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 sought to be made, in that the application is

measured against what is in the interests, and for the benefit, of the person: Re Fenwick

[2009] NSWSC 530; 76 NSWLR 22 (Re Fenwick) at [132]. Re Fenwick has been applied

in this court in Re DH: application by JE and SM [2011] ACTSC 69 at [6].

4.       The Court must not make such an order unless the person is alive at the time the order

is made: s 16A(3). The girl is now 16 years old. The Act expressly permits the Court to

make an order for a child who does not have testamentary capacity: s 16A(4).

5. Under s 16B of the Act, a person may only apply for an order under s 16A with the leave

of the Court. The information that must be provided in support of the application is set

out in s 16B(2). In summary, the applicant is required to:

(i)	tell the court why the application is being made;
(ii)	establish the person’s present lack of testamentary incapacity and provide

evidence of any likelihood of regaining such capacity;

(iii)    estimate the size and character of the person’s estate;

(iv)    provide a draft will for approval;

(v)     give evidence about potential eligible beneficiaries and their circumstances and

the likelihood of any claims being made for family provision; and

(vi)    give evidence about other specified matters, such as any wishes of the person and

any gifts for a charitable or other purpose that the person might reasonably have

been expected to make by will.

6.       The applicant has complied with the various matters required under that section, by her

own affidavit, which attached various relevant reports and documents.

7.       If leave is granted, the Court may then allow the application to proceed as an application

for an order under s 16A: s 16C(1)(a). That is what occurred in the present case.

The proposed will

8.       The material terms of the proposed will before the Court include the following:

(i)    The Public Trustee and Guardian is named as executor.

(ii)   Three (3) specific gifts are to be made to Clara’s two carers who have enduring parental

responsibility orders for her:

a. The interest in the current property in which Clara resides, free from all

encumbrances, is to be given to the applicant. If the present property is sold,

then the applicant is to be given Clara’s interest in any other property last used

as her principal place of residence before her death.

b.	Clara’s interest in any motor vehicles is to be given to the male foster carer.
c.	Clara’s personal and household items are to be given to the applicant to retain

or distribute as she thinks fit.

(iii) The Residue of the estate is then to be divided as follows:

a. 20% to the applicant.

b.	20% to Clara’s male foster carer.
c.	20% to Clara’s half-sister, born in 2009 and who currently lives with her and the

two foster carers.

d.	20% to her biological mother.
e.	20% to her biological father.

(iv) If either Clara’s sister, her mother or father predecease Clara, specific provision is

made for their interest to pass respectively to any children they may have.

(v)  The will contains other provisions for interpretation, power to disclaim, survivorship,

and general powers of executors and trustees.

9.       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 16C(2). Having heard the considerations and

reasons for the terms of the will proposed, no revisions to the draft proposed were made.

Considerations required for a grant of leave

10. Section 16E is in the following terms (emphasis added):

16E

Court must be satisfied about certain matters

The Supreme Court must refuse leave to make an application for an order under section 16A (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity) unless the court is satisfied

that—

(a)	there is reason to believe that the person for whom the order is sought is, or is reasonably likely to be, incapable of making a will; and
(b)	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; and
(c)	it is or may be appropriate for the order to be made; and
(d)	the applicant for leave is an appropriate person to make the application; and
(e)	adequate steps have been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift or benefit from the estate of the person for whom the order is sought.

11.     The word “must” has been emphasised above to draw attention to the mandatory nature

of the decision to be made. Before the Court can grant leave, it must be satisfied of each

of the prescribed matters. However, there are words within those criteria which import a

wide degree of latitude in satisfying each of the requisite matters (such as “reasonably

likely to be” and “may be”, also highlighted above). Each of those matters are addressed

in turn below.

12. Before doing so, as there are repeated references to “testamentary capacity” in the Act

and authorities considered below, it is important to first explain what is meant by that

term. The capacity to make a will is the ability to understand the nature of the act of

making a will and its effects, to understand the extent and character of the property which

the person is dealing with or disposing, and to comprehend, appreciate or weigh the

claims to which the person should give effect: Banks v Goodfellow (1870) LR 5 QB 549

at 565; Timbury v Coffee (1941) 66 CLR 277 at [283].

Is there reason to believe that the person for whom the order is sought is reasonably likely to be incapable of making a will?

13.     There is no doubt that Clara lacks testamentary capacity. There was expert medical

evidence before the Court from Dr Michael Rosier, paediatrician, who has been involved

with the medical management of the girl since 2010. Dr Rosier’s report included the

following information. Clara has been severely disabled since birth, with bilateral spastic

cerebral palsy. In addition, she has a moderate to severe global developmental

delay/intellectual disability as the result of perinatal hypoxia. The girl’s physical

disabilities mean that she is not independently mobile and is managed in a wheelchair.

Her intellectual disabilities mean that she is non-verbal, but does recognise significant

people in her life, such as her grandmother (who has been her joint long-term carer).

The girl is totally dependent for all her self-care, requiring constant one to one supervision

and care.

14.     The view of Dr Rosier was that Clara has no understanding in relation to the act of making

a will or matters such as an understanding of any value of her estate. In Dr Rosier’s

opinion, there is no likelihood that Clara will ever develop the adult cognitive faculties

comprising testamentary capacity at any stage in the future. I accept that view.

Is the proposed will one that is reasonably likely to have been made by the person if he or she had testamentary capacity?

15.     I will deal first with the relevant principles, starting with what is meant by the words

“reasonably likely”. That standard of satisfaction has a degree of flexibility about it.

Among a number of permutations discussed in Re Fenwick at [152], Palmer J used this

description: ‘a fairly good chance that it is likely’.

16.     That is consistent with the ordinary dictionary meaning of the word “reasonably”, which

is “sufficiently” or “fairly”, as recorded by Hallen J in Re the Statutory Will of Rolf

Huenerjaeger [2020] NSWSC 1190 (Huenerjaeger) at [115]. His Honour went on in

Huenerjaeger to cite (at [119]) the NSW Court of Appeal’s consideration of the words in

Small v Phillips (No 2) [2019] NSWCA 268 at [158]:

The introduction of ‘reasonably’ introduces an element of uncertainty over and above

‘likelihood’. Thus, there is a degree of latitude or margin for judgment in considering the

intentions of the incapacitated party.

17.     Hallen J then stated at [120]:

Whether the proposed statutory will is “reasonably likely” to be one that would have been

made 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. This requires the Court to inquire into the evidence as to the hypothetical subjective state of mind of the person lacking capacity.

18.     However, in cases where a person has never had testamentary capacity, courts have

also spoken of the artificiality or the legal fiction in attempting to determine whether the

will proposed is one that is “reasonably likely” to have been made. In Re Fenwick, Palmer

J was dealing with whether to approve a statutory will for an incapacitated 11-year-old

boy under legislation in NSW (Succession Act 2006 (NSW)) that was identical in

substance to Part 3A of the Act applying in the Territory. His Honour discussed the fiction

at [171]-[176], observing at [173] that where there has never been any capacity, there

cannot be any meaningful search for actual or likely subjective intention, and the Court

must necessarily make an objective assessment of likelihood. His Honour stated at [176]:

…Whether a proposed will is “reasonably likely” to have been made by a person who never

had, and never will have, the smallest capacity to form testamentary intentions may be

answered only in the sense, discussed above: “is there a fairly good chance that a

reasonable person, faced with the circumstances of the incapacitated minor, would make

such a testamentary provision?” … The considerations involved in the question are entirely

objective.

19.     In Secretary, Department of Family and Community Services v K [2014] NSWSC 1065,

Lindsay J raised the following caution, which may also be appropriate to bear in mind in

the present case, at [81] and [82]:

81.    …The Court must be careful not to be overly judgemental about personal faults within

a family, and how such faults may impact on family relationships. It must also be careful to avoid imposition on a family of the moral imperatives of public administration, or on

an appeal to “community standards” about deserving beneficiaries. As convenient as

it may be to describe the necessary perspective of the Court as “objective” rather than

“subjective”, neither term is found in the text of the Succession Act, and neither may

answer the needs of the particular case.

82.   In [imputing] a testamentary intention to a child never possessed of testamentary

capacity … and upon consideration of whether it is "appropriate" for a statutory will to

be made for such an incapacitated person … the Court should refrain from embracing

any form of presumption against a parent judged by regulatory authorities to be
unworthy.

20.     I have referred to the caution above because in the present case, when she was three

years old, Clara and her younger half-sister were removed from the care of her biological

mother through emergency intervention undertaken by Child and Youth Protection

Services (CYPS). At that time, the mother was living with the father of Clara’s younger

half-sister. The concerns leading to the removal of the two girls related to domestic

violence and drug use. Clara’s biological mother had ended her relationship with Clara’s

father when Clara was three months, and again the evidence refers to reports of

domestic violence being present.

21.     Since 2010, Clara’s contact with either biological parent has been minimal. Clara has

not seen her biological father at all for almost six years. Clara has seen her biological

mother (the applicant’s daughter) once in four years.

22.     Clara also has a number of other half-siblings, but has not had any meaningful contact

with them and does not have any relationship with them. She has historically been in

regular contact with her paternal grandmother. However, she is not presently in regular

contact with any of her extended family.

1. Clara’s complex needs and family circumstances are the overriding considerations in

   assessing whether there is a fairly good chance that a reasonable person, faced with the

   circumstances of the incapacitated minor in question, would make such a will. In addition

   to the matters to which I have already referred, the following circumstances feed into that

   assessment.

24.     First, the applicant grandmother has been Clara’s primary carer since she was a young

child. That arrangement has been legally supported by the Director General of CYPS

and ultimately the ACT Childrens Court.

25.     Second, the male foster carer, who is also named in the court order as a person with

joint enduring carer responsibility until Clara turns 18, is not in a romantic relationship

with the applicant, but has chosen to live with the family and been an enormous source

of care and support for Clara since late 2010. I have not considered it necessary to set

out the full extent of Clara’s needs, but it suffices to record that they are every bit as

demanding as the requirement for “constant one to one supervision and care” suggests.

It is fairly clear that the grandmother can only do what she does for Clara throughout the

day, every day, without a break, because she has a person like the male foster carer by

her side to assist.

26.     Given Clara’s dependency on them for almost her entire childhood, the carers each have

modest financial circumstances, arising in part from the necessity to devote the last 12

years to caring for Clara and her sister, which I accept has been an insurmountable

barrier to the carers’ respective abilities to earn income. Without these two truly

remarkable people in Clara’s life, it is difficult to see how she would be able to live. They

are plainly people for whom Clara might reasonably be expected to want to benefit in her

will. That extends to the specific gifts and in particular, the house that Clara’s

grandmother has arranged to be purchased for Clara, which has been specifically

modified for Clara’s needs. The evidence was to the effect that if Clara were to

predecease her carers, absent the specific gift (Clara’s interest in the property), they

would likely have nowhere to live and limited financial means to obtain secure and stable

accommodation.

27.     Clara is also very close to her half-sister named as a one-fifth residual beneficiary in the

proposed will. They have never lived separately. Clara’s face lights up when she hears

her sister’s name. The sister has helped more and more with Clara’s care as the girls

have grown older. It is the applicant’s view, which I accept, that the sister will continue

to play a major part in Clara’s life, including (I infer) her long term care, if and when their

kinship carer and foster carer are unable to do so. Again, Clara’s half-sister, who has

grown up with her, is someone for whom it is reasonably likely Clara would seek to benefit

in her will.

28.     In the circumstances that have been described above, I have given consideration to the

terms of the proposed will naming the biological parents as residual beneficiaries, also

as to a one-fifth share each. Counsel for the applicant engaged with the question during

the hearing of whether the proportion of the residue each biological parent is to receive

should be reduced in favour of the carers and her half-sister.

29. The applicant drew attention to s 16B(2)(i) of the Act, and the requirement to put before

the Court any evidence available of the likelihood of an application being made under

the Family Provision Act 1969 (ACT). While Clara’s biological parents have not been

part of her life since she was very young and have made no contribution to Clara’s

support and welfare, there are important considerations as to their circumstances.

Depending on the size of Clara’s estate when she dies and the financial circumstances

of the biological parents (which are presently poor), a statutory will which made little to

no provision for direct family members may give rise to future court proceedings,

whatever their ultimate merit.

30.     Further, under intestacy provisions, the biological parents would be beneficiaries of

Clara’s estate.

31.     Consideration has also been given to Clara’s other half-siblings, and that is a further

reason why the applicant explained each of her biological parents have been allocated

a one-fifth share in the distribution of residue. The rationale is that benefiting Clara’s

parents will benefit her half siblings in due course, including in the event that Clara’s

parents pre-decease her.

32.     The submissions made by the applicant grandmother in support of the terms as drafted,

and the caution expressed by Lindsay J, referred to above, are persuasive.

33.     Taking all those matters into account, I am satisfied that the proposed will is one that is

reasonably likely to have been made by Clara if she had testamentary capacity, as those

words are to be understood in the present case, having regard to the authorities above.

Is it, or may it be, appropriate for the order to be made?

34.     If Clara were to die without a valid will, her estate would pass on intestacy to her

biological parents. In light of what has been set out above, that is not a desirable

outcome. There is a fund for the management of Clara’s disabilities and it is substantial.

The making of a statutory will that has already been scrutinised by the Court is designed

to provide certainty for those involved in Clara’s life and, should reduce the potential for

litigation if Clara died.

35.     I am satisfied it is appropriate for the order to be made.

Is the applicant for leave an appropriate person to make the application?

36.     The applicant is one of the primary beneficiaries under the proposed will. Generally, it

is preferable for a family friend or solicitor who is not to benefit to make the application,

so as to bring an additional layer of scrutiny and independence to the process.

37.     The applicant submitted that she was the person who was best placed to provide all the

information that was required under Part 3A of the Act. While I accept that submission,

an independent applicant would not necessarily have been a barrier to the same

evidence containing the critical information being put before the Court via the

grandmother’s affidavit.

38.     However, it is also well appreciated that such applications are not straightforward. They

can require (and have required in this case) considerable investment of time and money,

which only those who are closest to the person, and who are therefore likely to be named

as beneficiaries in any will, may be prepared to give. The application is frequently one

brought out of love for the person and prudence in protecting their perceived interests.

The Director-General responsible for CYPS may have been the type of appropriate

independent person. However, their involvement effectively ceased in 2021, when the

enduring parental responsibility order was made.

39.     The applicant has also properly sought legal advice and legal representation by counsel

experienced in the area in the making of the application, and all persons who may have

had an objection to the applicant making the application have been properly notified of

the proceeding. Overall, in the circumstances of this case, including the nature of the

will proposed, the history and complexity of Clara’s family circumstances and need, and

the lack of any other suitable person able to be identified, I am satisfied that the applicant

is an appropriate person to make the application.

Have adequate steps been taken to allow representation of all people with a legitimate interest in the application, including any person who has reason to expect a gift, or benefit from the estate of the person for whom the order is sought?

40.     The applicant has attended to personal service of the documents on the girl’s biological

parents. They did not file any notice of intention to respond or appear at the hearing of

the application. I am satisfied that adequate steps have been taken to allow

representation of all people with a legitimate interest in the application.

41. Each of the requirements of s 16E of the Act have been satisfied. Leave is granted to

the applicant to apply for an order under s 16A of the Act.

Should an order under s 16A be made?

42. In deciding whether to make a statutory will under s 16A of the Act, the Court’s discretion

is informed by s 16D, which is in the following terms:

16D

Hearing of application for order

In considering an application for an order under section 16A (Court may authorise a will to be made, altered or revoked for a person without testamentary

capacity), the Supreme Court—

(a)	may have regard to any information given to the court under section 16B (Information required in support of application for leave); and
(b)	may inform itself of any other matter in any manner it sees fit; and
(c)	is not bound by the rules of evidence.

43.     I have addressed each of the matters that I considered to be relevant as part of the

reasons given for the grant of leave. For reasons already given, it is in Clara’s best

interests that the will be made in the form proposed. The orders sought in the application

will be made. The will is to be deposited with the Registrar (s 16A(6) and 32 of the Act).

Conclusion

44.     Accordingly, 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.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: 21 April 2023