Re K, JL

Case [2016] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

IN THE MATTER OF K, JL

[2016] SASC 53

Judgment of The Honourable Justice Doyle

21 April 2016

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS

An application was made by the proposed testator’s mother pursuant to s 7 of the Wills Act 1936 (SA) for an order authorising the making of a will on behalf of the proposed testator. The proposed testator is aged 20 years and intellectually disabled as a result of brain damage suffered shortly after birth. The condition is permanent and there is no prospect of recovery. The proposed testator’s parents divorced in 1999 or 2000, and she has not had contact with her father since 2001.

Held per Doyle J:

1.       Permission to proceed with this application to make a statutory will granted. 

2.       The proposed testator lacks testamentary capacity, although she has the ability to express views concerning her testamentary wishes which are relevant to her likely testamentary intentions.

3.      It is appropriate to authorise the making of a statutory will for the proposed testator.

Wills Act 1936 (SA) s 7; Probate Rules 2015 (SA) s 92(5); Administration and Probate Act 1919 (SA) s 72G, 72J; Wills Act 1997 (Vic) s 21B(b), referred to.
Hoffmann v Waters (2007) 98 SASR 500; Re W, DJ [2015] SASC 45; Re Maniskas [2015] SASC 77; Banks v Goodfellow (1870) LR 5 QB 549; Re Pickles [2013] SASC 175; Wade v Frost [2014] SASC 162; Re Fenwick (2009) 76 NSWLR 22; Re G, CL [2015] SASC 80; Re Corner [2015] SASC 100; Boulton v Sanders (2004) 9 VR 495; State Trustees Limited v Do [2011] VSC 45; Re Brown [2009] SASC 345; Bryant v Blake [2004] SASC 369; AB v CB [2009] NSWSC 680; Payne v Smyth [2010] QSC 45, considered.

IN THE MATTER OF K, JL
[2016] SASC 53

Testamentary Causes Jurisdiction

DOYLE J:

  1. This is an application for an order pursuant to s 7 of the Wills Act 1936 (SA) authorising the making of a will on behalf of the defendant (JLK). The application is brought by her mother (LH).

    Background

  2. JLK’s parents are LH and GK.  She was born on 21 April 1996, and she is now 20 years of age.

  3. Approximately one week after her birth, while at the Women’s and Children’s Hospital, JLK was given an overdose of an infusion of parenteral nutritional solution.  She was subsequently diagnosed as suffering brain damage which was attributed to the overdose.

  4. In 2001, JLK by her litigation guardian (the Public Trustee) commenced an action against the Women’s and Children’s Hospital in this Court for damages for personal injury.  Later that year, judgment was entered in her favour for damages to be assessed, with the Public Trustee being appointed manager of her estate pursuant to the Aged and Infirm Persons’ Property Act 1940

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Re K, JL [2016] SASC 53
Case
[2016] SASC 53
Decision Date

CaseChat Overview and Summary

The case Re K, JL involves an application by the mother of the defendant, JLK, to the Supreme Court of South Australia. The application seeks permission to bring an application for an order under s 7 of the Wills Act 1936 (SA) to authorise the making of a will on behalf of JLK. JLK was born with brain damage due to an overdose of a parenteral nutritional solution shortly after her birth. The application is being brought by her mother, LH, who has been her sole carer. JLK has not made a will and so her estate would be administered according to the rules of intestacy.

The legal issues before the court were whether JLK had testamentary capacity and if not, whether a statutory will could be made on her behalf. The court had to consider the evidence of JLK’s likely testamentary intentions and her family circumstances. The court also had to consider the appropriate terms for a statutory will if JLK was found to lack testamentary capacity.

The court found that JLK did not have testamentary capacity and so the application for a statutory will should be granted. The court noted that JLK had limited contact with her father and no contact with him for the past 15 years. The court considered the evidence of JLK’s likely testamentary intentions and her family circumstances, and concluded that a statutory will should be made. The court proposed to make orders giving permission to bring this application, and authorising the making of a statutory will which reflects the appointment of AET as the sole executor and trustee, a gift of the residue of the estate in equal parts to LH, JLK’s future children and BN (or his children) as survive JLK, and a gift of the ultimate residue in the event that none of these survive JLK, as to 90 per cent in equal parts to JLK’s uncle and two aunts, and as to 10 per cent to the Anti-Cancer Foundation of South Australia.

The court will hear further from the parties as to the precise terms of the will and the orders to be made.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for an order pursuant to s 7 of the Wills Act 1936 (SA) authorising the making of a will on behalf of the defendant (JLK). The application is brought by her mother (LH). Background JLK’s parents are LH and GK. She was born on 21 April 1996, and she is now 20 years of age. Approximately one week after her birth, while at the Women’s and Children’s Hospital, JLK was given an overdose of an infusion of parenteral nutritional solution. She was subsequently diagnosed as suffering brain damage which was attributed to the overdose. In 2001, JLK by her litigation guardian (the Public Trustee) commenced an action against the Women’s and Children’s Hospital in this Court for damages for personal injury. Later that year, judgment was entered in her favour for damages to be assessed, with the Public Trustee being appointed manager of her estate pursuant to the Aged and Infirm Persons’ Property Act 1940 (SA). In 2015, damages were assessed in the sum of $5,461,251 and Australian Executor Trustee Limited (AET) was appointed manager in substitution for the Public Trustee. By way of overview of JLK’s family circumstances, LH and GK were married at the time of her birth, but subsequently divorced in 1999 or 2000. Since that time, JLK has lived with her mother, who has had the sole responsibility for her care. JLK has a half brother, BN, the son of LH, who was born on 12 November 2001. JLK had limited contact with her father, GK, on several occasions in about 2001. However, she has not had any contact with him during the subsequent 15 year period. It is not known whether GK has any other children, but they are not known to either JLK or LH if he does. JLK does not have a will and so in the event of her death her estate would be administered in accordance with the rules of intestacy.Procedural matters LH requires permission to bring this application. The purpose of a grant of permission to proceed is to provide a mechanism by which baseless or unmeritorious applications are screened out. In proceedings such as the present one, where the application is not obviously without merit, the practice of this Court has been to hear and determine concurrently the issues of permission to proceed and the substantive application.[1] I have adopted that practice in this case, and having heard the application propose to grant the necessary permission.[1] Hoffmann v Waters (2007) 98 SASR 500 at [10]; Re W, DJ [2015] SASC 45 at [20]; Re Maniskas [2015] SASC 77 at [15]. JLK is named as a defendant in the action. The Registrar ordered that Mr Aiello, a practitioner of the Court, be appointed as her guardian ad litem. Mr Aiello subsequently personally served the proceedings on JLK. She has not personally entered an appearance, but appears through Mr Aiello. Section 7(7) of the Wills Act identifies a number of persons who are entitled to appear and be heard on the application. Rule 92(5) of the Probate Rules 2015 (SA) provides that notice is to be given to such of those persons and other persons who the Court or Registrar regards as having an interest as the Court or Registrar may direct.

Evidence

Evidence Before The Court

While there is reference in the context of other nil capacity cases to the inquiry being an entirely objective one,[16] this is merely a reflection of the fact that evidence of subjective intention is often not available, rather than it being irrelevant as a matter of principle. One could place this case in an additional category or subcategory of cases, perhaps labelled “partial capacity” cases. But I prefer to focus on the nature of the facts and evidence of a particular case rather than the general categorisation of the case. Put another way, while the division of cases into categories is often analytically helpful, the nature of the inquiry into “likely intentions” will ultimately depend upon the facts and evidence in the particular case rather than the general label or category under which the case falls.[16] Re Fenwick (2009) 76 NSWLR 22 at [176].Evidence as to JLK’s likely testamentary intentions I commenced these reasons with an overview of JLK’s personal circumstances. It is appropriate to review her family relationships and other relevant circumstances in more detail, before then summarising the evidence as to her expressions of subjective intentions. In summarising matters relating to family relationships and other relevant circumstances, I am largely reliant upon LH’s affidavit evidence as to these matters, but I see no reason to doubt the general reliability of what she has deposed to. As mentioned, JLK was born on 21 April 1996 and is 20 years of age. She has never made a will and so is intestate. Her parents are LH and GK. Her parents divorced in 1999 or 2000. She has a half brother, BN, the son of LH, who was born on 12 November 2001 and so is 14 years of age. BN’s father is SN. LH’s relationship with SN ended in about 2002. LH is presently in a relationship with, and engaged to, PM. JLK has, until very recently, lived with her mother, LH, and brother BN, in Berri. JLK attended a special school until she completed her schooling in 2015. She presently spends most of her time at home with little prospect of finding any paid or voluntary work in Berri. Until late 2015, JLK had volunteered one morning a week with Riding for the Disabled Association of Australia Limited by assisting to prepare and lead horses ridden by disabled people. She now volunteers nearly every day at Destiny’s Farm Wild Life Park and is apparently very happy undertaking this work. In June 2015, JLK purchased a caravan with funds she saved from her centrelink payments. She lived in the caravan in the backyard of LH’s Berri property although on occasions she slept inside her mother’s house. While still supported by her mother, JLK generally cleaned and tidied the caravan for herself. Her mother attended to her daily needs including cooking, handling telephone calls and taking her on outings, holidays and to medical appointments. I understand that JLK has recently moved to a nearby address, but I assume her mother continues to care for her in the way she has to date.

Decision

Reasons for decision

The size of the estate is large, and in my view this militates in favour of this Court giving effect to a statutory will. Conclusion For the reasons I have set out, I propose to make orders giving permission to bring this application, and authorising the making of a statutory will which reflects the following:1. the appointment of AET as the sole executor and trustee;2. a gift of the residue of the estate in equal parts to such of LH, JLK’s future children and BN (or his children) as survive JLK;3. a gift of the ultimate residue in the event that none of these survive JLK, as to 90 per cent in equal parts to JLK’s uncle (MH) and two aunts (TH and LS), and as to 10 per cent to the Anti-Cancer Foundation of South Australia. I will hear further from the parties as to the precise terms of the will and the orders to be made.

Ratio Decidendi

Legal Principle Established

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