Re: in the Matter Of J, LC - [2014] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
Re: IN THE MATTER OF J, LC
[2014] SASC 20
Judgment of The Honourable Justice Gray
24 February 2014
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - MINORS
This is an application brought on behalf of a minor, LCJ, for an order under section 6 of the Wills Act 1936 (SA) authorising LCJ to make a will in specific terms approved by the Court. LCJ’s mother died in 1999, shortly before LCJ’s second birthday. Since that time, LCJ has lived with her maternal grandparents, who were appointed as her guardians. LCJ’s father lived with her for the first year following the death of her mother, but since moved out and has had only irregular contact with LCJ. By the proposed will, LCJ wishes to appoint her maternal grandparents as her executors and trustees. The proposed will provides for a bequest of $20,000.00 in favour of LCJ’s father. The residuary estate is to be given to LCJ’s maternal grandparents and if they predeceased her, to her aunts and uncle.
Whether LCJ understands the nature and effect of the proposed will. Whether the proposed will accurately reflects LCJ’s intentions. Whether it is reasonable in the circumstances that the order should be made.
Held (allowing the application):
(1)     LCJ in an intelligent young woman who demonstrated an understanding of the application and of the terms of the proposed will (at [6]).
(2)     It is reasonable in all the circumstances that an order should be made authorising LCJ to make a will in the terms of the proposed will (at [9]).
(3)     LCJ’s father should be notified that LCJ has been authorised to make a will by the Court and has done so (at [12]).
Wills Act 1936 (SA) s 6; Probate Rules 2004 (SA) r 97.03 and r 97.04, referred to.

RE: IN THE MATTER OF J, LC
[2014] SASC 20
Testamentary Causes Jurisdiction
GRAY J.

This is an application brought on behalf of a minor, LCJ, by her next friend, Raymond Gordon Frost, a practitioner of the Court.
LCJ was born on 29 June 1997 and is now aged 16 years. On 26 November 2002, the District Court of South Australia made an award of damages in favour of LCJ. The Public Trustee was appointed to hold that award in trust for LCJ. At the time of the making of the application, the balance of the funds held on trust had a value of more than $630,000.00, comprised of a house property in suburban Adelaide and common fund investments. LCJ wishes to make a will and seeks the approval of the Court to do so.
Affidavits of LCJ and Mr Frost were provided in support of the application. On the hearing of the application, LCJ attended and provided information from the bar table. In recording the facts that appear later in these reasons, I have drawn from the contents of those affidavits and that information.
The powers of the Court to authorise a minor to make or alter a will are found in section 6 of the Wills Act 1936 (SA), which provides:
(1)The Court may, on application by a minor, make an order authorising the minor to make or alter a will in specific terms approved by the Court, or to revoke a will.
(2)An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3)     Before making an order under this section, the Court must be satisfied that—
(a)     the minor understands the nature and effect of the proposed will, alteration or revocation; and
(b)     the proposed will, alteration or revocation accurately reflects the intentions         of the minor; and
(c)     it is reasonable in all the circumstances that the order should be made.
(4)A will or instrument altering or revoking a will made pursuant to an order under this section—
(a)     must be executed as required by law and one of the attesting witnesses must be the Registrar or the Public Trustee; and
(b) must be deposited for safe custody with the Registrar under section 13 of the Administration and Probate Act 1919.
(5)The will may not be withdrawn from deposit with the Registrar by the minor unless the Court has made an order authorising the minor to revoke the will or the minor has attained the age of 18 years or is married.
Before making an order under this section, I must be satisfied that LCJ understands the nature and effect of the proposed will and that the proposed will accurately reflects her intentions. I must also be satisfied that it is reasonable in the circumstances that the order should be made.
On 20 June 1999, shortly before LCJ’s second birthday, her mother died as a result of injuries sustained while a passenger in a motor vehicle accident. Since that time, LCJ has lived with her maternal grandparents. At the time of her death, the mother of LCJ had been separated from LCJ’s father for about one year. At that time, LCJ’s father was aged about 22 years. LCJ’s father lived with LCJ and her maternal grandparents for about one year but due to difficulties that arose, the maternal grandparents obtained an order from the Family Court that they be appointed as guardians of LCJ. This application was not ultimately opposed by LCJ’s father. LCJ’s father subsequently moved out of the maternal grandparents’ home. LCJ’s father continued to have contact with LCJ until she was aged about three and a half years and thereafter for about ten months he made no contact with her at all. Since that time, LCJ has had some contact with her father but this has been irregular. It appears that LCJ’s father has failed to make payments for LCJ’s maintenance from time to time. In early 2013, LCJ had a disagreement with her father over allegations he made concerning her maternal grandparents misusing her damages award.
LCJ is an intelligent young woman who is currently attending high school. On the hearing of the application, she discussed the application, the proposed will and her wishes for leaving her estate as proposed. She demonstrated an understanding of the application and the terms of the proposed will. I am satisfied of the matters referred to in subsections 6(3)(a) and (b) of the Wills Act.
By the proposed will, LCJ wishes to appoint her maternal grandparents as her executors and trustees and if they predecease her, she wishes an aunt to be substituted in their place. The proposed will provides for a bequest of $20,000.00 in favour of LCJ’s father absolutely if he is living at the time of her death. The rest and residue of the estate is first to be used to meet the debts and funeral and testamentary expenses of LCJ. The balance, being the residuary estate, is to be given to LCJ’s maternal grandparents as shall be living at her death and, if both are living, then in equal shares. In the event that her maternal grandparents both predecease LCJ, the residuary estate is to be given to two aunts and an uncle who should be living at her death and, if more than one, in equal shares. In the event that any of the aunts or uncle predecease LCJ leaving a child or children, then their interest will pass to that child or children. Under the terms of the proposed will, the trustee is empowered to act in an entirely appropriate manner.
In her affidavit, LCJ offers an explanation for why she wishes to leave her estate in the manner summarised above. LCJ recounts the care that her maternal grandparents have provided since the death of her mother. It is clear that LCJ’s father has consented to these arrangements.
On the information before this Court, I am satisfied that it is reasonable in all the circumstances that an order should be made authorising LCJ to make a will in the terms of the proposed will that has been provided to the Court by the applicant.
On the hearing of the application, it was submitted by counsel for LCJ that the matter should proceed without service of the application being effected on LCJ’s father. Rule 97.03 and rule 97.04 of the Probate Rules 2004 (SA) address the need for service. Those rules relevantly provide:
97.03The application must be supported by affidavit setting out all the facts on which the applicant relies including:-
…
(c) The names and addresses of the persons who would be entitled to share in the minor's estate whether under an existing will of the minor or in the event of the minor dying intestate.
…
97.04The Court or the Registrar may order that notice of the application shall be served on such person who appears to the Court or the Registrar to be interested as the Court or the Registrar may direct.
It is to be accepted that if LCJ were to die without having made a will, her father would have an interest in her estate on intestacy. The making of an order as sought would have the effect of disentitling LCJ’s father to that statutory entitlement. In that sense, he has an interest in the proceedings.
LCJ will obtain her majority in less than two years. As mentioned above, she is an intelligent young woman who fully understands the application and the terms of the proposed will. Given the circumstances since the death of LCJ’s mother and the relationship between LCJ, her father and her maternal grandparents, I do not consider that LCJ’s father should be given notice of the application.
Subsection 6(2) of the Wills Act provides that an authorisation under section 6 may be granted on such conditions as the Court deems fit. In all the circumstances, I consider that LCJ’s father should be notified by registered post that LCJ has been authorised to make a will by the Court and has done so. I propose as part of the order to give liberty to apply generally to the parties, to the Public Trustee and to LCJ’s father.
As indicated above, I am prepared to make an order authorising LCJ, a minor, to make a will in the terms of the proposed will that has been provided to the Court by the applicant. Minutes of order are to be prepared to give effect to the orders foreshadowed in these reasons.