Pak Anors v Protected Person and MOM - [2022] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF A PROTECTED PERSON
[2022] SASC 81
Judgment of the Honourable Auxiliary Justice Bochner
4 August 2022
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - WHERE APPROPRIATE AND IN INTERESTS OF JUSTICE
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Family Law Act 1975 (Cth) s 79, s 75(2); Wills Act 1936 (SA) s 7; Inheritance (Family Provision) Act 1972 (SA); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA) s 5(1); Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1), referred to.
Re Liu; Yan v Kong [2020] SASC 143; BHP Billiton Ltd v Schultz [2004] HCA 61, considered.

IN THE ESTATE OF A PROTECTED PERSON
[2022] SASC 81

The second respondent has, by FDN 38, sought orders to have this matter transferred to the Federal Circuit and Family Court of Australia (“FCFCOA”), so that it may be heard concurrently with an action instituted by the applicants in Division 2 of that Court. In the alternative, he seeks an order vacating the trial of this matter and for it to be listed for trial after the finalisation of the action in the FCFCOA. In the third alternative, he asks that this action be stayed until the conclusion of the action in the FCFCOA. These are my reasons for dismissing each of those applications.
Background
Out of an abundance of caution and to protect the privacy of the parties, I will refer to the parties in the following way:
·I will refer to the applicants as the applicants;
·I will refer to the second respondent as the respondent; and
·I will refer to the first respondent as the protected person.
The respondent and the protected person were married in 2004; it was the second marriage for each of them.[1] The applicants are the children of the protected person and her first husband. At the time that this action was commenced, the respondent was 77 years old and the protected person was 74 years old. An independent lawyer has been appointed the protected person’s litigation guardian.
[1] FDN 39, MM-3, 5.
In setting out a brief summary of the background to this application, I make no findings of fact. I accept that the respondent may not accept as fact all of the matters that I enumerate below; I set them out only to provide context for these reasons. I accept that at the trial of this matter, the parties will have the opportunity to challenge the affidavit evidence given by each of them, which may lead to findings of fact which differ to the background that I describe now.
It is the evidence of the applicants that the protected person began exhibiting signs of dementia many years before a formal diagnosis of Alzheimer’s Disease was made in 2014.[2] While the onset of her disease was relatively gradual, it appears to have progressed rapidly in the last several years. By about 2014, the protected person required assistance with dressing and personal hygiene,[3] by 2018, her daughter was concerned about her being left at home alone,[4] and by about 2018, she was having episodes of incontinence.[5] Until September 2021, she remained living in the home that she shared with the respondent (“the matrimonial home”); he was her sole carer. It is the evidence of the applicants that for a number of years prior to her taking up residence in a nursing home, they had raised concerns about the care that she was receiving from the respondent.[6] The evidence is that she now has severe dementia, is at risk of falls and suffers seizures.[7]
[2] See, for example, FDN 12, [25] – [32], FDN 40, MHD-09, [[9] – [22] and FDN 45, [13] – [22].
[3] FDN 45, [9].
[4] Ibid, [32] – [36].
[5] Ibid, [39].
[6] Ibid, [46] – [47].
[7] FDN 3, MHD-02.
In October 2020, the respondent was accused of physically assaulting the protected person. He was charged with aggravated assault and he pleaded guilty to that charge in June 2021. After they became aware of the assault, the applicants applied to the South Australian Civil and Administrative Tribunal for orders appointing them the full administrators of her estate and as her substitute decision makers. They arranged for the protected person to be removed from the home she shared with the respondent and placed in a nursing home in a unit specifically for caring for people with dementia. That is where she currently resides.
On 19 November 2021, the applicants commenced proceedings in the FCFCOA, seeking orders for property settlement between the protected person and the respondent, pursuant to s 79 of the Family Law Act 1975.[8] I will refer to this as “the FLA action”. On 1 April 2022, they commenced this action, seeking an order for the making of a will on behalf of the protected person pursuant to s 7 of the Wills Act 1936 (SA), which would serve to remove any entitlement of the respondent to any benefit from her estate. I will refer to this action as “the wills action” or “this action”.
[8] File number ADC5656/2021.
When this action was first listed for directions, the applicants sought an urgent trial date, on the basis that the protected person’s health had significantly deteriorated. Subsequently, they acknowledged that there was no imminent risk of the protected person’s death. This action was listed for trial commencing on 1 June 2022.
The trial of this action did not go ahead on 1 June 2022, as the applicants did not file their affidavit material in time. The trial was then listed to commence on 8 August 2022. The applicants have now filed their affidavit material, although significantly outside of the timetable set by the Court. I note that the respondent does not rely on the lateness of the service of the applicants’ affidavit material in his application to vacate the trial set to commence on 8 August 2022.
On 25 July 2022, the respondent filed FDN 38. It was agreed between the parties that the application would be dealt with on the papers. The applicants and the respondent have filed written submissions; the protected person’s litigation guardian does not wish to be heard on the application.
The respondent’s position
The respondent contends that both the wills action and the FCFCOA action deal with the same “underlying dispute: what share, if any, of [the respondent’s] property will be available to be distributed to the three siblings under [the protected person’s] will?”[9] This is on the basis that the purpose of the FLA action is to adjust the property interests of the respondent and the protected person to the benefit of the protected person, thus enlarging the pool of assets available for distribution to the applicants under the will that they ask the Court to approve and authorise in the wills action.
[9] FDN 41, [10].
The respondent then recharacterises the question to be determined in each action in the following way: “Did the assault proceeding bring the marriage and [the protected person’s] existing testamentary intentions to an end?”[10] He contends that this Court is unable to determine this issue because it either does not have the jurisdiction to deal with the questions raised by this issue; or it is unable to make the necessary factual findings; or because the answer to the question relies on factual issues that will be determined by the FLA action.
[10] Ibid, [12].
The respondent argues that the matters that the Court must take into account pursuant to s 7(4) of the Wills Act are matters which are integral to the FLA action. For example, the wishes of the protected person are bound up with whether the marriage is intact or if it has ended, and the reasons for the will previously made by the protected person are part of the marital relationship. The entitlements of the beneficiaries of her current will are entirely dependent on whether the FCFCOA makes orders of the kind sought by the applicants. Further, whether any person could make a claim pursuant to the Inheritance (Family Provision) Act 1972 (“the IFPA”) will also depend on any findings and orders made by the FCFCOA in the FLA action.
While the respondent further argues that this Court is unable to determine the likely size of the protected person’s estate, as required by s 7(4)(f) of the Wills Act. He says that, even if it was in a position to do so, her estate may change substantially as a result of the outcome in the FLA action. In any event, the respondent’s position is that this Court cannot consider the likely size of the protected person’s estate until the finalisation of the FLA action. If her estate were to be substantially increased as a result of orders made by the FCFCOA, it would be an important factor to take into consideration in determining her testamentary intentions.
White the respondent does not press the contention that the protected person’s testamentary intention is a matrimonial cause within the meaning of the Family Law Act, he says that some of the matters which must be taken into consideration pursuant to the Wills Act are matrimonial causes, such as his claim that he has an equitable interest in the matrimonial home, which is registered in the sole name of the protected person. He argues that the FCFCOA Division 1 has accrued jurisdiction to determine the non-Federal aspects of justiciable controversies within its jurisdiction; as a result, all of the issues which must be determined pursuant to s 7 of the Wills Act can be determined by the FCFCOA Division 1. As the FCFCOA can determine all of the issues in dispute between the parties, it is appropriate that this matter be transferred to it.
The respondent concedes that this Court also has jurisdiction to determine all of the issues in dispute between the parties, both in the will action and the FLA action; the applicants have not, however, sought to invoke this jurisdiction. By pressing to have the wills action heard in this Court, they are pursuing an action at a time when not all of the relevant evidence can be ascertained, and which may ultimately prove to be pointless.
As a result, the respondent says that the wills action should be adjourned or stayed until the finalisation of the FLA action, or alternatively, it should be transferred to the FCFCOA pursuant to s 5(1) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (SA) (“the Cross Vesting Act”).
The applicants’ position
The applicants accept that there is some overlap between the issues in dispute in the wills action and the FLA action, and that there may be efficiencies in having both matters dealt with concurrently. It is the position of the applicants, however, that the interests of justice require the wills action to be dealt with in this Court.
In considering the application of s 5(1) of the Cross Vesting Act, the applicants submit that the Court must consider the requirements set out in s 5(1)(b)(ii)(A), (B) and (C). They set out the principles to be applied, which include:
·The appropriate forum is dictated by the interests of justice; there is no room for the exercise of a discretion in this regard.
·The interests of one party or another will not necessary be the same as the interests of justice.
·The choice of forum of the moving party is not persuasive or determinative in any way.
·The party applying for the transfer does not bear any burden or onus.
The opposition of the applicants to the application for transfer falls into two categories. The first category relates to the jurisdiction of the FCFCOA.
The applicants say that any transfer from this Court would be to the FCFCOA Division 1. The FLA action, however, is in Division 2 of that Court. As a result, there is no action in the FCFCOA Division 1 with which the will action would be heard. To put this another way, while it may be that case the FCFCOA Division 1 may have accrued jurisdiction to hear the wills action, there must be an action in Division 1 for that to occur. Absent an action between the parties in Division 1 of the FCFCOA, this Court cannot make an order pursuant to s 5 (1) of the Cross Vesting Act. While the FLA action may in the future be transferred from Division 2 to Division 1, that has not yet occurred. Until it does, however, the order sought by the respondent cannot be made.
The second category relates to the interests of justice. The applicants submit that the proximity to trial strongly weighs against a transfer of the wills action to the FCFCOA. While the applicants concede that the protected person is not at risk of death imminently, the fact that she is suffering from dementia should be taken into consideration, combined with the fact that, were she to die, there would be no power to make a will pursuant to s 7 of the Wills Act. The applicants point to the fact there is unlikely to be a trial in the FCFCOA within 12 to 24 months.
The applicants contend that this Court’s expertise in exercising its testamentary causes jurisdiction is a matter which also should be taken into account when determining where the interests of justice lie.
Finally, the applicants say that the fact that the estate of the protected person may be altered by the outcome of the FLA action, is not an insurmountable issue in dealing with the wills action. They say that the situation is no different from that of a person with capacity making a new will after separation from their spouse but before the finalisation of any property settlement. This issue further falls away, when the likely testamentary intention of the protected person is to leave the entirety of her estate to her children in equal shares. In this situation, the exact size and nature of her estate assume less relevance.
As to the respondent’s application for a stay, the applicants say that the interests of justice do not favour making such an order. They refer to the case of Re Liu; Yan v Kong,[11] where Stanley J said:
At issue is whether a stay is required in the interests of justice. It is not granted lightly. The onus is on the plaintiff to establish that conclusion. In my view she has not done so.[12]
[11] [2020] SASC 143.
[12] Ibid, [14].
The proximity of the application to trial is a matter that must also be taken into consideration when considering whether the matter should be stayed. Given that any trial in the FCFCOA (whether dealing simply with the FLA action or with both the FLA action and the wills action) is unlikely to be heard within 12 to 24 months, the interests of justice do not favour a stay.
The respondent’s submissions in reply
The respondent notes that the applicants have not sought to have the FLA action transferred pursuant to s 4(1) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth) to this Court.
The respondent submits that the expertise of this Court in exercising the testamentary causes jurisdiction is not a matter that weighs heavily when considering the interests of justice because the Wills Act sets out clear criteria for the application of s 7.
The respondent further presses the substantial overlap of subject matter between the wills action and the FLA action. In particular, he notes the substantial overlap between the criteria set out in s 7(4) of the Wills Act and s 75(2) of the Family Law Act.
The respondent submits that the fact that the FLA action is currently in the FCFCOA Division 2 is not a barrier to a transfer. He notes that preliminary transfer to a different court was required in the case of BHP Billiton Ltd v Schultz;[13] this was not regarded by the High Court as a factor weighing against cross vesting. The respondent says that, in the event that it is found that it is in the interests of justice that the wills action be heard in the FCFCOA, there is unlikely to be difficulty in transferring the FLA action to the FCFCOA Division 1.
[13] [2004] HCA 61.
The respondent contends that the interests of justice require all questions in dispute between the parties be heard in the one court, because of the substantial overlap of issues. He submits that the interests of the applicants and the protected person should not be given more weight than his interests.
As to the applicants’ submissions in respect of proximity to trial, the respondent says that this matter is of less significance given that the protected person’s health is stable and relatively good. He further says that the refusal of the applicants to cooperate in transferring the FLA action to this Court also makes the proximity of the trial less relevant than it might otherwise have been. He says that if the applicants had done so, all of the issues in dispute could have been dealt with by one court, and within an appropriate time frame.
The respondent disputes the applicants’ contention that the wills action can proceed without knowing exactly the size and nature of the protected person’s estate. He says that significant legal costs will be incurred by the parties as a result of running two trials in different courts. In addition, there is the risk of inconsistent findings, and a reconfiguration of the protected person’s and the respondent’s property pool may render any findings of fact in this Court otiose. Further, if the applicants are successful in the FLA action, it is likely that the respondent will bring an action pursuant to the IFPA, as a result of any will made pursuant to s 7 of the Wills Act.
The respondent indicates that he will agree to an expedited hearing in the FCFCOA in the event that the wills action is stayed or transferred.
Consideration
I say at the outset that I do not consider that the applicants’ jurisdictional objection has any merit. In the event that a finding was made that the interests of justice required transfer of the wills action, I am satisfied that transfer of the FLA action to Division 1 of the FCFCOA would be facilitated.
In so far as it is relevant to this action, s 5 of the Cross Vesting Act provides:
5—Transfer of proceedings
(1)     Where:
(a)     a proceeding (in this subsection referred to as the "relevant proceeding ) is pending in the Supreme Court; and
(b)     —
(ii) it appears to the Supreme Court that having regard to—
(A)whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court; and
(B)the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C)the interests of justice,
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be,
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.
After examining a number of authorities in respect of cross vesting legislation in various States and the Commonwealth, Hinton J said this about s 5(1):
These observations apply equally to s 5(1) of the Cross-vesting Act. In Cini v Pets Paradise Franchising (SA) Pty Ltd Bleby J distilled the following propositions from BHP Billiton Ltd v Shultz:
·It is not relevant to ask whether this Court is justified in refusing to exercise the jurisdiction conferred on it. Rather, it must ensure that the case is heard in the forum dictated by the interests of justice.
·The question is not whether this Court is an inappropriate forum. It is both necessary and sufficient that, in the interests of justice, the other court is more appropriate.
·The court is required to ensure that cases are heard in the forum dictated by the interests of justice. It is not a question of the exercise of a discretion.
·The interests of justice are not necessarily the same as the interests of any one party.
·Because it is necessary to identify the more appropriate forum, no specific emphasis can be given in favour of the choice of forum made by the plaintiff.
·It is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.
Further, here, bearing in mind my conclusion that M’s application is a matrimonial cause within the meaning of the FLA, sub-subparagraphs (A) and (B) of s 5(1)(b)(ii) of the Cross-vesting Act require that consideration be given to which court ordinarily exercises the jurisdiction subject of the proceeding, to this Court’s familiarity with the applicable body of law, and to the appropriateness of this Court considering the application, interpretation or validity of a law of the Commonwealth in a proceeding in relation to which it would not have jurisdiction but for the Cross-vesting Act. The ultimate question is, however, which is the more appropriate forum upon a fair balancing of all the factors defining the relevant “interests of justice”.[14]
(footnotes omitted)
[14] M v L [2017] SASC 39, [74] – [75].

It is clear that interests of justice are the keystone in determining whether a matter should be transferred to another Court pursuant to the Cross Vesting Act. Subclauses (A) and (B) of s 5(1)(b)(ii) are not relevant here, as there can be no question of the appropriateness of commencing the wills action in this Court, or its jurisdiction to hear it.
Section 7 of the Wills Act describes in detail the matters which the Court must take into consideration when determining whether to exercise its jurisdiction in accordance with it. The relevant parts of s 7 provide:
7—Will of person lacking testamentary capacity pursuant to permission of court
(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 1972in 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.
Similarly, s 79 of the Family Law Act sets out the matters that the Court must consider when determining whether to make any orders for a property settlement. Section 79(4) reads:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)     the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)     the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)     the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)     the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)     the matters referred to in subsection 75(2) so far as they are relevant; and
(f)     any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)     any child support under the Child Support (Assessment) Act 1989that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) further imports the matters for considerations set out s 75(2), which provides:
(2) The matters to be so taken into account are:
(a)     the age and state of health of each of the parties; and
(b)     the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)     whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)     commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)     the responsibilities of either party to support any other person; and
(f)     subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)     where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)     the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)   the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)    the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)     the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)    the need to protect a party who wishes to continue that party's role as a parent; and
(m)    if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)     the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)   any child support under the Child Support (Assessment) Act 1989that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)     any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)     the terms of any financial agreement that is binding on the parties to the marriage; and
(q)     the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Section 7 of the Wills Act and s 79 of the Family Law Act are two very different sections, designed to remedy two very different ills. The former seeks to put in place a will that reflects the likely intentions that the proposed testator would have, had he or she not lost testamentary capacity. This requires an objective finding in respect of the proposed testator’s subjective intentions. The factors set out in s 7(4) are taken into consideration within this context. They must be considered as matters likely to assist in informing the Court of that subjective intention. The latter, on the other hand, demands a purely objective task. It allows the Court to “make such orders as it considers appropriate”,[15] having taken into consideration the various factors set out therein. While the Court will no doubt hear subjective evidence of the factors set out in s 79(4), it is for the Court to determine the orders that it, and it alone, considers appropriate. Ultimately, the Court will only make an order under s 79 if it considers that it is just and equitable to do so. Thus, the tasks assigned under the two provisions are very different.
[15] Section 79(1).
In my view, the respondent fundamentally misstates the question postulated by both the wills action and the FLA action. He says:
Both sets of proceedings involve the resolution of the one underlying issue: what share, if any, of [the respondent’s] property will be available to be distributed to the [applicants] under [the protected person’s] will?[16]
[16] FDN 41, [10].
This is an extraordinary formulation, not just of the wills action, but also of the FLA action. The wills action does not deal with the respondent’s property in any way. It can only deal with the property of the protected person. The formulation of the FLA action is also fundamentally flawed. The purpose of that action is not to maximise the estate of the protected person so as to benefit the beneficiaries of her estate after her death. I have no doubt that if the Court found that the FLA action had been brought for such a purpose, it would decline to make any orders on the basis that it would not be just and equitable to do so.[17]
[17] Section 79(2) of the FLA provides: The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
It is true that evidence in respect of the assault will be important in reaching any determination in the wills action. I have no doubt that such evidence will also be canvassed in the FLA action. Nonetheless, it will not be the only evidence that the Court takes into account in the wills action in determining the likely testamentary intention of the protected person, nor will it be the only evidence considered by the FCFCOA in determining whether a property settlement pursuant to s 79 is just and equitable.
The question to be dealt with in the wills action is a very focussed one. It is not a broad ranging inquiry. I note that the respondent contends that a number of the matters referred to in s 7(4) of the Wills Act are in fact matrimonial causes. In this regard, he points only to his claim that he holds an equitable interest in the matrimonial home. While his claim may amount to a matrimonial cause, it is difficult to understand how that elevates the issues (or any one of them) set out in s 7(4) to matrimonial causes, particularly as that claim cannot and will not be determined as part of the wills action.
It is true that the likely size of the protected person’s estate may change as a result of the finalisation of the FLA action. I do not consider, however, that this amounts to a serious impediment to this Court dealing with the wills action. The determination of the size of any estate is a point in time question. I would hazard a guess that there would be very few, perhaps no estates that are the identical in size and nature both at the time that the will in question is made, and at the date of testator’s death. When any testator makes a will, it is on the basis that their assets are not fixed as of that moment. Nor is it unheard of for a married person to make a will, and for the size of their estate to be materially altered after the breakdown of their marriage, or for a recently divorced person to make a new will before the finalisation of any property settlement proceeding. Further, it is not uncommon for a will to be made for a protected person under the Wills Act, in the knowledge that the person’s estate will be used to provide for them in the years between making the will and their death. Thus, the interests of justice are not materially affected by the fact that the protected person’s estate may change after the conclusion of the FLA action, so as to require transfer of this action to the FCFCOA. When the Court hears the trial of the wills action, it will consider the likely size of the protected person’s estate as it can, at that time, be ascertained.
I reject the respondent’s submission that the risk of inconsistent findings should lead to a conclusion that the interests of justice demand that the wills action be transferred to the FCFCOA. The findings of fact required of the Court in respect of the wills action are limited. There is no prospect of this Court making any finding in respect of the respondent’s claim to an equitable interest in the matrimonial home. Nor is there any prospect of any findings in relation to if or how the parties’ superannuation fund should be dealt with. The ultimate finding that the Court must make is the likely testamentary intention of the protected person. This is a matter in respect of which the FLA action is in no way concerned.
I also reject the respondent’s submission that a reconfiguration of the protected person’s asset pool may lead to any orders in this action being otiose. Given that the will proposed by the applicants proposes to leave the entirety of the protected person’s estate to them in equal shares, any reconfiguration of her estate is unlikely to change that.
I further note that the respondent has foreshadowed that, if the applicants are successful in both the FLA action and the wills action, he will in all likelihood bring a claim pursuant to the IFPA. Such a statement of intention cannot be used to sway this Court in determining where the interests of justice lie. In determining the likely testamentary intention of the protected person, the Court is required, by s 7(4)(d)(iii), to consider the interests of any person who would be entitled to claim the benefit of the IFPA. The respondent’s statement of intention in this regard is no more than one of the factors that this Court will take into consideration when considering the applicants’ claim in the wills action.
I consider that the interests of justice dictate that the wills action be determined in this Court. While I accept that there will be some overlap of evidence, the issues raised in the wills action are discrete and contained. The inquiry in this action is directed towards ascertaining the protected person’s likely testamentary intention; it is not directed towards benefitting the applicants, or redistributing the assets of the respondent. Nothing that either party has put to me has led me to conclude that the FCFCOA is the more appropriate forum to hear the wills action.
For completeness, I turn to the proximity of the listed trial in the wills action. Clearly, it is desirable to have the wills action determined as soon as possible, even though it is now agreed between the parties that the protected person’s medical condition is not such that her death is imminent. It is a telling fact that neither party has been able to say, in respect of a trial date in the FCFCOA, more than that it would be within the next 12 to 24 months, and that the respondent would be prepared to have any trial expedited. While I do not consider that this would have been a determinative factor if any submission or evidence had been put to me which led me to conclude that the FCFCOA was the more appropriate forum, in the absence of any such evidence or submission, it becomes a relevant and significant factor. Given the protected person’s uncertain life expectancy, it is not sufficient to say that a trial in the FCFCOA would be held sometime in the next two years, when it is clear that a trial in this Court will occur imminently.
For the reasons that I have set out above, I also dismiss the respondent’s application to stay this action or otherwise adjourn the trial until the conclusion of the FLA action.
FDN 38 is dismissed.