In the Matter of Shaun Arthur Pickles - [2013] SASC 175

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Matter of SHAUN ARTHUR PICKLES
[2013] SASC 175
Judgment of The Honourable Justice Gray
6 November 2013
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 the defendant's parents pursuant to section 7 of the Wills Act 1936 (SA) for an order authorising the making of a will on behalf of the defendant. The defendant is aged 23 years and severely disabled as a result of an injury at birth. The defendant's condition is permanent with no prospect of recovery. 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 he had testamentary capacity. Whether it is reasonable in all the circumstances that the order should be made.
Held per Gray J (authorising the making of the statutory will):
(1) There exist good reasons to grant leave to proceed with the application. Permission granted (at [13]).
(2) The defendant lacks testamentary capacity (at [16]-[23]).
(3) The proposed will reflects the defendant's likely intentions (at [24]-[43]).
(4) It is desirable for an intestacy to be avoided by the granting of an order allowing the application for a statutory will (at [44]-[49]).
Wills Act 1936 (SA) s 7, referred to.
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 Fenwick (2009) 76 NSWLR 22; Re Brown [2009] SASC 345; In the Matter of Rak [2009] SASC 288; Bryant v Blake (2004) 237 LSJS 23; Hoffmann v Waters (2007) 98 SASR 500; Boulton v Sanders (2004) 9 VR 495; Re Palmer [2003] VSC 21, considered.

In the Matter of SHAUN ARTHUR PICKLES
[2013] SASC 175
Testamentary Causes Jurisdiction
GRAY J.

On 6 November 2013, in response to an application pursuant to section 7 of the Wills Act 1936 (SA) and rule 98 of the Probate Rules 2004 (SA) I made an order authorising the making of a will on behalf of Shaun Arthur Pickles. The order included the following:
1.The plaintiffs have permission pursuant to section 7(1) of the Wills Act 1936 to make application on behalf of the proposed testator for an order authorising a will to be made for the proposed testator in the terms of the copy will annexed hereto.
2.The Court approves and authorises the making of a will on behalf of the proposed testator in the terms of the copy will annexed hereto.[1]
3.The will made pursuant to this Order (“the Will”) be signed by the Registrar of Probates and be sealed with the seal of the Court.
4.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 (SA).
5.The costs of all parties to these proceedings be paid out of the monies administered and held by Public Trustee on behalf of the proposed testator as taxed or agreed on a solicitor/client basis.
[1] The terms of the will appear in the schedule to these reasons.
Shaun’s parents, Karen Leanne Pickles and Steven Arthur Pickles, Shaun’s sister, KLP, and Shaun himself were all represented at the hearing of the application. Affidavits of Mr Pickles and Ms Pickles sworn on 23 April 2013, Leonie Evans Millard sworn on 11 July 2013, Gaetano Anthony Aiello sworn on 2 August 2013 and 21 August 2013, and all exhibits thereto were tendered and received in support of the application. Oral evidence from Ms Pickles and Margaret Joy Williams, known to the family as Daisy, was also heard by the Court. The Court was assisted by written submissions from each of the parties.
My reasons for making the order authorising the making of a statutory will on Shaun’s behalf follow.
Background
Shaun was born on 20 October 1990 with cerebral palsy which affects his legs, arms and upper body as a result of an injury at birth. His condition is permanent with no prospect of recovery. He is aged 23 years.
Shaun requires full-time care. He is not independent in any of the tasks of daily living and requires assistance with feeding, toileting, dressing and mobility. He also experiences additional difficulties with breathing and swallowing. Shaun’s ability to communicate is impaired. He has a very limited vocabulary and can only put three or four words together. Shaun does not attend school. He attends a private home each day at a Day Options Program for the disabled called Comrec.
Mr and Ms Pickles are full-time carers for Shaun. Ms Pickles herself is on a disability support pension and is also considered a carer for Shaun for social security purposes. Mr Pickles is a full-time carer for Shaun and for Ms Pickles.
Shaun has one sibling, KLP, who is aged 16 years.
Ms Williams has been Shaun’s carer since 1995. Ms Williams has worked with children and adults with disabilities since the early 1990s and has been employed by Intellectual Disability Services at Mt Gambier and undertaken a course of certification.
On 22 February 2010, in the District Court of South Australia, Shaun was awarded damages in the amount of $7,000,000.00 inclusive of both interest and costs. The Public Trustee was appointed manager to take possession of, and control and manage that part of Shaun’s estate.
On 31 May 2010, Mr and Ms Pickles, were appointed full joint guardians and limited administrators of Shaun and his estate, pursuant to an order of the Guardianship Board.
On 14 May 2013, a summons was issued at the request of Mr and Ms Pickles that the Court approve and authorise the making of a will on behalf of Shaun in terms of a draft will attached to their joint affidavit sworn on 23 April 2013, pursuant to section 7 of the Wills Act. The proposed will appoints Mr and Ms Pickles as executors, with substitution for the Public Trustee. The terms of the will are set out in the Schedule to these reasons.
On 21 May 2013, Gaetano Aiello was appointed by the Registrar of Probates as guardian ad litem for Shaun. On 27 June 2013, Shaun’s sister, KLP, was joined as an interested party to the proceeding. KLP is represented by Ms Millard.
The Application
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.[2] 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.[3] The purpose of a grant of leave to proceed is to provide a mechanism by which baseless or unmeritorious applications are screened out.[4] For the reasons that follow, the within application is not such a case. Shaun lacks testamentary capacity and is unlikely to ever gain that capacity. His estate is substantial. It is sensible that Shaun’s assets should not go on intestacy.[5] Accordingly, there exist good reasons to grant leave to proceed with the application.[6]
[2]    See Bryant v Blake (2004) 237 LSJS 23, 28.
[3]    Hoffmann v Waters (2007) 98 SASR 500, [10].
[4]    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].
[5]    See Re Palmer [2003] VSC 21, [17].
[6]    See Hoffmann v Waters (2007) 98 SASR 500, [10].
Section 7 of the Wills Act relevantly provides:
(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.
…
(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.
Pursuant to subsection 7(3), before making the order under subsection 7(1), I must be satisfied that Shaun lacks testamentary capacity, that the proposed will would accurately reflect the likely intentions of Shaun if he had testamentary capacity and that it is reasonable in all the circumstances that the order should be made.
Testamentary Capacity
Testamentary capacity is defined as “the capacity to make a will”.[7] The legislative note explains that the cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
[7] Wills Act 1936 (SA) section 7(12).
In Banks v Goodfellow,[8] a test for capacity was advanced 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.[9] 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.”[10] These observations were cited with approval by Dixon J in Timbury v Coffee.[11]
[8] Banks v Goodfellow (1870) LR 5 QB 549.
[9] Banks v Goodfellow (1870) LR 5 QB 549, 565.
[10] In The Will of Wilson (1897) 23 VLR 197, 199.
[11] Timbury v Coffee (1941) 66 CLR 277, 283; see also Re Fenwick (2009) 76 NSWLR 22, [126].
The question of testamentary capacity should be assessed having regard to medical reports, including those of an appropriately qualified specialist.[12] Reports from medical specialists were annexed to the affidavit of Mr and Ms Pickles.
[12] Re Fenwick (2009) 76 NSWLR 22, [126]-[127].
In a letter dated 8 March 2012, Shaun’s treating specialist, Andrew Tidemann, discussed Shaun’s testamentary capacity. Dr Tidemann expressed the opinion that Shaun is not able to fully comprehend the nature and effects of a will on the basis of his limited intellect. This conclusion was expressed on the basis that Shaun has a moderate intellectual disability and difficulties with communication and control of movement. Dr Tidemann opined that Shaun is unable to realise the extent and the character of the property he is dealing with. Further, Shaun has demonstrated a lack of understanding of numerical concepts and is not consistently orientated in time, place and person.
Dr Tidemann indicated that Shaun is unable to weigh the competing claims which naturally ought to press upon him. He is unable to write independently and to express anything but fairly basic needs verbally. Dr Tidemann opined as follows:
... I am of the opinion that Shaun is not able to fully comprehend the nature and effects of will on the basis of his limited intellect. I have reached the conclusion over time that Shaun has a moderate intellectual disability. …
…
… I feel it would be appropriate that the court looked to appoint a proxy to prepare and execute a will for Shaun.
In a letter dated 7 January 2013, Debbie Hough, Shaun’s general practitioner, who reviews Shaun’s medical needs every six months, observed:
Shaun’s medical condition is stable. He remains a quadriplegic and completely dependant for all activities of daily living. He has some mobility – either crawling/using an electric wheel chair, and has occasional seizures for which he is on medication.
Shaun’s level of dependence will not change in the future.
Mr and Ms Pickles deposed in their affidavit that Shaun’s ability to communicate is impaired. They have attempted the use of a variety of communication devices but without success. Shaun apparently has very limited vocabulary and can only put three or four words together.
In the light of the above, I am satisfied that Shaun lacks testamentary capacity.
Likely Testamentary Intentions
Subsection 7(3)(b) of the Wills Act requires that this Court, before making an order under subsection 7(1), 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 proposed testator should be put to the Court where such evidence is available.
In finding whether the proposed will accurately reflects the likely intentions of the proposed testator, the law distinguishes between “lost capacity” and “nil-capacity” cases. I discussed this distinction in Re Brown.[13] I adopt and apply my observations in that case, in particular the following:[14]
In Re C (A Patient), in considering what might be the intentions of a proposed testator who had never enjoyed testamentary capacity, Hoffmann J observed:[15]
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…
It is here that 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.
[13] Re Brown [2009] SASC 345.
[14] Re Brown [2009] SASC 345, [33]-[34].
[15] Re C (A Patient) [1991] 3 All ER 866 at 870.
In Re Fenwick, Palmer J classified cases where a person has been born with mental infirmity or has lost testamentary capacity well before ever being able to develop any notion of testamentary disposition as “the nil capacity cases”.[16] His Honour observed:[17]
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.
… 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.
[16] Re Fenwick (2009) 76 NSWLR 22, [26]-[27].
[17] Re Fenwick (2009) 76 NSWLR 22, [172]-[173]
There is difficulty associated with attempts to identify the likely intention of a person who has never had testamentary capacity.[18] When there are significant assets in an estate the subject of a statutory will application, it is necessary to consider whether intestacy would adequately provide for all reasonable claims on the estate.[19] This may be assessed by reference to the relationship of the defendant with relevant persons. Further, there exists a general proposition that persons with assets of value commonly make wills rather than die intestate.[20]
[18] See In the Matter of Rak [2009] SASC 288, [19]; Re Fenwick (2009) 76 NSWLR 22, [171].
[19] Re Fenwick (2009) 76 NSWLR 22, [172].
[20] See eg In the Matter of Rak [2009] SASC 288, [23]; Re Fenwick (2009) 76 NSWLR 22, [173].
Under the rules of intestacy, Shaun’s estate would be left to his parents. In the event that his parents were to predecease him, his estate would pass to his sister KLP. In the event that KLP, in addition to his parents, were to predecease him, more distant relatives would benefit.
In order to address the question of Shaun’s likely intentions if he had testamentary capacity, it is necessary to describe Shaun’s relationships with the proposed beneficiaries under the will.
Shaun’s relationship with his parents
Shaun’s relationship with his parents was addressed in the joint affidavit of Mr and Ms Pickles and in oral evidence by Ms Pickles. It is apparent from the evidence that Mr and Ms Pickles’ lives were substantially altered by Shaun’s traumatic birth and ensuing significant disability. For many years, while the claim in the District Court was running, the family managed Shaun’s disability with very little financial assistance. Some Government assistance was provided, but it was often insufficient.
In spite of the difficulties faced by Shaun’s parents for many years, it is evident that this has not impeded their love for and sense of loyalty to their son. Their devotion to their son is readily apparent. In oral evidence, Ms Pickles explained that Shaun is very attached to his parents. Ms Pickles described his attachment as particularly strong with her and explained that he often becomes anxious when separated from her. Shaun depends upon his parents for his daily functioning. As full-time carers for Shaun, they keep to a strict routine to provide Shaun with a secure and loving environment.
Shaun’s relationship with his sister

Ms Millard, in her affidavit sworn on 11 July 2013, sets out KLP’s position. She was born on 8 September 1997 and is now aged 16 years. She is Shaun’s only sibling. The evidence established that they share a close and loving relationship. She spends time at home with him each day after school. She chooses to stay each alternate weekend with Shaun at Ms Williams’ home. KLP has a very good relationship with Ms Williams. They enjoy activities together, including cooking, an activity which Shaun enjoys watching. KLP is at high school. She intends to complete Year 12 and attend university or TAFE in Adelaide.
Shaun’s relationship with Ms Williams
Shaun’s relationship with Ms Williams was described in Mr and Ms Pickles’ affidavit sworn 23 April 2013. Ms Williams also gave oral evidence at the hearing of the application.
Ms Williams was born in 1971 and is now aged 42 years. She first commenced working with Shaun in 1995 part-time when he was aged five years, when Shaun’s parents were awarded 260 hours of support per year through the Disabilities and Support Unit.
From 2001 until 2010, Ms Williams volunteered to work for $7.50 per hour instead of $15.00 per hour so that she could assist the family for double the hours. In addition, during the years 2001 to 2010, Ms Williams attended the family’s house each weekday evening and she assisted for two to three hours and also joined in on the family meal. She did not get paid for this work. Throughout this period, during every second weekend, Ms Williams would care for Shaun for the entire weekend to provide the family with respite. This was supported by government funding which was, however, refunded by Shaun when he received his compensation. Since Shaun received his compensation in 2010, Ms Williams has been paid a full-time wage by the Public Trustee on behalf of Shaun.
Ms Williams arrives at the family house every weekday from 4.00 pm and stays until 8.00 pm. She works 40 hours per fortnight and, in addition, once a fortnight she looks after Shaun from 4.00 pm Friday until the Monday morning, when she takes Shaun to Comrec. KLP also often stays with Ms Williams on these weekends. Ms Williams takes Shaun on occasions to Murray Bridge when she visits her mother. Ms Williams commenced working full-time for the family in 2010.
Ms Williams’ job description includes changing nappies, feeding Shaun and giving him drinks every 15 minutes, entertaining him, providing physiotherapy, bowel enemas, seizure control, dressing, bathing, showering and all aspects of health and care for all his needs.
In 2010, Mr and Ms Pickles built a house which provides for all Shaun’s needs and where all rooms are accessible to him in his wheelchair. This property belongs to and is registered in the name of Shaun. A house was also built two streets away, where Ms Williams now resides, that is also fully equipped for Shaun’s needs. This property is held in the name of Mr and Ms Pickles as joint tenants.
A motor vehicle that is adapted for Shaun’s needs was purchased by his parents on his behalf. Ms Williams drives this vehicle. She joins the family to assist when they go on holiday once each year.
Mr and Ms Pickles have described Ms Williams’ relationship with their son as “like a second mother to Shaun”. They deposed that Shaun has a very close relationship with Ms Williams and he is very dependent on her for his day-to-day care and support. They also explain that Ms Williams has become someone “on whom the family have become very reliant”. Shaun has the capacity to interact with most people, but they believe from close observation over the past 17 years that Shaun considers Ms Williams a member of the family. Mr and Ms Pickles described that:
While it is difficult for Shaun to articulate, he is aware of the time that [Ms Williams] comes and goes to our house and he asks me constantly “Where’s my Daisy?” if she is late in arriving.
When [Ms Williams] is not around the house Shaun frets and when she leaves the house he cries for five or six minutes. We talk to him until he calms down.
[Ms Williams] has consented to care for Shaun if we are no longer able to care for him. We have named her in our wills as the guardian of Shaun and KLP.
When Ms Williams was called to give evidence, she expressed a deep and evidently genuine affection for Shaun and the entire Pickles family. She was clearly humbled by the proposed gift.
Shaun’s relationship with his extended family
Shaun’s relationship with his maternal grandparents was described by Ms Pickles as positive, with regular contact, and love and care. In an affidavit sworn by his grandparents, they depose that neither grandparent seeks to benefit from Shaun’s estate.
According to Ms Pickles, there was a falling out with one of her brothers, Shaun’s uncle, over Shaun’s condition some years earlier. Neither of Ms Pickles’ brothers has contact with Shaun. Shaun has no contact with his extended family in addition to that described.
Reasonableness of the Order
The matters to which a Court shall have regard in making a will in respect of a person who lacks testamentary capacity are detailed in subsection 7(4) of the Wills Act. It is convenient to again extract the terms of that subsection:
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.
The size of Shaun’s estate is substantial. It is likely that if he had testamentary capacity, he would wish to make a will to benefit those dear to him. The evidence of Shaun’s affectionate relationships with his parents, KLP and Ms Williams is a strong indication of the people whom he might wish to benefit, had he testamentary capacity. Shaun has no prior will and shows no prospect of acquiring testamentary capacity. I am satisfied that the interests of his parents and of his sister are adequately protected under the proposed will and that the will would not be likely to deprive them of the funds sufficient for their maintenance.
The absence of any regular contact with extended family who might survive Shaun in the event of his death and the death of his parents and KLP justifies the charitable disposition of residue, rather than a distribution to remote next of kin, which would accord with the principles of distribution on intestacy.
As a person who has cared for and provided emotional support to Shaun in more than a mere employment capacity, Ms Williams appears, to my mind, to be a worthy recipient of a legacy. It is significant that the persons most likely to benefit from Shaun’s estate in the event of an intestacy, namely, Shaun’s parents and his sister, are all supportive of provision being made in the will for Daisy. In particular, in relation to KLP, Ms Millard deposed:
I believe [KLP] has a full understanding of the importance of [Ms Williams] has in Shaun’s life, and [KLP] regards [Ms Williams] as a “really nice person” with a “big heart”.
I consider the terms of the Will proposed for Shaun ... properly provide for [KLP], who appears to have no special needs over and above the usual requirements of a 15 year old girl for accommodation, maintenance and education. These needs are currently being met by the plaintiffs, and would likely be met from the assets of the plaintiffs’ estates in the event the plaintiffs predeceased [KLP].
Ms Millard further deposed that should Shaun, Mr Pickles and Ms Pickles predecease KLP, the legacy provided for Ms Williams in the proposed statutory will would not, in her opinion, deprive KLP of sufficient funds for her ongoing maintenance and accommodation.
Finally, it is to be reiterated that there was no opposition by any person to the order that was made. The parties acknowledged that should there be a change of circumstances in the future, it will be necessary to return to this Court to reassess the terms of the will.
Conclusion
On the bases described above, I am satisfied that the proposed will reflects Shaun’s likely intentions and that it is desirable for an intestacy to be avoided by the granting of an order allowing the application for a statutory will.
Schedule
THIS IS THE LAST WILL AND TESTAMENT of SHAUN ARTHUR PICKLES of 5 Veldarose Lane Mount Gambier in the State of South Australia authorised by an order dated the day of November 2013 made under section 7 of the Wills Act, 1936.
1.     I REVOKE all former wills and testamentary dispositions made by me.
2.I APPOINT my mother KAREN LEE PICKLES and my father STEVEN ARTHUR PICKLES to be the executors and trustees of this my will HOWEVER if both my said parents predecease me or are unwilling or unable to act as executor and trustee of this my will then I APPOINT PUBLIC TRUSTEE of 211 Victoria Square Adelaide in the State of South Australia to be executor and trustee of this my will (hereinafter referred to as “my trustee”).
3.     I GIVE AND BEQUEATH:
(a)     A legacy of two hundred thousand dollars ($200,000.00) to my sister [KLP] provided that she shall survive me and have attained or shall live to attain the age of twenty-one (21) years.
(b)     A legacy of two hundred and fifty thousand dollars ($250,000.00) or ten per centum (10%) of the net value of my estate at the date of my death, whichever is the lesser amount to MARGARET JOY WILLIAMS provided she shall survive me .
4.I GIVE DEVISE AND BEQUEATH the rest of my real and personal estate of whatsoever nature and wheresoever situated UPON TRUST to sell call in and convert into money or such part or parts of my estate as do not consist of money with power to postpone such sale calling in and conversion or any part or parts thereof for so long as my trustee thinks fit and to retain my estate or any part of my estate in the same state of investment as it is in at my death without being responsible for loss and out of the proceeds of any such sale calling in and conversion and out of my ready money to pay my funeral and testamentary expenses and debts and all duties in connection with my estate (without apportioning or adjusting any of such duties between the beneficiaries under this my will) and to stand possessed of the residue of the monies produced by any such sale calling in and conversion and of my ready money and of such parts of my estate as remain unconverted respectively (“my residuary estate”) for such of my mother the said KAREN LEE PICKLES and my father the said STEVEN ARTHUR PICKLES as are living at my death and if both then equally between them.
5.IF both my mother the said KAREN LEE PICKLES and my father the said STEVEN ARTHUR PICKLES predecease me then I GIVE DEVISE AND BEQUEATH the rest of my real and personal estate of whatsoever nature and wheresoever situated to my trustee for my sister [KLP] PROVIDED THAT she shall survive me and shall live to attain the age of twenty-one (21) years.
6.I DECLARE that if my sister the said [KLP] predeceases me leaving a child or children who survive me then such child or children will take and if more than one then equally between them the share in my estate which his her or their mother would have taken had she survived me PROVIDED THAT each shall have attained or shall live to attain the age of twenty-one (21) years.
7.I EMPOWER my trustee to apply at any time the whole or such part in each case as my trustee thinks fit of the capital and income of the expectant or presumptive share of any person in my estate for or towards his or her advancement maintenance education or benefit and either my trustee to apply the same or pay the same to the guardian or guardians for the time being of a person who may be a minor for the purposes aforesaid or any of them without seeing to the application thereof.
8.I DIRECT that if the trusts for the disposition of my residuary estate totally fail or determine then subject to such trusts my trustee will stand possessed of the capital and income of my residuary estate UPON TRUST as follows:
8.1    For the said MARGARET JOY WILLIAMS provided she shall survive me; HOWEVER
8.2    IF the said MARGARET JOY WILLIAMS predeceases me then my trustee shall establish a fund known as the SHAUN PICKLES FOUNDATION (“the fund”) and to invest the fund as authorised by law and to apply the net income of the fund each financial year to any such charitable institution in Australia which at the time of applying the net income of the fund is registered as a Deductible Gift Recipient pursuant to the Income Tax Assessment Act 1997 (Cth) in such proportions that my trustee thinks fit in my trustee’s absolute discretion to be used for the provision of wheelchairs, medical aides and equipment to support disabled persons in the Lower South East of South Australia and I DECLARE that the receipt of the authorised officer for the time being of each organisation benefiting under this clause shall be sufficient discharge to my trustee.
9.     I EMPOWER my trustee to:
9.1     Sell the whole or any part of my estate.
9.2    Appropriate and partition any real or personal property forming part of my estate (and for such purposes to determine the values thereof) to or towards the share of any beneficiary or beneficiaries under this my will.
10.I DIRECT that any capital gains tax payable in my estate is to be paid without any adjustment or apportionment as between any of the beneficiaries under this my will.
DATED the      day of         2013