In the Matter of Michele (Mary) Maniskas
[2015] SASC 77
•19 May 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Matter of MICHELE (MARY) MANISKAS
[2015] SASC 77
Judgment of The Honourable Justice Bampton
19 May 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
An application was made by a family friend of the defendant pursuant to s 7 of the Wills Act 1936 (SA) for an order authorising the making of a will on behalf of the defendant – the defendant is 93 years of age and now completely dependent on care – where no will of the defendant has been located – whether permission to proceed with the application should be granted – whether the defendant lacks testamentary capacity – whether the proposed will would accurately reflect the likely intentions of the defendant if she had testamentary capacity – whether it is reasonable in all the circumstances that the order should be made.
Held:
1) Permission to proceed with the application.
2) The defendant lacks testamentary capacity.
3) The proposed will reflects the defendant’s likely intentions.
4) Application for an order allowing the making of a statutory will granted.
Administration and Probate Act 1919 (SA) s 72G(1)(e); Wills Act 1936 (SA) s 7, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; Hoffmann v Waters (2007) 98 SASR 500; In the Matter of Brown [2009] SASC 345; In the Matter of Shaun Arthur Pickles [2013] SASC 175; In The Will of Wilson (1897) 23 VLR 197; Timbury v Coffee (1941) 66 CLR 277, considered.
In the Matter of MICHELE (MARY) MANISKAS
[2015] SASC 77Testamentary Causes Jurisdiction
BAMPTON J.
Introduction
The plaintiff Cecily Andrew (Ms Andrew) is the Guardian and Full Administrator of the estate of Michele Maniskas (“Mary”) pursuant to an order of the Guardianship Board dated 13 January 2015. Ms Andrew sought permission to bring an application pursuant to s 7 of the Wills Act 1936 (SA) (the Act) and, if permission was granted, an order authorising the making of a will on behalf of Mary.
The application
Ms Andrew filed a summons and a supporting affidavit seeking orders that the Court approve and authorise the making of a will in the terms of the proposed will being exhibit CJA7 to her affidavit sworn on 6 March 2015 (the first Andrew affidavit). After realising that the documentation before the Court alternated between calling Mary; “Michele”, “Michelle” or “Mary”, a further affidavit of Ms Andrew sworn 25 March 2015 was filed exhibiting the proposed will as CJA12. The only changes to the proposed will were the references to Mary as “Michele, otherwise known as Michelle and as Mary, Maniskas”.
On 12 March 2015, the Registrar of Probates ordered that Ms Judith Quick be appointed Mary’s guardian ad litem and that copies of the summons and supporting affidavits be served on:
1Mary as the proposed testator;
2Ms Quick; and
3The Public Advocate.
The Registrar then referred the matter to me for further consideration. The Public Advocate did not wish to be heard on the application.
The application for permission to proceed and the substantive application were heard together on 27 March 2015. I gave permission to bring the application and made orders authorising the making of a statutory will. My reasons for making the orders follow.
Background
The background to the application is detailed in the affidavit of Ms Andrew sworn 6 March 2015.
Ms Andrew deposes that she is a family friend of Mary having known her for over 50 years. Ms Andrew was also a friend of Mary’s late brother, Constantine Maniskas (“Con”). Con and Mary were patients of Ms Andrew’s father, Dr Jack Nicholls, a general practitioner, from the 1950’s. Dr Jack Nicholls and Con were also friends. When Dr Jack Nicholls retired, his daughter, Dr Juliana Nicholls (“Dr Nicholls”), became Mary and Con’s general practitioner.
Mary was born on 6 September 1921 and is 93 years of age. Mary and Con immigrated to Australia from Greece with their parents in about 1927. Neither Mary nor Con married or had children. Mary worked as a designer and dressmaker throughout her working life. Until recently, Mary lived with Con in the home they once shared with their parents. Con was Mary’s primary carer and decision-maker for at least the last 10 years. On 26 November 2014, Mary suffered a fall at home and was transferred to the Queen Elizabeth Hospital (QEH). Within a fortnight of Mary’s fall Con was admitted to the QEH on 7 December 2014. Due to their age and ailing health it was determined that Mary and Con could no longer continue living independently in their own home.
On 12 December 2014, Ms Andrew attended at the QEH with her sister, Dr Nicholls, where they discussed the arrangements for an application for Mary and Con to reside at Ridleyton Greek Home for the Aged. Con instructed Ms Andrew as to his financial affairs and his testamentary wishes. Con also advised Ms Andrew as to Mary’s assets and their joint wish to leave their estates to charity. Con instructed Ms Andrew to prepare “mirror” wills for him and Mary to sign, with Ms Andrew as executor. Dr Nicholls had left the room by the time Ms Andrew was discussing Con’s testamentary intentions with him.
Con died unexpectedly the following day, Saturday 13 December 2015.[1]
[1] CJA4.
Mary now resides at Ridleyton Greek Home for the Aged and is completely dependent on care.
Section 7 of the Wills Act 1936
The Court’s power prescribed by s 7 of the Act was discussed by Gray J in In the Matter of Shaun Arthur Pickles.[2]
Section 7 of the Wills Act empowers the Court to authorise the making of a will on behalf of a person who lacks testamentary capacity. The legislation contemplates a two-stage process: an application for permission to proceed and, upon that permission being granted, an application for an order authorising the will.[3] In proceedings such as this, where the application is not obviously without merit, it is appropriate that leave to proceed and the substantial application be heard concurrently.[4] The purpose of a grant of leave to proceed is to provide a mechanism by which baseless or unmeritorious applications are screened out.[5]
[2] [2013] SASC 175.
[3] See Bryant v Blake (2004) 237 LSJS 23, 28.
[4] Hoffmann v Waters (2007) 98 SASR 500, [10].
[5] Hoffmann v Waters (2007) 98 SASR 500, [10] citing Monger v Taylor [2000] VSC 304, [22]; see eg Boulton v Sanders (2004) 9 VR 495, [11]; Bryant v Blake (2004) 237 LSJS 23, [28]; see also Re Fenwick (2009) 76 NSWLR 22, [119]-[125].
The hearing of the application
Ms Andrew and Mary were represented at the hearing of the application. The following affidavits are relied on in support of the orders sought:
·Cecily Andrew sworn on 6 March 2015 and 25 March 2015,
·Juliana Nicholls sworn on 10 March 2015,
·Mark Tatyzo sworn on 10 March 2015,
·Leanne Thomas sworn on 16 March 2015; and
·Judith Quick sworn on 25 March 2015.
Permission to bring the application pursuant to s 7(1) of the Act
Section 7(1) of the act provides that Ms Andrew must obtain the Court’s permission to bring this application.
In Hoffmann v Waters,[6] Debelle J stated the requirement for court permission to apply is a process intended to screen out baseless or unmeritorious claims, particularly as to lack of testamentary capacity.[7]
[6] (2007) 98 SASR 500.
[7] (2007) 98 SASR 500, [10].
Having regard to the:
·medical evidence deposed to in the affidavit of Juliana Nicholls;
·the affidavit of Mark Tatyzo, exhibiting social work summary MT2 and an application for Guardianship and Administration MT1;
·the Guardianship Board’s finding set out in the order 13 January 2015 (exhibit CJA1 to first Andrews affidavit ) to the effect Mary lacks testamentary capacity and is unlikely to regain such capacity;
·the fact Mary has;
- a significant estate (first Andrews affidavit and the Statement of Assets and Liabilities exhibit CJA6);
- no living relatives (first Andrews affidavit, affidavits of Mark Tatyzo and Juliana Nicholls);
- no will (first Andrews Affidavit); and
- previously expressed her intentions as to the testamentary disposition of her estate during lucid intervals which accord with the terms of the proposed will (first Andrews affidavit, affidavits of Mark Tatyzo and Leanne Thomas),
I am of the view this application is not baseless and that permission should be granted for the application to proceed.
Pursuant to s 7(3) of the Act, to make an order authorising the making of a will under s 7(1), I must be satisfied that Mary lacks testamentary capacity, that the proposed will would accurately reflect the likely intentions of Mary if she had testamentary capacity, and it is reasonable in all the circumstances that the order should be made. Section 7(4) lists matters which I must take into account when determining whether an order should be made. They are:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of—
(i) the beneficiaries under any will previously made by the person;
(ii) any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii) any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv) any other person who has cared for or provided emotional support to the person;
(e)any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f) the likely size of the estate;
(g) any other matter that the Court considers to be relevant.
Testamentary capacity
Testamentary capacity is defined in s 7(12) as “the capacity to make a will”. The note to that subsection provides:
The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
A test for capacity
In Banks v Goodfellow,[8] Cockburn CJ held that to have testamentary capacity a testator must understand the nature of the will and its effects, comprehend the extent of the property which is being disposed of, and understand and appreciate the claims to which he or she ought to give effect.[9] In In The Will of Wilson,[10] Hood J noted that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular and ordinary manner”.[11] Justice Dixon cited these observations with approval in Timbury v Coffee.[12]
The evidence regarding Mary’s testamentary capacity
[8] (1870) LR 5 QB 549.
[9] Banks v Goodfellow (1870) LR 5 QB 549, 565.
[10] (1897) 23 VLR 197.
[11] (1897) 23 VLR 197, 199.
[12] (1941) 66 CLR 277, 283.
Affidavit of Mark Tatyzo
On 17 December 2014, Mark Tatyzo, a social worker at the QEH, made an application to the Guardianship Board to appoint Ms Andrew as Administrator and Dr Nicholls as Mary’s Guardian. In support of the application, Mr Tatyzo provided a Social Work Summary to the Guardianship Board.[13] As stated above, the Guardianship Board appointed Ms Andrew both Guardian and Administrator of Mary’s affairs on 13 January 2015.
[13] MT2.
In his affidavit Mr Tatyzo states that Mary has “been assessed by the treating team at the QEH as having cognitive incapacity to make complex decisions including relating to her medical and financial affairs”.[14] Mr Tatyzo deposes that at times he has found Mary to be lucid and clear in her communications and at other times she has appeared confused and demonstrated a failing short-term memory. While Mr Tatyzo makes a clear statement that Mary has cognitive incapacity to make complex decisions, he also refers to Mary understanding the nature of a discussion about her testamentary intentions that took place in the days after Con’s death. In this discussion Mary appeared to recognise the names of the three charities and “that it was her and Con’s wish to leave their estates to those three charities on their deaths”.[15]
[14] Para 6.
[15] Affidavit of Mark Tatyzo sworn 10 March 2015, para 18.
Mr Tatyzo deposes that in that discussion with him, Mary asserted that there was not anyone who either she or Con would have wanted their estate to go to upon their deaths. This indicates that Mary may have realised there was nobody who could be expected to make a claim to her estate.
Affidavit of Dr Juliana Nicholls
Dr Nicholls in her affidavit outlines the health problems that Mary endures. Mary suffers from a large right-sided breast cancer which is progressing slowly and is not imminently life-threatening.[16] She suffers significant hearing loss and loss of sight due to glaucoma, thus making communication difficult. She has also suffered for some years from heightened anxiety and some paranoia. More recently Mary has suffered from the onset of senile dementia, including episodes of short-term memory loss and confusion. It is Dr Nicholls’ opinion that Mary is generally lucid and at times displays comprehension and an ability to communicate appropriately. Dr Nicholls deposes that Mary lacks testamentary capacity. It is highly unlikely, in her view, that Mary’s cognitive or physical condition will improve and she does not expect that Mary will regain capacity for the balance of her lifetime.
[16] Affidavit of Juliana Nicholls pg 3.
The only evidence before the Court as to capacity is that of Mr Tatyzo and Dr Nicholls. The Guardianship and Administration Order (the Order) made on 13 January 2015 appears to be based on that evidence. Relevantly, the Order states that the Board was satisfied that Mary has a mental incapacity within the meaning of the Guardianship and Administration Act 1993 (SA). Mental incapacity is defined in s 3 of the Guardianship and Administration Act as follows:
“mental incapacity” means the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of—
(a)any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or
(b)any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever;
The Order prevents Mary from making any will or other testamentary disposition except in the presence of, and with the consent of, Public Trustee or an authorised Public Trustee Officer.
Having regard to the evidence of Mr Tatyzo, Dr Nicholls and the fact of the Order, I am satisfied that Mary lacks testamentary capacity and is unlikely to regain testamentary capacity.
Likely testamentary intention
In determining this issue the law distinguishes between “lost capacity” and “nil capacity” cases.[17] In the case of a proposed testator who once had testamentary capacity and then lost it, they are said to have “lost capacity”. A proposed testator who never had capacity at any time is said to be a case of “nil capacity”.
[17] See In the Matter of Brown [2009] SASC 345.
In this matter it is asserted that Mary has “lost capacity” because she was once able to give effect to her wishes and views.[18] The Court can then look back to what Mary’s intentions were at an earlier time when she had testamentary capacity. This enquiry is made much easier in cases where a previous will has been located.
[18] In the Matter of Brown [2009] SASC 345.
There has been no will located despite searches having been made of Mary’s house, a safe deposit box at the Commonwealth Bank and of Edwards Marshall, accountants for Con and Mary.[19] Further, there is evidence that Mary has indicated that she does not recall making a will.[20] Con’s will dated 4 January 1991 leaves his entire estate to Mary.[21] If Mary dies intestate then her estate will vest in the Crown.[22]
[19] First Andrew affidavit.
[20] First Andrew affidavit.
[21] First Andrew affidavit.
[22] Administration and Probate Act 1919 (SA) s 72G(1)(e).
Estate
A Statement of Assets and Liabilities was exhibited to Ms Andrew’s affidavit sworn 6 March 2015. The statement shows a property in Hazelwood Park valued at $470,000; cash in hand of $1,800; and money in the bank in the sum of $960,213.24. Mary’s interest in the deceased estate of Con is valued at $683,898.73. Mary’s assets include shares in:
1South Australia $100,353.24;
2Victoria $121,215.01;
3Queensland 3,836.30;
4Western Australia $21,346.20;
5New South Wales 23,360.00; and the
6Australian Capital Territory $164,406.20
The total value of Mary’s assets is $2,550,428.92.
The proposed will
The proposed will is exhibited as CJA12 to the affidavit of Ms Andrew sworn on 25 March 2015. The will appoints Ms Andrew as executor and trustee, or if Ms Andrew dies before Mary or is unable or unwilling to act, Richard David Burke. The will leaves one third of Mary’s estate to each of:
1The Salvation Army (South Australia) Property Trust;
2The National Heart Foundation of Australia (South Australian Division) Incorporated; and
3The Greek Orthodox Church of Level 1, 288 Franklin Street, Adelaide.
Ms Andrew is willing to act in the capacity of executor.
Affidavit of Ms Andrew
Ms Andrew deposes in her first affidavit that she was instructed by Con regarding his testamentary wishes. Con’s instructions were that:
1His entire estate pass to Mary for her use and benefit during her lifetime;
2In the event that Mary predeceased Con, or on her death, then his estate was to be left to charity, namely;
(a) The National Heart Foundation;
(b) The Salvation Army; and
(c) The Greek Orthodox Church in Franklin Street;
3There was no one who had a claim or any entitlement to a benefit from his estate, as there were no surviving family members, other than Mary;
4He and Mary had a god-daughter, who lived in Cooma, New South Wales.
Through enquiries, Ms Andrew was able to identify Con’s god-daughter as Ms Terry Tsouvallas. Con instructed Ms Andrew that he did not wish to leave Ms Tsouvallas a cash legacy as she was financially secure.
Con said it was his and Mary’s joint wish to leave their estates to charity and that they were in agreement as to the identity of the beneficiaries. He instructed Ms Andrew to prepare “mirror wills” for each of them to sign, with Ms Andrew as executor.
Throughout January 2015, Ms Andrew spoke with Mary about her testamentary wishes. Mary could not remember ever making a will. Upon asking Mary if her and Con had discussed making a will, Mary said “everything goes to charity, there is no one else”. Mary agreed with the charities that Con had identified and asked Ms Andrew “will you do that for us?”
Ms Tsouvallas told Ms Andrew that she had always known that they (Mary and Con) were going to leave their money to charity.
Dr Nicholls’ affidavit does not shed any light on the issue of Mary’s likely testamentary intention.
Affidavit of Leanne Thomas
Ms Leanne Thomas formerly worked at Edwards Marshall as an accountant. Ms Thomas deposes in her affidavit that she assisted Con and Mary with their financial affairs, including completion of their tax returns. On 4 March 2014, Con told Ms Thomas that he and Mary intended to leave their estates to charity but did not identify which charities he had chosen as his beneficiaries. Con had told Ms Thomas that he and Mary regularly make financial contributions to various charities.
Affidavit of Mark Tatyzo
Mr Tatyzo says in his affidavit that he was aware that Con was instructing Ms Andrew in relation to preparing a will just prior his death. Mr Tatyzo has spoken with Mary about her testamentary intentions since she has been hospitalised. Mary agreed that all of her estate would go to charity. When told which charities Con had nominated as beneficiaries, Mary nodded and said yes. These charities were the Salvation Army, the National Heart Foundation and the Greek Orthodox Church. Mary again confirmed that she agreed with Con’s wishes that all of her estate would go to the three charities.
Mr Tatyzo deposes that he had no doubt that Mary, at the time of the conversation regarding her testamentary intention, understood the nature of the discussion, recognised the names of the three charities and agreed that it was her and Con’s wish to leave their estates to those three charities.
Affidavit of Judith Quick
Ms Quick, Mary’s guardian ad litem, deposes in her affidavit to having been introduced to Mary on 24 March 2015 at the Ridleyton Greek Home for the Aged. Ms Quick spoke to Mary on her own and explained to Mary that she had come to talk to her about making a will. Ms Quick talked to Mary about Con and his wishes. She talked to Mary about the terms of the will and that there were three charities who were beneficiaries. Ms Quick deposes that Mary’s verbal responses were limited, “but that she appeared to understand insofar as she volunteered the name of the charity “the Salvos”. Ms Quick says she told Mary the Heart Foundation and her Greek church in Franklin Street were also beneficiaries. Ms Quick says upon asking Mary if this is what she wanted she had the impression that she understood and mentioned the Salvos and the church when Ms Andrew returned to the room. Ms Quick deposes that whilst Mary was very frail, speech was difficult and her responses limited, she considers “the proposed will is likely to accurately reflect Mary’s intentions if she had full testamentary capacity”.
Having considered all of these matters, I am satisfied that the proposed will accurately reflects the likely intentions of Mary on the assumption that she possessed testamentary capacity at this time. The evidence of Mary’s intentions is clear and there are no other persons who would expect to have an interest in Mary’s estate.
Reasonable in all the circumstances
I am satisfied on the evidence that Mary’s intention is that her estate go to the charities named in the proposed will. It is unlikely that Mary will regain testamentary capacity. No previous will has been located despite searches having been made. Other than Mary’s god-daughter, Terry Tsouvallas, there is no other person who would expect to, or be entitled to, receive any portion of Mary’s estate. Ms Tsouvallas is not a person who would be entitled to a distribution on intestacy.[23] Ms Tsouvallas has expressed that it was her belief that Mary intended her estate to go to charity. The estate is large, totalling over $2,500,000.
[23] Administration and Probate Act 1919 (SA) S 72G(1)(e).
I am satisfied that, having regard to all the factors under s 7(4) of the Act, it is reasonable in all the circumstances that the order be made.
I grant permission to make the application. I authorise the making of a will in the terms proposed in the proposed will exhibited at CJA12 and reproduced in Appendix 2 to these reasons.
Appendix 1
Orders made on 27 March 2015:
1The plaintiff be given leave to make the application filed on 27 February 2015.
2The Court hereby approves and authorises the making of a Will on behalf of the defendant in the terms of the proposed Will exhibited at “CJA12” to the Affidavit of Cecily Jane Andrew sworn on 25 March 2015 and filed in this matter and annexed hereto.
3The Will referred to in paragraph 2 above be produced to the Registrar of Probates to be signed by the Registrar, sealed with the seal of the Court and retained by the Registrar pursuant to section 7(10) Wills Act 1936 (SA).
4The sealed Will is not to be withdrawn from deposit with the Registrar of Probates by or on behalf of the defendant unless by an order of the Court pursuant to section 7(11) of the Wills Act 1936 (SA).
5The costs of and incidental to this application and order incurred by the plaintiff and the defendant be paid from the defendant’s estate on a solicitor client basis to be agreed, or in the absence of agreement, adjudicated.
6Liberty to apply.
Appendix 2
THIS IS THE LAST WILL of me MICHELE (MICHELLE) MANISKAS (otherwise) MARY MANISKAS of Ridleyton Greek Home for the Aged 89 Hawker Street Ridleyton in the State of South Australia Spinster AND I REVOKE all my former testamentary dispositions.
1.(1) I APPOINT CECILY JANE ANDREW of Finlaysons (Lawyers) of 81 Flinders Street Adelaide South Australia my executor and trustee.
(2)IF she dies before me or before obtaining a grant or if she is unable or unwilling to act, I APPOINT RICHARD DAVID BURKE of Finlaysons (Lawyers) of 81 Flinders Street Adelaide South Australia Estates Manager my executor and trustee to fill the vacancy.
2.I GIVE:
(a)one third of my estate to the THE SALVATION ARMY (SOUTH AUSTRALIA) PROPERTY TRUST
(b)one third of my estate to the NATIONAL HEART FOUNDATION OF AUSTRALIA (SOUTH AUSTRALIAN DIVISION) INCORPORATED; and
(c)the remaining one third of my estate to the GREEK ORTHODOX CHURCH of Level 1, 288 Franklin Street, Adelaide aforesaid.
BUT if the gift in 2(a)(b) or (c) cannot take effect completely or at all, to the extent it cannot take effect: to the charitable organisation or organisations in Australia which my executor considers most clearly fulfils or fulfil the objects I intend to benefit.
3.I DIRECT my executor to pay my debts, funeral and testamentary expenses and any duty or tax payable in consequence of my death from my estate, with no subsequent apportionment between the beneficiaries.
4.I EMPOWER my trustee:
(a)TO SELL, postpone sale, borrow with or without security, lease, accept surrenders of leases, repair, manage, exchange, appropriate in specie, partition or otherwise deal with respect to any part of my estate, for such purpose, at such time or times, on such terms and conditions, and with such determination of value, as my trustee thinks fit.
(b)TO RETAIN any investments held by me at my death AND TO INVEST any part of my estate requiring investment in such existing or future forms of investment and whether of a wasting, hazardous or reversionary nature or not, as my trustee from time to time thinks fit, with power to vary or transpose the same.
5.I DECLARE that Cecily Jane Andrew who is a solicitor may charge and is entitled to be paid for all usual and reasonable professional fees and disbursements in respect of services rendered by the executor’s firm (as executor, trustee or both) in relation to the administration of my estate as if such executor was not one of my executors or trustee but employed to act on behalf of them which professional fees and disbursements may be as ordinarily charged by such executor or trustee as solicitor or accountant notwithstanding such professional fees and disbursements may, during the period of the administration of my estate, exceed the executor’s commission otherwise chargeable or solicitor’s fees chargeable under the Supreme Court scale.
DATED this day of 2015
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