Re the Will of Clara (a pseudonym) - [2023] ACTSC 86

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Re the Will of Clara (a pseudonym)

Citation:

[2023] ACTSC 86

Hearing Date:

14 April 2023

Decision Date:

14 April 2023

Reasons Date:

21 April 2023

Before:

McWilliam AsJ

Decision:

The orders made by Court on 14 April 2023 were as follows:

(1)	Pursuant to s 16C of the Wills Act 1968 (ACT) the applicant is granted leave to apply for an order under s 16A of the Act.
(2)	Pursuant to s 16A of the Wills Act 1968 (ACT) the Registrar is directed to make a will in the form of Annexure A to the Originating Application.

Catchwords:

SUCCESSION – STATUTORY WILL – nil capacity – where

person for whom will is sought has intellectual disability from birth

– whether the proposed will is one that it is reasonably likely to

have been made if the person had capacity – whether it is appropriate for the order to be made – whether applicant is an

appropriate person

Legislation Cited:

Family Provision Act 1969 (ACT)
Succession Act 2006 (NSW)
Wills Act 1968 (ACT) s 16A, 16B, 16C, 16D, 16E, 32

Cases Cited:

Banks v Goodfellow (1870) LR 5 QB 549
Re Fenwick [2009] NSWSC 530; 76 NSWLR 22
Re DH: application by JE and SM [2011] ACTSC 69
Re the Statutory Will of Rolf Huenerjaeger [2020] NSWSC 1190
Small v Phillips (No 2) [2019] NSWCA 268

Secretary, Department of Family and Community Services v K

[2014] NSWSC 1065
Timbury v Coffee (1941) 66 CLR 277

Parties:

Not published (Applicant)

Representation:

Counsel

S Leslie (Applicant)

Solicitors

Tetlow Legal

File Number:

SC 516 of 2022

McWilliam AsJ:

1. The applicant is the 56-year-old grandmother of a girl born in 2006, for whom she has
enduring parental responsibility, shared with a long-term friend who lives in the same
household. The application before the Court, filed 22 December 2022, sought leave
pursuant to s 16C of the Wills Act 1968 (ACT) (the Act) to make a statutory will for the
applicant’s granddaughter on the basis that she lacks testamentary capacity and will
never regain it.
2. The matter was heard on 14 April 2023. Due to the carefully prepared evidence and
comprehensive oral submissions provided by counsel who appeared for the
grandmother, the Court was in a position to make the orders sought following the hearing,
which granted leave to make the application, approved the draft will and directed the
Registrar to make a will in the form presented to the Court. These are the reasons for
the orders made. Due to the circumstances of the child being a disabled minor, the girl
will be referred to by the pseudonym “Clara”.

The Court’s statutory power to make a will

3. Under s 16A of the Act, the Court may authorise a will to be made in terms approved by
the court for a person who does not have testamentary capacity. The proceedings are
protective of the person for whom the will is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Re the Will of Clara (a pseudonym) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] ACTSC 86
Decision Date

CaseChat Overview and Summary

The case of Re the Will of Clara (a pseudonym) before the Supreme Court of the Australian Capital Territory involved an application by a grandmother seeking to make a statutory will on behalf of her granddaughter, Clara, who was born with severe disabilities and intellectual impairments. The application was made under the Wills Act 1968 (ACT) to provide for the distribution of Clara's estate in accordance with her wishes, as she lacks testamentary capacity and is unlikely to ever gain it. The court had to determine whether to grant leave for the application, approve the proposed will, and ensure all legal criteria were met.

The legal issues included whether Clara lacked testamentary capacity, if the proposed will was reasonably likely to reflect Clara's intentions, and if it was appropriate to make the statutory will. The court had to consider whether the applicant was suitable to make the application and if adequate steps were taken to inform all interested parties. The court also needed to decide if the statutory will should be approved and implemented.

The court found that Clara indeed lacked testamentary capacity due to her intellectual disabilities and physical impairments. The proposed will was deemed reasonably likely to reflect Clara's wishes, considering her close relationships with her primary caregivers and her half-sister. The court concluded that making the statutory will was appropriate, as it would provide clarity and reduce potential disputes over intestacy. Although the applicant grandmother was a primary beneficiary, the court accepted her as an appropriate applicant given the circumstances. All interested parties, including Clara's biological parents, were properly notified.

Ultimately, the court granted leave to make the application and approved the statutory will, directing the Registrar to implement it. The decision aimed to ensure Clara's estate was distributed according to her best interests and to provide stability for her caregivers and family.

Orders