Re Fenwick

[2009] NSWSC 530

Reported Decision: 76 NSWLR 22
1 ASTLR 440

New South Wales

Supreme Court

CITATION:	Fenwick, Re; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530
HEARING DATE(S):	Re Fenwick: 15 December 2008 Re 'Charles': 10 February 2009
JUDGMENT DATE :	12 June 2009
JURISDICTION:	Equity Division and Probate List
JUDGMENT OF:	Palmer J
DECISION:	Applications granted.
CATCHWORDS:	SUCCESSION – STATUTORY WILL – Examination of historical antecedents – correct approach to interpretation and application of statutory will legislation in New South Wales – whether authorities in other jurisdictions of assistance – categories of application – “lost capacity” case – “nil capacity” case – “pre-empted capacity” case – the proper approach in each category. - PRACTICE AND PROCEDURE – What evidence is required – when intervention by the Court is justified – procedure in unopposed applications.
LEGISLATION CITED:	- Administration of Estates Act 1925 (UK) - Adoption Act 2000 (NSW) - Children (Care and Protection) Act 1987 (NSW) – s 72 - Civil Procedure Act 2005 (NSW) - s 56(1), s 71(d), s 71(f) - Family Provision Act 1982 (NSW) - Law of Property Act 1925 (UK) – s 171(1) - Mental Capacity Act 2005 (UK) - Mental Health Act 1959 (UK) – s 102, s 103 - Mental Health Act 1983 (UK) – s 95, s 96 - Probate and Administration Act 1898 (NSW) – s 61B(5) - Protected Estates Act 1983 (NSW) - Statute of Distributions (23, 23 Charles II, c.10) - Statute of Wills (32 Henry VIII, c.1) - Succession Act 2006 (NSW) – Chapter 2, Pt 2.2 Div 2, s 16, s 18, s 19, s 20, s 21, s 22, s 25, Chapter 3 - Testator’s Family Maintenance Act 1900 (NZ) - Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) – s 3(1), (1a) - Wills Act 1997 (Vic) – s 26(b) - Wills, Probate and Administration Act 1898 (NSW) – s 6A
CATEGORY:	Principal judgment
CASES CITED:	- B (A Patient), Re [2006] 1 WLR 278 - Banks v Goodfellow (1870) LR 5 QB 549 - Blair v Duncan [1902] AC 37 - Bosch v Perpetual Trustee Company, Limited [1938] AC 463 - Boulton v Sanders (2004) 9 VR 495 - Briginshaw v Briginshaw (1938) 60 CLR 336 - Bryant v Blake [2004] SASC 369 - C (a patient), In re [1991] 3 All ER 866 - Chichester Diocesan Fund & Board of Finance v Simpson [1944] AC 341 - Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 - D (J), In re [1982] 1 Ch 237 - Darling, In re (1888) 39 Ch D 208 - Davey, In re [1981] 1 WLR 164 - DML, In re [1965] 1 Ch 1133 - Dominion Insurance Company of Australia Ltd and the Companies Act, Re (1980) 4 ACLR 765 - Evans, In re (1882) 21 Ch D 297 - Freeman, In re [1927] 1 Ch 479 - G v Official Solicitor [2006] EWCA Civ 816 - Goodman v Windeyer (1980) 144 CLR 490 - Greene, In re [1928] Ch 528 - Grimond v Grimond [1905] AC 124 - Harrison, In re; Turner v Hellard (1885) 30 Ch D 390 - Harriton v Stephens (2006) 226 CLR 52 - Hill v Hill [2001] VSC 83 - Hinde, Re; ex parte Whitbread (1816) 2 Mer 99 (35 ER 878) - Hoffmann v Waters [2007] SASC 273 - L (WJG), In re [1966] 1 Ch 135 - Lieberman v Morris (1944) 69 CLR 69 - Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executors & Trustee Ltd (1970) 121 CLR 628 - M, Application of (2000) 50 NSWLR 401 - Monger v Taylor [2000] VSC 304 - P, Re [2009] EWHC 163 (Ch) - Palmer, Re the will of [2003] VSC 21 - Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 - Pyrenees Shire Council v Day (1998) 192 CLR 330 - RH v CAH [1984] 1 NSWLR 694 - Roberts v Repatriation Commission (1992) 111 ALR 436 - Scott v Davis (2000) 204 CLR 333 - Singer v Berghouse (No 2) (1994) 181 CLR 201 - Smith, b. (1869) LR 1 P&D 717 - Van Alst v Hunter (1821) 5 Johns Ch 148
TEXTS CITED:	- Chief Justice’s Law Reform Committee (Victoria) “Report on Wills for Mentally Disordered Persons”, 1985 - Gordon, D.M. “Delegation of Will-Making Power” (1953) 69 LQR 334 - Hardingham Neave Ford “Wills and Intestacy in Australia and New Zealand” (1983) Ch 14 - Holdsworth “The history of English law before the time of Edward 1” Vol III (3rd Ed) Ch V - The Law Commission (UK) Report 231: Mental Incapacity (1995) - Law Reform Commission NSW: “Discussion Paper 20 – Wills For Persons Lacking Will-Making Capacity”, 1989 - Law Reform Commission NSW: “Report 68 Wills for Persons Lacking Will-Making Capacity” (1992) - Pollock & Maitland “The history of English law before the time of Edward 1” (1895) Vol II, Ch VI - Powell, Mr Justice “Recent Developments in New South Wales in the Law Relating to Wills” (1993) 67 ALJ 25
PARTIES:	Re Fenwick: John Robson Fenwick (Plaintiff) Re ‘Charles’: Minister for Community Services (Plaintiff)
FILE NUMBER(S):	SC 119046/08; 5958/08
COUNSEL:	Re Fenwick: M. Meek, Ms R. Kako (Plaintiff) Re ‘Charles’: Ms K. Eastman (Plaintiff)
SOLICITORS:	Re Fenwick: Diamond Conway (Plaintiff) Re ‘Charles’: I.V. Knight, Crown Solicitor (Plaintiff)

PALMER J.

119046/08 Re Fenwick: Application of J.R. Fenwick
5958/08 Re ‘Charles’

JUDGMENT

12 June, 2009

Introduction

1 These two cases are the first in which this Court has had to consider and apply Chapter 2, Pt 2.2, Div 2 of the Succession Act 2006 (NSW), which confers power on the Court to authorise the Registrar to make, alter or revoke a will on behalf of a person who lacks testamentary capacity. A will made in accordance with these provisions is called “a statutory will”.

2 The facts of the two cases are widely different. In proceedings 119046/08 (Re Fenwick: Application of J.R. Fenwick) the incapacitated person is a sixty year old man who had a made a will some ten years before he suffered an incapacitating accident. His elder brother seeks an order authorising a statutory will so that a codicil to the will may be made which will avoid the possibility of an intestacy and, in a not unlikely circumstance, the vesting of the whole estate in the Crown as bona vacantia.

3 In proceedings 5958/08 (Re ‘Charles’), the incapacitated person is a child of eleven years who suffered severe and irreversible brain injury at the age of four months. He received a victim’s compensation award in the sum of $50,000. The child – “Charles” is a pseudonym given to protect anonymity – has been placed under the care of the Minister for Community Services pursuant to the then s 72 Children (Care and Protection) Act 1987 (NSW) and the compensation award is held by the Public Trustee of New South Wales upon trust until Charles reaches the age of eighteen years.

4 The Minister seeks the authorisation of a statutory will for Charles so as to avoid Charles’ estate passing on intestacy to his parents, who are suspected of having caused his injuries.

5 The widely differing circumstances of the two cases provide an opportunity to explore some of the principles which should guide the Court in applying these new statutory provisions. In the first case, the incapacitated person validly expressed his testamentary intentions before he lost testamentary capacity. In the second case, the incapacitated person has never been able to form any testamentary intention. In two such very different circumstances, upon what criteria is the Court to be satisfied, as it must be under s 22(b) of the Act, that the proposed statutory will “is, or is reasonably likely to be”, one that would have been made by the incapacitated person, if he or she had testamentary capacity? Does the Court look for subjective intent, even in cases where none could ever have been formed? Does the Court apply an objective standard, i.e. what a reasonable person of testamentary capacity would have done in the circumstances? Does the Court apply sometimes one test, sometimes the other, and sometimes a mixture of both?

6 Before turning to the facts of the cases, I should set out the antecedents of the “statutory will” and examine how similar provisions in the United Kingdom and in other States of Australia have been interpreted. The exercise begins with some delving into legal history, for which I make no apology. When you are setting off into unchartered territory for an uncertain destination, it is generally useful to know where you are now and how you got there.

7 This review is not merely of academic interest. It shows, I think, that the law in the United Kingdom as to statutory wills had reached a highly unsatisfactory state by the time that Australian jurisdictions began incorporating similar statutory will provisions into their succession legislation. In cases in which an incapacitated person had never been able to form even the most rudimentary testamentary intention, the English Courts were resorting to a legal fiction in purporting to ascertain what testamentary disposition that person subjectively would have intended to make. Even where the incapacitated person had previously expressed some valid testamentary intention, the Courts were attributing to him or her a new testamentary intention upon the basis that the person, if temporarily restored to testamentary capacity, would have changed his or her mind. The fiction was employed to disguise, needlessly, that what the courts were really doing in such cases was making decisions, objectively based, in the best interests of the incapacitated person and his or her family.

8 The law in the United Kingdom has recently been rationalised by a major statutory amendment, but in New South Wales and the other Australian States we are left with the provisions copied from, or inspired by, the earlier United Kingdom legislation. In applying the Australian legislation, Courts of other States have been using the United Kingdom cases as guides. Problems of the same kind as beset the English Courts are likely to arise.

9 The difficulties stem from the fact that the Australian legislation, like the previous United Kingdom legislation, endeavours to accommodate several social policies which can come into conflict in particular cases. First, the testamentary freedom of the individual, being a basic element of the right to property, should not be usurped by the State, or by others with the State’s assistance. Second, testamentary dispositions which have previously been validly made by an incapacitated person may defeat claims or expectations which contemporary society regards as just and reasonable. Third, the wishes of mentally incapacitated persons, if known, should be respected. Fourth, laws of intestacy already provides for what is to happen in the absence of will; why should that law apply differently to persons with testamentary incapacity?

10 These difficulties come to a head in s 22(b) of the Succession Act. By that subsection the Courts are required to apply a briefly stated, but critical, test for determining the appropriateness of a proposed statutory will. The test depends upon the ascertainment of actual or likely testamentary intention but it must be applied in at least three widely differing factual categories of cases; the Act gives no express guidance as to how the Courts should apply the test in these different contexts.

11 It is necessary, therefore, to trace some of the history of the development of the law in this area in order to appreciate the competing tensions which underlie the deceptively simple words of s 22(b) and the difficulties of application which they cause.

Will-making and the freedom of the individual

12 The suggestion that a Judge should be empowered to “create” a will for anyone would have been met with outrage in the mid-19^th century, particularly from the judiciary. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ said:

“… the power of disposing of property in anticipation of death has ever been regarded as one of the most valuable of the rights incidental to property … The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”

13 The “unfettered discretion” which the law gave to a testator with testamentary capacity was jealously guarded as “one of the most efficient means which (a man) has in protracted life to command the attention due to his infirmities” – a sentiment one might have attributed to Dickens’ cynical attorney, Mr Tulkinghorn, in Bleak House but which was, in fact, expressed by Chancellor Kent in Van Alst v Hunter (1821) 5 Johns Ch 148, at 159, and repeated with gloomy approval by Cockburn CJ in Banks.

14 Indeed, so strong was the conviction that the individual testator was the best person in all the world to dispose of his testamentary bounty that the exercise of the freedom of disposition had, by the mid-19^th century, become not only a right but a duty which the testator could not delegate to anyone else, such as by a power of appointment of testamentary beneficiaries (other than charities). In b. Smith (1869) LR 1 P&D 717, Lord Penzance said:

“… a testator cannot confide to another the right to make a will for him …”

See also to the same effect Blair v Duncan [1902] AC 37, at 47; Grimond v Grimond [1905] AC 124, at 126; Chichester Diocesan Fund & Board of Finance v Simpson [1944] AC 341, at 348 per Viscount Simon LC; Lutheran Church of Australia South Australia District Inc v Farmers Co-operative Executors & Trustee Ltd (1970) 121 CLR 628, at 632 per Barwick CJ; see also D.M. Gordon “Delegation of Will-Making Power” (1953) 69 LQR 334.

15 It must be remembered, however, that by the beginning of the 19^th century complete testamentary freedom to dispose of all of one’s property was a relatively recent development in England. In the 13^th century, with minor exceptions, wills disposing of realty were not permitted, freehold land passing to the owner’s heir at law. As to personalty, by general custom one-third passed to a man’s widow, one-third (“the bairns’ part”) passed to his children, and only the remaining third (“the dead’s part”) could be disposed of by will, which was usually oral and communicated by the dying man to his confessor. Except in cases of sudden death, to die intestate as to personalty was regarded as disgraceful, as it often meant that a man had died unshriven.

16 It was not until the enactment in 1670 of the Statute of Distributions (23, 23 Charles II, c.10) that a scheme for distribution of personalty on intestacy was established. With minor amendments, it prevailed until the 20^th century. As to realty, if there was no heir at law surviving, it escheated to the Crown. It was only in 1540 that the Statute of Wills (32 Henry VIII, c.1) conferred power to dispose of freehold land by will: see generally Holdsworth “History of English Law” Vol III (3^rd Ed) Ch V; Pollock & Maitland “The history of English law before the time of Edward 1” (1895) Vol II, Ch VI; Hardingham Neave Ford “Wills and Intestacy in Australia and New Zealand” (1983) Ch 14.

17 The unfettered discretion of a testator to make dispositions of all of his or her property which was judicially entrenched by the end of the 19^th century was eroded at the beginning of the 20^th. Abandoning Lord Cockburn’s pious hope that the natural instincts of mankind could safely be trusted to make better testamentary dispositions than any legislative scheme, parliaments began enacting legislation that provided for the immediate family of a testator in a manner in which, according to contemporary notions of fairness and morality, the testator should have done. The motive of the legislatures was not entirely altruistic: at least one purpose was to relieve the community of having to support those whom the testator’s estate should have supported: see e.g. Lieberman v Morris (1944) 69 CLR 69, at 85 per Rich J, and at 91-92 per Williams J; Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, at 513 per Williams J.

18 The tension between the inalienable right of the individual to testamentary freedom and the socially imposed duty to make proper testamentary provision for one’s dependents needs to be explored a little further. That tension persists in the statutory will provisions enacted in Australia and is the cause of some difficulty, as I shall explain.

Adequate provision and the objective test

19 New Zealand’s pioneering Testator’s Family Maintenance Act was passed in 1900 and similar legislation followed in Victoria in 1906, New South Wales in 1908, Tasmania in 1912, Queensland in 1914, South Australia in 1918, Western Australia in 1920 and England in 1938: see Bosch v Perpetual Trustee Company, Limited [1938] AC 463, at 466.

20 The New South Wales legislation was re-enacted in the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (as amended). The Court was empowered to make adequate provision for the spouse and children of the deceased, whether he or she had died testate or wholly or partially intestate: s 3(1), (1A). Once the Court had found that a claimant had been left without adequate provision for his or her proper maintenance, education or advancement in life, the Court was required to “place itself in the position of the [deceased] and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father”: Bosch (supra) at 478-479; Coates (supra) at 509 per Dixon CJ.

21 In 1982, the Testator’s Family Maintenance and Guardianship of Infants Act was succeeded by the Family Provision Act (NSW). Similar legislation has been enacted in the other States and Territories. That legislation considerably broadens the category of persons who may apply to the Court for provision out of the estate of a deceased person. However, as is the case under the previous testator’s family maintenance legislation, once the Court has found that an “eligible person” has not received adequate provision, it must exercise its own judgment as to what is adequate in all of the circumstances: Singer v Berghouse (No 2) (1994) 181 CLR 201, at 209; Goodman v Windeyer (1980) 144 CLR 490, at 504-5 per Murphy J.

22 It will be seen that the discretion which the Court is to exercise in making provision for a claimant, under both the testator family maintenance legislation and the family provision legislation, is essentially guided by objective considerations: the deceased may have been, in fact, fond and foolish, but the Court in making adequate provision for a claimant, is not to act likewise. This point is of some significance when one comes to consider what considerations guide the Court in determining whether a proposed statutory will is “reasonably likely to be one that would have been made by the person if he or she had testamentary capacity”: s 22(b) Succession Act, as I will discuss later.

Difficulties arising from mental incapacity

23 While the family provision legislation, in most cases, affords a remedy to those with an unsatisfied claim on the bounty of a deceased person dying testate or intestate, there are some difficulties in succession law with which it cannot deal adequately and other cases with which it cannot deal at all.

24 In the former category, for example, is a case in which a person, having made a will, loses testamentary capacity and cannot make a later will or codicil in order to deal with changed circumstances, such as the death of a sole or major beneficiary. In such a case, if there is no one who can make a successful claim under the family provision legislation to absorb the lapsed bequest, there must be total or partial intestacy. If there is no one to take on intestacy – a surprisingly common occurrence – some, or even the whole, of the estate may go to the Crown as bona vacantia. Another such case is where a person having testamentary capacity loses it before making a will and a distribution on intestacy would produce a result which the person could never have intended.

25 For the sake of convenient reference I will call this category the “lost capacity cases”.

26 Another category is cases involving persons who have never had testamentary capacity, usually because of mental infirmity from an early age. In some of these cases, the incapacitated person is possessed of considerable property. Surprisingly often, there will be no “eligible person” who can make a claim under the family provision legislation on the death of such a person intestate because none of the incapacitated person’s family survives and he or she has never been able to form any relationship of a kind entitling a claim under the family provision legislation.

27 I will call this category of cases “the nil capacity cases”.

28 A third category is cases in which a person, though still a minor and therefore lacking testamentary capacity, was old enough to form relationships and to express reasonable wishes about property before losing testamentary capacity. A common example would be a person of seventeen years of age who suffers severe and permanent brain injury as a result of a motor vehicle accident and is subsequently awarded large damages. I will call this category of cases the “pre-empted capacity” cases.

29 These difficulties were recognised long before any statutory remedy was devised to alleviate them. Prior to the taking effect in 1926 of the Law of Property Act 1925 (UK), the Lord Chancellor alone and, from 1852 onwards, the Lords Justices of Appeal in Chancery, exercising the Lord Chancellor’s jurisdiction in lunacy, had used their prerogative in managing a lunatic’s affairs for his or her benefit to direct voluntary payments out of his or her income for the benefit of the lunatic’s children or for those who had other moral claims. The guiding principle was that it was “not [the court’s] business to deal benevolently or charitably with the property of the lunatic” but rather to “do for the lunatic what the lunatic would have done himself if of sound mind”: In re Darling (1888) 39 Ch D 208, at 211 per Cotton LJ; Re Hinde; ex parte Whitbread (1816) 2 Mer 99, at 102 per Lord Eldon (35 ER 878); In re Evans (1882) 21 Ch D 297, at 299 per Sir George Jessel MR.

30 The cases show that the Judges had regard, not to what a reasonable person in the situation of the lunatic would have done if of sound mind and aware of all the relevant circumstances, but rather to what the lunatic himself or herself would have done, having regard to what the evidence showed of his or her character and his or her past dealings with the claimant for provision: see esp. In re Evans (supra) at 301. In this, the policy of the law reflected both the absolute and idiosyncratic freedom of testamentary disposition to which Cockburn CJ had referred in Banks and, as well, the aversion to the notion that anyone but the testator could be entitled to make testamentary decisions, expressed in decisions such as in b. Smith (supra), Blair v Duncan (supra) and Lutheran Church of Australia (supra). According to this philosophy, it was not to the point that relatives of the lunatic would literally starve or else be a burden on the public purse, even though the needs of the lunatic were more than amply met out of a large fortune. As Jessel MR observed in Re Evans at 299 when refusing a claim brought by an eighty-one year old impoverished clergyman for a small allowance out of a large estate: “… everyone in this country has a right to necessary food and shelter out of the poor rates … There are voluntary associations for the relief of such persons, but we are not entrusted with the Sign Manual in order to enable us to apply the income of lunatics for the benefit of their poor relations”.

31 By clause XVIII of the Charter of Justice 1823 (promulgated pursuant to Geo IV c.96) the Supreme Court of New South Wales had, from its inception, the same jurisdiction over the affairs of mentally incapacitated persons as had the Lord Chancellor in England: RH v CAH [1984] 1 NSWLR 694.

32 Such was the mood of the times in the 19^th century. But, as I have noted above, the mood began to change at the beginning of the 20^th century, as witnessed by the reintroduction, in the form of family maintenance legislation, of qualifications to the absolute and idiosyncratic right of testamentary disposition. In 1925, a further inroad was made.

The antecedents of the statutory will

33 It is now opportune to examine the English cases on statutory wills in order to understand why Australian Courts should resist the temptation to be entangled by them.

34 By s 171(1) of the Law of Property Act 1925 (UK), which came into force in 1926, it was provided:

“(1) The Court may direct a settlement to be made of the property of a lunatic or defective, or any part thereof or any interest therein, on such trusts and subject to such powers and provisions as the Court may deem expedient, and in particular may give such directions …

(c) where by reason of any change in the law of intestacy or of any change in circumstances since the execution by the lunatic or defective of a testamentary disposition, or of any absence of information at the time of such execution, or on account of the former management of the property or the expenditure of money in improving or maintaining the same or for any other special reason the Court is satisfied that any person might suffer an injustice if the property were allowed to devolve as undisposed of on the death intestate of the lunatic or defective or under any testamentary disposition executed by him.

(3) This section applies whether or not the lunatic or defective has executed a testamentary disposition and notwithstanding that it is not known whether he has executed such a disposition or not, but does not apply when he is an infant.”

35 Section 171(1)(c) is the forerunner of the statutory will in that, although it empowers a settlement inter vivos, it is designed to alleviate the difficulties caused in a “lost capacity” case, i.e. where a material change in circumstances has occurred after testamentary capacity is lost.

36 The new powers conferred by s 171 were first considered by the English Court of Appeal in In re Freeman [1927] 1 Ch 479. It was a classic “lost capacity” case. Before losing testamentary capacity, the incapacitated person had made a will leaving all her property to her sisters. At the time of application, she was eighty-one years of age and her sisters had predeceased her. The applicants were her second cousins and the residuary legatees under her aunt’s will. The aunt had looked after the incapacitated person for many years. By a change in the law effected by the Administration of Estates Act 1925 (UK) the right of the applicants, as second cousins, to share in the estate of the incapacitated person on intestacy was defeated.

37 All members of the Court of Appeal thought that the case fell within s 171(1)(c). Lord Hanworth MR considered that the test of “injustice” connoted “unfairness”, ascertained in an objective sense: at 487. His Lordship then considered whether the applicants would suffer an injustice in that sense if, by reason of the change in the laws of intestacy, they would not share in the estate of the incapacitated person. One might have thought that the words of the sub-section – “where … the Court is satisfied that any person might suffer an injustice …” – and his Lordship’s interpretation of “injustice” as “unfairness” ascertained by objective standards, would have led to the conclusion that the question was: “What provision would a reasonable person, with sound capacity and with knowledge of all relevant circumstances at the time of the application, have done to avoid an unfairness in the distribution of his or her estate?”

38 However, Lord Hanworth applied the test under the old law governing the exercise of the Lord Chancellor’s jurisdiction in lunacy, as expressed in In re Darling: “… what is it likely the lunatic himself would do if sane?” (at 488) – seemingly, a search for subjective intention.

39 Applying that test, Lord Hanworth found that the incapacitated person, who had been on good terms with the applicants forty-five years ago, before she lost capacity, would have made further testamentary disposition in order to avoid her estate vesting as bona vacantia and she would have left her estate to the applicants.

40 Sargant LJ, on the other hand, did not apply the principle established in the old lunacy cases. His Lordship said at 489:

“The section is based on somewhat different considerations from those on which settlements of the property of lunatics have hitherto been effected under the general jurisdiction in lunacy. Such settlements have depended upon their being considered to be for the benefit of the lunatics themselves, though a large view has been taken as to what is for the benefit of the lunatic and full play has been given to family considerations, such as the establishment of the legitimacy of children or the maintenance of the position of a successor to a title: see Theobald's Law relating to Lunacy, ch XLV(1). Sect 171, on the other hand, authorizes settlements not for the purpose of benefiting the lunatic, but for the purpose of preventing injustice that might be suffered by others, if property were allowed to devolve as on a total or partial intestacy. Such a purpose can hardly be considered as being even indirectly for the benefit of a lunatic …”

41 In approving the proposed settlement, his Lordship had primary regard to the fact that the applicants’ family had assumed responsibility for the incapacitated person for some forty-five years. In those circumstances, the applicants had a “moral claim” on the estate of the incapacitated person, which would be defeated upon her death intestate: at 492. It is clear that his Lordship was applying an objective test: not what the incapacitated person herself would have done, if of sound mind, but what was necessary to avoid the defeat of a moral claim.

42 Lawrence LJ also approved the settlement under s 171(1)(c). His Lordship interpreted “injustice” as “unfairness”, i.e. unfair by objective standards. However, having regard to the relationship between the incapacitated person and the applicants’ family, his Lordship assumed that had the incapacitated person been of sound mind, she would “in all probability” have made a will in favour of the applicants rather than let her estate pass to the Crown. In other words, his Lordship, like the Master of the Rolls, relied upon an imputed intention of the incapacitated person: at 494.

43 A year after Re Freeman was decided, the Court of Appeal again considered the application of s 171(1)(c) in In re Greene [1928] Ch 528. While saying that he adhered to the views which he expressed in Re Freeman, Lord Hanworth seemed to shift his ground as to the test to be applied in approving a proposed settlement. At 546, his Lordship said:

“It is plain that the intention of the Legislature was to give power to the Court to act under s 171, where, in its discretion, it thinks it is wise or necessary to do so in the interest of those whose rights have been affected by the new law of intestacy.

Next it must be remembered that there is already, under s 117 of the Lunacy Act, 1890, power to deal with the property of a lunatic for the purposes therein defined, which include ‘payment of any debt or expenditure incurred for the lunatic's maintenance or otherwise for his benefit.’ Sect 171, therefore, must not be construed narrowly as giving powers to be exercised only in the interest of the lunatic, or as discharging his obligations; but also as including the interests of those for whom the intestate might reasonably have been expected to make provision, and those who might suffer an injustice in the sense given to those words in In re Freeman .”

44 It seems that in this passage his Lordship is propounding the test: for whom might the incapacitated person reasonably have been expected to make provision so that it would be “unfair”, in an objectively determined sense, if no provision were made under s 171(1)(c)? Having ascertained the persons for whom provision would be expected, what provision does the Court (not the patient) think “wise and necessary”?

45 Sargant LJ examined the facts of the case and, as he had done in Re Freeman, considered whether they would produce “injustice”, in the sense of unfairness. His Lordship did not endeavour to impute to the incapacitated persons any particular intention in order to do, under s 171, what they would have done if they had been of sound mind. His Lordship was clearly applying an objective, rather than a subjective, standard.

46 Lawrence LJ, in approving the proposed settlement, did not say that the Court was doing what the incapacitated persons would have done if they had been of sound mind. Rather, his Lordship said that it was “not unreasonable to suppose” that the settlements under which the incapacitated persons held their interests would have been drafted differently had it been known that the incapacitated persons would ultimately lose testamentary capacity: at 562. His Lordship, therefore, seems to be applying a test as to what is objectively reasonable in order to avoid the “unfairness” which results from the laws of intestacy taking effect without modifications in the circumstances then prevailing.

47 Thus far, the law as to making provision on behalf of those incapable of testamentary disposition seemed to be travelling in the direction that whether provision inter vivos should be made was to be determined by reference to what a reasonable person with capacity would do in all of the circumstances.

The law in the United Kingdom becomes unworkable

48 In 1959, s 171 of the Law of Property Act was replaced by s.102 and s.103 Mental Health Act 1959 (UK). Those sections relevantly provided:

“102(1) The judge may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear necessary or expedient –

(a) for the maintenance or other benefit of the patient,

(b) for the maintenance or other benefit of members of the patient's family,

(c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered, or

(d) otherwise for administering the patient's affairs.

102(2) In the exercise of the powers conferred by this section regard shall be had first of all to the requirements of the patient, and the rules of law which restricted the enforcement by a creditor of rights against property under the control of the judge in lunacy shall apply to property under the control of the judge; but subject to the foregoing provisions of this subsection the judge shall, in administering a patient's affairs, have regard to the interests of creditors and also to the desirability of making provision for obligations of the patient notwithstanding that they may not be legally enforceable.

103(1) Without prejudice to the generality of the foregoing section, the judge shall have power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section, and in particular may for those purposes make orders or give directions or authorities for –
…
(d) the settlement of any property of the patient, or the gift of any property of the patient to any such persons or for any such purposes as are mentioned in paragraphs (b) and (c) of subsection (1) of the foregoing section.”

49 The new provisions of the Mental Health Act were considered by Cross J in In re L (WJG) [1966] 1 Ch 135. The applicants sought an order directing a settlement of the patient’s property on his nephews and nieces and their families. Those persons, being collateral relatives, did not qualify as “ members of the patient’s family”, for the purposes of s 102(1)(b), as his Lordship held at 140, consistently with his conclusion to the same effect in In re DML [1965] 1 Ch 1133 at 1137. Accordingly, the first question which his Lordship had to determine: were the applicants “persons for whom the patient, if of sound mind and properly advised, might reasonably be expected to provide”, and therefore within s 102(1)(c). The question, it should be noted, is concerned only with identifying who is entitled to benefit from a settlement under the section, not what such persons should receive under the settlement.

50 The patient was sixty-eight years of age. He became mentally incapacitated at the age of seventeen years and had been looked after by his mother and the family chauffeur. Since his mother’s death in 1941 he had lived in a mental hospital. His only visitors in the last twenty-four years had been his sister and the family chauffeur, who visited every week. He had inherited a considerable fortune, which produced an income far in excess of his needs. The patient had never been in a position to make a will and would inevitably die intestate.

51 Cross J considered whether, given that the Act required him to make the counter-factual assumption that the patient was not mentally disordered, there were any further assumptions necessarily inherent in that assumption which had to be made. His Lordship held, in effect, that there were no such further assumptions and that the patient had to be taken as he was, although assumed to be sane.

52 At 144-145 his Lordship said:

“It seems to me, therefore, that I must assume that the patient becomes a sane man for a sufficient time to review the situation but knows that after a brief interval of sanity he will once more be as he was before. On that footing he would see himself a bachelor of 68 who will never marry or have a family. He would realise that he was the owner of some £130,000 derived mostly from his relatives but partly from accumulations of income. He would know that he will never have any friends – other than [the chauffeur] and [the sister] – or any interests. He would know that on his death, if he makes no settlement, half his property will be absorbed in death duties. He would know that he will never make a will and that half the balance of the fortune, or, if his sister predeceased him, the whole of it, will pass to his nephews and niece or their families. Although he does not know them and knows that he never will know them, he would know their financial circumstances and, in particular, the special needs of Antony G. He would know that his sister, whom he knows and for whom I may fairly assume he has some affection, wants none of his property but is anxious that he should make a settlement on his other relatives and also make some provision for [the chauffeur], whom he knows and to whom he is grateful. Finally, he would know that in all probability he will be maintained by the state for the rest of his life and that not more than £200 or so of his income a year will ever be spent on him and that all the balance will be accumulated.

Making these very curious assumptions I have no doubt that the patient would execute an irrevocable settlement of a substantial part of his property; …”

53 As his Lordship observed, the assumptions of fact which he was required to make in ascertaining what the patient would actually have done if sane were, to use his Lordship’s words, “very curious”. They might, indeed, be described as highly artificial.

54 It is difficult to distinguish the process of making such artificial assumptions from merely making a determination on the basis of what a reasonable person with full capacity would do in the relevant circumstances of the case – that is, an objective assessment by the Court.

55 The artificiality of enquiring what the patient, if sane, would actually have done was not lost upon Fox J in In re Davey [1981] 1 WLR 164. Section 103(1) of the Mental Health Act had been amended in 1969 to include in a new sub-paragraph (dd) a power to give directions, for the purposes of s 102, for the execution of a will on behalf of the patient making any provision which the patient could (not would) have made if he were not mentally disordered. The applicants sought an order for the execution of a statutory will under the new provisions.

56 The patient was an unmarried lady of considerable property. At the age of ninety-two, when she still had testamentary capacity, she made a will in favour of various relatives. Shortly afterwards, her condition deteriorated and ultimately her estate was placed under the control of the Court of Protection. It was then discovered that, not long after she had made her will, she had been taken to a Registry Office by a man employed in the nursing home in which she resided and she had gone through a ceremony of marriage with him. Her acquaintance with him was as her carer in the nursing home and was very brief. He was forty-four years her junior. The effect of the marriage was to revoke the patient’s will in favour of her relatives.

57 At the time of the application, the patient was about to die intestate and her husband of a matter of months would succeed on intestacy to a half-share in her estate. The relatives, who were beneficiaries under the revoked will, applied successfully for an order under s 103(1) directing execution of a new will in the same terms as the revoked will.

58 At 171, Fox J said:

“I do not think that, in substance, there is any material difference in the present case between the factors which the Court of Protection would have been required to consider if the question of what was a proper testamentary disposition for the patient had been fully argued before it and those which the High Court would have to consider on an application under the Inheritance Act. I can see that there may be some difference of emphasis; in an application under the Inheritance Act, Mr Davey as applicant has to establish that the will does not make reasonable financial provision for him. But in the Court of Protection, the essential question in the end would have been what if anything would be reasonable provision in all the circumstances for the various contestants .” [Emphasis added]

59 In In re D (J) [1982] 1 Ch 237, Sir Robert Megarry V-C rejected the objective test approach of Fox J in Re Davey and took the artificiality of the assumptions enunciated by Cross J in In re L (WJG) several stages further.

60 It is first necessary to recount briefly the facts of the case before Megarry V-C because, with very great respect, it seems to me that, in applying the reasoning in In re L (WJG) to the case before him, his Lordship misapplied the provisions of the legislation.

61 The application in In re D (J) was for the authorisation of a statutory will. At the time of the application, the patient was eighty-two years of age. She had five children, all still living. Twenty years earlier, while still of testamentary capacity, she had made a will leaving her house to one of her daughters, “A”, and the residue of her estate to all five children equally. “A” had taken the major responsibility for looking after the patient. Some years after the will was executed, the patient sold the house, so that the specific devise to “A” was adeemed. “A” continued to assume the major role in caring for the patient, especially after she developed dementia and, accordingly, lost testamentary capacity.

62 As matters stood at the time of the application, when the patient died “A” would take only a fifth share of the whole estate. All children agreed that she should receive a larger share and should be compensated for the ademption of the devise in the still-extant will. The application, made by “A” and another daughter of the patient, therefore proposed a codicil giving “A” a specific legacy. The only dispute was as to the amount.

63 Because the proposed codicil was in favour of a daughter of the patient, it was for the benefit of a “member of the family” of the patient and therefore the application was within s 102(1)(b) of the Mental Health Act: see In re DML (supra). Reading together the relevant provisions of s 102(1)(b) and s 103(1)(dd), the Judge was empowered to:

“… do all such things as appear necessary or expedient for the benefit of members of the patient’s family and for that purpose [the Judge] may make such orders as he thinks and, in particular, may make orders for the execution for the patient of a will making any provision which could be made by a will executed by the patient if he were not mentally disordered”.

64 The power given in an application under s 102(1)(b) for a statutory will is not to do what the patient would have done if sane but, rather, to do whatever appears necessary or expedient to the Judge for the benefit of a family member. There is no enquiry required as to what provision the patient himself or herself might be expected to make. There is no requirement that the proposed will contain a testamentary disposition that would be made by the patient; all that is required is that the provision could be made. In other words, the statutory will cannot make a disposition of a kind which could not be effective in law if made by an ordinary will.

65 The words of s 102(1)(b) and s 103(1) strongly suggest that in an application under those provisions the approach is not that of the old lunacy cases – what would the patient have done himself, if sane – but, rather, what in all the circumstances is reasonably necessary or expedient for the benefit of the family member.

66 Curiously, Megarry V-C did not refer to the fact that the application before him was for the benefit of a family member of the patient and therefore fell to be dealt with under s 102(1)(b). His Lordship based his reasoning entirely upon the judgment of Cross J in In re L (WJG), although Cross J had made expressly clear at 140F-G that the application before him was made under s 102(1)(c), not s 102(1)(b), and it was for that reason alone that the applicants had to satisfy him that the beneficiaries of the proposed statutory will were persons for whom the patient, if sane, might reasonably be expected to provide.

67 At 243-244 of his judgment, Megarry V-C set out five propositions of general application in all statutory will cases. His Lordship said that those propositions emerged from the judgment of Cross J in In re L (WJG). I shall take each one in turn.

68 The first proposition was that it is to be assumed that the patient is having a brief lucid interval at the time when the will is made.

69 This proposition was advanced by Cross J in In re L (WJG) because s 102(1)(c) in terms required identification of beneficiaries or objects of the proposed settlement by reference to whom or what the patient might be expected to benefit if of sound mind. The proposition had no application to the case before Megarry V-C because s 102(1)(b), relating to members of the patient’s close family, required no such identification test.

70 The second proposition was that it is 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 relapse into the actual mental state that previously existed, with the prognosis as it actually is.

71 This proposition, like the first, was expressly stated by Cross J in In re L (WJG) to relate to an application under s 102(1)(c). It was not relevant to the case before Megarry V-C.

72 The third proposition and its supportive reasoning should be set out in full:

“The third proposition is that it is the actual patient who has to be considered and not a hypothetical patient. One is not concerned with the patient on the Clapham omnibus. I say that because the will is being 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. In In re Davey [1981] 1 WLR 164, 171, Fox J. is reported as saying, in relation to a will made by the Court of Protection, that the essential question was ‘what if anything would be reasonable provision in all the circumstances for the various contestants’, and it could be said that this indicates an objective approach made with the wisdom of the court rather than the approach likely to be made by the patient if restored to full testamentary capacity. I very much doubt if the judge meant to indicate this, and in any case I do not think it is right. The whole approach of Cross J in In re L: (WJG) was that of considering the particular patient, momentarily restored to full mental capacity, as being the settlor. Further, in section 102(1)(c), the question is one of making provision for persons or purposes ‘for whom or which the patient might be expected to provide if he were not mentally disordered …’; and I think that this provision governs the making of a will for the patient, and contemplates the particular patient: and see In re CMG. [1970] Ch 574, 575. 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. But subject to all due allowances, I think that the court must 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.”

73 A number of points should be made. First, his Lordship appears to believe, erroneously, that the application before him is one under s 102(1)(c).

74 Second, his Lordship believes that even in an application under s 102(1)(c) the task of the Court is to put itself in the position of the patient, if sane, and “make the will which the actual patient, acting reasonably, would have made … the Court is to do for the patient what the patient would fairly do for himself, if he could”. In short, his Lordship is applying the test for the exercise of the prerogative discretion as to settlements inter vivos under the old lunacy cases.

75 I am not able to understand how such a conclusion follows from the words of s 102(1) and s 103(1)(c). Reading the relevant words of those two sections together, they provide:

“The Judge may, with respect to the property and affairs of a patient, do all such things as appear necessary or expedient for making provision for the persons, not being members of the family, or for purposes, for whom or for which the patient might be expected to provide, if not mentally disordered, and the Judge shall, for that purpose, have power to make such orders as he thinks fit for the execution of a will making any provision which could have been made by a will executed by the patient.”

76 These words do not require the Judge to put himself or herself into the shoes of the actual patient, with all his or her idiosyncrasies, and to make the will which he or she would have made if sane. The words require the Judge first to identify those persons, not being family members, or those purposes, for which the patient, if sane, might be expected to provide – a question of fact ascertained by the particular circumstances of the patient and by reference also to any wishes which he or she might have expressed when of sound mind. Having ascertained those persons or purposes, the Judge is then to make such provision for them as may “appear necessary or expedient”. Appear to whom? Clearly, to the Judge, not to the patient.

77 In determining what dispositions “appear necessary or expedient” the Judge can only apply an objective approach, as Fox J suggested in In re Davey, consistently with the same contemporary concepts of fairness, justice and moral obligation as inform the family provision legislation.

78 So interpreted, the provisions of s 102(1) and s 103(1) establish a sensible, pragmatic and easily understandable means of dealing with the property of an incapacitated person. Interpreted in the way in which Megarry V-C did, the provisions become much more difficult to apply. Courts were required to perform what one High Court Judge later described as “mental gymnastics”: Re P [2009] EWHC 163 (Ch), at [38] per Lewison J.

79 The third point to notice is that Megarry V-C himself recognises the inherent difficulty of returning to the principle applied in the old lunacy cases and doing what the patient would have done for himself or herself. What if the Judge were convinced that the patient, though being restored to testamentary capacity, would have made a testamentary disposition which was quite foolish or irresponsible – for example, he would have given all of his estate to a ‘gold digging’ lover, at the expense of his wife and children. Should the Judge do likewise?

80 Megarry V-C thought not – thus his qualification that the Court should not give effect to the “antipathies or affections of the patient which are beyond reason”. But where does this over-riding qualification find expression in the statutory provisions? If it is to be found in the opening words of s 102(1), which vest in the Judge the power to do what appears to him or her necessary or expedient, then one is driven back to the position that it is not the patient’s supposed subjective intention which governs the exercise of power but, rather, the Judge’s discretion, exercised upon the basis of what is seen, objectively, to be reasonable.

81 The fourth proposition advanced by Megarry V-C was that during the hypothetical lucid interval, the patient is to be envisaged as being advised by competent solicitors.

82 This proposition requires an assumption – in many cases counter-factual – that the patient not only would have had competent legal advice but would have acted in accordance with it. Experience shows that people with sound testamentary capacity not infrequently disregard legal advice as to the reasonable disposition of their estate.

83 The fourth proposition therefore seems directed to ensuring that the result of the statutory will authorised by the Judge is fair and reasonable, judged by objective standards, because those are the standards which a competent solicitor would be assumed to recommend the patient to observe. This proposition dictates reliance upon an obvious fiction in order to produce a result said to represent the supposed actual intention of the patient.

84 The fifth proposition advanced by his Lordship is that, in all normal cases, the patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant’s pen.

85 That approach would doubtless be taken by a Judge exercising discretion in accordance with the opening words of s 102(1), but why should such an approach be attributed to the actual subjective intention of the patient? Again, the proposition seems to be advanced in order to produce a result that is objectively reasonable in all of the circumstances.

86 The approach of Cross J in In re L (WJG), as developed by Megarry V-C in In re D (J), to the application of s 102 and s 103 both as to settlement inter vivos and as to statutory will cases, came to be know as the “substituted judgment” approach: Re P (supra) at [15].

The high water mark of artificiality

87 There are very few reported decisions of the English Courts on applications for statutory wills, whether before or after the decisions in In re L (WJG) and In re D (J). Doubtless, this was because such applications were determined by Deputy Registrars, and subsequently Assistant Masters, of the High Court who obediently applied In re L (WJG) and In re D (J) as best they could.

88 In 1983, the Mental Health Act 1959 was relaced by the Mental Health Act 1983 (UK). Sections 95 and 96 of that Act were in very similar terms to s 102(1) and s 103(1) of the 1959 Act.

89 In In re C (a patient) [1991] 3 All ER 866, Hoffmann J had to deal with an application for authorisation of a statutory will under the new Act. The patient, now seventy-five years of age, had been severely mentally handicapped since birth. She had never had, and never would have, testamentary capacity. She had lived in a mental hospital since the age of ten years. Few, if any, of her extensive family even knew of her existence. The only person to have taken any interest in her, apart from the staff of the hospital, was a lady from a charitable organisation which befriended mental patients. By the time of the application to the Court, the patient had inherited a substantial fortune. It was obvious that she would die intestate.

90 An application for a statutory will for the patient was made under the new Act by the Public Trustee, who was the receiver of the patient’s protected estate. The proposed will provided small legacies to the lady who had befriended the patient and to two relatives of the half-blood, who had assisted the Public Trustee in the application. The will then provided substantial legacies to charitable institutions concerned with the care of the mentally incapacitated, and the residue was given to the patient’s next of kin on intestacy.

91 Hoffmann J identified the application as one brought under s 95(1)(c), the equivalent of s 102(1)(c) of the 1959 Act, because the proposed beneficiaries were not members of the patient’s family. Hoffmann J adopted the propositions of Megarry V-C in In re D (J), in particular that “the Court must seek to make the will which the actual patient, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight”: at 869.

92 His Lordship observed that in the case before him the patient had never had, since birth, any mental capacity, memory or foresight: “In all relevant respects, the record of her individual preferences and personality is a blank on which nothing has been written. Accordingly, there is no material on which to construct a subjective assessment of what the patient would have wanted to do”: at 870(a).

93 His Lordship continued at 870(c)-(d):

“I recognise the difficulty in forming a view of what might have been expected from a person who has never enjoyed a rational mind. But I think that in those circumstances the court must assume that she would have been a normal decent person, acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any person and in this case there is nothing to displace such an assumption.”

94 His Lordship then considered the circumstances in which the patient had been cared for throughout her life. He went on:

“She would therefore in my view have felt moral obligations to show recognition to the community and to her family. Once one has arrived at the conclusion that the disposition of her property would have been guided by these principles, I do not think it is necessary for the court to be satisfied that the patient would definitely have chosen one particular way of giving effect to them rather than another. A distribution which can be rationally justified as a way of giving effect to these principles would in my view be a provision which the patient ‘might be expected to provide’, even though a somewhat different distribution could also be so described. The court cannot of course indulge is own whims in these matters. The gifts and will it makes for the patient must be capable of being explained as something which the patient ‘might be expected to provide’. But I observe that the statute, recognising the difficulty of arriving at any certainty in these mattes, says ‘might’ rather than ‘would be expected to provide’. In matter of detail, there must be a range of choices which would be equally valid.”

217 There are no contentious or complicating factors in the application which raise any doubt that it is appropriate to make the final order sought.

218 The circumstances supporting John’s application for leave will not change in the foreseeable future so that it is appropriate to grant leave to make this application and to proceed immediately to make the final order under s 18 approving the proposed codicil.

Orders in proceedings 119046/08

219 The orders of the Court are as follows:

(1) Grant leave to the Plaintiff to make application, on behalf of Robert James Fenwick, for an order authorising a codicil to the will dated 9 July 1989 of Robert James Fenwick in the terms set out in Schedule A to the Summons.

(2) Order that the application proceed forthwith as an application for an order under s 18 of the Succession Act 2006 (NSW).

(3) Approve the terms of the codicil as set out in Schedule A to the Summons.

(4) Authorise the Registrar, pursuant to s 23(1) of the Succession Act , to sign and seal with the seal of the Court the said codicil.

(5) Order that the costs of these proceedings be paid out of the estate of Robert James Fenwick on the solicitor/client basis.

Re ‘Charles’ (proceedings 5958 of 2008)

220 Because these proceedings concern a minor, pseudonyms are used to protect the identity of the parties.

221 Charles was born in July 1997. The Defendants are his parents.

222 In November 1997, Charles, then aged four months, was admitted to hospital with severe head injuries. He was in a critical condition and was placed on life support. The treating physicians were of the opinion that the injuries were deliberately inflicted and were consistent with “Shaken Baby Syndrome”. The parents did not provide any explanation to the Police as to how Charles came to be injured. They have, however, consistently denied that they injured him.

223 In 1998 the Children’s Court ordered that Charles be removed from the parents’ care. In June 1998, all aspects of Charles’ parental care were allocated to the Minister for Community Services pursuant to a care order made under the then s 72 of the Children (Care and Protection) Act 1987 (NSW).

224 In November 2000, the Victim Compensation Tribunal awarded Charles a substantial sum as compensation in respect of the injuries which he had suffered. The money is held on trust for him by the Public Trustee until he reaches the age of eighteen years. However, Charles’ life expectancy is diminished because of his immobility and the increasing risk of lower respiratory infections.

225 The medical evidence shows that Charles has been diagnosed with microcephaly, severe developmental delay, spastic diplegia, epilepsy, tracheostomy, gastrostomy and scoliosis. He is legally blind. His intellectual disability is severe. He is virtually non-verbal. His disabilities are permanent. It is clear that Charles will never have testamentary capacity.

226 Charles has been in foster care since December 1999. His present carer has had full time care of Charles since June 2000, when her mother, Charles’ previous carer, became ill.

227 The Minister now seeks an order granting leave under s 19(1) to make an application and, at the same time, seeks a final order under s 18 for a statutory will for Charles.

228 If Charles were to die intestate, his estate would go to his parents in equal shares under s 61B(5) Probate and Administration Act 1898 (NSW). The Minister believes that the parents should not benefit from Charles’ intestacy and that Charles’ whole estate should go to his sister, who is some two years older than Charles. If she predeceases Charles, the Minister proposes that the estate be divided equally between two charities which care for disabled children such as Charles, namely the Sydney Children’s Hospital Foundation and the Spastic Centre.

229 The parents have never been charged with causing Charles’ injuries. However, the surrounding circumstances undeniably raise a suspicion against them.

230 Prior to his admission to hospital, Charles had been brought to his local general practitioner on three occasions, each time presenting with unexplained bruising to the face, forehead and upper arm. The general practitioner had noted that the mother was stressed by the baby’s feeding difficulties. A notification to DOCS had been given.

231 A short time after Charles’ emergency admission to the New Children’s Hospital, Westmead, the Consultant Paediatrician and Staff Specialist in the Child Protection Unit of the hospital expressed the view that Charles:

“… sustained the head injury some 24 to 36 hours before his presentation to hospital when he was in the care of one or both of his parents. I am also of the opinion that his parents recognised that he was having seizures and excessively delayed his presentation to hospital which has compounded his brain injury.”

232 The parents’ behaviour when Charles was brought to hospital was noted as guarded and unemotional.

233 An assessment of the parents by a senior clinical psychologist, made with the consent of the parents in early 1998, reported that:

“… they tightly controlled the kind of information I had access to, and some concerns about the completeness and reliability of what they told me remain. … it is possible that much of what I have been told [by the parents] is strongly biased.”

234 Later the psychologist noted that the results of tests completed by the parents at home suggest “a deliberate attempt on the part of [both of them] to create a markedly and unrealistically positive impression of themselves”.

235 The psychologist observed:

“Perhaps the most worrying aspect of my assessment with the family is the lack of any good account of how [Charles] obtained his injuries. It would seem that the family are not prepared to accept the account as given by the Department, but also, either for legal reasons, or for psychological reasons, are unable to explain the injuries. Indeed, the extent and time span of the injuries was not raised by them at all. When the time span of the injuries was specifically raised with them, the family simply could not respond to them (nor would it appear they were prepared to believe the evidence).”

236 The Crown Solicitor wrote to the parents before commencing these proceedings, advising that this application would be made, setting out the terms of the proposed statutory will, noting that they were entitled to be represented at the hearing, and suggesting that they obtain legal advice. The parents responded in a jointly signed letter, saying that they have no objection to the proposed statutory will and do not wish “at this time” to be represented at the hearing.

237 On the filing of the Summons, the Crown Solicitor served on the parents the Summons and all affidavits and exhibits upon which this application is founded. The Crown Solicitor’s letter advised of the return date and reiterated that the parents were entitled to be represented.

238 The parents responded in a jointly signed letter stating that:

– they do not “agree with where these funds [i.e. the compensation award] came from and why they were awarded to [Charles] as we have always maintained our innocence” ;

– they have no objection to the proposed statutory will;

– they do not wish to be represented during the proceedings and request that the Crown Solicitor inform the Court accordingly

239 The Crown Solicitor again wrote to the parents notifying them of the date upon which this application had been fixed for hearing and providing contact details if the parents had any queries.

240 When the application came on for hearing before me, the parents were called but there was no appearance. I am satisfied that the parents have been given full and proper notice of this application and of the evidence to be relied upon in support of it. I am satisfied that they have no objection to the proposed statutory will and that they do not wish to be heard. I proceed on that basis.

241 All of the information required by s 19(2) has been provided or its absence explained.

242 I turn now to the mandated requirements of s 22.

243 As I have recounted, I am satisfied that Charles has never had, and never will have, testamentary capacity.

244 This is a nil capacity case. The Crown Solicitor has, following In re C and the Australian cases which have adopted it, adduced evidence in an attempt to show what Charles’ likely intentions would have been if he had grown up to be “a normal decent person acting accordance with contemporaneous standards of morality”.

245 For the reasons which I have discussed in paragraphs [174] to [176], I decline to perpetuate this fictitious test. I decline to pretend that an eleven year old child whose testamentary intentions are, and will always remain, a complete blank is a normal adult of at least eighteen years of age who has some concept of community standards of decency and fairness and that I am divining what his testamentary intentions are likely to be. For the reasons I have given, I prefer to adopt the entirely objective approach to the questions posed by s 22(b).

246 Charles’ estate now has significant assets. If he lives for some time, the assets will probably grow by the addition of interest. If he dies intestate, the estate will go to the parents. For the reasons discussed in paragraphs [174] and [176] above, I pose the question: is there a fairly good chance that a reasonable person, faced with Charles’ circumstances, would choose to die intestate, leaving his assets to Charles’ parents?

247 As I have noted, the parents have not been convicted of causing Charles’ injuries. In the criminal law, they are presumed innocent. But testators do not make their decisions as if they were jurors in a criminal trial; they decide according to the standards by which we are all accustomed to make decisions in ordinary, everyday life. This is the standard by which the Court is to decide what is “reasonably likely” for the purposes of s 22(b) in a case such as this.

248 The evidence to which I have referred raises a suspicion that the parents caused Charles’ injuries. Further, they have been provided by the Crown Solicitor with the evidence to which I have referred in this judgment. They have chosen not to appear, even if only to reject the clear inference of guilt upon which the Minister’s application is founded.

249 On the other hand, I note that the evidence tendered by the Minister very properly includes material which shows that the parents have for some time visited Charles regularly, every two months or so. During the visits, they are highly attentive to Charles and demonstrate loving affection. I do not wish to suggest that the picture of the parents presented by the evidence as a whole is one of cruelty and neglect. How Charles suffered his injuries will probably remain a mystery. The parents may have chosen not to oppose the Minister’s application for a statutory will and not to appear because it would have been too painful for them to relive the tragedy.

250 I do not need to found my decision on whether it is reasonably likely that the parents, in fact, caused Charles’ injuries. All I need to decide – and do decide – consistently with the meaning of “reasonably likely” as discussed in paragraph [152], is that there is a fairly good chance that a reasonable person, faced with such evidence as there is as to the cause of Charles’ injuries, would decide not to permit Charles’ estate to pass to the parents on intestacy.

251 The next question is: is there a fairly good chance that a reasonable person, faced with Charles’ circumstances, would make a will in favour of Charles’ sister, with gifts over to the charities?

252 The closest person to Charles, apart from his parents, is his sister. His sister, who lives with the parents, visits him regularly, about every two months and it appears that he enjoys these visits. Charles has no family member beside his parents and his sister who could have a claim on his testamentary bounty.

253 There is a carer who has devoted herself full time to looking after Charles for ten years. As the evidence shows, Charles’ needs are extremely high. If anyone has a claim on Charles’ testamentary bounty, it is she. A reasonable person would unquestionably recognise that claim.

254 However, the carer has expressly disavowed any wish to share in Charles’ estate. I suspect that she does so because she wants to make it clear that her devotion to Charles has nothing to do with the expectation of financial reward. She is to be admired for her generosity and devotion. But for her express disavowal, I would have required some provision to be made for her in Charles’ statutory will.

255 As matters stand, however, I am satisfied that not only is it reasonably likely but it is highly probable that a reasonable person faced with Charles’ circumstances would give the whole of the estate to Charles’ sister.

256 If Charles’ sister predeceases him, there is no suggestion that any other person who might take on intestacy, if his parents are excluded, has any claim on Charles’ estate which could outweigh those of the two charities. They are both committed to caring for children suffering from the disabilities which Charles has. Both have been actively involved in Charles’ care. I conclude that there is a fairly good chance that a reasonable person, faced with Charles’ circumstances, would choose to provide in his will for a gift over to those charities.

257 There is no doubt that the Minister is an appropriate person to make this application.

258 There is no opposition to the statutory will proposed for Charles. There is no person other than the sister, the parents and the carer who could possibly make a family provision claim on Charles’ estate. In any event, it would be premature to take such a putative claim into consideration in a case such as this, for the reasons discussed in paragraph [199]. I am satisfied that it is appropriate for an order under s 18 to be made.

259 I am satisfied that all persons with a legitimate interest in the application, as described in s 22(e), have been given the opportunity to appear and be heard.

260 The circumstances supporting the Minister’s application for leave will not change in the foreseeable future so that it is appropriate to grant leave to make the application and to proceed immediately to make the final order under s 18 approving the proposed statutory will.

Orders in proceedings 5958/08

261 (1) Grant leave to the Plaintiff to make application on behalf of Charles for an order authorising a will to be made for Charles in the terms set out in Annexure A to the Summons.

(2) Order that the application proceed forthwith as an application for an order under s 18 of the Succession Act .

(3) Approve the terms of the will set out in Annexure A to the Summons.

(4) Authorise the Registrar, pursuant to s 23(1) of the Succession Act , to sign and seal with the seal of the Court the said will.

(5) Order that the costs of these proceedings be paid out of the estate of Charles on the solicitor/client basis.

Observations on practice and procedure

262 The applications in Re Fenwick and Re Charles have been straightforward and unopposed. The evidence has been so clear and convincing as to all matter upon which the Court must be satisfied under s 19 and s 22 of the Succession Act that there was no need for the Court to see and hear any witness. Counsel for the applicants provided precise and well directed written submissions. There are likely to be many such applications in the future and it is desirable that they should be dealt with by the Court as expeditiously as possible and with as little expense to the parties as possible.

263 There is no need for straightforward, unopposed cases such as Re Fenwick and Re Charles to be heard in open Court and for Counsel to appear to make submissions. Such applications can be dealt with on the papers by a Judge in Chambers, pursuant to s 71(d) or s 71(f) Civil Procedure Act. Many applications for orders under the Protected Estates Act 1983 (NSW) and the Adoption Act 2000 (NSW) are dealt with in this way.

264 If an application is, or may be, opposed it should be listed and heard in open Court in the usual way. Likewise, if a Judge dealing with the matter in Chambers has reservations about the quality of the evidence adduced, the matter can be listed in Court so that the Judge can see and hear the witnesses whose affidavit evidence is unsatisfactory. However, if the Judge merely has a query about a particular aspect of the information provided, the query may be addressed by a requisition from the Registrar.

265 As with decisions made in Chambers in uncontested applications under the Protected Estates Act and the Adoption Act, there is no need for publication of reasons for a decision made in Chambers in straightforward, unopposed applications for a statutory will. Many of such applications will involve minors or mental health issues or matters of concern only to the immediate family members. There is no public interest in publishing reasons for judgment in such cases. Further, the dispensation of the requirement to give reasons in such applications will permit them to be dealt with far more quickly than otherwise. Of course, when an application is contested and heard in open Court, reasons for the decision will be required in the normal way.

266 When enough statutory will cases have come before the Court to provide a useful basis for evaluation of the procedure, a Practice Note will be published for the guidance of the profession.

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