Johnson v Staniforth
[2001] WASC 331
JOHNSON -v- STANIFORTH & ORS [2001] WASC 331
| Link to Appeal : |
[2002] WASCA 97 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 331 | |
| Case No: | CIV:1015/2000 | 21 NOVEMBER 2001 | |
| Coram: | HASLUCK J | 10/12/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for defendants on preliminary issue | ||
| A | |||
| PDF Version |
| Parties: | DONALD EDWIN JOHNSON WINNIE KATIE STANIFORTH FIONA LISA STANIFORTH |
Catchwords: | Guardianship and Administration Act Effect of administration order made pursuant to the Act Person affected by order incapable of making any disposition Whether execution of a Will can be characterised as a disposition Preliminary issue as to meaning of "disposition" Execution of a Will held not to be a disposition |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 64(1), s 69, s 77(1)(a), s 78 Interpretation Act 1984 (WA), s 18, s 19 |
Case References: | Carnley v Hoff [1942] 1 Ch 298 In the Marriage of Bassola (No 1) (1985) FLC 91-623 In the Marriage of Hudson (1986) FLC 91-768 Northumberland v AG [1905] AC 406 Ord Forrest Pty Ltd v Federal Commissioner of Taxation (1974) 130 CLR 124 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WINNIE KATIE STANIFORTH
First Defendant
WINNIE KATIE STANIFORTH
FIONA LISA STANIFORTH
Second Defendants
WINNIE KATIE STANIFORTH
Third Defendant
Catchwords:
Guardianship and Administration Act - Effect of administration order made pursuant to the Act - Person affected by order incapable of making any disposition - Whether execution of a Will can be characterised as a disposition - Preliminary issue as to meaning of "disposition" - Execution of a Will held not to be a disposition
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Legislation:
Guardianship and Administration Act 1990(WA),s 4, s 64(1), s 69, s 77(1)(a), s 78
Interpretation Act1984 (WA), s 18, s 19
Result:
Judgment for defendants on preliminary issue
Category: A
Representation:
Counsel:
Plaintiff : Mr K E Yin
First Defendant : Dr A F Dickey QC
Second Defendants : Dr A F Dickey QC
Third Defendant : Dr A F Dickey QC
Solicitors:
Plaintiff : Frichot & Frichot
First Defendant : Halperin Fleming Meertens
Second Defendants : Halperin Fleming Meertens
Third Defendant : Halperin Fleming Meertens
Case(s) referred to in judgment(s):
Carnley v Hoff [1942] 1 Ch 298
In the Marriage of Bassola (No 1) (1985) FLC 91-623
In the Marriage of Hudson (1986) FLC 91-768
Northumberland v AG [1905] AC 406
Ord Forrest Pty Ltd v Federal Commissioner of Taxation (1974) 130 CLR 124
Case(s) also cited:
Nil
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1 HASLUCK J: This is a trial of a preliminary issue. The question of law for the Court to determine is whether the making of a Will constitutes a "disposition" in respect of an estate within the meaning of s 77(1)(a) of the Guardianship and Administration Act 1990 (WA).
2 The plaintiff pleads in the amended statement of claim herein that he is the nephew of Michael Vranjican, late of Kimberley Nursing Home, Kimberley Street, Leederville, who died aged 86 years of age on 2 August 1998 without leaving any spouse or issue.
3 It is alleged that by a last Will and testament dated 18 December 1996 ("the first Will") the deceased appointed the plaintiff as executor and trustee of his Will and estate and gave his entire estate to the plaintiff absolutely. The plaintiff says that by a further Will dated 23 October 1997 the deceased purported to appoint the first defendant as executrix and trustee of his Will and estate and gave his entire estate in equal shares as tenants in common to each of the second defendants ("the second Will").
4 The plaintiff alleges that as of the time of the making of the second Will, the deceased lacked testamentary capacity in that his medical and mental condition was such as to preclude him from having knowledge and understanding of the contents of the second Will.
5 The plaintiff says further that by a third Will made 25 March 1998, the deceased purported to appoint the third defendant as executrix and trustee of his Will and estate and gave his entire estate to the third defendant ("the third Will"). It is said that as of the time of the making of the third Will, the deceased lacked testamentary capacity, with the result that the third Will is void and of no force or effect.
6 Against this background, the plaintiff seeks orders and declarations that the second and third Wills are void and of no force or effect and that probate in solemn form of the first Will should be granted to the plaintiff.
7 A number of contested issues are disclosed by the pleadings. For present purposes, however, it is sufficient to note that, as a consequence of an order made by Master Sanderson in chambers on 23 July 2001 in relation to the trial of a preliminary issue, a statement of agreed facts was prepared which brings into focus the issue presently before me.
8 It is apparent from the statement of agreed facts and the related evidentiary materials referred to by counsel at the hearing, that some months prior to the deceased's death, the plaintiff made an application
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- seeking administration of the estate of the deceased under the provisions of the Guardianship and Administration Act. A hearing was conducted. The first defendant, Winnie Katie Staniforth, was appointed administrator of the estate of Michael Vranjican pursuant to an administration order dated 9 March 1998.
9 The statement of agreed facts recognises that it was a fortnight or so later that the deceased Michael Vranjican proceeded to make the third Will on 25 March 1998 (although the relevant instrument was incorrectly dated 25 March 1997). This Will, being the Will described in the pleadings as the third Will, was made without the knowledge or consent of the Board.
10 Accordingly, the question to be resolved as a preliminary issue is whether the Will of the deceased made on 25 March 1998 (being the third Will) is, by reason of s 77 of the Guardianship and Administration Act unenforceable or, alternatively, void, or otherwise of no force and effect.
11 The long title to the Guardianship and Administration Act is expressed in this way:
"An Act to provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs, to establish a Board with jurisdiction in respect of guardianship and administration matters, to provide for the appointment of a public officer with certain functions relative thereto, to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes."
12 The provisions of the Act, consistently with the objectives reflected in the long title, provide for the establishment of a Guardianship and Administration Board. By s 4, the principles to be observed by the Board require that every person shall be presumed to be capable of managing his own affairs and making reasonable judgments in respect of matters relating to his estate until the contrary is proved to the satisfaction of the Board. A guardianship or administration order shall not be made if the needs of the person in question could, in the opinion of the Board, be met by other means less restrictive of the person's freedom of decision and action.
13 Section 64(1) of the Act provides that subject to observance of the principles just mentioned, where the Board is satisfied that a person in respect of whom an application for an administration order is made is
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- unable by reason of a mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate, and is in need of an administrator of his estate, the Board may by order declare the person to be in need of an administrator of his estate and appoint a person to be the administrator.
14 Section 69 of the Act defines the authority of an administrator. He may, on behalf of a represented person, execute all such documents and do all such things as are necessary for the performance of the functions vested in him. Section 69(4) specifically provides that nothing in the Act vests the estate of a represented person in an administrator.
15 Section 77(1) of the Act reads as follows:
"(1) So long as there is in force a declaration by the Board under section 64 (1) that a person is in need of an administrator of his estate, that person is -
(a) incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein; or
(b) subject to Part 9, appointing or conferring any power on an agent or attorney in respect thereof,
except to the extent that the administrator, with the consent of the Board, in writing authorizes him to do so."
16 I pause to observe that the term "disposition" is not defined expressly by the Act. However, s 77(5) provides that, for the purpose of the provision, the acceptance of payment of the whole or any part of a debt shall be deemed to be a disposition in respect of the estate.
17 Section 78(1) of the Act provides that a person ceases to be an administrator upon the making of an order revoking his appointment or the death of the represented person.
18 It was against this background that the plaintiff in the present case asserted by par 12A of the amended statement of claim that, by reason of the making of the administration order on 9 March 1998, some weeks prior to the making of the third Will, and some months prior to the death of the deceased, the deceased was incapable of entering into any contract or making any disposition in respect of his estate without the consent of the Board. The third Will was, on its true and correct construction, a
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- disposition in respect of the estate of the deceased. This disposition had been made without the knowledge or consent of the Board and was therefore unenforceable or, alternatively, void or of no force and effect.
19 I note in passing that the relevant administration order dated 9 March 1998 commences with a recital that the Board was satisfied that Michael Vranjican, being the represented person, was unable, by reason of mental disorder, to make reasonable judgments in respect of matters relating to all or any part of his estate, he was in need of an administrator his estate, and his need could not be met by other means less restrictive of his decision and action. The first defendant, Winnie Katie Staniforth, was then appointed limited administrator of the estate, with various prescribed functions, including to operate all or any of the represented person's bank accounts and to sell or grant an option to purchase the property of the represented person. Provision was made for the administrator to submit accounts and for the administration order to be reviewed by 9 March 1999. It is significant that the administration order in its terms does not purport to limit the capacity of the represented person to execute a Will.
20 Counsel for the plaintiff placed some reliance upon Jowitt's Dictionary of English Law (2nd ed) where the meaning attributed to the term "Will" includes a disposition or declaration by which the person making it (who is called the testator) provides for the distribution or administration of property after his death. The learned author goes on to note that a Will does not take effect until the testator's death and is always revocable by him.
21 Counsel also placed some reliance upon Northumberland v AG [1905] AC 406 in which Lord MacNaghten said, at 410, in the context of discussion concerning the Succession Duty Act 1853, that the terms "disposition" and "devolution" must have been intended to comprehend and exhaust every conceivable mode by which property can pass, whether by act of parties or by act of the law.
22 Reference was also made to Carnley v Hoff [1942] 1 Ch 298 where it was held that the word "disposition" within the meaning of the English Legitimacy Act 1926 was a reference to a Will. It is important to understand, however, that in the latter case the interpretation section of the statute stated explicitly that the expression "disposition" meant an assurance of any interest in property by any instrument whether inter vivos or by Will.
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23 Counsel for the plaintiff recognised that a Will only takes effect upon the death of the testator. However, on his submission, a Will could be regarded as a disposition that took effect upon the happening of a contingency, namely, the death of the testator. Further, the notion that the term "disposition" should be broadly construed so as to encompass the making of a Will was consistent with the scheme of the Guardianship and Administration Act. On his case, the scheme of the Act was to protect subject persons from passing their property by any conceivable means in circumstances where they lacked the capacity to form reasonable judgments. It was therefore fitting, and consistent with the scheme of the Act, that a Will made by a person subject to an administration order should be of no force and effect if it were made without the consent of the Board.
24 Counsel for the defendants reminded me that the term "disposition" was not defined by the Act. He went on to submit that proper weight should be given to the ordinary meaning of the word and to various important features of the Guardianship and Administration Act, including the statement of principles to be observed and the fact that administration ceases upon the death of the represented person. These features of the Act suggest that the Act is only concerned with facts and matters capable of affecting the relevant estate during the lifetime of the represented person.
25 Counsel placed some reliance upon a number of decided cases in support of his basic proposition that the term "disposition" is confined to an instrument or event which effects the alienation of property: Ord Forrest Pty Ltd v Federal Commissioner of Taxation (1974) 130 CLR 124 at 143, 148 and 155. Also see In the Marriage of Bassola (No 1) (1985) FLC 91-623 at 80,044; In the Marriage of Hudson (1986) FLC 91-768 at 75,605.
26 Counsel for the defendants went on to submit that the simple execution of a Will does not constitute a disposition of property because it does not alienate property. The Will simply specifies the way in which property is to be transmitted upon the testator's death. A Will does not effect any change of ownership or effect an alienation of property until the testator's death. It is simply an expression of intention of the way the testator's property is to be dealt with upon his or her death.
27 Counsel contended, having regard to the scheme of the Act, that s 77(1)(a) should be regarded as applying only to inter vivos dispositions of property and not to dispositions by Will. The criteria for the making of an administration order under s 64(1) did not point
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- expressly or by necessary implication to lack of any testamentary capacity. It was significant that by s 78(1)(b) an administration order ceased to have effect upon the death of the represented person. Various provisions of the Act indicated that the issue being addressed by the Act was whether a living person had the capacity to manage his affairs and to make reasonable judgments about his estate.
28 Counsel submitted further that, as a matter of public policy, the right of a person to make a Will is such an important personal right that a Court should not regard a person as being deprived of this right unless there was a clear legislative intention to that effect. Here, the principles to be observed by the Board weighed against a conclusion that the term "disposition" should be taken as extending to the making of a Will. It would represent a significant restriction of a person's entitlement to dispose of their property upon death if an administration order could be obtained prior to death so that thereafter the consent of the Board would have to be obtained before a Will was executed. On such a reading of the Act, the Board would assume the function of determining whether a person was thought to have testamentary capacity or not. This would be an absurd result in circumstances where the statute in question contained no criteria as to how testamentary capacity should be evaluated.
29 Section 18 of the Interpretation Act1984(WA) provides that in the interpretation of a provision of written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
30 Section 19 of the Interpretation Act provides that consideration may be given to extrinsic material in order to determine the meaning of a provision when the provision is ambiguous or obscure. The material that may be considered includes the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time.
31 The Second Reading Speech in respect of the Guardianship and AdministrationBill was made by the Hon J M Berinson in the
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- Legislative Council on 11 July 1990. He said that the framework of the Bill gives people the freedom to function independently if they have the competence. It recognises the existence of a wide spectrum of disabilities between what is judged to be absolute competence or absolute incompetence. The proposed legislation would encourage people, wherever possible, to develop skills for self-management and it would provide for guardians to act only in those areas where incapable persons are unable to look after themselves. There is no suggestion in the Second Reading Speech that the proposed legislation is directed to testamentary capacity or to a need for restrictions upon a person's capacity to make a Will.
32 In my view, it is significant that the Guardianship and Administration Act in its terms does not purport to be dealing with the issue of testamentary capacity or the management of an estate after death. As I have already noted, it is significant that by s 69(4), nothing in the Act vests the estate of a represented person in an administrator. When the various provisions of the Act are considered in combination, they suggest that the Act is concerned with the administration of the affairs of a represented person during his lifetime. This, in turn, suggests that the term "disposition" in s 77(1)(a) is confined to instruments or events which have the effect of alienating property immediately. This is consistent with the ordinary meaning of the word "disposition" which relates to dealing with property in a way that brings about an immediate result. Property can be alienated by contractual arrangements or by an immediate physical delivery. In the case of a Will, however, which can be revoked at any time prior to death, the making of a Will cannot be said to have effected an alienation or disposition of property.
33 It follows that, in my view, the term "disposition" contained in s 77(1)(a) of the Guardianship and Administration Act does not apply to the making of a Will. The consequence is that the third Will of the deceased, being the Will made on 25 March 1998 shortly after the making of the relevant administration order on 9 March 1998, cannot be regarded as unenforceable or as having no force and effect simply because the consent of the Board to the making of such an order had not been obtained.
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34 This ruling in response to the preliminary issue leaves for consideration at the trial of the action a number of other issues, including the question of whether the deceased lacked testamentary capacity at the time of the making of the second and third Wills. There is no need for me to say anything about such matters at this stage.
35 I will hear from the parties as to whether any further orders or directions are required concerning the ruling I have made in response to the preliminary issue.
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