Re The Full Board of the Guardianship and Administration Board

[2003] WASCA 268

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   RE THE FULL BOARD OF THE GUARDIANSHIP AND ADMINISTRATION BOARD [2003] WASCA 268

CORAM:   ANDERSON J

STEYTLER J
MILLER J
MCLURE J
EM HEENAN J

HEARD:   1 AUGUST 2003

DELIVERED          :   13 NOVEMBER 2003

FILE NO/S:   CIV 1243 of 2003

MATTER                :A reference to the Full Court on questions of law under s 38 of the Guardianship and Administration Act 1990

and

"DDM" File No 02/0352 (Application 1)

"SMW" File No 02/0279 (Application 2)
"WLB" File No 00/0599 (Application 3)
"DLS" File No 97/0169 (Application 4)
"HD" File No 02/0306 (Application 5)
"JMJ" File No 97/0032 (Application 6)
"PP" File No 02/0025 (Application 7)
"RTC" File No 94/0078 (Application 8)
"RC" File No 96/0202 (Application 9)

EX PARTE

THE FULL BOARD OF THE GUARDIANSHIP AND ADMINISTRATION BOARD
Applicant
 

Catchwords:

Guardianship and administration - Power of person under administration to make a valid will or testamentary instrument without consent of Guardianship and Administration Board - Reconsideration of Johnson v Staniforth & Ors [2002] WASCA 97 - Whether making a will constitutes a disposition of the testator's property or estate and, if so, when - Application of s 77(1)(a) of Guardianship and Administration Act (1990) after death of person subject to representation order - Nature and effect of a will or other testamentary instrument - devolution of property on death

Legislation:

Administration Act 1903 (WA), s 8, s 9, s 10, s 11, s 12, s 12A, s 12B, s 13, s 14

Guardianship and Administration Act 1990 (WA), s 4, s 43, s 45(3)(b), s 46(3), s 64(1) (3), s 69(1),(4) s 71, s 77(1), s 72, s 78(1)(b), s 84, s 86, s 90(b)
Judiciary Act (1903) (Clth), s 35, s 35A(a)(ii)
Property Law Act 1969 (WA)
Public Trustee Act 1941 (WA), s 9

Wills Act 1970 (WA)

Result:

Questions answered by declaring that s 77(1)(a) of the Guardianship and Administration Act (1990) has no application to a will or other testamentary instrument made by a testator who is the subject of an administration order made under s 64 of the Act and that the decision to the contrary in Johnson v Staniforth & Ors [2002] WASCA 97 should not be followed

Category:    A

Representation:

Counsel:

Amicus Curiae              :     Mr G T W Tannin SC & Mr S M Murphy

Public Trustee               :     Mr J A Thomson

Sixth Applicant             :     Mr J G Young

Solicitors:

Amicus Curiae              :     State Crown Solicitor

Public Trustee               :     Public Trustee (Ms P G McMahon)

Sixth Applicant             :     Franklyn Simon Wheatley

Case(s) referred to in judgment(s):

Andrews v Hogan (1952) 86 CLR 223

Archer v Howell [No 2] (1992) 7 WAR 33

Attorney General (UK) v Jones and Bartlett (1817) 3 Price 368; 146 ER 291

Barry v Butlin (1838) 2 Moo PC 480

Carter v Carter [1896] 1 Ch 62

Collins v May (2000) Aust Contract Reports 90‑109

Craig v Troy (1997) 16 WAR 96

Darrington v Caldbeck (1990) 20 NSWLR 212

Duke of Northumberland & Anor v Attorney‑General [1905] AC 406

Earl of Longford v Purdon (1877) 1 LR Ir 75

Fletcher v Fletcher (1844) 4 Hare 67; 67 ER 564

Frere v Peacocke (1846) 1 Rob Eccl 442; 163 ER 1095

Fuggle v Sochacki [1999] NSWSC 1214

Fulton v Andrew (1875) LR 7 HL 448

Goods of Fraser (1869) LR 2 P & D 40

Gregory v Hudson (1998) 45 NSWLR 300

Holroyd v Marshall (1862) 10 HL Cas 191

In the Estate of Park [1954] P 89

In the Estate of Walker (1912) 28 TLR 466

Jeffries v Alexander (1860) 8 HL Cas 594

Johnson v Staniforth & Ors [2001] WASC 331

Johnson v Staniforth & Ors [2002] WASCA 97

Kuligowski v Metrobus [2002] WASCA 170

Marjoribanks v Hovenden (1843) Druy Temp Sug 11

Nguyen v Nguyen (1990) 169 CLR 245

Patch v Shore (1862) 2 Drew & Sm 589

Perpetual Trustee Co Ltd v Fairlie‑Cunninghame (1993) 32 NSWLR 377

Re Bowden [1936] Ch 71

Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343

Re Cameron; Cameron v Public Trustee [1982] WAR 55

Russell v Scott (1936) 55 CLR 440

Ryan v Davies Bros Ltd (1921) 29 CLR 527

Sutton v Saddler (1857) 3 CB (NS) 87; 140 ER 671

The Will of Wilson (1897) 23 VLR 197

Thompson v Browne (1835) 3 My K 32

Timbury v Coffee (1941) 66 CLR 277

Tragear v Pires de Albuquerque (1997) 18 WAR 432

Transport Trading & Agency Co of WA Ltd v Smith (1906) 8 WALR 33

Wintle v Nye [1959] 1 WLR 284 HL

Case(s) also cited:

A Raptis & Sons Holdings Pty Ltd v Commissioner of Stamp Duties [1999] 1 Qd R 458

Astridge v Pepper [1970] 1 NSWR 542

Australian Trade Commission v Film Funding and Management Pty Ltd (1989) 24 FCR 595

Bailey v Bailey (1924) 34 CLR 558

Balog v Independent Commission Against Corruption (1990) 169 CLR 625

Banks v Goodfellow (1870) LR 5 QB 549

Bell Group Ltd v Westpac Banking Corporation (2000) 104 FCR 305

Blathwayt v Cawley [1976] AC 397

Bropho v State of Western Australia (1990) 171 CLR 1

Carnley v Hoff [1942] 1 Ch 298

CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384

Craig v Lamoureux [1920] AC 349

Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450

Daniels v Scrivenor [1997] 2 VR 595

David v David (1993) 30 NSWLR 417

Douglas v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 34 ALD 192

Emanuele v Australian Securities Commission (1997) 188 CLR 114

Gange v Sullivan (1996) 116 CLR 418

Gibbons v Wright (1954) 91 CLR 423

Gilbey v Rush [1906] 1 Ch 11

Greenham v Gibbeson (1834) 10 Bing 363

Gregory v MAB Pty Ltd (1989) 1 WAR 1

Hastilow v Stobie (1865) LR 1 P & D 64

Hunter v McKinnon (2002) 81 SASR 229

Hyde v Pimley [1952] 2 QB 506

In re D [1982] 1 Ch 237

In re Edis's Trust [1972] 1 WLR 1135

In re Parkinson; The Public Trustee v Tanner [1952] Tas SR 9

In the Marriage of Bassola (No 1) (1985) FLC 91-623

Johnson v Director-General of Social Welfare (Vic) (1976) 135 CLR 92

M Collins & Son Pty Lyd v Bankstown Municipal Council (1958) 3 LGRA 216

Matheson v Commissioner of Main Roads (2001) 25 WAR 269

Melbourne Corp v Barry (1922) 31 CLR 174

Ord Forrest Pty Ltd v Federal Commissioner of Taxation (1974) 130 CLR 124

Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537

Potter v Minahan (1908) 7 CLR 277

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328

Ramaciotti v Federal Commissioner of Taxation (1920) 29 CLR 49

Re Chance [1936] Ch 266

Re Estate of Margaret Bellew, unreported; SCt of NSW Probate Division (McLelland J); 13 August 1992

Re F (a protected person) [1976] 1 NZLR 383

Re Marshall [1920] 1 Ch 284

Re Walker [1905] 1 Ch 160

Re Williams (Dec) Queensland Trustees Ltd v Williams [1950] QSR 148

Registrar of Titles (WA) v Franzon (1975) 132 CLR 611

Roache v Australian Mercantile Land & Finance Co Ltd (No 2) [1966] 1 NSWR 384

Saraswati v R (1991) 172 CLR 1

Sargood Bros v Commonwealth (1910) 11 CLR 258

Secretary, Department of Health & Community Services v JWB and SMB (Marion's case) (1992) 175 CLR 218

Sherritt Gordon Mines Ltd v FCT [1977] VR 342

State Trustees Ltd v Hayden (2002) 4 VR 229

Winter v Crighton; Galieh, Estate of (1991) 23 NSWLR 116

1. ANDERSON J:  I agree with the judgment of EM Heenan J, to which there is nothing I can usefully add.

2. STEYTLER J:  I have had the advantage of reading the reasons for judgment of each of E M Heenan J and McLure J.  Subject to what has been said by McLure J, with which I am in agreement, I agree with E M Heenan J and with his Honour's conclusion that the decision in Johnson v Staniforth [2002] WASCA 97 was wrongly decided and should not be followed. There is nothing I wish to add.

3. MILLER J:  I have had the opportunity of reading in draft the reasons for judgment of Heenan J and I agree with those reasons and with the declaration which his Honour proposes.

4. MCLURE J:  I have had the considerable advantage of reading the reasons for judgment of E M Heenan J.  I agree with his conclusion that the decision in Johnson v Staniforth & Ors [2002] WASCA 97 is wrong and should not be followed. I also agree with the substance of what his Honour has written save with respect to the matters to which I now refer.

5. The Courts in Johnson v Staniforth considered a preliminary issue which focused on the question whether the making of a will by a person at a time when that person is represented by an administrator appointed pursuant to the Guardianship and Administration Act 1990 (WA) ("Act") constitutes a disposition in respect of an estate within the meaning of s 77(1)(a) of the Act.

6. The preliminary issue was determined on an agreed statement of facts.  The only material information agreed was that the deceased had made a will after an administrator had been appointed by the Guardianship and Administration Board ("Board") and that the will was made without the Board's knowledge or consent.

7. The preliminary issue was unduly narrow as the result of an unstated assumption about when s 77 ceases to apply. The starting point is the language of s 77 of the Act.  It materially provides:

   "(1)So long as there is in force a declaration by the Board under s 64(1) that a person is in need of an administrator of his estate, that person is –

(a)incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein; or

(b)subject to Part 9, appointing or conferring any power on an agent or attorney in respect thereof,

except to the extent that the administrator, with the consent of the Board, in writing authorises him to do so."

1. The Act expressly provides that a person ceases to be the administrator of the estate of a represented person on the death of the represented person: s 78(1)(b). However, s 77 applies so long as a declaration by the Board under s 64(1) of the Act is in force.

2. By s 64(1), where the Board is satisfied that a person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate and is in need of an administrator of his estate, the Board "may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint … a person to be the administrator …". Thus, s 64(1) provides for a two step process. The Board must first make a declaration that a person is in need of an administrator and then is required to appoint one. So, for example, if an administrator died the declaration would remain in force and s 77 would continue to apply even in the absence of an administrator.

3. The Act gives the Board the power following a review to revoke an administration order, which is defined to mean an order made under s 64: ss 84, 86, 90(b) of the Act.  However, the Act does not expressly provide that an order under s 64(1) declaring the person to be in need of an administrator ceases to be in force on the death of the represented person. In my opinion, that question of construction should have been part of the general question of whether s 77(1)(a) applies to testamentary dispositions.

4. If, on the facts in Johnson v Staniforth, the Board had not revoked the order declaring the deceased to be in need of an administrator, the question whether the Board's declaration under s 64(1) had continued in force after his death would be relevant to the issue of the validity of the will in question. That is because, on any construction of the words "making any disposition" in s 77(1)(a) of the Act, it includes the passing of property or an interest in property.  In the case of a will, whether or not property or an interest in property has passed depends upon whether or not the testator has died.  Before death, a valid will is an instrument stating the testator's intention in relation to the passing of his property after his death.  The passing of his property and of any relevant interest in respect of that property only takes effect after his death.  If the question was whether the passing of property of a deceased in accordance with the terms of a validly made will constitutes a disposition, the answer is obviously yes.

5. Thus, the preliminary issue and the Courts' consideration of it in Johnson v Staniforth is based on the premise that as a result of the cessation of the appointment of the administrator on the deceased's death, the actual disposition (that is, the passing of his property or interest in property) effected by the unrevoked will occurred after s 77 of the Act ceased to apply.  On my reading of the reasons in Johnson v Staniforth, the majority in the Full Court proceeded on the (correct) basis that, before the death of the testator, an unrevoked will does not give rise to or pass any interest in property, whether vested or contingent or otherwise.  What does appear to have influenced the majority is that (leaving aside s 77), a valid will was an essential step in effecting a disposition of property in accordance with its terms after the deceased's death and that essential step was taken at a time when the Board was satisfied that the deceased was unable to make reasonable judgments on matters relating to his estate.  Another consideration influencing the majority was their view that there were examples of inter vivos transactions in which the passing of property or an interest in property is separated in time from the act or event which generates that interest. Thus, the focus of the majority was on whether s 77 applies when an essential step occurs whilst a s 64(1) declaration was in force but the passing of property or an interest in property dependent on the essential step takes place after the declaration is no longer in force. The policy considerations that favour an affirmative answer to that question were addressed by the majority.

6. It is necessary for the disposal of the current applications to determine the meaning of the word disposition in the context of the phrase "incapable of … making any disposition in respect of his estate or any part thereof or interest therein".

7. Hasluck J at first instance in Johnson v Staniforth & Ors [2001] WASC 331 concluded that (at [32]):

   "When the various provisions of the Act are considered in combination, they suggest that the Act is concerned with the administration of the affairs of a represented person during his lifetime. This, in turn, suggests that the term 'disposition' in s 77(1)(a) is confined to instruments or events which have the effect of alienating property immediately. This is consistent with the ordinary meaning of the word 'disposition' which relates to dealing with property in a way that brings about an immediate result."

8. Roberts‑Smith J, who dissented in the appeal in Johnson v Staniforth, regarded the requirement of an immediate alienation of property as too narrow. He concluded that although the ordinary meaning of the word "disposition" is wide enough to cover testamentary dispositions, on its proper construction in s 77 of the Act it is confined to inter vivos dispositions.

9. I see no reason in principle why the word disposition should not be given its ordinary and wide meaning.  Subject to one caveat, I agree with the statement of Stirling J in Carter v Carter [1896] 1 Ch 62 at 67 that:

   "The words 'dispose' and 'disposition' … are not technical words, but ordinary English words of wide meaning; and where not limited by context those words are sufficient to extend to all acts by which a new interest (legal or equitable) in the property is effectually created."

10. I agree with the use of the word "created" rather than "passed", the former being wider than but encompassing the traditional notion of passing of a property interest to a third person.  The caveat relates to the requirement that the interest created be a legal or equitable interest in property (whether vested or contingent).  That would or may be the outcome if the statutory language required the disposition of the property or an interest therein.  It does not.  As Murray J noted in Johnson v Staniforth (at [7]) the issue is not whether there is a disposition of property.  The issue is whether there is a disposition in respect of the estate of the represented person or any part thereof or interest therein.

11. In my view, it is sufficient if the interest created gives rise to enforceable duties or rights to third parties in relation to particular property.  So for example, even if a declaration of a discretionary trust does not give the beneficiaries an equitable interest in the trust property, it creates a present and existing interest of a lesser nature (call it an equity) in respect of the trust property.  So too, a valid donatio mortis causa which requires the transfer of physical possession of property before death is an inter vivos disposition of property which takes effect on death but creates a present interest in respect of property.  If a vested or contingent interest in respect of property is created by the action of the represented person, that is a disposition.  However, what is accomplished by a will and can only be accomplished by will is the transmission on death of an interest which up to the moment of death belongs absolutely and indefeasibly to the deceased:  Russell v Scott (1936) 55 CLR 440 per Dixon and Evatt JJ at 454.

12. The next question is when must the disposition occur. The sub‑section requires that the "making" of the disposition by the person take place while the s 64(1) declaration continues in force. That is, the creation of the interest in respect of property must take place in that period. If at any time during the continuation of the declaration under s 64(1) the represented person acts in a way so as to create an interest in, or in respect of, his property he has made a disposition to which s 77(1) applies.

13. The final question is whether s 77 applies to testamentary dispositions. The answer will be no if the s 64(1) declaration is no longer in force on death. Ascertaining the legislative intention from the Act as a whole is attended with significant difficulties. The clues are few. I am not persuaded that the legislative intention was to preserve or conserve the property of a represented person only during his or her lifetime. I would not read down s 77 to exclude contracts or inter vivos dispositions that affect a represented person's property only after death.  Further, I do not agree with the proposition that because the Act does not vest the estate in the administrator he or she does not have the power to dispose of the property of the represented person. The administrator will clearly have such power albeit as agent not as principal: s 71 and Sch 2.

14. In my view, the legislative intention is largely derived from one subsection and significant omissions.  The relevant provision of the Act is s 45(3)(b) which prohibits a plenary guardian from making a will or other testamentary instrument on behalf of the represented person. I infer from this prohibition that the Act characterises the will making power as a personal not a property matter in which case it is outside the power of the administrator and is not intended to be within the purview of the Act.  I agree with E M Heenan J that if the legislature intended to give will making power to an administrator or to effect a fundamental change to the well established systems and rules relating to testamentary capacity and disposition it would have done so clearly and unequivocally.  What indications there are in the Act point to the contrary. I am of the view that death effects an automatic termination of a s 64(1) declaration and

s 77(1)(a) of the Act does not apply to the making of a will or a testamentary disposition.

1. EM HEENAN J: The Guardianship and Administration Board ("the G & A Board" or "Board") has referred a series of questions of law to this Court pursuant to s 38 of the Guardianship and Administration Act (1990). The questions so referred arise from nine separate applications to the Board each involving an application for consent under s 77(1) of the Act for a represented person (that is, a person in respect of whom an administration order is in force) to make a will.

2. Five of those applications were made to the Board by the Public Trustee (numbers 3, 4, 5, 8 and 9).  Subsequently, the administration order in respect of the person who is the subject of the ninth application was revoked so that application is no longer necessary and the reference in respect of it has not been pursued.  Counsel for the Public Trustee appeared and was heard on behalf of the four applications which the Public Trustee is still pursuing.  The applicant in Application No 6, "JMJ", has appeared in these proceedings by solicitors and was represented by counsel at this hearing.  The remaining four applicants did not appear and were not represented at the hearing of these references.  By order of Murray J of 15 April 2003, the Attorney General for the State of Western Australia was granted leave to appear as amicus curiae on these references and appeared by counsel at the hearing.

1. The questions referred by the Board, which are set out in full later in these reasons, all relate to the duties and obligations of the G & A Board, and the considerations which it should address, when the Board is asked to consent to a person under administration making any disposition in respect of his estate or any part thereof or interest therein by will where authorised to do so by his administrator pursuant to s 77(1) of the Act. They assume that the making of a will involves the making of a disposition of the testator's estate or property. The questions referred, include questions whether the consent said to be required extends to all provisions of a will or proposed will, and not merely to those provisions which contain dispositions of property and also ask whether and in what circumstances the Board can give its consent to such a disposition retrospectively.

2. Section 77(1) of the Act provides:

"77.  Represented person incapable of dealing with estate

(1)So long as there is in force a declaration by the Board under section 64(1) that a person is in need of an administrator of his estate, that person is –

(a)incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein; or

(b)subject to Part IX, appointing or conferring any power on an agent or attorney in respect thereof,

except to the extent that the administrator, with the consent of the Board, in writing authorises him to do so."

1. In Johnson v Staniforth & Ors [2002] WASCA 97, this Court allowed an appeal from the decision of Hasluck J (Johnson v Staniforth & Ors [2001] WASC 331) and held, by a majority, (Murray and Scott JJ, Roberts‑Smith J dissenting) that a will by a testator subject to an administration order under the Guardianship and Administration Act (1990) made without the written authority of the administrator and without the consent of the Board, was thereby invalid and incapable of being admitted to probate. The majority (Murray and Scott JJ) decided that the making of a will by the testator under administration was the making of a disposition in respect of his estate or any part thereof or interest therein, so that the requirement for the authority of the administrator and the consent of the Board was an essential condition for the validity of the testament. Hasluck J, at first instance, and Roberts‑Smith J (dissenting in the Full Court), were each of the view that the making of a will by a person in respect of whom an administrator of his estate had been appointed by the G & A Board under s 64(1) was not a disposition in respect of his estate or any part thereof or interest therein and that the provisions of s 77(1) of the Act applied only to inter vivos dispositions of property.  As a result of the decision of the Full Court in Johnson v Staniforth & Ors [2002] WASCA 97, the administrators of the eight persons under administration already identified have applied to the Board for its consent to actual or proposed wills by the persons whose estates they are administering. In the course of dealing with those applications questions of law have arisen which, as already described, the Board has referred to this Court.

Questions referred

1. The eleven questions referred to this Court by the G & A Board are:

   "1.Whether on a true construction of section 77 of the Act, the Board is required before giving its consent to a testamentary disposition to investigate the issue of testamentary capacity and/or to determine that the represented person has testamentary capacity.

   2.Whether on a true construction of section 77 of the Act, the Board is required before giving its consent to a testamentary disposition to investigate issues of voluntariness and/or to determine that the represented person is not being unduly influenced or overborne in making the proposed will.

   3.Whether on a true construction of section 77 of the Act, the Board must, or may, have regard to any or all of the following as relevant considerations in determining whether to give its consent –

   3.1the terms of the proposed will;

   3.2the terms of any prior will;

   3.2[sic 3.3] representations from persons other than the administrator (such as family, carers, existing or potential beneficiaries of a will or others with a proper interest in the proceedings) as to the capacity of the represented person, issues of voluntariness or undue influence or the appropriateness of the terms of the proposed will.

   4.Whether on a true construction of section 77 of the Act and having regard to –

   a)the provisions of the Act requiring notice in relation to other types of applications (for example, section 40);

   b)the definition of 'party' in section 3(1) of the Act;

   c)the requirement under section 4(1) and (2)(a) of the Act that the Board perform its functions based on 'the best interests of [the] represented person'; and

   d)the principles of natural justice,

   4.1the Board must, or may, give notice of an application for consent to persons other than the administrator and represented person in order to inform itself in relation to the best interests of the represented person based on all the circumstances surrounding the testamentary disposition; and if so,

   4.2to what classes of persons should notice be given; and

   4.3whether persons who receive notice are entitled:  (1) to know the content of the proposed will or the content of prior wills, (2) to make representations regarding the testamentary capacity of the represented person, issues of voluntariness and undue influence and the appropriateness of the terms of the proposed will, and/or (3) to seek a review of any decision of the Board giving or refusing its consent.

   5.Whether on a true construction of section 77 of the Act, the Board is required to give its consent to a particular testamentary disposition (that is, as set out in a draft will) or generally to the making of a will by the represented person without reference to its terms.

   6.Whether on a true construction of section 77 of the Act, the Board can impose conditions on its consent such as, for example, the time frame within which the will must be executed, the preparation of the will by a legal practitioner and the need for contemporaneous medical witnesses or medical certificates at the time of execution.

   7.Whether on a true construction of section 77 of the Act, the giving of consent is a 'determination' of the Board within the meaning of section 3(1) of the Act which gives rise to a statutory right to request a statement of the Board's reasons for the determination under clause 5 of Schedule 1 of the Act and to rights of review and of appeal under sections 17A and 19 of the Act respectively.

   8.If the answer to question 7 is no, and having regard to the judgments of the Court in Johnson v Staniforth [2002] WASCA 97 (Scott J at para 66 and Roberts‑Smith J at para 143‑144) to the effect that section 77 does not purport to take away the exercise of testamentary capacity from the represented person, what recourse, if any, does the represented person have to challenge the decision of the Board if it refuses consent to the making of a will.

   9.Depending on the answers to questions 1 to 5 above regarding the scope or level of enquiry and notice which the Board is required to adopt in giving its consent to a testamentary disposition, whether on a true construction of section 77 of the Act it is open to the Board to vary the process or apply a lesser standard of enquiry and notice in cases of emergency or urgency (for example, where the represented person is dying) so that the rights of the represented person to make a will are not prejudiced.

   10.Whether on a true construction of section 77 of the Act, the term 'disposition' means a will as a document in its entirety including the clauses appointing the executor and revoking previous wills or refers only to those parts of the will that dispose of the estate.

   11.In respect of application number 6, whether and in what circumstances the Board can give its consent to a disposition retrospectively."

2. It can be seen that the questions referred require a consideration of the relationship between the tests to determine testamentary capacity at a time a will is made and the criteria for determining whether or not consent should be granted by the Board to the making of a particular will authorised in writing by the testator's administrator; a consideration of the appropriateness, for the particular testator, of the dispositions proposed in the will in respect of which consent is being sought; a determination of whether notice should be given to any interested person and, if so, whether submissions should be sought by the Board from such persons; and, whether any decision made by the Board is subject to review or appeal under s 17A and s 19 of the Act. Associated with these questions, although not expressly stated, are other important considerations, including: whether any grant of consent by the Board to the making of a particular will is determinative of whether or not the testator had testamentary capacity at the time that will was made, plus a series of similar questions concerning the duties and obligations of an administrator who may be requested by a testator to authorise the latter to make a particular will.

3. Although submissions were made by the amicus curiae and by counsel for the administrators who appeared with respect to the answers which should be given to the questions posed, in the event that this Court decided that it was necessary to answer those referred questions specifically, the primary submission made by the amicus curiae and by counsel for the other parties was that the decision of this Court in Johnson v Staniforth & Ors [2002] WASCA 97 is incorrect so that this Court should reconsider that decision and decide that the making of a will by a person under administration, who nevertheless possesses testamentary capacity at the time a will is made, is not the making of any disposition in respect of the testator's estate or any part thereof or any interest therein and that there is no need for such a testator to obtain the consent of the Board under s 77(1) of the Act to make any such testament.

4. Although not so expressly submitted, a necessary implication of this argument is that it would also be unnecessary for any such testator to obtain the written authority of his or her administrator to the making of any such testament, and that a failure to do so would have no effect upon the validity or otherwise of that particular testamentary document, whether a will or codicil.

5. In view of this challenge to the correctness of the decision in Johnson v Staniforth & Ors [2002] WASCA 97 a bench of five Judges was specially convened to hear and determine these referred questions.

Reconsideration of, or departure from, a previous decision of the Full Court

1. It is not to be doubted that this Court is, in appropriate circumstances, entitled to depart from one of its earlier decisions, even one of long‑standing, always having regard to the need to ensure, as far as it may reasonably be possible to achieve it, that there will be certainty in the law and that rights and interests of persons which have, to any degree, arisen from accepting as authoritative a previous decision of the Court are not disturbed except in cases of plain necessity.

2. It was said by Parker CJ in Transport Trading & Agency Co of WA Ltd v Smith (1906) 8 WALR 33 at 33 that:

   "I think the object one should set out to obtain is to make the law certain, and that once this Court has declared that a statute or a section of a statute is to bear a certain meaning, I think it would be very unwise for the court on a subsequent occasion to alter the decision.  If parties are dissatisfied with the judgment of this Court they may appeal ... to the High Court of Australia ...; and if this Court wrongly decides any matter the proper course is to have that matter set right by ... [the High Court]".

   But much has changed since these words were written at a time near the apogee of Edwardian confidence in the Imperial legal system.  The world and this State have learned through the experiences of war, depression and scientific discovery that there are few advantages in dogmatism and that principle is a surer guide.  Further, litigants no longer have a right of appeal from this Court to the High Court of Australia so, except in the limited number of cases where the High Court grants special leave to appeal, this Court is generally the final court of appeal for parties to causes brought within its jurisdiction.  This brings an increased responsibility on this Court to determine the law in all cases before it, even if this requires the re‑examination or rejection of earlier doctrines.  This consequence of the appeal courts of the Supreme Courts of the States and of the Federal Court being, in many instances, courts of last resort for all practical purposes was expressly acknowledged and approved by Dawson, Toohey and McHugh JJ in Nguyen v Nguyen (1990) 169 CLR 245 at 269. It follows that this Court remains under the obligation to declare the law in causes before it and that this obligation will not always be discharged by applying an earlier decision of the Court if that can be shown to be wrong. The important goal of achieving certainty is qualified because, as was said in Nguyen v Nguyen (supra), at 269 – 270:

   "Rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty."

   Acknowledgements of the power of this Court to depart from one of its earlier decisions can be found in; Archer v Howell [No 2] (1992) 7 WAR 33; Tragear v Pires de Albuquerque (1997) 18 WAR 432 at 446 – 447; Craig v Troy (1997) 16 WAR 96 at 162; Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 per Steytler J at 354 and Kuligowski v Metrobus [2002] WASCA 170 per Steytler J at [195] – [197]. As was said by Steytler J in Re Calder; Ex parte Cable Sands (WA) Pty Ltd (supra) at 354:

   " ... a Full Court of this Court, even if comprised of five Judges, will not lightly depart from one of its previous decisions, more particularly when that decision has since been applied by another Full Court.  It should, I think, only do so in circumstances in which it is convinced that the earlier decision was wrong (see Craig v Troy (1997) 16 WAR 96 at 162 and Traegar v Pires de Albuquerque (1997) 18 WAR 432 of 447) or when there is some other compelling reason why the previous decision should no longer be followed."

   While accepting this as a convenient summary of the desirability of preserving certainty in the law as opposed to the advantages of avoiding the perpetuation of error, an examination of the cases cited where there has been a departure by this Court from one of its earlier decisions suggests that the fundamental principle is that it is a matter of practice for this Court to determine for itself, having regard to the interests of justice generally as well as in the particular case, whether or not a departure from an earlier decision is warranted.  The paramount consideration must be to achieve a correct decision according to law.  Where such a result is apparent from a proper application of established principle and the general course of authority it should be applied.  In this process the court should always take into account the need to accept settled doctrines unless they are shown to be wrong and their continued application would no longer be acceptable in all the circumstances.

3. In support of the submissions that this Court should reconsider and depart from its decision in Johnson v Staniforth & Ors [2002] WASCA 97, counsel submitted that the challenged decision was a recent one; that it had not otherwise been acted upon or applied; and, that the present referred questions to this Court have arisen as a direct consequence of the Board attempting to address issues resulting directly from that decision. It was further submitted that, as the court acknowledged in Johnson v Staniforth & Ors [2002] WASCA 97, there was no other authority directly upon the point and that s 77 of the Guardianship and Administration Act had no direct statutory equivalent in Australia or, as far as it was known to counsel, elsewhere.  It was further submitted that, as it has not been subsequently applied by any other court or board, the consequences of departing from the decision in Johnson v Staniforth & Ors (supra) would be less pronounced than departing from an older decision; that it was a majority decision and that the dissenting Judge, Roberts‑Smith J, adopted an interpretation of s 77 of the Act substantially the same as Hasluck J had adopted at first instance, so that the question of the application of s 77 of the Act to testamentary dispositions has equally divided the four members of this Court who have considered the issue in that litigation. Counsel also argued that the Attorney General, as appearing as amicus curiae, has unequivocally invited the Court to depart from the decision.  With respect, I consider that these are substantial reasons for this Court to examine and reconsider the decision in Johnson v Staniforth & Ors on this reference and that they would also provide convincing grounds for this Court to depart from that decision if satisfied that it was incorrect.

4. It must be recognised, however, that a decision of this Court to depart from one of its earlier decisions will not mean that that earlier decision is overturned.  Such a result could only occur if the decision in the earlier case were to be reversed on appeal in the High Court of Australia or subsequently held to be wrong by that ultimate court of appeal.  Unless and until that occurs, there will be two decisions of the one court of equal formal authority but to opposing effect on the one issue.  In such circumstances it is to be expected that this Court, and other courts which are bound by decisions of this Court, would follow the later decision, especially if it is a decision of a court of five Judges specially convened to address the controversy.  That would be the normal course, but if the later decision does not settle the controversy then the existence of different decisions of the one court on the same issue may eventually, in a suitable case, result in the grant of special leave to appeal to the High Court of Australia to resolve that controversy – see Judiciary Act (1903) (Clth) s 35 and s 35A(a)(ii).

The decisions in Johnson v Staniforth & Ors at first instance and on appeal

1. The litigation in Johnson v Staniforth & Ors came before the court as a preliminary issue in contentious probate proceedings concerning alleged wills of Michael Vranjican (deceased) who died in a nursing home at the age of 86 years at a time when Winnie Katie Staniforth was the appointed administrator of his estate pursuant to an administration order made by the Guardianship and Administration Board. There were three wills of the deceased which were variously being propounded for probate dated, respectively, 18 December 1996, 23 October 1997 and 25 March 1998. The last of these, the will dated 25 March 1998, was made by the testator after the administration order of 9 March 1998 and while it was still in effect. No consent of the Board to the making of that will had been sought or granted under s 77 of the Act, or at all.

2. The preliminary issue, heard and determined by Hasluck J, was "whether the making of a will constitutes a 'disposition' in respect of an estate within the meaning of s 77(1)(a) of the Act". As previously noted, Hasluck J held that the term "disposition" contained in s 77(1)(a) does not apply to the making of a will and that, as a consequence, the third will of the deceased, could not be regarded as unenforceable or as having no force and effect simply because the consent of the Board to the making of such a will had not been obtained. Hence, the issue determined in that litigation did not include any consideration of the duties or obligations resting upon the Board when its consent to the making of a will by a person under administration was sought under s 77. Nor did the case consider the significance of the existence or otherwise of testamentary capacity by the deceased at the time his third will was made.

1. The basis for the conclusion of Hasluck J that s 77 of the Act does not apply to the making of a will by a testator for whom an administrator has been appointed by the G & A Board, emerges from par [32] of his Honour's reasons:

   "In my view, it is significant that the Guardianship and Administration Act in its terms does not purport to be dealing with the issue of testamentary capacity or the management of an estate after death. As I have already noted, it is significant that by s 69(4), nothing in the Act vests the estate of a represented person in an administrator. When the various provisions of the Act are considered in combination, they suggest that the Act is concerned with the administration of the affairs of a represented person during his lifetime. This, in turn, suggests that the term 'disposition' in s 77(1)(a) is confined to instruments or events which have the effect of alienating property immediately. This is consistent with the ordinary meaning of the word 'disposition' which relates to dealing with property in a way that brings about an immediate result. Property can be alienated by contractual arrangements or by an immediate physical delivery. In the case of a Will, however, which can be revoked at any time prior to death, the making of a Will cannot be said to have effected an alienation or disposition of property."

2. On the appeal to the Full Court, the majority, Murray and Scott JJ, however, each took the view that a "disposition" of property could be effected by a will and that there were many instances in other statutes and in many authorities where the phrase "disposition of property by will" or similar formulations were used to recognise the transfer of property effected by a will.  However, as will be seen, this is a phrase generally used in a context where the dimension of time is also an assumed but latent factor so that, properly understood, what is being referred to is the disposition of property which occurs or which will occur on death and in accordance with the terms of the last valid will, if any, of the deceased.

3. Murray J appears to have taken the view that where a testator commits himself by a valid testamentary disposition, to dispose of his property on death in a particular way, the making of that testament, even before death, is a disposition of property to which s 77 of the Act applies. This can be seen from pars [6] and [7] of Murray J's reasons where his Honour said:

   "The law recognises many forms of disposition in respect of property, both realty and personalty, which are contingent in their form, whether effected by contract, gift, the making of a deed without the necessity for consideration or, as I would have it, by will.  The disposition may take effect contingently upon any number of different events but, nonetheless, be properly described as a disposition in respect of property.  Dispositions of a contingent kind which may take effect inter vivos, or which may only take effect inter vivos, may often affect existing and particular items of property but need not necessarily do so.  I can see no reason why an individual may not commit himself or herself in a form recognised by the law as legally binding to acquire and hold property in trust to convey it ultimately to the benefit of another.  Many forms of trust operate expressly in that way to affect after‑acquired property.

   To my mind then, it makes no point of difference in kind to say of a disposition by will that it is ambulatory in effect, applying only upon the future event of the death of the testator, in respect of property which is part of the deceased's estate after the satisfaction of the deceased's liabilities at that time. I note that s 77(1)(a) does not speak of making a disposition of the estate, any part of the estate, or an interest in the estate or represented person, but it provides that the represented person is 'incapable of entering into any contract or making any disposition in respect of his estate or any part thereof or interest therein.'  (My emphasis)."

   Scott J adopted essentially the same interpretation of the term "disposition" where appearing within s 77(1) of the Guardianship and Administration Act. His Honour also appears to have concluded that the eventual disposition of property of a deceased upon his death, according to the terms of his last valid will, would be a "disposition" of which the person under administration was incapable if made by a testament without the consent of the Board under s 77(1) of the Act. So much appears from [66] – [68] of his Honour's reasons for decision, parts of which are as follows:

   " ... The provision [s 77] is designed to protect the represented person to the extent that his or her capacity to make a will or other testamentary disposition can only be validly exercised with the written consent of the administrator and the Board.  That provision formulated in that way, in my view, distinguishes the matter from the legislation under consideration in Perpetual Trustee Co Ltd v Fairlie‑Cunninghame (1993) 32 NSWLR 377 and distinguishes the common law position in Re Walker [1905] 1 Ch 160.

   In my view, s 77 of the Guardianship Act is designed to preserve the testamentary capacity of the represented person in such a way as to protect that person from exploitation.  That result is achieved by preserving in the Board, the residual power of approving the exercise of testamentary capacity in an appropriate case.

   I would also add that, in my view, the opposing contention would lead to the conclusion that a disposition inter vivos without the consent of the Board would be of no force and effect, but a testamentary disposition would not be caught by the provision.  In my opinion, that is unlikely to have been the intention of the legislature for reasons I have expressed earlier.  In addition, whilst a will does not affect the immediate disposition of property, it is a document of the utmost importance which in many instances is of far more significance than a disposition inter vivos.  In my view, it would produce an absurd result if a testamentary disposition was not caught by the provision whilst a disposition inter vivos was."

   The reference by his Honour, Scott J, in the passage last cited, to reasons previously expressed, appears to be a reference to par [57] of his Honour's reasons where reference was made to the Second Reading Speech of the Minister introducing the Bill for the Guardianship and Administration Act to Parliament which stated that the Act was designed to protect people with disabilities of a type which prevented them from properly caring for themselves. His Honour explained that, in view of the administration order which had been made, the G & A Board had been satisfied that Mr Vranjican was unable, by reason of mental disorder, to make reasonable judgments in respect of matters relating to all or any part of his estate and, therefore, was in need of protection. The identification of Mr Vranjican as a person subject to administration order and being, for that reason, a person in need of protection appears to have been a significant factor in his Honour's conclusion that the same considerations giving rise to the need for protection, meant that the person under administration could not make a valid will without the consent of the Board and the approval of his administrator. Whether such a conclusion is justified and, even if it is, whether a conclusion that a will, before death, constitutes a disposition of property, and then if it does, whether the provisions of s 77 are efficacious to protect the person under administration, are all issues which now arise on this reference and require the ascertainment of the true legislative intention expressed in s 77, read in the context of the Act as a whole.

4. In dissenting from the majority decision in Johnson v Staniforth & Ors [2002] WASCA 97, Roberts‑Smith J also acknowledged that the term "disposition" was of wide import and was capable, in an appropriate context, of referring to a disposition of property by a will. His Honour also pointed out that the Guardianship and Administration Act recognises a series of gradations in disability which might justify the appointment of an administrator of the estate of the disabled person but which were not, or which were not necessarily, inconsistent with the existence of testamentary capacity either generally or at a particular time for an individual testator. As a consequence, Roberts –Smith J was not disposed to infer that, simply from the existence of an administration order, it should be concluded that a disabled person was in need of protection when making a will, especially in the light of the established tests for testamentary capacity which would need to be satisfied before any such will would be admitted to probate. In concluding that the term "disposition" in s 77(1)(a) of the Guardianship and Administration Act only applied to inter vivos dispositions of property and not to testamentary dispositions, Roberts‑Smith J said (at [152] and [153]):

   "Against the background of long authority recognising the traditionally different approaches to the legal capacity of a protected person to make a disposition of property inter vivos on the one hand, or to make a will, on the other; having regard to the clear intent of the legislature that the statutory provisions restrict or limit a protected person's right to the least extent possible; and recognising that a will cannot have effect until death and its validity can then be tested before probate, I have come to the conclusion that on a proper construction the word 'disposition' in s 77(1) of the Act was not intended to, and does not, encompass a testamentary instrument.

   As I have already intimated, I would not be prepared to hold (as his Honour did) that in s 77(1) of the Act the term 'disposition' is confined to instruments or events which have the effect of alienating property immediately, that is to say, dealings with property which bring about an immediate result. But in the event that does not affect the ultimate conclusion, because for the reasons set out above, I consider the word 'disposition' in s 77(1) of the Act means dispositions inter vivos, whether conditional or otherwise, but does not extend to encompass the making of a will or other testamentary instrument."

5. At first instance and on the appeal in Johnson v Staniforth & Ors (supra) attention was given to the meaning of the term "disposition" as determined in other cases and to the definitions of a "disposition" in other statutes of Western Australia, namely, the Wills Act 1970 and the Property Law Act 1969, both of which extended to a gift, devise, bequest or appointment of property contained in a will.  The decision in Duke of Northumberland & Anor v Attorney‑General [1905] AC 406 was cited where Lord MacNaghten said at 410:

   "There are two things plain on the face of the Act. In the first place, it is clear that the term 'disposition' and 'devolution' must have been intended to comprehend and exhaust every conceivable mode by which property can pass, whether by act of parties or by act of the law."

   Those definitions and observations are unquestionably correct in relation to the meaning of the word "disposition" in the particular legislation considered by the House of Lords in that case. However, as always, in interpreting the meaning of a particular statutory provision, in this case s 77(1) of the Guardianship and Administration Act, the task of the court must be to ascertain the meaning of the word or phrase intended by Parliament in the particular location, having regard to its context and the purpose of the Act which is to be identified from reading it as a whole.

Legislative Intention

1. In the present case, therefore, the duty of the court is to ascertain the meaning which Parliament intended to be given to the word "disposition" in s 77(1)(a) of the Act, rather than to import a meaning given to the word "disposition" in some different statutory context or attributed to it in some decision dealing with differing considerations. In this regard it seems essential to appreciate that the Guardianship and Administration Act is intended to "provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs ... and to make provision for a power of attorney to operate after the donor has ceased to have legal capacity, and for connected purposes" (see the long title to the Act). From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill‑considered personal decisions or action, or by unscrupulous or ill‑advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.

2. These ends can be achieved, when it comes to dealings with the property and financial affairs of the person in need of assistance, by ensuring that any financial, property or commercial transactions which would, or might, jeopardise the financial security or interests of the disabled person, are only effective when performed by a properly appointed administrator and with the Board's consent. The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration.

3. Nevertheless, one inescapable certainty, as Macauley had Horatius declaim before the bridge, is that "To every man upon this earth Death cometh soon or late".  There is an inevitable transmission of property comprising all the deceased's estate, upon his or her death.  The deceased can no longer utilise or derive advantage from his property and it must pass to another or others, regardless of the mental or physical capacity of the deceased before death.

4. On an intestacy, or partial intestacy, the estate of the deceased will devolve in accordance with the rules of distribution contained in Pt II of the Administration Act 1903 (as amended) and in particular s 12A, s 12B, s 13 and s 14. In the event that the deceased left a valid will or other testament, then the estate of the deceased passes to the executor who obtains probate, on the grant which then relates back to the date of death – Administration Act s 8. In the case of an intestacy, or where an executor does not accept office, the estate will pass to the administrator obtaining letters of administration generally, or to an administrator obtaining letters of administration with the will annexed, as from the date of the grant of administration – Administration Act s 8. Before a grant of probate or letters of administration is made the estate vests temporarily in the Public Trustee but will revest in the personal representative upon a grant being made – Public Trustee Act (1941) s 9.  The executor, to whom probate is granted, or the administrator who takes a grant of administration, will obtain the whole of the legal estate in the real and personal property of the deceased, but this will vest in that personal representative subject to the trusts and equities affecting the same, whether contained in the will or in the applicable law relating to intestate distribution – Administration Act s 9, s 10, s 11 and s 12. This devolution of property on death is determined by statute.

5. In the case of a death where the deceased left a will naming an executor who accepts the office and obtains a grant of probate, it has been held that the executor or executors derive title to the property of the deceased from the will and not from the grant of probate:  Ryan v Davies Bros Ltd (1921) 29 CLR 527 at 536, although the grant of probate is necessary to prove that entitlement: Andrews v Hogan (1952) 86 CLR 223 and Darrington v Caldbeck (1990) 20 NSWLR 212. Whereas, with a grant of administration, even a grant with a will annexed, the administrator's title to the property of the deceased is derived from the grant itself and not from the death of the deceased: Andrews v Hogan (supra) and Re Cameron; Cameron v Public Trustee [1982] WAR 55.

6. In the present setting several important conclusions derive from these established principles.  First, the transmission of the estate of a person on death, whether involving testate or intestate succession, is an inevitable consequence for any person who dies owning real or personal property of any kind.  It is the death which effects the transmission of the property although the law provides mechanisms for the deceased, during his or her lifetime, to direct, if he or she should choose to do so, how the estate is to be distributed after death.  Similar considerations arise in the case of intestate succession where, whether the omission by the deceased to give directions as to the distribution of his estate after death was intentional or otherwise, the distribution of the estate is determined by the statutory rules for intestate distribution.  Again, it is the death of the deceased which effects the transmission of property once its future can no longer be enjoyed by the deceased.  The case of intestate distribution perhaps shows this more plainly.

7. Another self‑evident conclusion emerging from these principles is that a deceased, whether testate or intestate, and whether under administration or not, can no longer have any interest in his or her former property so that any need for his or her protection and the conservation or preservation of property for his or her interest is no longer a factor for any consideration.  The transmission of property is inevitable and complete and the deceased no longer has any personal need which may require protection.

8. That it is the death of the testator which effects the disposition of his or her property and not the making of a will during the testator's lifetime, becomes even more plain when one considers a person who, during his or her lifetime, makes a series of valid wills each revoking all earlier wills.  None of those earlier wills effected any disposition of the testator's property.  They were fully revocable, and in the circumstances postulated, were validly revoked.  Nothing in them transferred any interest in property or conferred any right or title upon a nominated beneficiary.  Once they were revoked they ceased to have any potential significance and, not being the last valid testament of the deceased, never had any effect upon his property.  The last testament in the series, validly containing the directions of the deceased as to the distribution of his estate on death, took effect upon the death of the deceased and, as already described, conferred a title on an executor who subsequently proved, relating back to the date of death, or, in the case of an executor who did not prove, conferred a title upon the administrator with the will annexed as from the date of the grant of letters of administration.  Again, this shows that it is the death which effects the disposition of property in accordance with the terms and trusts of the will or any grant of administration.

1. Even at the death of a testator there are some wills or testamentary instruments which do not effect any disposition of property.  A will which simply revokes a previous testament, or which appoints a guardian of infant children, is an example.  However such a will is not admissible to probate:  Goods of Fraser (1869) LR 2 P & D 40.  It was not suggested that any of the eight wills or proposed wills, the subject of these referred questions, was in this category and nothing turns on the existence of a will in this form in the present proceedings.

Testamentary capacity

1. A will of a deceased person will only be admitted to probate, or be the subject of a grant of letters of administration with the will annexed, if it is proved that at the time of its execution the testator had testamentary capacity.  This issue is always one of fact:  Sutton v Saddler (1857) 3 CB (NS) 87; 140 ER 671; Earl of Longford v Purdon (1877) 1 LR Ir 75 at 79 and Timbury v Coffee (1941) 66 CLR 277 at 280. The question for the tribunal of fact is whether the testator was of sound disposing mind and understanding when he made his will: "That is the question which the wisdom of ages has framed, and, which as often as the question arises in courts of justice, and is put into form, in those words it is put into form" – Timbury v Coffee (supra).  The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, knowledge of what his property was, and who those persons were that were then within the objects of his bounty – Frere v Peacocke (1846) 1 Rob Eccl 442 at 452 – 454; 163 ER 1095 at 1099. In addressing these issues in Timbury v Coffee (supra) and a finding of the jury that the last will of the testator should not be upheld because of the effect of his insane delusions interspersed with drinking bouts, which resulted in unreasoning prejudice towards his wife, Dixon J said, at 283, quoting other authority:

   " 'Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with; and to weigh the claims which naturally ought to press upon him.  In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner' (Per Hood J, In the Will of Wilson (1897) 23 VLR 197 at 199). 'If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counter‑balance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it' (Per Cresswell J; Symes v Green (1859) 1 Sw & Tr 401 at 402; 164 ER 785 – Cf per Holroyd J, In the Will of Key (1892) 18 VLR 640. 'In the end the tribunal – the court or the jury – must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Sutton v Sadler (1857) 3 CB (NS) 87 at 97; 140 ER 671 at 675)' (per Rich J in Landers v Landers (1914) 19 CLR 222 at 235‑6."

2. Proof of testamentary capacity also requires the exclusion of any suggestion that the testator's mind may have been overborne by the undue influence, pressure or coercion of some other person.  In cases where there may be suggestions of undue influence or coercion affecting the testator's intentions, the onus of proof for obtaining probate may be increased by the circumstances in which the will was made, for example, if the testator was in a state of significant debility:  Barry v Butlin (1838) 2 Moo PC 480, Wintle v Nye [1959] 1 WLR 284 HL and Fulton v Andrew (1875) LR 7 HL 448.

3. No will of a deceased person who was under administration at the time when the will was made and which is later propounded for probate can escape the need for proof of testamentary capacity to be established according to these principles. If such capacity is not established, then the testament will not be admitted to proof. If it were necessary for the consent of the Board to be given to the making of the will by the testator, with the written approval of the administrator appointed, under the provisions of s 77(1)(a) of the Act, such consent and authority if proved to have been given, would not dispense with the need for proof of testamentary capacity in the ordinary way. Similarly, and on the same hypothesis, proof that consent by the Board under s 77(1)(a) had been withheld, or that the written approval for the administrator appointed had not been given, would not establish that the testator lacked testamentary capacity in the accepted sense at the time of the will. That could only result if there was a failure by the person propounding the will to establish the existence of testamentary capacity at the time it was made, either by the application of the presumption already mentioned, or by satisfactory proofs accepted in the probate proceedings. Hence, there could never be a situation where a will of a deceased person who could not be shown to have had testamentary capacity at the time the alleged last will was made, is admitted to probate.

4. In other words, the law as it stood in this State, before the Guardianship and Administration Act came into force, already contained provisions in terms directly comparable with other Australian jurisdictions and the law in England, to ensure that only wills of persons with testamentary capacity at the time they were made could be admitted to probate and thus be recognised as valid and effective.  Recognition that this was, and still is, the law prompts the question of whether it should be concluded that the intention of Parliament, in enacting the Guardianship and Administration Act, including s 77(1)(c), was to impose an additional condition upon the validity of a will of a person under administration, namely, that the testator must be shown to have made the will with the written authority of his or her administrator and with the consent of the Board. It is legitimate to ask what additional protection might result for the testator if these obligations were to be imposed as additional requirements for the validity of his or her will, when the will would only ever take effect if it could be proved, after death, that the testator had the requisite testamentary capacity at the time when it was made. There is also a converse to this question, namely, what advantage or protection for a testator would be secured by depriving his last will and testament of validity and effect, although otherwise properly made at a time when the testator did possess testamentary capacity, by reason only of the failure to obtain the written authority and/or the consent of the Board which has been held to be essential by the decision in Johnson v Staniforth & Ors [2002] WASCA 97? Would this last example not be a case where the expressed wishes of a testator with testamentary capacity would be frustrated because of a failure to comply with the putative obligations for consent and authority set out in s 77(1)(a) of the Act and, if so, what purpose sought to be advanced by the Guardianship and Administration Act could be achieved by such a result?  No answer to those questions was contained in any of the submissions made to this Court or in the reasons of the majority in Johnson v Staniforth [2002] WASCA 97.

5. The reasoning of the majority did, however, conclude that the imposition of such an obligation would further the protection of the interests of the person whose estate was under administration at the time the will was made.  What was not explained is how the additional obligation would serve to protect the interests of the testator after his or her death.  There was no acknowledgement of the question of whether or not the deceased had interests which should be protected after death.  In relation to this last issue, it can be accepted that it is in the public interest that people should be able to live and regulate their affairs in the confident knowledge that their validly expressed wishes as to the disposal of their property, after death, will be acted upon and respected, and that the persons whom they intend to benefit on the distribution of their estate will indeed receive the benefits that were intended subject, of course, to the deceased dying solvent and there being a surplus of assets over liabilities to provide for the intended distribution in whole or in part.  But that interest has long been recognised by the law and a will validly made, or satisfying the requirements of Pt X of the Wills Act 1970, has that effect and nothing more is needed to secure it.

6. The purposes of conserving the estate of a person under administration during his lifetime for his own advantage and benefit, which is so obvious in the Guardianship and Administration Act, cannot be regarded as extending to the conservation or preservation of the estate after death, where a person the subject of protection has ceased to have any mortal needs. This is expressly recognised in the Act by s 78(1)(b) which provides that the authority of an administrator of the estate of a represented person ceases on the death of the represented person.

Contingent disposition by will

1. The reasoning of the majority in Johnson v Staniforth & Ors [2002] WASCA 97 is heavily dependant upon the premise that a will, from the moment when it was validly made, operates as a contingent disposition of the testator's estate, which will take effect on some future event, namely death, and hence, by analogy, with other contingent gifts, dispositions, exercises of powers of appointment, or the settlement of property on trusts to take effect in stated contingencies, disposes of an interest in the testator's property. With all respect, this cannot be accepted. It is in the very nature of a will that no interest of any kind is created or conferred by its provisions except upon the death of the testator with that will unrevoked.

2. The position is described in "The Law of Wills" by Professor S J Bailey, 6th ed (1968) at 60, in these terms:

   "This characteristic is usually described by saying that a will is ambulatory until the testator's death.  If, therefore, a document executed as a will attempts to confer benefits which are to accrue before the testator's death, it is powerless to do so, unless, indeed, its execution included also the formalities prescribed for an inter vivos disposition.  On the other hand, a deed which is not intended to have any effect until the death of the person who makes it is in truth an ambulatory instrument, and, consequently, it is ineffective unless it has been executed in the manner appropriate to a will – In the goods of Morgan (1866) 1 P & D 214.  Thus, it appears to follow that an instrument which includes both testamentary and immediate gifts may be effective for both purposes if both sets of formalities are observed; and in such a case only that part which is testamentary will be admitted to probate – Woolfe v Woolfe [1902] 2 IR 246. But composite documents are extremely undesirable, for a court of probate, in the course of its duty to decide whether (and what part of) an instrument is testamentary in character, may find in the immediate gifts an entire negation of that testamentary intent which is essential to a will."

   Bailey also explains (at 4) that since a gift of property by will has no effect until the testator dies, the prospective donee cannot transfer his interest therein – for, as yet, he has no interest.  The most he can do is to contract that if and when he gets it he will transfer it.  Nevertheless, an attempted assignment (or transfer) for value is construed by equity as a contract to assign, and so is not entirely ineffective:  see Holroyd v Marshall (1862) 10 HL Cas 191. Moreover, even a voluntary assignment of an expected legacy will become effective and irrevocable after the testator's death if the assignee with the assignor's authority, receives the legacy from the testator's personal representatives: Re Bowden [1936] Ch 71.

3. The same author marks the contrast between testamentary gifts and conditional or contingent inter vivos gifts in the following terms at pages 2 – 3:

   " ... property is often transferred in such a way as to allow the donor to retain a temporary interest in it until he dies.  In such a case he is said to retain a life interest in the subject matter of the gift.  This result is usually achieved by vesting the property in one or more trustees, who are directed to hold it upon trust for the donor during the period of his life and after his death upon trust for the specified objects of his bounty.  In this way the donor ensures that the trustees who hold the property will pay to him any annual income or profits which arise from it during his lifetime, so he is not impoverished by making the gift; and meanwhile those who are to get the property when he dies have already a potential interest in it.  In fact, although this is somewhat difficult to appreciate, they have already an actual interest in it.  Admittedly it is only a future interest, for they cannot claim any of the income from it until he is dead; yet it is important to realise that this method gives them a definite interest in the property immediately; and, in fact, they can sell or mortgage this future interest at once if they choose to do so, and so may obtain some benefit from it even before the donor dies.  An arrangement of this kind is usually called a settlement of property, and in general it must be incorporated in a deed in order to comply with the form required by law.  The two types of gift described above have this at least in common:  both are gifts inter vivos.  That is to say, in each case the gift is made and takes effect during the donor's lifetime.  Indeed, in each case, the gift takes effect at once; for, although one variety gives only a future interest which will not produce any income until the donor dies, the fact remains that it gives this interest, such as it is, immediately – Bambridge v Inland Review Commissioners [1955] 1 WLR 1329 HL at 1334. Even if the terms of the gift empower the donor to revoke it, should he so desire, the principle is precisely the same. That the interest thus created is a 'revocable' interest does not alter the fact that, such as it is, it comes into force at once."

4. The distinction between a will and a voluntary settlement with the power of revocation, or an instrument which is final on execution by the maker, although intended to take effect on some future event, appears in Thompson v Browne (1835) 3 My K 32; Patch v Shore (1862) 2 Drew & Sm 589; Jeffries v Alexander (1860) 8 HL Cas 594, Marjoribanks v Hovenden (1843) Druy Temp Sug 11 and Fletcher v Fletcher (1844) 4 Hare 67 at 79; 67 ER 564. Another characteristic of the ambulatory nature of a will is that it is capable of operating on property which is acquired by the testator after the will is made (see Halsbury's Laws of England, 4th ed, re‑issue 450 at 252).

5. It has been held that a will "is an expression of the testator's will, and it is an expression of his will touching the disposition of his property at the time of his death, and only at the time of his death" – per Graham B in Attorney General (UK) v Jones and Bartlett (1817) 3 Price 368; 146 ER 291. Having made a will there is nothing preventing the testator from disposing of some or all of his property during his lifetime, leaving the testamentary gifts to lapse or abate. The situation has been described by the High Court in Australia in Russell v Scott (1936) 55 CLR 440 by Dixon and Evatt JJ at 454:

   "Succession post‑mortem is not the same as testamentary succession.  But what can be accomplished only by a will is the voluntary transmission on death of an interest which up to the moment of death belongs absolutely and indefeasibly to the deceased."

   In my opinion, the retention of an absolute and indefeasible interest by the testator in the property subject to his will during his lifetime is completely incompatible with the contention that the making of a will effects a dispossession of the testator's property.  This long recognised principle cannot be reconciled with the decision of the majority in Johnson v Staniforth & Ors [2002] WASCA 97.

Provisions of the Guardianship and Administration Act 1990

1. The G & A Board, in the performance of its functions, is bound to observe the principles set out in s 4 of the Act. These direct that the primary concern of the Board shall be the best interests of any represented person, or of a person in respect of whom an application is made and that the means least restrictive of the person's freedom of decision and action should be selected when making any order. This is expressly stated in subs 4(2)(b), (c), (d) and (e) which provide:

   "4(2) ...

   (b)Every person shall be presumed to be capable of –

   (i)looking after his own health and safety;

   (ii)making reasonable judgments in respect of matters relating to his person;

   (iii)managing his own affairs; and

   (iv)making reasonable judgments in respect of matters relating to his estate,

   until the contrary is proved to the satisfaction of the Board.

   (c)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the Board, be met by other means less restrictive on the person's freedom of decision and action.

   (d)A plenary guardian shall not be appointed under section 43(1) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the Board, to meet the needs of the person in respect of whom the application is made.

   (e)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the Board, impose the least restrictions possible in the circumstances on the person's freedom of decision of action."

2. The grounds for a guardianship order are set out in s 43 of the Act and the grounds for an administration order are contained in s 64.

3. The grounds for a guardianship order are that a person who has attained the age of 18 years is incapable of looking after his own health and safety; is unable to make reasonable judgments in respect of matters relating to his person; or is in need of oversight, care or control in the interests of his own health and safety or for the protection of others; and is in need of a guardian. If these matters are established then, on an application under s 43, the Board may appoint a plenary or a limited guardian and, if expedient, an alternate guardian or joint plenary guardians or joint limited guardians as the case may require.

4. The grounds for the making of an administration order are that the person, without any age limit or qualification, is unable by reason of mental disability to make reasonable judgments in respect of the matters relating to all or any part of his estate; and is in need of an administrator of his estate. Mental disability is defined by s 3 to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia. On such an application and if satisfied of the grounds, the Board shall appoint an administrator or joint administrators. In either the case of the appointment of a guardian or an administrator the Board may make that appointment subject to such conditions and restrictions as the Board thinks fit – s 43(3) and s 64(3).

1. The authority and powers of a guardian or an administrator are to be found respectively in s 45 to s 53 and s 69 to s 76 of the Act. Significantly, the Act provides by s 46(3)(b) that a plenary guardian may not make a will or other testamentary instrument on behalf of a represented person, and it follows from s 46 that a limited guardian may not do so either.

2. By s 69(4) it is provided that nothing in the Act vests the estate of a represented person in an administrator. It follows from this that the administrator does not have the capacity to dispose of any of the property or estate of a represented person. It is also provided, by s 69(1), that subject to s 64(3)(a) the administrator has, or the joint administrators have, in respect of the estate of the represented person, such of the functions provided for by the Act as the Board vests in him or them, or directs him or them to perform in the administration order. Section 69(3) provides that an action taken, decision made, consent given or other thing done by an administrator in the performance of the functions vested in him has effect as if it had been taken, made, given or done by the represented person and he were of full legal capacity. Further, s 71(2) provides that where plenary functions are vested in an administrator he may perform, or refrain from performing, in relation to the estate of the represented person, or any part of the estate, any function that the represented person could himself perform, or refrain from performing, if he were of full legal capacity. Unlike the provision in s 45(3)(b) prohibiting a plenary guardian from making a will or other testamentary instrument on behalf of the represented person, there is no such express limitation upon the power or function of an administrator. This prompts the question of whether or not a power to make a will for the person under administration may be conferred upon an administrator under s 69.

3. The specified functions which may be conferred on an administrator, where plenary functions are not so vested, are set out in Pt A of Sch 2 of the Act. None of these include the power to make a will or other testamentary instrument. However, in addition, the Board, under s 72, may make any other order that it thinks necessary or expedient for the proper administration of the estate of the represented person and may make or give any direction or order to do any other thing provided for in Pt B of Sch 2. Again, there is nothing express in Pt B of Sch 2 relating to the power to make a will for or on behalf of the represented person, but cl (g) of Pt B allows the Board to confer upon the administrator any necessary power where, in its opinion, any disposition or transaction is expedient in the administration of the estate of the represented person, or would be in that person's best interests. However, in my opinion, this does not extend to power to make a will or other testamentary writing on behalf of a represented person because, again for the reasons previously given, the making of a will by a testator is not the making of any disposition of property. There is another, perhaps more fundamental reason for this negative conclusion, namely, that the grant of a power to make a will or testamentary disposition for or on behalf of a represented person is not an action or step necessary for the administration or protection of that person's affairs during his or her lifetime.

4. The appreciation of the advantages and desirability of a person being able to make a will to provide for the disposition of his or her estate after death cannot lead to a conclusion that an administrator of a represented person can, or should be able to, make a will on his or her behalf during the currency of the administration order. First, as previously explained, the making of a will for the disposition of the estate of the represented person after his or her death, is not an action which will or could affect the protection or conservation of the property of the testator during his lifetime and, consequently, is outside the scope of the range of protection contemplated by the Act. Second, nothing in s 77(1)(a) of the Act recognises or contemplates that a will or other testamentary instrument may be made on behalf of a person under administration, by the administrator or by the Board. Even in the view of the majority in Johnson v Staniforth & Ors (supra) it was never suggested that a will could be made on behalf of a represented person by some other but, rather, their Honours, following their interpretation of s 77(1)(a) took the view that the will or testament in question still had to be made by the person under administration but that the consent of the Board and the authority of the administrator were additional, not substitutional, requirements for its validity. For reasons which I have expressed, and with respect, I do not accept that ultimate conclusion but there is nothing in the decision which could in any way justify or encourage a view that a power to make a will on behalf of the represented person could be conferred upon the administrator.

5. There are other reasons as well for the conclusion that the power to make a will on behalf of the represented person cannot be conferred upon an administrator.  Most obvious of these is that a will must be made by a testator himself and duly executed in the presence of witnesses or otherwise satisfy the provisions of Pt X of the Wills Act 1970.  This emphasises that the testament is the expression of the personal decisions and desires of the testator set down in the necessary formal manner.  So it is that a will must be signed by the testator or by some other person in his presence and by his direction and it must appear that the signature was intended to give effect to the will – Wills Act s 8. Where, through blindness, or other incapacity the testator is unable to sign his name to the testament, his signature or mark may be guided by another person or written on behalf of the testator so long as it is clear that the signature or mark is made in the testator's presence and by his direction by the other person acting only as an amanuensis. Any form of delegation of the will‑making power is not permitted and will not be given effect.

6. The nature of the rule forbidding delegation of testamentary power was described by Sheller JA in Gregory v Hudson (1998) 45 NSWLR 300 CA at 303, as follows:

   "In Tatham v Huxtable (1950) 81 CLR 639, in a judgment with which Fullagar J said he agreed, Kitto J (at 63), quoting from the speech of Lord Simonds in Chichester Diocesan Fund and Board of Finance Inc v Simpson [1944] AC 341 at 371, described it as 'a cardinal rule', to which a power of selection among charitable objects was the sole exception, that a man may not delegate his testamentary power. To him the law gives the right to dispose of his estate in favour of ascertained or ascertainable persons. Latham CJ, who was the third member of the court, dissented but did not in his judgment suggest any departure from or qualification of the rule, although his Honour set out (at 647) further exceptions including that whereby the creation by the testator of a general power of appointment, which the donee might exercise for his or her own benefit, was treated as the equivalent to property and hence as his Honour thought, in that case, not caught by the rule. In Lutheran Church of Australia SA District Inc v Farmers' Co‑operative Executors & Trustees Ltd (1970) 121 CLR 628, each of the four members of the High Court who sat, though divided in the result, recognised the existence of the rule: see at 632 – 636, 643, 645 and 653."

7. In the light of these long‑established principles I cannot see any basis for accepting that the provisions of s 69, s 71, s 72 or any other provision of the Guardianship and Administration Act authorise the Board to confer upon an administrator the power to make a will for a person under administration. Accordingly, even in the absence of any provision in the Act applying to the power of administrator, comparable with s 45(3)(b) which prohibits a plenary guardian from making a will or other testamentary instrument on behalf of the represented person, there is no scope for an implication that an administrator has or may be granted such a power.

8. The conferral of a power on some other person to make a will or other testamentary instrument for or on behalf of a person would constitute such a fundamental change in the law that it could only be accomplished by express legislation to such effect. Examples of such legislation, empowering persons to make wills for or on behalf of persons with a disability and hence without testamentary capacity, can be found in the legislation of other jurisdictions, for example, Div 2 Pt 3 of the Wills Act (1997) (Victoria) s 7 of the Wills Act (1936) (South Australia) and the Mental Health Act (1983) (United Kingdom) s 96 and s 97; see also the recommendations contained in Report 68 (1992) – Wills for Persons Lacking Will‑making Capacity – Law Reform Commission of NSW.  In the absence of legislative provisions of that kind, there is simply no warrant for concluding that the personal will‑making power of a testator can be conferred as an implication from the powers which may be granted to an administrator under the Guardianship and Administration Act.

9. Admittedly, this leaves the situation that a person who does not have testamentary capacity is unable to make a will, or to alter, any valid testament previously made.  This incapacity of the disabled person to recognise hopes or expectations which members of his family or others may have in relation to a distribution of his estate after death, either at all or in the light of changed circumstances within the family or fortune of the testator, has no doubt prompted the concern which led to the reform of the law in other jurisdictions by making provision for statutory wills.  Unless and until comparable amendments to the law in this respect are made in this State, the situation remains that the distribution of the estate of such a person upon death will be determined by the last valid will, if any, made by the deceased or, in the case of intestacy, according to the rules of intestate distribution found in the Administration Act 1903 s 13 and s 14. If it is asserted that such distribution, pursuant to a will or upon intestacy, fails to make adequate provision for a person eligible to apply under the Inheritance (Family and Dependants Provision) Act 1972 for additional provision from the estate of the deceased, then that claim can be addressed if proceedings are brought by the claimant in accordance with that legislation. Whether that avenue of address offers a remedy adequate to deal with the situation of a person who, because of want of testamentary capacity, has failed to recognise the expectations of persons who might otherwise have expected to benefit from the distribution of his estate is a matter of policy for Parliament to consider if thought appropriate. It is not a matter which can in any way affect the interpretation of the provisions of s 77(1)(a) or other provisions of the Act.

10. The appreciation that the existence of requisite testamentary capacity is essential to the validity of any will, and must be established on any application for probate after the testator's death, are reasons why s 77(1)(a) of the Act should not be interpreted as imposing additional conditions essential for the validity of any person under representation who makes a will. The circumstances which give rise to the need for the representation order under s 64(1) are not necessarily or at all times inconsistent with the person's capacity to make a valid will. Obviously, if the person is without testamentary capacity at the time there is an attempt or proposal to make a will, then no consent or authority sought under s 77(1) of the Act (if contrary to my conclusion the section applied), could replace that deficiency. The conclusion of the G & A Board, at some earlier time when an administration order was made under s 64, that the person is then unable by reason of mental disability to make reasonable judgments in respect of matters relating to all or any part of his estate; and is in need of an administrator of his estate may reveal the existence of circumstances which cast grave doubts about whether the person concerned possesses testamentary capacity at that time. In some cases the evidence which led the Board to make an order declaring the person to be in need of an administrator of his estate and to appoint an administrator may result, inexorably, in the conclusion that the person did not possess testamentary capacity at that time or, depending upon the details of the evidence, from then on. Equally, however, the evidence in the particular case may be consistent with no more than temporary incapacity, including testamentary incapacity. There may be variations in the condition of the represented person who, although capable on some occasions or for shorter or longer intervals, may be prone to periods of incapacity rendering him vulnerable to exploitation or causing a tendency to be improvident. Such a person may well be capable on occasions, perhaps even for lengthy occasions, in the same way that a person who in the past suffered from a mental illness or delusions which rendered him incapable at the time, can have lucid intervals in which he is of full capacity.

11. It has long been recognised that such a person has the testamentary capacity to make a valid will during a lucid interval:  Perpetual Trustee Co Ltd v Fairlie‑Cunninghame (1993) 32 NSWLR 377; Fuggle v Sochacki [1999] NSWSC 1214 and Collins v May (2000) Aust Contract Reports 90‑109; In the Estate of Walker (1912) 28 TLR 466 and In the Estate of Park [1954] P 89 at 113. In this regard I consider, with respect, that the reasoning and conclusions of Powell J in Perpetual Trustee Co Ltd v Fairlie‑Cunninghame (supra) as to the validity of a will made by a testator whose estate was under management pursuant to the provisions of the Protected Estates Act 1983 (NSW) are correct and should be followed in this State as being equally applicable to the situation of a person whose estate is under administration, but who makes a will during the course of the administration.  Powell J held that a person who makes a will while subject to an order under the Protected Estates Act 1983 (NSW) vesting the management of that person's estate in the protective commissioner is not conclusively presumed to have lacked testamentary capacity at the date of making of the will.  In his reasons for decision, Powell J reviewed many of the authorities dealing with the testamentary capacity of a "lunatic" or a person who was at times insane.  His Honour concluded that the existence of the equivalent of an administration order, should not lead to the deceased being conclusively presumed to have lacked testamentary capacity at the time the will was made.

12. Again with respect, I consider that this reinforces the essential principle that any person of full age may make a valid and effective will which should be admitted to probate after their death if the testator had testamentary capacity at the time the will was made, and that proof of the existence of testamentary capacity is a vital requirement for the admission of the will to probate after death.  Validity depends, among other things, upon possession of testamentary capacity by the individual testator at the time the particular will was made and that will always be a question of fact for decision in the particular case.  On the appeal in Johnson v Staniforth & Ors [2002] WASCA 97, Murray J left open consideration of the correctness of the view expressed by Powell J in Perpetual Trustee Co Ltd vFairlie‑Cunninghame (supra), and Scott J concluded that the provisions of s 77 of the Guardianship and Administration Act were materially different from the provisions of the Protected Estates Act 1983 (NSW) and that the differences distinguished the decision of Powell J from application in this State.  Roberts‑Smith J (in dissent) considered that decision at length and appears to have regarded it as a correct expression of principle.  Indeed, the ultimate conclusion of Roberts‑Smith J is only explicable upon that basis.

13. The questions of law which have been referred to this Court by the Board and the arguments of the parties appearing directly raise the question of whether or not a person, who is the subject of an administration order, may make a valid will without the consent of the Board and the authority of the administrator. Hence, those submissions necessarily involve the proposition that a person who is the subject of an administration order should not be conclusively presumed to lack capacity to make a valid will. While it is undoubtedly the case, as Scott J has observed, that s 77(1)(a) of the Act recognises that a person under administration may make a valid will, that seems to confirm, at least for Western Australia, the correctness of the conclusion reached by Powell J in Perpetual Trustee Co Ltd v Fairlie‑Cunninghame (supra).  Further, as the question of the validity of the wills made by the testators who are the subject of references in this case, if they are ever propounded for probate, may depend in part upon whether or not a represented person may, on the facts, be found to have testamentary capacity, I consider that it is desirable that this Court should, like Roberts‑Smith J, indicate its acceptance of the principles applying which led to the conclusion of Powell J in Perpetual Trustee Co Ltd v Fairlie‑Cunninghame (supra).  With respect, I consider that these principles should be applied to issues of testamentary capacity of testators who made their wills while the subject of an administration order under the Guardianship and Administration Act.

Conclusions

1. I have concluded that the making of a will or other testamentary instrument by a testator does not constitute any disposition of property or any part of his estate but that the eventual distribution of the estate of the testator, in accordance with the directions contained in the will, if unrevoked, is a disposition of property effected by reason of the testator's death.  I am driven to the conclusion, with all respect, that the decision of the majority in Johnson v Staniforth & Ors [2002] WASCA 97 is wrong. I have also concluded that the provisions of the Guardianship and Administration Act 1990, and the purposes intended by Parliament for that legislation, are to preserve and conserve the property and estate of a person under administration for his or her own advantage and protection during his or her lifetime.  This leads me to the conclusion that the majority decision in Johnson v Staniforth & Ors (supra), insofar as it suggested that the legislation was designed to protect a testator under administration after death, was also in error.  There is considerable importance in the issues arising in this case and the probable scope of application of these conclusions.  As this is comparatively recent legislation and the decision in Johnson v Staniforth & Ors (supra) has not otherwise been applied in this State, I consider this Court should acknowledge the need to depart from that decision and to decide that it should not be followed or applied.

2. I consider that the proper expression of the law applying in this setting is that the provisions of s 77(1) of the Guardianship and Administration Act do not apply to any will or testamentary instrument made by a testator who is the subject of a declaration by the Board under s 64(1) that the testator is in need of an administrator of his estate. The reasons are that the making of a will or other testamentary instrument does not constitute any disposition of the testator's property, and that the eventual devolution and distribution of the testator's property, if any, which will take place on his death in accordance with the terms of that will and, if they apply, the laws relating to intestate distribution, is not a distribution of property or estate to which s 77(1) of the Act applies. Any issue of whether or not such a testator possessed the requisite testamentary capacity at the time the will or other instrument was made will need to be determined in the usual way on the facts of the particular case on any subsequent application for a grant of probate or letters of administration with the will annexed.

Determination of questions referred to the Court

1. In the light of these conclusions, it is inappropriate and unnecessary to attempt to give specific answers to the eleven questions referred for determination, because each proceeds on the premise that the making of a will by a testator who was the subject of an administration order constitutes a disposition of his estate within the meaning of s 77 of the Act. Accordingly, I propose that the Court should resolve all the issues referred by making a declaration in the following terms:

   Declare that the questions referred to this Court by the Board do not arise because, upon its proper interpretation, s 77(1)(a) of the Guardianship and Administration Act and other provisions of that Act do not apply to any will or other testamentary instrument made or purportedly made by a testator who is the subject of a declaration by the Board under s 64(1) that he is in need of administration of his estate, or where an administration order made under s 64 of the Act is in force at the time when the will or other testamentary instrument was executed.