In the Matter of Marion Shirley Manley

The matter before the court involved an application for an order authorizing the making of a will on behalf of Marion Shirley Manley, who had lost testamentary capacity due to a stroke. The applicants were the only grandchildren of Mrs. Manley, who proposed to leave a legacy of $5,000 to the Royal Adelaide Hospital Research Fund and divide the residue equally between them. Mrs. Manley's last will, made in November 2004, left the whole of her estate to her husband, with a legacy of $5,000 to her daughter, Patricia Laidlaw, and the residue to the RAH Research Fund. However, Mrs. Manley's husband had died in August 2012, and Patricia had died in 2006. The applicants argued 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 submitted that there was no reason to think that, if Mrs. Manley presently possessed testamentary capacity, her intentions would have changed.

The court was required to decide whether the proposed will accurately reflected the likely intentions of Mrs. Manley if she had testamentary capacity at the time. The court had to consider the evidence presented by the applicants and the second defendant, as well as the circumstances in which Mrs. Manley made her will in November 2004. The court also had to consider the fact that Mrs. Manley and her husband enjoyed a close, consultative relationship and whether this meant that their testamentary intentions would mirror each other.

The court found that the evidence was 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 did not mean that their testamentary intentions would mirror each other. The plaintiff's application assumed that changed circumstances would lead to a change in testamentary intention, which was not the case. It was a serious step to make a will, and it was not the court's job to impose upon Mrs. Manley an intention that the court thought she ought to have had. The application required a finding that her likely intentions were those set out by the proposed will, which the court could not make on the evidence presented.

The court dismissed the proceedings and refused the application. The court found that the evidence was not sufficient to conclude that the proposed will accurately reflected the likely intentions of Mrs. Manley if she had testamentary capacity at the time. The court also found that the applicants had not shown that changed circumstances would lead to a change in testamentary intention. The court granted the applicants permission to proceed with the application but refused the application and dismissed the proceedings. The court would hear the parties as to costs.