In the Matter of R, J - [2017] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Matter of R, J
[2017] SASC 153
Judgment of The Honourable Justice Stanley
31 October 2017
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Application for the making of a statutory will pursuant to s 7 of the Wills Act 1936 (SA). JR, the proposed testator, is the named defendant and is represented by a litigation guardian. The plaintiff is JR's mother.
JR was diagnosed with autism, intellectual impairment and obsessive-compulsive disorder at a young age. In January 2010, he fell from a bridge and suffered a severe traumatic brain injury and a severe spinal cord injury. As a result of a settlement in relation to those injuries, JR now has a substantial estate.
He has been assessed as having no capacity to understand the nature of property, its ownership or administration, and even at a basic level he does not have an understanding of his assets nor the extent of his assets. There is no prospect of improvement to his physical or intellectual functioning.
Held: Application granted. JR lacks testamentary capacity and it is appropriate in the circumstances for the Court to make a will. There is evidence that the will would reflect the likely intentions of JR if he had testamentary capacity.
Wills Act 1936 (SA), referred to.
Banks v Goodfellow (1870) LR 5 QB 549; In the Will of Wilson (1897) 23 VLR 197; Re Fensick (2009) 76 NSWLR 22; In the Matter of K, JL [2016] SASC 53, applied.
In the Matter of Pickles [2013] SASC 175, considered.

In the Matter of R, J
[2017] SASC 153

STANLEY J: This is an application for the making of a statutory will, pursuant to s 7 of the Wills Act 1936 (SA) (the Act). The plaintiff in this matter is the mother of JR. JR is the named defendant to the application. The Court appointed Mr Philip Westover as the litigation guardian for JR. While the plaintiff propounded a will in specific terms which was opposed by the litigation guardian, ultimately, on the hearing of the application, the parties put to the Court a joint position as to the terms of a statutory will to be made.
I am satisfied that the Court should make a will pursuant to s 7 of the Act in terms close to those agreed between the parties.
My reasons follow.
The proposed will
The proposed will appoints Perpetual Trustee Company Limited as executor and trustee. The will provides for the payment of all debts, funeral and testamentary expenses and then distributes the residuary estate 75 per cent to the plaintiff if she survives JR, and 25 per cent to LAT if he survives. The will provides that, should the gift to LAT fail, the plaintiff would take his share of the estate. If the gift to the plaintiff fails, JR’s niece, BES, and nephew, BS, should take equally, but if either BES or BS predecease JR any children of BES or BS should take their parents’ share equally. If all the above gifts fail, the will provides that the estate should be divided equally between the Autism Association of South Australia, the Paraplegic and Quadriplegic Association of South Australia Incorporated and Community Accommodation and Respite Agency Incorporated (CARA).
Section 7 of the Act
Before making an order under s 7(1) of the Act, the Court must be satisfied of three matters, namely:[1]
(a)     that the proposed testator lacks testamentary capacity;
(b)that the proposed will would accurately reflect the likely intentions of the proposed testator if he had testamentary capacity; and
(c)     it is reasonable in the circumstances that the order should be made.
[1]    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.[2]
[2] 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”.
In Banks v Goodfellow[3] 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.[4] In In The Will of Wilson,[5] 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] These observations were cited with approval by Dixon J in Timbury v Coffee.[7]
[3] (1870) LR 5 QB 549.
[4] (1870) LR 5 QB 549 at 565.
[5] (1897) 23 VLR 197.
[6] (1897) 23 VLR 197 at 199.
[7] (1941) 66 CLR 277 at 283.
The Court must be satisfied that the proposed will accurately reflects the likely intentions of the proposed testator if he or she had testamentary capacity. It follows that the contents of the proposed will must be more than a mere possible or potential reflection of the testator’s intention. But it is not fatal to an application that there are multiple potential or possible wills reflecting the testator’s likely intentions. It is sufficient that, despite the range of possibilities, the Court is satisfied that a particular version can be identified as the “likely” version of the testator’s testamentary intention. In this context, there is room for some flexibility in matters of detail.[8]
[8] In the matter of K, JL [2016] SASC 53 at [42].
Next, the Court must be satisfied that the testator would have acted upon those intentions by making a will in those terms. The exercise undertaken by the Court involves a hypothetical. In answering the hypothetical question in this case, it is open to the Court to have regard to the evidence of JR’s subjective views which inform the objective considerations to which the Court must otherwise have regard in deciding whether it can be satisfied as to the contents of a will that accurately reflects the likely intentions of JR if he had testamentary capacity.
In finding whether the proposed will accurately reflects the likely intentions of the proposed testator, the law distinguishes between “lost capacity”, “pre-empted capacity” and “nil capacity” cases. That is a distinction between, in the first two categories, proposed testators who once had testamentary capacity and then lost it, and, in the third category, proposed testators who never enjoyed testamentary capacity.
In Re Fenwick,[9] Palmer J gave consideration to the basis upon which the Court should approach an application for a statutory will in a nil capacity case. He said:[10]
As, in the absence of a statutory will, the person in a nil capacity case must inevitably die intestate, I do not think that the Court starts with the meaningless question: would this particular person have chosen to make a will if he or she had attained testamentary capacity? Rather, I think that the Court must start from the position that, if there are assets of any significance in the minor's estate, it should authorise some kind of statutory will unless it is satisfied that what would occur on intestacy would provide adequately for all the reasonable claims on the estate.
Is that position justified by the words of s 22(b)? I think that the justification is to be found in the elastic phrase “reasonably likely”. In a nil capacity case, where there cannot be any meaningful search for actual or likely subjective intention, the Court of necessity must make objective assessments of likelihood. The Court can take notice of the fact that people in our society who have assets of any worth and who have a family and other relationships usually choose to make wills rather than die intestate. In my opinion, the Court can be satisfied by reference to common experience that if the incapacitated minor had attained testamentary capacity and had assets of any significant worth, then it is reasonably likely — in the sense of a fairly good chance — that, in common with most people, he or she would have chosen to make a will.
[9] (2009) 76 NSWLR 22.
[10] (2009) 76 NSWLR 22 at [172]-[173].
There is difficulty associated with attempts to identify the likely intention of a person who has never had testamentary capacity.[11] In these circumstances, the Court’s search for the proposed testator’s likely intentions will usually be resolved by an entirely objective consideration of their relationships, circumstances and estate.[12]
[11] In the Matter of Pickles [2013] SASC 175 at [27].
[12] In the Matter of K, JL [2016] SASC 53 at [48].
In Re Fenwick, Palmer J also considered the category of pre-empted capacity where a person, though still a minor and therefore lacking in testamentary capacity, is old enough to form relationships and to express reasonable wishes about his or her assets before losing testamentary capacity. Referring to the case of a 16 or 17 year old who suffers severe and permanent brain injury and is subsequently awarded a large sum of damages, Palmer J considered that it is possible that such a person may have expressed some testamentary intention before becoming incapacitated, although that is usually rare in teenagers who have few significant assets to dispose of and little occasion to ponder mortality in a testamentary disposition. Accordingly, an express testamentary intention attributed to such a person by a person seeking to benefit from a statutory will should be scrutinised with particular care.[13] Nevertheless, there may be a rare case in which such a person has expressed a testamentary intention in accordance with the proposed statutory will in circumstances where, while suffering from mental infirmity, the person is still able to make known his or her wishes. In such cases, the Court must be satisfied that the asserted intention is truly that of the person concerned.
[13] (2009) 76 NSWLR 22 at [177] to [178].
The next question is whether it is reasonably likely that the person would have expressed that intention if he or she had attained testamentary capacity. The asserted intention may be the product of deluded attachment or hostility. Palmer J described this approach as involving both subjective and objective elements.[14]
[14] (2009) 76 NSWLR 22 at [180].
In the Matter of K, JL,[15] Doyle J explained the approach to be taken by the Court pursuant to s 7 in the following terms:[16]
In summary, the hypothetical nature of the inquiry will always allow room for some objective considerations. In some cases there will be no evidence of the person’s subjective intentions, in which case the issue will be determined entirely objectively. This will be so in the typical “nil capacity” cases. On the other hand, there will often be evidence of the person’s actual or likely subjective intentions (for example, in many “lost capacity” and “pre-empted capacity” cases). In my view, not only is it appropriate given the nature of the inquiry under s 7(3)(b) that this evidence be taken into account, but also that approach is supported (if not required) by the provision in s 7(4)(a) to the effect that the Court must take into account any evidence relating to the wishes of the person. However, the weight that should be attached to such evidence can only be determined in an individual case by reference to considerations such as the person’s capacity to express their wishes, the nature of those wishes, the extent to which those wishes conflict with objective considerations, the extent to which the person’s expressed subjective intentions might have been influenced by the taking of advice prior to the formal making of a will, the age and maturity of the person when expressing their wishes, and the timing of the expression of wishes relative to the application to make a statutory will.
[15] [2016] SASC 53.
[16] [2016] SASC 53 at [51].
While in Re Fenwick Palmer J referred to the relevant inquiry in a nil capacity case being entirely objective, as Doyle J points out in K, JL,[17] this is merely a reflection of the fact that evidence of subjective intention is generally unavailable, rather than it being irrelevant as a matter of principle. The Court’s focus is upon the nature of the facts and evidence in the particular case.
[17] [2016] SASC 53 at [53].
Evidence
I have received in evidence and had regard to affidavits of the plaintiff dated 16 May 2017, Judith Ann Elkson dated 31 January 2017, Errol Kaplan dated 26 June 2017, 6 July 2017 and 18 July 2017 and Philip Westover dated 18 July 2017.
The proposed testator, JR, was born on 11 July 1986. He is currently 31 years of age. He was diagnosed with autism, intellectual impairment and obsessive-compulsive disorder at a young age. There is a long history of behavioural issues with aggressive outbursts prior to JR being accommodated in the Strathmont Centre in July 2005. In January 2010, he escaped from the Strathmont Centre and fell from a bridge suffering a severe traumatic brain injury and a severe spinal cord injury. There is no prospect he will recover from his injuries, nor will his intellectual functioning improve. Professor McFarlane considers that JR does not have the intellectual reasoning capacity to understand the nature of property, its ownership or its administration. Even at the most basic level, he does not have an understanding of his assets and the extent of his property.
As a result of a settlement with the State of SA in relation to the injuries suffered in the fall from the bridge, JR now has an estate currently valued at $3.2 million.
From shortly after JR’s discharge from hospital following the 2010 injury, he has resided in supported accommodation provided by CARA in Murray Bridge.
Since JR’s birth, his primary caregiver has been the plaintiff. She is now 65 years of age. She continues to provide significant care and support to him. By contrast, JR has had no contact with his biological father since he was a newborn baby. He does not know his father and, in fact, believes him to be deceased. JR has a niece and nephew. He is aware of their existence, but has had limited contact with them.
Since 2004, the plaintiff has resided with LAT. He is currently 46 years of age, is divorced and has no children. The plaintiff is LAT’s carer. He has a partial disability due to having a brain aneurism and a damaged knee. The plaintiff and LAT have lived in a mutually-supportive but non-romantic relationship for over a decade. He provides the plaintiff with companionship and some household support. Importantly, for the purposes of this application, he has formed a close relationship with JR. He visits JR on a regular weekly basis and takes him on outings. JR described him to Mr Westover as his “step dad”. The occupational therapist’s report described JR as referring to LAT as a “father figure”. There is independent evidence of the care, support and companionship LAT has provided to JR over a lengthy period of time. This continues.
JR told the plaintiff that he wants her and LAT to share his “things” if he dies, although I note this was not a view he expressed to Mr Westover when he asked.
JR’s biological father was served with the application and has indicated he has no wish to be heard or otherwise participate in the proceedings.
Consideration
In this case, there is no dispute and I am satisfied that the proposed testator, JR, lacks testamentary capacity. So much is evident from the medical evidence, including, in particular, the report of Professor McFarlane.
I am satisfied that it is appropriate the Court should make a will in the circumstances of this case where the proposed testator has a large estate, lacks testamentary capacity and it would not be appropriate for his estate to be administered on the basis of an intestacy, given that it would fall to be divided equally between the plaintiff and JR’s biological father who has no present relationship with him and never had anything to do with him.
In these circumstances I am satisfied that if JR had testamentary capacity it is likely he would have excluded him from his estate.
Accordingly, at issue is the contents of the will where the proposed testator’s biological father is excluded as a beneficiary.
This is a nil capacity case.
While I am satisfied that there is no evidence of the subjective testamentary intentions of JR available to the Court, there is evidence of his views which provide a foundation from which the Court can make findings which would inform the Court’s objective assessment of his likely testamentary intentions.
I accept that the plaintiff’s evidence of her son’s wishes is likely to reflect his actual intentions if he had testamentary capacity. Her evidence is contrary to her interest given that she stands to be the sole beneficiary of his estate if provision is not made for LAT.
There is no issue that the plaintiff should be the principal beneficiary of her son’s estate in the event she does not predecease him. The real question is whether she should be the sole beneficiary or whether LAT or anyone else should also be included in JR’s bounty, given the view I have come to that it is inappropriate that JR’s biological father should benefit from his estate.
In this case I am satisfied that if he had testamentary capacity JR would have wished to make provision in his will for LAT given the nature of their relationship, as JR understands it, and the support LAT has provided to JR for more than a decade.
While provision for a non-family member is unusual, it is plainly contemplated by the Act. Section 7(4)(d)(iv) provides that in considering an application for an order the court must take into account the interests of any other person who has cared for or provided emotional support to the person. In In the Matter of Pickles[18] Gray J made a specific bequest to a carer who provided significant support to a person under a disability for many years.[19]
[18] [2013] SASC 175.
[19] [2013] SASC 175 at [33]-[41] and [49].
In my view it is likely that the distribution of JR’s estate would reflect the fact that the plaintiff has cared for him for his entire life and is his biological mother. While LAT is not a blood relative he has been involved in JR’s life for some 13 years. I consider that a division of his estate on the basis of 75 per cent to the plaintiff and 25 per cent to LAT is likely to reflect his actual testamentary intentions if he had testamentary capacity.

In these circumstances I am also satisfied that it is likely that JR would have wished the bequest in favour of LAT to revert to his mother in the event that bequest failed by reason of LAT predeceasing him.
I am further satisfied that if the bequest to the plaintiff fails because she predeceases JR, he would wish that portion of his estate to go to his blood relatives being his niece, BES, and his nephew, BS, if they survive him, in equal shares, and if his niece or nephew should predecease him leaving children, that their shares should be left to each of their children in equal shares. If either the niece or the nephew should predecease him leaving no children, the survivor or his or her children will take that share.
I am also satisfied that, in the event that all these gifts fail, JR’s likely intentions, if he had testamentary capacity, is that his estate should be divided amongst the three proposed charities. Each of those charities have meaning to him because they are dedicated to supporting persons with the particular disabilities from which he suffers.
I am satisfied it is reasonable in the circumstances that the order should be made. I have come to this view having regard to each of the matters set out in s 7(4) of the Act. JR has not previously made a will. There is no possibility of him acquiring testamentary capacity in the future. He has a substantial estate. Having regard to the evidence it is undesirable that he should die intestate. I am satisfied that JR’s biological father should not be a beneficiary of his estate. His mother is the substantial beneficiary of his estate. I am satisfied that it is appropriate that LAT should also benefit in a significant way. I am further satisfied no-one else should be entitled to a share in his bounty except in circumstances where the primary bequests fail.
Finally I am not aware of any other who would likely be entitled to bring an inheritance claim who has otherwise cared for or supported JR for whom provision should be made.
Conclusion
For these reasons I propose to give permission as required pursuant to s 7(1) of the Act to bring this application and authorise the making of a statutory will in terms of the document annexed hereto.
ANNEXURE
THIS IS THE LAST WILL AND TESTAMENT of me, [JR] of [address] in the State of South Australia, Unemployed.
1.     I REVOKE all former wills and testamentary dispositions made by me and I DECLARE this to be my last Will and Testament.
2.I APPOINT PERPETUAL TRUSTEE COMPANY LIMITED of Level 11, 101 Grenfell Street Adelaide in the State of South Australia to be the Executor and Trustee of this my Will (hereinafter referred to as "the Trustee").
3.I GIVE to the Trustee the whole of my real and personal estate of whatsoever kind and nature and wheresoever situate upon trust and I DIRECT that the Trustee sell call in and convert into money such part or parts thereof as may not consist of money and to hold the net proceeds thereof together with such part or parts of my estate as may consist of money or may for the time being remain unconverted upon the following further trusts:
(a)To pay thereout all my just debts funeral and testamentary expenses including all probate death and estate duties of whatsoever kind which may be payable in my estate or in any way in consequence of my death.
(b)To divide and distribute the balance then remaining as follows:
(i)     As to seventy five per cent (75%) thereof, for my mother [SVR] if she survives me; and
(ii)    As to twenty five per cent (25%) thereof, for my friend [LAT] if he survives me;
4.Should the gift referred to in clause 3(b)(ii) above fail as a result of my said friend [LAT] having predeceased me, then such gift shall instead go to my mother [SVR] if she survives me.
5.If my mother [SVR] fails to survive me, then her interest in my estate is to be distributed in accordance with clause of 6 herein of this my will.
6.Should any of the above gifts to my said mother [SVR] fail as a result of her having not survived me, then such gifts shall be divided equally between my niece [BES] and my nephew [BS] and if either [BES] or [BS] predecease me leaving a child or children who survive me then such child or children shall take equally the share in my estate that their parent would have otherwise taken had they survived me and if [BES] or [BS] die without leaving such child or children who survive me then to the survivor of either [BES] or [BS] or their children who shall survive me.
7.Should the gifts referred to in clause 5 herein fail I then give the residue of my estate to THE PARAPLEGIC & QUADRIPLEGIC ASSOCIATION OF SOUTH AUSTRALIA INC (ABN 92713327348), AUTISM ASSOCIATION OF SOUTH AUSTRALIA (ABN 98164545215) and COMMUNITY ACCOMMODATION & RESPITE AGENCY INC (ABN 22813645129) (or if any of the said organisation(s) no longer exist at my death, then to the surviving intuition and if none of the named institutions no longer exist then to such other body or institution as my Trustee in its absolute discretion determines carries out the same or similar charitable or benevolent purposes) in equal shares and I DIRECT that the receipt of each such bequest by the Secretary or other proper officer of such organisation(s) shall be sufficient discharge to the Trustee for such bequest.
8.     I GIVE to the Trustee the following powers:
(a)to sell any asset of the estate which is not the subject of a specific gift under this my Will.
(b)to sell call in and convert into money such part or parts of my estate and property as may not consist of money.
(c)to sell lease exchange or otherwise dispose of assets in my estate on such terms as the Trustee considers expedient as though the Trustee were the absolute beneficial owner thereof.
(d)to postpone without being responsible for loss the sale calling in and conversion of the whole or any part of my estate for such period as the Trustee may think fit and notwithstanding that it may be of a wasting speculative or hazardous nature.
(e)to invest in shares and debentures listed on any stock exchange, unit trusts, mutual funds, real estate of any tenure, and loans secured or unsecured in addition to the powers of investment authorised by law.
(f)to invest such of the proceeds of conversion of my trust estate and my ready moneys as may from time to time be available for investment (including unapplied income) in any of the modes of investment for the time being authorised by the laws for the investment of trust funds.
(g)to invest and vary investments as the Trustee may think fit with power to invest in unsecured interest free loans or other non‑income producing property including property to be used for occupation by any one or more beneficiaries under this my Will.
(h)to borrow money on such terms as the Trustee may think fit and use such moneys for any purpose for which the capital of my estate may be used.
(i)to make such outlay as may from time to time be considered necessary for repairs alterations or improvements to any property forming part of my estate.
(j)to apply for the maintenance education or benefit of any minor beneficiary as the Trustee thinks fit the whole or any part of the capital of that part of my estate to which that beneficiary is entitled or may in future be entitled.
(k)to apply for the benefit of any beneficiary as the Trustee thinks fit the whole or any part of the capital to which that beneficiary is entitled or may in future be entitled.
(l)to appropriate any asset of my estate not specifically given at a price being the value determined by a qualified person without the consent of the beneficiary in full or partial satisfaction of any legacy or share in my estate.
9.I DIRECT that where a distribution to a beneficiary follows realisation of an asset by the Trustee, or transmission or transfer of an asset in specie, where the Trustee is or may become liable for the payment of capital gains tax ("CGT"), that distribution is subject to the CGT liability. The amount or relevant proportion of CGT paid or payable shall be adjusted against that beneficiary's entitlement, which is charged with the amount of CGT.
Dated the       day of   2017