Re Palmer
[2003] VSC 21
•10 February 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 4229 of 2003
| IN THE MATTER - | |
| IN THE MATTER - | Plaintiffs |
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JUDGE: | ASHLEY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 February 2003 | |
DATE OF JUDGMENT: | 10 February 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 21 | |
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Wills – application for leave to seek order authorizing a will in specific terms approved by the court – whether requirements for grant of leave satisfied – merits of the substantive application, leave being granted – person never having had testamentary capacity – order made.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms D. Lyle | Holt & Macdonald |
HIS HONOUR:
Before me is an application made pursuant to s. 21 of the Wills Act 1997 brought by the mother and sister of Gregory John Palmer, seeking, first, leave to make an application to the court that it make an order authorising a will in specific terms approved by the court on behalf of a person who does not have testamentary capacity, and then the making of an appropriate order.
It is convenient to sketch the circumstances of the matter as revealed by the affidavit material before me and then to consider the application of the Wills Act in the particular circumstances.
The material shows that the plaintiffs, Dorothy Merle Palmer and Karen Hiney, are respectively the mother and sister of Gregory John Palmer. They were appointed joint administrators of his estate by order of the Victorian Civil and Administrative Tribunal in the Guardianship List on 15 December 1999. Gregory Palmer is an adopted son of Dorothy Palmer. Karen Hiney is an adopted daughter. The first plaintiff and her husband also have a natural son, Robert.
Dorothy Palmer and her husband are retired. They own their own home and are debt free. They would seek nothing from Gregory’s estate in the event, unlikely though it may be, that he was to predecease them. They support the substantive application.
Karen Hiney, the second plaintiff, is aged 46 years, is married and lives with her husband. He is a financial planner. They have two children, boys aged 13 and 11. Mrs Hiney would seek nothing from the estate of her brother Gregory in the event that he was to predecease her. She supports the substantive application.
Robert Palmer is aged 43. He is married and he and his wife have two children aged 17 and 7. He is employed as a project manager with the City of Port Phillip. He has been consulted concerning the application now before the court, specifically concerning the form of will proposed, and he supports the substantive application.
Gregory was born on 4 March 1958. He was adopted by Dorothy Palmer and her husband when he was aged three weeks. It was not then apparent, understandably, that Gregory was in any way abnormal, but it soon became evident that he was intellectually disabled. That was the case and it has continued the case throughout his life. The evidence shows that he did attend a local primary school for a year when aged about six. He could not cope well. Then, for a period he attended a special school in Tasmania. Later on he attended a special school in Victoria. At times he refused to go to school. In about 1972 or 1973 he transferred to a special school for adolescents at Nunawading. He stayed there until he was about 19 years of age, though at times he was upset and could not be got to go to school.
In about November 1976 Gregory was sent to live in residential care at Yarraview. That was an institution run by the Hospitaller Order of the St John of God Brothers for adult males with intellectual disability. It is not entirely clear to me for what period of time Gregory resided at Yarra View, but whilst he was there it seems that he was subjected to sexual abuse by one or more of the Brothers. He was a plaintiff in a proceeding brought against the St John of God Brothers, a proceeding to which a number of the other former residents were also party. The proceeding was settled in April 2002 and an amount was paid into court, after approval of compromise, in settlement of the claim. There was a confidentiality clause in the settlement. I have been informed as to the settlement sum and I have required it to be disclosed in an affidavit filed in court. It is unnecessary to specify the amount of the settlement, which in fact forms by far the larger part of Gregory Palmer’s present assets, in these reasons. Gregory’s assets otherwise appear to be about $32,000 in investments, about $7,000 at bank, and certain social security benefits.
As I said earlier, Gregory was adopted by Mr and Mrs Palmer when he was aged only three weeks. It appears from Mrs Palmer’s affidavit that he has had no subsequent contact with his biological mother or father. All contact ended when, immediately after his birth, he was handed over for adoption.
I have referred already to evidence before me that Gregory has been significantly intellectually disabled throughout his life. Additional to that evidence is the certificate of Dr Fildes, Gregory’s treating family doctor, dated 8 January 2003. Dr Fildes reports that Gregory is significantly intellectually disabled and that he would have no meaningful understanding of a will and testament, nor any appreciation of its contents. In the doctor’s opinion Gregory’s intellectual status is “such that he lacks any testamentary capacity at all”. No doubt the question whether Gregory lacks testamentary capacity is a matter for me to determine, but the doctor’s opinion is entirely consistent with the other material placed before me in that connection, and I consider that it represents the truth of the matter.
Notwithstanding Gregory’s intellectual disability and what I conclude is and has always been his want of testamentary capacity, he in fact signed a will prepared by his mother in 1996. His mother bought a will kit at that time and wrote out a will dividing Gregory’s estate between the four children of his siblings. She has deposed that she spoke to Gregory about the will and that he signed it. A copy of the will has been produced. Gregory’s signature is very evidently the signature of a person of minimal intellectual attainment. From the fact simply that he signed the will, in all the circumstances I could not reach any conclusion that he understood or concurred in its content.
The plaintiffs propose, in substance, that the court authorise a will having the same effect as the will signed by Gregory in 1996, that is, that his estate is bequeathed in equal shares to such of his four nephews as survive him and attain the age of 21 years. I need not refer to subsidiary aspects of the proposed will.
That is all that I need to say about the circumstances of the matter.
Under s. 26 of the Act, before granting leave to persons to apply for an order under s. 21, I must be satisfied of three things. The first of them is that the person on whose behalf the will is to be made does not have testamentary capacity. Of that matter, upon evidence to which I have already referred, I am not in doubt.
Second, I must be satisfied that the proposed will accurately reflects the likely intention of the person if that person had testamentary capacity. In the present case, I am dealing with a person whom I conclude has never had testamentary capacity. The case is different to one in which a will was made in the past by a person with testamentary capacity, where leave is sought for the court’s authorisation of a will to different effect, testamentary capacity having been lost. It seems to me that the situation is one such as Hoffman, J. described in Re C., a Patient[1]. His Lordship there said that the patient had lacked capacity since birth, in which circumstances the record of her individual preferences and personality was a blank page. It was impossible, then, to construct a subjective assessment of what the patient would have wished to do. His Lordship went on to say:
“…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….”
[1](1991) 3 All E.R. 866 at 870.
Applying that approach in the present case, it seems to me likely that, if he was now possessed of testamentary capacity, Gregory might well reason that his parents, being people of advanced years and having adequate means for their support, need not be the objects of his bounty; likewise his brother and sister, who have means of their own. He would put aside as a possible object of his bounty the charitable organisation some of whose members abused him. He would think that his biological parents had no claim on him. He would focus upon his nephews and he would see no basis for distinguishing between them in making disposition in their favour.
The third matter of which the court must be satisfied is that it is reasonable in all the circumstances for the court by order to authorise the making of the will. Of that matter I have no doubt. Gregory is 44. He is single. He has not inconsequential assets. It is better that they should not go on an intestacy. It is sensible that provision be made for what shall happen on the occasion of his death.
Section 28 of the Act provides that on an application for leave to apply under s. 21(1) the applicant must, if required by the court, provide material of different kinds. The Rules have picked up the requirements of s. 28 so that, in effect in every case, the court requires the provision of the particular material on an application for leave. In the present case the material before me, explicitly or implicitly, deals with each of the matters set out in s. 28(a) to (k). I need not address any of those matters discretely.
I should next make it clear that I am satisfied that the various persons who by s. 29 of the Act are entitled to appear at an application for leave are on notice of this application and have indicated their consent not simply to the application but to the making of the substantive order. In the present case, the persons who would be entitled to appear are the plaintiffs, who at the same time are Gregory’s administrators, and, probably, Gregory’s father and brother. I do not think that Gregory’s nephews would themselves have any entitlement to appear, but, in any event, they are all young people and their parents are either on notice of the proceeding; or, in Mrs Hiney’s case, involved in it.
In the circumstances which I have described, the matters of which I must be satisfied under s. 26 are matters of which I am satisfied. Further, the information which the court requires under s. 28 has been provided, and the persons entitled to appear under s. 29 either appear or consent both to the application and the substantive orders. It is appropriate, then, to grant leave to the plaintiffs to make the application.
Dealing now with the application on the merits, the evidence to which I have referred, in light of the relevant principles and statutory requirements, satisfies me that an order should be made authorising the making of the will in the proposed terms. I will make orders subject to the plaintiffs filing an affidavit exhibiting a copy of the orders made on the approval of compromise to which I earlier referred, and filing also Exhibits DMP.2 and DMP.5 to Mrs Palmer’s affidavit, which affidavit and which exhibits must be filed by 4 p.m. Thursday next, 13 February 2003. Subject then to the filing of that affidavit and those exhibits, I order that:
1.Dorothy Merle Palmer and Karen Hiney, the joint administrators of the estate of Gregory John Palmer, be granted leave pursuant to s. 21(2) of the Wills Act 1997 to make an application pursuant to s. 21(1) of the Wills Act 1997.
2.A will be made for Gregory John Palmer in the terms of the draft will being Exhibit DMP.1 to the affidavit of Dorothy Merle Palmer sworn 13 January 2003, which is approved by the court on behalf of the said Gregory John Palmer, he being a person who does not have testamentary capacity, pursuant to s. 21(1) of the Wills Act 1997.
3.Direct that the will be signed by the Registrar of Probates, sealed with the seal of this court and deposited with the Registrar of Probates.
4.No order as to costs.
5.Reserve liberty to apply.
6.I direct that this order be drawn up by the plaintiffs’ solicitors and signed by the judge.
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