs Manley is her last will made in November 2004. The only beneficiaries under that will are the second defendant and the plaintiffs, given that her husband has predeceased her. The plaintiffs take under the will pursuant to s 36 of the Act given the legacy to their mother.
There is no person who would be entitled to receive any part of the estate on the basis of Mrs Manley dying intestate. There is no question of her dying intestate given the existence of the 2004 will.
While the plaintiffs might be persons who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of Mrs Manley when she dies, the evidence before the Court suggests that both of them are financially secure. While this subject was not explored in any depth at trial, the plaintiffs did not submit that they would be able to establish that either has been left without adequate provision for their proper maintenance, education or advancement in life.[25]
There is evidence that both the first plaintiff and his father have provided emotional support to Mrs Manley, as did her daughter prior to her death, during the period since she lost testamentary capacity.
(e)The only evidence of any gift for a charitable purpose Mrs Manley might reasonably be expected to give by a will is a gift to the second defendant.
(f)The estate of Mrs Manley is in the vicinity of $220,000 at the time of trial.
(g)I do not consider there is any other relevant matter to be considered.
[25] Inheritance (Family Provision) Act 1972 (SA) s 7(1)(b).
Having considered all of these matters, I am not satisfied that the proposed will accurately reflects the likely intentions of Mrs Manley on the assumption that she possessed testamentary capacity at this time.
While I accept that upon the death of her husband, Mrs Manley would have reviewed the testamentary provisions she had made, I am not satisfied that she would have made a new will in the terms of the proposed will.
The death of her husband would not inevitably have led her to make a new will. The death of her husband was merely the realisation of a contingency for which she had made provision in her last will. It does not follow that she would have wished to make any different testamentary provision than she had in 2004.
The difficulty for the plaintiffs and the Court is that there is no evidence relating to Mrs Manley’s wishes as to what testamentary provision she wanted to make, other than her last will, given that she lost testamentary capacity, and the capacity to communicate, only three months after making her last will.
The plaintiffs’ application is predicated upon the proposition that, in changed circumstances, Mrs Manley would have made a different testamentary disposition than occurred in 2004. They submit, that like their grandfather, Mrs Manley would have recognised that the terms of her 2004 will reflected a misjudgement or misunderstanding on her part concerning both her daughter and her son-in-law. Once she had recognised this error, she would have rectified the position by making a new will in the terms of her husband’s last will, leaving the vast bulk of her estate to her grandchildren, save and except for a small legacy in favour of the RAH Research Fund.
In my view, this proposition is speculative.
I am not satisfied that I can conclude, on the balance of probabilities, that if Mrs Manley now enjoyed testamentary capacity, she would make the same testamentary disposition as her late husband did in 2007. The evidence does not allow me to conclude that in 2007, let alone in 2013, Mrs Manley would have made the same testamentary disposition as he did, had Mrs Manley enjoyed testamentary capacity at that time.
First, the evidence does not persuade me that I can conclude Mr and Mrs Manley would have made mirror wills in 2007 had she enjoyed testamentary capacity at that time. The only evidence of them making mirror wills is in 2004. That is not a sound basis to find that they would have done so invariably. Second, the evidence does not persuade me that I can conclude that even if Mr and Mrs Manley would have made mirror wills in 2007, those wills would have been in the terms of the will actually made by Mr Manley in 2007. The plaintiffs’ submission is predicated upon the proposition that Mr and Mrs Manley enjoyed a close, consultative relationship whereby they made important decisions together. I can accept that. But it does not follow that in 2007, let alone in 2013, Mrs Manley’s testamentary intention, had she had capacity, would have mirrored the testamentary intention Mr Manley formed in 2007. Consideration of the very premise underpinning the plaintiffs’ submission reveals the flaw in this process of reasoning. It does not follow that Mrs Manley would have adopted whatever decision her husband made. On the contrary, had Mrs Manley enjoyed testamentary capacity in 2007, she may have influenced Mr Manley to make a will in different terms from the one he made in 2007, without the opportunity to confer with her. Again, this analysis only serves to highlight the speculative nature of this reasoning. I cannot know whether, had she had testamentary capacity in 2007, Mrs Manley would have made a will in the same terms as her husband did.
It may be that she would have. It may be that Mrs Manley would have made a will in 2007 which was in the same terms as the will made by Mr Manley at that time. It may be that she would have made a will in those terms now if she had testamentary capacity. Equally, she may not have changed the terms of the 2004 will at all. Her attitude towards her daughter might have changed. But it may not have. In any event, her daughter has been dead for seven years. Her attitude towards her son-in-law may have changed. But it may not have. I am not satisfied that the reasons which motivated her testamentary dispositions in 2004 have been proved to have been wrong with respect to her son-in-law. He did not give evidence. The first plaintiff is unable to explain the basis upon which his grandmother made her last will. That does not lead to the conclusion that her testamentary dispositions at that time were irrational. While her attitude to her son-in-law may have softened in the years since she made her last will, a matter that must remain unknown, that does not lead inevitably to the conclusion that she would have changed her will. This is particularly the case with respect to any legacy in favour of her grandchildren. Plainly, she made a conscious decision in 2004 against leaving them anything in her will. That decision appears to have been influenced by her attitude to their father. Her attitude towards leaving her estate, or the vast bulk of it, to her grandchildren, may have changed. On the other hand, it may not have. Her grandchildren are now financially secure. She may still have been disposed to leave a generous legacy to the RAH in 2013 for the same or similar reasons that motivated her to grant that legacy in favour of the RAH in 2004. I have no way of knowing. After she made her last will in 2004 there is no evidence of her communicating any different testamentary intention. I am unable to conclude that, if Mrs Manley now had testamentary capacity, it is likely she would intend to leave the vast bulk of her estate to her grandchildren, whatever view I might have as to the propriety or otherwise of that course. That is not the test I must apply.
The plaintiffs’ application assumes that changed circumstances would lead to a change in testamentary intention, but as Byrne J noted in Re Fletcher; ex parte Papaleo,[26] experience shows that people of sound mind do not alter their will even when subsequent events occur which change the effect of the existing testament.[27]
[26] [2001] VSC 109.
[27] [2001] VSC 109 at [22].
It is a serious step to make a will. It is not for me to impose upon Mrs Manley an intention which I think she might or ought to have. Section 7(3)(b) requires that I make a finding as to her supposed likely intentions. The application requires me to make a finding that her likely intentions are those set out in the proposed statutory will. I am unable to do so. I cannot be satisfied that the proposed will more probably reflects the likely intentions of Mrs Manley than any number of other possible wills.
Accordingly, I am relieved from having to conclude whether it is reasonable in the circumstances that the order sought by the plaintiff should be made. I should record, however, in case this matter goes further, that I would have been satisfied that it was reasonable in the circumstances that the order should have been made had I found that the proposed will accurately reflected the likely intentions of Mrs Manley if she had testamentary capacity at this time.
Conclusion
In the circumstances, I would give the plaintiffs permission to proceed with their application. The application is refused. I would dismiss the proceedings. I will hear the parties as to costs.