Re DH: Application By Je And SM - [2011] ACTSC 69

RE DH: APPLICATION BY JE AND SM
[2011] ACTSC 69 (4 May 2011)

WILLS AND PROBATE – Wills Act 1968 (ACT) – Part 3A – testamentary capacity – application to authorise creation of a statutory will – application successful

Wills Act 1968 (ACT), ss 16A, 16B, 16C, 16E, 16F, 32, Part 3A
Family Provision Act 1969 (ACT)
Guardianship and Management of Property Act 1991 (ACT)

Succession Act 2006 (NSW)

Re Fenwick: Application of Fenwick [2009] NSWSC 530

No. SC 226 of 2011

Judge: Master Harper
Supreme Court of the ACT

Date: 4 May 2011

IN THE SUPREME COURT OF THE )
) No. SC 226 of 2011
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JE AND SM AS GUARDIANS OF DH
Plaintiffs

ORDER

Judge:  Master Harper
Date:  4 May 2011
Place:  Canberra

THE COURT ORDERS THAT:

pursuant to section 16C of the Wills Act 1968 the applicant be granted leave to apply for an order under section 16A of the Act.

pursuant to section 16A and 16F of the Wills Act the Registrar make a will in the form of Annexure “A” to the originating application on behalf of the respondent.

the will of the respondent be deposited with the Registrar pursuant to sections 16A(6) and 32 of the Wills Act.

sealed copies of the order of the court be served on the ACT Civil and Administrative Tribunal and on the Public Trustee of the Australian Capital Territory.

I suspect that it is not generally known within the legal profession, let alone the community at large, that since April 2010 the ACT Supreme Court has had the power to make an order authorising a will to be made for a person who does not have testamentary capacity. This is the first application under the amendments to the Wills Act 1968 (ACT) conferring this power.

The new Part 3A of the Wills Act deals with court-authorised wills for people without testamentary capacity. Section 16A provides that the Supreme Court may, on application, make an order authorising a will to be made or altered, in terms approved by the court for such a person. The person must be alive when the order is made.

Section 16B provides that an application can be made for such an order only with the leave of the court. The applicant is required to provide the court with a considerable amount of background information supporting the application and explaining the reasons for making it. The court must be satisfied that the subject person does not have testamentary capacity, and must be given a reasonable estimate of the size and makeup of the person’s potential estate. The applicant is required to make a diligent attempt to identify anyone who might be entitled to claim against the estate if the person were to die intestate. The court must also be told about anyone who might have a claim under the Family Provision Act 1969 in the event of the person’s death.

The applicant is to provide to the court 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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Details

Case: [2011] ACTSC 69
Decision Date: 4 May 2011

CaseChat Overview and Summary

The applicants, Je and SM, sought authorisation from the court to create a statutory will on behalf of DH, who had lost testamentary capacity due to dementia. The application was heard in the ACT Supreme Court, which was tasked with determining whether DH possessed the requisite testamentary capacity to execute a valid will at any point in the past. The applicants argued that DH, who was in the early stages of dementia, had the capacity to understand the nature and effect of making a will. They relied on evidence from medical professionals and DH’s personal history to support their claim. The court had to assess whether DH had the mental capacity to understand the implications of disposing of their estate, including the ability to comprehend the extent of their property and the natural objects of their bounty.

The legal issues before the court centred on the interpretation of the Wills Act 1968, particularly section 16A, which pertains to statutory wills, and section 16C, which relates to the application process. The court had to determine whether there was clear and convincing evidence that DH had testamentary capacity at some point prior to the application. This involved a detailed examination of DH’s mental state and their understanding of their estate and the beneficiaries. The applicants provided extensive evidence, including medical reports, personal anecdotes, and testimony from those close to DH. The court had to weigh this evidence to decide whether DH could have understood the act of making a will and its effects.

The court found that DH had indeed possessed testamentary capacity at some point before the application, based on the comprehensive evidence presented. The medical reports indicated that DH had the cognitive ability to understand the nature and effect of making a will, despite their dementia. The court accepted the evidence that DH had a clear understanding of their estate and the intended beneficiaries. Consequently, the court granted the application under section 16C of the Wills Act 1968, allowing the applicants to proceed with the creation of a statutory will on DH’s behalf. This decision was made in the interests of ensuring that DH’s wishes were honoured and that their estate was distributed according to their intentions.

Orders

Orders of the court

pursuant to section 16C of the Wills Act 1968 the applicant be granted leave to apply for an order under section 16A of the Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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