Re Brown
[2009] SASC 345
•11 November 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Matter of GRACE GERALDINE BROWN
[2009] SASC 345
Judgment of The Honourable Justice Gray
11 November 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY
Application for order authorising making of a will for person lacking testamentary capacity - not opposed - whether proposed testator lacks testamentary capacity - whether proposed will reflects likely intentions of testator - whether proposed order reasonable in circumstances.
Held: permission to make application granted - application granted - person lacks testamentary capacity - proposed will accurately reflects likely intentions.
Wills Act 1936 (SA) s 7, referred to.
Banks v Goodfellow (1870) LR 5 QB 549; In the Will of Wilson (1897) 23 VLR 197; Timbury v Coffee (1941) 66 CLR 277; Hill v Hill [2001] VSC 83; Re Fenwick [2009] NSWSC 530; Hoffmann v Waters (2007) 98 SASR 500; Re D(J) [1982] Ch 237; Re C (A Patient) [1991] 3 All ER 866; State Trustees Limited v Hayden (2002) 4 VR 229; In the Matter of Rak [2009] SASC 288; Griffin v Boardman [2009] SASC 315, considered.
In the Matter of GRACE GERALDINE BROWN
[2009] SASC 345Testamentary Causes Jurisdiction
GRAY J.
Introduction
This is an application pursuant to section 7 of the Wills Act 1936 (SA) for an order authorising the making of a will.
On 30 October 2009 I made the following orders:
-The plaintiff be given leave to make this application.
-The Court hereby approves and authorises the making of a will on behalf of the defendant in the terms of the will marked by the defendant on 4 June 2009, a copy of which is annexed hereto.
-The original of the will referred to in paragraph 2 hereof be produced to the Registrar of Probates, to be signed by the Registrar, sealed with the seal of the Court and retained by the Registrar pursuant to Section 7(1) of the Wills Act 1936.
-The sealed will is not to be withdrawn from deposit with the Registrar of Probates by or on behalf of the defendant unless by an order of the Court pursuant to Section 7(11) of the Wills Act 1936.
-The costs of and incidental to this application and order incurred by the plaintiff and the defendant, be paid from the defendant’s estate on a solicitor client basis to be agreed, or in the absence of agreement, adjudicated.
These are my reasons for that decision.
Section 7 of the Wills Act empowers the court to authorise the making of a will on behalf of a person who lacks testamentary capacity. Section 7 contemplates a two-stage process: an application for permission to proceed, and an application for an order authorising the making of a will. It is settled that leave to proceed in this context is a mechanism by which baseless applications may be screened out.[1] For reasons that will follow, the affidavit material discloses a not unmeritorious application, and provides good reasons why it was appropriate that the substantive application and leave application were heard concurrently.[2]
[1] Hoffmann v Waters (2007) 98 SASR 500 at [10] citing Monger v Taylor [2000] VSC 304 at [22]; Boulton v Sanders (2004) 9 VR 495 at [11]; Bryant v Blake (2004) 237 LSJS 23 at [25]; see also Re Fenwick [2009] NSWSC 530 at [119]-[125].
[2] Bryant v Blake (2004) 237 LSJS 23 at 28; Hoffmann v Waters (2007) 98 SASR 500 at 503.
The evidence before the Court[3] included expert medical testimony from Dr Hecker, a specialist geriatrician, and a neuropsychology assessment report from Dr Scamps. Mrs Brown’s litigation guardian, Ms Leonie Millard, provided the Court with detailed affidavit evidence. There was further affidavit material before the Court from those who may have had an interest in the outcome of the application. For brevity, it is sufficient for now to record that pursuant to section 7(7) of the Wills Act, all relevant people were notified of the proceedings, and there was no opposition to the application being made, nor to the terms of the proposed will. I received and heard submissions from counsel on behalf of the plaintiff and the litigation guardian.
[3] Affidavit of John Barclay Gray dated 17 July 2009; Affidavit of Leonie Evans Millard dated 24 August 2009; Affidavit of Cecily Jane Andrew dated 13 October 2009; Affidavit of John Brayley, Public Advocate, dated 21 September 2009; Copy of last will and testament of Grace Geraldine Brown dated 4 June 2009; Medical report of Dr Jane Hecker dated 29 May 2009; Statement of reasons for decision of Guardianship Board regarding Mrs Brown dated 16 March 2009; Neuropsychology Assessment Report of Dr Emma Scamps dated 24 January 2009; Letter from Australian Executor Trustees addressed to Ms Anthea Gregory, attaching a draft enduring power of guardianship, a draft general and enduring power of attorney and a draft will, dated 8 September 2008.; Draft will for Grace Geraldine Brown prepared in 2008 by Australian Executor Trustees; Draft enduring power of attorney, appointing Ms Anthea Gregory as power of attorney of Mrs Brown, prepared in 2008; Draft enduring power of guardianship, appointing Ms Anthea Gregory as enduring guardian of Mrs Brown, prepared in 2008; Statement of assets and liabilities relating to the estate of Mrs Brown dated 1 June 2009; Copy of last will and testament of Grace Geraldine Brown, 1976; Copy of enduring power of attorney making John Barclay Gray the power of attorney of Mrs Brown, dated 9 September 1991; Copy of order made by Guardianship Board dated 16 March 2009, appointing John Barclay Gray full administrator of estate of Mrs Brown, and appointing the public advocate and Dr Herbert Stock as joint, limited guardians of Mrs Brown (limited to health care and lifestyle); Affidavit of due execution, Kayleen Ann Collins, dated 21 July 2009; Affidavit of due execution, Megan Elizabeth Wemmer, dated 21 July 2009; Consent of proposed executor to act, John Barclay Gray, dated 17 July 2009; Consent of proposed executor to act, Cecily Jane Andrew, dated 21 July 2009; Consent of proposed executor to act, Richard David Burke, dated 21 July 2009; Order made by Registrar of Probates appointing Leonie Evans Millard guardian ad litem for Mrs Brown, dated 24 July 2009; Summons, Finlaysons, dated 22 July 2009; Letter from Cecily Andrew to Mrs Jenny Richards sending notice of orders made by Gray J in a directions hearing on 27 August 2009, dated 3 September 2009; Letter from Dr Herbert Stock acknowledging receipt of notice of orders made on 27 August 2009; Letter from Public Trustee to Cecily Andrew, advising that the Public Trustee takes no position in relation to the application for a statutory will for Mrs Brown; Acknowledgment of service by Drew Thomas of the Religious Society of Friends South Australia Regional Meeting, of documents filed in relation to the application, dated 12 August 2009; Acknowledgment of service by Julian Robertson Clerk of the Religious Society of Friends Tasmania Regional Meeting, of documents filed in relation to the application, dated 12 August 2009.
Letter from Phil Atkinson to Cecily Andrew, confirming service of letter, summons and supporting documents on Ms Anthea Gregory, dated 11 August 2009.
Background
The proposed testator and protected person in the matter is Grace Geraldine Brown. Mrs Brown was born on 25 June 1920 and is aged 89 years. She is a widow and has no children. She has two living relatives, Jennifer Christine Richards and Wendy Edna Arthur, the daughters of her late brother. Mrs Brown has been at all times an active and committed member of the Religious Society of Friends. This Society is otherwise known as the Quakers.
Mrs Brown is the registered proprietor of a home unit in suburban Adelaide and in addition has investments and cash assets which generate an income sufficient for her needs. Her estate has an estimated value of more than $800,000.00.
Mrs Brown was a resident of Hobart for many years and worked there as a registered nurse and subsequently as a matron. Her husband died in 1975. In her retirement and following a minor stroke in about 1995, Mrs Brown moved from Hobart to Adelaide to be closer to her sister. In about 2005 due to frail health Mrs Brown was admitted to an Adelaide nursing home where she continues to reside and where her needs for high level nursing care are met.
In 1976 Mrs Brown executed a will which provided that her residuary estate be divided equally between her brother and sister, but in the event that they should pre-decease her, which has now occurred, then their shares were to be taken by the surviving children of her brother and the Religious Society of Friends Hobart Regional Meeting, respectively.
The plaintiff, John Barclay Gray, is a retired solicitor who practised in the state of Tasmania for more than 30 years. The plaintiff is the full administrator of the estate of Mrs Brown, pursuant to an order of the Guardianship Board of 16 March 2009. Since 1991 the plaintiff has acted as Mrs Brown’s attorney pursuant to an enduring power of attorney dated 9 September 1991. Since that date the plaintiff has had the role of managing all of Mrs Brown’s financial affairs.
The plaintiff has acted as Mrs Brown’s solicitor for a period of more than 30 years and in that capacity is aware that Mrs Brown made a will in 1976. It is his view that that will remains a valid testamentary document.
In 2006 the plaintiff visited Mrs Brown in Adelaide and discussed matters relating to her financial affairs. He formed the view at that time that her physical and mental capacities were failing. In mid-September 2008 the plaintiff became concerned about draft documents regarding the management of Mrs Brown’s financial affairs that had been forwarded to her at the nursing home from Australian Executor Trustees. As a consequence of this development and other issues relating to the care and well-being of Mrs Brown raised with the nursing home, the Director of the nursing home made an application to the Guardianship Board in late 2008 for an investigation and, if appropriate, orders appointing a guardian to represent Mrs Brown’s interests. Following its enquiry, the Guardianship Board appointed the plaintiff the full administrator of Mrs Brown’s estate.[4] The Guardianship Board instructed the plaintiff to attend to the steps necessary for Mrs Brown to make a new will in accordance with her present testamentary intentions. The Guardianship Board appointed the public advocate and Dr Herbert Stock as joint limited guardians of Mrs Brown, limited to health care and lifestyle.
[4] The order of the Guardianship Board was the subject of an appeal but that appeal has now been abandoned.
At the time of the Guardianship Board proceedings the Board requested and obtained the earlier referred to neuropsychological assessment with respect to Mrs Brown’s testamentary capacity from Dr Emma Scamps. Dr Scamps reported on 24 January 2009 and at that time expressed the following opinion:
This is a particularly difficult situation, given the cognitive, emotional and personality variables which are contributing to the problem. I will address the two separately:
Mrs Brown demonstrated some change in her cognitive functioning when compared with her estimated premorbid ability, particularly her new learning and memory and everyday problem solving, both of which fell in the impaired range. Given that her emotional status at the time of the assessment may have contributed to her poor memory performance, this skill may actually be better than she demonstrated on assessment. Her problem solving was poorer than anticipated and there was a naïve quality to her responses. In my opinion, the results of the cognitive assessment alone demonstrate that Mrs Brown has the capacity to process and understand information, but her impaired memory and problems solving are likely to compromise her decision making. It is important to re-iterate that the assessment was limited and some tasks could not be administered. In my opinion, this is a borderline case, and mental capacity cannot be solely determined on cognitive functioning alone.
In terms of emotional and personality variables, there are a number of other factors which are of concern. Mrs Brown is an isolated individual who does not generally receive visitors, except for Ms Gregory. She is very grateful for these visits. She has demonstrated in the past that she is willing to leave her assets to a person whom she has known for a brief period of time and with whom she had developed a bond. She becomes easily overwhelmed when moderately pushed which interferes with her ability to process information. There is also a documented history from a number of sources that Mrs Brown prefers others to manage things or to do things for her.
In her explanations, Mrs Brown demonstrated that she did not have a good understanding of her assets, however I understand that she has not been actively involved with the management of her estate. Page Seager Lawyers were appointed her Power of Attorney in 1991 and I would not expect her to have a precise knowledge of her assets. She claimed that if she left her money to Ms Gregory, that she would ‘know what to do with it’. She was not specific about what this meant, other than ‘giving it to the poor people’.
In conclusion, Mrs Brown presented as a particularly vulnerable and suggestible woman. Her reasoning around the changing of her will was superficial and lacked detail and knowledge of how Mrs Gregory may distribute her assets. Her isolation, depressive features and general attitude of letting others look after things for her, as well as her borderline cognitive functioning, lead me to conclude that she is easily influenced by others and is vulnerable to coercion. I would strongly support the proposition that a guardian is engaged for matters relating to Health and Lifestyle/Access and that she is supported by her Power of Attorney (or proxy) in the re-writing of a new will.
Following the Guardianship Board’s instruction in respect of a new will, the plaintiff instructed solicitors to obtain a report from Dr Jane Hecker, a consultant physician with specific expertise as a geriatrician. Dr Hecker concluded in her report of 29 May 2009 as follows:
… I don’t believe [Mrs Brown] retains capacity to independently provide instructions and execute legal documents. Her general wishes for her Will have remained consistent over time, including her original Will, her reported wishes to Dr Emma Scamps and again today. In large part she wishes for her estate to be distributed to less fortunate individuals in need, who either belong to the Society of Friends or lead lives consistent with their teachings. She does not wish the bulk of her estate to be used for the personal use of close friends or family members, but may wish for a smaller legacy to some of these individuals. Her wishes regarding a guardian are less clear or consistent and in view of her insufficient grasp of her health and medical problems, paranoid thinking and insufficient grasp of potential conflicts, I do not believe she retains capacity to chose a guardian.
On 3 June 2009 the plaintiff attended with his solicitor on Mrs Brown to take her instructions in relation to her testamentary intentions. Mrs Brown recognised the plaintiff, called him by name and had a general conversation about her health, well-being and matters of general interest. The plaintiff then reminded Mrs Brown of her 1976 will and gave her a copy which she read aloud with some assistance from the plaintiff.
As a result of the discussion with Mrs Brown, the plaintiff formed the view that she had no real understanding of the extent and value of her assets. However, the plaintiff understood that it was Mrs Brown’s primary intention in respect of her estate that she wished it to be applied to benefit “poor people who do not smoke or drink”; she wished to give Anthea Gregory, a woman who had recently befriended her, a cash legacy to acknowledge her friendship and support. Mrs Brown was unable to give instruction as to an amount and did not respond to the tentative suggestions of the plaintiff of the amounts of $10,000 and $20,000. Finally, Mrs Brown conveyed that she wished to benefit her nieces from her estate and approved distribution of 50 per cent of the value of her estate as being reasonable.
The plaintiff then instructed his solicitor to prepare a will and to do so in large font. The plaintiff attended on Mrs Brown on 4 June 2009. The plaintiff read the proposed will to Mrs Brown and at times she read the will aloud together with the plaintiff and at other times nodded and made comments. She requested the plaintiff to re-read sections apparently to ensure that they complied with her instructions.
Mrs Brown asked the plaintiff to assure her that those who would benefit from her bequest to the Religious Society of Friends would be the “poor people who did not smoke or drink”. The plaintiff assured her that those wishes were reflected in the terms of the will. Mrs Brown also asked how much Ms Gregory would receive. The plaintiff told her $15,000 to which Mrs Brown nodded. The plaintiff also informed her that Ms Gregory was to receive all of her possessions including her furniture, personal effects and jewellery. Mrs Brown responded by laughing and saying “there’s not much of that”. Mrs Brown was unable to sign her name as her hands were severely affected by arthritis but she was able to hold a pen and mark the pages with a cross.
The plaintiff has deposed to being satisfied that the terms of the will reflect Mrs Brown’s wishes, that she had a reasonable comprehension of the will executed by her in his presence and in the presence of the witnesses and his solicitor.
As earlier mentioned, in accordance with the directions of the Court notice of these proceedings, a copy of the application and supporting material and notice of the hearing date were given to persons who may have an interest in the outcome of the application. These persons were the Public Advocate, Ms Gregory, Ms Richards and Ms Arthur, the Religious Society of Friends, of both Hobart and South Australia, the Public Trustee and Dr Herbert Stock.
The Public Advocate has advised by affidavit that in his opinion the orders sought by the plaintiff are appropriate. Ms Richards and Ms Arthur have advised the plaintiff’s solicitor that they do not wish to be heard in regard to the plaintiff and will abide the order of the Court. The Religious Society of Friends of Hobart have informed the plaintiff that it was unlikely that the Hobart meeting of the Society would take issue with the proposed will and the Clerk of the South Australian Regional Meeting of the Society has advised the plaintiff’s solicitors that he thought it unlikely that the South Australian Regional Meeting would wish to be heard in relation to the application. Dr Stock does not intend to be heard in opposition to the application and consents to the terms of the application. Ms Gregory has been served with the papers and notice of the hearing date for the application. However, she did not attend in Court and has not expressed any view about the application.
Statutory wills
Before making an order under section 7(1) of the Wills Act, the Court must be satisfied of three matters, namely:
(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.[5]
[5] Wills Act 1936 (SA) section 7(3).
Section 7(4) mandates that when considering an application under section 7(1) 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.
The proposed will purports to reflect the intimation of Mrs Brown of a desire to change her will. The proposed will, in substance, maintains the bequest of 50 percent of her residual estate to the Religious Society of Friends, but redirects it to the South Australian Regional Meeting of the Society, to be used for the benefit of poor people who do not smoke or drink alcohol. The will has been updated to reflect the death of Mrs Brown’s brother and sister, and her two nieces are to receive 50 percent of the residual estate. A cash legacy in the amount of $15,000.00 in favour of Ms Gregory is also provided for in the proposed will.
Testamentary Capacity
Section 7(12) of the Wills Act defines “testamentary capacity” as the capacity to make a will, and a note to that definition provides that the cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
The capacity test as advanced in Banks v Goodfellow[6] is of assistance. In that case, Cockburn LCJ held that to have sufficient capacity a testator must understand the nature of the will and its effects; comprehend the extent of the property which is being disposed of; and understand and appreciate the claims to which he or she ought to give effect.[7] In In the Will of Wilson,[8] Hood J observed that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular and ordinary manner”. The foregoing observations were cited with approval by Dixon J in Timbury v Coffee.[9]
[6] Banks v Goodfellow (1870) LR 5 QB 549.
[7] Banks v Goodfellow (1870) LR 5 QB 549 at 565; In the Will of Wilson (1897) 23 VLR 197 at 199.
[8] In the Will of Wilson (1897) 23 VLR 197.
[9] Timbury v Coffee (1941) 66 CLR 277 at 283.
On 24 July 2009 Leonie Evans Millard, a legal practitioner, was appointed by this Court as guardian ad litem for Mrs Brown in relation to these proceedings. On 21 August 2009 Ms Millard attended on Mrs Brown and engaged in a lengthy discussion about the proceedings. Ms Millard went through the proposed will in detail with Mrs Brown. Ms Millard left a copy of the application and supporting material at the nursing home on the understanding that it would be provided to Mrs Brown should she wish to see it. In an affidavit filed by Ms Millard, she expressed the following observation relevant to Mrs Brown’s intentions:
Although there were times during my conversation with Mrs Brown where she was unable to provide an appropriate answer, or altogether failed to respond, I believe that she was certainly aware of the nature of a Will, and appeared familiar with the provisions of the Will marked by her in June 2009. She certainly did not express any views about disposing of her assets in any manner contrary to the provisions of the June 2009 Will.
Having regard to the expert reports, in particular the report of Dr Hecker, and having regard to the affidavit material from the plaintiff and Ms Millard, I am satisfied that Mrs Brown lacks testamentary capacity. Although Mrs Brown appears to be able to make her general wishes known, her limited insight and deficits in planning, problem solving and abstract thought, materially impair her ability to weigh up the relative merits of different options for the distribution of her estate.
Likely Testamentary Intentions
Under section 7(3) of the Act, this Court is required to approve a will that accurately reflects the likely intentions of the proposed testator, if that person had testamentary capacity. For that reason, evidence relating to the wishes of the proposed testator should be put to the Court where such evidence is available. However, the Court should approach this evidence with caution, as there is an inherent risk of the proposed testator being the subject of influence.[10]
[10] See Hill v Hill [2001] VSC 83, where Byrne J commented on the novel jurisdiction of the court in such matters, and the importance of recognising the risk of influence on the proposed testator; see also Re Fenwick [2009] NSWSC 530 at [130].
In Hoffmann v Waters,[11] Debelle J considered that guidance with respect to likely testamentary intentions was provided by English authorities Re D(J)[12] and Re C (A Patient)[13] and by the Victorian decision of State Trustees Limited v Hayden[14] where principles from Re D(J) and Re C(A Patient) were applied. His Honour observed:[15]
[11] Hoffmann v Waters (2007) 98 SASR 500.
[12] Re D(J) [1982] Ch 237.
[13] Re C (A Patient) [1991] 3 All ER 866.
[14] State Trustees Limited v Hayden (2002) 4 VR 229.
[15] Hoffmann v Waters (2007) 98 SASR 500 at [16].
Since 1969, Courts of Protection in England have been invested with the power to authorise the making of wills on behalf of those who lack mental capacity to do so: see ss 95 to 97 of the Mental Health Act 1983 (UK) and its predecessor the Mental Health Act 1959 (UK). Section 95 requires the court to make "provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered". In Re D(J) [1982] Ch 237 at 243-244 Sir Robert Megarry V-C stated some guidelines. Sir Robert was then dealing with a person who had made a will some 20 years earlier and who was suffering from senile dementia. Notwithstanding the different factual situation, some guidance is provided by the principles he outlined.
1It is to be assumed the patient is having a brief lucid interval at the time when the will is made.
2It is to be assumed that during the lucid interval the patient has a full knowledge of the past and a full realisation that as soon as the will is executed he or she will lapse into the actual mental state that previously existed with the prognosis as it actually is.
3It is the actual patient who has to be considered, not a hypothetical patient. The Court is not concerned with the patient on the Clapham omnibus. That is because the will is to be made by the Court and so by an impartial entity skilled in the law rather than the actual patient whose views while still of a sound disposing mind might be idiosyncratic and far from impartial. The Court must, therefore, take the intended testator as he or she was before losing testamentary capacity. Explaining this principle Megarry V-C said:
But subject to all due allowances, I think that the Court may seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight. If I may adapt Dr Johnson’s words, used for another purpose, the Court is to do for the patient what the patient would fairly do for himself, if he could.
4During the hypothetical lucid interval the patient is to be envisaged as being advised by competent solicitors who will draw to his or her attention the matters which a testator should bear in mind.
5In all normal cases the patient is to be envisaged as making a broad brush to the claims on his bounty rather than an accountant’s pen. Megarry V-C added (at 244):
There will be nothing like a balance sheet or profit and loss account. There may be many to whom the patient feels morally indebted; and some of that moral indebtedness may be readily expressible in terms of money, and some of it may not. But when giving legacies all shares of residue few testators are likely to reckon up in terms of cash the value of the hospitality and gifts that he has received from his friends and relations, and then seek to make some form of testamentary repayment, even if his estate is large enough for this. Instead, there is likely to be some general recognition of outstanding kindnesses by some gift which in quantum may bear very little relation to the cost or value of those kindnesses.
In respect to the relevance of the above approach, Debelle J concluded:[16]
Section 7 of the Wills Act does not include the expression "might have been expected to provide" as appears in the legislation in the United Kingdom. Notwithstanding the absence of that expression, it is manifestly clear that is an appropriate factor to consider. It is a factor which is directly relevant to the question whether the proposed will would accurately reflect the likely intention of the intended testator. I respectfully agree with Dodds-Stretton JA in Boulton v Sanders (at [54]) that care should be taken in applying the English decisions which are grounded on a different statutory provision. However, in many cases such as this, where the person who lacks testamentary capacity has never been able to comprehend what is involved in making a will, it will be especially difficult, if not quite realistic, for the Court to be able to determine what his likely intentions are. In other cases, it might be less difficult to determine the likely intention of the person who lacks testamentary capacity. In State Trustees Ltd v Hayden [2002] VSC 98; (2002) 4 VR 229 Mandie J applied the principles in Re D (J) and in Re C. Each case will depend on its own facts and circumstances. In this present case, it is appropriate to apply the approach in England.
[16] Hoffmann v Waters (2007) 98 SASR 500 at [16].
The recent decision of Palmer J in the Supreme Court of New South Wales in Re Fenwick[17] provides an alternative starting point for a consideration of these matters. That case concerned two applications made under the relevant New South Wales legislation. Palmer J canvassed the issues arising out of similar legislation in other jurisdictions, and reviewed what he described as “lost capacity”, “nil capacity” and “pre-empted capacity” cases.
[17] Re Fenwick [2009] NSWSC 530.
In In the Matter of Rak,[18] I had before me an application for a statutory will. The proposed testator in that case was a 30 year old man, who had suffered a severe hypoxic brain injury at the age of 5 as a result of choking on part of a toy. Rak was a “nil capacity” case, as the proposed testator had never had testamentary capacity. As such, there was no evidence before the court about the proposed testator’s testamentary intentions. I came to the view that being a nil capacity case, the process of finding likely intentions was necessarily artificial, and the difference in the alternative approaches outlined above was not material to that case.
[18] In the Matter of Rak [2009] SASC 288.
In Re C (A Patient), in considering what might be the intentions of a proposed testator who had never enjoyed testamentary capacity, Hoffmann J observed:[19]
In this case, the patient has lacked capacity since birth. In all relevant respects, the record of her individual preferences and personality is a blank on which nothing has been written…
[19] Re C (A Patient) [1991] 3 All ER 866 at 870.
It is here that a critical distinction should be drawn between nil-capacity and lost capacity cases. This distinction lies primarily in the fact that in a lost capacity case, a proposed testator was once able to give effect to their wishes and views. This provides a basis upon which the court can consider if the terms of the proposed will reflect the “likely intentions” of the proposed testator, were they to have testamentary capacity. It follows that the enquiry in the present proceedings is far less problematic than that embarked upon in a nil-capacity case. This view is consistent with the observations of Megarry VC in In re D (J):[20]
[20] Re D(J) [1982] Ch 237 at 244 as cited in Griffin v Boardman [2009] SASC 315 at [55] (White J).
Before losing testamentary capacity the patient may have been a person with strong antipathies or deep affections for particular persons or causes, or with vigorous religious or political views; and of course the patient was then able to give effect to those views when making a will. I think that the court must take the patient as he or she was before losing testamentary capacity. No doubt allowance may be made for the passage of years since the patient was last of full capacity, for sometimes strong feelings mellow into indifference, and even family feuds evaporate. Furthermore, I do not think that the court should give effect to antipathies or affections of the patient which are beyond reason.
With respect to “lost capacity” cases, Palmer J in Fenwick[21] observed:
The easiest case is a lost capacity case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for a statutory codicil or new will.
The Court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do. The task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?
The evidence is likely to be on affidavit, at least in the first instance. There will be some cases in which the affidavit evidence is so clear and convincing that the Court will be satisfied at once that the incapacitated person has indeed expressed the intention reflected in the proposed will or codicil. In other cases, the Court will bear in mind that evidence on affidavit is easily moulded by the drafter and may give an impression which the Court would not receive if it saw and heard the deponent in person. Accordingly, where the affidavit evidence taken as a whole is not clear and convincing that the incapacitated person has actually expressed the testamentary wish contained in the proposed will or codicil, the Court should avail itself of the power under s 21(b) and (c) to see and hear the incapacitated person to verify the wish ascribed in the affidavit evidence.
If the Court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person “if he or she had testamentary capacity”? This question may pose little difficulty if the person’s testamentary capacity is borderline, i.e., the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty – a not infrequent symptom of testamentary incapacity.
[emphasis added]
I respectfully agree with this approach. In an application made pursuant to section 7 of the Wills Act in a lost capacity case, the question to be posed is whether the incapacitated person has expressed the intention attributed to them in the proposed will and, whether that person would have held that intention if they had testamentary capacity. The first part of the posed question involves fact finding and the second part is an enquiry based on the best possible assessment the Court can make having regard to the evidence before it.
[21] Re Fenwick [2009] NSWSC 530 at [154] – 157].
If Mrs Brown did have testamentary capacity, I am satisfied that it is likely that she would recognise the help and support provided by Ms Gregory by a bequest in her will. In view of the evidence before the Court, and the likely size of Mrs Brown’s estate, it is my opinion that the proposed bequest of $15 000.00 reflects the likely intentions of Mrs Brown, were she to have capacity. In light of the evidence provided by the plaintiff, the litigation guardian, and Dr Hecker, it is clear that Mrs Brown did wish to benefit the children of her brother, and the Religious Society of Friends. There is no evidence before the Court to suggest that this desire has changed, indeed, despite Mrs Brown’s incapacity, the evidence suggests that this desire continues.
Conclusion
As earlier observed, it is appropriate to consider the application having regard to matters set out in section 7(4) of the Wills Act. In the course of my reasons I have canvassed those matters. However, it is convenient to summarise those matters.
The plaintiff’s affidavit and the report from Dr Hecker provide evidence as to the wishes of Mrs Brown. In light of the medical reports and the age and declining health of Mrs Brown, I am satisfied that Mrs Brown lacks testamentary capacity. I do not consider that there is a likelihood of Mrs Brown regaining testamentary capacity.
Save for the identity of the executor and the provision for Ms Gregory, the effect of the proposed will is largely in accordance with the intentions expressed by Mrs Brown in her previous will of 1976. The interests of Mrs Brown’s nieces and the Religious Society of Friends under the 1976 will are affected only by the legacy received by Ms Gregory of $15,000.00 and household and personal effects. I have had regard to these interests. By virtue of the existence of a previous will, Mrs Brown would not die intestate.
The evidence identifies Ms Gregory as a person who has “cared for or provided emotional support” to Mrs Brown, and provision is made in the proposed will to reflect that. I have had regard to the likely size of Mrs Brown’s estate.
I am of the view that there are no persons other than the nieces of Mrs Brown for whom provision is made in the proposed will, who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 (SA).
I am satisfied that the proposed will accurately reflects the likely intentions of Mrs Brown if she had retained testamentary capacity and that it is reasonable in all the circumstances that the Court should authorise the making of the proposed will in the terms annexed on behalf of Mrs Brown. In reaching these conclusions I have considered the matters referred to in section 7(4) of the Wills Act.
ANNEXURE
“THIS IS THE LAST WILL of me GRACE GERALDINE BROWN of Milpara Aged Care Facility 147 St Bernards Road Rostrevor South Australia Widow AND I REVOKE all my former testamentary dispositions.
1.(1) I APPOINT JOHN BARCLAY GRAY of 10 Parliament Street Sandy Bay Tasmania Retired Solicitor and CECILY JANE ANDREW of 81 Flinders Street Adelaide South Australia Solicitor my executors and trustees.
IF CECILY JANE ANDREW dies before me or before obtaining a grant of probate or if she is unable or unwilling to act, I APPOINT RICHARD DAVID BURKE of 81 Flinders Street Adelaide South Australia Estates Manager my executor and trustee in her place.
2. (1) I GIVE:
(a) $15,000; and
(b)all my household furniture and effects, jewellery and other articles of personal use or ornament
to my friend ANTHEA GREGORY if she survives me.
(2)I GIVE half of the residue of my estate to such of my nieces JENNIFER CHRISTINE RICHARDS and WENDY EDNA ARTHUR as are alive at my death and if both in equal shares as tenants in common.
IF either niece of mine dies before me, leaving children alive at my death, those children shall take and if more than one as tenants in common in equal shares, the share which their mother would have taken.
(3)I GIVE the remaining half of the residue of my estate to THE RELIGIOUS SOCIETY OF FRIENDS (SOUTH AUSTRALIA REGIONAL MEETING) INCORPORATED and I EXPRESS the wish without creating any legal obligation in respect thereof that the proceeds of such bequest shall be applied to the benefit of individuals suffering financial hardship provided that they do not smoke substances or consume alcohol.
(4)I DECLARE that the receipt of the authorized officer of THE RELIGIOUS SOCIETY OF FRIENDS (SOUTH AUSTRALIA REGIONAL MEETING) INCORPORATED shall be a full discharge to my executors who shall not be responsible to see to the application of such bequest.
3. I DIRECT my executors to pay my debts, funeral and testamentary expenses and any duty or tax payable in consequence of my death from the residue of my estate, with no subsequent apportionment between the beneficiaries.
4. I EMPOWER my trustees:
(a)TO SELL, postpone sale, borrow with or without security, lease, accept surrenders of leases, repair, manage, exchange, appropriate in specie, partition or otherwise deal with respect to any part of my estate, for such purpose, at such time or times, on such terms and conditions, and with such determination of value, as my trustees think fit.
(b)TO RETAIN any investments held by me at my death AND TO INVEST any part of my estate requiring investment in such existing or future forms of investment and whether of a wasting, hazardous or reversionary nature or not, as my trustees from time to time think fit, with power to vary or transpose the same.
(c)TO PAY OR APPLY the whole or any part of the share of a beneficiary who is a minor, both income and capital, for his or her maintenance, education or other benefit during minority.
5. I DECLARE that any executor or trustee who is a solicitor may charge and be paid for professional services rendered by him or his firm in relation to the administration of my estate as if he were not one of my executors or trustees but employed to act for them.
DATED this 4th day of June 2009
The testatrix being sight ) HER
impaired, JOHN BARCLAY )
GRAY read this will to her )
in the presence of KAYLEEN )
ANN COLLINS and )
MEGAN ELIZBETH WEMMER [handwritten])
Following which the testatrix ) ………………………………….
stated that she knew and ) GRACE GERALDINE BROWN
approved its contents. Then )
GRACE GERALDINE BROWN )
signed the will by making her mark ) MARK
in the presence of both of us, all four )
persons being present at the )
same time:)
Sgd M E Wemmer Sgd Kayleen A Collins
SignatureSignature
MEGAN ELIZABETH WEMMER KAYLEEN ANN COLLINS
NameName
Registered Nurse Legal Secretary
OccupationOccupation
2 Elizabeth Avenue 3 Perceval Court
GLENALTA, SA, 5052 TROTT PARK SA 5158
AddressAddress
12
10
1