Re K, JL - [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:

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.
The Registrar directed that the proceedings be served on the public advocate. This has been done, and the public advocate has determined not to enter an appearance. Under s 72G and s 72J of the Administration and Probate Act 1919 (SA), if JLK were to die intestate, her estate would be distributed to her parents, LH and GK in equal shares. Accordingly, GK has also been served with the proceedings. He was advised of the hearing of the application, but did not enter an appearance or otherwise seek to be heard on the application. AET is aware of the proceedings, but has also not sought to be heard in relation to it.
Relevant principles
Under s 7(3) of the Wills Act, before making an order on this application, the Court must be satisfied:
(a)    the person lacks testamentary capacity; and
(b)    the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c)    it is reasonable in all the circumstances that the order should be made.
In addition, under s 7(4), the Court “must take into account” the following identified matters:
(a)    any evidence relating to the wishes of the person;
(b)    the likelihood of the person acquiring or regaining testamentary capacity;
(c)    the terms of any will previously made by the person;
(d)    the interests of—
(i)the beneficiaries under any will previously made by the person;
(ii)any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii)any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv)any other person who has cared for or provided emotional support to the person;
(e)    any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f)     the likely size of the estate;
(g)    any other matter that the Court considers to be relevant.
On the face of the legislation, it is not clear how the requirement to take into account the matters listed in s 7(4) interacts with the need to be satisfied of the three conditions in s 7(3). Clearly, the s 7(4) considerations may be taken into account in addressing the reasonableness criterion in s 7(3)(c). However, in my view, some are also relevant to the assessment of the likely intentions of the proposed testator under s 7(3)(b).
Testamentary capacity
“Testamentary capacity” is defined in s 7(12) of the Wills Act to mean the capacity to make a will. It involves the ability or capacity to perform three basic functions. First, an ability to understand the nature of the testamentary act of making a will and its effects. Secondly, an ability to understand the extent of the property to be disposed of. Thirdly, an ability to comprehend and appreciate the claims to which he or she ought to give effect, including to weigh and evaluate competing claims.[2]
[2] Banks v Goodfellow (1870) LR 5 QB 549 at 565; Hoffmann v Waters (2007) 98 SASR 500 at [11]; Re Pickles [2013] SASC 175 at [16]-[17]; Wade v Frost [2014] SASC 162 at [25]-[26]; Re W, DJ [2015] SASC 45 at [24].
The parties (JH and JLK through Mr Aiello) agree that JLK lacks testamentary capacity. However, the Court must satisfy itself of this matter.
The evidence
The evidence relevant to this issue consists of two reports from Dr Wood (a clinical neuropsychologist) dated 25 September 2009 and 28 August 2014 respectively, a report from Dr Newson (JLK’s general practitioner) dated 6 December 2013, and an affidavit sworn by Mr Aiello in which he describes his attendance on JLK on 19 February 2016.
Dr Wood’s reports confirm that JLK suffers from deficits in her intellectual functioning linked to the brain damage she suffered shortly after her birth. He described her as being intellectually handicapped, with each of her verbal, visual/spatial and memory functioning being in the below average or handicapped range.
In terms of JLK’s executive functioning, Dr Wood explains that he did not administer formal testing because of the difficulties in assessing performance in a person with the limited intelligence of JLK. However, he did observe that the history he obtained from the plaintiff indicated that she was impulsive, and that her memory, judgment and ability to reason were limited. She had an extremely limited ability to comprehend written information and manipulate numerical information. In his view, the indications were that her executive functioning is very limited.
In Dr Wood’s opinion, JLK is a person who is vulnerable to the influence of others, and is incapable of independent living or of ever being gainfully employed. She is unable to manage money in even modest amounts sensibly and wisely – in part because of her limited intellectual capacity, and in part because of her impulsivity and judgment. He describes her as having very limited insight into her situation and capabilities. In Dr Wood’s view, JLK is incapable of understanding the implications of formal documentation, including the making of a will.
That said, JLK did demonstrate to Dr Wood at least some basic understanding of what a will was, and gave some indication of her testamentary wishes. When asked about a will, JLK replied that it would say who would get her money if she dies. She said she wanted her mother (LH) and her brother (BN) to have her money. She also said that if she had children she would like them to have her money also.
In the context of possible children, Dr Wood raised her 2014 engagement to her then boyfriend (A), who was approximately the same age as her and who attended her special school. JLK replied that she would not wish A to receive any money. Dr Wood said that JLK was unable to explain why A should not receive any money, and that it seemed to be simply an emotional response without any rational basis. He regarded JLK’s engagement as an example of her impulsivity.
When asked by Dr Wood whether any other person might have a claim on her money, JLK mentioned her father as someone who would want access to her money, but said that she would not want him to have any.
Dr Newson has been JLK’s general practitioner for most of the period since her birth. While acknowledging JLK’s intellectual disability, she said that JLK was capable of making quite definite and appropriate decisions. She said that JLK had exhibited sound judgment in most situations, giving as an example her approach to some issues which had arisen between her mother and step-father. Dr Newson said that JLK was slow in her thinking but understood things well if they were explained to her.
In addressing the topics of testamentary capacity and likely testamentary wishes in more direct terms, Dr Newson said:
We did discuss a year ago about wills and [JLK] did seem to understand the concept of the will and her assets. We had also discussed in the same meeting about who she would like to live with, as above, and as I said she made very good decisions, but when it got to the exact details of the will [JLK] was more reluctant to discuss it. … [JLK] may struggle to understand competing interests and potential claims on her estate. However I feel [JLK] would be very cautious with her money, and would understand most things if time was spent explaining any situation to her. I do not have a recent intellectual assessment available to me. I am her general practitioner and not an expert in the field of intellectual disability. My observations come from dealing with [JLK] and her family over a long period of time, but are only observations. I feel [JLK] does have the capacity to make instructions for a will, but I would recommend that she has an independent advocate explain to her the situation when ever any major decisions have to be made. I would appreciate if the advocate explains situations to her slowly and check that she does understand. My only concern would be if [JLK] was to fall in love whether she would be subject to influence by this person.
Later in her report, Dr Newson again emphasised that she had no expertise in the assessment of intellectual capacity, and that her views were based upon knowing JLK over a long period, and having worked with her when she was making other decisions.
Turning to Mr Aiello’s affidavit, he is a legal practitioner who has practised in the area of wills and deceased estates for 25 years. He has extensive experience in considering the testamentary capacity of clients during the will making process.
He attended on JLK at her mother’s home on 19 February 2016 for approximately two hours for the purpose of discussing these proceedings with her, and considering her testamentary capacity and likely testamentary intentions. Mr Aiello’s affidavit helpfully includes a detailed summary of his discussion with JLK, set out in a question and answer format akin to a transcript. JLK’s mother was present for most of the discussion, but not all of it.
Based on his observations and discussion, as recorded in the affidavit, Mr Aiello described JLK as shy and childlike, vulnerable and open to being led. He said she lacks a general understanding of the extent and nature of her substantial assets, or the role of AET in administering such assets. She refers to the person who controls these assets as “the money man” or “the money lady”. The discussion in relation to the size of her estate was limited to distinguishing between what was “a little” and what was “a lot” in terms of the value of her estate. Mr Aiello doubted whether she had a sound understanding of the size of her estate.
Mr Aiello said that JLK understood the concept of an executor and trustee only at a limited level of labelling such a person as “the boss” when she dies. He explained that at a rudimentary level, JLK can, with guidance, consider options in relation to the provisions of her will. However, she is generally not the initiator of discussion and is reliant on prompting in relation to the matters she should consider as part of a will making process. She faltered when it came to, for example, discussing how old a beneficiary should be before receiving a vested interest in her estate. Mr Aiello doubted whether she would understand the concept of Inheritance claims, the powers of executors and trustees, or how the distribution of an estate operates apart from naming who should receive her “stuff” when she has died.
While noting that it was ultimately a matter for this Court, Mr Aiello expressed the view, based on his observations, that JLK lacks the general understanding of the nature of her assets and the requisite level of insight in relation to the decision making process which would be a pre-condition to holding testamentary capacity.
That said, he acknowledged that JLK was able to express a desire to make a will and understood that it would operate upon her death; was able to give details of her family and those people close to her and who help her; understood that a will had the effect of dividing up her “stuff” between beneficiaries in her will; and displayed some judgment in relation to who should receive her estate, and in particular who should not receive anything. Mr Aiello noted that JLK displayed affection for her mother and brother, and by way of contrast said that she feared her father and did not wish for him to receive any part of her estate.
Based upon these matters, Mr Aiello considered that despite not having testamentary capacity, JLK did have sufficient capacity to convey her likely testamentary intentions which he has reflected in the proposed will considered later in these reasons.
Assessment of the evidence
The evidence of both Dr Wood and Dr Newson is relevant in my assessment of testamentary capacity.[3]
[3] Re Fenwick (2009) 76 NSWLR 22 at [126]-[129].
I attach significant weight to the views of Dr Wood. His expertise means that he is well placed to make an assessment of testamentary capacity. He has undertaken a detailed assessment of the implications of JLK’s undoubted intellectual disability upon her ability to carry out the functions which testamentary capacity entails. While he acknowledges a certain level of competence on the part of JLK, both in terms of intelligence and decision making, his view is that the limitations upon, and deficits in, her functioning mean that she does not have testamentary capacity. On the basis of the findings and reasoning in his reports (summarised above), I agree with the conclusion he has reached.
In reaching this conclusion, I have not overlooked the evidence of Dr Newson. To the contrary, I have been assisted by her evidence. As JLK’s general practitioner since birth, she has the considerable advantage of a long term relationship with JLK, including having had some involvement in her decision making in various medical, family and social contexts. While Dr Newson’s report recognises that JLK has limitations upon her intellectual and decision making abilities, it would appear that she is more optimistic than Dr Wood about JLK’s ability to make rational and sensible decisions in relation to testamentary matters, at least if given time and advice. It is true that Dr Newson has ultimately expressed the view that JLK does have testamentary capacity, but upon close analysis there is not a great difference between the substance of their reports. Both recognise that JLK has significant deficits in her intellectual and decision making capacities, albeit retaining a reasonable degree of residual capacity. Importantly, both also acknowledge the consequential vulnerability of JLK both to the influence of others and to her own impulsivity.
The issue is not clear cut, but I am persuaded that the matters explained by both Dr Wood and Dr Newson establish that JLK lacks testamentary capacity. While Dr Newson asserts a contrary conclusion, she frankly acknowledges her lack of expertise in assessing testamentary capacity. I note also that she has not directly addressed the three limbs of the applicable test. It is significant in this context that Dr Newson expressly recognised that JLK “may struggle to understand competing interests and potential claims on her estate”, this being critical to the third limb of testamentary capacity.
In reaching the conclusion that JLK lacks testamentary capacity, I have also been assisted by the evidence of Mr Aiello. This Court has on several occasions been prepared to rely upon the evidence of legal practitioners skilled and experienced in considering issues of testamentary capacity.[4] It is necessary to be careful in relying upon such evidence given the absence of any medical qualifications on the part of a legal practitioner. However, in considering statutory will applications, the Court is not bound by the rules of evidence.[5] Further, and in any event, it is my view that practitioners with significant experience in considering issues of testamentary capacity often develop a level of skill and experience, if not expertise, which can be of assistance to the Court. In saying this, I should not be taken as encouraging reliance upon such evidence in substitution for evidence from appropriately qualified medical practitioners. To the contrary, such evidence will often, if not generally, be necessary before a court can be satisfied as to a lack of testamentary capacity.
[4] Wade v Frost [2014] SASC 162 at [34]; Re W, DJ [2015] SASC 45 at [30]-[31]; Re G, CL [2015] SASC 80 at [16]; Re Corner [2015] SASC 100 at [27].
[5] Wills Act, s 7(6).

But in the circumstances of this case, where Mr Aiello’s evidence is presented in conjunction with appropriate medical evidence, and in a manner which makes it plain the content of the discussions with the proposed testator upon which he has based his views, I have been significantly assisted by his evidence – both in determining JLK’s testamentary capacity, and in gaining some insight into her likely testamentary intentions (an issue I shall address later). In my view, Mr Aiello’s evidence of his discussions with JLK, and of the views he formed based on those discussions, support the conclusion that JLK’s deficits in intellectual functioning and decision making, combined with her vulnerability and impulsivity, mean that she lacks testamentary capacity.
Likely intentions of JLK
The second precondition under s 7(3) of the Wills Act is satisfaction that “the proposed will … would accurately reflect the likely intentions of the person if he or she had testamentary capacity”.
Some preliminary issues of principle
Several issues arise in considering this precondition.
The first is the need to focus upon whether the proposed will “accurately” reflects “the likely” intentions of the person. The words I have emphasised mean that it is not enough that the proposed will is merely a possible or potential reflection of the person’s intention. This presents a potential difficulty when the proposed will is simply one of a range of possible versions of the person’s potential intentions.[6] That said, it is not fatal to an application that there are multiple potential or possible wills or versions of the person’s likely intentions. It is enough that despite the range of possibilities, the Court is satisfied (after hearing all the evidence, and the submissions of all interested parties) that a particular version emerges as “the likely” version of the person’s testamentary intentions. While that version must “accurately” reflect their intentions, it is my view that for the legislation to be workable (which is obviously what was intended) there must be some flexibility in terms of matters of detail.
[6] Boulton v Sanders (2004) 9 VR 495 at [110]-[112]. It was this difficulty that led to an amendment in the analogous Victorian legislation to replace the reference to the person’s “likely intentions” with “what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be.” See Wills Act 1997 (Vic), s 21B(b), as amended by the Wills Amendment Act 2007 (Vic), s 3 and Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) s 28, and explained in State Trustees Limited v Do [2011] VSC 45 at [11]. See also Debelle J’s reference in Hoffmann v Waters (2007) 98 SASR 500 at [30] to the desirability of amending s 7(3) of the Wills Act, describing it as a wholly unrealistic requirement, and noting what was at that stage a proposal for reform in Victoria.
The second matter is that there are two stages or aspects to the inquiry under s 7(3)(b). The first involves a search for the person’s likely intentions. The second involves satisfaction that the person would have acted upon those intentions by making a will (or by altering or revoking their will, as the case may be). In a case such as the present, this second aspect of the s 7(3)(b) inquiry is easily satisfied. In circumstances where the person in question has no will, has a significant estate, and intestacy would see the person’s estate distributed in a manner which clearly and significantly departs from their likely testamentary intentions, then the Court will be readily satisfied (as I am in this case) that the person would have acted on their testamentary intentions if they had testamentary capacity, and would have made a will reflecting their intentions.[7]
[7] Re G, CL [2015] SASC 80 at [19].
The third matter is the extent to which expressions by the proposed testator of their (subjective) intentions can or should be taken into account in determining their likely intentions if they had testamentary capacity. The starting point in considering this issue is that the section is concerned with the person’s likely intentions “if” he or she had testamentary capacity, and hence involves consideration of a hypothetical. The issue is whether in considering this hypothetical the Court should be guided by objective or subjective considerations, or some combination of both. The issue is significant in this case because, as will be seen, the differences between the parties as to JLK’s likely intentions are in part explicable by a different weighting of the evidence as to JLK’s expressions of her subjective intentions or wishes.
In addressing this issue this Court has drawn a distinction between so-called “nil capacity” cases and “lost capacity” cases.[8] This distinction stems from the reasons of Palmer J in Re Fenwick,[9] in which his Honour also considered a third category, namely “pre-empted capacity” cases.
[8] Re Brown [2009] SASC 345 at [34]; Re W, DJ [2015] SASC 45 at [34]-[35].
[9] Re Fenwick (2009) 76 NSWLR 22 at [23]-[28].
“Lost capacity” is where a person at one point had testamentary capacity (and may or may not have made a will while having capacity), but has since ceased to have that capacity. “Nil capacity” is where a person has never had testamentary capacity, usually because of mental infirmity from a young age. “Pre-empted capacity” is where a person, though still a minor and therefore lacking testamentary capacity, is old enough to form relationships and to express reasonable wishes about his or her assets before losing testamentary capacity.
In relation to lost capacity cases,[10] Palmer J described the fact - finding task as involving consideration of not only the person’s relationships and circumstances (and any changes in them since any earlier will), but also the person’s expressions of their likely testamentary intentions (by statements or otherwise). His Honour noted that the issue may pose little difficulty if the person’s testamentary capacity is borderline, in the sense that they fall only a little short of having testamentary capacity.[11] It is clear from his Honour’s consideration of this category of case that he contemplated that evidence of the person’s subjective expressions of their testamentary intentions will often be available, and be highly relevant.
[10] Re Fenwick (2009) 76 NSWLR 22 at [154]-[170].
[11] Re Fenwick (2009) 76 NSWLR 22 at [157].
In relation to nil capacity cases,[12] Palmer J said that in those cases where the person has been born with mental infirmity, or lost testamentary capacity well before ever being able to develop any notion of testamentary intention, a search for any degree of subjective intention is impossible. Rather, the issue of their likely intentions must be resolved by an “entirely objective” consideration of their relationships, circumstances and estate.
[12] Re Fenwick (2009) 76 NSWLR 22 at [171]-[176].
Turning to pre-empted capacity cases, Palmer J considered the example case of a 16 or 17 year old who suffers severe and permanent brain injury in a motor vehicle accident and is subsequently awarded a large sum of damages. Referring to this person as “the teenager”, Palmer J said:[13]
It is possible that the teenager will have expressed some testamentary intention before becoming incapacitated. Ordinary experience shows, however, that that will be a rare occurrence as teenagers usually have few significant assets to dispose of and little occasion to ponder mortality and testamentary disposition. An express testamentary intention attributed to a teenager by a person seeking to benefit from a statutory will should, therefore, be scrutinised with particular care.
Nevertheless, as I have said, there may be the rare case in which a teenager is asserted to have expressed a testamentary intention in accordance with the proposed statutory will, or in which the teenager, though suffering from mental infirmity, is still able to make known his or her wishes. As in a lost capacity case, the Court must be satisfied, as a matter of fact, that the asserted intention is truly that of the teenager.
If the Court is satisfied, the next question is whether it is reasonably likely that the teenager would have expressed that intention if he or she had attained testamentary capacity. The teenager’s presently asserted intention may be the product of deluded attachment or hostility; it may be the product of an immaturity that a normal person of eighteen years of age would not display.
[13] Re Fenwick (2009) 76 NSWLR 22 at [178]-[180].
His Honour described this approach as involving “both subjective and objective elements”.[14] If the teenager has not expressed any testamentary intentions then there will need to be a greater emphasis upon objective considerations, although consideration of the teenager’s relationships, character and circumstances may enable the Court to form some view about possible subjective intentions.[15]
[14] Re Fenwick (2009) 76 NSWLR 22 at [180].
[15] Re Fenwick (2009) 76 NSWLR 22 at [185].
In summary, the hypothetical nature of the inquiry will always allow room for some objective considerations. In some cases there will be no evidence of the person’s subjective intentions, in which case the issue will be determined entirely objectively. This will be so in the typical “nil capacity” cases. On the other hand, there will often be evidence of the person’s actual or likely subjective intentions (for example, in many “lost capacity” and “pre-empted capacity” cases). In my view, not only is it appropriate given the nature of the inquiry under s 7(3)(b) that this evidence be taken into account, but also that approach is supported (if not required) by the provision in s 7(4)(a) to the effect that the Court must take into account any evidence relating to the wishes of the person. However, the weight that should be attached to such evidence can only be determined in an individual case by reference to considerations such as the person’s capacity to express their wishes, the nature of those wishes, the extent to which those wishes conflict with objective considerations, the extent to which the person’s expressed subjective intentions might have been influenced by the taking of advice prior to the formal making of a will, the age and maturity of the person when expressing their wishes, and the timing of the expression of wishes relative to the application to make a statutory will.
The present case is a “nil capacity” case. As such, the Court would ordinarily be reliant upon an entirely objective analysis. However, the present case differs from the typical nil capacity case because despite JLK being intellectually handicapped from birth, and in my view lacking in testamentary capacity, she nevertheless has sufficient intellectual and decision making capacity to have formed, and expressed, some meaningful testamentary intentions. In my view, weight should be attached to the evidence of these expressions of her subjective intentions. Of course, the weight needs to be carefully assessed having regard to JLK’s disabilities, and limited age and maturity. However, her expressions of her subjective intentions are relevant and must be taken into account.
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.
LH said that in caring for JLK she receives assistance from JLK’s grandmother (IH), her uncle (MH) and aunties (TH and LS). IH is 72 years of age and is LH’s mother. MH, TH and LS are LH’s siblings, and each of them lives close by to LH.
Each of IH, MH and LS visits JLK approximately one to two times per week. IH regularly takes JLK on outings and gives her cooking lessons. MH is currently teaching JLK to drive. He also provides handyman work when required by JLK for her caravan. MH also assists when JLK is reluctant to undergo medical or dental treatment such that LH needs physical assistance in controlling or restraining JLK. TH mainly assists JLK by driving her to and from appointments in Adelaide, and in helping her with online transactions that she wishes to make.
JLK’s best friend (N) lives in Renmark and they catch up most weekends, with JLK often spending the night with N and her parents. She has other friends from her schooling with whom she keeps in contact in person, through Facebook and by mobile phone.
I have mentioned JLK’s boyfriend, A, to whom she became engaged to in 2014. That relationship lasted about a year. She presently has a boyfriend whom she has been seeing for a few months.
Turning to JLK’s father, GK, they currently have no contact. GK met LH in about 1991 when she was 17 years of age. They married in 1996 and JLK was born nine days later. Their relationship deteriorated about two years later, leading to their divorce in 1999 or 2000. LH claims that GK was physically and emotionally abusive towards her. LH explains that GK was an interstate truck driver. He worked through the week and mainly saw his family on weekends. In LH’s view he did not cope well with the concept of having a disabled child and never had much to do with JLK. She said that this caused disharmony in her relationship with GK.
LH said that her relationship with GK ended when he was arrested and charged with rape, although she does not know the outcome of those charges. She believes that at some point GK moved to Greece, but then returned to Australia.
In early 2001 GK approached LH seeking access to JLK. LH agreed to an informal arrangement, involving regular weekly access in a neutral and open place, with LH present. According to LH, on about the fourth of these access visits, they met mid-morning at a park in Berri. GK apparently picked up JLK and ran with her to his car. LH described JLK as being obviously confused and distressed, and screaming for her mother. The police located JLK with GK later the same day and returned her to LH.
GK continued to request access to JLK. LH ultimately agreed to a further informal arrangement, and then subsequently the Family Court granted LH full custody of JLK but with GK having access rights.
However, according to LH, despite GK being granted access rights he only maintained contact with JLK for a few months. She believes that GK moved to New Zealand with his then girlfriend. She and JLK have not had any subsequent contact with GK, and do not know his present whereabouts – although the successful efforts to serve these proceedings on him reveals that he is presently living in Craigmore in South Australia.
LH says that she has received no child support payments directly from GK, or any other form of financial assistance from him. In that last few years she has received two payments of child support on his behalf from the Department of Human Services, which was apparently arranged through deductions from tax refunds otherwise payable to GK.
In LH’s view, JLK has a very close and loving relationship with her mother and brother. Her brother, BN, assists and supports her when required. Like most siblings they have occasional arguments but they are always quickly resolved. LH describes JLK as being passive and reliant upon other trusted family members in terms of daily direction, as well as in respect of more major decisions. In her view JLK is vulnerable to manipulation.
In relation to JLK’s relationship with her father, LH’s evidence is that she and JLK do not talk about him unless others mention him. JLK apparently became frightened when she thought she saw him at a supermarket a few years back. On other occasions when his name has been raised, JLK has apparently expressed feelings of unhappiness and anxiety at the thought of GK trying to contact her. JLK has said to LH that she wants nothing more to do with GK or his family. She has recently, of her own initiative, made some inquires to change her surname to her mother’s name rather than her father’s name. It is LH’s view that if JLK had testamentary capacity, she would not make any provision for her father.
LH has only limited assets and financial means. She does not own any real estate or other significant assets (other than a motor vehicle). She lives in a rental home. She has no superannuation, nominal savings and modest household furniture and effects. LH is not able to work by reason of hemiplegia and a prolapsed disc stemming from an accident in which she broke her neck when 14 years of age. She stopped work about 10 years ago, having earlier worked as a cleaner. She receives a disability pension and carer allowances, as well as nominal child support payments from SN relating to BN. Since about mid 2015, she has received weekly sums of $100 from JLK’s manager towards the cost of her care, and an additional $100 per fortnight to cover rental costs.
The parties’ position
Both the applicant (LH) and Mr Aiello have put proposed wills before the Court.
The applicant’s proposed will provides for LH to be the executor, with AET as substitute executor. It provides for JLK’s estate to pass to her mother (LH) if she survives JLK, but if she does not, then to JLK’s brother (BN) to be held in trust until he reaches the age of 21 years, provided that if he is not living on JLK’s death but leaves a child or children, then that child or children take the interest of BN and if more than one in equal shares. If none of LH, BN or BN’s children attain a vested interest in JLK’s estate, then the trustees of her will are to pass her estate to her uncle MH.

Mr Aiello’s proposed will reflects what he considers to be JLK’s likely testamentary intentions following his recent attendance upon her, which he summarised in the following terms:
1.   For her mother to be appointed the executor of her will. Albeit she does not understand with depth the role of Australian Executor Trustees and managing her affairs while she is alive she recognises they hold her funds although not showing sufficient insight to definitely state they should be appointed substituted executor. It is likely in the circumstance had she had full insight in relation to this question she would appoint Australian Executor Trustees as substituted executor and trustee of her will.
2.   To provide for her estate to be shared in equal shares as to one third to her children, one third to her mother and one third to her brother [BN].
3.   She would provide that in the event that one such third fail it would accrue to the other one third parts which would not so fail in equal shares.
4.   In the event she died in circumstances where she was not survived by any children, her mother or brother [BN], the estate would pass to the Anti-Cancer Foundation.
In summary, the difference between the likely intentions (and hence proposed will) of the applicant and Mr Aiello are as follows:
1. The applicant’s proposed will leaves everything to her, then in the event of her death to BN, then in the event of his death to his children or if no such children, his uncle MH.
2. Mr Aiello’s proposed will leaves the estate in equal parts to any children of JLK, LH and BN and his children, with a gift in the event of no survivors to the Anti-Cancer Foundation.
There is significant agreement in relation to the core aspects of JLK’s likely testamentary intentions – namely an intention to provide for her mother, BN and any future children, and not provide for her father. However, there are significant differences in how it is suggested JLK would give effect to these wishes. That said, neither party positively opposes the proposed will proffered by the other. In particular, the applicant has made it plain that while maintaining the appropriateness of her proposed will (which was proffered prior to the evidence of JLK’s expressions of subjective intentions from Mr Aiello’s attendance on JLK), she does not oppose Mr Aiello’s proposed will. Her counsel acknowledged the sense and strength of some matters advanced in support of Mr Aiello’s proposed will during the course of the hearing. He also accurately observed that the explanation for the differences appeared to be that Mr Aiello attached greater weight to JLK’s expressions of her subjective intentions than the largely objective approached that underpinned the applicant’s proposed will.
In reaching my own view as to JLK’s likely testamentary intentions, the following issues arise.
1.   Whether it is appropriate to make no gift to JLK’s father, GK.
2.   Whether it is appropriate to make a gift for JLK’s unborn children.
3.   Whether it is appropriate to make a gift to JLK’s brother BN.
4.   Whether the uncle (MH) or Anti-Cancer Foundation is the appropriate substitute remainder beneficiary.
JLK’s father not likely to receive gift
As described, JLK has received no support from her father, GK. He has been absent and of unknown whereabouts almost all of her life. JLK has had no contact or relationship with her father for a significant period of time. She has expressed a strong degree of antipathy towards her father, and has said that she would not provide for him in her will.
GK was served with these proceedings, and was informed of the position taken by the parties and of the hearing date. He has chosen not to appear or otherwise participate in the proceedings.
In my view, both objective and subjective considerations point to it being likely that JLK would make no gift to her father. Not only has he played no material part in her life, but also the contrast between his role and the life long and ongoing support and affection provided by her mother could hardly have been more stark.
I note the Court’s preparedness to accept the likelihood of “absent fathers” receiving no gift in cases such as Bryant v Blake,[17] Hoffmann v Waters[18] and AB v CB.[19]
[17] Bryant v Blake [2004] SASC 369 at [11]-[12], [26].
[18] Hoffmann v Waters (2007) 98 SASR 500 at [6], [13], [18]-[19].
[19] AB v CB [2009] NSWSC 680 at [40]-[46].
A different view was taken in Re W, DJ[20] and Re G, CL.[21] In making provision for a 25 per cent gift to the father in each of these cases, where there was a dispute between the mother and the father as to the appropriateness of a gift to the father, Gray J reasoned that children would not generally wish to get caught up in ill feelings between their parents and would generally desire that any parent who loved them benefit from their estate. However, the fathers in those cases (particularly in the former) had greater involvement in supporting their disabled children than GK had in this case. I am also assisted in this case by the evidence of JLK’s subjective wish to exclude her father.
[20] Re W, DJ [2015] SASC 45 at [61].
[21] Re G, CL [2015] SASC 80 at [38].
While each case turns on its own facts, the approach taken in the cases I have mentioned above is consistent with my conclusion that the likely intention of JLK in this case would be to exclude her father.
JLK’s children likely to receive gift
Both parties accept that JLK would wish to make provision for any children she in fact has. The difference lies merely in whether it is likely that she would make some gift now for her potential children, or wait until that events occurs (if it occurs at all) before making a gift.
In contending for the latter as the preferable view of JLK’s likely testamentary intentions, LH relies upon the fact that JLK not only does not presently have any children, but also is relatively young, is not pregnant, is not in a long term relationship, and has not expressed any intention to have a child in the near future. The point was made that statutory wills are not necessarily once and for all time determinations. A further application could be brought if and when JLK has a child.
While acknowledging that multiple statutory will applications should be avoided where possible, this might occur in any event in the case of JLK having a child, given that she might at that point wish to make greater provision for the child or children than is presently contemplated or wish to address the position of the father of the child in some way. LH also pointed to the possibility of JLK (hypothetically) receiving advice, if she were of testamentary capacity and contemplating making a will, to the effect that it was undesirable to attempt to cater for the possibility of children at this stage, with the preferable approach being to re-visit the matter if and when that occurred.
While I accept that it will sometimes be appropriate to take into account the likelihood of legal advice being sought (and the likely effect of that advice) when considering a person’s likely testamentary intentions, I am not assisted by that consideration here given that there is no clear evidence as to what the advice would be. While there is some force in the other matters relied upon by LH, I am nevertheless satisfied that JLK’s desire to make provision for her children is so clear (on both objective and subjective bases) that I consider she would make provision for them now, albeit recognising that she might wish to alter or update her will at some point following the birth of any children.
I am not aware of any authority which has directly considered this issue, although the Queensland decision of Payne v Smyth[22] was brought to my attention as an example of a case where a statutory will for a 19 year old woman with a brain injury included provision for any children she might have. But again, as the issue is ultimately a factual one as to what this testator would likely do, it is doubtful whether other authorities would in any event be of much assistance.
[22] Payne v Smyth [2010] QSC 45.
JLK’s brother likely to receive gift
In my view, objective and subjective considerations support some immediate gift to BN. LH’s evidence is that BN has been supportive of JLK, and increasingly so as he has become older. It is plain from her interview by Mr Aiello that JLK has great affection for BN. While the plaintiff would no doubt take some comfort from the likelihood that their mother would continue to support BN if she (JLK) were to die, such that a gift to LH would indirectly benefit BN, in my view it is likely that JLK would wish to benefit her brother more directly. If she had capacity she would in my view contemplate the possibility that BN’s ultimate benefit might be diluted by monies spent supporting LH’s current partner (PM) or any future partner (and potentially any children such partner might have) if she did not provide directly for BN.
Likely division between LH, JLK’s potential children and BN
Having formed the view that it is likely that JLK would wish to benefit each of LH, her potential children and BN, it is my view that she would likely wish to provide for them all equally. She expressed this wish to Mr Aiello, and it also accords with my assessment of the objective considerations.
I consider JLK’s likely testamentary intention is therefore to leave the residue of her estate in equal parts to (i) LH, (ii) any children of JLK, and (iii) BN or, in the event he predeceases JLK, his children. In relation to the gift to BN I consider it likely that she would provide for this to be held on trust until BN turns 21 years of age.
Ultimate residuary gift to family and charity
To this point, my view as to JLK’s likely intentions reflect those contained in Mr Aiello’s proposed will. My only point of departure is in the event that none of the contemplated beneficiaries (LH, any children of JLK, and BN or his children) survives JLK. Mr Aiello’s proposed will provides in that event that JLK’s estate pass to the Anti-Cancer Foundation of South Australia. LH’s proposed will provides in this circumstance for the residuary estate to pass to JLK’s uncle, MH.
I accept that JLK expressed to Mr Aiello an intention that the residue of her estate pass to the Anti-Cancer Foundation of South Australia rather than her uncle or aunts. However, in this instance I am inclined to accept the submission of LH’s counsel to the effect that more mature reflection, particularly if guided by advice, would likely result in JLK (if she had testamentary capacity) giving the vast bulk of her estate to family rather than charity, but with a lesser gift to charity. In my view it is likely she would leave 90 per cent to her family and 10 per cent to charity. While LH’s counsel initially contended that the gift to family would go to JLK’s uncle, MH, he ultimately accepted, and I find, that there is no reason on the evidence, objective or subjective, to distinguish between JLK’s uncle MH, and her two aunts, TH and LS. Each appears involved in JLK’s life and to provide similar levels of support. Nor did JLK draw any material or relevant distinction between them in her discussions with Mr Aiello.
In the circumstances, I find that in the event that she was predeceased by each of the proposed beneficiaries of the gift of the residue of the estate, JLK would likely leave 90 per cent in equal parts to each of her uncle and two aunts (or their children) on her mother’s side of the family, and 10 per cent to the Anti-Cancer Foundation of South Australia.
Identity of the executor and trustee
As to the identity of the executor and trustee, the parties had suggested that LH be appointed executor and trustee, with AET as the substitute. Mr Aiello filed a supplementary submission suggesting that if a substantial portion of the estate were to be given to persons other than LH in the statutory will, then it may be appropriate to consider appointing AET as the sole executor and trustee.
In circumstances where I propose to authorise the making of a statutory will involving significant gifts not only to LH, but also to BN, JLK’s future children and potentially other members of family and a charity, I consider it appropriate (and a reflection of JLK’s likely intention, particularly if in receipt of advice) that AET be appointed sole executor and trustee.
Reasonable to make orders
Given my findings as to the likely intentions of JLK, I consider it reasonable to make an order authorising the making of a statutory will giving effect to these intentions.
In forming this view, I have had regard to each of the matters set out in s 7(4) of the Wills Act. The will I propose authorising takes account of, and largely reflects, the evidence of JLK’s wishes. Based on the evidence of Dr Wood, there is little likelihood of JLK acquiring testamentary capacity in the future. JLK has not previously made a will.
I have taken account of those who would be entitled to receive JLK’s estate in the event that she were to die intestate – which at present would be her mother and father. I have made significant provision for her mother, and have explained why in my view objective and subjective considerations justify omitting her father.
I am not aware of any other person who would likely be entitled to bring any Inheritance claim, or who has otherwise cared for or supported JLK who has not been provided for. I have included a gift to a charity nominated by JLK.
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.