Public Trustee v Phillips No. Scciv-03-800

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 a right to be heard on the application under s 7(7)(c) of the Wills Act.
The application was heard by me sitting in court as in chambers, as required by Rule 98.02 of the Probate Rules 1998.
Section 7(7) of the Wills Act specifies the persons who are entitled to appear and to be heard on the hearing of the application. Rule 98.08 requires notice of the application to be given to such of those persons as the court or the Registrar may direct, and to such other persons who appear to the court or to the Registrar to be interested in the matter. No application appears to have been made for directions under Rule 98.08. This is something that should have been done, as a precaution. However, I find that there is no person other than Phillip John Venning who should be given notice of the application.
Mr Venning has not been given notice of the application. I am satisfied, in the circumstances, that if an order requiring that he be given notice of the application had been made, it would not have been possible to do so, for reasons which will appear in my findings of fact. I am satisfied that if the Court had been informed of the unsuccessful attempts to locate Mr Venning, it would have directed that there was no need to give notice of the application to him. Nevertheless, this should have been dealt with by seeking an order dispensing with the giving of notice, rather than by simply relying on an order that was made (at an earlier stage) that the plaintiff “attempt to serve” Mr Venning.
At the hearing Mr Harley supported the making of the order sought.
Findings of Fact
I make the following findings, relying on the affidavits tendered at the hearing.
Mrs Phillips is 83 years of age. Her second husband died in 1990. From about 1990 her only child, Mr Pederick, helped her manage her affairs. In 1991 Mrs Phillips executed an enduring Power of Attorney in his favour and made a will under which he was the sole beneficiary of her estate.
After the death of her second husband, Mrs Phillips was lonely. Also, from about this time her mental capacity began to decline. On the basis of an opinion expressed by the medical practitioner who was her general medical practitioner for many years, I find that from about 1993 Mrs Phillips lacked the capacity to manager her affairs without assistance. Whether she had the capacity to make a will in 1993 is unclear.
In late 1992 Mrs Phillips came under the influence of Mr Venning, and formed an attachment to him. He persuaded her to purchase a motor car (although she did not drive) and to sell her home unit and to buy a house.
In May 1993 Mrs Phillips executed a Power of Attorney in favour of Mr Venning. Exercising that power, during 1994 and 1995 Mr Venning sold the motor car referred to and bought another motor car, and sold the house referred to and bought a home unit.
The result of these transactions was to significantly diminish Mrs Phillips’ assets. Although the relevant items of property were apparently acquired in her name, the transactions were of no apparent benefit to Mrs Phillips and were of some benefit to Mr Venning.
I find that the transactions were entered into substantially in Mr Venning’s interests and were not in any significant way in Mrs Phillips’ interests. They resulted from Mr Venning’s ability to exercise influence over Mrs Phillips, and his ability to cause her to act in his interest and without regard to her interests.
In 1997 Mr Venning was imprisoned for breaches of a restraining order obtained by another woman with whom he had formed a relationship, and also for assaulting an officer from the Office of Public Trustee.
Mr Venning was released from prison in 1998. Since then he has had no contact with Mrs Phillips. He is now somewhere in Europe. If he returns to Australia, he is likely to be arrested on warrants for his arrest. I do not know the basis on which the warrants were issued. Mr Venning does not keep his family informed of his whereabouts.
Attempts to locate him through his family, and by making other enquiries have been unsuccessful. These attempts did not include informing his parents of the making of the application, or giving them a copy of the relevant documents, so that were he to contact them they could bring the proceedings to his attention. This should have been done, but I am satisfied that even if it had been done, he would not have taken part in the proceedings.
Mrs Phillips now lacks testamentary capacity. When interviewed by Mr Harley on 30 March 2004 she was suffering from significant impairment of her memory, had only a limited understanding of her affairs, and only a limited appreciation of her circumstances. She did indicate that she wished her son to inherit her estate.
Her net estate is now represented by funds of approximately $80,000.00 held by Public Trustee.
In May 1993 Mrs Phillips made a will appointing Mr Venning as her sole executor. The will disposed of her estate in a manner that would enable him to control the disposition of Mr Phillips’ estate, and to direct it to himself if he so wished. I find that the will was made by Mrs Phillips as a result of influence exercised over her by Mr Venning and without a proper appreciation of his motives. I find that Mrs Phillips does not understand that since the making of the will, Mr Venning caused her to use or has himself used her assets in his interest rather than in hers.
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.

[2004] SASC 142

28 May 2004