In the Matter of Martina Pieternella De Jager
[2012] SASC 236
•21 December 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Matter of MARTINA PIETERNELLA DE JAGER
[2012] SASC 236
Judgment of The Honourable Justice Gray
21 December 2012
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Application for an order authorising the making of a will on behalf of Ms De Jager - Ms De Jager executed a will on 10 June 2005 in which she gave her whole estate to her partner at the time - Ms De Jager's relationship with that partner has ended - Ms De Jager suffers from multiple sclerosis and is unable to communicate - whether Ms De Jager lacks testamentary capacity - whether the proposed will would accurately reflect the likely intentions of Ms De Jager if she had testamentary capacity - whether it is reasonable in all the circumstances that an order authorising the making of a will on behalf of Ms De Jager should be made.
Held: Application granted - order made authorising the making of a will on behalf of Ms De Jager in accordance with the terms of the proposed will set out in a deed of settlement.
Wills Act 1936 (SA) s 7; Stamp Duties Act 1923 (SA) s 21, s 22 and s 27, referred to.
Griffin v Boardman [2009] SASC 315; Re Rak (2009) LSJS 263; Jeavons v Chapman (No 2) (2009) 260 LSJS 260; Hoffman v Waters (2007) 98 SASR 500; Bryant v Blake (2004) 237 LSJS 23; Public Trustee v Phillips [2004] SASC 142; Monger v Taylor [2000] VSC 304; Boulton v Sanders (2004) 9 VR 495; Re Fenwick [2009] NSWSC 530; Re Brown [2009] SASC 345; Banks v Goodfellow (1870) LR 5 QB 549; In the Will of Wilson (1897) 23 VLR 197; Timbury v Coffee (1941) 66 CLR 277; Hill v Hill [2001] VSC 83, considered.
In the Matter of MARTINA PIETERNELLA DE JAGER
[2012] SASC 236Testamentary Causes Jurisdiction
GRAY J.
On 27 June 2012, I made an order as a matter of some urgency under section 7 of the Wills Act 1936 (SA) authorising the making of a will on behalf of Martina Pieternella De Jager. These are my reasons for making that order.
Background
In 2001, Ms De Jager was diagnosed with multiple sclerosis.
On 10 June 2005, Ms De Jager executed a will. She appointed her partner at the time, Jodie Ann Bonney, as the executor, with substitution for Ms De Jager’s brother, Andrew John De Jager. By the will, the whole of the estate is left to Ms Bonney if she survives Ms De Jager for a period of 28 days. If Ms Bonney does not survive Ms De Jager for a period of 28 days, then Andrew De Jager is to receive one half of the estate and the other half is to be shared equally between two nephews and a niece of Ms Bonney.
After many years, the relationship between Ms De Jager and Ms Bonney came to an end. In 2006, an apparently amicable settlement was arrived at between them with respect to their home, which they owned as joint tenants. The terms of the settlement are set out in a presently unstamped deed.
At the time of making my orders, Ms De Jager was 59 years of age and her condition of multiple sclerosis had deteriorated. The evidence suggests that she could not communicate at all. Since April 2009, the Public Trustee has been the administrator of Ms De Jager’s estate pursuant to an order of the Guardianship Board.
On 15 March 2012, the Public Trustee issued a summons seeking an order that a will be made for Ms De Jager. A solicitor was appointed by the Registrar of Probates as guardian ad litem. On 20 April 2012, an application was made seeking, inter alia, that the orders in the original summons of 15 March 2012 be determined as a matter of urgency. Both summons were referred by the Deputy Registrar of Probates to me for determination.
The guardian ad litem, Pamela McEwin, did not support the application other than to the extent of the revocation of Ms De Jager’s will of 10 June 2005. Further, the application was initially contested by Ms Bonney. However, after several court appearances, Ms Bonney, Andrew De Jager, Pieter De Jager and the Public Trustee entered into a deed of settlement dated 14 June 2012. Clause 4 of the deed provides that the parties to the deed request this Court to make an order approving and authorising the making of a will on behalf of Ms De Jager in terms of the will attached to the deed. That will is in the following terms:
THIS IS THE LAST WILL AND TESTAMENT of me MARTINA PIETERNELLA DE JAGER of 6 Riveau Court Golden Grove in the State of South Australia Retired Program Co-ordinator, authorised by an order dated the day of 2012, made under section 7 of the Wills Act 1936.
1. I REVOKE all former Wills and Codicils made by me.
2. I APPOINT JODIE ANN BONNEY of … in the said State and my brother ANDREW JOHN De JAGER (hereinafter referred to as “my trustees”) to be the executors and trustees of this my Will.
3. I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate to my trustees upon trust to call in or sell and convert into money all such parts thereof as shall not consist of money with power to postpone such conversion for so long as my trustees shall think fit and pay thereout my funeral and testamentary expenses and debts and all the duties payable in respect of my estate without subsequent adjustment or apportionment of the said duties and to divide the residue of my estate into two equal parts and stand possessed of the said equal parts:-
(A) As to one (1) equal part, for the said JODIE ANN BONNEY absolutely provided she survives me for a period of 28 days BUT if she does not survive me for a period of 28 days then for such of them BRADLEY JOHN JONES, JARRAD MICHAEL JONES and ALICIA ANN JONES as survive me and attain the age of 18 years and if more than one then in equal shares between them; and
(B) As to the remaining equal part for my brother the said ANDREW JOHN De JAGER absolutely, BUT if he does not survive me then for such of them my brother PIETER De JAGER and my nephew JAI LES De JAGER (being the son of my brother the said Andrew John De Jager) as survive me and if both in equal shares.
4. NOTWITHSTANDING the foregoing trust for sale and conversion I SPECIFICALLY EMPOWER my trustees (without the consent of any beneficiary under this my Will) to appropriate any real estate in specie and/or personal estate in specie forming portion of my estate at the time of my death in full satisfaction or part satisfaction of a legacy or a share of my residuary estate provided that such real estate and/or personal estate has not been specifically devised and/or bequeathed under the provisions of this my Will.
5. If any of them the said BRADLEY JOHN JONES, JARRAD MICHAEL JONES, ALICIA ANN JONES or JAI LES DE JAGER shall not have attained full adult age at the time of my death I EMPOWER my trustees at their discretion to apply the whole or any part of my residuary estate to which any of them shall be entitled or contingently entitled both as to capital as well as income for or towards the maintenance education or other benefit of such beneficiary during his or her minority.
6. I DESIRE that my body be cremated.
[Emboldening in original.]
The terms of the above will are different to those in the will which was initially propounded. Notwithstanding the existence of the deed, it was necessary for this Court to be satisfied that it was appropriate to order the proposed statutory will be made for Ms De Jager.
The Application
Section 7 of the Wills Act, governs the making of a statutory will.[1] Section 7 relevantly provides:
[1] For other South Australian decisions which consider this section, see Griffin v Boardman [2009] SASC 315; Re Rak (2009) LSJS 263; Jeavons v Chapman (No 2) (2009) 260 LSJS 260; Hoffman v Waters (2007) 98 SASR 500; Bryant v Blake (2004) 237 LSJS 23; Public Trustee v Phillips [2004] SASC 142.
Will of person lacking testamentary capacity pursuant to permission of court
(1)The Court may, on application by any person made with the permission of the Court, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of a will, on behalf of a person who lacks testamentary capacity.
(2)An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3) Before making an order under this section, the Court must be satisfied that—
(a) the person lacks testamentary capacity; and
(b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c) it is reasonable in all the circumstances that the order should be made.
(4)In considering an application for an order under this section, the Court must take into account the following matters:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of—
(i) the beneficiaries under any will previously made by the person;
(ii)any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii)any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv)any other person who has cared for or provided emotional support to the person;
(e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f) the likely size of the estate;
(g) any other matter that the Court considers to be relevant.
(5) An order may be made under this section in relation to a minor.
(6) The Court is not bound by rules of evidence in proceedings under this section.
(7)The following persons are entitled to appear and be heard at proceedings under this section:
(a) the person in relation to whom the order is proposed to be made;
(b) a legal practitioner representing the person or, with the permission of the Court, some other person representing the person;
(c) the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993;
(d) the person's administrator, if one has been appointed under the Guardianship and Administration Act 1993;
(e) the person's guardian or enduring guardian, if one has been appointed under the Guardianship and Administration Act 1993;
(f) the person's manager, if one has been appointed under the Aged and Infirm Persons' Property Act 1940;
(g) the person's attorney, if one has been appointed under an enduring power of attorney;
(h) any other person who has, in the opinion of the Court, a proper interest in the matter.
(8)In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit.
(9)A will or instrument altering or revoking a will made pursuant to an order under this section must be executed as follows:
(a) it must be signed by the Registrar; and
(b) it must be sealed with the seal of the Court.
(10)The will or instrument altering or revoking a will must be retained by the Registrar and will be taken to have been deposited with the Registrar under section 13 of the Administration and Probate Act 1919.
(11)The will may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless the Court has made an order under this section authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order) or the person has acquired or regained testamentary capacity.
(12) In this section—
testamentary capacity means the capacity to make a will1.
Note—
1 The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
It is evident from the terms of section 7 that it 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: first, an application for permission to proceed; and second, 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 may be screened out.[2] In the within proceeding, I decided to address the permission and substantive application at the same time.
[2] Hoffmann v Waters (2007) 98 SASR 500, [10] citing Monger v Taylor [2000] VSC 304, [22], Boulton v Sanders (2004) 9 VR 495, [11] and Bryant v Blake (2004) 237 LSJS 23, [25]; see also, Re Fenwick [2009] NSWSC 530, [119]; Re Brown [2009] SASC 345, [4].
Before making an order under subsection 7(1) of the Wills Act, I had to be satisfied that Ms De Jager lacked testamentary capacity, that the proposed will would accurately reflect the likely intentions of Ms De Jager if she had testamentary capacity and that it was reasonable in all the circumstances that the order should be made.[3] I propose to address these criteria in turn. In doing so, I will take into account the considerations set out in subsection 7(4) of the Wills Act.
[3] See, Wills Act 1936 (SA) section 7(3).
Testamentary Capacity
Subsection 7(12) defines testamentary capacity as “the capacity to make a will”. The note in this subsection provides: “[t]he cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.”
In Banks v Goodfellow,[4] a test for capacity was advanced. Cockburn CJ 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.[5] 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”.[6] The foregoing observations were cited with approval by Dixon J in Timbury v Coffee.[7]
[4] Banks v Goodfellow (1870) LR 5 QB 549.
[5] Banks v Goodfellow (1870) LR 5 QB 549, 565.
[6] In the Will of Wilson (1897) 23 VLR 197, 199.
[7] Timbury v Coffee (1941) 66 CLR 277, 283.
I turn now to the evidence relevant to Ms De Jager’s testamentary capacity.
Medical Evidence from 2008
Elissa O’Connell, a neuropsychologist, examined Ms De Jager in April 2008 at the request of Dr Norton, a neurologist at the Modbury Hospital. Ms O’Connell administered several psychological tests, took a detailed history from Ms De Jager and also obtained information from Ms Bonney. Ms O’Connell reached the following conclusions in her report to Dr Norton:
Ms De Jager is a 55 year old woman with end-stage progressive multiple sclerosis. She was not particularly compliant with neuropsychological testing and assessment was incomplete in part because of this. Fatigue and visual and motor disabilities also limited assessment breadth. Neuropsychological screening revealed significant impairments in orientation, verbal attention and immediate memory, verbal reasoning and cognitive flexibility. Insight too was impaired. I could not identify any cognitive strengths. If the findings do represent her “normal” level of functioning then she is most definitely not in a position to be able to make important lifestyle decisions such as accommodation when there are life-threatening medical consequences to this. I do understand her presentation can fluctuate and this is likely to be due to multiple individual factors including variable mood, frustrations and personality, and possible medical co-morbities (eg. UTI’s). Provided acute medical factors are excluded (bloods, head CT) the findings would be consistent with the severe deterioration of her MS taken with the global effects allegedly seen on past imaging (? Solely attributable to MS) and depression.
It is my opinion, based on my assessment, history of others and observations by medical staff, that Ms De Jager now requires a legal Guardian to make decisions of importance in relation to her accommodation. She does not have the cognitive capacity to make reasoned and well informed decisions of this kind.
[Emphasis added.]
A final separation summary from the Modbury Hospital from mid-2008 indicated that Ms De Jager had been reviewed by a neuropsychologist who advised that Ms De Jager “has no testamentary capacity”.
Neurological Assessment by Dr Scamps
On 23 January 2012, Emma Scamps produced a report following a neuropsychological assessment of Ms De Jager. The report indicated that Ms De Jager lacks testamentary capacity and that she will not regain testamentary capacity. Dr Scamps decided that the absence of testamentary capacity is due to impaired cognition, and not solely due to physical and speech disabilities.
The report of Dr Scamps included the following observations relevant to Ms De Jager’s testamentary capacity:
I note Public Trustee representatives visited Ms. De Jager in August 2011 but in light of her severe dysarthria and impaired motor functions they were unable to conduct any reliable assessment of her testamentary capacity.
…
I visited Ms. De Jager at her residential care facility on the 13th January 2012 for the purpose of neuropsychological assessment of her testamentary capacity. … She had very limited purposeful movement but was able to move her hand to touch her face. She smiled and was able to make other facial expressions. She did not have any expressive language although at times appeared to try to mouth some words which were not intelligible. She seemed happy to participate in the interview and was compliant and relaxed throughout. Ms. De Jager was unable to participate in any formal neuropsychological assessment tasks given her motor and language impairments. …
…
Ms. De Jager was unable to participate in any formal neuropsychological assessment. …
…
In conclusion, I was unable to find an effective method of helping Ms. De Jager generate reliable yes/no responses to simple questions.
…
…Based on interview with Ms. Wallace [who had cared for Ms De Jager for approximately three years], it appears that there are no times when Ms De Jagar’s [sic] communication could be considered reliable.
Summary and Opinion
In summary, Ms. De Jager is a fifty-eight year old woman who was diagnosed with Multiple Sclerosis in 2001. Her condition has deteriorated such that she is not independent in any aspects of her daily care and her communication is significantly impaired.
… The Public Trustee was appointed full financial administrator for Ms. De Jager on the 9th April 2009 and representatives visited Ms. De Jager in August 2011 to determine whether she might have capacity to give instructions on a new Will. They were unable to conduct any reliable assessment of her testamentary capacity.
Ms. De Jager was assessed by Dr. Elissa O’Connell, Clinical Neuropsychologist, during her admission to Modbury Hospital in 2008. She was found to have significant cognitive impairment and lacked insight. It was recommended that she required a legal guardian to make decisions of importance in relation to her accommodation.
Ms. De Jager was referred for neuropsychological assessment of her testamentary capacity, which was conducted on the 13th January 2012.
Given Ms. De Jager’s significant dysarthria and motor disability, formal neuropsychological assessment tasks were unable to be administered. In order to determine whether a person has testamentary capacity, it is important to at least establish a reliable yes /no response. A number of methods were trialled, however no reliable method was found. Based on simple questions, her reliability was at about a 50% level. This finding was confirmed by the Service Manager of the residential care facility she lives in, who stated her communication was variable day to day and a communication board has not been reliably established with her. Based on interview with Ms. De Jager and with Ms. Wallace, I concluded that Ms. De Jager does not have a reliable yes/no response. In light of this, it is not possible to determine whether Ms. De Jager was able to understand:
-The nature and effect of making a Will;
-The extent of his or her estate;
-The claims of those who might expect to benefit from the testator’s Will (both those being included and those being excluded from that Will).
[Emboldening in original.]
Dr Scamps then provided the following opinions in response to questions which had been posed:
In my opinion, given Ms. De Jager does not have a reliable yes/no response, it is not possible to determine her understanding around her Will or estate. Her unreliable responses suggests that her cognition is impaired and that her communication difficulty is not solely a consequence of physical disability. Given Dr. O’Connell found Ms. De Jager had significant cognitive impairment in 2008, it is likely that this has continued to deteriorate. It is my opinion that Ms. De Jager does not have testamentary capacity.
…
Given Ms. De Jager’s lack of testamentary capacity is not solely due to physical disability, in my opinion there is no way to enable her to reliably communicate her wishes to a Will-maker.
…
Given Ms. De Jager has progressive Multiple Sclerosis, there is no possibility that she may regain testamentary capacity in the future. Unfortunately, her condition will only continue to deteriorate.
…
Given that Ms. De Jager is unable to reliably communicate a yes/no response, I do not believe she has the capacity to express a reliable view regarding her wishes and/or preferred beneficiaries.
…
[Emphasis added.]
The Evidence of Ms McEwin
On 30 March 2012, Ms McEwin attended on Ms De Jager. Ms McEwin deposed that Ms De Jager was unable to communicate verbally at all, but at times she seemed to become agitated whereupon she moved her left hand slightly so that it thumped her upper chest. Ms De Jager smiled occasionally.
In order to communicate with Ms De Jager, Ms McEwin asked her to blink once for yes and twice for no. Ms McEwin deposed that she did not seem to obtain consistent responses. Ms McEwin then tried using a communication board. The communication board was an A4 laminated piece of paper divided into grids with different large pictures and words underneath them for items, such as “TV” and “drink”. It had smaller separate disks, one with the word “yes” and one with the word “no”. These could be held up to Ms De Jager.
Ms McEwin deposed that there was no doubt that communication was extremely difficult. There were times when Ms De Jager made clear, deliberate and appropriate responses by blinking, but there were other times when there was no response at all after Ms McEwin asked Ms De Jager a question that could be answered either yes or no. Ms McEwin deposed that Ms De Jager could hear and that if Ms McEwin made a comment that was vaguely humorous, Ms De Jager would respond by smiling. This led Ms McEwin to believe that Ms De Jager could understand and process what Ms McEwin was saying, but either she lacked the control to be able to respond by blinking in a “yes/no” capacity or she was not interested.
Ms McEwin asked Ms De Jager whether she preferred not to think about her will and the response to that question was in the affirmative.
Ms De Jager resides in Leveda, a form of assisted accommodation. The manager of Leveda is Jean Smitt. She attended the start of the meeting with Ms McEwin and Ms De Jager. Another worker from Leveda, Barbara, also attended. Ms McEwin deposed that Jean and Barbara recounted that in carrying out their duties they were of the opinion that Ms De Jager is capable of understanding fully, but that she has difficulty is in communicating the response.
The Evidence of Dr Brownbill
In a letter dated 3 April 2012, Carol Brownbill, the general practitioner with the care of Ms De Jager, described Ms De Jager’s condition as multiple sclerosis with associated severe dementia. Dr Brownbill observed that Ms De Jager “has very little active movement and is fed through a tube into her stomach”.
The Evidence of Andrew De Jager
Andrew De Jager deposed that due to Ms De Jager’s speech impairment and loss of motor function, it is virtually impossible to communicate with her. He further deposed:
I visit [Ms De Jager] regularly at Leveda and based upon my own observations of her and interactions with her I believe she lacks testamentary capacity. After [Ms De Jager] initially lost the ability to speak I could tell from her facial expressions and reactions when speaking to her that she was following what I was saying. I believe that [Ms De Jager] still recognises me when I visit but I feel that she now only follows very simple conversation and jokes.
Conclusion – Testamentary Capacity
It is important to recall that the note to subsection 7(12) provides that “[t]he cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.”[8] To my mind, there is clear and unequivocal evidence that the effects of Ms De Jager’s multiple sclerosis have created a physical incapacity to communicate her testamentary intentions. This alone is sufficient to allow a conclusion that Ms De Jager lacks testamentary capacity.
[8] For a discussion of the significance of notes in a statute, see D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexisnexis Butterworths, 7th ed, 2011) [4.54].
There is conflicting evidence as to whether Ms De Jager lacks testamentary capacity due to mental incapacity. Staff members who are responsible for her care at Leveda believe that Ms De Jager is capable of understanding fully. However, the medical evidence establishes that Ms De Jager’s problems are not limited to her physical inhibitions. In light of my conclusions regarding Ms De Jager’s physical incapacity to communicate her testamentary intentions, it is unnecessary for me to finally resolve whether she also has mental incapacity. At the very least, the medical and psychological evidence directly supports my conclusion that Ms De Jager lacks testamentary capacity due to her multiple sclerosis. I find that as a result of the deteriorating nature of this illness, Ms De Jager will not regain testamentary capacity.
Likely Testamentary Intentions
As earlier mentioned, under section 7(3) of the Wills Act, this Court must be satisfied that the proposed will accurately reflects the likely intentions of the testator, if that person had testamentary capacity. For that reason, evidence relating to the wishes of the testator should be put to the Court where such evidence is available. However, the Court should approach this evidence with caution, as there is an inherent risk of the proposed testator being the subject of influence.[9]
[9] See Hill v Hill [2001] VSC 83, where Byrne J commented on the novel jurisdiction of the court in such matters, and the importance of recognising the risk of influence on the proposed testator; see also Re Fenwick [2009] NSWSC 530, [130].
In Re Brown, I reviewed many of the authorities which address this requirement.[10] I adopt and apply my observations and in particular the following:[11]
… a critical distinction should be drawn between nil-capacity and lost capacity cases. This 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. It follows that the enquiry in the present proceedings 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 when 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 of 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.
…
The circumstances of the present proceeding fall within the category of a “lost capacity” case.
[10] Re Brown [2009] SASC 345.
[11] Re Brown [2009] SASC 345, [34].
[12] Re D(J) [1982] Ch 237 at 244 as cited in Griffin v Boardman [2009] SASC 315 at [55] (White J).
As noted above, in the within proceeding, I must consider whether the proposed will would accurately reflect Ms De Jager’s likely intentions if she had testamentary capacity. A further question then arises — is it reasonable in all the circumstances to make the order. In order to address these questions, it is necessary to describe Ms De Jager’s relationships with those who would benefit under her will of 10 June 2005 and with those who would benefit under the proposed will set out in the deed of settlement.
Ms De Jager’s Relationship with Ms Bonney
In about 1988, Ms De Jager met Ms Bonney. Later in 1988, Ms Bonney moved in with Ms De Jager and lived with her in a lesbian relationship in Kings Park. They lived together in Kings Park for about one year before moving to Torrens Park where they resided for five years. They then resided in Redwood Park for six months and with Ms Bonney’s parents in Wynn Vale for 18 months. While they lived together, Ms De Jager and Ms Bonney maintained their own financial accounts, but contributed equally to the costs of day-to-day expenses.
In about May 2001, Ms De Jager and Ms Bonney purchased a house in Modbury Heights. They continued to contribute to the expenses on an equal basis. They opened a joint bank account from which the mortgage for the house was paid.
In late 2001, Ms De Jager was diagnosed with multiple sclerosis. Ms Bonney deposed that Ms De Jager took the news of having multiple sclerosis to heart and at times chose to shut herself away from Ms Bonney and anyone else who knew her. As Ms De Jager’s health gradually deteriorated, Ms Bonney spent more time looking after her.
In 2003, Ms De Jager retired as her mobility was deteriorating. Ms Bonney deposed that she drove Ms De Jager to her appointments for medical treatment and that she did the cooking, housekeeping and shopping. After some time, Ms De Jager received assistance from a carer for approximately three hours per week. Ms Bonney deposed that Ms De Jager would often fall over and have spasms. On these occasions, Ms Bonney was required to provide assistance.
In 2005, Ms De Jager and Ms Bonney ended their relationship as lesbian partners. Ms Bonney described their relationship at that time as “best friends”. They continued to reside together.
Ms De Jager asked Ms Bonney to be her legal guardian. Ms Bonney deposed that Ms De Jager had told her that she did not want her brothers involved in managing her affairs because she did not trust them. In about 2005, Ms Bonney was appointed as Ms De Jager’s guardian.
In December 2006, Ms Bonney was appointed Ms De Jager’s enduring power of attorney. Ms Bonney described her interactions with Ms De Jager in the following terms:
In addition to looking after her I was working and the workload was becoming too much to handle and I began negotiating with Disability SA and [Ms De Jager’s] doctor, Dr Karen Brownbill to assist obtaining additional care eventually arranging for her to be to be [sic] put into full-time care.
The application for guardianship was again arranged through White Berman, solicitors.
Following my appointment as guardian I also decided to seek a section 32 application due to her behaviour as she was becoming very disorientated and aggressive. In particular she was refusing to attend appointments.
In 2007 I was granted respite care in lots of 4 weeks throughout the year.
During these periods [Ms De Jager] and I had a daily attendance by carers who were there for 3 hours per day to assist her with breakfast, lunch and dinner.
In addition she had Vital Call (an emergency calling service) which she used frequently. She began abusing the system daily as her condition deteriorated.
In March 2008 [Ms De Jager] was hospitalised where she remained until 1 July 2008 after which time Disability SA was able to arrange for her full time care.
Following her move into Leveda Accommodation and Community Support Service … in July 2008 I visited her on a weekly basis every week for at least the first 3 to 4 months and after that the number of visits diminished.
The reasons for the diminishing visits were that:-
She was mentally incompetent and I was unable to communicate properly which was upsetting for her; and
I have elderly parents I was also looking after as I was their only child.
On the occasions I did visit her, she would indicate that she wanted to go home however I told her that I was unable to cope with her in her current state.
I saw no reason to notify her brothers of her move into Leveda as they had never taken any interest in her and I was still her primary contact and carer.
As noted earlier, Ms De Jager and Ms Bonney lived together first as lesbians and then, as Ms De Jager’s illness developed, as friends. Their time together extended for almost 20 years. This was not a transient relationship lacking in depth. To the contrary, it was a deep, long term relationship involving love, understanding and care. It is unsurprising that the stresses associated with serious illness would lead to tensions and unhappiness resulting in separation.
In September 2007, Ms Bonney entered into a relationship with a new partner. The frequency with which Ms Bonney visited Ms De Jager reduced once she had entered into a new relationship because she did not want to cause problems with her current partner and she also did not want to upset Ms De Jager. Ms Bonney last visited Ms De Jager at Christmas 2011 and also rang her on 17 February 2012 for her birthday.
Ms De Jager’s Relationship with Andrew De Jager
Ms De Jager has three brothers, Antonios De Jager, Pieter De Jager and Andrew De Jager. Andrew De Jager was the youngest of the four children and was the only child living in his parents’ home during his childhood. In the early 1970s, Ms De Jager moved back into her parents’ home while she returned to high school as a mature aged student. She wanted to complete her secondary school education to allow her to then undertake training to become a nurse. During that time, both Andrew De Jager and Ms De Jager attended Elizabeth West High School. Andrew De Jager deposed that Ms De Jager would drive him to school and that he developed a close relationship with her. He also deposed that Ms De Jager would take him to the movies and to the beach and that she bought him his first car.
Ms De Jager moved out of her parents’ home in 1977 to a rental property in Unley. At this time, Andrew De Jager was 15 years old. After Andrew De Jager left school, he lived with Ms De Jager and her partner in Unley for about six weeks while he found his own accommodation. Andrew De Jager deposed that after he moved out of the rental property in Unley, he still visited Ms De Jager and her partner regularly.
Andrew De Jager deposed that he continued to enjoy a close relationship with Ms De Jager throughout his adult life and that he said that he had always visited her regularly. Andrew De Jager subsequently deposed that he visited Ms De Jager frequently at her Kings Park residence and also at her Torrens Park residence. Andrew De Jager did not visit Ms De Jager at her Redwood Park residence or while she was living with Ms Bonney’s parents.
Andrew De Jager deposed that he did not know that Ms De Jager had been hospitalised or institutionalised. He and his brother, Pieter De Jager, made frequent visits to Ms De Jager’s residence at Modbury Heights. Andrew De Jager left his business cards and contact details for someone at the house to contact him as he had lost Ms Bonney’s mobile number.
When Andrew De Jager and Pieter De Jager found out that Ms De Jager was in Leveda, they arranged to visit her within several days. Andrew De Jager deposed that Ms De Jager was overjoyed to see them and her first words were “[a]bout bloody time”. Andrew De Jager then started visiting Ms De Jager once per fortnight. Andrew De Jager’s wife and his son, Jai, often accompanied him on these visits. Pieter De Jager usually accompanied Andrew De Jager monthly. More recently, as Ms De Jager’s health has been deteriorating, Andrew De Jager deposed that he has been visiting her weekly.
Ms Bonney gave evidence that Andrew De Jager only started visiting Ms De Jager once she was in full time care in Leveda. She deposed that Andrew De Jager and Pieter De Jager had once stated to her that Ms De Jager was Ms Bonney’s problem, not Andrew De Jager and Pieter De Jager’s. Ms Bonney further deposed that Andrew De Jager and Pieter De Jager had only reacquainted themselves with Ms De Jager after she became mentally incompetent. This was disputed by Andrew De Jager. Andrew De Jager also disputed Ms Bonney’s deposition that he and Pieter De Jager referred to Ms De Jager as “any body’s problem”. Andrew De Jager deposed that before Ms De Jager was hospitalised, he had spoken to Ms Bonney in great detail as to Ms De Jager’s future as Ms De Jager had become violent. Ms Bonney had asked Andrew De Jager if he would attend an assessment appointment to have Ms De Jager put into full time care. Andrew De Jager agreed to attend that appointment but lost his phone and Ms Bonney’s contact details. He presumed that the process had not progressed. There was no communication for “quite a few months”. As noted above, Andrew De Jager attempted to make contact by visiting the Modbury Heights residence and leaving his contact details. Andrew De Jager did not receive any communication until he was informed by Ms De Jager’s friend that Ms De Jager had been in hospital for four months and had been in full time care at Leveda.
Further, Ms Bonney deposed that the only time that Andrew De Jager showed any interest in Ms De Jager’s care “was early in the piece when she was diagnosed with [multiple sclerosis]. He visited her at the Modbury Heights house but [Ms De Jager] verbally abused him.”
During the 20 years that Ms Bonney resided with Ms De Jager, Ms Bonney estimated seeing Ms De Jager’s brothers less than one day out of every three months or so and occasionally at special events.
When Ms De Jager provided instructions for her will of 10 June 2005, Ms Bonney deposed that Ms De Jager had informed the two solicitors who were taking instructions that she did not want her brothers to receive any benefit under the will. Apparently, Ms De Jager was adamant about this. Following preparation and execution of the will, Ms Bonney deposed that Ms De Jager again informed her that she did not want her brothers to have any of her estate. To the contrary, Andrew De Jager deposed that Ms De Jager had requested that he be included in the “current will”.
Ms De Jager’s Relationship with Pieter De Jager
Andrew De Jager deposed that Pieter De Jager and Ms De Jager did not have a particularly close relationship for most of their adult lives. Pieter De Jager is almost 10 years older than Ms De Jager and Andrew De Jager believes that Pieter De Jager and Ms De Jager did not spend much time together after the family immigrated to Australia from Holland. The family’s immigration occurred before Andrew De Jager was born.
Andrew De Jager deposed that while Ms De Jager was still a young woman, she disclosed that she was a lesbian and she then distanced herself from the family. Andrew De Jager believes that this resulted in Ms De Jager having minimal contact with Pieter De Jager and Antonios De Jager for many years, although he is not of the view that they held any animosity towards her because of her sexuality.
Ms De Jager’s Relationship with Antonios De Jager
In 2003, following the death of their father, Ms De Jager, Andrew De Jager, Pieter De Jager and Antonios De Jager sorted through their parents’ possessions to remove them from the house. Apparently, an argument occurred in relation to the disposal of some items which Antonios De Jager considered to be valuable. Andrew De Jager deposed that shortly after the argument, Antonios De Jager apparently telephoned Pieter De Jager and told Pieter De Jager that he, Antonios De Jager, had disowned Ms De Jager, Andrew De Jager and Pieter De Jager as his family and wanted nothing more to do with them. Andrew De Jager deposed that he, Ms De Jager and Pieter De Jager had had virtually no contact with Antonios De Jager in over 10 years. Similarly, Ms Bonney deposed that Ms De Jager has been estranged from Antonios De Jager for almost 10 years. The staff at Leveda informed Andrew De Jager that Antonios De Jager had tried to visit Ms De Jager at Leveda several years ago and that she had refused to see him.
Ms De Jager’s Relationship with Ms Bonney’s Niece and Nephews
As earlier mentioned, two of Ms Bonney’s nephews and one niece are beneficiaries under Ms De Jager’s will of 10 June 2005. The staff at Leveda informed Andrew De Jager that Ms Bonney’s nephews and niece have never visited Ms De Jager at Leveda. However, as these persons are named in Ms Bonney’s will of 10 June 2005, it may be inferred that she had contact with them during her relationship with Ms Bonney.
Ms De Jager’s Nieces and Nephews
Ms De Jager has eight nieces and nephews ranging from 47 years old to eight years old. Only the eight year old, Jai, has been in recent contact with Ms De Jager. Jai usually accompanies Andrew De Jager when he visits Leveda and Ms De Jager apparently always shows affection towards Jai to the extent to which her physical limitations allow her. Andrew De Jager deposed that Ms De Jager has had minimal contact with her other nieces and nephews and that none have visited her at Leveda.
Ms Bonney deposed that it is doubtful that Ms De Jager knows who her nephew Jai is as she has become mentally incompetent.
Conclusion – Likely Testamentary Intentions
Before setting out my conclusions in respect of Ms De Jager’s likely testamentary intentions, it is worth noting the extent of her assets. The only asset of significance owned by Ms De Jager is her interest in a house property at Modbury Heights. The Public Trustee valued her estate in March 2012 at about $250,000.00.
I recognise the possibility that visits may be made to an ill and mentally unsound person with a view to obtaining money from their estate following death. In reviewing the potential claims on the estate of Ms De Jager which could be made upon her death, I have been careful to assess the evidence before the Court bearing this consideration in mind.
Ms Bonney, the sole beneficiary under the 10 June 2005 will, receives a half interest in the estate of Ms De Jager under the proposed will as set out in the deed of settlement. In my view, it is likely that Ms De Jager would not want Ms Bonney to be the sole beneficiary named her will as their relationship has ended and Ms De Jager has had much reduced contact with Ms Bonney in recent times. However, as earlier discussed, the evidence before the Court suggests that Ms De Jager and Ms Bonney were in a loving and caring relationship for almost 20 years. It might be expected in these circumstances that Ms De Jager would wish to benefit Ms Bonney. However, in view of their changed circumstances, it might be expected that Ms De Jager would also wish to benefit others. I am of the opinion, therefore, that it is appropriate for Ms Bonney to receive a half interest in the estate as, in my view, this would reflect Ms De Jager’s likely intentions if she had testamentary capacity.
The evidence suggests that Ms De Jager had a close relationship with Andrew De Jager during his teenage years and that they have maintained a level of contact for most of Andrew De Jager’s adulthood. In recent times, Andrew De Jager has regularly visited Ms De Jager. It is not without relevance that Andrew De Jager was a substitute beneficiary in Ms De Jager’s 2005 will and was the only one of her siblings who benefited in that will. In my view, in recent times, Andrew De Jager has probably had the most contact with Ms De Jager of any of her visitors and it is likely that she would want to provide a significant benefit to Andrew De Jager in her will. The provision of one half of the estate seems to appropriately reflect Ms De Jager’s likely intention.
Ms De Jager had little contact with her brother Pieter De Jager for many years, although he has been visiting her while she has been severely disabled. The comfort and assistance that Pieter De Jager has provided would appear to be significantly less than that provided by Andrew De Jager. Accordingly, it is appropriate for Pieter De Jager to be recognised as a substitute beneficiary to his brother Andrew De Jager.
As discussed above, Ms De Jager has contact with her nephew Jai. He visits Ms De Jager with his father Andrew De Jager and it might be expected that Ms De Jager receives some comfort through having a young visitor. The evidence suggests that she shows warmth and affection to Jai. In these circumstances, I consider it appropriate that he be named as a substitute beneficiary along with his uncle, Pieter De Jager.
Ms De Jager has had contact with a niece and two nephews of Ms Bonney. This may be readily inferred as they were named, along with Andrew De Jager, as substitute beneficiaries to Ms Bonney in Ms De Jager’s will of 10 June 2005. In these circumstances, I consider it appropriate that they be named as substitute beneficiaries to Ms Bonney’s interest in the proposed statutory will as set out in the deed of settlement.
Ms De Jager has had virtually no contact with Antonios De Jager for about 10 years and, importantly, refused to see him when he came to visit her at Leveda. Further, the evidence suggests that, apart from Jai, Ms De Jager does not have a close relationship with any of her other nieces and nephews and that none of them have visited her while she has been residing at Leveda. Further, Ms De Jager did not provide for those nieces and nephews in her will of 10 June 2005. Antonios De Jager was served with the papers to the present proceeding. However, he advised the Court that he did not wish to be a party to the action. In my view, it is unlikely that if Ms De Jager had testamentary capacity, she would provide for Antonios De Jager or any of her nieces and nephews, other than Jai, in her will.
A charity worth mentioning is the Multiple Sclerosis Society. This Society has assisted Ms De Jager throughout her illness, including prior to 10 June 2005 when she executed the will of that date. In that will, Ms De Jager did not include a benefit to the Multiple Sclerosis Society. I find that Ms De Jager would have made a conscious decision not to do so and would have had a reason for that. Accordingly, I am of the opinion that it was appropriate not to include the Multiple Sclerosis Society as a beneficiary in the proposed will.
In conclusion, I find that it is extremely unlikely that Ms De Jager will regain testamentary capacity. I find that if she had testamentary capacity, Ms De Jager would want to revoke her will of 10 June 2005. Further, I find that the proposed will as set out in the deed of settlement accurately reflects the likely intentions of Ms De Jager, if she had testamentary capacity. In making these findings, I have considered the interests of Ms Bonney and her niece and two nephews named in the will of 10 June 2005 as well as the interests of Ms De Jager’s brothers and her nieces and nephews. I have considered the charitable gifts, if any, that Ms De Jager would be likely to make. I find, therefore, that it is reasonable in all the circumstances that an order authorising the making of a will in the terms set out in the deed of settlement should be made.
Unstamped Deed
When this matter was referred by the Registrar of Probates, attention was drawn to the existence of the deed between Ms De Jager and Ms Bonney in regard to the settlement reached in respect of their home, being a property owned through joint tenancy. The deed of settlement does not appear to have been stamped and my attention was drawn to sections 21, 22 and 27 of the Stamp Duties Act 1923 (SA). I did not address this matter at the time of making an order concerning a statutory will because of the circumstances of urgency. However, it is important that the stamping of the deed be addressed before there be a grant of probate or any other step taken to administer the estate of Ms De Jager.
A Further Matter
Earlier in these reasons, I have set out the terms of section 7 of the Wills Act and have discussed and emphasised that the Court must be satisfied about a number of matters, including that the proposed will would accurately reflect the likely intentions of Ms De Jager. It is for these reasons that I have addressed the evidence before the Court in detail and have made the findings and reached the conclusions set out above.
The will that I authorised was in different terms to that originally submitted by the Public Trustee. The authorised will, which was that set out in the deed of settlement, was submitted with the agreement of Ms De Jager’s litigation guardian, Ms Bonney, Andrew De Jager, Pieter De Jager and the Public Trustee. As earlier indicated, Antonios De Jager gave notice withdrawing from the present proceeding. Notwithstanding the agreement of the above persons, I have separately considered the will, having regard to the terms of section 7 of the Wills Act, in reaching my conclusions.
Conclusion
For the reasons above, I granted permission and made the following order:
UPON THE APPLICATION by Summons dated the 15th day of March 2012 of PUBLIC TRUSTEE of 211 Victoria Square Adelaide in the State of South Australia (made with the permission of the Court granted on the 29th day of June 2012) for an Order under Section 7 of the Wills Act 1936 authorising the making of a Will on behalf of MARTINA PIETERNELLA DEJAGER of Leveda, 6 Riveau Court Golden Grove in the said State Retired Program Co-ordinator (“the proposed testator”) UPON READING the affirmations and affidavits filed herein and the exhibits to which they refer AND UPON BEING SATISFIED that the proposed testator lacks testamentary capacity and that the proposed will would accurately reflect the likely intentions of the proposed testator and that it is reasonable in all the circumstances that an Order should be made IT IS ORDERED that:-
1.The Court approves and authorises the making of a will on behalf of the proposed testator in terms of the copy will annexed hereto.
2.The will made pursuant to this Order (“the will”) be signed by the Registrar of Probates and be sealed with the seal of this Court.
3.The will be retained by the Registrar of Probates and not be withdrawn from deposit with the Registrar by or on behalf of the proposed testator on whose behalf it was made unless by order of the Court pursuant to Section 7(11) of the Wills Act 1936.
4.The costs of and incidental to this application and order of the plaintiff, the proposed testator and her litigation guardian, the second defendant and Andrew John DeJager and Pieter DeJager as agreed or adjudicated as between solicitor and client be paid from the estate of the proposed testator.
5.The parties may apply for further orders and directions.
The will was in the terms set out earlier in my reasons.
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