Re the Will of D (a pseudonym) v O (a pseudonym)
[2023] ACTSC 123
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Re the Will of D (a pseudonym) v O (a pseudonym) |
| Citation: | [2023] ACTSC 123 |
| Hearing Date: | 23 May 2023 |
| Decision Date: | 26 May 2023 |
| Before: | Curtin AJ |
| Decision: | See [52] |
Catchwords: | SUCCESSION – STATUTORY WILL – Where capacity never existed – Whether the proposed will is one reasonably likely if capacity existed – Subjective intention – Whether it is appropriate for the order to be made – Whether the applicant is an appropriate person to make the application – Leave granted |
| Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111 Wills Act 1968 (ACT) ss 16A, 16B, 16C, 16E, 16H, 32 |
| Cases Cited: | Re the Will of Clara (a pseudonym) [2023] ACTSC 86 |
| Parties: | M (a pseudonym) (Applicant) |
| O (a pseudonym) (Respondent) | |
| Representation: | Counsel |
| C Birtles (Applicant) | |
| S Chapple (Respondent) | |
| Solicitors | |
| Bradley Allen Love Lawyers (Applicant) | |
| DDCS Lawyers (Respondent) | |
| File Number: | SC 4 of 2023 |
| Curtin AJ: | |
| Introduction |
1. This is an application brought pursuant to the provisions of the Wills Act 1968 (ACT) (the Act) for an Order authorising a will to be made in terms approved by the Court for a person who does not have testamentary capacity. That person is D (a pseudonym) who is the son of the parties.
2. Before making the orders sought pursuant to s 16A of the Act, I am required to grant leave to the applicant to bring this application pursuant to s 16C. The parties are required to provide me with the information described in s 16B and I must be satisfied of each matter described in s 16E.
Background
The law
3. The relevant statutory provisions and the principles to apply in the case were comprehensively described by McWilliam AsJ (as her Honour then was) in Re the Will of Clara (a pseudonym) [2023] ACTSC 86 and need not be repeated unless otherwise
necessary. I am grateful for her Honour’s succinct statement of the law. I am also grateful for the applicant’s counsel’s succinct, yet comprehensive, written submissions
which I have found to be of much assistance.
The facts
4. D was born in late 2009. He suffered from birth distress when he was born. He was given a diagnosis of dystonic spastic quadriplegia, cerebral palsy and severe intellectual disability.
5. D lived with both his birth parents (M & O) until about February 2010.
6. D and M then moved to live at the home of M’s parents for 18 months (until about
August 2011).
7. During that time D’s parents separated in about June 2011.
8. D and M moved from M’s parents’ home to separate rented accommodation for
approximately the next 18 months (until about February 2013).
9. In 2014, M commenced a relationship with T (a pseudonym). They commenced living together in 2015 (together with D) and married in 2017.
10. T had one child from a previous relationship (D’s step-brother) now aged approximately
13 years old. Since their marriage, M and T have had two children together presently
aged 6 and 4. All children (including D) reside with M and T.11. In 2017, D received a substantial award of damages in litigation commenced on his behalf.
12. The significant proportion of those damages were invested on behalf of D in two ways.
13. The first was the purchase of land and construction of a house which was specifically designed to accommodate D and his specific needs as well as accommodating M, T and the other children. The family moved into that house in November 2020 and remain there to this day. The evidence is that this house is worth approximately $2.1 million.
14. The second way was by way of investment in a self-managed superannuation fund. The trustees of the fund are the applicant and a private trustee company. The value of that fund, as at July 2022, is slightly over $5 million. Out of this fund, the applicant is
paid $1,000 per week for D’s needs.
15. M and T have no in-house care at their home from any outside provider. All of D’s daily
care, toileting, bathing, dressing and undressing, feeding and medication regime is
provided primarily by M with assistance from T.16. D requires a high degree of care. His bedroom is equipped with a hoist over his bed, a
bath, a hydro–pool and a gym for therapy. D is not toilet trained and requires
incontinence pads. He is unable to communicate, although he can smile, express happiness and sadness. He is unable to participate in any augmentative communication. At present he is aged about 13 years but is only 30 kg and is dual peg fed into his duodenum to avoid aspiration.
17. D’s care needs arise out of his significant injuries and disabilities which include the
following:
(i) severe spastic quadriplegia;
(ii) inability to hold his head upright for more than a few seconds;
(iii) epilepsy;
(iv) severe developmental delay;
(v) neuromuscular complications;
(vi) bladder and bowel incontinence;
(vii) inability to speak;
(viii) inability to tolerate a normal diet and the need for PEG tube for feeding;
(ix) severe impaired mobility;
(x) moderately severe inflexion dystonia of his hands and arms, and worse
on the right;
(xi) inability to walk, crawl or change his position;
(xii) disruptive sleep;
(xiii) lack of any functional communication;
(xiv) poor oral motor tone and co-ordination that results in constant drooling;
(xv) inability to handle objects and severely limited ability to perform even
simple actions; and
(xvi) the need for 24 hour assistance with all aspects of daily living.
18. He is currently in year 7 and attends a school. He is collected by a Transport Canberra bus each weekday morning at about 8:00 am and delivered home at about 3:00 pm.
19. In addition to school, he participates in hydrotherapy at home with the assistance of a physiotherapist and T.
20. D’s step-brother and half-siblings lives are dictated by the high level of care and
demands of D. Wherever the family go on holidays, those holidays have to be based
around D’s needs and where it is safe and accessible for him to go.
21. D has a strong, affectionate and loving relationship with the other children. The two younger children at times assist M in the care regime for D.
22. D’s life expectancy is not expected to exceed another 22-24 years according to the medical evidence. However, D’s health being what it is, he is vulnerable to life
threatening medical issues including respiratory infections and status epilepticus.
Those issues may give rise to life threatening deterioration at any time.23. I am satisfied that I have been provided with all the information required to be provided by s 16B of the Act.
Leave
24. I am satisfied that M should be granted leave pursuant to s 16C of the Act and to allow the application to proceed as an application for an Order under s 16A.
25. Generally speaking, it is preferable for a family friend or solicitor who is not to benefit from the proposed will to bring the application in order to bring an additional layer of scrutiny and independence to the process: Re the Will of Clara at [36].
26. Additionally, the Court has power to order that D be separately represented pursuant to s 16H of the Act.
27. However, I do not believe D needs separate representation, and in this case, I am satisfied that no additional layer of scrutiny and independence is required.
28. The applicant is D’s mother, has been his primary carer since D’s birth, is the person
most able to provide the Court with the information necessary for the application and,
with no disrespect to anyone else, is the person for whom D’s interests loom largest.
29. M is represented by experienced solicitors and counsel in this field. Both solicitor and counsel have paramount duties to the Court. O has been legally represented and has had some input into the proposed will. The mediation at which M and O reached agreement was overseen by an experienced mediator in this area. The division of the estate set out in the proposed will is logical as are the terms of the proposed
testamentary trust when seen in the light of the family’s and O’s circumstances.
Section 16C
30. I now turn to the five matters s 16E of the Act says that must be satisfied before the orders sought can be made. Section 16E says:
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.
31. I shall deal with each of those matters in turn.
Is D incapable of making a will?
32. Dr Michael Rosier has been D’s treating paediatrician since D was about 5 months old
and continues in that role to the present time.
33. Dr Rosier is of the opinion that at no stage since D was born has he had any testamentary capacity to decide who should benefit in his will and what his estate plan should be. Dr Rosier notes that D has a severe intellectual disability.
34. Dr Rosier is of the opinion that there is no prospect of D regaining any testamentary capacity.
35. I am satisfied that there is reason to believe that D is incapable of making a will.
Is the proposed will one that D would have made?
36. The substance of the proposed statutory will (marked exhibit 4 in the application) is as follows:
(i) M is the named executor under the will, and T is the substitute executor.
(ii) On D’s demise the real property in which D and his family reside will pass
to M and T as joint tenants.
(iii) 90% of D’s residual estate, overwhelmingly made up of the death benefit
payable from D’s superannuation fund, will be paid to a testamentary
discretionary trust. The remaining 10% will be paid directly to the
respondent, O. If O pre-deceases D, O’s 10% shall be divided equally
between O’s children who have attained 18 years of age.
(iv) The applicant is the primary beneficiary of the testamentary trust. If the
applicant pre-deceases D, then T becomes the primary beneficiary. Other beneficiaries of the trust are any children of the primary beneficiary, a
spouse of the primary beneficiary, and the spouse, and the children of
either the children or the spouse just mentioned.
(v) The initial trustee of this testamentary trust will be appointed by the
primary beneficiary.
(vi) If neither M nor T survive D then the 90% of the residual estate will be
divided equally between those of D’s two half-siblings and his step-brother
who survive D and attain the age of 25 years.
(vii) The testamentary trust is a wholly discretionary trust. It has some asset
protection and taxation benefits. The provisions of the proposed trust are
set out in Schedule 2 to the proposed will. Pursuant to the terms of the
proposed trust the primary beneficiary may request the executors to
transfer all or some of the primary beneficiary’s part, or section, or other
entitlement to any, or all of the primary beneficiary and potential
beneficiaries.
(viii) The expressed primary purpose of the trust (clause 14) is to hold the fund
on trust to provide for or promote the maintenance, education,
advancement, or benefit of a beneficiary or beneficiaries, and to give the
trustees the widest possible discretion in using the powers and carrying
out those purposes.
37. I am satisfied that the proposed will is reasonably likely to be one that would have been made by D if he had testamentary capacity.
38. D’s primary carers are M and T. They have devoted themselves to D’s care and do so,
together with their other children, in a specially constructed home. M attempted private
employment but was unable to do so because of D’s demands on her time. It is
reasonably likely that D would wish to see that home pass to M and T on his demise.
39. Ten percent of D’s residual estate (presently about $500,000) would be paid to D’s
father, O. O has had some contact with D since the breakdown of his relationship with M, but the level of contact has been adversely impacted by the high degree of care and associated equipment needed to attend D and provide him with a fulfilling experience
whilst in O’s company and away from D’s home.
40. O and his partner live together with four children. O is an aborist and owns and runs a tree lopping business.
41. O has paid small amounts by way of child support, but those payments have been random and infrequent.
42. I am satisfied that the proposed will, insofar as it provides for O, is a will which is reasonably likely to be one that would have been made by D if he had testamentary capacity. It provides for his father an appropriate sum in all of the circumstances.
43. As to the balance of the residual estate and the testamentary trust, I am also satisfied that that arrangement is reasonably likely to be one that would have been made by D if he had testamentary capacity.
44. The primary beneficiary is D’s mother and the alternative primary beneficiary is D’s step-father. Both M and T are D’s primary carers. Of the two, M provides the most care.
45. The testamentary trust provides primarily for D’s benefit, but with the discretion to also benefit T and D’s step-brother and half siblings. Such a trust is not unusual in family
situations. The terms of the trust deed also provide for additional beneficiaries by way of future spouses or children. The terms of the trust are common in familial situations
and provide maximum flexibility for M, or T, to provide for D’s family unit in the future.
46. In all of those circumstances, I am satisfied that the proposed will is reasonably likely to be one that would have been made by D if he had testamentary capacity.
Is it appropriate for the Order to be made?
47. I have set out above why I am satisfied that the proposed will is reasonably likely to be one that D would have made. Had he testamentary capacity, those same reasons explain why I am satisfied that it is appropriate for an Order to be made pursuant to s 16A of the Act authorising a will to be made in the terms set out in Exhibit 4.
Is the applicant for leave an appropriate person to make the application?
48. I have addressed this matter earlier in this judgment. I am satisfied that the applicant is an appropriate person to make the application.
Others with an interest?
49. I am satisfied that 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.
50. The only relevant person is O who is the respondent to the application. O has been legally represented through the proceedings and was legally represented at the time he agreed to the terms of the proposed will.
Conclusion
51. I am satisfied that an Order should be made authorising a will to be made in the form of exhibit 4. The Court extends its best wishes to D, and to his extraordinary and extraordinarily loving family.
Orders
52. I make the following orders:
1. The publication of the names of the applicant, the respondent, their son D, the applicant’s husband, and the applicant’s and her husband’s other children is
forbidden pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act
1991 (ACT).
2. Leave is granted to the applicant to bring the application and to allow the
application for leave to proceed as an application for an Order under s 16A of
the Wills Act 1968 (ACT).
3. Pursuant to s 16A of the Wills Act 1968 (ACT) I authorise a will to be made for
D in the form of exhibit 4 in the application.
4. The Registrar is to sign and seal the will with the seal of the Supreme Court.
5. The signed and sealed will is to be deposited with the Registrar pursuant to s
32 of the Wills Act 1968 (ACT).
6. The applicant’s and respondent’s costs of the application are to be paid on the
indemnity basis from D’s funds.
I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin.
Associate:
Date:
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