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.
In the Matter of GRACE GERALDINE BROWN [2009] SASC 345
Testamentary 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-The sealed will is not to be withdrawn from deposit with the Registrar of Probates by or on behalf of the defendant unless by an order of the Court pursuant to Section 7(11) of the Wills Act 1936.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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Re Brown [2009] SASC 345
Case
[2009] SASC 345
Decision Date
CaseChat Overview and Summary
The case of Re Brown was before the Supreme Court of South Australia. The dispute involved the making of a will for Mrs Grace Geraldine Brown, who was believed to lack testamentary capacity. The Court was tasked with determining whether Mrs Brown lacked testamentary capacity, whether the proposed will accurately reflected her likely intentions, and whether the proposed order was reasonable in the circumstances.
The primary legal issues before the Court were whether Mrs Brown lacked testamentary capacity and whether the proposed will accurately reflected her likely intentions if she had retained testamentary capacity. The Court considered expert medical testimony, a neuropsychology assessment report, and affidavit evidence from Mrs Brown’s litigation guardian and others with an interest in the outcome of the application.
The Court found that Mrs Brown lacked testamentary capacity due to her age, declining health, and the evidence provided by the experts. The Court determined that the proposed will accurately reflected Mrs Brown's likely intentions, given the bequest to her niece's children and the Religious Society of Friends, and the legacy to her friend, Ms Gregory. The Court considered the likely size of Mrs Brown’s estate and the interests of her nieces and the Religious Society of Friends, concluding that the proposed will was reasonable in all the circumstances.
The Court granted permission to make the application and authorized the making of the proposed will in the terms annexed on behalf of Mrs Brown. The final orders included the appointment of the executors and trustees named in the will, and the authorisation of the proposed will as the testamentary disposition of Mrs Brown.
Orders
Orders of the court
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Background
Background to the litigation
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GRAY J
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 ornamentto 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 2009The testatrix being sight ) HERimpaired, 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 BROWNapproved its contents. Then )GRACE GERALDINE BROWN )signed the will by making her mark ) MARKin the presence of both of us, all four )persons being present at the )same time:)Sgd M E Wemmer Sgd Kayleen A CollinsSignatureSignatureMEGAN ELIZABETH WEMMER KAYLEEN ANN COLLINSNameNameRegistered Nurse Legal Secretary OccupationOccupation2 Elizabeth Avenue 3 Perceval Court GLENALTA, SA, 5052 TROTT PARK SA 5158 AddressAddress