Re the Will of Bridget

[2018] NSWSC 1509

Supreme Court

New South Wales

Medium Neutral Citation:

Re The Will of Bridget [2018] [2018] NSWSC 1509

Hearing dates:

30 August 2018

Date of orders:

06 September 2018

Decision date:

09 October 2018

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court orders that:

(a) Leave to make the application for the order under s 19(1) of the Act be refused;

(b)   The amended Summons filed on 1 February 2018 be dismissed;

(c)   There be no order for the Plaintiff’s costs, to the intent that he is to bear his own costs of the proceedings;

(d)   The Plaintiff, within 14 days of the making of these orders, is to repay to the estate of Bridget, the amount of $12,177.45;

(e)   In the event that the Plaintiff does not repay the amount of $12,177.45 within 14 days, interest calculated at Supreme Court rates on unpaid judgments, shall be paid by him, calculated from the date of the making of these orders until the date of payment in full;

(f)   The Defendants’ costs, calculated on the ordinary basis, be paid out of the estate of Bridget; otherwise, the Defendants are to bear their own costs of the proceedings;

(g)   Exhibits may be returned in accordance with the Rules.

Catchwords:

SUCCESSION — Wills, probate and administration — Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of an aged person lacking testamentary capacity under Succession Act 2006 (NSW) — Person’s only Will leaving whole estate to her husband who predeceased her — Defendants would take under operation of the rules of intestacy as nephews of the incapacitated person — Relationship between the incapacitated person and Defendants — Long period of no contact between them — Proposed Will would leave biggest share of the estate to the Plaintiff who is Attorney under enduring Power of Attorney and cousin of person lacking testamentary capacity — Balance to other cousins and to charities in different proportions — Whether a number of possibilities as to the contents of the proposed Will the person lacking testamentary capacity would, or would be likely to, make, exist — Whether possibility is "reasonably likely"

Legislation Cited:

NSW Trustee and Guardian Act 2009 (NSW)
Succession Act 2006 (NSW)

Cases Cited:

AB v CB [2009] NSWSC 680
Application by Peter Leslie Kelso [2010] NSWSC 357
Argiro v Lagozino [2017] SASC 185
Banks v Goodfellow (1870) LR 5 QB 549
Boulton v Sanders (No 2) [2003] VSC 409
Brian Michael Burgess v Burgess [2018] WASC 279
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Burns v The Estate of Troy Mitchell Burns a Protected Person (2013) 11 ASTLR 362; [2013] NSWSC 1550
Denise Hilda Burgess as administrator of the estate of
Department of Agriculture and Rural Affairs v Binnie [1989] VR 836; [1989] VSC 836
GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308
Hill v Hill (No 2) [2001] VSC 135
In the Will of Wilson (1897) 23 VLR 197
Jeavons v Chapman (No 2) [2009] SASC 3
Nock v Austin (1918) 25 CLR 519; [1918] HCA 73
Re APB, Ex parte Sheehy [2017] QSC 201
Re B (Court of Protection: Notice of Proceedings) [1987] 1 WLR 552
Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311
Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530
Re Gillam [2016] VSC 5
Re HMF [1976] Ch 33
Re K, JL [2016] SASC 53
Re K’s Statutory Will (2017) 96 NSWLR 69; [2017] NSWSC 1711
Re RB, a protected estate family settlement [2015] NSWSC 70
Re Will of Jane [2011] NSWSC 624
Re Will of Jane (No 2) (2011) 8 ASTLR 423; [2011] NSWSC 883
Roberts v Balancio (1987) 8 NSWLR 436
Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065
Sharp v Adam [2006] WTLR 1059; [2006] EWCA 449
Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31
Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22
W v H [2014] NSWSC 1696

Category:

Principal judgment

Parties:

GFD (Plaintiff)
MGR (first Defendant)
MLR (second Defendant)

Representation:

Counsel:
Mr D C Price (Plaintiff)
Mr J E Armfield (Defendants)

  Solicitors:
Shaddicks Lawyers (Plaintiff)
Selvaggio Lawyers (Defendants)

File Number(s):

2017/373969

Judgment

Introduction

1. HIS HONOUR: This matter was listed for a contested hearing, for one day, on 30 August 2018. Because I considered the matter should not be further delayed, the Court informed the parties, by email sent on 5 September 2018, that orders would be made on 6 September 2018, and that the Court would publish reasons subsequently. As explained to counsel in Court, when the orders were made, the course was followed because of the wish to avoid a situation where the person who is said to lack testamentary capacity, and whose proposed Will is the subject of the application, might die before orders were made and reasons were published, and to avoid any of the parties believing, in such circumstances, that there had not been appropriate consideration given to the claim. What follows are the reasons for refusing the Plaintiff’s application.

2. The Court will publish these reasons for judgment using the pseudonym “Bridget” for the person who is said to lack testamentary capacity and for whom the Court is asked to make a new Will, and shall identify other relevant persons by reference to his, or her, role, as a party in the present proceedings, or by initials, in order to protect the privacy of the parties.

3. The application is one brought by the Plaintiff, GFD, pursuant to s 19 of the Succession Act 2006 (NSW) (“the Act”), for leave to apply for an order under s 18 of the Act authorising the making of a Will for Bridget. If leave were given, the Plaintiff seeks an order, under s 18, that the Court authorise the making of a new Will for Bridget. Both the application for leave and the application for the substantive relief were heard together.

4. The Plaintiff is Bridget’s cousin, and her Attorney, appointed under an enduring Power of Attorney dated 28 August 2015.

5. The Summons was filed on 11 December 2017. There was no Defendant named in the Summons, but by an amended Summons, filed on 1 February 2018, two persons, MGR and MLR, who are Bridget’s nephews, being children of her deceased brother, were joined as parties to the proceedings. They have appeared in the proceedings and oppose the relief sought by the Plaintiff. They submit that the application should be dismissed on the grounds that the Plaintiff has failed to establish the case for leave and for the authorisation of a statutory Will.

6. I should mention, at the outset, that this is not a case where Bridget is subject to a management order under the NSW Trustee and Guardian Act2009 (NSW), or one involving her close family members, where a resolution of tensions within the family require consulting Bridget’s interests and what courses of action are likely to be beneficial to her: Re RB, a protected estate family settlement [2015] NSWSC 70. Rather, this is a case in which it seems that the Plaintiff is, and the Defendants are, self-interested, with each advancing a case which is to his, and their, benefit, respectively (although in the case of the Plaintiff, other beneficiaries are also identified, none of whom have played a part in the proceedings).

7. Nor is this a case in which either party seeks any orders for gifts, or voluntary allowances, out of Bridget’s property: see, for example, W v H [2014] NSWSC 1696.

8. Bridget was not named as a party/Defendant in either the Summons or the amended Summons and neither party sought an order that she be represented. As will be read, s 25 of the Act provides that if it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings, the Court may order that the person be separately represented, and may also make such orders as it considers necessary to secure that representation.

9. A few days prior to the hearing, I caused my Associate to send an email, in the following terms to counsel for each of the named parties:

“…

His Honour notes that this matter is listed for hearing on 30 August 2018.

Consideration does not appear to have been given to whether the person said to lack testamentary capacity should be separately represented: s 25 of the Succession Act 2006 (NSW).

Please give consideration to this aspect as his Honour will require assistance on this aspect of the matter.”

10. No written response, by way of submissions, was sent by either counsel. However, at the commencement of the hearing oral submissions were made. For reasons that will be explained later, I concluded that Bridget should not be separately represented in proceedings.

The Hearing

11. At the hearing, Mr D C Price of counsel appeared for the Plaintiff, and Mr J E Armfield of counsel appeared for the Defendants.

12. The evidence relied upon by the Plaintiff was an affidavit sworn by him on 5 December 2017. The Defendants relied upon an affidavit sworn by MGR on 28 March 2018 and an affidavit sworn by MLR on 27 March 2018. Each of the deponents was cross-examined, albeit that the Defendants were cross-examined extremely briefly. I shall return to the evidence given by them later in these reasons.

13. In answer to the email sent by my Associate, counsel for the Plaintiff submitted that Bridget should be separately represented and that, in the circumstances, the matter should be adjourned for that purpose. After obtaining instructions, he stated that the Plaintiff was prepared to pay the Defendants’ costs thrown away by the adjournment.

14. The principal basis for the adjournment was what was said to be a conflict of interest. Reference was made to AB v CB [2009] NSWSC 680, in which Palmer J “thought it appropriate to consider the question whether a separate representative ought to be appointed for CB pursuant to s 25 Succession Act” and, at [13] – [14], wrote:

“The Act, in s 25, enables the Court to order separate representation for an incapacitated person if it appears to the Court that such person should be separately represented. There is no guideline expressly given in the section or otherwise in the Act as to what circumstances should impel the Court to order separate representation, but clearly enough one of those circumstances would be where it appears to the Court that there is at least the possibility of a conflict of interest between the person applying for the statutory will and the person for whom the will is sought to be made.

The circumstances in which such a conflict of interest may arise vary infinitely. For example, the circumstances may suggest that the proposed will may not be in terms which the incapacitated person would himself or herself have made. There may be a suggestion that that the incapacitated person is more capable of expressing a testamentary intention than the applicant asserts, so that more investigation of the person’s residual capacity is justified. These are but some examples.”

15. Counsel provided no satisfactory explanation for not having made the application earlier.

16. Counsel for the Defendant submitted that there were no justifiable reasons for adjourning the proceedings. He referred to my decision in Re Will of Jane [2011] NSWSC 624, in which, without opposition, an order for the separate representation of that the person who lacked testamentary capacity, under s 25 of the Act, was made, and where the NSW Trustee & Guardian was appointed to represent that person in the substantive proceedings. This was done because it was submitted, in that case, that the circumstances suggested that the proposed statutory Will may not be in terms that the person would have made.

17. At [93], of the reasons for judgment, I wrote:

“In New South Wales, it has been held that one who may benefit from the proposed statutory will could make the application. In such a circumstance, the Court might order separate representation, particularly if it appears that there is, at least the possibility of, a conflict of interest between the person applying for the statutory will and the person for whom the will is sought to be made…”

18. As Palmer J had done in AB v CB, the Court asked counsel what purpose would be served by the appointment of a separate representative for Bridget since it was not suggested that she was more capable of expressing a testamentary intention than the Plaintiff asserted, so that more investigation of her residual capacity would be justified. Furthermore, it could not be said that there was further information that could be obtained from Bridget, since the uncontested evidence established that she displayed a number of areas of very significant cognitive compromise within the context of a moderately advanced stage dementia.

19. There was no dispute that it was highly improbable that any attempt to interview Bridget would produce any useful information. It was equally clear that, unfortunately, she is incapable of forming, or expressing, any rational view about any aspect of the administration, or management, of her affairs.

20. Also, there does not appear to be any other evidence that may be adduced that is likely to cast a different light on the case and any challenge to the assertions made by the Plaintiff are likely to be put to him in cross-examination.

21. Neither counsel could suggest a compelling answer to the question posed. Indeed, counsel for the Defendants submitted that there would be no purpose since he would be making submissions going to the reasons why, on the available evidence, leave should not be granted to the Plaintiff.

22. I came to the view, after argument, that in all the circumstances, nothing would be gained by appointing someone to represent Bridget merely for the purposes of seeing whether something may be turned up which could cast a different light on the evidence so far adduced. I also considered that there would be delay in taking that step and, in the circumstances, to do so could be prejudicial to the interests of Bridget (and, perhaps, also, to the interests of the Plaintiff).

23. In the circumstances, having raised the issue with the parties, and having heard submissions on the topic, I did not accede to the Plaintiff’s application to adjourn the hearing being satisfied that it did not appear that Bridget should be separately represented in proceedings.

Uncontroversial Background Facts

24. I shall next turn to the background facts that are not really the subject of any dispute between the parties.

25. Bridget was born in September 1932 and was, at the hearing, almost 86 years old. She is the daughter of DGR and CER, both of whom predeceased her. The parties agree that Bridget is now a widow and is childless.

26. DGR died, intestate, in July 1966, leaving an estate with a gross value of about $26,965. The major asset of his estate was a property in Haberfield, which, subsequently, came to be solely owned by Bridget, and which, now, forms the most valuable asset in her estate. On intestacy, the estate of DGR was divided, equally, between his widow, CER, his son, GLR, and Bridget. Each was said to be entitled to about $8,988.

27. CER died in October 1969, aged 72 years. By her Will, made on 9 February 1965, CER appointed Bridget as the executrix of her Will and trustee of her estate. Apart from a specific devise of 200 shares in Ampol Petroleum Limited ($272) left to GLR, she left the whole of her estate to Bridget ($9,101).

28. In the Schedule of Assets, CER was said to have a one third interest in the Haberfield property, with the other two thirds being divided equally between Bridget and GLR. Thus, following CER’s death, the Haberfield property would have been registered in the names of Bridget, as to two-thirds, and GLR as to one-third.

29. On a date, and in circumstances, not disclosed in the evidence, the Haberfield property came to be registered in the name of Bridget alone. (There is a statement, in Ex. D1 (“Personal Background for [Bridget…]”) presumably made by the Plaintiff, that “[M]y understanding that [Bridget] purchased her brother’s share of [the Haberfield property]”. The basis of that understanding is not disclosed and I give it little weight as it is not an agreed fact.)

30. As stated, Bridget appears to have had only one sibling, GLR, who predeceased her, having died in about 1988. GLR had 3 children, being MGR, who was born in November 1952, MLR, who was born in January 1959, and LJR, the last of whom predeceased the deceased, having died, without issue, on a date not disclosed in the evidence. The Defendants’ mother had died in 1986.

31. MGR and MLR, each gave evidence which included information about his respective financial situation. In the circumstances, it is unnecessary to repeat what each wrote in the affidavit read in the proceedings.

32. Bridget’s mother, CER, had four siblings, CD, JFD, EGD and HP, all of whom predeceased her. Each of CD, JFD, and EGD, had three children, only two of whom, being the Plaintiff and LM, are said, by the Plaintiff, to have kept in contact with Bridget. The fourth sibling, HP, had five children, three of whom, being HB, RP and MP, are said, by the Plaintiff, to have also kept in contact with Bridget. None of the children referred to, other than the Plaintiff, gave evidence in the proceedings.

33. I should mention that the Plaintiff was born in September 1936 and was at the date of hearing, almost 82 years old.

34. There was evidence (Ex. PA) that each of Bridget’s cousins, who was said to have remained in contact with her, had been given, albeit very recently, notice of the proceedings, and each indicated that he, or she, did not wish to be represented at the hearing. None took any formal part in the proceedings (although there was a suggestion that RP was present at the hearing). In one way, this is hardly surprising since, as will be read, each is a beneficiary named in the Will that the Plaintiff advances as the one that the Court should authorise to be made on behalf of Bridget.

35. Bridget married HEML on 20 April 1972. There were no children of their marriage. He predeceased her, having died on 27 April 2015, aged 88 years.

36. So far as is known, there is no person who is an eligible person, within the meaning of that term in s 57 of the Act, who could apply to the Court for a family provision order in respect of Bridget’s estate upon her becoming a deceased person.

37. Bridget made a duly executed Will on 27 December 1972. By that Will, she appointed HEML as the sole executor and universal legatee. The Will included no substitute beneficiary, or gift over, in the event that HEML did not survive her. No other Will made by Bridget has been located.

38. The Power of Attorney in favour of the Plaintiff, a copy of which formed an annexure to the Plaintiff’s affidavit sworn 5 December 2017, appears to have been prepared by a solicitor, Mr D J Ireland, of Paine Ross & Co, a firm of solicitors in Windsor, New South Wales. Mr Ireland was not a witness in the proceedings. There was evidence that he gave a Certificate under s 19 of the Powers of Attorney Act 2003 (NSW) confirming that he had explained the effect of the Power of Attorney to Bridget before it was signed and that she “appeared to understand the effect” of it.

39. The enduring Power of Attorney signed by Bridget is dated 28 August 2015. The Plaintiff accepted his appointment also on 28 August 2015. There is no evidence that the Power of Attorney has been registered.

40. Importantly, in the enduring Power of Attorney, whilst the Plaintiff, as Attorney, was authorised to “view [a] copy of my Will”, the powers authorising him “to give reasonable gifts as provided by s 11(2) of the Powers of Attorney Act 2003”, “to confer benefits on the Attorney to meet the Attorney’s reasonable living and medical expenses as provided by s 12(2) of the Powers of Attorney Act”, and “to confer benefits on the following persons to meet their reasonable living and medical expenses as provided by s 13(2) of the Powers of Attorney Act”, were deleted.

41. In addition, the Plaintiff acknowledged that “unless expressly authorised, I cannot gain a benefit from being an attorney”. (It was submitted that these matters are irrelevant as the actions of the Plaintiff do not relate to him being an Attorney.)

24. There was no evidence given by the Plaintiff about the circumstances in which the Power of Attorney was prepared and executed. Nor was there any evidence given by him about the discussions, if any, that Mr Ireland had with Bridget, about making a Will. (This is somewhat surprising, since the Plaintiff gave evidence about conversations he said he had with Bridget about making a Will, which, on his evidence, would have been around the time of the making of the Power of Attorney.)

25. Bridget has been living in a retirement village since about October 2015. She moved there, initially, for respite care, but was subsequently accepted on a permanent basis.

26. It is agreed by the parties that if Bridget died intestate, the whole of her estate would pass to MGR and MLR in equal shares by the operation of the rules of intestacy.

27. Bridget’s estate currently consists of the real estate at Haberfield ($2,000,000), a share portfolio ($120,000), cash on term deposit ($40,000) and a refundable accommodation deposit from the retirement village in which she currently lives ($250,000). It can be seen that the value of her estate is reasonably large ($2,410,000).

28. MGR gives evidence of having had regular contact with Bridget throughout the 1950s and 1960s, when he used to attend the Haberfield home, which had a tennis court, to play, and watch others, including Bridget, play tennis. He says that there were regular family gatherings, throughout that period, which included birthdays, Easter, and Christmas at which he, and his family, would attend.

29. Following his family’s move to a home in Baulkham Hills, Bridget would visit them many times, and occasionally, she would assist in babysitting duties.

30. In cross-examination however, MGR admitted that until recently, he had not seen Bridget since about 1970. He had seen her in recent times, but only following receipt of a letter from the Plaintiff’s solicitor prior to the commencement of the proceedings: T43.32 – T44.00.

31. MLR gave similar evidence: T46.08 – T46.13. He was also asked about his knowledge of a falling out between Bridget and his mother. He said the only time he had heard of an alleged falling out was in a telephone conversation that he had with the Plaintiff’s solicitor. He accepted that “it is possible that there was a falling out but simply that [he was] never aware of it”: T45.42 – T46.06.

32. I shall return to the evidence regarding this topic later in these reasons.

The Proposed Will

51. The Plaintiff provided a proposed draft of the Will for Bridget that he wished the Court to authorise to make. In summary, the terms of that proposed Will are as follows:

1. All previous wills were to be revoked;

2. The Plaintiff is to be the executor;

3. The whole of Bridget’s estate is given to the Plaintiff, upon trust to sell, call in, or convert into money, any part of the estate and to pay the debts and testamentary expenses associated with Bridget’s death or the administration of the estate;

4. Provided each of the natural persons survives her by 30 days, the balance of the estate remaining is to be divided, as to 25 per cent to the Plaintiff; BC, who is the niece of HEML, as to 15 per cent; 15 per cent being divided into 4 equal shares, with one share passing to five named cousins of Bridget, namely HB, EG, RP, MP, and LM; 15 per cent passing to the Royal Society for the Prevention of Cruelty to Animals, New South Wales (“RSPCA”); 15 per cent passing to the St Joan of Arc Villa, a nursing home at which Bridget was a resident for about two years; and 15 per cent passing to “Uniting”, which is a company apparently associated with the Hawkesbury Village, at which Bridget has been a resident since July 2017, for its general purposes; and,

5. The executor is given specific powers in relation to the property forming the estate, including a power to postpone sale and conversion of any part of the estate for so long as he thinks fit.

52. The effect of the proposed Will, if made, will be to remove the entitlement of MGR and MLR under the operation of the rules of intestacy, to the whole of Bridget’s estate.

Bridget’s Capacity

53. Bridget suffers from moderately advanced dementia. Dr Jane Lonie, a Consultant Clinical Neuropsychologist, consulted with Bridget over a three hour period, at Bridget’s Joan of Arc Villa residence on the morning of 25 May 2017. The interview and cognitive assessment was conducted without the presence of any member of staff or family. However, Dr Lonie did consult with the Registered Nurse in charge of overall care for a brief period before speaking with Bridget. The nurse (Anne) informed Dr Lonie that the Plaintiff was “the only regular family visitor” and that he “had been consistently attentive and responsive to [Bridget’s] needs” and “was the primary point of communication for the staff, with regards to [Bridget’s] needs”.

54. Dr Lonie prepared a report dated 29 May 2017, a copy of which was annexed to the Plaintiff’s affidavit. She has concluded that Bridget lacks an appreciation of the nature and size of her estate and is not capable of weighing the claims of the potential beneficiaries of her estate.

55. Dr Lonie, in the report, also recites parts of the conversation that she had with Bridget:

“33.   [Bridget] was able to tell me where [the Plaintiff] lived, his wife’s name and of the family alpaca breeding business.

34.   She indicated to me that she did not have a will. [Bridget] explained that she was not against making a Will but that she did not think it really mattered.

35.   [Bridget] explained that her father had not written a will [sic] and that his estate had been divided equally (three ways) between his wife and two children.

36.   I questioned [Bridget] about the purpose of a Will, to which she replied ‘somebody getting rid of their house and pots and pans and whatever they have’.

37.   I asked [Bridget] when it was that a Will came into effect, to which she replied, ‘When someone dies’.

…

43.   [Bridget] was aware of the fact that it was possible to alter or cancel a Will after it was made.

…

45.   [Bridget] was unable to tell me what effect her existing Will would have on her family relations after she passed away.

46.   I asked [Bridget] which people would expect to benefit from her Will, to which she replied, ‘I don’t know. I have got relations but I don’t see them. Some are dead. No, I could not say really’.

47.   I asked [Bridget] which of her relations were still alive, to which she replied ‘Cousins…No I can’t’.

48.   I provided [Bridget] with a list of all of her relatives (as provided by [the Plaintiff]). [Bridget] read over these names. She appeared to recognise some of her relatives but not others.

49.   I asked [Bridget] to tell me what she knew of each of the relatives listed.

50.   She was able to tell me that she had a cousin by the name of [H] who lived in Wollongong and had a drink factory. She thought [H] had five children although she was uncertain of this.

51.   [Bridget] told me about another cousin by the name of [B], who had been born with what sounded like an intellectual disability and was currently living in a care home. She indicated to me that [B] married and she thought she had three children, however, [Bridget] was unable to tell me who they were.

52.   I asked [Bridget] about her relations [RP] and [MP]. She told me that she recognised the names but that she was unable to recall anymore.

53.   I asked [Bridget] about [PD]... [Bridget] was unable to tell me anything about her.

54.   I asked [Bridget] about an old neighbour called [G]. She was unable to tell me anything about her.

55.   I asked [Bridget] who her friends were. She referenced a good friend she had whilst working at Shell but was unable to recall her name or anything else about her. At at [sic] later stage of the interview she recognised her friend’s name as being Shirley. With prompting, she also recalled her pen friend, [M] (since 1946).

56.   [Bridget] suggested that her old neighbour [WG] now lived in America, although I note that [the Plaintiff] listed his current residence as Turramurra.

57.   I asked [Bridget] whether she would consider leaving anything in her Will to any charities, to which she replied, ‘I’m not into any’. Later during the course of our interview, [Bridget] indicated that she may leave some money to the church (Joan of Arc), however she was uncertain of how much she should leave. She later went on to state ‘church, you would not give it to the church would you’?

58.   I asked [Bridget] whether there was any person who she did not wish to benefit from her Will, to which she replied ‘Oh, I don’t think so. No.’

59.   I asked [Bridget] how she would like to divide her assets in the Will. She told me that she could not work it out and would need a list with all the people on it. I handed [Bridget] the list of relatives provided to me by [the Plaintiff]. She once again appeared to recognise some of the names on the list but not others.”

56. Dr Lonie concluded that Bridget “exhibited a non-fluent expressive dysphasia marked by pauses in speech due to word search and phonemic errors. She provided concrete answers to a number of questions that were put to her”. Bridget was found to display “a number of areas of very significant cognitive compromise within the context of moderately advanced stage dementia… [She] is unable to retain her line of thought for long enough to retain and consider which assets she owns, their approximate worth and her potential beneficiaries… [Whilst she] is aware of the purpose and general nature of a Will, she does not retain adequate knowledge of her beneficiaries or assets. Nor does she retain an appreciation of the approximate overall value of her estate…[her] cognitive impairment would prevent her weighing up the claims of her potential beneficiaries on her estate, with the potential to alter the manner in which she might otherwise exercise judgment in her decision making”.

57. There is no dispute that Bridget lacks testamentary capacity and that she is unlikely to regain that capacity.

58. Bridget falls into the “lost capacity case”, described by Palmer J in Re Fenwick; Application of J R Fenwick; re Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 at [170], where the person is an adult, has formed family and other personal, relationships, has made a valid Will, and has expressed some testamentary intention before losing capacity.

59. (I mention the category even though the Act does not speak in terms of different categories of case since the category may provide an insight into the operation of the Will making operation of the Act: Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065, Lindsay J, at [76].)

The Credit of the Plaintiff

60. I shall next deal with some of the evidence of the Plaintiff, and, because it was the subject of submissions by counsel for the Defendants, the Plaintiff’s credit. It may be regarded as unusual for credit issues to play a part in this type of proceedings, but in this case, there were a number of matters that result in having to regard the Plaintiff’s evidence with some reservation.

61. Counsel for the Defendants submitted that the Plaintiff’s evidence should be considered with a significant degree of caution as the Plaintiff clearly has a vested interest in making the application, and without a statutory Will, he would not receive any of Bridget’s estate.

62. There were a number of matters that justify the criticism. These were:

1. In his only affidavit, sworn 11 December 2017, the Plaintiff gave evidence of having had one conversation with Bridget, in 2015. He wrote:

“In 2015, I had a conversation with [Bridget] in words to the following effect:

Me:   ‘[Bridget], you should think about making a new will.’

[Bridget]:   ‘It’s too difficult. I don’t know. I should help out the rels [relatives]. And perhaps I could leave some to the church and the dogs.’

Me:      ‘Well I can help you to organise that’

[Bridget]:   ‘I’ll think about it and we will do it later’

Me:      ‘What about Lindsay’s children?’

[Bridget]:   ‘No. I don’t want anything to go to them’.”

This was the only part of the affidavit evidence given by the Plaintiff of Bridget’s intention to limit the entitlement of the Defendants to any part of her estate. (There is no evidence of the identity of the relatives referred to and the proposed Will makes no reference to any dogs.)

2. In cross-examination, the Plaintiff amplified his affidavit evidence by stating that he had had at least three conversations with Bridget about a Will. The first, he said, occurred at Concord Hospital, “several months” after April 2015, when HEML died. The Plaintiff’s wife was said by him to have been present at the time. He raised the topic of the Will with Bridget, by saying “It might be time to make a Will”, but she replied that she “was not in any frame of mind to make a Will”: T18.28 – T19.40.

The Plaintiff also said he had another conversation, in about August 2015, by which date Bridget was living in the St Joan of Arc Village. Again, he stated that his wife had been present. He raised the topic of the Will, again, saying “it might be time to make a Will”, but she replied that “it was all too hard and that she wanted to leave it to another time”: T19.46 – T20.34. (The Plaintiff accepted that it was to this conversation that he had referred in his affidavit.)

He gave oral evidence of two further conversations, on each occasion, the topic being raised by him, but he could not remember what was said or who was present: T20.40 – T21.32.

3. The Plaintiff was unable to provide any explanation for the failure to include a reference to the first conversation, and the other conversations, in his affidavit.

4. In the letter of instructions, dated 9 April 2017, sent to Dr Lonie, written on the instructions of the Plaintiff, the solicitors referred to only one conversation “in late 2015” with Bridget about the Defendants. The Plaintiff was unable to provide any explanation for his solicitor not having included a reference to the other conversations in the letter of instructions.

5. The Plaintiff agreed that he had made no note of any of the conversations; that the conversations occurred in a fairly casual social context, namely, whilst visiting Bridget; and that the first time he had to recollect the conversations was some two years after the conversations were said to have occurred, when his affidavit was prepared: T21.07 – T21.20.

6. The Plaintiff’s wife, who was present in Court throughout the whole of the hearing (T40.39 – T40.43), did not provide an affidavit that was read in the proceedings. The Plaintiff could not provide any explanation why she had not done so. The failure to call evidence about each of the alleged conversations at which the Plaintiff said she was present is relevant because there is no corroboration of any of the conversations that the Plaintiff asserted that he had with Bridget.

7. One of the issues of fact in the case related to Bridget’s relationship with the Defendants’ parents. In his affidavit, the Plaintiff had asserted that Bridget and “her brother … had a very bitter falling out approximately in the mid-1950’s … I understand that the major falling out was to do with issues around the alleged treatment of [Bridget’s] mother by [the Defendants’] parents.”

The Plaintiff’s affidavit contained reference to no conversation with Bridget, other than stating that in any conversation that he had with Bridget about the Defendants’ mother, Bridget referred to her as “that bastard”. He could provide no explanation for not having done so.

8. The Plaintiff was asked questions about whether he had personal knowledge of the (alleged) “falling out” between the Defendants’ parents and Bridget. He gave evidence that he “was aware that there was a family dispute, prior to the conversation that he had with Bridget about her Will”: T22.22 – T22.38.

However, in the letter to Dr Lonie, there was a statement that “he has since heard through the family that [Bridget] had a falling out with her brother (or more accurately, his wife)”: Ex. D1. The statement immediately follows the repetition of the conversation that he said he had with Bridget (in his affidavit).

The Plaintiff agreed, then, that “the statement in the letter that [he] had since heard through the family that [Bridget] had a falling out with her brother, or more accurately his wife, is inconsistent with [his] evidence today that … [he] knew about that fight or falling out at the time that you had the conversation with Bridget”: T25.30 – T25.35; T25.43 – T26.23.

9. No family members gave evidence of his, or her, knowledge of the falling out. The Plaintiff could provide no explanation for not having sought that evidence.

10. The Plaintiff stated that he had specifically excluded from the list of beneficiaries provided to Dr Lonie, a reference to each of the Defendants.

11. The Plaintiff gave evidence about a conversation with Bridget at which one of the Defendants had been present. Whilst he described the conversation as having taken place “recently” (T36.30 – T36.31), he then gave evidence that it had occurred in October 2017: T41.33 – T41.43. The conversation had not been included in his affidavit. (Furthermore, neither of the Defendants was cross-examined about the conversation.)

12. The Defendants’ solicitors, in 2017, raised the issue of Bridget’s funds being used to fund this litigation with the Plaintiff’s solicitors. The first letter, dated 20 December 2017, was one sent by their solicitor to the Plaintiff’s solicitor. The response, by letter dated 8 January 2018, was that “he proposes to use her resources to fund the application to the Court”. This was followed by a letter dated 18 March 2018, from the Defendants’ solicitor, stating that the Plaintiff did not have the right to use Bridget’s fund to fund the proceedings, and sought an undertaking that he would not do so. The undertaking was not given (Ex. D1).

13. Despite the correspondence referred to, the Plaintiff agreed that he had used $12,177.45 of Bridget’s funds to pay some of the costs and disbursements (between 4 August 2017 and 10 May 2018): Ex. D; T17.26 – T17.28. He maintained, however, that he was entitled to use Bridget’s funds to meet those charges “because I am acting as her attorney so I am acting as her, on behalf of her to put together a Will: T35.32 – T35.44.

14. The Plaintiff stated in his affidavit that he and his wife were then visiting Bridget “usually three to four times per week”. The Resident Leave Log Book of the Uniting Hawkesbury, where Bridget lives, a copy of which Log Book formed part of Ex. D1, disclosed that between 17 August 2017 and 26 December 2017, Bridget had been signed out by the Plaintiff on 3 occasions. A Visitor Log recorded, for the period between 16 August 2017 and 12 August 2018, that the Plaintiff had signed the Visitor Log on 27 occasions, of which 23 occasions occurred between 16 August 2017 and 25 December 2017. (The Plaintiff stated that on some occasions that he visited, he had not signed the Visitor Log and that whilst signing the Visitor Log was “normal procedure”, it was not mandatory: T31.50 – T32.04.)

15. As for the cousins named in the proposed Will as beneficiaries, who were said to have kept in contact with Bridget, the Visitor Log made no reference to HB visiting in the period May 2017 to August 2018; to the knowledge of the Plaintiff, EG had had no contact with Bridget in the “last year or two”: T33.36 – T33.42; RP was not identified as a person who had signed the Visitor Log and the Plaintiff was not aware of him having done so during the last year: T34.18 – T34.20; and, MP was identified as a person who had signed the Visitor Log on one occasion only.

16. The Plaintiff had not sought an affidavit from any of the proposed natural beneficiaries, with all of whom he was in contact, in which her, or his, relationship, respectively, with Bridget, could be exposed: T35.14 – T35.30.

17. The Plaintiff regarded as “unjust” that he was not entitled to remuneration for what he was doing for Bridget: T35.46 – T36.15. He denied, however, that this was a reason for making the application.

9. The failure to have the solicitor, who provided the Certificate on the enduring Power of Attorney to provide information about his conversation, if any, with Bridget, about making a Will at the time the Power of Attorney was made, has been mentioned.

63. I have not forgotten that the Court is not bound by the rules of evidence: s 21(c) of the Act. However, each of the persons who was referred to, who did not give evidence, may have provided evidence that would be material to the issues in the case.

The Weight to be attached to Bridget’s Statements made after late 2015

64. The Plaintiff gave evidence that he thought that Bridget had lost her capacity to make a Will by late 2015. However, some of the conversations with her, about which he gave evidence, would have occurred at, or about, that time. Certainly, Bridget’s conversation with Dr Lonie occurred at a time when Dr Lonie noted Bridget’s cognitive difficulties. I have referred to that evidence above.

65. Clearly, by virtue of s 19(2)(d) of the Act, any evidence available to the applicant of the person's wishes, is included in the information to be given to the Court (unless the Court otherwise directs), even though the starting point is that Bridget does not have capacity.

66. In Re APB, Ex parte Sheehy [2017] QSC 201, Applegarth J stated at [104]:

“As a general proposition, the wishes of a person who does not have capacity do not carry the same weight as those of someone who does. The weight to be given to any statement of intention depends on the circumstances under which it came to be made. Substantial weight may be given to a statement of actual intention if the extent of incapacity is slight. By contrast, a statement of intention by a party who lacks capacity may warrant very little weight if the incapacity leads the person to be mistaken about the truth or even deluded ‘about the natural objects of his or her testamentary bounty — a not infrequent symptom of testamentary incapacity’. It also may warrant very little weight if the person was vulnerable to suggestion, improper influence or bad advice, being a vulnerability which the person would not have experienced if he or she had testamentary capacity.”

67. I respectfully agree with the general proposition stated in the above passage. Furthermore, where, as in this case, there is a statement made by the person said to lack capacity, which statement can be corroborated by other independent evidence, the statement made may warrant greater weight.

68. In this case, what Bridget appears to have done is to indicate to the Plaintiff, despite him raising the matter with her, that she did not wish to make a Will. She seemed to say the same thing to Dr Lonie. Whether she was not in a fit state of mind to do so, whether she was not certain of her wishes, or whether there were some other reasons, she appears to have remained resistant, between mid to late 2015 and 2017 to committing to how her estate was to be distributed on her death.

69. It should also be remembered that there is evidence that Bridget had only made one Will throughout her lifetime. There was no suggestion that she had made, or sought to make, any other Will.

The Statutory Will – Legislative Scheme

70. I expressed much of what follows in Re Will of Jane [2011] NSWSC 624. I shall repeat what I wrote in that case, with some additional principles.

71. The sections of the Act that are relevant to the matters the subject of these proceedings, commence at s 18. They form part of Division 2 of Part 2.2 (sections 18-26). They apply on, or after, the commencement of the Act, namely on 1 March 2008 and, in the case of an order with respect to the alteration, or total, or partial, revocation of a Will, apply, even if the Will was made before that commencement date (see Clause 3(5) of Schedule 1). There is no dispute that the Act may be relied upon in respect of Bridget.

It is to be remembered that this part of the Act confers a jurisdiction in Re K’s Statutory Will (2017) 96 NSWLR 69; [2017] NSWSC 1711 at [21], referring to GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 at [48]:

“…which is protective in nature and is informed by the protective jurisdiction historically exercised by the Court over persons without testamentary capacity; that jurisdiction is purposive, the purpose being, at its highest level of abstraction, protection of a person in need of protection. So grounded, the jurisdiction is broad in scope and flexible in nature. It has been said that its guiding principle is that whatever is done, or not done, for or on behalf of the person in need of protection must be for the benefit, and in the interests, of that person.”

72. Yet, it seems to me, that the test of “benefit” and “in the interests of” may not be, necessarily, the same as one of the matters that is required to be established by s 22(b) of the Act, namely “whether the proposed will is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity”. “Benefit” and “interests of” is not the test of what may be called “substituted judgment” (what the person would, or would have been reasonably likely to, have made). Rather, it requires a determination to be reached by applying an objective test as to what would be for the incapacitated person’s benefit, or in her, or his, interests, whereas the test of "substituted judgment" requires a determination by applying a subjective test. The exercise to be carried out in the sub-section is not by a reference to a hypothetical person, or a reasonable person, but by reference to the incapacitated person herself or himself. The sub-section clearly refers to the Will being one that the person would, or would have been reasonably likely to, have made.

73. (In stating the above, I appreciate that in a case where the person falls within the category of never having had testamentary capacity, what was written by Lindsay J in Secretary Department of Family & Community Services v K at [75] - [79] may be more appropriate. However, this is not such a case.)

74. In any event, the consideration of the interests of the incapacitated person and of those having a proper claim on her, or his testamentary bounty, should be seen as an object of the jurisdiction, which the Court exercises under this part of the Act. Notwithstanding that s 18 of the Act is remedial, care must be taken to ensure that that the statutory formalities in s 19 and s 22 are not unduly relegated in importance.

75. The Court may make an order authorising a Will to be made in specific terms approved by the Court on behalf of a person who does not have testamentary capacity: s 18(1)(a). The order under this section may authorise the making, or alteration, of a Will that deals with the whole, or part, of the property of the person who lacks testamentary capacity, or the alteration of part only of the Will of the person: s 18(2). An order, however, may only be made if that person is alive: s 18(3).

76. The Court’s discretion is not at large. However, the jurisdiction is broad and flexible. Yet, mindful of the serious consequences of the conclusions which the Court is asked to draw, its satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 363; [1938] HCA 34. (I have not forgotten that the Court is not bound by strict rules of evidence and has access to “information” and also has a discretion to act on material which is rationally probative, even though excluded by such rules, provided that in all the circumstances it is proper to act on that material, and that it may be acted upon fairly as regards the parties before the Court: Roberts v Balancio (1987) 8 NSWLR 436 at 437; Secretary Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065 at [23].)

77. It is to be observed that s 18(1) contemplates that "any person" may make an application. There is no reason to read down the words "any person" except by reference to s 22, to which reference will be made later in these reasons. Yet, the object of this part of the Act is, in effect, not to confer the Will making power of an incapable person on that person.

78. Leave to make the application for the statutory Will must first be obtained: s 19(1). However, the application for leave and authorisation may be heard together: s 20(1). In making an order, the Court may make any necessary related orders or directions: s 18(5).

79. It can be seen, from what has been written so far, that the Act contemplates a two-stage procedure for the authorisation of a statutory Will – first, an application under s 19 of the Act for leave to apply for an order under s 18 and, second, an application, under s 18 of the Act, for an order authorising a Will to be made, in specific terms, approved by the Court.

80. In following this procedure, baseless, or unmeritorious, applications are likely to be screened out at a relatively early stage: Burns v The Estate of Troy Mitchell Burns a Protected Person (2013) 11 ASTLR 362; [2013] NSWSC 1550 at [5]; Argiro v Lagozino [2017] SASC 185 at [20]. Yet, there is nothing in the text, or in the context of s 22, that limits the role of the leave application to screening out baseless or unmeritorious claims.

81. However, in a clear case, under s 20(1), on hearing an application for leave, the Court may proceed to determine the application under s 18 and, if satisfied of the matters set out in s 22, make the order. This will be done to save the parties expense and time.

82. The Court will normally proceed to hear the application for a final order as soon as it grants leave under s 19(1) if satisfied that the circumstances revealed in the information provided in order to satisfy the requirements of s 19(2) and s 22 is sufficient to justify the making of a final order and is unlikely to change in the foreseeable future: Re Fenwick, at [120].

83. If an order is made under s 18, the Will that is made, or altered, must be deposited with the Registrar (s 18(6)). It is properly executed if it is in writing, and it is signed by the Registrar and sealed with the seal of the Court. The Registrar previously could only sign the Will if the person in relation to whom the order was made is alive: s 23(2), but the sub-section was amended on 21 March 2018 so that, now, a Will may be signed by the Registrar for the purposes of s 23(1)(b) even after the death of the person in relation to whom the order was made.

84. The Registrar must retain the Will until the Court makes a s 18 order wholly revoking the Will, or the person for whom the order under s 18 was made, has acquired, or regained, testamentary capacity: s 24.

85. Specified information must, unless the Court otherwise directs, be given to the Court in support of the application for leave: s 19(2). That information includes:

“19   Information required in support of application for leave

…

(a) a written statement of the general nature of the application and the reasons for making it,

(b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought,

(c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought,

(d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval,

(e) any evidence available to the applicant of the person's wishes,

(f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity,

(g) any evidence available to the applicant of the terms of any will previously made by the person,

(h) any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person,

(i) any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person,

(j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person,

(k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will,

(l) any other facts of which the applicant is aware that are relevant to the application.”

86. The checklist provided by s 19 is neither exhaustive, nor rigid, and the Court may dispense with the requirement to provide some of the information when it is clear that the required information exists, or might exist, but it could have no bearing on the fate of the leave application, or on the application for a final order, or if to require it to be provided would entail needless expense and delay. No such dispensation is required where the information does not exist.

87. (Whilst “evidence” in support of an application would, usually, mean “admissible evidence”, it is interesting to note the use of the word “information” in s 19, which suggests that it does not have to take the form of admissible evidence. It also permits, it would seem, hearsay evidence.)

88. Without limiting the action the Court may take in hearing the application for leave, the Court may revise the terms of any draft of the proposed Will, alteration, or revocation, for which the Court's approval is sought: s 20(2). Therefore, if the proposed statutory Will fundamentally fulfils the requirements of the section, but requires adjustments, the Court may make such adjustments by modifying, redrafting or altering its terms.

89. Section 21 provides that in considering an application for an order under s 18 (but it would appear, not for leave under s 20(1)), the Court may have regard to any information given to the Court in support of the application under s 19, may inform itself of any other matter in any manner it sees fit, and is not bound by the rules of evidence.

90. The Court, by s 22, must refuse leave to make an application for an order under s 18 unless the Court is satisfied of five different matters, namely, that:

1. there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a Will (lack of testamentary capacity);

2. the proposed Will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he, or she, had testamentary capacity (accurate reflection of testamentary intentions);

3. it is, or may be, appropriate for the order to be made (appropriateness of order);

4. the applicant for leave is an appropriate person to make the application (appropriateness of applicant); and

5. adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift, or benefit, from the estate of the person in relation to whom the order is sought (proper contradictors).

91. As each of those conditions must be satisfied before the Court can grant leave under s 21(2), the power of the Court under s 18(1) to authorise the making of the Will shares that predicate: s 20(1)(b). However, the discretionary power to grant leave is distinctly separate from the discretionary power conferred under s 18 to make the substantive order.

92. However, s 22 does impose a substantial constraint upon the exercise of the discretionary power to grant leave.

93. To enable it to be satisfied of the matters in s 22 will require the Court to be furnished with sufficient proof that leads to it being assured or convinced, on the balance of probabilities, of each of the conditions. That will require the Court to assess the terms of the proposed statutory Will, whilst retaining, under s 20, power to revise those terms in order to perfect its conformity with the incapacitated person's reasonably likely testamentary intentions. It would appear to demand a degree of precision about the actual, or reasonably likely, intentions of the person lacking capacity and that what is proposed reflects those intentions.

94. There is no definition of "testamentary capacity" in the Act. It must, however, mean "the capacity to make a will". Nor is the cause of any incapacity stated. It may arise from mental illness, head injury, stroke, a degenerative disease or condition, or an inability to communicate because of a physical, or other, disability.

95. What constitutes testamentary capacity was explained by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

96. It is that formulation which applies under the Act: Re Fenwick at [126]. The statement has been described as "a durable formulation" which "has withstood the test of time" Sharp v Adam [2006] WTLR 1059; [2006] EWCA 449 at [82] and [66]).

97. In In the Will of Wilson (1897) 23 VLR 197, Hood J, at 199, observed that in order for a testator to rightly understand these matters, it was essential that his “mind should be free to act in a natural, regular, and ordinary manner”. These observations were cited, with approval, by Dixon J (as his Honour then was) in Timbury v Coffee (1941) 66 CLR 277 at 283; [1941] HCA 22.

98. It can be seen that under s 18(1), the Court can make a final order only in respect of a person "who lacks testamentary capacity". However, on the application for leave under s 19, the Court must be satisfied that "there is reason to believe that [the incapacitated person] is, or is reasonably likely to be, incapable of making a will": s 22(a). Thus, in the leave application, it is sufficient to demonstrate a reasonable likelihood of testamentary incapacity, but in order to obtain a final order, a jurisdictional fact must be proved, i.e. that the proposed testator actually lacks testamentary capacity: Re Fenwick at [121].

99. The Court's concern under s 22(b) is with the actual, or reasonably likely, subjective intention of the person lacking capacity. It is the specific individual person who is, or is reasonably likely to be incapable of making a Will, that must be considered. It is not an objective, or hypothetical, person who is considered. The jurisdiction of the Court is, so far as is possible, to make a statutory Will in the terms in which a Will would have been made by that person if the person had testamentary capacity at the time of the hearing of the application.

100. As Palmer J put it in Re Fenwick, at [155]:

“[H]as the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?”

101. In this case, the evidence reveals Bridget only having made one Will the effect of which was to provide the whole of her estate to her husband with no gift over in the event that he predeceased her. Accordingly, there is no yardstick by which to determine what her testamentary intentions were in the event that her husband predeceased her when she had capacity.

102. Palmer J also wrote, at [161]:

“In such a case the Court may be satisfied as to what the incapacitated person is 'reasonably likely' to have done, in the light of what is known of his or her relationships, history, personality and the size of the estate. The previous will may give a very good indication of the incapacitated person's testamentary choices and preferences such as to provide evidence of what it is likely he or she would now do in the changed circumstances.”

103. Given the paucity of evidence before the Court, I cannot be satisfied of what Bridget’s intentions would be if she had testamentary capacity. So, if an actual intention cannot be established, the sub-section speaks in the chameleon-like language of “reasonable likelihood”. The degree of satisfaction that the phrase “reasonably likely” contemplates is difficult to discern. The phrase has a different connotation from the single word “likely”. The qualifying adverb “reasonably” requires that the word “likely” be given a meaning less definite than “probable”. It is that word (“reasonably”) which governs the standard of likelihood. It lessens the intensity of the word “likely”. In other words, quantitative guidance is suggested by the word “reasonably” whilst the word “likely” requires a qualitative judgment.

104. As to the phrase “reasonably likely” Palmer J wrote in Re Fenwick, at [152]:

“Thus ‘reasonably likely’ can mean ‘a fairly good chance that it is likely’ or ‘some reasonable people could think that it is likely’ or ‘some reasonable people could think that there is a fairly good chance that it is likely’. Such are the nuances of the English language.”

105. The Shorter Oxford English Dictionary defines “reasonably” as “sufficiently, fairly”.

106. Although the context being considered was very different to the present, the observations of the Victorian Full Court concerning the phrase "reasonably likely" in Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 are useful. At 837, Young CJ observed that “reasonably” was a qualifying adverb “which requires the word ‘likely’ to be given a meaning less definite than probable”. Marks J said of the phrase "reasonably likely" in the Freedom of Information Act 1982 (Vic), at 842:

“The expression ‘reasonably likely’ is substantially idiomatic, its meaning not necessarily unlocked by close dissection. In its ordinary use, it speaks of a chance of an event occurring or not occurring which is real - not fanciful or remote. It does not refer to a chance which is more likely than not to occur, that is, one which is ‘odds on’, or where between nil and certainty it should be placed. A chance which in common parlance is described as ‘reasonable’ is one that is ‘fair’, ‘sufficient’ or ‘worth noting’. It is not inapt to attribute such meaning to the expression in s 31(1) of the Act.”

107. More recently, in Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31, Perram J, when considering whether documents should be produced under a notice to produce, at [4], wrote:

“Reasonable likelihood is a different concept to reasonable possibility and, to my mind, connotes a degree of certainty ... that travels beyond the merely conjectural.”

108. Whether the proposed statutory Will is "reasonably likely" must be derived from all relevant evidence and information as may be available concerning the actual intentions, attitudes and predispositions of the person in the past, by reference to what is known of his, or her, relationships, history, personality and the size of the estate. Thus, it seems, what is required is to establish the chance of an event occurring (the proposed Will is one that is, or would have been reasonably likely to have been made, by the incapable person, if he, or she, had testamentary capacity) that is above mere possibility, but not so high as to be more likely than not. In other words, more is required than mere assertion, suspicion, or conjecture. A mere possible, or potential, reflection of the incapacitated person’s intentions is not enough.

109. If the actual, or reasonably likely, testamentary intentions are established, the next question is whether those intentions would have been carried into testamentary effect by the person "if he or she had testamentary capacity"? A previous Will, or Wills, may give a clear indication of the person's testamentary choices and preferences such as to provide evidence of what it is reasonably likely he, or she, would do if he, or she, had testamentary capacity.

110. The question is not whether he, or she, would likely have preferred the proposed statutory Will to intestacy, or to her, or his, prior Will. The Court does not engage in an exercise of comparing the proposed Will to what will happen if the Court declines to grant the relief under s 18, and does not decide which alternative the incapacitated person would prefer: Re Gillam [2016] VSC 5, at [24].

111. Nor is it whether the proposed Will is one of a number of possible proposed Wills, all of which might be equally likely to be one that he, or she, may have made if he, or she, had testamentary capacity. If the proposed statutory Will does no more than reflect one of a number of other possible dispositions, in my view, the requirements of s 22(b) will not be satisfied since it would not be "reasonably likely" to be a Will that he, or she, would have made had he, or she, had testamentary capacity.

112. Clearly, in determining the answer to the question raised by s 22(b), the Court must be cautious, mindful of the consequences of a decision under s 18. It is a serious matter for the Court to appropriate to itself the Will-making power of the citizen: Re Fenwick, at [130]. It will never be an easy task because of the condition of the person in circumstances where his, or her, actual last words on the topic were formally made, in this case, a long time ago, or where they may never have been formally articulated.

113. There is nothing in s 22(c) of the Act that provides guidance as to what circumstances, in addition to those set out in the other paragraphs of the section, are to be taken into account in determining whether a final order, is, or may be, “appropriate”, which, I take to mean “suitable” or “proper”. What is required is for the Court to assess, objectively, whether, and to what extent, it is, or may be, “appropriate” to make the order under s 18. In so doing, what the Court must consider is whether the expressed intention is the product of the incapacitated person's free choice, or whether some undue pressure or influence been applied.

114. Some assistance in answering that question is given by the information provided by s 19(2) and by the assessment of the terms of the proposed statutory Will.

115. Section 22(c) enables the Court to grant leave if it is satisfied that the evidence results in a final order being appropriate, or that it may be appropriate, having regard to the possibility that further evidence may be adduced at the final order stage which will positively satisfy the Court that the final order is then appropriate: Re Fenwick, at [189].

116. In relation to s 22(d), there is no definition of who may, or may not, be an “appropriate” person, seeking leave to make the application for an order. Again, the words “suitable” or “proper” appear apt in determining whether this condition is satisfied. It is doubtful that an “officious bystander” might be such a person.

117. In South Australia, where the equivalent section provides that “any” person may make an application, it has been said, in Jeavons v Chapman (No 2) [2009] SASC 3, at [30], that:

“[S]olicitors, social workers and health care workers who may be closely involved with the person should be entitled to make applications. The Protective Commissioner who may already be managing the person's financial affairs should also be entitled to make an application.”

118. One would expect that there could be no difficulty establishing this requirement in a case where the applicant for leave was a person who had no real interest in the outcome of the application for an order: see, for example, Application by Peter Leslie Kelso [2010] NSWSC 357.

119. However, one might be concerned whether a person who is to benefit by the proposed statutory Will is “appropriate”, since he, or she, has a real interest in the outcome of the application. In probate suits, where there is an issue about the validity of a Will, the court regards as a circumstance exciting suspicion, a Will prepared by a person who takes a benefit under it, or if the beneficiary is instrumental in having it prepared, and calls for the vigilant and anxious examination of the evidence as to the testator's appreciation and approval of the contents of the Will: Nock v Austin (1918) 25 CLR 519 at 528; [1918] HCA 73.

120. However, this concern, in the present context, is avoided by the requirement in s 22(b) that the Court be satisfied that the proposed statutory Will is, or is reasonably likely to be, one that would have been made by the incapable person if she, or he, had testamentary capacity. That requirement, in my view, similarly suggests a vigilant and anxious examination of the evidence as to the incapable person's actual, or reasonably likely, intentions.

121. In New South Wales, it has been held that one who may benefit from the proposed statutory Will could make the application. In such a circumstance, the Court might order separate representation, particularly if it appears that there is, at least the possibility of, a conflict of interest between the person applying for the statutory Will and the person for whom the Will is sought to be made: AB v CB [2009] NSWSC 680, at [13].

122. Section 22(e) has recently been amended by the Justice Legislation Amendment Act (No 2) 2018 (NSW), which was assented to on 21 June 2018. The sub-section now provides that the Court must be satisfied that adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought.

123. On the question of representation under s 22(e), the applicant should take all steps necessary to identify, locate, and serve any person with a legitimate interest in the application. Importantly, the class of persons may be wider than “persons for whom provision might reasonably be expected to be made by the will”.

124. The class of persons under s 22(e) are likely to include beneficiaries under an earlier Will, any person entitled on intestacy, persons who may have a claim on the bounty of the person lacking capacity, and perhaps, any eligible person within the meaning of that term in s 57 of the Act.

125. In Re HMF [1976] Ch 33, Goulding J wrote at 38:

“Now I take the view that in general, in a case of this character it is better for the legatees under the previous will to be themselves brought before the court as respondents …The desire to maintain the confidentiality of a living patient's affairs must, in my judgment, cede to the necessity for the court to act fairly in exercising its powers. …Without having some argument for those potentially interested under the previous will, the court cannot, to my mind, be satisfied that the proposed provision is one which the patient might be expected to provide if he or she were not mentally disordered … nor can it know the proper balance between the case presented by the present applicants and the claims, weak or strong, of those mentioned in the previous will.”

126. A little later, in Re B(Court of Protection: Notice of Proceedings) [1987] 1 WLR 552, in dealing with the question whether notification should be given to certain persons because if they were notified, a bitter and intractable family dispute would ensue, Millett J wrote at 556 - 557:

“In my judgment, laudable though the Receiver's object may be, there are two overriding considerations. First the court must be satisfied before it exercises a judicial discretion that it has all the relevant material before it and that it has heard all the arguments which can properly be canvassed and which are directed to the question to be determined. Second all persons materially affected should be given every opportunity of putting their cases forward. Of course there will be exceptional cases in which it will be right to exclude a party from the proceedings, notwithstanding the fact that he is a party interested. Plainly delay, cost, embarrassment and the exacerbation of family dissensions are all relevant matters. But only in the most exceptional circumstances should the consideration to which I have referred be overridden …. I approach this matter on the basis that the court has a general discretion concerning notification, but that it is one which must be exercised in relation to the facts of each particular case. In the ordinary case, and in the absence of emergency or need to act with great speed or of some other compelling reason, all persons who may be materially and adversely affected should be notified.”

127. I am inclined to the view that the statement of principle applies to the section of the Act in the same way.

128. The lack of testamentary capacity, the accurate reflection of testamentary intentions, and the adequacy of steps taken for proper contradictors are matters of fact that are to be established. What may be described as the “appropriateness” requirements involve the exercise of curial discretion. Thus, whilst relevant parties might consent to the terms of the proposed statutory Will, that consent cannot be conclusive because the execution of a Will for a person who lacks capacity is a decision to be made by the Court.

129. Palmer J in Re Fenwick, at [132], wrote:

“It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the Judge is not a referee; rather, the Judge is to endeavour to rectify a problem which is affecting people's lives, in the best possible way.”

130. It is important to note also that the power vested in the Court is not a power to review the reasonableness of the earlier dispositions made by a person then having testamentary capacity, on the grounds that the person now lacks such capacity. It is a power only to be exercised in situations where the proposed Will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he, or she, had testamentary capacity.

Section 19 requirements and the evidence

131. I shall next deal with the facts referable to s 19 of the Act. I shall identify the information required in support of the application for leave by reference to s 19(2) of the Act. (I should note that whilst counsel for the Defendants referred to the requirement for leave, he did not deal with the question of leave in his written submissions.)

132. Sub-section (2)(a) requires a written statement of the general nature of the application and the reasons for making it. The Plaintiff has provided that written statement in his affidavit. He states that Bridget, in 2015, expressed the desire that her estate not go to the Defendants. However, she no longer had the capacity to make a new Will.

133. Sub-section (2)(b) requires satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought. There was no dispute that there is such evidence, being the evidence of Dr Lonie, to which evidence reference has been made.

134. Sub-section (2)(c) requires a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under s 18 is sought. This has been provided and there is no dispute that the value of Bridget’s estate is reasonably large (estimated to be $2,410,000).

135. Sub-section (2)(d) requires a draft of the proposed Will for which the Plaintiff, as applicant, is seeking the Court's approval. A draft Will is an annexure to the Plaintiff’s affidavit that was read in the proceedings.

136. Sub-section (2)(e) requires evidence available to the applicant of Bridget’s wishes. Notably, the sub-section does not state that her wishes are paramount. The weight to be attached to Bridget’s wishes will always be case-specific and fact-specific. There may be cases in which the wishes carry much, even, on occasions, preponderant, weight. In other cases, they may carry very little weight. Even where wishes are expressed after the person has lost capacity to make the relevant decision can be given weight.

137. The weight to be attached to the wishes must always depend upon the particular context and all the relevant circumstances. For example, the factual accuracy of the reasons, if any, expressed in providing reasons for the wishes; any influences to which the person may have been subject at the relevant time; the way in which the person’s wishes had been obtained; the degree of incapacity, if any, at the time the wishes were expressed; the strength, and consistency, of the wishes that have been expressed; whether the wishes are, or are not, rational, and apparently sensible, meaning whether the wishes are those which a person of capacity might reasonably have held; and whether there are any competing considerations, may all be relevant.

138. What has been expressed has been confirmed in Re K, JL [2016] SASC 53, in which Doyle J wrote, at [51]:

“… the weight that should be attached to such evidence can only be determined in an individual case by reference to considerations such as the person’s capacity to express their wishes, the nature of those wishes, the extent to which those wishes conflict with objective considerations, the extent to which the person’s expressed subjective intentions might have been influenced by the taking of advice prior to the formal making of a will, the age and maturity of the person when expressing their wishes, and the timing of the expression of wishes relative to the application to make a statutory will.”

139. The Plaintiff gave evidence of his conversation with Bridget in 2015. Her capacity, at that time, is not known with certainty, but it appears that the Plaintiff considered that she did not then have testamentary capacity. Then, in Dr Lonie’s report, there is additional evidence of Bridget’s more recent statements in answer to the questions that Dr Lonie asked. Again, at this time, it is clear that she did not have testamentary capacity.

140. A fortiori, by definition, since Bridget did not, then, have capacity to weigh all the factors that are relevant to the making of her Will, her inability is a circumstance that should, in my view, be taken into account in determining the weight to be given to those expressed wishes. In the circumstances, it seems to me that the weight that should attach to the evidence is not as strong as it might have been if Bridget then had capacity.

141. Sub-section (2)(f) requires any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity. It is accepted that Bridget is unlikely to acquire or regain testamentary capacity.

142. Sub-section (2)(g) requires any evidence available to the applicant of the terms of any Will previously made by the person. A copy of Bridget’s Will, made in 1972, is an annexure to the Plaintiff’s affidavit. It assists by what it does not say, rather than what it does.

143. Sub-section (2)(h) requires any evidence available to the applicant, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person. The Defendants are the only persons entitled to Bridget’s estate by operation of the rules of intestacy.

144. Sub-section (2)(i) requires any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person. There are no persons identified by the Plaintiff or by the Defendants who are, or who may be, eligible persons within the meaning of that term in s 57 of the Act. It follows that there are no persons who can make an application for a family provision order.

145. Sub-section (2)(j) requires any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by Will by the person.

146. Sub-section(2)(k) requires any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by Will. There is evidence that Bridget had been a supporter of the RSPCA. She had been donating $15 per month “in recent years”, which donations were discontinued by the Plaintiff “owing to budgetary constraints”.

139. There is no evidence of Bridget having made any donations to either the St Joan of Arc facility, or otherwise to the Church, although according to the Plaintiff she stated that she “could leave something to the Church”.

140. Of course, there is also the evidence of Bridget’s conversation with Dr Lonie to which reference has already been made.

141. Sub-section (2)(l) requires any other facts of which the applicant is aware that are relevant to the application. The Plaintiff relies upon the lack of contact between either of the Defendants and Bridget in more recent times. In this regard, neither MGR, nor MLR appears to have had contact with Bridget after the early 1970s, although MGR states that he had visited her “18 times since 6 August 2017”. Coincidentally, the contact appears to have occurred after his receipt of a letter dated 19 June 2017 from the Plaintiff’s solicitors informing him of the Plaintiff’s proposed application.

Section 22 requirements and the evidence

150. Having referred to s 19, it is next necessary to turn to s 22 since, on the hearing of an application for leave under s 19, the Court may give leave only if it is satisfied of five matters specified in s 22. All of the matters must be established to the satisfaction of the Court as evidenced by the use of “and” at the conclusion of each sub-section.

151. It is also important to recognise that it is a serious matter for the Court to determine the content of a person's Will, and, it goes without saying, it should only do so if the matters necessary to its statutory jurisdiction to do so are established: Burns v The Estate of Troy Mitchell Burns a Protected Person, at [20].

152. Section 22(a) requires the Court to be satisfied that there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a Will. This is a matter of fact.

153. There was no dispute between the parties, and I am otherwise satisfied, that this sub-section has been satisfied.

154. Section 22(b) requires the Court to be satisfied that the proposed Will is, or is reasonably likely to be, one that would have been made by the person if, relevantly, she had testamentary capacity. This, also, is a matter of fact.

155. The Plaintiff's case appears to rely, at least in part, on his uncorroborated evidence of a conversation he is said to have had with Bridget in mid to late 2015. That is some two years before the Plaintiff made the present application. Furthermore, according to the Plaintiff’s evidence, despite his blandishments, made several times, in 2015, Bridget refused to make a Will.

156. The Plaintiff’s evidence is that Bridget said that she did not “want anything to go to” the Defendants. He also asserted that a reason for this is that Bridget and the Defendants’ father had a bitter falling out in the mid-1950s. That is a matter which neither of the Defendants confirms, and, in the case of MLR, he specifically denies. MGR identifies visits to, and by, the deceased, after the 1950s.

157. The Plaintiff’s evidence on this topic is vague and others, who are said to have had direct knowledge of the events that are said to have given rise to the falling out, were not called.

158. Even if Bridget had said what the Plaintiff stated, this does not mean that she would have made a Will in terms of the Will proposed by him. Without knowing more details about what is said to have given rise to what Bridget is alleged to have said, I am unable to conclude that she would adopt such a retributive approach and exclude them, completely, from her testamentary bounty.

159. To the extent that one considers the Plaintiff’s conversation with Bridget, one may also consider Dr Lonie’s conversation with her, albeit that this conversation occurred about two years later. In relation to the charity, the proposed Will is inconsistent with what she said to Dr Lonie whilst in relation to the Church, at best, she showed a passing interest in the idea of making such provision. In relation to the natural persons, none were mentioned as potential objects of Bridget’s testamentary bounty.

160. It is clear that the evidence of each of the Plaintiff, and of Dr Lonie, is hearsay and, at least in part, opinion evidence. Neither has any personal knowledge of the various matters identified on this topic. Accordingly, this affects the weight to be attributed to some of the assertions.

161. In addition, I have considered the relationship of the Plaintiff and Bridget and that it is undisputed he has been of assistance to her, at least in the last few years. Also, even if he, and some of the proposed natural beneficiaries, had kept in contact with her, particularly after her husband’s death, that does not mean that Bridget is reasonably likely to have provided for them in her Will. Furthermore, there is nothing at all in the evidence about the division of Bridget’s estate would reflect her intentions or what her intentions might reasonably be likely to be.

162. Important on this topic also, is that in none of the conversations asserted, did Bridget give any indication of her testamentary wishes. Significantly, in answer to questions posed, she did not identify the Plaintiff as a potential object of her bounty and one in favour of whom she wished to make a Will.

163. There is simply insufficient evidence that Bridget would have made a Will in favour of the beneficiaries identified in the draft Will. The Plaintiff’s case is one which is based on evidence of alleged contact with some of the proposed beneficiaries and a lack of contact with the Defendants. As has been submitted, the lack of contact with a relative, or friend, cannot be converted into the conclusion that the incapacitated person would have, or would reasonably be likely to have, made a Will in favour of somebody else. It is difficult to be attracted by this outcome driven argument.

164. Furthermore, there is no evidence that Bridget ever consulted a solicitor, or gave instructions for a Will at any time after the 1972 Will was made. I have mentioned the fact that a solicitor gave the certificate for the enduring Power of Attorney and the proximity of the conversation that must have occurred for him to do so, and the conversations with Bridget that the Plaintiff alleges he had. That he did not give any evidence is a relevant consideration.

165. Accordingly, I cannot be satisfied that the proposed Will is one that would have been made by Bridget, so far as her actual subjective intentions, or wishes, are concerned.

166. Nor can I be satisfied that the proposed Will is one that is “reasonably likely” to have been made by Bridget, in all the relevant circumstances. As I wrote in the Re Will of Jane at [83]:

“The question is not whether he, or she, would likely have preferred the proposed statutory will to intestacy, or to his or her prior will. Nor is it whether the proposed statutory will is one of a number of possible proposed wills, all of which might be equally likely to be one that he, or she, may have made if he, or she, had testamentary capacity. If the proposed statutory will does no more than reflect one of a number of other possible dispositions, in my view, the requirements of s 22(b) will not be satisfied since it would not be ‘reasonably likely’ to be a will that he, or she, would have made had he, or she, had testamentary capacity.”

167. Also, in this regard, I refer to what Black J wrote in Burns v The Estate of Troy Mitchell Burns a Protected Person, at [38]:

“It is important to recognise that the question raised by s 22(b) of the Act is not whether the proposed will would be a ‘fair’ will (or, by contrast with s 22(c) of the Act, whether it would be an ‘appropriate’ will) but whether the particular will is one that Troy was reasonably likely to have made, in the sense noted above. I have been troubled by the question whether it can be said that it would be ‘reasonably likely’ that Troy would make a will in the proposed form, where there are a range of possibilities as to the contents of such a will.”

168. His Honour then adverted to a number of possibilities. There is no point in attempting to do so in the present case, as it seems to me that there would be many such possibilities available to Bridget. As Black J continued, at [39]:

“…it could not be said that any such will was ‘reasonably likely’ if each of those wills was possible and none was more probable than other. The issue in this regard is less straightforward than other cases where there might be, for example, a clear and binary choice between an inappropriate result on intestacy and a single appropriate result by will. The case is also less straightforward that one in which there was evidence of the attitude of the person for whom the will was proposed to the relevant matters…”

169. I have come to the view that the Will proposed by the Plaintiff does not satisfy the statutory test of being one that is “reasonably likely” to be one that would have been made by Bridget if she had testamentary capacity.

170. Sub-section (c) requires the Court to be satisfied it is, or may be, appropriate for the order to be made. It is difficult to see how this requirement has been satisfied. Whilst some may argue that with a large estate, dying testate is, or may be, more “appropriate” than dying intestate, that is not always so. In addition, Bridget specifically told Dr Lonie that her father had died intestate, a fact which is otherwise substantiated.

171. Furthermore, in this case, there is no evidence that Bridget ever sought to change the 1972 Will, that she requested the Plaintiff, at any time, to arrange a solicitor to attend upon her so that she could make a Will, or having executed an enduring Power of Attorney before a solicitor, discussed making a Will with him.

172. Also, the terms of the enduring Power of Attorney, limiting the powers of the Plaintiff, as her Attorney, suggest that Bridget did not want him to make decisions concerning the distribution of her estate, at least during her lifetime. It is difficult to see why she would want him to put forward a Will which provided for the greatest share of her estate, on death, to pass to him, and other beneficiaries, he appears to have chosen.

173. I am not satisfied that this sub-section has been established.

174. Sub-section (d) requires the Court to be satisfied that the Plaintiff for leave is an appropriate person to make the application. In circumstances where the applicant includes himself as a beneficiary, particularly to the greatest share of the estate, it is more difficult to conclude that he is “an appropriate person” to make the application.

175. The fact that the Plaintiff has a significant personal and financial interest in the result does mean that he cannot be described as independent or neutral. In the event that the proposed Will was made, he would obtain a financial benefit of a quarter of the estate, or about some $625,000. Whilst that fact may not disentitle him from making the application, as I wrote in Re Will of Jane [2011] NSWSC 624 at [90] – [93], the Court will examine his evidence with vigilance and care. I have done so and I have discussed my concerns about that evidence.

176. Sub-section (e) requires that adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought. Bearing in mind what is known, I am satisfied that this sub-section has been satisfied.

Conclusion

177. It follows, then, that leave under s 19(1) of the Act to make the application for the order should be refused. In all the circumstances, the proceedings must be dismissed.

Costs of the Proceedings

178. The Plaintiff sought an order that his costs, calculated on the indemnity basis, and the Defendants’ costs, calculated on the ordinary basis, be paid from the estate of Bridget. Counsel put that the proceedings appeared to have been caused by Bridget. She had made a Will; she then declined, whilst she had capacity, to take steps to make a further Will. She then had at least one conversation with the Plaintiff and told him certain things which had caused him to commence these proceedings for a Will, which, if made, would mean that she would not die intestate.

179. Counsel submitted that there was a second reason, namely, that the Plaintiff had commenced the proceedings in good faith for the purpose of giving effect to the matters to which he has deposed.

180. In the event that the Plaintiff did not recover his costs, counsel seemed to accept that he should also repay the amount taken from Bridget’s estate on account of his costs and disbursements.

181. The Defendants sought an order that the Plaintiff should pay their costs and be ordered to reimburse the estate of Bridget for the amount of $12,177.45 which had been used to fund part of the Plaintiff’s costs and disbursements of the proceedings. Counsel also sought an order that to the extent that their costs, calculated on the indemnity basis, are not recovered, any difference should be paid to the Defendants out of Bridget’s estate.

182. The Act provides no guidance as to what should happen in relation to the costs of an application for approval of a proposed statutory Will. In a case where the application fails, the general principle that costs follow the event might be appropriate, especially if the application is opposed and the person making the application seeks to benefit under the Will that has been proposed. However, the burden of costs remains in the discretion of the Court.

183. The principal bases of the orders sought was that the Defendants were successful and, the costs should follow the event, and also because they were “proper contradictors”, in that they were not plaintiffs asking for a statutory Will under which they benefitted, they were simply protecting their statutory entitlement on intestacy, as they were entitled to do. (In this regard, it is to be noted that their entitlement is a direct result of the legislative intent expressed towards circumstances where a person, on death, has failed to indicate by a testamentary instrument (i.e., by a Will) how she or he wished to have her or his property distributed upon death: Denise Hilda Burgess as administrator of the estate of Brian Michael Burgess v Burgess [2018] WASC 279 at [44].)

184. I dealt with how costs of this type of application should be dealt with in Re Will of Jane (No 2) (2011) 8 ASTLR 423; [2011] NSWSC 883. I shall not repeat all that I wrote in that case. The general principles about costs, to which I referred at [12] - [16] and [22] - [24] continue to apply.

185. I do not accept the submission made by counsel for the Plaintiff that Bridget caused this litigation. Here, her great misfortune is that she is, and has been for some time, incapable of making a Will. However, I am not satisfied that the statutory Will proposed by the Plaintiff was, or was reasonably likely to be, one that would have been made by her if she had testamentary capacity. There is, and has been, no benefit for Bridget in this litigation.

186. Although not relied upon in submissions, it does not seem to me, in the circumstances of this case, that an investigation in regard to a proposed Will was warranted. There was no evidence that Bridget had ever said that she wished to make a Will, after the death of her husband. To the contrary, each time the Plaintiff raised the matter with her (which was more than once according to his own evidence), she put him off.

187. Although not referred to by either party on the issue of costs, it is fair to say that Bridget’s estate is sufficiently large to be able to bear the parties’ costs of these proceedings without that payment affecting her security and welfare in any significant way. However, it does not follow automatically that costs should be paid from her estate. I have borne in mind, however, the lack of significant impact on Bridget’s security and welfare as a discretionary matter.

188. However, if a costs order is made, Bridget’s estate will be diminished. As she is still alive, “she is entitled to enjoy her assets undiminished by the burden of paying the costs of those whose claims anticipate her demise”: Boulton v Sanders (No 2) [2003] VSC 409 at [2] (referring to Hill v Hill (No 2) [2001] VSC 135 at [8]).

189. In determining the burden of costs, I also bear in mind that the jurisdiction relied upon by the Plaintiff involves a public benefit, and imposing a liability for costs in the event that the Court does not accede to an application should not discourage its invocation. A disinterested applicant, who has real and genuine grounds for making an application for a statutory Will, should not be deterred from taking that course by reason of a fear that, however genuine his, or her, case may be, he, or she, will have to bear the burden of costs. Regrettably, I have come to the view that this is not such a case.

190. Yet, as was written by Campbell J in Re Estate Late Hazel Ruby Grounds; Page v Sedawie [2005] NSWSC 1311 at [32]:

“In probate litigation, it is not only who succeeds in the litigation which matters – which is the only factor operating in the ‘costs follow the event’ rule. As well, the role which a particular party has played in litigation, whether as plaintiff or defendant, is relevant. Further, facts about the knowledge available to parties, and the reasonableness of their conduct in conducting the litigation, can be taken into account.”

191. When I ask whether it was proper for the Plaintiff to bring these proceedings, I conclude that, in all the circumstances of this case, it was not proper for him to have done so. He brought proceedings seeking the largest share of Bridget’s estate no doubt believing that as the only person who was assisting her, she would regard him as the person with the greatest claim on her bounty. Whilst it is not necessary to agree with such a belief, his conduct in assisting Bridget, as he appears to have done, is a matter that I should take into account in exercising the discretion on the topic of the costs of the proceedings.

192. The Defendants had an interest in defending the proceedings. Yet, no positive case was put forward on Bridget’s behalf — the case was defended simply upon the basis that the matters necessary to be established to obtain the grant of leave had not been established. Their approach was proper in all the circumstances of the case. Yet, they were, at least in part, seeking to protect their expected benefit under the operation of the rules of intestacy. It could hardly be said that either had a strong moral claim on Bridget’s bounty.

193. The Plaintiff’s application was, ultimately, found to be unmeritorious, leave to bring the proceedings not being granted. Taking into account the matters set out above, and the other circumstances of the case referred to, I am satisfied that this is a case where even though the Plaintiff was unsuccessful, he should not bear the Defendants’ costs of the proceedings. Yet, nor should he have an order for his costs to be paid out of Bridget’s estate. There should be no order for the Plaintiff’s costs and he should be ordered to repay the amount taken from her estate and paid on account of his costs and disbursements of the proceedings.

194. I am of the view that the Defendants’ costs, calculated on the ordinary basis, should be paid out of Bridget’s estate. To the extent there is a difference between the costs recovered and their costs calculated on the indemnity basis, that difference should not be paid out of Bridget’s estate. If Bridget dies intestate, they will receive the whole of her estate.

195. The Court orders that:

1. Leave to make the application for the order under s 19(1) of the Act be refused;

2. The amended Summons filed on 1 February 2018 be dismissed;

3. There be no order for the Plaintiff’s costs, to the intent that he is to bear his own costs of the proceedings;

4. The Plaintiff, within 14 days of the making of these orders, is to repay to the estate of Bridget, the amount of $12,177.45;

1. In the event that the Plaintiff does not repay the amount of $12,177.45 within 14 days, interest calculated at Supreme Court rates on unpaid judgments, shall be paid by him, calculated from the date of the making of these orders until the date of payment in full;

2. The Defendants’ costs, calculated on the ordinary basis, be paid out of the estate of Bridget; otherwise, the Defendants are to bear their own costs of the proceedings.

3. Exhibits may be returned in accordance with the Rules.

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Decision last updated: 10 October 2018