Re Application for Probate
[2014] NSWSC 465
•24 April 2014
Supreme Court
New South Wales
Medium Neutral Citation: Estate of Scott; Re Application for Probate [2014] NSWSC 465 Hearing dates: 31 March 2014 and, subsequently, in chambers Decision date: 24 April 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: Order that a statutory will (authorised by an order made under the Succession Act 2006 NSW, s 18(1), but not signed by the Registrar or sealed by the Court pursuant to s 23 of the Act) be admitted to probate, having regard to the power conferred on the Court under s 18(5)
Catchwords: SUCCESSION - Wills, Probate and Administration - Statutory Will - Where an order authorising a will to be made on behalf of a person lacking testamentary capacity made by the Court, but the will was not signed or sealed by the Registrar - Court has power to give any necessary related orders and directions - order that the will be admitted to probate. Legislation Cited: Probate and Administration Act 1898 NSW
Supreme Court Rules 1970 NSW) and Part 78 r 3; r 42
Succession Act 2006 NSW, s 18
Uniform Civil Procedure Rules 2005 NSWCases Cited: Andrew v Andrew (2012) 81 NSWLR 656 at 661 [16] and 664 [34]-665 [36]
Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [135]-[142].
Osborne v Smith (1960) 105 CLR 153 at 158-159
Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 at 384
Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [23]-[25].
Re Estate Gowing: Application for Executor's Commission [2014] NSWSC 247 at [100]-[105]
Re Fenwick (2009) 76 NSWLR 22 at 51 [132];
Re Will of Jane [2011] NSWSC 624 at [52]-[100]
Scott v Scott [2012] NSWSC 1541 at [295]-[318]
Tobin v Ezekiel [2012] NSWCA 285 at [3]-[18], especially [8]
Tomko v Plasty (No 2) (2008) 71 NSWLR 61 at 64 [4] - 65 [11]Texts Cited: A Underhill, "Changes in the Law of Real Property" in the Council of Legal Education's A Century of Law Reform (MacMillan, London, 1901), pp 321-322
Hansard, NSW Legislative Assembly, 19 September 2006, p 1858
JM Bennett, A History of the Supreme Court of NSW (LBC, Sydney 1974), p 133
LL Fuller, Legal Fictions (Stanford UP, 1967), chapter 1
RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in NSW (LBC, Sydney, 1996)
WJV Windeyer, Lectures on Legal History (LBC, 2nd revised ed, 1957), pp 38, 56, 286
Williams and McCullough, Statutory Will Applications: A Practical Guide (Lexis Nexis Butterworths, Australia, 2014) at para [2.22]Category: Principal judgment Parties: Peter Richard Baker (First Plaintiff)
Louise Baker (Second Plaintiff)Representation: Counsel:
Simon Burchett (Plaintiffs)
Solicitors:
Peter Baker (Plaintiffs)
File Number(s): 2013/00176976 2014/00008620
Judgment
INTRODUCTION
This judgment calls for consideration of the proper construction, and operation, of the NSW legislation (the Succession Act 2006 NSW, Part 2.2, Division 2, ss 18-26) governing the making of a "statutory will" for an adult who, at the time the Court made an order under s 18(1) of the Act authorising a statutory will to be made on her behalf, lacked testamentary capacity, and who (through oversight on the part of all parties to the application for a statutory will) died without the will approved by the Court having been signed or sealed by a registrar of the Court pursuant to s 23.
FACTUAL CONTEXT
The plaintiffs are the executors named in both the statutory will authorised by an order of the Court (on 14 December 2012) and the last will made by the deceased (on 6 August 2003) before, with advancing age, she lost testamentary capacity.
The deceased died on 3 May 2013. On 10 June 2013 (in compliance with s 42 of the Probate and Administration Act 1898 NSW and Part 78 r 3 of the Supreme Court Rules 1970 NSW) the plaintiffs published on the New South Wales Online Registry website notice of their intention to apply for a grant of probate of the statutory will authorised by the Court's order of 14 December 2012: Exhibit P2. On 29 August 2013 (in proceedings numbered 2013/176976) they filed a summons for probate of that will.
On 10 October 2013 the Principal Registrar of the Court issued a requisition to the plaintiffs drawing to attention the fact that the parties to the statutory will proceedings (which culminated in the Reasons for Judgment published by me as Scott v Scott [2012] NSWSC 1541 at [295]-[318] on 13 December 2012 and the orders made on 14 December 2012) had not, as expected, caused the will authorised by the Court to be signed by the Registrar and sealed with the seal of the Court as contemplated by s 23.
Each page of the will approved by the Court was signed by me as the presiding judge, for identification purposes, as an annexure to short minutes of orders, including an order under s 18(1) of the Succession Act, by reference to which the orders of 14 December 2012 were made. The will, as approved, included provision for the Registrar to execute it in accordance with s 23 of the Act.
In the event, the will was not executed by any registrar, in any form, before the deceased died. I infer from the fact (stated by the plaintiffs' counsel in written submissions marked as Exhibit P1), that there was a change of solicitors shortly after the orders of 14 December 2012 were made, that the failure to ensure that a registrar attended to the s 23, and related, formalities was the result of an oversight on the part of all parties represented on the hearing of the application for a statutory will. In the circumstances of this particular case, they all had a social, if not an economic, interest in having a statutory will brought into full effect. The existence of such a will has enabled the deceased's family, jointly and severally, to plan their personal, and family, affairs.
In the absence of any authority in point, the registry took the view that, absent execution of the statutory will pursuant to s 23, it could not be admitted to probate; but, as the Registrar suggested to the plaintiffs in subsequent correspondence, "[if] all beneficiaries consent, it may be possible to apply for probate of the will that was actually executed by the deceased and then[,] with the agreement of the beneficiaries[,] administer the estate in accordance with the provisions of the will as rectified".
In response to that suggestion, on 10 January 2014, the plaintiffs filed a fresh summons (in proceedings numbered 2014/8620) in which the primary claim for relief is an application for an order, pursuant to s 27 of the Succession Act, that the Court rectify the deceased's will dated 6 August 2003 in accordance with the statutory will authorised by the Court order of 14 December 2012.
In support of their two summonses the plaintiffs have tendered a formal consent (an adaptation of prescribed form 134, referable to a requirement under Part 78 r 42 of the Supreme Court Rules 1970, on an application for probate of an informal testamentary document governed by s 8 of the Succession Act) from each of the beneficiaries under the deceased's 2003 will who would be affected by administration of the deceased's estate in accordance with the statutory will authorised on 14 December 2012: Exhibits P3-P6 inclusive. Those beneficiaries (respectively, Susan Byrne; her two adult daughters; and Jamie Scott) each consent to orders designed to give effect to the statutory will authorised by the Court, including a grant of probate of, or referable to, the statutory will.
Dr Scott (the widower of the deceased and father of Susan Byrne and Jamie Scott) has sworn an affidavit in support of the plaintiffs' application for probate: Exhibit P7. He receives the same modest benefit under the authorised, statutory will as under the deceased's 2003 will.
The deceased's family have accepted the outcome of the 2012 proceedings as the foundation for administration of the deceased's estate. The orders made on 14 December 2012 took effect, pursuant to r 36.4 of the Uniform Civil Procedure Rules 2005 NSW, on that date. They were formally entered, pursuant to r 36.11(2) of the Rules, when recorded in the Court's computerised court record system. There was no appeal from them.
Neither has any application been made for family provision relief under chapter 3 (ss 55-100) of the Succession Act, notwithstanding the passage of almost one year since the death of the deceased. By virtue of s 58(2) of the Act, an application for a family provision order must be made within 12 months of the death of the deceased, unless the Court otherwise orders on sufficient cause being shown.
The plaintiffs have, by their counsel and in response to a requisition from me, formally advised the Court (via Exhibit P8) that: (a) the only persons known to them to be "eligible persons" within the meaning of s 57 of the Succession Act in relation to the estate of the deceased are Dr Scott, Mrs Byrne, her two daughters, and Mr Jamie Scott; and (b) they have no notice of any intention on the part of any person to apply for family provision relief referable to the deceased, other than an intention on the part of Jamie Scott to make an application in the event that the estate is not dealt with in accordance with the statutory will.
On the basis of that advice, and the evidence adduced in these proceedings and on the hearing of the Scott family's application for a statutory will, I accept that the possibility of an application for family provision relief being made in relation to the deceased's estate presents no impediment to the conduct, without further delay, of the applications presently before the Court.
No person has appeared, or given notice to the plaintiffs of an intention to appear, in opposition to the relief claimed by the plaintiffs.
The inventory of property of the deceased prepared by the plaintiffs (pursuant to SCR Part 78 r 10(1)(a), and their supporting affidavits, disclose that the deceased's estate had, at the date of her death, a gross estimated value of $3,040,296.03 (including $457,807.29 held by the NSW Trustee and Guardian) and a net estimated value of $3,039,033.13. Apart from two parcels of real estate which, under the statutory will authorised by the Court would pass to Jamie Scott for the reasons explained in Scott v Scott [2012] NSWSC 1541, most of the estate is held in the form of bank accounts, shares in publicly listed companies or the like. All parties interested in the estate appear to have been content for the due processes of probate law to unfold without any necessity for an interim grant of administration in the meantime.
THE ORDERS SOUGHT
As articulated in written and oral submissions of their counsel (including Exhibit P1), the plaintiffs' primary application is for a grant of probate of the statutory will as authorised by the Court, pursuant to the Succession Act s 18, on 14 December 2012.
In the alternative, they apply for relief designed to achieve a similar outcome: (a) an order that the statutory will, as authorised pursuant to s18, be admitted to probate as an informal will pursuant to s 8 of the Succession Act; (b) an order, pursuant to s27 of the Succession Act, that the deceased's 2003 will be rectified so as to conform to the terms of the statutory will authorised by the s 18 order; or (c) an order, made under s 63 of the Trustee Act 1925 NSW or in the general equitable jurisdiction of the Court (by way of judicial advice or a direction to the plaintiffs, with the benefit of a grant of probate of the 2003 will and the formal consents of the affected beneficiaries) that they are be at liberty to administer the deceased's estate in accordance with the statutory will authorised by the s 18 order.
In all likelihood, if the Court were to hold that effect cannot be given to the statutory will by one or another of these means, Jamie Scott can be expected to apply (with the consent of all affected parties) for a grant of family provision relief under chapter 3 of the Succession Act designed to achieve the same, or a similar, substantive outcome.
The conclusion I have reached on the plaintiffs' primary application relieves me of any obligation to explore the outer reaches of ss 8 and 27 of the Succession Act or, more generally, to consider their alternative applications for relief.
A SOLUTION TO THE PROBLEM
Having surveyed the whole of the territory entered upon by the plaintiffs, I am satisfied that, on the proper construction of the NSW legislation, there is a simple, expedient solution to the problem thrown up by the failure of the parties to implement the s 18(1) order of 14 December 2012 by attending to the formalities contemplated by s 23 of the Succession Act.
Section 18(5) of the Succession Act provides that "[in] making an order [under s 18(1) authorising a will to be made] the Court may give any necessary related orders or directions."
The field of operation defined by the expression "in making an order" is functional rather than temporal. The power of the Court to give "any necessary related orders or directions" is not exhausted upon the making, or entry, of an order under s 18(1). Nor is it constrained, by either s 18(3) or s 23(2), by the death, after an order is made under s 18(1), of the person in respect of whom the order is made.
Section 18(5) confers on the Court a power (in addition to any powers the Court may otherwise have) to make orders consequentially upon the making of an order under s 18(1).
Accordingly, it is open to the Court, in an appropriate case, to make an order that a statutory will (in terms authorised by an order made, under s 18(1), at a time when the person in respect of whom it was made was alive) be admitted to probate, by the authority of that order, notwithstanding that the contingency for which s 23 provides has not been satisfied.
A RESTATEMENT OF THE PROBLEM
The history, and operation, of the NSW legislation governing statutory wills have been authoritatively expounded by Palmer J in Re Fenwick (2009) 76 NSWLR 22, and by Hallen J in Re Will of Jane [2011] NSWSC 624 at [52]-[100], judgments routinely applied by the judges of this Court.
The focus of the present judgment is upon a topic not considered by Re Fenwick or Re Will of Jane; namely, the legal effect, if any, of an order made under s 18(1) of the Succession Act 2006 NSW "authorising a will to be made ... in specific terms approved by the Court ...", in the context of a failure to have the approved will signed and sealed by a registrar of the Court as contemplated by s 23(1)(b) of the Act.
The central question is whether a statutory will takes effect (generally or in some qualified way) upon the making of an order under s 18(1), or only upon the occurrence of the contingency for which s 23 provides. Is a statutory will "made" ("by" the "order" itself) at the time a s 18(1) order is made or entered, or does an order simply "authorise" a will to be made by, and upon, the occurrence of the condition for which s 23 provides? The critical, practical question is: When can a statutory will be taken to have been made for the purpose of admission to probate?
The NSW legislation is part of this State's contribution to Australia's "uniform" succession laws, the uniformity of which goes to the conceptual framework of succession law, rather than procedural aspects of its implementation, in the nation's several state and territorial jurisdictions.
For the purposes of the question stated for determination in these proceedings, the diversity of the "uniform" legislation operating in different Australian jurisdictions can be taken as conveniently illustrated by the summary of the law in Richard Williams and Sam McCullough, Statutory Will Applications: A Practical Guide (Lexis Nexis Butterworths, Australia, 2014) at para [2.22], here editorially limited to the case of a will (to the exclusion of other forms of testamentary instrument):
"2.22 If [an application for a statutory will] is successful, the relevant will ... must be executed in accordance with the formalities prescribed by the statutory provisions: Wills Act, 1968 ACT, s 16F; Succession Act 2006 NSW, s 23; Wills Act 2000 NT, s 24; Succession Act 1981 Qld, s 26; Wills Act 1936 SA, s 7(9); Wills Act 2008 Tas, s 27; Wills Act 1997 Vic, ss 25(1) and (2); Wills Act 1970 WA, s 40(4). The requirements are that:
(1) the will ... must be in writing, and signed by the Registrar and sealed with the seal of the Court; and
(2) (in the Australian Capital Territory, New South Wales and Queensland) it may only be signed by the Registrar if the testator is alive.
In the Northern Territory, South Australia, Tasmania, Victoria and Western Australia, requirement (2) above is not stated in the statutory provisions.
By contrast, in Queensland this issue is put beyond doubt: the court order does not of itself effect the making of the will ... . The Succession Act 1981 Qld, s 21(6) states:
'(6) To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property'. ..."
The question of construction confronted in these proceedings appears not to have been the subject of any local judgment. The nearest it comes to judicial consideration appears to be a decision of the Supreme Court of South Australia (constituted by Gray J) in In the Estate of Brown (dec'd) (2010) 106 SASR 516.
Accepting differences in the terms of the SA and NSW legislation, the conceptual template suggested by that decision is that a statutory will should be taken to have been made at the time, and by virtue, of a s 18(1) order being made, leaving the process for which s 23 provides to be characterised as "essentially mechanical", and not critical to the validity of the will, allowing a will not signed or sealed by a Registrar pursuant to s 23 to be admitted to probate.
Although primary attention must be given to the provisions of ss 18 and 23, the Court's obligation to construe those sections in the Succession Act as a whole requires a broader perspective. Some of the language found in ss 18 and 23 is deployed in other provisions of the Succession Act. Independently of that fact, consideration must be given to the scheme for which the Act provides. As an aid to construction, but not as a determinative factor, its practical operation in the context of the Court's administrative arrangements might also be taken into account.
THE LEGISLATION
The Succession Act 2006 NSW
The context in which ss 18 and 23 fall to be construed includes the following provisions of the Succession Act (with emphasis added):
"CHAPTER 1 - PRELIMINARY
1 ...
2 ...
3 Definitions
(1) In this Act: ...
"disposition" includes the following:
(a) any gift, devise or bequest of property under a will,
(b) the creation by will of a power of appointment affecting property,
(c) the exercise by will of a power of appointment affecting property. ...
"will" includes a codicil and any other testamentary disposition. ...
"Registrar" means a person who is:
(a) appointed in accordance with section 120 of the Supreme Court Act 1970 , and
(b) nominated by the Principal Registrar of the Court for the purposes of this Act.
CHAPTER 2 - WILLS
PART 2.1 - THE MAKING, ALTERATION, REVOCATION AND REVIVAL OF WILLS
Division 1 - Making a will
4. What property may be disposed of by will?
(1) A person may dispose by will of property to which the person is entitled at the time of the person's death.
(2) Subsection (1) applies whether or not the entitlement existed at the date of the making of the will. ...
5 Minimum age for making a will
(1) A will made by a minor is not valid.
(2) Despite subsection (1):
(a) a minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect if the marriage contemplated does not take place, and
(b) a minor who is married may make, alter or revoke a will, and
(c) a minor who has been married may revoke the whole or any part of a will made while the minor was married or in contemplation of that marriage.
(3) Subsection (1) does not apply to a will made by an order under section 16 (Court may authorise minor to make, alter or revoke a will).
Division 2 - Executing a will
6 How should a will be executed?
(1) A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
(2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.
(3) It is not essential for a will to have an attestation clause.
(4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.
(5) If a power is conferred on a person to make an appointment by a will that is to be executed in some particular way or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in the particular way or with the particular solemnity.
(6) This section does not apply to a will made by an order under section 18 (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity).
7 Must witnesses know that they are signing a will?
A will that is executed in accordance with this Act is validly executed even if one or more witnesses to the will did not know that the document he or she attested and signed was a will.
Division 3 - Dispensing with requirements for execution, alteration or revocation of a will
8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will. ...
Division 4 - Witnessing a will
9 Persons who cannot act as witnesses to wills
A person who is unable to see and attest that a testator has signed a document may not act as a witness to a will.
10. ...
Division 5 - Revocation, alteration and revival of a will
11 When and how can a will be revoked?
(1) The whole or any part of a will may be revoked but only:
(a) if the revocation (whether by a will or other means) is authorised by an order under section 16 or 18, or
(b) by the operation of section 12 or 13, or
(c) by a later will, or
(d) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act, or
(e) by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it, or
(f) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it.
(2) No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances.
12 ...
13 ...
14 How a will may be altered
(1) An alteration to a will after it has been executed is not effective unless the alteration:
(a) is executed in the manner in which a will is required to be executed under this Part, or
(b) is made by a minor by the authority of an order of the Court under section 16 and is executed in accordance with, and satisfies the requirements for such a will set out in, section 16 (5), or
(c) is made for and on behalf of a person who does not have testamentary capacity by the authority of an order under section 18 and satisfies the requirements for such a will set out in section 23.
(2) Subsection (1) does not apply to an alteration to a will made by or at the direction of the testator, or signed by the Registrar under section 23, if the words or effect of the will are no longer apparent because of the alteration.
(3) If a will is altered, it is sufficient compliance with the requirements for execution if the signatures of the testator and of the witnesses to the alteration are made:
(a) in the margin, or on some other part of the will beside, near or otherwise relating to the alteration, or
(b) as authentication of a memorandum referring to the alteration and written on the will.
15 ...
PART 2.2 - WILLS MADE OR RECTIFIED UNDER COURT AUTHORISATION
Division 1 - Wills by minors
16 Court may authorise minor to make, alter or revoke a will
(1) The Court may make an order authorising a minor:
(a) to make or alter a will in the specific terms approved by the Court, ...
(5) A will is not validly made, altered or revoked, in whole or in part, as authorised by an order under this section unless:
(a) in the case of the making or alteration of a will (in whole or in part)-the will or alteration is executed in accordance with the requirements of Part 2.1, and
(b) in the case of a revocation of a will (in whole or in part):
(i) if made by a will-the will is executed in accordance with the requirements of Part 2.1, and
(ii) if made by other means-is made in accordance with the requirements of the order, and
(c) in addition to the requirements of Part 2.1, one of the witnesses to the making or alteration of the will under this section is the Registrar, and
(d) the conditions of the authorisation (if any) are complied with.
(6) A will that is authorised to be made, altered or revoked in part by an order under this section must be deposited with the Registrar under Part 2.5.
(7) A failure to comply with subsection (6) does not affect the validity of the will.
17 Will made by minor under an order of a foreign court
(1) A will of a deceased person that is a court authorised will for a minor is a valid will.
(2) A will is a "court authorised will for a minor" if:
(a) a court, in a place outside New South Wales, made an order authorising a minor to make the will, and
(b) the will was executed according to the law of the place relating to wills of minors, and
(c) the minor was a resident in the place at the time the will was executed.
Division 2 - Court authorised wills for persons who do not have testamentary capacity
18 Court may authorise a will to be made, altered or revoked for a person without testamentary capacity
(1) The Court may, on application by any person, make an order authorising:
(a) a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or
(b) a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity.
(2) An order under this section may authorise:
(a) the making or alteration of a will that deals with the whole or part of the property of the person who lacks testamentary capacity, or
(b) the alteration of part only of the will of the person.
(3) The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made.
(4) The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity.
(5) In making an order, the Court may give any necessary related orders or directions.
(6) A will that is authorised to be made or altered by an order under this section must be deposited with the Registrar under Part 2.5.
(7) A failure to comply with subsection (6) does not affect the validity of the will.
19 Information required in support of application for leave
(1) A person must obtain the leave of the Court to make an application to the Court for an order under section 18.
(2) In applying for leave, the person must (unless the Court otherwise directs) give the Court the following information:
(a) a written statement of the general nature of the application and the reasons for making it,
(b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought,
(c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought,
(d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval,
(e) any evidence available to the applicant of the person's wishes,
(f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity,
(g) any evidence available to the applicant of the terms of any will previously made by the person,
(h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person,
(i) any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person,
(j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person,
(k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will,
(l) any other facts of which the applicant is aware that are relevant to the application.
20 Hearing of application for leave
(1) On hearing an application for leave the Court may:
(a) give leave and allow the application for leave to proceed as an application for an order under section 18, and
(b) if satisfied of the matters set out in section 22, make the order.
(2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court's approval is sought
21 Hearing an application for an order
In considering an application for an order under section 18, the Court:
(a) may have regard to any information given to the Court in support of the application under section 19, and
(b) may inform itself of any other matter in any manner it sees fit, and
(c) is not bound by the rules of evidence.
22 Court must be satisfied about certain matters
The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that:
(a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and
(b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and
(c) it is or may be appropriate for the order to be made, and
(d) the applicant for leave is an appropriate person to make the application, and
(e) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.
23 Execution of will made under order
(1) A will that is made or altered by an order under section 18 is properly executed if:
(a) it is in writing, and
(b) it is signed by the Registrar and sealed with the seal of the Court.
(2) A will may only be signed by the Registrar if the person in relation to whom the order was made is alive.
24 Retention of will
(1) Despite section 52 (Delivery of wills by Registrar), a will deposited with the Registrar in accordance with this Part may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless:
(a) the Court has made an order under section 18 authorising the revocation of the whole of the will, or
(b) the person has acquired or regained testamentary capacity.
(2) On being presented with a copy of an order under section 18 authorising the revocation of the whole of a will, the Registrar must withdraw the will from deposit.
25 Separate representation of person lacking testamentary capacity
If it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings under this Division, the Court may order that the person be separately represented, and may also make such orders as it considers necessary to secure that representation.
26 Recognition of statutory wills
(1) A statutory will made according to the law of the place where the deceased was resident at the time of the execution of the will is to be regarded as a valid will of the deceased.
(2) In this section:
"statutory will" means a will executed by virtue of a provision of an Act of New South Wales or other place on behalf of a person who, at the time of execution, lacked testamentary capacity. "
Division 3 - Rectification of wills by Court
27 Court may rectify a will
(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator's instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator.
(3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if:
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made. ....
PART 2.5 - DEPOSIT OF AND ACCESS TO WILLS
51 Will may be deposited with Registrar
(1) Any person may deposit a will in the office of the Registrar.
(2) A will is not to be deposited unless it is in a sealed envelope that has written on it the following information:
(a) the testator's name and address (as they appear in the will),
(b) the name and address (as they appear in the will) of any executor,
(c) the date of the will,
(d) the name of the person depositing the will.
(3) A will that is deposited must be accompanied by the fee prescribed by the regulations.
(4) Despite subsection (3), a fee is not payable for the deposit of a will if:
(a) the will is deposited:
(i) in accordance with section 16 or 18, or
(ii) because a local legal practitioner has died, or has ceased, or is about to cease practising law in New South Wales, or
(b) the fee is waived by the Registrar in accordance with regulations made under the Civil Procedure Act 2005.
52 Delivery of wills by Registrar
(1) If a will has been deposited with the Registrar under this Act, the testator may at any time apply in writing to the Registrar to be given the will or to have the will given to another person authorised by the testator in writing to receive it.
(2) On receiving the application, the Registrar must give the will to the testator or the person authorised by the testator unless the testator is a minor or a person who lacks testamentary capacity.
(3) If a will has been deposited with the Registrar under this Act and the testator has died, any executor named in the will or any person entitled to apply for letters of administration with the will annexed may apply in writing to the Registrar to be given the will.
(4) On receiving the application referred to in subsection (3), the Registrar must give the will to the executor or other person or to any Australian legal practitioner or trustee company nominated by the executor or person.
(5) The Registrar may examine any will to enable the Registrar to comply with this Part.
(6) The Registrar must ensure that an accurate copy of every will given to a person under this section is made and retained by the Registrar.
(7) If there is any doubt as to whom a will should be given, the Registrar, or any other person, may apply to the Court for directions as to whom the Registrar should give the will.
53 Failure to retain does not affect validity of will
Any failure of the Registrar to retain a will as required by this Act does not affect the validity of the will.
54 Persons entitled to inspect will of deceased person
(1) In this section:
"will" includes a revoked will, a document purporting to be a will, a part of a will and a copy of a will.
(2) A person who has possession or control of a will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the will (at their own expense):
(a) any person named or referred to in the will, whether as a beneficiary or not,
(b) any person named or referred to in an earlier will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner (whether of the same or the opposite sex) or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(h) any person committed with the management of the deceased person's estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person,
(j) any person belonging to a class of persons prescribed by the regulations.
(3) A person who has possession or control of a will of a deceased person must produce it in a court if the court requires the person to do so."
By s 3(1) of the Succession Act, a reference to "the Court" in these extracted provisions can be taken to be a reference to the Supreme Court. The District Court of NSW has jurisdiction (conferred, and limited, by s 134 of the District Court Act 1973 NSW) to make a family provision order under chapter 3 of the Succession Act; but the District Court does not have a general probate jurisdiction or jurisdiction referable to an informal will" (Succession Act, s 8), a "statutory will" (Succession Act, s18) or rectification of a will (Succession Act, s 27), the legislative provisions presently under consideration.
It is not necessary, here, to set out verbatim the extensive provisions of chapter 3 of the Succession Act or even a significant proportion of them. However, it is necessary to notice the field of operation of the jurisdiction to make a family provision order so as to assist in conceptual placement of the jurisdiction to make an order authorising a statutory will to be made.
The Court has jurisdiction (under s 95 of the Succession Act) to approve a release by a person of that person's rights to apply for a family provision order before (or after) the date of death of the person whose estate might be the subject of a family provision order.
However, an application for family provision relief, by its nature and by the terms of chapter 3 of the Succession Act, is made after the death of a person whose estate, or notional estate, is the subject of the application. Part 3.3 (ss 74-90) of the Act permits the Court, for the purpose of making a family provision order, to designate as "notional estate" of a deceased person, property referable to property disposed of by the deceased up to three years before the date of death. The power to designate notional estate is extensive, but qualified by purposive criteria tied to the availability of a family provision order, and a need to take into account the importance of not interfering with reasonable expectations in relation to property.
Section 57 of the Succession Act enumerates, as "eligible persons", a list of persons (including, but not limited to, members of the family of a deceased person) who are entitled, by reference to s 59(1)(a), to apply for a family provision order from the estate, or designated notional estate, of the deceased person. As already noticed, an application for that relief must ordinarily be made within 12 months of the deceased person's death: s 58. An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted: s 58(1).
Conceptually, the field of operation of chapter 3 focuses centrally upon the provisions of ss 59(1)(c) and 59(2). They are closely related.
Section 59(1)(c) empowers the Court to make a family provision order in favour of an eligible person if the Court is satisfied, inter alia, that "at the time when the Court is considering the application [for such an order], adequate provision for the proper maintenance, education or advancement in life of [the applicant] has not been made by the will of the deceased person, or by the operation of the intestacy rule in relation to the estate of the deceased person, or both". Section 59(2) provides that "[the] Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in the life of the eligible person, having regard to the facts known to the Court at the time the order is made."
Section 72(1) of the Succession Act provides that a family provision order takes effect, unless the Court otherwise orders, as if the provision made by the order was made in a codicil to the will of the deceased person, if the deceased person made a will, or in a will of the deceased person, if the deceased person died intestate.
The Court has extensive powers to adjust property rights consequentially upon a decision to make a family provision order but, conceptually, the legislation remains tied to the idea of a testamentary disposition made, by court order, as if made by a deceased person.
The function of the Court, in disposition of an application for a family provision order, is largely to do what, if anything, "ought" to be done in favour of an applicant for relief, based upon due consideration of statutory criteria, in light of facts known at the time of decision, informed by "current community standards" (Andrew v Andrew (2012) 81 NSWLR 656 at 661 [16] and 664 [34]-665 [36]) and, in the language of older authority, viewing the decision to be made from the perspective of a just and wise person in the position of the deceased (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20).
The fact that a family provision order takes effect as a testamentary instrument attributed to the deceased is an important anchor that continues to tie the Court's functions to a perspective that places the deceased at the centre of deliberations. "Current community standards" can, and must, inform a search for "justice and wisdom", within the framework of statutory language, but they do not displace the centrality of the deceased person whose affairs are the focus of deliberation about the "adequacy" of provision for the "proper" maintenance, education or advancement in life of an applicant for relief and what "ought" to be done, if anything must be done, in favour of the applicant.
Before any family provision order is made the Court generally requires evidence directed towards and ensuring that all persons interested in an estate, or eligible to apply for family provision relief, have received due notice of the proceedings in which an order is to be made: Supreme Court Rules 1970, schedule J, clauses 4-5.
The Supreme Court Act 1970 NSW
The definition of "Registrar" in s 3(1) of the Succession Act incorporates reference to s 120 of the Supreme Court Act 1970 NSW ("SCA"). That section provides that registrars, deputy registrars and other court officers may be employed under chapter 2 of the Public Sector Employment and Management Act 2002 NSW. In so providing, it identifies the office of registrar by reference to SCA, s 119.
The material provisions of the Supreme Court Act relating to registrars are those found in ss 119 and 121:
"119 Offices of registrars
(1) There are such registrars as may be appointed from time to time, including a Principal Registrar of the Court, a Registrar of the Court of Appeal, and a Registrar of each Division. ...
(3) Notwithstanding the provisions of any other Act, a registrar may exercise the powers of any other registrar if and so far as he or she is authorised to do so by the rules, and, when so doing, he or she shall be deemed to be that other registrar.
...
121 Powers
(1) In this section
'officer' means a registrar, taxing officer, or other officer of the Court.
(2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer.
(3) A judgment given or an order made by an officer may be set aside or varied by the Court.
(4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer.
(5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2)."
The significance of the reference in SCA s 120 to the Public Sector Employment and Management Act is that registrars of the court are employed as members of the State's Public Service. In practice, they are generally legally trained, and experienced in court administration. Traditionally, the registrar, or deputy registrar, responsible for the day-to-day administration of the Court's probate jurisdiction is a person who has specialised in probate work.
As provided for in SCA s 121(5), a registrar constitutes the Court for the purpose of the exercise of powers conferred on him or her as an officer of the court. Such a provision is necessary because registrars are not, by virtue of their office, members of the Court. SCA s 25 provides that the Court is composed of a Chief Justice, a President of the Court of Appeal and such other judges of appeal, judges and associate judges as the Governor may from time to time appoint. SCA s 26 provides for the appointment of a judge by the Governor, by commission under the public seal of the State, from the ranks of those who hold, or have held, judicial office in Australia or who are Australian lawyers of at least seven years' standing.
The definition of "Registrar" in the Succession Act, s 3(1) is identical with the definition of the same term found in s 3(1) of the Probate and Administration Act 1898. The two Acts interact.
A variation of the same definition is found in the Supreme Court Rules 1970 NSW ("SCR") Part 78 (colloquially known as "the Probate Rules"), r 1. That definition provides that "Registrar" means a registrar within the meaning of the Probate and Administration Act or the Succession Act, and includes a deputy or assistant to any such registrar who has been appointed as such under SCA s 120.
The Uniform Civil Procedure Rules 2005 NSW
The following provisions of the Uniform Civil Procedure Rules 2005 NSW ("UCPR") provide context for the operation of ss 18 and 23 of the Succession Act:
"36.4 Date of effect of judgments and orders
(1) A judgment or order takes effect:
(a) as of the date on which it is given or made, or
(b) if the court orders that it not take effect until it is entered, as of the date on which it is entered.
(2) Despite subrule (1), if an order of the court directs the payment of costs, and the costs are to be assessed, the order takes effect as of the date when the relevant cost assessor's certificate is filed.
(3) Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules.
...
36.11 Entry of judgments and orders
(1) Any judgment or order of the court is to be entered.
(2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system.
(2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered:
(a) when a document embodying the judgment or order is signed and sealed by a registrar, or
(b) when the judgment or order is recorded as referred to in subrule (2),
whichever first occurs.
(3) In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005. ...
...
49.19 Review of registrar's directions, certificates, orders, decisions and other acts
If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. "
Entry of a judgment or order given or made by the Court is a step that is conceptually distinct from that of giving a judgment or making an order. The Court retains a general power to set aside or vary a judgment or order before it is entered: UCPR r 36.16(1). After entry, a judgment or order is more difficult to set aside or vary and, depending on the circumstances, may only be able to be set aside or varied on appeal.
In the present proceedings, no direction was given by me on 14 December 2012 (pursuant to UCPR r 36.11(2A)) for the orders made on that date to be "entered forthwith", and I did not "otherwise order" for the purpose of UCPR r 36.11(2), with the consequence that the s 18 order made on that date must be taken as having been entered when it was subsequently recorded in the Court's computerised record system. That occurred on 14 December 2012. My Reasons for Judgment, supporting the making of the s 18 order, were posted on the Caselaw website on 13 December 2012.
SCA s 121(3) provides, in effect, that a judgment given or an order made by a registrar may be set aside or varied by a judge. That provision is reinforced by UCPR r 49.19, which is expressed more broadly to provide for a review of any "direction, certificate, order, decision or other act" of a registrar.
On a review conducted under UCPR r 49.19, a judge does not need to find error on the part of a registrar in order to intervene, but may, upon an independent exercise of discretion, decline to intervene if no error can be identified in the registrar's decision: Re Estate Gowing: Application for Executor's Commission [2014] NSWSC 247 at [100]-[105], applying Tomko v Plasty (No 2) (2008) 71 NSWLR 61 at 64 [4] - 65 [11].
ANALYSIS
The Succession Act speaks with different, inconsistent voices in answer to the question whether a statutory will is "made" by, and at the time of, an order under s 18(1) or simply "authorised" to be made by, and upon, the occurrence of the condition for which s 23 provides.
The language of the two sections is, in itself, equivocal. Section 18(1) speaks of "an order authorising a will to be made" in specific terms approved by the Court. Section 23 is predicated on the existence of "a will that is made or altered by an order under s 18"; and it does not, of itself, mandate that that will have the features described in s 23(1)(a) and (b) as a condition of validity. It merely provides that the will "is properly executed if" it is in writing, signed by the Registrar and sealed with the seal of the Court.
On one view, the operation of s 23(1) depends upon whether a statutory will is "made" or "altered" by a section 18(1) order. That is because, first, by virtue of s 6(6) of the Succession Act, the requirement in s 6 for a will to be signed by or on behalf of a testator does not apply to "a will made by an order under s 18"; and, secondly, s 14(1)(c) provides that an alteration to a will after it has been executed is not effective unless, inter alia, it is "made for and on behalf of a person who does not have testamentary capacity by the authority of an order under s 18 and satisfies the requirements for such a will set out in s 23". To describe the contingency for which ss 23(1)(a) and (b) provide as "requirements for" a statutory will may be, on a close reading of s 23, an overstatement of its effect.
Section 26 is evidently based on an assumption that a statutory will, whether made in NSW or elsewhere, will have been, in all cases, "executed" at the time it was "made".
The Act makes no provision, unless it be found in s 18(5), for a situation in which an order is made under s 18(1), but the contingency for which s 23 provides does not occur.
An order under s 18(1) is, let it be remembered, an order made by the Supreme Court (as far as any Australian Court can be, a superior court of record), after consideration of statutory criteria, not uncommonly after a contest, in proceedings affecting a person who, for want of testamentary capacity is, or may be, in need of an exercise of the Court's protective jurisdiction.
Whether or not, in subsequent proceedings, a finding made by the Court on the determination of an application for a s 18(1) order could support an issue estoppel may be a question for another day; but, absent a statutory imperative, it would be an oddity for the Court's order to be deprived of all effect merely because of the non-occurrence of what appears, on the face of s 23(1), to be an administrative, rather than a judicial step.
The provisions of ss 18(6)-(7) and 53 point in the opposite direction. A failure to deposit a will made under s 18(1) with the Registrar, or a failure of the Registrar to retain it, under Part 2.5 of the Act does not affect the validity of the will.
Both s 18(3) and s 23(2) respectively direct that a s 18(1) order is not to be made, and the Registrar is not to sign a statutory will, if the testator is not alive. However, neither provision provides for, or effects, an abatement of proceedings.
Nor is there anything in s 18 that would, as a matter of jurisdiction, prevent the Court from directing the Registrar, by the authority of an order or direction under s 18(5), to sign and seal a statutory will duly authorised by a s 18(1) order. Section 23(2) is to be read as referring back only to s 23(1)(b), and as being subject to the power of the Court to "give any necessary related orders or directions".
At the end of the day, the infelicities of expression found in the Succession Act must be subordinated to a beneficial construction of the Act, having regard to parliament's purpose or object in introducing the statutory will-making scheme for which the Succession Act provides and, in particular, s 23.
The process of discovering that purpose or object should begin with an engagement with basic principles embodied in the Act, commencing with the concept of a "will".
The definition of "will" in s 3(1) of the Act is expressed to be inclusive. It involves an element of circularity insofar as it incorporates a reference to the word "disposition", itself defined inclusively by reference to the word "will". Nevertheless, it appeals to a notion commonly understood in the Australian community.
In English law, at the time of its reception in NSW, distinctions were drawn, in the law of succession, between real and personal property. Those distinctions reflected the historical importance of land tenure to the Crown and its subjection to the common law; feudal policy was hostile to the alienation of land without the consent of a lord. They also reflected an acceptance that succession to personalty was governed by the ecclesiastical law (under which a testamentary power over personalty could be exercised by a "nuncupative" testament) administered by the Church: WJV Windeyer, Lectures on Legal History (LBC, 2nd revised ed, 1957), pp 38, 56, 286. How this came about is commonly said to remain obscure: W Holdsworth, A History of English Law, volume 1 (7th ed, revised, 1956), p 625; TFT Plunkett, A Concise History of the Common Law (5th ed, 1956), Part 6; F Pollock and FW Maitland, The History of English Law before the time of Edward I (2nd ed,1898; reissued, 1968), volume 2, pp 325-326.
Such distinctions find only faint reflection, and no material, operative significance, in the Succession Act. The inclusive definitions of "will" and "disposition" provide confirmation of that. The words "will" and "devise" were once associated with the inheritance of land; the words "testament" and "bequest" were once associated with the passing of ownership in chattels: RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in NSW (LBC, Sydney, 1996), pp 5-10; The Oxford History of the Laws of England, Vol 1 (RH Helmholz, The Cannon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, 2004), pp 398-399. Now, in NSW, nothing necessarily turns on such linguistic distinctions.
However, the Succession Act's inclusive definitions of "will" and "disposition are consistent with the proposition that a person's last "will and testament" (to use a composite expression still in common usage) may, in principle, be oral. More accurately, perhaps, a requirement that it be in writing is not essential to the concept of a "will". It is only an incident of particular legislation governing the making and enforcement of a will. It is not a universal requirement. The importance of this, in the current context, is that, before it is reduced to writing, an order under s 18 of the Succession Act authorising a will to be made may be pronounced orally. Whatever force or effect s 23 of the Act may have, the terms of s 18 do not mandate that an order made under s 18 (1) be in writing at the time it is made.
The current generation of Australians is so accustomed to a will taking the form of a document that it is easy to overlook the fact that, in former times, under Anglo-Australian law, effect might be given to an oral ("nuncupative") will in certain circumstances.
The Statute of Wills 1540 (32 Henry VIII chapter 1), which permitted a will of land to be made, merely required such a will to be "in writing"; the Statute of Frauds 1677 (29 Charles II chapter 3) required that a devise of lands be in writing, signed and witnessed (by three or four credible witnesses); but the requirement of signing and witnessing of wills is generally dated from the Wills Act 1837 (7 William IV and I Victoria chapter 26): TFT Pluncknett, A Concise History of the Common Law, p 740.
The 1837 Act provided for a will to speak, with regard to the real and personal estate comprised in it, from the death of the testator, and not, as formerly, from the date of the will: A Underhill, "Changes in the Law of Real Property" in the Council of Legal Education's A Century of Law Reform (MacMillan, London, 1901), pp 321-322. The Act was adopted in NSW in 1839: JM Bennett, A History of the Supreme Court of NSW (LBC, Sydney, 1974), p 133; Geddes, Rowland and Studdert, Wills, Probate and Administration Law in NSW, p 16.
The concept of a "privileged will" (a nuncupative will), able to be made by a soldier or seaman on active service, without formality and whatever the age of the testator, had its origins in the Statute of Frauds, s 23. It survived in NSW, in one form or another, via s 10 of the Wills, Probate and Administration Act, 1898 NSW, until, on the recommendation of the NSW Law Reform Commission (Report 46 (1986), Wills - Execution and Revocation), it was repealed in 1989.
At the time of repeal of s 10, and on the recommendation of the Commission, s 18A was inserted in the Wills, Probate and Administration Act. Its equivalent is now found in the Succession Act s 8.
Viewed over time, the common, enduring features of a "will", under NSW law, are that: first, there must be a declaration of an intention, ascribed to a testator, providing for the distribution or administration of property after the testator's death; secondly, that declaration must be ambulatory, in that it is intended to take effect only on the death of the testator, and is revocable in the meantime; and, thirdly, it can make a person (an executor) a representative of the testator.
In the case of an ordinary will, made by an adult with testamentary capacity, these features find reflection in provisions of the Succession Act that govern the process of making, and the form of, a will rather than in the statutory definition of the word "will". For example, s 4(1) provides that a person may dispose, by will, of property to which the person is entitled at the time of his or her death. Section 6(1) conditions validity of a will, inter alia, on its being in writing and signed by the testator. Section 6(2) requires that the signature of the testator be made with the intention of executing the will. Section 11 provides that a will may be revoked, inter alia, by a later will or some writing declaring an intention to revoke it.
In the ordinary case, the existence of a testamentary intention, evidenced by writing formally executed, is the core concept of a current day, NSW will. This is confirmed by ss 8 and 27 of the Succession Act, each of which provides a form of dispensation from the ordinary strictures of will-making. Section 8 turns on the existence of a document, or part of a document, that purports to state the testamentary intentions of a deceased person without due execution. Section 27 provides for rectification of a will that, because of one form of error or another, fails to carry out the intentions of the testator.
In both cases, relief from the strict requirements of a will is available from the Court, contingent upon a judicial finding about the testamentary intentions of a deceased person.
Sections 8 and 27 are both, by their nature, called in aid of the due administration of the estate of a person who has died, not a person for whom death lies in prospect.
Persons lacking testamentary capacity might be counted amongst the "living dead", in need of special care and protection before their physical demise. They include amongst their number some (but, having regard to Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 at 384, not all) of the people for whom financial management orders, or guardianship orders, might be made, or enduring powers of attorney might be supervised, under legislation other than the Succession Act: namely, the Guardianship Act 1987 NSW, the Powers of Attorney Act 2003 NSW; and the NSW Trustee and Guardian Act 2009 NSW.
The statutory scheme for authorisation of a will to be made on behalf of a person lacking testamentary capacity is an important, integral part of legislation enacted by the NSW Parliament in aid of the Court's protective jurisdiction, for the benefit of those in our community who, for one reason or another, are incapable of managing their own affairs and, incidentally, for the benefit of those who (in a broad sense) constitute their families. Careful always to place concern for the incapacitated person (a person in need of protection) at the centre of all deliberations, the legislation can, in an appropriate case, facilitate an orderly management of his or her affairs, recognising that, in a modern, affluent society, death appears as a process before it arrives as an event.
The proceedings which culminated in the making of an order for a statutory will in the current case engaged most of this legislation. The orders made on 14 December 2012 included a declaration that Mrs Scott (now deceased) did not have the mental capacity to make a valid power of attorney at the time she had purported to execute an enduring power of attorney, together with orders committing management of her estate (property) to the NSW Trustee. The decision to make an order for a statutory will was made only after due consideration of the question whether a more expedient exercise of the Court's powers would be to leave the parties to such rights as they might have, in due course, to apply for a family provision order. They joined in inviting the Court to make an order for a statutory will.
Conceptually, the radical step taken in legislation providing for a "statutory will" is the authorisation of a will to be made based upon the presumed intention of a person lacking testamentary capacity: Succession Act, 22 (b); Re Fenwick (2009) 76 NSWLR 22 at 54-57; Re Will of Jane [2011] NSWSC 624 at [73]-[84] and [98]. The fact that the Court's attention is directed towards determination of an actual, subjective intention, if any, does not preclude characterisation of the requisite intention as a modern form of legal fiction; cf, LL Fuller, Legal Fictions (Stanford UP, 1967), chapter 1.
A finding by a judge of a testamentary intention attributable to a person lacking capacity, in fact, to form any such intention is not lightly made. However, in a case in which it is made, and made for the benefit of the incapacitated person, the Court should be slow to attribute to parliament a legislative intention to deprive the finding of legal effect for a subsequent want of formality. Section 33 of the Interpretation Act 1987 NSW enjoins the Court, in the interpretation of legislation, to prefer a construction that would promote the purpose or object underlying the legislation over one that would not promote that purpose or object.
One should be mindful, also, that parliament deliberately chose the Court as the vehicle for the making of an order authorising a statutory will to be made, and must be taken to have accepted for that purpose the institutional structure, and ordinary processes, of the Court.
The work of a registrar includes work of an administrative character. Registrars of the Court generally work within the framework of orders made by judges, and their decisions are subject to review by judges. That can be seen in the provisions of the Supreme Court Act (s 121) and the Uniform Civil Procedure Rules (r 49.19) extracted in this judgment.
Section 23 of the Succession Act 2006 confers on the Registrar (or, more accurately, in the context of SCA s 119, a registrar) a ministerial function. That function stands in contrast to the functions of a judge under ss 18-22 of the Succession Act (referable, ultimately, to an application for an order under s 18(1)) in that it is not expressed in terms of a discretionary power conferred on a registrar and it is articulated by reference to no criteria of the type ordinarily attending a discretionary, judicial decision.
The purpose or object of s 23 is nowhere expressly, or specifically, set out in the Succession Act. By inference from the Act itself, it appears to be fourfold.
First, by providing for, or enabling, a statutory will to be signed by a registrar, the legislation genuflects in the direction of a community expectation that a "will" is generally signed by or on behalf of a testator.
Secondly, by providing for there to be such a document, approximating the form of an ordinary will, parliament intended to emphasise that a statutory will is liable, like an ordinary will, to be revoked or altered by a later testamentary instrument duly made.
Thirdly, by providing for a statutory will to be signed by a registrar parliament intended to facilitate physical control of the will being retained by the Court.
Fourthly, by providing a practical means for that control to be exercised, parliament intended that the Court be in a position, in the interests of the incapacitated testator and the public generally, to facilitate the due administration of the testator's estate, not necessarily limited to his or her deceased estate.
Nothing in the Second Reading Speech of the Attorney General, on the Bill that became the Succession Act, is inconsistent with this analysis (Hansard, NSW Legislative Assembly, 19 September 2006, p 1858 et seq) or the Explanatory Notes published in support of the Bill.
Nor is anything inconsistent with it apparent in the report of the NSW Law Reform Commission (Report 68 (1992), Wills for Persons Lacking Will-Making Capacity), the 1997 Report of the National Committee for Uniform Succession Laws on the Law of Wills (Queensland Law Reform Commission Miscellaneous Paper 29 (December 1997)) or the NSW Law Reform Commission's Report No 85 (1998) on Uniform Succession Laws: The Law of Wills leading to enactment of the Succession Act in 2006.
The recommendations of the NSW Law Reform Commission in its 1992 Report included the following:
(a) a recommendation (made by reference to English legislation then in force) that a statutory will ordered by the Court, or an alteration to an existing statutory will, be executed by the Registrar or Deputy Registrar in a manner prescribed by the rules of the Court: paragraph 2.22.
(b) a recommendation that a statutory will should have the same effect as a will executed under the Wills Probate and Administration Act 1898 (now, relevantly, the Succession Act, Part 2.1) based upon the Commission's view that it is appropriate to place statutory wills on the same footing as ordinary wills in all respects: paragraphs 2.23 - 2.28.
(c) a recommendation that the Family Provision Act 1982 NSW (now chapter 3 of the Succession Act) apply to statutory wills in the same way as ordinary wills: paragraphs 2.29 - 2.30.
(d) a recommendation that proceedings for the making of a statutory will (including any order made by the Court) should be open to the public, and that a statutory will should be a public document subject to the Court's discretion to order otherwise: paragraphs 2.32 - 2.33.
(e) a recommendation that statutory wills should be deposited in the Supreme Court Registry unless the Court otherwise orders (eg, on the application of a testator who has satisfied the Court that he or she has acquired or regained testamentary capacity): paragraph 2.37.
(f) a recommendation that provisions of the Supreme Court Rules dealing with procedures under the Protected Estates Act 1983 NSW (now found in the NSW Trustee and Guardian Act 2009 NSW), in relation to the management of estates of persons incapable of managing their own affairs, be amended to incorporate the procedures required for the operation of a statutory will-making scheme: paragraph 2.38.
The 1997 Report of the National Committee included (at paragraphs 5.36 - 5.38) the following observations:
"... Should the authorised will be retained by the Registrar?
5.36 Sub-sections 7(9) and (10) of the Wills Act 1936 (SA) provide that an authorised will must be signed by the registrar, sealed with a seal of the court and retained by the registrar. Section 7(11) makes provision for the removal of the authorised will from the depository.
5.37 In view of the possibly controversial nature of the jurisdiction it is desirable that the will should be kept in the registry as this gives the court continuing control over the will created under its jurisdiction.
5.38 Although this is a procedural matter, it is nevertheless recommended because it allows the court to oversee the authorised will. It has, however, been suggested by a member of the National Committee that a failure to retain the will in the registry should not result in the will's invalidity. The National Committee agrees with that suggestion."
The NSW Law Reform Commission's Report 85 of 1998 was, in form and substance, an endorsement of the National Committee's Report.
As is apparent from the Second Reading Speech, and the Explanatory Notes, on the Succession Bill, these Reports (and in particular, the work of the National Committee for Uniform Succession Laws) were taken into account in the drafting of what became the Succession Act.
Where, on the death of a person for whom a statutory will, has been made under s 18(1) of the Succession Act, an application is made to the Court for a grant of probate of the will, or other relief affecting its operation, no legislative purpose or object would be served by denying to an order made under s 18(1) continuing operation, subject to the ongoing control of the Court, merely because the contingency for which s 23 of the Act provides has not occurred. That is so, particularly, in a case (such as the present) in which the substance of the order, and the reasons for it being made, have been placed on the public record in Reasons for Judgment, published on the internet, in terms that permit the person for whom a statutory will has been made, and his or her family, to be identified.
The central question posited for an answer at the commencement of this judgment asks whether a statutory will takes effect (generally or in some qualified way) upon the making of an order under s 18(1), or only upon the occurrence of the contingency for which s 23 provides. Upon the proper construction of the Succession Act, that question should be answered by according provisional effect to a statutory will upon the making of an order under s 18(1), recognising that such a will ordinarily acquires full status as a will of the deceased only upon the occurrence of the contingency for which s 23 provides, subject to any order or direction being given by the Court pursuant to s 18(5).
The administrative process for which s 23 provides is a servant, not the master, of the judicial process that culminates in an order under s 18(1) and, by reference to s 18(5), the Succession Act allows for consequential orders or directions to be made as and when necessary to give full effect to the order authorising a will to be made.
Where an order for a statutory will has been made under s 18(1) and the contingency for which s 23 provides has not occurred, the non-occurrence of the s 23 contingency provides an occasion for the Court, by reference to s 18(5), to consider whether, notwithstanding non-compliance with s 23, the will should be admitted to probate or be made the subject of other orders.
It is not appropriate, in these proceedings, to attempt to limit the factors that might be taken into account by the Court when called upon to make a decision on that question. Any such decision must depend on the facts of the particular case, as disclosed by evidence and submissions bearing upon the decision then to be made.
It is sufficient, for the purposes of the present proceedings, to record that an order for admission of the deceased's statutory will to probate is appropriate because: (a) all persons affected by the making of a statutory will for the deceased, and all persons party to the application for it to be made, have expressly consented to the will being admitted to probate on the application of the plaintiffs; (b) notice of the plaintiffs' intention to apply for a grant of probate of the statutory will has been published in the ordinary course, and no person (whether a prospective beneficiary or creditor of the deceased's estate, or a prospective applicant for family provision relief) has appeared in opposition, or given notice to the plaintiffs of opposition, to the application for probate; (c) the plaintiffs, as solicitors, have a professional standing independent of any person who is, or may be, beneficially interested in the estate; (d) no evidence has been adduced on the application for probate that might, reasonably or otherwise, be thought to call into question the propriety or prudence of the order authorising a statutory will to be made, or providing a ground for a review of the terms of that will; (e) the plaintiffs, with the acquiescence of all affected parties, have offered an explanation of the failure of all parties to ensure compliance with s 23; and (f) there is no public interest impediment to a grant of probate of the statutory will being made.
In making an order that probate of the deceased's statutory will be granted to the plaintiffs, I record concluding observations about the nature of the grant and the extent to which it binds, in particular, the deceased's family.
In these proceedings, probate is to be granted in common, not solemn, form.
It would be open to the Court, in an appropriate case, to make an order for a grant in solemn form, bearing in mind that an object of the Succession Act is to place a statutory will on the same footing as an ordinary will in all respects. However, in the current proceedings, there is no necessity for, or utility in, a grant in solemn form. The only persons known to be affected by the making of the deceased's statutory will are those members of her family who have, by their provision of express formal consents, joined in the plaintiffs' application for probate.
In accordance with probate practice (and whether the practice be justified by reference to concepts of estoppel or characterisation of a grant of probate as a remedy in rem), they are bound by the outcome of the current proceedings, as well as the earlier proceedings in which they each actively invited the Court to authorise the making of a statutory will: Osborne v Smith (1960) 105 CLR 153 at 158-159; Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [23]-[25]. In these proceedings, as in many others, despite the Court's compliance with s 22(e) of the Succession Act on the hearing of the application for a statutory will, and despite publication of a notice of intention to apply for probate in the proceedings, there remains (however remotely) a theoretical possibility that, at some future date, a person, presently unknown, might apply for an order that probate of the statutory will be revoked.
In declining to make an order that probate be granted in solemn form, I take into account the greater ease with which the Court may order that a grant in common form be revoked: Tobin v Ezekiel [2012] NSWCA 285 at [3]-[18], especially [8]; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [135]-[142]. Although I do not anticipate that any application for revocation of the grant to be made in this case will ever be made, I am mindful of a need to ensure that whatever is done for or in the name of a person (such as the deceased) in need of the Court's protection should be everything that is needed, but no more than is needed, for the benefit of that person. Even in death, an object of the Court's protective jurisdiction is entitled to due consideration as an individual: Re Fenwick (2009) 76 NSWLR 22 at 51 [132]; Re Will of Jane [2011] NSWSC 624 at [99].
In light of the evidence presently before the Court, a grant of probate in common form is sufficient to meet the justice of the case. No more than that is, in the interests of the deceased, necessary.
Accordingly, I make the following orders:
(1) Order that Annexure "A" to the orders made by the Court on 14 December 2012 in proceedings respectively numbered 2010/426938, 2011/251591 and 2012/334076 (the statutory will authorised by the Court to be made on that date) be admitted to probate as the last will and testament of the late Marjorie Scott ("the Deceased") notwithstanding its form and the absence of any execution of it by a registrar of the Court.
(2) Order that the proceedings be referred to the Registrar to complete a grant of probate of the Statutory Will to the plaintiffs.
(3) Order that the administration bond and sureties be dispensed with.
(4) Order that further compliance with the Probate Rules in respect of the plaintiffs' application for probate be dispensed with.
(5) Order that the costs of the plaintiffs referable to the summonses respectively filed on 29 August 2013 and 10 January 2014 be paid out of the estate of the Deceased on the indemnity basis.
(6) Reserve liberty to apply.
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Decision last updated: 28 April 2014
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