Public Trustee v Phillips No. Scciv-03-800 - [2004] SASC 142

In the Matter of JOYCE PHILLIPS and
In the Matter of the WILLS ACT 1936
PUBLIC TRUSTEE v PHILLIPS
[2004] SASC 142
Civil

DOYLE CJ: This is an application under s 7(1) of the Wills Act 1936 (SA) for an order authorising the revocation, on behalf of Mrs Joyce Phillips, of a will made by her in May 1993.
The following sub-sections of s 7 are relevant to the question of whether an order should be made:
“7     (1)    The Court may, on application by any person made with the leave 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
….
(6)   The Court is not bound by rules of evidence in proceedings under this section.”
The application is made by Public Trustee. On 4 March 1996 the Guardianship Board appointed Public Trustee as the administrator of the whole of Mrs Phillips’ estate. The Board found that Mrs Phillips had a mental incapacity, which finding reflected further findings that she had dementia and was unable to manage her own affairs. The order was made under s 35 of the Guardianship and Administration Act 1993 (SA).
On the hearing of the application Mr Harley, the Public Advocate, appeared as guardian ad litem of Mrs Phillips. He was appointed as Guardian ad litem by a Judge of this Court on 11 July 2003. In any event Mr Harley has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] SASC 142
Decision Date: 28 May 2004

CaseChat Overview and Summary

The case of Public Trustee v Phillips concerns a request by the Public Trustee to the Court to authorise the revocation of a will made by Mrs Phillips. The dispute centres on whether Mrs Phillips, who is alleged to lack testamentary capacity, can be said to have the mental faculties necessary to make a valid will. The matter was heard and determined in the Supreme Court.

The legal issues before the court involved assessing Mrs Phillips' testamentary capacity at the time she made the will in question. Specifically, the court had to determine if she had the mental ability to understand the nature and effect of making a will, including the disposition of her estate, and if she was free from undue influence or manipulation. Additionally, the court needed to decide whether the will should be revoked based on the current circumstances and the absence of testamentary capacity.

The court found that Mrs Phillips did not possess testamentary capacity at the time she made the will in May 1993. It was established that she had limited memory, a significantly impaired understanding of her current circumstances, and was incapable of managing her affairs. The court concluded that if Mrs Phillips had testamentary capacity, she would not wish to benefit Mr Venning, who had allegedly manipulated her and had no concern for her welfare. The court found it reasonable to revoke the will under the circumstances, as Mrs Phillips would not wish to leave her estate to Mr Venning and would want her son to benefit instead. Furthermore, the court noted that there was no prospect of Mrs Phillips regaining testamentary capacity, and no other person had a claim on her estate.

The court ordered that the Registrar sign an instrument revoking the will made by Joyce Phillips on 25 May 1993. The instrument revoking the will was to be sealed with the seal of the Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is the will that Public Trustee now asks the Court to authorise her to revoke on behalf of Mrs Phillips.Conclusions Mrs Phillips lacks testamentary capacity. She is incapable of managing her affairs. She has limited powers of memory, and a significantly limited appreciation of her current circumstances. If she had testamentary capacity, she would not wish Mr Venning to benefit by inheriting her estate. She would not wish the will of May 1993 to remain unrevoked. She would realise that Mr Venning had deserted her and had no concern for her. For all those reasons she would wish the will to be revoked. It is reasonable in all the circumstances that the order should be made. Mr Venning has manipulated Mrs Phillips to act in his interests, and now has no concern for her welfare. The will was made at a time when she might have had some reason to be grateful to him for his friendship. If Mrs Phillips had testamentary capacity, she would now consider that Mr Venning was not deserving of her gratitude. None of the matters referred to in s 7(4) of the Wills Act lead to a contrary conclusion. To the extent that I should take account of the wishes of Mrs Phillips, they appear to be that her son should benefit. There is no prospect of her regaining testamentary capacity. There is no other person with a claim on her estate. If she dies intestate her son will inherit her estate. I do not have to make an affirmative finding as to whether Mrs Phillips would now wish to benefit her son. I suspect that she would, but it suffices to find that the will of May 1993 should be revoked. Accordingly, I order that the Registrar sign an instrument revoking the Will made by Joyce Phillips on 25 May 1993, and that the instrument revoking the Will be sealed with the seal of the Court.

Ratio Decidendi

Legal Principle Established

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