Jeavons v Chapman (No 2) - [2009] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
JEAVONS v CHAPMAN (No 2)
[2009] SASC 3
Reasons for Decision of The Honourable Justice Gray
12 January 2009
MENTAL HEALTH - MANAGEMENT AND ADMINISTRATION OF PROPERTY - PROTECTION ORDERS
MENTAL HEALTH - GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS - OTHER MATTERS
MENTAL HEALTH - LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
Plaintiffs granted protection order over defendant and defendant’s estate pursuant to section 7, Aged and Infirm Persons’ Property Act 1940 (SA) and appointed managers of protected estate pursuant to section 10, Aged and Infirm Persons’ Property Act – in making protection order, Court was satisfied that defendant was unable to manage her affairs – plaintiffs sought advice, directions and authorisations from Court in relation to management of protected estate pursuant to section 13(2) and 16, Aged and Infirm Persons’ Property Act – whether section 13(2), Aged and Infirm Persons’ Property Act enables Court to authorise plaintiffs as managers to pursue proceedings in testamentary causes jurisdiction to make a statutory will for defendant – whether Court should authorise plaintiffs to pursue testamentary causes proceedings – whether Court should make an order indemnifying plaintiffs against all costs, charges and expenses properly incurred by them in the testamentary causes proceedings, pursuant to section 7(8) Wills Act 1936 (SA).
Held: Court has a wide discretion under section 13(2) Aged and Infirm Persons’ Property Act to authorise persons in role of manager of protected estate to pursue statutory will application in an appropriate case – Court should not exercise discretion to authorise plaintiffs as managers to pursue statutory will application in this case – plaintiffs’ statutory will application is driven by personal, moral and familial obligations, is unconnected with management of protected estate, and is not justified on facts and evidence – orders as to indemnity undesirable and premature at this stage of the proceedings – plaintiffs’ applications dismissed.
Aged and Infirm Persons’ Property 1940 (SA) s 7, s 8, s 10, s 13, s 16, s 18, s 24, s 29, s 31; Administration and Probate Act 1919 (SA) s 69; Court of Protection Rules 2001 (UK); Court of Protection Rules 2007 (UK); Mental Health Act 1983 (UK) s 96(1)(e); Mental Capacity Act 2005 (UK) s 18(1)(i); Protected Estates Act 1983 (NSW) s 13(1), s 71(1); Supreme Court Rules 2006 (SA) 89; Trustee Act 1936 (SA) s 35(2), s 91; Wills Act 1936 (SA) s 7; Wills (Wills for Persons Lacking Testamentary Capacity) Amendment Bill 1996 (SA), referred to.
Australian Securities and Investment Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; Bryant v Blake (2004) 237 LSJS 23; D’ercole v Wood [2005] SASC 57; Executor Trustee Australia Ltd v Blum [2007] SASC 329; Glazier Holdings Pty Ltd v Australian Men’s Health Pty Ltd (Unreported, Supreme Court of New South Wales, Young J, 30 April 1998); Goodridge v Jenkins (1973) 5 SASR 288; Hoffmann v Waters (2007) 98 SASR 500; Jeavons v Chapman [2008] SASC 249; Kuru v State of New South Wales (2008) 246 ALR 260; Public Trustee v Hill and McFarlane (1993) 174 LSJS 48; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; IW v City of Perth (1996) 191 CLR 1; Re Atkinson (deceased) [1971] VR 612; Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 249 ALR 250; Re an Incapable Person D [1983] 2 NSWLR 590; Public Trustee v O’Donnell (2008) 101 SASR 228; Qantas Airways Ltd v Christie (1998) 193 CLR 280; Saul v Lin (No 2) (2004) 60 NSWLR 275; Saul v Lin [2004] NSWSC 307; Re McComb [1993] 3 VR 485; State of New South Wales v Amery (2006) 230 CLR 174, considered.

JEAVONS v CHAPMAN (No 2)
[2009] SASC 3
Civil
GRAY J.

This is an application for advice and directions.
Background
The defendant, Torrie Stoddart Chapman, is 88 years of age. She suffers from both physical and mental impairment. She resides at the Francis Nursing Home in Bordertown. A consultant physician and psychiatrist have attested that Mrs Chapman lacks testamentary capacity.
Mrs Chapman has no surviving spouse, siblings, issue of siblings, and has no issue of her own. There are no relatives of the first, second, third or fourth degree presently living. There are only issue of relatives of the fourth degree living. The plaintiff, Juliet Marie Seymour Jeavons, is a member of that class. Mrs Jeavons is also the holder of a power of attorney over Mrs Chapman, pursuant to a registered deed executed on 6 January 2007. The plaintiff, Steven David Jeavons, is Mrs Jeavons’ husband.
Mrs Chapman has substantial assets, said to be of a total net value of between $8,000,000 and $10,000,000. Her estate includes a residential property at Crafers, which houses a valuable antique collection, a residential property in Queensland, a residential property in Bordertown, rural land in the South East of South Australia, and a substantial share portfolio.
On 18 February 2008, Mr and Mrs Jeavons, by summons, instituted the within proceedings, seeking, inter alia, a protection order with respect to Mrs Chapman’s estate, pursuant to section 7 of the Aged and Infirm Persons’ Property Act 1940 (SA),[1] and the appointment of Mr and Mrs Jeavons as managers of the protected estate, pursuant to section 10 of the Aged and Infirm Persons’ Property Act[2] – the protection proceeding. The summons was issued pursuant to section 8(1)(e) of the Aged and Infirm Persons’ Property Act,[3] on the basis that Mr and Mrs Jeavons were persons who would adduce proof of circumstances, which in the opinion of the Court, would make it proper that they should make the application.
[1] Section 7 of the Aged and Infirm Persons’ Property Act 1940 (SA) relevantly provides:
(1)Where it is made to appear to the satisfaction of the court that any person is, by reason of age, disease, illness, or physical or mental infirmity—
(a)     unable, wholly or partially, to manage his affairs; or
(b)    subject to, or liable to be subjected to, undue influence in respect of his estate, or the disposition thereof, or of any part thereof; or
(c)     otherwise in a position which in the opinion of the court renders it necessary in the interest of that person or of those dependent upon him that his property should be protected as provided by this Act,
the court may make a protection order in respect of the estate or part of the estate of that              person.
…
[2] Section 10 of Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
(1)If the court thinks fit to make a protection order, the court shall, in and by the protection order, appoint the spouse, domestic partner or near relation by blood or marriage of the protected person, or some other person, or any body corporate incorporated in this State by or pursuant to any law of this State, either alone or with any other person or persons, or the Public Trustee alone, to be the manager to take possession of and to control and manage all or such part or parts of the estate of the protected person as the court may direct.
(2)The court may in any case appoint the Public Trustee alone to be manager, but shall not appoint any person to be manager together with the Public Trustee.
(3)The court may, if it thinks fit, require any manager other than the Public Trustee to give such security to the Public Trustee as to the court seems fit for the due performance of the duties of manager.
(4)If by the protection order any person other than the Public Trustee is appointed to be manager, the court shall cause a copy of the protection order to be supplied to the Public Trustee.
[3] Section 8(1)(e) of the Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
(1)Except in the case of an application made under subsection (1) of section 8A of this Act, every application for a protection order shall be made by originating summons, and may be made—
…
(e)     by any other person who adduces proof of circumstances which in the opinion of the court make it proper that such other person should make the application.
On 13 March 2008, Mrs Jeavons, acting pursuant to her power of attorney over Mrs Chapman, executed a cash draw down facility loan contract with the Savings and Loans Credit Union. The facility was for a maximum amount of $1,000,000 and was secured over the Crafers and Bordertown properties.
On 20 March 2008, Mrs Jeavons, acting pursuant to her power of attorney over Mrs Chapman, executed a mortgage over the Crafers Property and the Border Town property, in favour of Savings and Loans Credit Union. The mortgage was registered on 12 May 2008.
On 27 March 2008, a Master of this Court made a protection order in relation to Mrs Chapman and her estate and appointed Mr and Mrs Jeavons as managers of the protected estate. In making the protection order, this Court was satisfied that Mrs Chapman, by reason of age, disease, illness, or physical or mental infirmity, was unable, wholly or partially, to manage her affairs.[4]
[4] See Aged and Infirm Persons’ Property Act 1940 (SA), section 7(1)(a).
On 1 April 2008, Mr and Mrs Jeavons, as managers, executed a lease agreement between Mrs Chapman, as owner, and BLW Steer & Sons, as lessee, over the rural land in the South East. The annual lease income is $125,570.50.
A schedule of payments made by Mr and Mrs Jeavons from the $1,000,000 facility was tendered. That schedule discloses that payments commenced on 4 April 2008, and continued until 2 July 2008. The details of any payments since 2 July 2008 are not before the Court. The schedule discloses that in the above period, payments totalling $191,577.10 have been made. Of this amount, an amount of $86,922.53 has been paid to the solicitor for Mr and Mrs Jeavons, and an amount of $45,900 has been paid to a business adviser, Michael John Fuller, pursuant to a retainer agreement of 1 April 2008.[5]
[5] Retainer Agreement
Mr Jeavons explained in evidence that Mr Fuller acted as a general adviser to several businesses in which Mr Jeavons had an interest, and that he wished to have Mr Fuller provide business advice with respect to the duties being carried on by Mr and Mrs Jeavons as managers of Mrs Chapman’s estate. He explained that Mr Fuller was available for “seven days a week 24/7”.
On 11 June 2008, Mr and Mrs Jeavons instituted related proceedings in the testamentary causes jurisdiction of this Court seeking permission to apply for the making of a statutory will on behalf of Mrs Chapman, and the Court’s approval and authorisation of the statutory will, pursuant to section 7 of the Wills Act1936 (SA) – the testamentary causes proceeding.[6] Mr and Mrs Jeavons issued the testamentary causes proceeding in their personal capacities and not as managers of the protected estate.
[6] Section 7 of the Wills Act 1936 (SA) is extracted later in these reasons.
The testamentary causes proceeding was set for an expedited hearing, to commence on 1 September 2008. However, in the event, the hearing was adjourned sine die on the application of Mr and Mrs Jeavons.
The Application For Advice and Directions
By interlocutory application filed in the protection proceeding on 2 June 2008, and subsequently amended on 8 July 2008, Mr and Mrs Jeavons sought, pursuant to section 13(2) of the Aged and Infirm Persons’ Property Act,[7]
-that they be conferred power and authority to prosecute the testamentary causes proceeding in their capacities as managers of the protected estate (“the statutory will issue”); and
-that they be indemnified out of the protected estate against all costs, charges and expenses which have been or may hereafter be properly incurred by them, or which they may be ordered to pay, as plaintiffs in the testamentary causes proceeding (“the remuneration issue”).
Further, pursuant to sections 13(2) and 16[8] of the Aged and Infirm Persons’ Property Act, orders were sought with respect to Mr and Mrs Jeavons powers, authorities and conduct as managers. Although submissions were advanced in respect of these matters, ultimately they were deferred on the application of Mr and Mrs Jeavons to allow further material to be placed before the Court for further consideration.
[7] Section 13(2) of the Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
The manager shall have such other powers and duties in respect of the protected estate as the court in and by the protection order, or from time to time, defines or directs, and the court shall have jurisdiction to confer any such powers upon the manager to be exercised generally in respect of the estate or any part thereof, or upon any special occasion, or in respect of any particular subject matter.
[8] Section 16 of the Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
The court may direct the sale, mortgage, lease, or other disposition of the whole or any part of the protected estate by the manager; and may confer upon the manager any powers in respect of or in relation to the protected estate which it may deem necessary or expedient for the realisation, investment, or better management thereof, or for the benefit or advancement in life of the children of the protected person; and, in particular, may confer any powers which the court may under any law or practice relating to trustees or to wards of court confer upon trustees or itself exercise.
The application was heard on 30 and 31 July 2008. Counsel appeared to oppose the application on instructions from Ms Chapman’s court appointed guardian ad litem. Pursuant to my order of 10 July 2008,[9] counsel for the National Trust, a beneficiary under Mrs Chapman’s last known executed will dated 5 April 1991, counsel for Helen Marie Ellemor, the niece of the deceased and the residual beneficiary under the 5 April 1991 will, and counsel for Public Trustee, intervened in the proceedings, pursuant to Rule 89 of the Supreme Court Civil Rules 2006 (SA).[10]
[9] See Jeavons v Chapman [2008] SASC 249.
[10] 89—Non-party intervention
(1) The Court may, on application by a person who wants to intervene in an action, permit intervention on conditions determined by the Court.
(2)An application for permission to intervene must be supported by an affidavit stating—
(a)the nature of the applicant's interest in the action (which need not be a legal or equitable interest); and
(b)the applicant's object in seeking permission for intervention; and
(c)the extent of the proposed intervention.
(3)A copy of the application and the supporting affidavit must be served on all parties to the action.
(4)The Court may permit intervention on conditions it considers appropriate.
(5) The Court may, on application or on its own initiative, vary or revoke an order allowing non-party intervention under this rule.
At the conclusion of the hearing, having regard to the impending trial of the testamentary causes proceeding, I indicated to the parties that I would first make a ruling on the statutory will issue. On 8 August 2008, I dismissed the application of Mr and Mrs Jeavons seeking an order that they be conferred with power and authority to prosecute the testamentary causes proceeding in their capacities as managers of the protected estate, and I dismissed their application that they be indemnified out of the protected estate against all costs, charges and expenses which have been or may hereafter be properly incurred by them which they may be ordered to pay as plaintiffs in the testamentary causes proceeding. The reasons that follow address these orders.
The Evidence
Affidavits both from the testamentary causes proceeding and the protection proceeding were referred to and relied on in the course of the application. It is appropriate to identify the basis on which the application is to be addressed. However, as this is an interlocutory hearing it is not appropriate to make findings of fact or to express other than preliminary views about the effect of the evidence. I have closely reviewed all of the voluminous material referred to on the application. I propose to refer to some of the material as in my view it tends to suggest that Mrs Chapman was known to make many statements about the property and its possible disposition following her death. On separate occasions she spoke of leaving the same property to different persons. It is to be observed that some of the evidence concerning Mrs Chapman’s testamentary intentions has been expressed as the beliefs of deponents without identifying the basis of each asserted belief. Aspects of the affidavit evidence as proffered on the application would not be admissible at trial and even if admitted would be of little or no weight.
Frank Charles Hurren, who had known Mrs Chapman for more than 60 years, under the heading “Testamentary Intentions”, deposed inter alia as follows:
[Mrs Chapman] had some, but not many, conversations with me about her testamentary intentions.
I did not know the dates upon which these conversations took place. The most recent conversation would have been several years ago now.
I had long been aware that it was [Mrs Chapman’s] intention to leave her property, ‘Kil Lel’ at Crafers to the National Trust of South Australia. I understood however that this gift was to be conditional upon the National Trust maintaining the property and opening it up to the public as though it were a museum. I had personal doubts as to the practicality of such a gift but I did not voice those doubts to [Mrs Chapman].
I do not recall [Mrs Chapman] ever mentioning any gifts to Prince Alfred College. I do vaguely recall her discussing the possibility of establishing an agricultural college upon her property at Mundalla in the South East. [Mrs Chapman] liked the idea of such a college, akin to Roseworthy, being constructed on the Hunt family’s historic estates. I believe she also liked the idea of the sons of ‘families of quality’ (to use her term) going onto the land.
I have long assumed that [Mrs Chapman’s] major beneficiary would be the Women’s and Children’s Hospital in Adelaide (“Hospital”). I have long been aware that both [Mrs Chapman] and the Brigadier did a great deal of fund-raising in relation to that Hospital. I always assumed that [Mrs Chapman] wanted a bequest to the institution in the Brigadier’s name to perpetuate his ‘sainted’ memory.
It is difficult to see how Mr Hurren’s suggested awareness, understandings and assumptions expressed in their present form would be admissible and how his recollections and beliefs, if admissible, could have more than little weight. A more detailed evidentiary basis would need to be established.
Janet Therese Bluett deposed to having known Mrs Chapman for more than 50 years and having close contact over the last 20 years. From the death of Ms Bluett’s father in 1999 she has had regular contact with Mrs Chapman with telephone contact once a fortnight. Ms Bluett deposed inter alia as follows:
After my father died in 1999, I made attempts to assist [Mrs Chapman] in getting a new Will, however, she was easily distracted. I believe [Mrs Chapman] was aware of the importance of a Will but she would avoid discussing specifics with me and I was unable to get her to sign one.
After my father died, I also became an attorney for [Mrs Chapman]. The other attorneys were Bill De Garis and Juliet Jeavons.
I recall [Mrs Chapman] telling me that myself and my half sister, Elizabeth were to inherit either the Bordertown Property or the contents of the Bordertown Property.
I knew that [Mrs Chapman] wanted her home at Crafers in the Adelaide Hills to go to the National Trust. I know, from conversations with [Mrs Chapman], that she wanted the property to be left as it is and nothing was to be touched or removed.
I do no[t] recall Prince Alfred College being specifically mentioned to me. However [Mrs Chapman] had mentioned to me on occasion that her rural land was to be used for the establishment of an agricultural college. I assumed that there must have been an agricultural college in the area that she wanted to bequeath her land to.
Again if admitted at trial in its present form this evidence would be of limited weight. The basis of Ms Bluett’s knowledge is not adequately set out and the reader is left with little more than beliefs and assertions. The occasions and details of the conversations between Ms Bluett and Mrs Chapman have not been set out.

Between 1988 and 1991 Donald Stewart Mawson was the Mess Manager of the Officers’ Mess at Keswick Barracks. At this time he met Mrs Chapman and her late husband. After Mr Mawson left the Army in 1991 he did not see Mrs Chapman until about 1997 when he returned to the mess as a civilian mess manager. Mr Mawson has deposed inter alia as follows:
I would have spoken with Mrs Chapman approximately 10 or 12 times regarding her will and intentions. It was a topic she would bring up in conversation.
Mrs Chapman seemed worried about who to leave her estate to, she told me she had two nieces but this was her only family that I was aware of. I did not know the nieces’ names but Mrs Chapman had told me she did not want to leave anything to them as they were not in contact.
At one point, several years ago, I do not recall exactly when, Mrs Chapman suggested to me that I might be the executor of her will. I did not encourage this and suggested she ask others or use a lawyer.
Mrs Chapman once told me her land in the South East was leased to two people. She liked one but not the other. I do not know the names of these people. Mrs Chapman would say ‘he thinks he owns the property but he does not’.
Mrs Chapman would discuss certain matters and her intentions with me. I recall Mrs Chapman discussing the setting up an agricultural training establishment in the South East to be named after her father. This was to be established on land owned by her including land which already had quarters on them. I suggested to her that perhaps Urrbrae College would be the right entity to help facilitate this.
I do not recall Mrs Chapman ever mentioning Price Alfred College to me. This is something I would remember as I have a nephew who attended there.
Mrs Chapman suggested leaving the Crafers Property to either the State or to the Officers Mess as a weekend retreat for Army Officers. I was hesitant about anything being left to the Mess as the Mess is winding down now and Mrs Chapman has already gifted many items to it. In effect, leaving things to the Mess is the equivalent of gifting them to the Army.
I do not ever recall hearing the National Trust mentioned by Mrs Chapman.
In 2004 Mrs Chapman again spoke to Mr Mawson about her Will and referred her to Mr Andrew Burnett, a lawyer and an officer in the Royal Australian Navy. Following this referral, Mr Mawson deposed:
I set up a meeting with Andrew, Mrs Chapman and myself at the Mess in late 2004. A further meeting with Andrew, Mrs Chapman and myself took place at Mrs Chapman’s home in Crafers. I did not take notes at these meetings but recall the agricultural college and leaving the Crafers home to the State being specifically mentioned. Andrew and I found a copy of Mrs Chapman’s will when we were at the Crafers Property. It was dated either 1990 or 1991. I did not keep a copy of this.
I believe that Andrew never completed a will for Mrs Chapman. I understand that Mrs Chapman lost interest in the process. I believe it was quite common for Mrs Chapman to lose interest in projects and she would resist if pushed about her motives.
During 2004 and 2005 it became more difficult to contact Mrs Chapman. I would occasionally stop in at the Crafers Property but she was seldom there. Mrs Chapman befriended a local policeman and his wife. They were often at her house and would answer her phone but preferred to pass on a message to Mrs Chapman rather than allow me to speak to her. I believe the last time I saw Mrs Chapman would have been in about late 2005.
Albert Bevan Martlew deposed having known Mrs Chapman for more than 60 years. He share farmed Mrs Chapman and her late husband’s property in the South East for more than 30 years. He described himself and Mrs Chapman as friends and that he had been invited by her to parties and Christmas events. With respect to her Will, Mr Martlew deposed:
[Mrs Chapman] would not say much to me about her Will. However, [Mrs Chapman] did ask me on one occasion what sort of Will my wife and I had. She told me then that she had a very simple Will and thought she should see a lawyer about it. I remember saying to [Mrs Chapman] that she should write down everything she wants to do and take it to a solicitor. [Mrs Chapman] replied with words to the effect that she ‘didn’t trust those bastards’. I do not know if [Mrs Chapman] ever spoke to a solicitor in relation to changing her will.
I was reluctant to get involved in these matters with [Mrs Chapman] as she was a person that resisted help and would dismiss you unless you said what she wanted to hear.
[Mrs Chapman] thought that because she was a woman, people were out to get her and take advantage of her. I believe this is why she resisted help.
Andrew John Burnett, a solicitor and naval officer, worked in private practice in 2004 and 2005. He deposed to Mr Mawson introducing Mrs Chapman to him in about December 2004. He was consulted by Mrs Chapman in February 2005 about the preparation of a new Will. As a result of what Mr Burnett described as Mrs Chapman’s inclination not to remember, he was concerned about her capacity to make a Will. He obtained a report from her General Practitioner, who at that time – March 2005 – expressed the view that she was competent to make a Will. Mr Burnett has deposed as follows:
Mrs Chapman stated she wanted one of her South Eastern properties to be used for the establishment of an agricultural college and for her home at Crafers to be preserved by the state as a museum and never sold. I have been asked if she wished the National Trust to administer her house at Crafers. I believe that I would have noted the National Trust if she had mentioned that matter to me.
Mrs Chapman informed me that she did not wish to leave any part of her estate to her relatives. My notes indicate that she was an only child and that she had cousins and their relations as relations.
In relation to not leaving the property to her relatives, Mrs Chapman mentioned to me that there may be a problem with a beneficiary under her current will and that is why she wished to execute a new will. I was not shown a copy of any will executed by Mrs Chapman.
I do not recall Mrs Chapman mentioning any bequest to Prince Alfred College (“PAC”). I believe that I would have noted and remembered this as my son is a student at PAC.
Mrs Chapman further instructed that she wished to leave money for the Navy, Military and Air Force Club and the Keswick Barracks Officer’s Mess.
Mr Burnett was unable to contact Mrs Chapman after the meeting in February 2005 and did not proceed to prepare a will.
In her affidavit of 27 May 2008 Mrs Jeavons inter alia deposed that:
In the last 14 years [Mrs Chapman] has said to Steve and me; ‘I would like you to have the unit at Peregian Beach, but you must never sell it’. She has offered to bequeath the Robe Property to us if we would build a home on it. Most recently [Mrs Chapman] offered to give Steve the Rolls Royce if he built a home on my mother’s property in Mundalla.
Mr Jeavons in an affidavit of 17 July 2008 inter alia deposed that:
Over the past 15 to 20 years [Mrs Chapman] has asked me, many times, to be the executor of her Will. I have told [Mrs Chapman] that I would be prepared to do this but that she needed to make the necessary arrangements.
[Mrs Chapman] was obsessed by her Will. I can recall, on many occasions, her telling me, when I was visiting her at her Crafers Property, where she kept her Will. This was in a safe in her bedroom. [Mrs Chapman] would often take me to her room to show me this safe.
On the basis of my conversation with [Mrs Chapman], I do not believe that [Mrs Chapman] was familiar with the formalities required to execute a valid Will or to make a codicil. In the conversations I have had with [Mrs Chapman] over many years, she told me that she kept in her safe what she regarded as her last Will. I found in her safe a number of Wills spanning a period of many years.
As earlier indicated it is not appropriate to make any findings upon the affidavit evidence with respect to the testamentary intentions of Mrs Chapman at this interlocutory stage. However it does appear that Mrs Chapman did give consideration to her property and its disposition following her death from time to time. As earlier observed there appear to be many inconsistencies in the expressions of her intentions to different people. It is possible that Mrs Chapman was making different statements to different people about the disposition of her property following her death either because of inclination or failing memory or diminishing mental capacity.
Mrs Chapman was a person accustomed to dealing with solicitors and had done so for more than 40 years. Three executed wills had been located, the last being the 5 April 1991 will. There is real difficulty, in my view, in evaluating the affidavit evidence other than to observe that subsequent to the making of the 5 April 1991 will, Mrs Chapman has spoken about inconsistent possible disposals of her property on her death. It could be inferred that Mrs Chapman was an elderly woman who was fickle in her relationships and affections with her family and friends.
A Statutory Will
It is convenient to first address the powers of the Court with respect to the making of a statutory will.
The application to make a statutory will for Mrs Chapman, and for Court authorisation and approval of such a will, is made pursuant to section 7 of the Wills Act. Mr and Mrs Jeavons seek the making of a statutory will “in the terms as the Court may deem fit”.
Section 7 of the Wills Act, requires a person to obtain the Court’s permission to make an application for the making of a statutory will. Once an application has been permitted, the applicant must satisfy the Court that it should authorise the making of a statutory will and the terms of that will. Section 7 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.
(5)     An order may be made under this section in relation to a minor.
(6)The Court is not bound by rules of evidence in proceedings under this section.
(7)The following persons are entitled to appear and be heard at proceedings under this section:
(a)     the person in relation to whom the order is proposed to be made;
(b)     a legal practitioner representing the person or, with the permission of the Court, some other person representing the person;
(c)     the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993;
(d)     the person's administrator, if one has been appointed under the Guardianship and Administration Act 1993;
(e)     the person's guardian or enduring guardian, if one has been appointed under the Guardianship and Administration Act 1993;
(f)    the person's manager, if one has been appointed under the Aged and Infirm Persons' Property Act 1940;
(g)     the person's attorney, if one has been appointed under an enduring power of attorney;
(h)     any other person who has, in the opinion of the Court, a proper interest in the matter.
(8)In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit.
…
The second reading speech in support of the 1996 Bill[11] to amend the Wills Act by the insertion of section 7, draws heavily on a 1992 Report of the New South Wales Law Reform Commission.[12] That report made recommendations, including the following:
Who may apply for a statutory will.
The Commission recommends that any person should be entitled to apply to the Court to make a statutory will. The application should be made in accordance with rules of the Court (clause 32FE).
The English Legislation,[13] as noted above, limits the right to make an application to specific categories of persons.[14] The Commission takes the view that other persons may have good reason to bring an application. Solicitors, social workers and health care workers who may be closely involved with the person should be entitled to make applications. The Protective Commissioner who may already be managing the person’s financial affairs should also be entitled to make an application.
[11] Wills (Wills for Persons Lacking Testamentary Capacity) Amendment Bill 1996 (SA).
[12] New South Wales Law Reform Commission, Report 68: Wills for Persons Lacking Will-Making Capacity (1992).
[13] Mental Health Act 1983 (UK), Part VII and in particular, section 96(1)(e). It should be noted that Part VII of the Mental Health Act was repealed by Schedule 5, Part 1 of the Mental Capacity Act 2005 (UK), with effect from 1 October 2007. Provision for the making of a statutory will is now provided in section 18(1)(i) of the Mental Capacity Act.
[14] Court of Protection Rules 2001 (UK), Rule 18. It should further be noted that the Court of Protection Rules 2001 were repealed by Rule 2 of The Court of Protection Rules 2007 (UK), also with effect from 1 October 2007.
In the course of the second reading speech, the Treasurer said:[15]
[15] South Australia, Parliamentary Debates, House of Assembly, 21 March 1996, 1213 –1214 (The Hon S.J. Baker, Treasurer).
This Bill amends the Wills Act 1936 to vest power in the Supreme Court to make a will on behalf of a person who lacks testamentary capacity. A statutory will-making scheme is a means of providing a person lacking testamentary capacity with a will reflecting, as far as possible, current intentions or at least what his or her intentions would have been but for the disability.
The power vested in the Supreme Court is not a power to review the reasonableness of the earlier dispositions made by a person then having testamentary capacity on the grounds that the person now lacks such capacity. Rather it is a power to be exercised in situations where a will or a new will is necessary to avoid a person’s property being distributed in a manner contrary to his or her intentions or what those intentions would have been if he or she had testamentary capacity.
It provides for the situation, for example, where a child is left a substantial settlement as compensation for permanent brain damage resulting from a motor accident. If the child’s parents died in the accident, and the child is being cared for by a friend of the family, it is to this person that a Court would look to as the intended beneficiary of the child’s estate.
There is community support for the concept of statutory wills and organisations assisting persons with disabilities are of the view that the ability to make a will can be a matter of considerable dignity and satisfaction for a person with a disability. The New South Wales Law Reform Commission in recommending that a statutory will making scheme be introduced in that State noted that “a statutory will making scheme would greatly enhance the rights and dignity of persons with disabilities by enabling their property to be devised appropriately be having regard to their current situation”.
The Bill adopts the statutory-will making scheme recommended by the New South Wales Law Reform Commissions in the Commission’s Nineteenth Report, Wills for Person’s Lacking Testamentary Capacity, published February 1992.
The main features of the scheme are as follows:
·the will-making power is vested in the Supreme Court;
·the scheme covers any person lacking testamentary capacity;
·any person is entitled to apply for the making of a statutory will (solicitors, health care workers, social workers, administrators appointed by the Guardianship Board);
·the person who lacks testamentary capacity is entitled to appear and be heard at the proceedings;
·the Manager of the estate under the provisions of the Aged and Infirm Persons Property Act 1940, the Public Advocate, the Administrator appointed by the Guardianship Board under the Guardianship & Administration Act 1993, and the Donee of an Enduring Power of Attorney under the Powers of Attorney & Agency Act 1984, are also entitled to appear and be heard at the proceedings;
·in order to filter out frivolous and vexatious application, leave of the Court must be obtained before an application for an order to make a statutory will can proceed;
·the applicant must prove the lack of testamentary capacity;
·the Court shall, where possible, make a will in terms which the person lacking testamentary capacity would have made if the person had the capacity to make a will, at the time of the hearing of the application;
·a statutory will is to be executed by the Registrar of Probates and deposited in the Probate Registry;
·a statutory will is to have the same effect as a will executed under the Wills Act 1936, and the Inheritance (Family Provision) Act 1972 is to apply in the same way as ordinary wills;
·a statutory will is to be capable of alteration or revocation in the same way as it is made (unless the person regains testamentary capacity in which case the will can be revoked in the normal way);
·the costs of or incidental to the application for the making of a statutory will are to be determined in accordance with the Court’s discretion.
The Supreme Court has been selected as the most appropriate forum to determine applications for a number of reasons:
(1)     The Court is currently vested with probate jurisdiction.
(2)     Costs are not awarded as of right but at the discretion of the Court, allowing the Court to take into consideration the financial circumstances of those persons appearing before it.
(3)     If jurisdiction was vested in a Board of Tribunal as suggested by some, a right of appeal to the Supreme Court would be required. Determinations of this nature affect a persons’ prospective interests in a very serious and substantial manner.
(4)     Testamentary capacity is a legal concept familiar to the courts and customarily applied by the courts.
…
The construction of section 7 is assisted by this examination of its history.
It is to be observed that section 7(1) contemplates that “any person” may make an application with the permission of the Court. There is no reason to read down the words “any person”. The legislation is remedial and beneficial.[16] The requirement for permission “permits baseless or unmeritorious applications to be screened out at an early stage”.[17]
[16] For the principles to be applied when interpreting remedial and beneficial legislation, see Public Trustee v O’Donnell (2008) 101 SASR 228 at [64], citing State of New South Wales v Amery (2006) 230 CLR 174 at [138] (Kirby J); Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260-261 (McHugh J); Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [152] (Kirby J); Re McComb [1993] 3 VR 485 at [22]; IW v City of Perth (1996) 191 CLR 1 at 12 (Brennan CJ and McHugh J).
[17] Boulton v Sanders (2004) 9 VR 495 at 11; Hoffmann v Waters (2007) 98 SASR 500 at [10]; Bryant v Blake (2004) 237 LSJS 23 at [25]. See also South Australia, Parliamentary Debates, Wills (Wills for Persons Lacking Testamentary Capacity) Amendment Bill, House of Assembly, 21 March 1996, 1214 (The Hon S.J. Baker, Treasurer).

In the present application, Mr and Mrs Jeavons seek permission to pursue the testamentary causes proceeding, in their capacity as managers of the protected estate. Providing that their powers as managers are sufficiently broad to enable them to make that application, there is nothing in section 7(1) of the Wills Act that would preclude them from doing so.
The application of Mr and Mrs Jeavons in their capacity as managers for permission to proceed with the application for the making of a statutory will for Mrs Chapman, pursuant to section 7 of the Wills Act, was supported by several contentions. It was said that at the present time, Mrs Chapman does not have testamentary capacity, and that it is unlikely that she will ever regain it; that Mrs Chapman’s last known executed will, the 5 April 1991 will, does not accurately reflect Mrs Chapman’s likely testamentary intentions; and that Mrs Chapman’s likely testamentary intentions can be ascertained. None of the foregoing contentions appear to have a relationship to the management of the protected estate. They address issues of testamentary capacity and intention, and the wishes of Mrs Chapman as understood by Mr and Mrs Jeavons personally. Mr and Mrs Jeavons submitted that the strength of their claim should be considered on this application.
Testamentary Capacity
Mr and Mrs Jeavons contended that Mrs Chapman does not presently hold testamentary capacity. In support of this contention two reports of Jane Hecker, a consultant physician with expertise in aged care and rehabilitation, were tendered.[18] Dr Hecker undertook an assessment of Mrs Chapman’s testamentary capacity on 31 October 2007 at Bordertown Memorial Hospital.
[18] See two reports by Dr Jane Hecker, exhibited to Affidavit of Justin David Courtney sworn 10 June 2008 and filed in the testamentary causes proceeding.
Dr Hecker summarised her opinion in her report of 2 November 2007 in these terms:
I do not believe Mrs Chapman retains capacity to provide instructions or sign a Will, Enduring Power of Attorney or other legal documents currently. She has marked short‑term memory loss being unable to remember information even 20 seconds after this is provided. There is significant confusion and some difficulty with comprehension. She has evidence of paranoia and moderately severe frontal and executive cognitive dysfunction. This includes impairment of judgement, insight, problem‑solving and abstract thought. She has a basis understanding of the meaning of legal documents however does not demonstrate a clear understanding of the nature of her assets, those who may have a claim on her estate, nor is she able to provide a rational argument for various options available to her. The background medical problem resulting in her incapacity is a dementing illness, the nature of which is uncertain but is likely small vessel cerebrovascular disease plus or minus additional Alzheimer’s disease.
In a subsequent report Dr Hecker was asked to review the records of Bordertown Nursing Home from October 2007 to May 2008. Dr Hecker, from that review, concluded:
Having reviewed the medical notes from Bordertown Nursing Home since I assessed Mrs Chapman, I note that there has been ongoing evidence of significant and deteriorating short‑term memory loss and confusion. There has also been evidence of paranoia and behavioural disturbance with delusional thought and agitation.
Although I have not reassessed Mrs Chapman it is my firm belief that she continues to lack testamentary capacity at this point. This is supported in the nursing notes where reference is made to her difficulty with short-term memory, her impaired comprehension and her difficulty with planning, judgement and problem solving. The nature of dementia, a progressive irreversible neurological degeneration involving the brain in a global fashion, is such that she will not regain testamentary capacity. I do not believe she has an element of delirium (which may be reversible) and the pattern of her cognitive performance over the last few years has been one of continuing decline. Although patients with dementia can have some fluctuation I do not believe there is any chance that her cognitive function will improve sufficiently to allow her to provide instructions or sign a Will. In my opinion she would fit the requirements for the creation of a statutory Will from these two perspectives.
Dr Geoffrey Seidel, a senior consultant psychiatrist, examined Mrs Chapman on behalf of the solicitors of the National Trust. With respect to Mrs Chapman’s incapacity, Dr Seidel reported:
Mrs Chapman demonstrated an incapacity to understand her property holdings.
I believe that she has a broad understanding of the purpose of a Will but she demonstrated rather inconsistent and disinhibited impulsive judgements about the topic. These responses were also coloured by a level of suspicion, although I would not regard this as overtly paranoid.
During the interview Mrs Chapman expressed three separate intentions. One was some awareness that she had left something to Prince Alfred College, although at a later stage she regarded this with some suspicion. She indicated some intention to exclude Juliette and gave as a reason her lack of attention to her. She also stated an intention to leave her Will to an unspecified charity or somebody who was kind to her. I would say that she was not able to express a consistent intention, although the themes were as stated. I must say that despite the confused nature of the interview I felt that she did give a reasonable account of the lack of clear claimants upon her Will and also some awareness of the type of people who might have a more distant claim.
On the present examination I would regard Mrs Chapman as not having testamentary capacity despite small fluctuations in her cognitions I would not see her as having a great likelihood of regaining that capacity for periods of time. This statement must however be qualified by the fact that not all investigations or possibilities for treatment have been exhaustively explored.
Dr Seidel’s clinical assessment included the following:
Clinical assessment involving history, examination and laboratory investigations remains the most accurate method of assessment for dementia. Most specialists in this field would include a Mini Mental State Examination and some brain imaging, usually CT brain scan as part of the basic investigation and diagnostic process. In some cases MRI or SPECT scans are also done.
In comparing my report and conclusions to those of Dr Hecker you will understand that I would like to commence by stating that Dr Jane Hecker is a highly regarded specialist geriatrician and colleague in this field and we have worked together productively in managing certain cases in the past. Dr Hecker is a specialist geriatrician, whilst I am a specialist Psychogeriatrician. In the area of dementia there is a significant overlap between these two sub-specialties and it would generally be regarded that a geriatrician has greater expertise in the psychical aspects of assessment and management whereas a psychogeriatrician would have more skills and experience in dementia cases involving problems of mood, agitation, aggression, and ideational disturbances. The types of assessment and examinations used are similar and are widely used and so one would expect differences in results to be minimal. I would at this point however only take issue with Dr Hecker’s use of the word paranoia. It is true that Mrs Chapman expressed suspiciousness, mistrust and dissatisfaction with various entities. This is not synonymous with paranoia. The word paranoia may be used loosely but, taken in its true sense, refers to a patient suffering from delusions. A delusion is defined as a fixed false belief. In my view the type of suspiciousness expressed by Mrs Chapman was fleeting, quite possibly more reflective of her particular personality style, and perhaps not entirely unreasonable in an elderly woman in possession of valuable assets. This is an important point because the presence of persecutory delusions about possible claimants is a major argument against the existence of testamentary capacity. I did not detect persecutory delusions about any potential claimants on her estate.
Dr Seidel’s disagreed with Dr Hecker about her view that Mrs Chapman exhibited a true paranoia about claims on her estate.
There is no evidence before the Court as to when Mrs Chapman commenced suffering from dementia. The illness has probably developed over a number of years.
Testamentary Documents
Mrs Chapman’s last known Will was executed on 5 April 1991. Under this will, Helen Ellemor and Catherine Ellemor were appointed executors and trustees. A number of individuals and entities were named as beneficiaries. For the purposes of these reasons, it is sufficient to record that the National Trust were to receive the Crafers property, including the antiques, Prince Alfred College were to receive the Bordertown Property and the rural land, and a Queensland property and the residue of the estate were left to Helen Ellemor.
In addition to the 5 April 1991 Will, Mr and Mrs Jeavons have drawn attention to two documents said to be testamentary and of particular relevance.
A document dated 28 December 1990, which is in the form of a draft Will with hand-written changes, has been located. Mr and Mrs Jeavons contend that the handwritten changes were made around 1996. This draft has not been signed by Mrs Chapman. This document and the 5 April 1991 Will were also prepared by solicitors Nancarrow Jew. On the front cover of this draft, Arthur Peter Chapman, Vincent Grosvenor Hunt[19] and his two daughters Jan[20] and Elizabeth[21] are named as Executors. However, on the first page of this document, Helen Ellemor, Catherine Ellemor[22] and Mary Ellemor[23] are appointed as executors and trustees. Again, a number of individuals and entities are named as beneficiaries. Under this document, dispositions to Helen Ellemor of the Queensland property and the residual estate have been crossed out in hand.
[19] Handwritten.
[20] Handwritten.
[21] Handwritten.
[22] Handwritten.
[23] Handwritten.
A draft Will was enclosed with a letter dated 8 April 1991 from Nancarrow Jew to Mrs Chapman. This document appears never to have been executed. The letter described the 8 April 1991 Will as a “temporary” will. Under this document, Helen Ellemor and Catherine Ellemor are appointed executors and trustees. The individuals or entities named as beneficiaries, and the dispositions described in this document, are identical to the 5 April 1991 Will.
Testamentary Intentions
Mr and Mrs Jeavons contended that the 5 April 1991 Will does not accurately reflect the likely testamentary intentions of Mrs Chapman on two principal grounds.
Mr and Mrs Jeavons first submitted that the discovery of the two further documents earlier referred to, suggest that the terms of the 5 April 1991 Will do not accurately reflect the likely testamentary intentions of Mrs Chapman. In particular, it was contended that the terms of the 28 December 1990 Will, including the suggested 1996 handwritten changes, properly reflect Mrs Chapman’s testamentary intentions.
Secondly, Mr and Mrs Jeavons submitted that their own conversations and interactions with Mrs Chapman over many years, together with the conversations and interactions shared between Mrs Chapman and others including Mrs Chapman’s friends, Frank Hurren and Albert Martlew, an acquaintance, Donald Mawson, her second cousin, Janet Bluett, and her cousin by marriage, Benecia Hunt, support a finding that the 5 April 1991 Will does not accurately reflect the likely testamentary intentions of Mrs Chapman.
Mr and Mrs Jeavons consider that there is evidence to suggest that, if Mrs Chapman were to have testamentary capacity today, her likely testamentary intentions would be different from those in the 5 April 1991 Will. It is suggested that Mrs Chapman would want Mr and Mrs Jeavons to be the executors of her estate. Mrs Chapman would want the Crafers property to be subject to conditions. She would want the gift of rural land to Prince Alfred College to be subject to conditions. Finally she would want to revoke all gifts to Helen Ellemor. Mr and Mrs Jeavons submitted that the above four matters are reflected in the 8 April 1991 Will and the 1996 handwritten amendments to the December 1990 Will.
The evidence suggests however that Mrs Chapman continued to retain her mental capacity until the early part of this decade. She retained the capacity to give instructions with respect to her testamentary intentions until that time. If this is correct, it would follow that Mrs Chapman had chosen not to revoke or alter the 5 April 1991 Will for the best part of a decade.
It is not in question in the testamentary cause proceeding, that Mr and Mrs Jeavons in their personal capacities may seek permission from the Court to bring an application for the making of a statutory will. There is no challenge to their locus to prosecute the testamentary causes proceeding. Mr and Mrs Jeavons now seek to change their status in that proceeding. They wish to continue the proceeding as managers of the protected estate in lieu of their personal capacity. Their evident purpose in doing so is to recover their fees as managers in prosecuting the testamentary proceeding and obtain an indemnity with respect to legal costs. They wish the protected estate to be responsible for the legal and other costs associated with the testamentary causes proceeding and to provide them with a complete indemnity with respect to any costs that they may be ordered to pay. In the event that the testamentary causes proceeding are unsuccessful, they seek to be fully protected as to any exposure as to legal costs.
In the testamentary causes proceeding, although the summons ultimately seeks the making of a statutory will “in the terms as the Court may deem fit”, Mr and Mrs Jeavons have indicated that they propose to ask the Court to make a Will on behalf of Mrs Chapman in substantially the same terms as the 5 April 1991 Will, but with the four alterations outlined above. One substantive effect of the proposed changes would be that the residue of the estate, would not be distributed to Helen Ellemor but would be distributed as on a partial intestacy.
Preliminary Matters
The Court’s Power to Provide Advice and Directions
There is no express power in the Aged and Infirm Persons’ Property Act permitting a private manager to obtain the advice or direction of the Court.[24] Notwithstanding, Mr and Mrs Jeavons submitted that the Court may give such advice or direction pursuant to section 69 of the Administration and Probate Act 1919 (SA),[25] when read with section 91 of the Trustee Act[26] and section 18 of the Aged and Infirm Persons’ Property Act,[27] and the inherent equitable jurisdiction of the Supreme Court.
[24] Compare Aged and Infirm Persons’ Property Act 1940 (SA), section 24 (which only applies to Public Trustee).
[25] Section 69 of the Administration and Probate Act 1919 (SA) provides as follows:
“(1) The Public Trustee shall, and any trustee, executor, or administrator may, when in difficulty or doubt, apply to a Judge for advice or direction as to matters connected with the administration of any estate, or the construction of any will, deed, or document.
(2)Such application may be made either without notice to or upon summons served upon any of the parties interested.
(3)Any person interested in any estate, who is dissatisfied with the conduct of the Public Trustee in any matter connected with the management or administration thereof, may apply to a Judge by summons to be served upon the Public Trustee to review such conduct.
(4)A Judge may, upon the hearing of an application under this section, make any order, declaratory or otherwise, that he sees fit as to the administration of the estate, or the construction of the will, deed, or document, which is the subject of the application, and also as to the costs of the application.
(5)Any such order made in the absence of an interested party shall have the same effect, or be of the same force or validity, so far as regards protection to the Public Trustee, or other trustee, or the executor, or administrator, as if the same had been a decree or order made in an action where all parties concerned were represented.
(6)The Judge may refer any question of law arising on an application under this section for the opinion of the Supreme Court, or may direct an issue to be tried by, or an action to be instituted in, the Supreme Court.”
[26] Section 91 of the Trustee Act 1936 (SA) provides as follows:
Sections 69 and 70 of the Administration and Probate Act 1919 apply to trustees as defined by this Act, and section 90 of this Act shall extend to applications under either of the same sections, but without limiting the powers of the Supreme Court, apart from the said section 90, with regard to such applications.
For a recent discussion of the nature and scope of the Court’s power to give advice and directions to trustees, see Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 249 ALR 250; (2008) ALJR 1425; [2008] HCA 42 per Gummow ACJ, Kirby, Hayne and Heydon JJ at [54]-[76].
[27] Section 18 of the Aged and Infirm Persons’ Property Act 1940 (SA) provides as follows:
“A manager shall be deemed to be a trustee for all the purposes of the Trustee Act 1936.”
It is unnecessary to determine whether the Court’s power to give advice and directions derives from a statutory source, as the inherent equitable jurisdiction of this Court is a sufficient source of such a power. There is a well-recognised jurisdiction which the Court possesses to give advice and direction to its appointed officers.[28] A manager of a protected estate is an officer of the Court, and accordingly may look to the Court for necessary guidance.
[28] See Glazier Holdings Pty Ltd v Australian Men’s Health Pty Ltd (Unreported, Supreme Court of New South Wales, Young J, 30 April 1998); Australian Securities and Investment Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240 at 243 at [11].
Legislation Concerning the Mentally Incapacitated
The scheme of the legislation dealing with the mentally incapacitated includes the Mental Health Act 1993 (SA), the Guardianship and Administration Act 1993 (SA), and the Aged and Infirm Persons’ Property Act. The Mental Health Act is directed to the immediate health needs of mentally incapacitated persons, particularly when they are a danger to others or to themselves. The latter two statutes appear to address the same general subject matter – the provision of protection to the estate of the mentally incapacitated. Both statutes provide powers to persons who are to look to the protection of an estate. There is a significant overlap between the provisions of the two. There is no express reference in either to the making of a statutory will. That process is governed by section 7 of the Wills Act. However, the Wills Act, by its terms, makes reference to both guardians[29] and managers[30] as persons with an interest in the making of a statutory will.
[29] Wills Act 1936 (SA), section 7(7)(e).
[30] Wills Act 1936 (SA), section 7(7)(f).
The Powers of a Manager
The protection order of 27 March 2008 provided that Mr and Mrs Jeavons in their capacity as managers should have the powers and duties given and imposed by the Aged and Infirm Persons’ Property Act. Those powers are specified in section 13(1) of the Aged and Infirm Persons’ Property Act as follows:
The manager shall have the following powers, unless the court in any particular case otherwise orders:
1.To take possession of the protected estate, and to recover possession thereof from any person holding the same:
2. To repair and insure against any contingency any part of the estate:
3.To demand, recover, and receive moneys and personal effects payable to or belonging to the protected person:
4.To apply any moneys (whether arising from real or personal property, and whether income or capital) for the maintenance of the protected person, and the spouse or domestic partner and children of the protected person, and for the education of the children of the protected person, and in payment of the debts and liabilities of the protected person:
5.To carry on any trade or business theretofore carried on by the protected person, and to carry on the business of any partnership in which the protected person may be a partner:
6.To apply for and, if granted, to undertake administration for the use and benefit of the protected person during his incapacity where he would, but for his incapacity, be entitled to a grant of probate or administration.
Section 13(2) provides that the Court may from time to time define or direct other powers and duties in respect of the protected estate:
The manager shall have such other powers and duties in respect of the protected estate as the court in and by the protection order, or from time to time, defines or directs, and the court shall have jurisdiction to confer any such powers upon the manager to be exercised generally in respect of the estate or any part thereof, or upon any special occasion, or in respect of any particular subject matter.
By section 16, the Court may confer upon a manager additional powers deemed necessary or expedient in respect of, or in relation to, the protected estate:
The court may direct the sale, mortgage, lease, or other disposition of the whole or any part of the protected estate by the manager; and may confer upon the manager any powers in respect of or in relation to the protected estate which it may deem necessary or expedient for the realisation, investment, or better management thereof, or for the benefit or advancement in life of the children of the protected person; and, in particular, may confer any powers which the court may under any law or practice relating to trustees or to wards of court confer upon trustees or itself exercise.

Section 18 of the Aged and Infirm Persons’ Property Act provides that “a manager shall be deemed to be a trustee for all purposes of the Trustee Act 1936 (SA).” Whilst a manager is not a trustee in the sense that a manager does not hold any of the protected estate on trust, the duties and responsibilities of a manager are analogous to that of a trustee.[31]
[31] Public Trustee v Hill and McFarlane (1993) 174 LSJS 48 at 56. See also D’ercole v Wood [2005] SASC 57 at [7].
The above provisions would suggest that the Court has a discretion to provide a manager with wide powers with respect to a protected estate. These are remedial and beneficial provisions and are not to be given a restricted interpretation.
Consideration of the Application
The following questions arise for consideration with respect to the application concerning the statutory will. Does section 13(2) of the Aged and Infirm Persons’ Property Act enable the Court to authorise Mr and Mrs Jeavons in their capacity as managers to seek permission to proceed with an application pursuant to section 7 of the Wills Act, seeking an order for the making of a statutory will on behalf of Mrs Chapman – the power question. If the answer to this question is yes, should the Court in the established circumstances, authorise Mr and Mrs Jeavons in their capacities as managers to prosecute the testamentary causes proceeding –the merits question. Finally, should the Court make an order indemnifying Mr and Mrs Jeavons out of the protected estate against all costs, charges and expenses which have been or may hereafter be properly incurred by them, or which they may be ordered to pay as plaintiffs in the testamentary causes proceeding to any other party, pursuant to section 7(8) of the Wills Act – the indemnity question.
The Power Question
Mr and Mrs Jeavons submitted that the commencement of an action to make a statutory will under section 7 of the Wills Act was “in respect of the protected estate”,[32] and, as such, the Court may grant Mr and Mrs Jeavons such power and authority under section 13(2) of the Aged and Infirm Persons’ Property Act,[33] to pursue an application under section 7 of the Wills Act. The plaintiffs further submitted that the grant of authority should carry with it an indemnity as to costs, in that such costs and expenses of the litigation would be “expenses properly incurred” by them pursuant to section 31 of the Aged and Infirm Persons’ Property Act.[34]
[32] Wills Act 1936 (SA), section 7.
[33] Goodridge v Jenkins (1973) 5 SASR 288 at 293 (Sangster J).
[34] Section 31 of the Aged and Infirm Persons’ Property Act 1940 (SA) provides:
(1)All expenses properly incurred by the manager in respect of the maintenance of the protected person, or the administration of the protected estate, shall be charged against and payable out of that estate; and in addition, there shall be payable in respect of all moneys forming part of the protected estate, and coming under the control of the manager, such remuneration by commission or otherwise to the manager, and such other charges, as are allowed by the court in any manner thought fit by the court.
(2)If the Public Trustee is the manager, there shall be payable in respect of all moneys forming part of the protected estate and coming under the control of the Public Trustee, a commission and fees determined in accordance with regulations made pursuant to section 112 of the Administration and Probate Act 1919 or as is otherwise allowed by the court, and such other charges as may be allowed by the court.
Mr and Mrs Jeavons contended that section 29 of the Aged and Infirm Persons’ Property Act,[35] which authorises a manager to take action in relation to any will of a protected person that “was made when [the protected person] was subject to any of the incapacities defined in section 7 of the Act”, did not apply as there is no evidence to suggest that Mrs Chapman was suffering from any such incapacity at the date of execution of the 5 April 1991 Will.
[35] Section 29 of the Aged and Infirm Persons’ Property Act 1940 (SA) provides:
(1)The court may direct in any case that any testamentary provision by a protected person after the making of a protection order shall be made only after such precautions as the court thinks fit to direct, and any testamentary provision made otherwise than as the court shall so direct shall be ineffectual for all purposes.
(1a)The court may make such a direction at any time or from time to time and it may be made on the application of the manager.
(2)The court may, by such means as it thinks fit, cause inquiries to be made as to the existence of any will or codicil made and executed by the protected person prior to the making of the protection order (whether the will or codicil was made before or after the passing of this Act), and may direct that any such will or codicil shall be deposited with the Registrar of Probates. If it appears to the court that the will or codicil was made when the person making the same was subject to any of the incapacities defined in section 7 of this Act, the court may inspect the will or codicil, and may cause inquiries to be made, in such manner as to the court seems fit, whether the will or codicil expresses the present desire and intention of the protected person, and, if satisfied to the contrary, may in any case where such course is possible, cause the present desire and intention of the protected person to be ascertained to its satisfaction, and may authorise the execution by the protected person of a new will disposing of his estate in accordance with such present desire and intention.
(3)Except as provided in this section, nothing in this Part shall affect the law relating to testamentary dispositions.
The guardian ad litem acknowledged that Mr and Mrs Jeavons, in their capacity as managers, were authorised by the protection order to take possession of and control and manage the whole of the estate of Mrs Chapman. However, it was submitted that it was not evident that the control and management of the protected estate extended to the making of a statutory will. It was contended that the making of the application pursuant to section 7 of the Wills Act was not within the power of the managers to manage the protected estate.
It was further contended that section 7 of the Wills Act proceeded on the basis that the application would not be made by the person lacking capacity. It was submitted that as the protected person could not make application pursuant to section 7, it was not appropriate for Mr and Mrs Jeavons as managers to make the application.
The guardian ad litem argued that there was potential for a conflict of interest to arise from the duty of the managers under the Aged and Infirm Persons’ Property Act to look after and advance the interests of the protected person. Reliance was placed on the decision of Palmer J in Saul v Lin (No 2).[36] This decision concerned an application by beneficiaries to remove the trustee of a trust of which they were beneficiaries, on the grounds of incapacity. Prior to this application, the Protective Commissioner had been appointed manager of the trustee’s estate, pursuant to section 13(1) of the Protected Estates Act 1983 (NSW). The beneficiaries sought the appointment of two new trustees and proposed the cousin once removed of a beneficiary, and a nephew of the existing trustee, as appropriate candidates. Palmer J, in earlier proceedings, expressed reluctance to appoint as new trustees the persons put forward by the beneficiaries because of their close family ties to the beneficiaries of the trust. Palmer J stood the proceedings over to enable the beneficiaries either to find suitable independent new trustees or else to adduce further evidence showing special circumstances warranting the appointment of the proposed new trustees.[37] Palmer J ultimately concluded that he should not appoint the persons proposed by the beneficiaries as new trustees.[38]
[36] Saul v Lin (No 2) (2004) 60 NSWLR 275 at [53].
[37] Saul v Lin [2004] NSWSC 307 at [22]-[24].
[38] Saul v Lin (No 2) (2004) 60 NSWLR 275 at [19].
An application was then made by the Protective Commissioner for an order authorising the Commissioner to “exercise in the name of and behalf of the trustee the powers of the trustee of the trust … as if named as the trustee of the trust”, pursuant to section 71(1) of the Protected Estates Act. The effect of such an order, if granted, was that the trustee would remain as trustee of the trust, although incapable, but the Commissioner would make every decision in the name of the trustee which the trustee might have made as trustee of the trust. Palmer J held that it was not appropriate to appoint the Protective Commissioner as trustee due to the potential conflict of interest regarding his duty to the trustee and to the beneficiaries:[39]
In the present case the Commissioner’s duty under the Protected Estates Act is solely to look after and to advance the interests of the [trustee]. If he were appointed trustee of the trusts he would be placed in a position of difficulty, if not conflict, having regard to his duty to the [trustee] as Protective Commissioner and his duty as trustee to all beneficiaries.
In these circumstances, I do not think it appropriate to appoint the Commissioner as new trustee of the trust. I propose to appoint the Public Trustee.
[39] Saul v Lin (No 2) (2004) 60 NSWLR 275 at [53]-[54].
Counsel for Helen Ellemor contended that it was not part of the proper function of the manager of a protected person’s property to institute proceedings to remake a protected person’s will. It was submitted that the functions of a manager were fairly narrow and were addressed to the protection and maintenance of the protected person’s existing property and to the prudent conduct of her financial affairs. It was submitted that the protected person’s personal affairs, including the way in which a protected person has chosen to dispose of a property after her death, can be of no concern of Mr and Mrs Jeavons in their capacity as managers.
Counsel for Ms Ellemor submitted that section 29 of the Aged and Infirm Persons’ Property Act is directed to preserving the assets of the protected person from the consequences of infirmity and incapacity, and is not directed to carrying out the personal desires, actual or presumed, of the protected person. Attention was drawn to section 13 of the Aged and Infirm Persons’ Property Act. It was pointed out that the institution of a testamentary cause does not appear to fall within any of the heads of power under section 13(1), and it would not appear to fall within the phrase “in respect of the protected estate” in section 13(2). It was conceded that the testamentary causes proceeding instituted by Mr and Mrs Jeavons was not directed to the preservation, betterment, recovery or management of Mrs Chapman’s estates, but rather it was for the extraneous purpose of redistributing those assets on her death.
The provisions of the Aged and Infirm Persons’ Property Act do not expressly authorise the managers of the protected estate to make an application to the Court for the making of a statutory will. The order of the Master appointing Mr and Mrs Jeavons managers does not authorise the making of such an application. However, the Court’s wide discretion under section 13(2) of the Aged and Infirm Persons’ Property Act, would permit a manager in an appropriate case to pursue an application for the making of a statutory will. A manager, so authorised, would be a person within the meaning of section 7(1) of the Wills Act. I reject the submission that a manager of a protected estate cannot under any circumstance be authorised to pursue an application for the making of a statutory will. The question to be determined in this case is whether the Court should so authorise Mr and Mrs Jeavons.
The Merits Question
The determination of this issue requires the Court to assess the relevant material and determine whether the managers would be justified in taking the proceedings.[40] The Court will also consider the prospects of success in the proposed litigation and whether it is in the best interests of the protected person that the proceedings be brought.[41] In Re Atkinson (deceased),[42] Gillard J noted that a Court was:
… not bound to investigate the evidence in order to make a finding that on the material before it the proposed proceedings will or will not be successful. It has merely to determine whether or not the proceedings should be taken.
[40] Executor Trustee Australia Ltd v Blum [2007] SASC 329 at [17]-[21] and cases cited therein (Vanstone J).
[41] Re an Incapable Person D [1983] 2 NSWLR 590 at 595-596 (Powell J).
[42] Re Atkinson (deceased) [1971] VR 612 at 616.
In the present case, Mr and Mrs Jeavons, as managers, wish to effect a change in certain of the dispositions contained in the 5 April 1991 Will, through the mechanism of a statutory will. A primary consideration appears to be to remove Ms Ellemor as the executor and trustee and as the residuary beneficiary. The alterations sought to be effected to the bequests to the National Trust and Prince Alfred College, seek to restrain those beneficiaries in their manner of use of the bequests. The other change relates to the appointment of Mr and Mrs Jeavons as the executors and trustees of the Will. None of these proposed changes appear to have any connection with the management of Mrs Chapman’s estate during her life.
In the circumstances of this case, it has not been demonstrated that there is any connection between the proposed statutory Will and the management of Mrs Chapman’s estate. Counsel for Mr and Mrs Jeavons did not seek to advance any such submission. The relevant provisions of the Aged and Infirm Persons’ Property Act appear to be directed to the maintaining of the estate of Mrs Chapman during the balance of her life, and not to the disposition of what remains of her estate on her death.
It would appear from the evidence of Mr Jeavons, both by affidavit and oral testimony, that he and Mrs Jeavons consider that it is their moral duty to bring before the Court for consideration and adjudication the material that they believe evidences Mrs Chapman’s true testamentary intentions, which are suggested to be at variance with those expressed in the 5 April 1991 will. Mr Jeavons, in his affidavit of 17 July 2008, deposed as follows:
[Mrs Jeavons] and I decided, after receiving legal advice, to apply to the Court to be appointed Managers of [Mrs Chapman’s] estate. We took this course out of what we felt was a moral obligation to [Mrs Chapman].
Mr Jeavons, in his affidavit of 29 July 2008, deposed as follows:
As managers, and more importantly having had a personal and familial relationship with [Mrs Chapman] (spanning, in my case the last 17 years, and [Mrs Jeavons], her whole life), we consider it to be our moral duty to bring before the Court for consideration and adjudication the material which we believe to evidences her true testamentary intentions which are at variance from the “Temporary Will” of 1991.
Mr and Mrs Jeavons issued the application for permission pursuant to section 7(1) of the Wills Act, in their personal capacities. They did so as a result of a suggested moral obligation to make Auntie’s voice heard. They have a firm conviction that the 5 April 1991 Will would not represent Mrs Chapman’s testamentary intentions as at 2008. This is not withstanding that Mrs Chapman did not revoke or vary the 5 April will, despite retaining her full mental capacities until some time after the year 2000. Mr Jeavons makes clear that the reason why he and Mrs Jeavons wish to adopt the proceedings as managers, is to protect them personally from orders as to costs:
However, Juliet and I are not prepared to hazard our personal assets in order that Auntie’s voice may be heard and her testamentary intention given effect to. If the Court does not grant us an order for indemnity in any event we will have to consider our own personal family obligations as possibly overriding the discharge of our moral and familial obligation to Auntie.
This testimony confirms that it is the personal, moral and familial obligation to “Auntie” that drives the application. There is no basis advanced for why such an application is a matter concerning the management of the protected estate.
Mr and Mrs Jeavons wish to pursue their personal, moral and familial obligations, but at the legal and other financial expense of the estate. It is at this point that their duties as managers give rise to a conflict with their personal position. There is, as the guardian ad litem submitted, a conflict of interest.
In these circumstances the Court should not authorise that the proceeding be at the expense of the estate. There is no moral or familial obligation on Mr and Mrs Jeavons as managers to pursue the making of a statutory will.
The evidence that Mr and Mrs Jeavons have proffered to support their submissions that the 5 April 1991 will does not represent Mrs Chapman’s testamentary intentions may justify their pursuing the testamentary causes proceeding in their personal capacities. Whether they wish to pursue that proceeding is a matter for them.
The Indemnity Question
In these circumstances, it is also unnecessary to consider the issue as to an indemnification as to costs, but as the question has been addressed by the parties, it is appropriate that I should express my views.[43]
[43] Kuru v State of New South Wales (2008) 246 ALR 260 at [12]:
The appeal to this Court should be allowed. There was neither statutory nor common law justification for the police remaining on the appellant's premises. The matter must be remitted to the Court of Appeal for consideration of the outstanding issues about damages. That outcome means that this Court cannot make orders disposing finally of the dispute between the parties. This Court has said on a number of occasions [Cornwell v The Queen (2007) 231 CLR 260 at [105]; 81 ALJR 840; Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274 at [105], 79 ALJR 260; Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1 at [34]-[35], 75 ALJR 518.] that, although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground. If the intermediate court has dealt with all grounds argued and an appeal to this Court succeeds, this Court will be able to consider all the issues between the parties and will not have to remit the matter to the intermediate court for consideration of grounds of appeal not dealt with below.
Counsel for Mr and Mrs Jeavons submitted that the Court has a general discretion as to costs under section 7 of the Wills Act. It was contended that a representative party, such as the managers of a protected estate, in the event of permission being granted to issue proceedings for the making of a statutory will, should be entitled to do so with the protection of an indemnification order. It was argued that as managers they were entitled to proceed once permission has been granted, in the knowledge that they do not have a personal exposure as to costs. It was said that their position was analogous to that of a trustee or liquidator, and that once the Court had assessed the evidence and determined that the plaintiffs were justified in taking the proceedings, it was appropriate that they would be protected.
The National Trust, Prince Alfred College, Ms Ellemor and Public Trustee opposed the making of any order for indemnification. Their submissions were substantially to the same effect. It was said that an order granting indemnification would have the direct effect of reducing Mrs Chapman’s estate, regardless of the merits of bringing such an application. It was submitted that an order for indemnity would result in there being no inherent restriction on the conduct of Mr and Mrs Jeavons in pursuing the testamentary causes proceeding. It was said that there would be little incentive for the plaintiffs to consider the relative position of persons or entities affected by the outcome of proceedings. It was argued that granting indemnity at the outset of the proceedings would unreasonably and unnecessarily constrain the inherent cost discretion of the Court. It was pointed out that not granting the order for indemnity did not preclude the pursuit of the testamentary causes proceeding, and would not preclude an application for indemnification at the conclusion of the proceedings. At that time the Court would be fully informed of the conduct of Mr and Mrs Jeavons, and whether in all of the circumstances, it was reasonable, necessary and proper to institute and maintain the present proceedings. In other words, the Court could reach a conclusion in light of all of the circumstances.

Counsel opposing an order for indemnification emphasised that this proceeding was fundamentally different to others. Mrs Chapman had already made a will and had not seen fit to duly execute any later will or codicil, although apparently having taken legal advice from time to time. It was said that this was not a case where the protected person had no will, and there was an urgency on the facts to make a testamentary disposition in a manner different to that contemplated under the intestacy provisions of Part 3A of the Administration and Probate Act.
Finally, it was contended that in the circumstances of this case, where the estate is asset rich and cash poor, the drawing down on the $1,000,000 mortgage facility or other assets of the estate for the purpose of paying the manager’s costs, regardless of the outcome and irrespective of any determination by the Court as to whether the costs have been reasonably, properly or necessarily incurred in respect of the testamentary causes proceeding, was premature at this stage.
Public Trustee put the further submission that if permission was given to Mr and Mrs Jeavons as managers to pursue the statutory will application, they would not require the protection of an indemnification order for their own costs and expenses. Attention was drawn to section 35(2) of the Trustee Act, which provides:
A trustee may reimburse himself, or pay or discharge out of the trust premises, all expenses incurred in or about the execution of his trusts or powers.
In these circumstances it was said that the order was unnecessary and lacked utility. As to the balance of the proposed order, Public Trustee submitted that it seeks to determine in a pre-emptive way, where the burden – as between managers personally and the protected estate – should lie in relation to any costs which the managers may later be ordered to pay as plaintiffs in the testamentary causes proceeding.
Had I taken the view that Mr and Mrs Jeavons should be granted permission as managers to pursue the testamentary causes proceeding, I would not have made any indemnification order. In my view, the making of such an order would be both undesirable and premature at this stage of the proceedings. If the application were found to be meritorious, then Mr and Mrs Jeavons would be adequately protected. If the application were dismissed, but it had been reasonably pursued, it might be expected that Mr and Mrs Jeavons again might be adequately protected. In the event that the Court reached the conclusion that the plaintiffs had acted unreasonably or inappropriately, then the Court would retain its unfettered discretion to make an appropriate order as to costs.
Conclusion
For these reasons I declined to make an order granting Mr and Mrs Jeavons permission as managers to proceed with the statutory will application.

Michael John Fuller
by
Juliet Marie Jeavons & Steven David Jeavons
(APPOINTED MANAGERS)

Re – Property & Estate Torrie Chapman (Nee Hunt)

PERIOD:- six months renewable as may be agreed. Retainer may be terminated by Managers on seven days written notice.

DUTIES:- 1 – To co-ordinate the retainer of legal and other professional advice.

2 – To assist the getting in and protection of all property.

3 – To supervise and assist with management and performance of duties as
attorney and guardian in the course of the administration of the Estate.

4 – To interface with Solicitors and Counsel in relation to any proposed
litigation and the conduct thereof.

REMUNERATION:-

1 – $10,000 lump sum on commencement which will include all work prior to commencement.

2 – $200 per hour invoiced monthly.

DATED 1^ST April 2008

……………………. ….….……………
Juliet Marie Jeavons Michael John Fuller

…………………….
Steven Davis Jeavons

Paid 4/4/08
Chq no 000001

S&L Account