In the Matter of Rak - [2009] SASC 288

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Matter of RAK
[2009] SASC 288
Judgment of The Honourable Justice Gray
11 September 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - FORMS OF UNSOUNDNESS OF MIND
Statutory wills - application for order authorising the making of a will on behalf of person lacking testamentary capacity – not opposed – whether person lacks testamentary capacity – likely intention of proposed testator - whether proposed will accurately reflects likely testamentary intentions – whether reasonable in the circumstances – whether costs of the application should be paid out of the estate of the intended testator.
Held: permission to proceed granted – order authorising making of will in terms proposed - person lacks testamentary capacity – proposed will accurately reflects likely intentions – costs to be paid out of the estate of intended testator.
Administration and Probate Act 1919 (SA) s 72J; Wills Act 1936 (SA) s 7; Inheritance (Family Provision) Act 1972 (SA) s 6(i) and 6(j); Succession Act 2006 (NSW) s 22(b), referred to.
Hill v Hill [2001] VSC 83; Bryant v Blake (2004) 237 LSJS 23; Hoffmann v Waters (2007) 98 SASR 500; Monger v Taylor [2000] VSC 304; Boulton v Sanders (2004) 9 VR 495; Re Fenwick [2009] NSWSC 530; Re Palmer [2003] VSC 21; Banks v Goodfellow (1870) LR 5 QB 549; In the Will of Wilson (1897) 23 VLR 197; Timbury v Coffee (1941) 66 CLR 277; Re D (J) (1982) Ch 237; Re C (a Patient) (1991) 3 All ER 866, considered.

In the Matter of RAK
[2009] SASC 288
Testamentary Causes Jurisdiction
GRAY J.
Background

This is an application pursuant to section 7 of the Wills Act 1936 (SA) for an order authorising the making of a will. The applicants are Valarie Rak and Jurik Rak, the parents of the proposed testator, Anthony Keith Rak.
Anthony Rak is 30 years of age. He was born on 12 September 1978. Anthony suffered a severe hypoxic brain injury as a result of choking on part of a toy at the age of five and half years. He received a substantial sum by way of compensation, which is currently managed on his behalf by a chartered accountant, Paul Victor Jorgensen. His estate, as at 10 August 2009, had an estimated value of $4,192,086.00.
Anthony has never made a will, has no children or spouse, and if he were to die intestate, such of his parents who survive him would receive his whole estate, and if both, then in equal shares.[1]
[1] Pursuant to Administration and Probate Act 1919 (SA) section 72J.
Anthony lives at home with his parents, who assume the role of primary carers. Anthony’s daily care requirements include hygiene, cleaning and transport. Katrina Rak, Anthony’s sister who is 27 years of age, has a close relationship with Anthony, caring for him one or two nights per week, providing assistance and respite to her parents. Katrina is regarded as a formal carer, and receives a modest payment for this role.
It appears that the plaintiffs and Katrina, and possibly Damien would be entitled to claim under the Inheritance (Family Provision) Act 1972 (SA), as persons who have “cared for, or contributed to the maintenance of” the defendant during his lifetime.[2]
[2] Inheritance (Family Provision) Act 1972 (SA) section 6(i), 6(j).
Damien Rak, the brother of Anthony, is 32 years of age, and has suffered since birth with a form of autism with associated language problems. Damien works part time and lives in a supported accommodation facility. Damien’s disability pension and small wage is sufficient to cover his regular living expenses. Dr Colin Field, a neuropsychologist, has described Damien as lacking the cognitive capacity to manage his own financial affairs.
On 6 August 2009, I ordered that Katrina be appointed litigation guardian to represent Damian. The plaintiffs are concerned that if they predecease Anthony, and he were to die intestate, his whole estate would pass to and be divided equally between Katrina and Damien Rak.[3] Their concern is that Damien will not be in a position to manage any benefit conferred upon him. As such, they contend that any benefit that is conferred upon Damien should be held in trust for him.
[3] Pursuant to Administration and Probate Act1919 (SA) section 72J.
On 9 February 2009 Leonie Millard was appointed as guardian ad litem for Anthony. Dr Gabor Kiss is of the opinion that Anthony does not have testamentary capacity. This is due to his impaired intellect consequent upon his brain injury. Dr Kiss does not consider Anthony to be capable of managing his affairs and does not consider that Anthony’s lack of testamentary capacity and lack of ability to manage his affairs will improve in the future.
It is to be noted that no evidence as to the financial position of the plaintiffs or Katrina was put before the Court. However, having regard to the circumstances and to the assets of Anthony’s estate, I have taken the view that this is not a material concern in this matter.
The proposed will, in substance, divides the estate into four equal parts between the plaintiffs and Katrina and Damien. The benefit conferred upon Damien is proposed to be held under a protective trust. Provisions are made for the children of Katrina in the event that she predeceases Anthony.
Statutory Wills
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. 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] For reasons which shall follow, it is clear that the within application is not such a case. It is clear that Anthony lacks testamentary capacity and is unlikely to ever gain that capacity. His estate is substantial. It is sensible that Anthony’s assets should not go on intestacy.[6] Accordingly, there exist good reasons to grant leave to proceed with the application.[7]
[4]    Bryant v Blake (2004) 237 LSJS 23 at 28 (Besanko J); Hoffmann v Waters (2007) 98 SASR 500.
[5]    Hoffmann v Waters (2007) 98 SASR 500 at [10] citing Monger v Taylor [2000] VSC 304 at [22]; Boulton v Sanders (2004) 9 VR 495 at [11]; Bryant v Blake (2004) 237 LSJS 23 at [25]; see also Re Fenwick [2009] NSWSC 530 at [119]-[125] (Palmer J).
[6]    Re Palmer [2003] VSC 21 at 17 (Ashley J).
[7]    Hoffmann v Waters (2007) 98 SASR 500.
Subsection (3) of section 7 of the Wills Act provides the matters upon which the Court must be satisfied before making an order pursuant to section 7. The Court must be satisfied of two matters of fact, and must exercise a curial discretion: namely, that there be want of testamentary capacity, that the proposed will accurately reflect the likely intentions of the testator, and finally reach the conclusion that it is reasonable in all the circumstances that the proposed order be made.[8] Subsection (4) lists the matters which the Court must take into account when considering an application for an order. These subsections relevantly provide:
[8]    see Boulton v Sanders (2004) 9 VR 495, at 499 (Dodds-Streeton AJA, with whom Charles JA and Ormiston JA agreed).
…
(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.
…
Before considering the matter further, it is appropriate to note that I am satisfied that the various persons whom section 7(7) contemplates as entitled to appear at and be heard at proceedings under that section, have been notified accordingly. Further, all relevant persons not only consent to the application, but also to the making of the substantive order in its proposed terms. By affidavit dated 17 August 2009, Katrina deposed that she, on her own behalf, and on behalf of Damien, consents to leave being granted to the plaintiffs to make the application, and consents to the Court approving and authorising the making of a will for Anthony, in the terms proposed or those which the Court deems fit. The plaintiffs consent to the variation of the interest in the estate should Anthony die intestate.
Testamentary Capacity
Section 7(12) of the Wills Act defines testamentary capacity as the capacity to make a will, and a note to that definition provides that the cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
The capacity test as advanced in Banks v Goodfellow[9] is of assistance. In that case, Cockburn LCJ 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.[10] In In the Will of Wilson,[11] 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”. The foregoing observations were cited with approval by Dixon J in Timbury v Coffee.[12]
[9] Banks v Goodfellow (1870) LR 5 QB 549.
[10] Banks v Goodfellow (1870) LR 5 QB 549 at 565; In the Will of Wilson (1897) 23 VLR 197 at 199.
[11] In the Will of Wilson (1897) 23 VLR 197.
[12] Timbury v Coffee (1941) 66 CLR 277 at 283.
The litigation guardian has deposed to meeting Anthony at his parents’ home in May 2009. The guardian described the defendant as a “physically healthy, fully grown young man who was very shy”, and confirmed that there appeared to be no doubt that the defendant suffers severe mental impairment. Although the guardian described the defendant as making one-word responses to basic questions, she also assessed his understanding of conversation as “extremely limited” – she recalled that when the issue of a will was raised, the defendant “appeared totally unable to understand the concepts of a will as a disposition of property after his death”. The guardian further deposed that the same meeting included a conversation between herself and Anthony’s parents. Mrs Rak advised that the defendant had no concept of money, or the value of money, other than to understand it is necessary to hand over notes and coins in exchange for items at a shop.
As earlier referred to, the medical evidence establishes that Anthony lacks capacity and is unlikely to gain capacity in the future. In Re Fenwick,[13] Palmer J observed:[14]
The best evidence will always be that of a specialist professional, e.g. a psychiatrist, consultant physician or clinical psychologist, who has recently examined the incapacitated person and who expresses an opinion in a report which complies with the expert witness rules of Court. The report should state the testing which has been carried out and should give a conclusion by express reference to each of the elements of testamentary capacity enunciated in Banks v Goodfellow. The latter requirement is unnecessary, of course, if it is a nil capacity case in which brain injury at an early age has rendered the patient incapable of ever developing adult cognitive faculties.
Accordingly, as earlier mentioned, I am satisfied that Anthony lacks testamentary capacity.
[13] Re Fenwick [2009] NSWSC 530.
[14] Re Fenwick [2009] NSWSC 530 at [127].
Likely Testamentary Intentions
Under section 7(3) of the Act, the Court is required to approve a will that accurately reflects the likely intentions of the proposed testator, if that person had testamentary capacity. For that reason, evidence relating to the wishes of the proposed testator should be put to the Court where such evidence is available, and the Court should approach this evidence with caution, as there is an inherent risk of the proposed testator being the subject of influence.[15]
[15] 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 at [130].
It is appropriate to record that in the present proceeding, there has been no evidence adduced as to the defendant’s intentions and nor could there be. This is a “nil capacity case” in which the proposed testator has never had testamentary capacity, and “a search for any degree of subjective intention is impossible in a nil capacity case”.[16]
[16] Re Fenwick [2009] NSWSC 530 at [171].
In Hoffmann v Waters,[17] Debelle J considered that guidance was provided by English authorities like Re D(J)[18] and Re C (A Patient)[19] and also the Victorian case of State Trustees Limited v Hayden where principles from Re D(J) and Re C(A Patient) were applied. With respect to this his honour outlined the following:[20]
[17] Hoffmann v Waters (2007) 98 SASR 500.
[18] Re D(J) (1982) (1) Ch 237.
[19] Re C (A Patient) (1991) 3 All ER 866.
[20] Hoffmann v Waters (2007) 98 SASR 500 at [16].
Since 1969, Courts of Protection in England have been invested with the power to authorise the making of wills on behalf of those who lack mental capacity to do so: see ss 95 to 97 of the Mental Health Act 1983 (UK) and its predecessor the Mental Health Act 1959(UK). Section 95 requires the court to make "provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered". In Re D(J) [1982] Ch 237 at 243-244 Sir Robert Megarry V-C stated some guidelines. Sir Robert was then dealing with a person who had made a will some 20 years earlier and who was suffering from senile dementia. Notwithstanding the different factual situation, some guidance is provided by the principles he outlined.
1It is to be assumed the patient is having a brief lucid interval at the time when the will is made.
2It is to be assumed that during the lucid interval the patient has a full knowledge of the past and a full realisation that as soon as the will is executed he or she will lapse into the actual mental state that previously existed with the prognosis as it actually is.
3It is the actual patient who has to be considered, not a hypothetical patient. The Court is not concerned with the patient on the Clapham omnibus. That is because the will is to be made by the Court and so by an impartial entity skilled in the law rather than the actual patient whose views while still of a sound disposing mind might be idiosyncratic and far from impartial. The Court must, therefore, take the intended testator as he or she was before losing testamentary capacity. Explaining this principle Megarry V-C said:
But subject to all due allowances, I think that the Court may seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight. If I may adapt Dr Johnson’s words, used for another purpose, the Court is to do for the patient what the patient would fairly do for himself, if he could.
4During the hypothetical lucid interval the patient is to be envisaged as being advised by competent solicitors who will draw to his or her attention the matters which a testator should bear in mind.
5In all normal cases the patient is to be envisaged as making a broad brush to the claims on his bounty rather than an accountant’s pen. Megarry V-C added (at 244):
There will be nothing like a balance sheet or profit and loss account. There may be many to whom the patient feels morally indebted; and some of that moral indebtedness may be readily expressible in terms of money, and some of it may not. But when giving legacies all shares of residue few testators are likely to reckon up in terms of cash the value of the hospitality and gifts that he has received from his friends and relations, and then seek to make some form of testamentary repayment, even if his estate is large enough for this. Instead, there is likely to be some general recognition of outstanding kindnesses by some gift which in quantum may bear very little relation to the cost or value of those kindnesses.
In Re C(A Patient), in considering what might be the intentions of a proposed testator who had a substantial estate, and who had never enjoyed testamentary capacity, Hoffmann J observed:[21]
In this case, the patient has lacked capacity since birth. In all relevant respects, the record of her individual preferences and personality is a blank on which nothing has been written…
…
I recognise the difficulty in forming a view of what might have been expected from a person who has never enjoyed a rational mind. But I think that in those circumstances the court must assume that she would have been a normal decent person, acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any…
In respect to the relevance of such English authorities, Debelle J in Hoffmann v Waters concluded:[22]
Section 7 of the Wills Act does not include the expression "might have been expected to provide" as appears in the legislation in the United Kingdom. Notwithstanding the absence of that expression, it is manifestly clear that is an appropriate factor to consider. It is a factor which is directly relevant to the question whether the proposed will would accurately reflect the likely intention of the intended testator. I respectfully agree with Dodds-Stretton JA in Boulton v Sanders (at [54]) that care should be taken in applying the English decisions which are grounded on a different statutory provision. However, in many cases such as this, where the person who lacks testamentary capacity has never been able to comprehend what is involved in making a will, it will be especially difficult, if not quite realistic, for the Court to be able to determine what his likely intentions are. In other cases, it might be less difficult to determine the likely intention of the person who lacks testamentary capacity. In State Trustees Ltd v Hayden [2002] VSC 98; (2002) 4 VR 229 Mandie J applied the principles in Re D (J) and in Re C. Each case will depend on its own facts and circumstances. In this present case, it is appropriate to apply the approach in England.
[21] Re C (A Patient) (1991) 3 All ER 866 at 870.
[22] Hoffmann v Waters (2007) 98 SASR 500 at [16].

The recent decision of Palmer J in the Supreme Court of New South Wales in Re Fenwick[23] provides an alternative starting point for a consideration of these matters. That case concerned two applications made under the relevant New South Wales legislation. Fenwick provides guidance as to the interpretation of that legislation. Palmer J canvassed the issues arising out of similar legislation in other jurisdictions, and reviewed “lost capacity”, “nil capacity” and “pre-empted capacity” cases. Regarding the “intention” in nil capacity cases his honour observed:[24]
[23] Re Fenwick [2009] NSWSC 530.
[24] Re Fenwick [2009] NSWSC 530 at [172]-[176].
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.
The next question is: is it reasonably likely that the incapacitated minor would have made the will now proposed? In order to answer this question, Hoffmann J in Re C had to envisage a fictitious person, somehow resembling the actual patient, while, in truth, applying the Court’s objective assessment of what a reasonable person would do in the circumstances. In my opinion, to perpetuate such a fiction in applying s 22(b) in a nil capacity case is neither necessary nor desirable.
The fiction is undesirable because legal fictions usually distort, rather than clarify, what the Court is actually doing. As was said by Crennan J (with whom Gleeson CJ, Gummow and Heydon JJ agreed) in Harriton v Stephens (2006) 226 CLR 52, at [269]:
The common law is hostile to the creation of new legal fictions and the use of legal fictions concealing unexpressed considerations of social policy has been deprecated.
See also per Gummow J in Scott v Davis (2000) 204 CLR 333, at [128] and [265], and in Pyrenees Shire Council v Day (1998) 192 CLR 330, at [163]. If that approach had been taken to the development of the law of statutory wills in the United Kingdom, the fictions proposed in Re D (J) and Re C would have been discarded. In my opinion, the law of statutory wills in Australia should be developed in a way which justifies a result by a transparent process of reasoning founded upon reality, not upon contra-factual assumptions.
More importantly, however, the fiction is unnecessary because the words of s 22(b) can be applied sensibly and pragmatically without it. Whether a proposed will is “reasonably likely” to have been made by a person who never had, and never will have, the smallest capacity to form testamentary intentions may be answered only in the sense, discussed above: “is there a fairly good chance that a reasonable person, faced with the circumstances of the incapacitated minor, would make such a testamentary provision?” In my opinion, in a nil capacity case, as distinct from a lost capacity case, this is the question which the words “reasonably likely” in s 22(b) require the Court to answer. The considerations involved in the question are entirely objective.
Taking note of the above observations, I record that the wording of section 7 itself is of primary importance in this current inquiry. As such, it is also to be noted that the wording of the New South Wales provisions in the above respect does differ to that employed in the South Australian legislation. The New South Wales provision is in the following terms:[25]
the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity…
(emphasis added)
Whereas the South Australian section provides:[26]
the proposed will, alternation or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity…
(emphasis added)
I am of the view that, this being a nil capacity case, the difference between a proposed will accurately reflecting likely intentions or being reasonable likely to be one which the person would have made, is not material to the present inquiry.
[25] Succession Act 2006 (NSW) section 22(b).
[26] Wills Act 1936 (SA) section 7(3)(b).
By affidavit dated 28 May 2009, the litigation guardian confirmed that although it is not possible to ascertain directly what Anthony’s wishes might be regarding the disposition of his assets after death, she observed that Anthony enjoys a close relationship with his parents and Katrina Rak, and that in light of the substantial value of Anthony’s assets, is of the view that he would wish to benefit his siblings as well as his parents. The litigation guardian deposed to observing Anthony as becoming particularly animated when reference was made to his young niece, Chloe, the daughter of Katrina Rak. Accordingly, the litigation guardian is of the view that the proposed will is likely to accurately reflect the defendant’s intentions if he had testamentary capacity. I am of the same view. The material before the Court demonstrates the importance of Anthony’s family members to him.
Either of the approaches outlined above taken to the present enquiry, will lead to the same conclusion in the circumstance of this case. I am satisfied that in light of the substantial value of Anthony’s estate, it is likely that he would wish to benefit those persons close to him who have provided care and comfort to him, and that it is likely that he would seek to provide funds to be held in a protective trust for the benefit of his brother Damien.
Consideration of the Application
As earlier stated, it is appropriate to consider the application with regard to the matters set out in section 7(4) of the Wills Act. In the course of my reasons I have done so, but it is appropriate to make further references to this section notwithstanding that it has been observed that the terms of subsection (4) “provide little guidance to the court on that question, especially in the case of an intended testator who has never made a will and who has never had the mental or intellectual capacity to consider how he would like to distribute his estate”.[27]
[27] Hoffmann v Waters (2007) 98 SASR 500 at [15].
I am satisfied that Anthony lacks testamentary capacity. I am satisfied that the proposed will accurately reflects the likely intentions of Anthony if he had testamentary capacity, to reflect his close relationship with his parents and siblings, and that it is reasonable in all the circumstances that the order should be made. In reaching the latter two conclusions I have considered the matters referred to in section 7(4). No previous wills have been made, and there is no likelihood of Anthony acquiring testamentary capacity. I have had regard to those persons who would be entitled to benefit from the estate if Anthony were to die intestate, in addition to those who would be entitled to claim benefit under the Inheritance (Family Provision) Act. I have had regard to the size of Anthony’s estate. No evidence was adduced as to the existence of persons, other than the plaintiffs and Katrina who have cared for or provided emotional support to Anthony. Similarly, there is no evidence to suggest that there exists any need for provision of a gift for a charitable or other purpose that Anthony might reasonably be expected to give by a will.
Costs
The terms of section 7(8) of the Wills Act confer on the Court a wide discretion as to costs in these matters. It was submitted by the plaintiffs that their costs, in addition to the costs of Katrina and Damien in relation to and incidental to this application, should be paid from the estate of Anthony. As earlier observed, the application in the within proceeding is a genuine one, made in the absence of any will. The circumstances are such that the application is a reasonable one. It is for these reasons that I consider it appropriate that the costs of the aforementioned parties be paid from the estate of Anthony.[28]
[28] For discussion of the competing considerations in this context see Hoffmann v Waters (2007) 98 SASR 500 at [21]-[26].
Order
I make the following orders:
-The plaintiffs are permitted to make this application.
-The Court approves and authorises the making of a will on behalf of Anthony Rak in the terms of the copy annexed.
-The will be signed by the Registrar of Probates in the presence of Paul Victor Jorgensen and sealed with the seal of the Court.
-The will be retained by the Registrar of Probates, and not to be withdrawn from deposit with the Registrar by or on behalf of the defendant unless by order of the Court pursuant to section 7(11) of the Wills Act 1936 (SA).
-The costs of all parties to be taxed as between solicitor and client and to be paid from the estate of Anthony Rak.
THIS IS THE LAST WILL of me ANTHONY KEITH RAK of [to be inserted] in the State of South Australia OF NO OCCUPATION.
1.     I REVOKE all wills and testamentary dispositions previously made by me.
2.I APPOINT PAUL VICTOR JORGENSEN of [to be inserted] in the said State Chartered Accountant to be the sole executor and trustee of this my will PROVIDED HOWEVER that if the said Paul Victor Jorgensen predeceases me or if he survives me but is unable or unwilling to obtain probate of this my will then I APPOINT my sister KATRINA MARIE RAK of [to be inserted] in the said State to be the sole executor and trustee of this my will in place of the said Paul Victor Jorgensen.
3.I DECLARE that the expression “my trustee” in this my will and in any and every codicil hereto shall mean the trustee or trustees for the time being of this my will whether original or substituted.
4.I GIVE the whole of my estate to my trustee UPON TRUST to pay thereout my debts and funeral and testamentary expenses and to divide the balance then remaining into four equal parts and to hold the same UPON TRUST:-
(a)     As to two of such parts for such of them my parents VALARIE JOAN RAK and JURIK RAK as shall be living at my death and if both then in equal shares absolutely.
(b)     As to one of such parts for my sister KATRINA MARIE RAK but if she predeceases me then for such child or children of hers as shall be living at my death and shall attain or shall have attained the age of twenty five years and if more than one then in equal shares absolutely.
(c)     As to the remaining part (hereinafter called “the trust fund”) to hold the same upon the following trusts:-
(i)During the lifetime of my brother DAMIEN MICHAEL RAK to pay the whole or such part of the income arising therefrom to my brother as my trustee shall in the absolute discretion of my trustee think fit or apply the whole or such part of the income for the general maintenance comfort and well being of my brother in such manner as my trustee shall in his absolute discretion think fit.
(ii)If at any time during the lifetime of my brother my trustee shall deem it expedient not to apply the income or some part thereof in accordance with the provisions of sub-clause 4 (c) (i) hereof to accumulate the unapplied income in any year or years not applied as aforesaid and to add the same to the capital of the trust fund and at the discretion of my trustee to apply the same as income in future years.
(iii)During the lifetime of my brother to raise out of the capital of the trust fund at such time or times as my trustee shall think fit such part of parts of the capital as my trustee shall in his absolute discretion think fit and to pay the same to my brother or to apply the same for the general maintenance comfort and well being of my brother in such manner as my trustee shall in his absolute discretion think fit.
(iv)Subject to the aforesaid trusts to hold the trust fund or so much thereof as shall not have been applied as aforesaid and all accumulations (if any) of income for such child or children of my brother as shall be living at my death or at the death of my brother (whichever shall last happen) and as shall attain or shall have attained the age of twenty five years and if more than one then in equal shares absolutely PROVIDED HOWEVER that if there is no child or children of my brother who shall live to attain a vested interest therein then I DIRECT my trustee to hold the trust fund or the balance then remaining (if any) UPON TRUST for my sister the said KATRINA MARIE RAK if she shall be living at my death or at the death of my said brother (whichever is the later) PROVIDED FURTHER HOWEVER that if my sister does not live to attain a vested interest therein then for such child or children of hers as shall be living at my death or at the death of my brother (whichever shall last happen) and shall attain or shall have attained the age of twenty five years and if more than one then in equal shares absolutely and if there is not child or children of my sister who lives to attain a vested interest therein then for such of them my parents the said VALARIE JOAN RAK and JURIK RAK as shall be living at my death and if both then in equal shares.
5.     IN the event of any trust contained in clause 4 of this my will failing and there being no person entitled to take by way of substitution then I DIRECT that the part of parts whereof the trusts shall so fail shall be divided between the remainder of the said parts in respect of which the trusts shall not fail in proportion to which such parts bear to each other and shall be held upon the same trusts as such other parts.
6.     I EMPOWER my trustee:-
(a)At such time or times as my trustee shall think fit and in such manner and upon such terms and conditions as my trustee shall think fit to sell call in or convert into money any part or parts of my estate which shall not consist of money.
(b)To apply the whole or any part of the contingent or vested share in the capital and income of my estate of any beneficiary of this my will under the age of twenty five years towards the maintenance education or advancement in life or generally for the benefit of such beneficiary and I further empower my trustee at the discretion of my trustee to make such payments to the guardian for the time being of such beneficiary or to any person with whom such beneficiary may be living without being in any way answerable for the application thereof.
(c)To retain in the same state of investment any property held by me at the date of my death notwithstanding that the same may be of a wasting speculative or reversionary nature and I declare that my trustee shall not be liable for any loss occasioned by retaining the said investments under the power herein contained.
(d)To appropriate any part or parts of my estate in or towards the satisfaction of the share or interest of any beneficiary in my estate and for such purpose to determine the value or values of any asset or assets to be so appropriated.
(e)To determine in the absolute discretion of my trustee (in the event of my trustee disposing of or having been deemed to have disposed of an asset) what part of parts of the capital or income of my trust estate will be resorted to in payment of any income tax liability flowing from the disposal or deemed disposal.
7.     I DECLARE that any trustee of this my will who is an accountant shall be entitled to all usual professional charges for all work done by him or any partner of his (whether such work be of a professional nature or not) in obtaining probate of this my will or any codicil hereto and in the general administration of my estate in the same manner in all respects as if he were not a trustee hereof.