Re the Will of Robert

[2022] NSWSC 1037

Supreme Court

New South Wales

Medium Neutral Citation:

Re the Will of Robert [2022] NSWSC 1037

Hearing dates:

In Chambers and on the papers

Date of orders:

3 August 2022

Decision date:

03 August 2022

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(1) Orders, pending further order, and pursuant to ss 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication that would identify, or tend to identify, the person lacking testamentary capacity, the subject of these proceedings, except for the purpose of the proper conduct of these proceedings.

(2) Orders, pursuant to s 19 of the Succession Act 2006 (NSW) (“the Act”), that the Plaintiff be granted leave to make an application for an order under s 18 on behalf of Robert, the person lacking testamentary capacity.

(3) Orders pursuant to s 18 of the Act, that a statutory Will be made on behalf of Robert, in the terms set out in Ex SW1.

(4) Orders that the proceedings be remitted to the Registrar, forthwith, to enable the statutory Will to be executed.

(5) Orders pursuant to s 23(1)(b) of the Act, the Registrar be authorised and directed to sign and seal, the statutory Will, with the seal of the Court.

(6) Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Robert.

(7) Orders that the Plaintiff is to serve on the NSW Trustee and Guardian, a copy of these orders and a copy of the statutory Will of Robert.

(8) Orders that these orders be entered forthwith.

Catchwords:

SUCCESSION – Statutory wills, Succession Act 2006 (NSW), s 18, s 19, s 22 – Person lacking capacity – Application seeking leave to apply for, and then, an order authorising, a will to be made on behalf of a person lacking testamentary capacity – Whether a will in accordance with that proposed by the Plaintiff, the financial manager of the person lacking testamentary capacity, who is a friend, and one of the beneficiaries, named in the proposed Will, with balance being divided equally between two other friends is, or is reasonably likely to be, is a will that would be made by the person who lacks testamentary capacity if he had that capacity – Whether it is appropriate for an order authorising such a will to be made – Report obtained from the NSW Trustee and Guardian because it has oversight over the Plaintiff as the private financial manager of Robert – Order made subject to person to be appointed as executor of statutory Will

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 71

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 8(1)(a), (c) and (e)

Succession Act 2006 (NSW) Div 2 of Pt 2.2, ss 18-26, 57

Supreme Court Act 1970 (NSW) s 11

Cases Cited:

A Ltd v J (No 2) [2017] NSWSC 896

Application by Peter Leslie Kelso [2010] NSWSC 357

Argiro v Lagozino [2017] SASC 185

Banks v Goodfellow (1870) LR 5 QB 549

Burns v The Estate of Troy Mitchell Burns, a Protected Person (2013) 11 ASTLR 362; [2013] NSWSC 1550

CJ v AKJ (2015) 16 ASTLR 24; [2015] NSWSC 498

Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187

Jeavons v Chapman (No 2) [2009] SASC 3

Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994

King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076

Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432

Nock v Austin (1918) 25 CLR 519; [1918] HCA 73

Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377

Re Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530

Re M’s Codicil [2018] NSWSC 936

Re MP’s Statutory Will [2019] NSWSC 331

Re The Statutory Will of Rolf Huenerjaeger [2020] NSWSC 1190

Re The Will of Alexa [2020] NSWSC 560

Re Will of Jane [2011] NSWSC 624

Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065

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

Small v Phillips (No 3) [2020] NSWCA 24

Texts Cited:

New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, (February 1992)

Category:

Principal judgment

Parties:

WHGW as the appointed Guardian and Financial Manager of Robert (Plaintiff)

Representation:

Counsel:
M Tibbey (Plaintiff)

Solicitors:
Brazel Moore Lawyers (Plaintiff)

File Number(s):

2021/364283

Publication restriction:

See Order 1

Judgment

Introduction

1. By Summons filed on 23 December 2021, the Plaintiff brings an application for an order authorising a statutory will to be made on behalf of his friend, to whom I shall refer as Robert (not his real name).

2. I shall refer to other persons in the case, with the exception of legal representatives, by the nature of her, or his, relationship with Robert, or by her, or his, initials, in order to abide a legislative intention to protect the privacy of persons who are, or who have been, involved in proceedings in the Guardianship Division of NCAT.

3. The application is brought under Div 2 of Pt 2.2 of the Succession Act 2006 (NSW) (the Act). In accordance with ss 18 to 26 of the Act, the Plaintiff seeks, inter alia, that leave be granted to him, under s 19, to make an application, on Robert’s behalf, under s 18 of the Act, and an order that the terms of the proposed Will, a draft of which is set out in Exhibit “TT-O” of the affidavit made on 20 December 2021 of Tamara Tunnicliff, solicitor, be authorised under s 18 of the Act.

4. I shall return to the terms of the proposed statutory Will later in these reasons.

5. In circumstances that were not explained, the matter was listed on 21 February 2022, before the Equity Registrar. The learned Registrar stood over the proceedings, to 1 March 2022, before Ward CJ in Eq, the then Applications List Judge.

6. Before her Honour, Ms M Tibbey, counsel for the Plaintiff, acknowledged that there was no contradictor named in the Summons. She said that “[C]opious searches have been undertaken and it appears that the gentleman does not have any living relatives and anyone who has been in touch with him closely in the last many, many years”: Tcpt, 1 March 2022, p 1(26-30).

7. Her Honour listed the matter, for hearing, on 10 March 2022 before Rein J, with a hearing estimate of two hours.

8. The hearing commenced on 10 March 2022 before Rein J. On that occasion, counsel again appeared for the Plaintiff. Robert was named as a Defendant in the Summons, but his Honour made directions for the Plaintiff to file an amended Summons removing him as the Defendant in the proceedings.

9. After some discussion on the question whether the NSW Trustee and Guardian may wish to provide some input on the proposed statutory will, and whether further enquiries were needed to determine whether Robert had any cousins who were still alive, his Honour stood the matter over to the Succession List on 9 May 2022.

10. (The reason why it was thought that the NSW Trustee and Guardian might provide some assistance to the Court may have been because the Plaintiff is the private financial manager of Robert and because he is subject to the oversight of the NSW Trustee and Guardian.)

11. Initially, on 9 May 2022, I formed the view that the matter could be dealt with in Chambers, but, on further consideration of the evidence that had been filed, my view changed. It was re-listed before me, administratively, in Court, on 16 May 2022.

12. On that date, Ms Tibbey again appeared for the Plaintiff, and Ms T Lau appeared for the NSW Trustee and Guardian. Ms Lau indicated that the NSW Trustee and Guardian was prepared to assist the Court and would provide a report for its assistance. A copy of a Report dated 3 June 2022, of the NSW Trustee and Guardian was filed on that date and is retained in the Court papers. It was explicitly stated in the Report that “NSW Trustee neither consents to, nor opposes, the orders sought by the plaintiff”.

13. No evidence was filed and served by, or on behalf of, the NSW Trustee and Guardian. Even so, I am satisfied that all the relevant material all the arguments which can properly be canvassed, directed to the question to be determined have been advanced. Whilst I did not specifically grant leave to the NSW Trustee and Guardian to act as amicus curiae, I am grateful for its assistance in preparing the report.

14. On 27 June 2022, counsel appeared for the Plaintiff and Ms Lau again appeared for the NSW Trustee and Guardian. On that occasion, without opposition, I referred the matter to Chambers. I did so, remembering s 11 of the Supreme Court Act 1970 (NSW) and s 71 of the Civil Procedure Act 2005 (NSW).

15. Section 11 of the Supreme Court Act provides:

Distinction between court and chambers

(1) The distinction between court and chambers is abolished.

(2) The business of the Court, whether conducted in court or otherwise, shall be taken to be conducted in court.”

16. There is no restriction on where the business of the Court might be conducted: King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 at [147] (Campbell J). Indeed, the section specifically “abolishes the distinction between court and chambers”: Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 at [9]. In addition, the business of the Court, whether conducted in court, or otherwise, is taken to be conducted in court.

17. Section 71 of the Civil Procedure Act permits the business of a court, in relation to any proceedings, to be conducted in the absence of the public, “...(f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit”.

18. Whilst a chambers hearing is in private, in the sense that members of the public are not given admission as of right to the courtroom, dealing with a matter “in chambers” does not mean that the proceedings are dealt with in secret. To deal with a matter in chambers means no more than a less formal procedure may be adopted by the Court where there is no opposition to the Court making the orders sought: Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432 at [19] (White J with whom Davies and Williams JJA agreed).

19. In the Succession List, the Court, frequently, makes orders in chambers. The procedure enables matters to be determined informally and expeditiously. Dealing with the matter in chambers still requires the documents in the Court file, where relevant, to be read, and those documents to be identified in the Court’s record of proceedings: Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994 at [79].

20. In the present case, having regard to the apparent lack of opposition to the orders sought, I was satisfied that it is appropriate to deal with the matter in this way. That determination still enables the Court to deal with the proceedings justly and at proportionate cost.

21. I mention, however, that there were two aspects of the Will proposed by the Plaintiff about which I was concerned. On 29 July 2022, the Court administratively listed the matter so that these concerns could be raised and addressed. Counsel for the Plaintiff appeared and the concerns, to which I shall refer later in these reasons were raised. This was done to avoid any suggestion of the denial of procedural fairness.

22. Shortly after the mention, counsel for the Plaintiff sent an email to my Associate attaching a draft Will which she wrote might be considered a useful “starting point” for the Statutory Will. She also stated that, should the Court “be of the view that any other changes are required, we accept that the Court will make Orders as the Court thinks fit.”

23. What follows are the reasons why the Court should give leave to, and allow, with some amendment, the Plaintiff’s application.

The Evidence

24. The Plaintiff filed two affidavits, one affirmed on 20 December 2021, comprising 66 paragraphs, and several annexures, and another sworn on 4 July 2022, comprising three paragraphs, and several annexures.

25. The Plaintiff also relied upon an affidavit affirmed on 10 December 2021, by ML, Robert’s former case worker, comprising 35 paragraphs; an affidavit sworn on 23 November 2021 of KB, comprising 11 paragraphs and several annexures; an affidavit affirmed on 19 May 2022 of WP, comprising 30 paragraphs; an affidavit sworn on 26 May 2022 of Geoffrey Ronald Brazel, solicitor, comprising two paragraphs and one annexure; and two affidavits of Ms Tunnicliff, one sworn on 20 December 2021, comprising 24 paragraphs and several exhibits, and one sworn on 10 January 2022, comprising three paragraphs and one annexure.

Factual Background

26. I have taken what follows from the affidavits to which I have referred.

27. Robert was born in October 1967. He was born with a congenital disability of mild to moderate degree. At about 10 months of age, he was diagnosed as being moderately to severely developmentally disabled.

28. In addition to having intellectual disabilities, in October 1987, during a weekend camp, Robert fell from a flying fox. He suffered a severe spinal cord injury, which resulted in him becoming a partial paraplegic and permanently incontinent.

29. Somewhat unexpectedly, despite the severity of his injuries and his developmental disability, Robert recovered his ability to walk, albeit with a noticeable gait. However, in recent years, his capacity to walk has declined with age and the development of osteoporosis.

30. As stated, the Plaintiff is the financial manager and the appointed guardian of Robert. He was first appointed by the New South Wales Civil and Administrative Tribunal Guardianship Division (NCAT) as the financial manager of Robert’s estate on 28 May 2010, replacing the NSW Trustee and Guardian.

31. On the same date, an order was made appointing the Plaintiff as the guardian of Robert. This order was renewed on 27 May 2013 and again on 27 May 2016, and again on 20 May 2019.

Robert’s estate

32. There is evidence of the nature and value of Robert’s estate. It has an estimated value of $1,108,223. As at 27 July 2021, his estate comprised monies in various bank accounts (both in savings and on term deposit), and monies held in a superannuation Investment Fund held with Sunsuper Pty Ltd. He has no liabilities. His expenses include additional day to day living expenses, which are not covered by the funding from his NDIS package or other government subsidies. These are paid from his savings accounts.

Robert’s family

33. There is some evidence available to the Plaintiff concerning persons who might be entitled to Robert’s estate under the operation of the rules of intestacy, if no Will is made.

34. Searches reveal that no registration of marriage has occurred in New South Wales in relation to Robert and that no entry has been located recording him as the parent of any child.

35. The Plaintiff gave evidence that Robert’s non-biological parents were FTF (his father) and SLEF (his mother). SLEF had three sisters, being GJS, VMR and DH. It is not known whether VMR or DH were married or had issue. However, GJS died without issue.

36. In or about 1987, FTF, SLEF and GJS entered into a Deed, with Robert, regarding the purchase of a parcel of land and a house in Long Jetty (the Long Jetty property), which property was to be registered solely in Robert’s name. It was agreed that Robert would construct a home on the property and that they would all permanently occupy the Long Jetty property together. GJS agreed to provide $80,000, of which $50,000 was to be by loan. FTF and SLEF agreed to provide security for the loan.

37. In February 1988, shortly after the house was completed, and they moved into the Long Jetty property, FTF suddenly died. SLEF died in April 2013 and GJS died on 2 September 2016.

38. The Plaintiff has caused to be conducted genealogical searches to establish whether Robert has any extended family who may be entitled to his estate on intestacy. It appears clear that an earlier Will, made by Robert, to which reference will be made, will not take effect as the only beneficiaries named therein have died.

39. The genealogical searches reveal that:

1. Robert’s paternal grandfather died in 1952 and his paternal grandmother died in October 1971.

2. His maternal grandfather died in October 1959 and his paternal grandmother died in October 1963.

3. Robert has an aunt, on FTF’s side, by marriage, BFF, who was born in April 1931. If she is alive, she would be about 91 years of age. There is no evidence that she has had anything to do with Robert, or that he even knows her.

4. Robert may have surviving him, two paternal cousins, being JF and PAF. The living status of each of them has not been determined by the genealogical searches. There is no evidence that either has had anything to do with Robert, or that he even knows them.

5. Robert may have paternal cousins, but the identity, or living status, of any of them, has not been determined by the searches.

40. From the searches, the Court is unable to determine whether Robert has any cousins, and, if so, whether any of them are alive. In any event, there is evidence that Robert was not in touch with any family members other than FTF and SLEF, and his aunt, GJS. Even if he has cousins, and even if he has met them, Robert does not appear to have had any relationship with them about which he speaks.

41. There is also no evidence, from any of the witnesses, that he, or she, has had any contact with any of Robert’s family members.

42. There is no evidence available to the Plaintiff of the likelihood of an application being made under Ch 3 of the Act for a family provision order in respect of Robert’s property. He is unaware of persons who may fall into any of the categories of eligibility referred to in s 57 of the Act.

The proposed beneficiaries

43. The Plaintiff met Robert in late 2008, or early 2009, after he and his partner, WP, had noticed Robert, on several occasions, sitting, for long periods, at a bus stop, or walking the streets in the Long Jetty area and beyond. The Plaintiff states that Robert was very noticeable, as he walked with a pronounced gait and would often look dishevelled.

44. They learned that Robert was known to various other residents of the Long Jetty area whom he had encountered, from time to time, walking around the local streets. Sometimes, Robert would bother local shopkeepers and shoppers about his watches and rings and would become upset when people would not engage with him.

45. In February, or March 2009, the Plaintiff and WP became aware that Robert’s behaviour was becoming more difficult, causing him to be banned from the Bateau Bay Shopping Mall (located near the Long Jetty property) and also from using local bus services. He often failed to arrive at his supported day program, operated by the House with No Steps (the HWNS) organisation on the grounds of the Long Jetty Hospital. He had been receiving funding from Ageing, Disability and Home Care NSW (ADAHC) to attend it five days a week.

46. Local residents had expressed concern to ADAHC about Robert’s behaviour and his welfare. This was a factor in ADAHC deciding, in 2009, to lodge an application for Robert to be placed under the guardianship of the NSW Trustee and Guardian.

47. In his affidavit affirmed 19 May 2022, WP stated that it was around 2009 that he came across Robert, who was in a very distressed state, in Long Jetty. He explained to WP that someone had promised to meet him and give him a small stereo (which is one of Robert’s obsessions) but the person had failed to arrive.

48. WP offered to take Robert to the HWNS day program at Long Jetty Hospital. Robert agreed, but when they arrived there, the staff informed WP that Robert could not stay because it was not his day to attend the Centre. WP expressed concern for Robert’s welfare to the day centre staff.

49. Robert and WP then walked to the Long Jetty property, where he was invited inside by SLEF. WP helped Robert into his room and was horrified to discover that there were cockroach nests and faecal matter on the floor and on the bedding.

50. During his conversations with SLEF, WP formed the view that she may have suffered from a mental illness, and he became more concerned for Robert’s welfare.

51. The Plaintiff and WP, subsequently, became aware of Robert’s apparent isolation and unhappiness. They became concerned for him and decided to offer to become involved in his life in order to help improve his situation.

43. During a conversation with Robert’s case worker, ML, and the HWNS day program managers, the Plaintiff and WP were advised about:

1. The declining health of SLEF and GJS and their increasing inability to cope with Robert’s behaviours and health challenges.

2. The impact on Robert’s quality of life due to his incontinence and his difficult behaviours, resulting in him being banned from various shopping malls and from using the local bus service.

3. The increasing concerns of ADAHC about Robert’s wellbeing, and in the absence of anyone else who was willing and able to take on the role of being his guardian, ADAHC had lodged a Guardianship application with NCAT for the Public Guardian to be appointed the carer of Robert.

53. With the consent of Robert and SLEF, the Plaintiff and WP started helping with taking Robert to appointments and seeking out more services and help for him. Despite SLEF’s initial protests, the Plaintiff, WP and Robert convinced SLEF to consent to Robert having an operation to have an indwelling catheter inserted, to assist with his incontinence. This procedure was highly successful and resulted in a marked improvement in Robert’s incontinence.

54. During the NCAT processing time, the Plaintiff decided to express an interest to ADAHC about becoming the private Guardian of Robert. On 28 May 2010, with the support of ADAHC, the Plaintiff was appointed by NCAT as the Guardian and Financial Manager of Robert. ML also agreed to continue, as far as possible, to be involved in Robert’s life and has continued to do so.

55. In 2009, with the assistance of the Plaintiff, WP and ML, Robert moved out of the Long Jetty property, into ADAHC funded rental accommodation. However, this form of living arrangement did not work for him, and in 2010, he was offered a place in a new ADAHC group home being built in Wadalba, NSW. He moved there in December 2011 and continued to reside there until 2016.

56. When each of SLEF and GJS moved into aged care, until her death respectively, the Plaintiff and WP facilitated Robert’s continued relationship with them, by ensuring that he was able to visit them weekly, or fortnightly.

57. In 2016, Robert moved to his current home, which is a group home, run by Uniting Care. This group home is closer to shops and community facilities, as well as being close to the Plaintiff and WP, who, along with ML, provide family-like support, friendship, and care to him.

58. When Robert entered the group home, the Plaintiff and WP made a collage for him of photos of those people they knew were important to him, so that he could have something to help him to retain those memories.

59. The Plaintiff and WP, along with various members of family and friends, including ML, have been an important part of Robert’s life since 2009. He stays with them every second weekend and during the Christmas and Easter holidays, although during the COVID-19 pandemic, the visits have been reduced. Robert has his own bedroom at the Plaintiff’s and WP’s home.

60. ML first met Robert, SLEF and GJS, in 2005, when she worked as the Intake Officer with the NSW Department of Family and Community Services: Ageing, Disability and Home Care. She had attended the Long Jetty property to conduct a Needs Assessment to determine the formal and informal supports for Robert’s family.

61. In 2006, ML changed roles within the Department, moving to Case Management on the Community Support Team, and was allocated to Robert. As his Case Manager, ML responded to reports of severe neglect, domestic violence, social exclusion, and restricted access to his home, which resulted in an application to NCAT in 2009.

62. In or about 2015, or 2016, ML ceased being Robert’s Case Manager. Since then, on one Sunday a fortnight, they have had a scheduled activity for three to four hours, or sometimes longer. She collects him from his home at around 10:00 a.m. and together they have morning tea at a local café. He buys his own coffee, and she buys a cake, which they share. Following morning tea, they go for a drive somewhere around the coast. Although he becomes bored easily, he enjoys the drive, during which they listen to music. They then stop for lunch at a café or a pub. Following lunch, they drive again, before stopping for another coffee and ML returns him home around 3:00 p.m.

63. If the weather is poor, Robert goes to ML’s home where she cooks lunch for them. He prefers to be out in the community, as he becomes bored within a short space of time.

64. Robert has met ML’s two adult sons, as well her youngest grandson. When ML lived with her son and his family, Robert would often ask to speak to ML’s grandson on the telephone. He has also met ML’s foster son, and often asks to speak with him when he telephones.

65. For Robert’s birthday, the Plaintiff, WP and ML usually take him out for lunch at a club or café. ML and Robert usually celebrate ML’s birthday on the weekend they are together, and he usually pays for her lunch or coffee.

66. At Christmas, ML takes Robert to see Santa, and pays for him to have a Santa photo. She also arranges for him to have a Santa hat and a shirt to wear for the several Christmas parties arranged by the disability services provider. ML sees him on either Christmas Eve, or Boxing Day, when they exchange presents. ML always buys him a shirt for Christmas.

67. Robert telephones ML when he gets home, at around 3:00 p.m., and again at 5:00 p.m. before dinner. He updates her on news of what is happening at the house, what they plan to have for dinner, who is cooking and who is having a birthday. He telephones again, after dinner, at around 6:00 p.m., to tell her about dinner, conversations held during dinner, persons who misbehaved, and to talk about what ML is having for dinner. He calls her again just before he goes to bed, at around 6:30 p.m., to say good night and confirm what time he can call her the following day.

68. On weekends, Robert does not telephone ML before 9:30 a.m., and he often calls her more frequently as his days are less structured and planned.

69. ML considers Robert to be ‘an important person and fixture’ in her life.

70. The Plaintiff, WP and ML continue to provide friendship, support and guidance for Robert. He often refers to himself as being “part of the family” (referring to them, as well as, until her death, the Plaintiff’s mother and also a cousin of the Plaintiff).

71. Robert telephones the Plaintiff, WP and ML several times a day on a good day, and even more often when he is having a bad day. The telephone calls start at the agreed time of 8:45 a.m. and are made to WP’s mobile telephone. During the day, he makes more calls to the Plaintiff and to WP.

72. In addition to the daily calls made in the morning and late afternoon, Robert routinely calls the Plaintiff, WP and ML each night to say good night. All of these calls appear to be part of an ingrained daily routine, and he appears to find them important.

Robert’s testamentary wishes

73. On 10 May 1988, Robert executed a Will with Mr Frederick Robert Pope, solicitor, in Long Jetty, NSW. In the Will, Robert appointed SLEF as the executor, and, in the event that she predeceased him, he appointed GJS as substitute executor. If GJS also predeceased him, he appointed a law student, JV, as his further substitute executor.

74. In the Will, Robert left the whole of his estate to SLEF, but if she predeceased him, then to GJS. In the event that GJS also predeceased him, his estate would pass to BL. There is no evidence that BL is a member of Robert’s maternal or paternal families. It is possible that Robert’s parents were friends with BL because both households lived on the same street for a period of time. BL died in March 2010.

75. The Plaintiff gave evidence that both SLEF, GJS and BL predeceased Robert. He also gave evidence that JV had not been a part of Robert’s life for over 20 years, and that he is unable to recall her at all. Searches conducted by the Plaintiff have not revealed where JV is to be found. There is no evidence that JV was related to Robert by blood or marriage.

76. Accordingly, as each of the beneficiaries in Robert’s 1988 Will have predeceased him, his estate could only be distributed under the operation of the rules of intestacy.

77. Evidence of Robert’s more recent testamentary wishes were provided in the affidavit of Tamara Lee Tunnicliff sworn 10 January 2022. On 22 October 2019, Ms Tunnicliff and Emma Bohan-Stapleton (a paralegal employed by Brazel Moore Lawyers) met with Robert to ascertain his level of understanding of what a will is, and to determine whether he had the capacity to make a will or be involved in the process of making his will.

78. Relevant portions of the interview, as provided in the affidavit of Ms Tunnicliff sworn 10 January 2022, are extracted below:

“Ms Tunnicliff:      Do you know what a will is and what you put into a will?

ROBERT:      Your money.

Ms Tunnicliff:      Your money.

Ms Bohan-Stapleton:   Yes. Basically yes.

Ms Tunnicliff:      Yep. That’s a very good answer.

So with a will you give your money to people after you’ve died so you won’t need it anymore. Ok?

Have you ever had a think about who you would like to give some money to?

ROBERT:      No.

Ms Tunnicliff:      To who?

ROBERT:      [the Plaintiff].

Ms Tunnicliff:      Whose [sic] [the Plaintiff]?

ROBERT:      My guardian.

Ms Tunnicliff:   So, why would you like to give some money to [the Plaintiff]?

ROBERT:   I don’t know where I am going to put it all though – I’ve got loads of money.

Ms Tunnicliff:   Loads of money? Wow! Do you know how much money?

ROBERT:   Yep. About four and a half thousand ($4,500.00) in the bank.

Ms Tunnicliff:   Wow! That is a lot of money. That is like a lot of money!

ROBERT:   Inaudible. Hopefully I live… . I should… yeah (looking very pleased with himself).

Ms Tunnicliff:   You’ll live long enough to spend all of that though.

ROBERT:   Yeah, I will.

Ms Tunnicliff:   Definitely. Definitely.

So, um is there anyone else you would like to give your money to do you think?

ROBERT:      ML [although he said her name].

Ms Tunnicliff:      And who’s she?

ROBERT:   She’s my case worker. She used to be my case manager.

Ms Tunnicliff:      Yeah and why would you give some money to her?

ROBERT:      I don’t know what I am going to do with it all.

…

Ms Tunnicliff:   Is there anyone else that you can think of that you um might want to give your money to?

ROBERT:      Nup. I can’t think.

…

Ms Tunnicliff:   Alrighty. Okay. So…. Who else? So, um there’s [BW] who is your friend?

ROBERT:   Yeah.

Ms Tunnicliff:   Would you leave any money for [BW] or anyone?

ROBERT:   (Robert had a long think.) Probably.

Ms Tunnicliff:   Like a little bit or a lot?

ROBERT:   A little bit.

…

Ms Bohan-Stapleton:   So, who would you like to leave your rings and watches and lovely bracelet to anybody?

ROBERT:   (Inaudible)

Ms Bohan-Stapleton:   [WP] and [the Plaintiff] did you say?

ROBERT:   Yep.

…

Ms Bohan-Stapleton:   So, from what you’ve said to us, when we were chatting before, that you would like to leave um most of your money and that to [the Plaintiff]…

ROBERT:   Yeah.

Ms Bohan-Stapleton:   And did you say you wanted to leave some to your old case worker?

ROBERT:   Yeah, [ML].

Ms Tunnicliff:   Yep.

Ms Bohan-Stapleton:   [ML]. Okay. Is there anybody else, or just [the Plaintiff] and [ML]?

ROBERT:   Yep.

Ms Tunnicliff:   So you wouldn’t leave any to the place where you live?

ROBERT:   Ummm

Ms Tunnicliff:   You don’t have to.

ROBERT:   Nah. I don’t know what I’m going to do.

Ms Tunnicliff:   Any [sic] did you want to leave any to [BW]? You don’t have to. I’m just throwing it out there.

Ms Bohan-Stapleton:   Yep just to whoever you might like to.

ROBERT:   (Inaudible) [BW]. Cos I buy heaps of stuff for him

…

Ms Tunnicliff:   Alrighty. And your rings and your watches. And so all your jewellery and your special things. Who did you want those to go to?

ROBERT:   [WP] can have them. I’ve got like 16 watches.”

Robert’s medical condition

79. Robert is described as a relatively high functioning individual. He does, however, require support with his day to day decisions and needs, including, but not limited to:

1. Assistance with urinary and faecal incontinence;

2. Changing and maintenance of an indwelling catheter;

3. Management of medications;

4. Dietary requirements;

5. Transport to services and community outings;

6. Support with shopping;

7. Budgeting and money management;

8. Support to maintain good hygiene and appearance; and

9. Support to minimise risk of COVID-19 infection, through social distancing and other recommended measures.

80. He suffers from anxiety/mood disorder, and, occasionally, resorts to verbal aggression and non-compliance when he is very anxious, frustrated, or angry. He requires an established, supportive environment and appropriate intervention strategies to assist with minimising the number and impact of these incidents.

81. Beyond recognising some words and numbers, Robert cannot read. He can write his name and a few words, with prompting. He is, however, good at verbal communication.

82. He has a short attention span and displays obsessive behaviours, particularly in relation to watches, rings, eyeglasses and jewellery. These obsessions can be hard to manage, and this can sometimes cause difficulties for him and for his care providers.

83. In a medical report dated 14 May 2019, Robert was said to have an intellectual disability and associated behavioural problems which impair his ability to reflect and reason.

84. Since meeting him, the Plaintiff, WP and ML have all been involved in regularly arranging for his health and social support needs to be attended to, such as his psychological and physical needs, including arranging for him to attend a psychiatrist, urologist, endocrinologist, the Royal North Shore spinal clinic and his general medical practitioner. They also communicate with his carers at the group home and day support services about his wellbeing and any changes that need to be made.

85. In an affidavit sworn on 23 November 2021 of KB, a behaviour specialist working with Robert, Robert was described as having “limited decision making capability and requires full support with all decision making and planning around life choices.”

86. KB annexed a copy of Robert’s Comprehensive Behaviour Support Plan dated 25 June 2021. Robert’s relationship with the Plaintiff, WP and ML is referred to several times throughout the Plan. In his profile, he states that he likes visiting the Plaintiff and WP and their dog, as well as visiting ML and having coffee and lunch with her. The Plan also states that, when Robert is in a state of heightened anxiety and agitation, calling the Plaintiff, WP and ML can help to de-escalate these situations.

87. It is clear from the Plan that the Plaintiff, WP and ML provide support and comfort to Robert. Each of them has been listed as key contacts for Robert and as people who have agreed to implement the Plan.

The proposed Statutory Will

88. In the proposed Will that was tendered, Robert revokes all former Wills and testamentary dispositions (Clause 1); appoints Mr Brazel, as his executor, or in the alternative, appoints the partners or directors of Brazel Moore Lawyers Pty Ltd, should Mr Brazel be unwilling or unable to act (Clause 2); directs that after the payment of all funeral and testamentary expenses and debts (Clause 4), the whole of his estate be divided between the Plaintiff, WP and ML, as tenants in common in equal shares (Clause 8).

89. It is said that the proposed Will leaves Robert’s estate to the three persons who have had the most to do with him since the death of SLEF and GJS.

90. The proposed Will also contains a number of powers given to the executor and trustee. These include the power to:

1. apply for the benefit of any beneficiary the capital to which that beneficiary is entitled, provided that upon becoming absolutely entitled the Trustee shall bring into account any payments received under this Clause.

2. apply for the maintenance, education or benefit of any minor or contingent beneficiary out of the part of Robert’s estate to which that beneficiary is entitled.

3. invest and change investments freely.

4. sell lease exchange or otherwise dispose of the estate assets.

5. determine whether receipts or outgoings are capital or income in nature.

6. access, manage, distribute, deal with and dispose of Robert’s digital assets.

Report by NSW Trustee and Guardian

91. As I have stated above, the NSW Trustee and Guardian provided a report on its views of the proposed will. In that report, it was noted that, in the 13 years that the Plaintiff has acted as financial manager for Robert, there have been no issues or points of concern.

92. It was also noted that the Plaintiff has filed evidence from two treating medical practitioners, being Dr Peter Wurth and Dr Julian Smith, each of whom states that Robert lacks testamentary capacity. There is no medical evidence available to indicate a probable likelihood that he may acquire or regain testamentary capacity in the future.

93. In Dr Smith’s opinion, Robert’s impairment is permanent and likely to remain stable. The report also had regard to the interview conducted by Ms Tunnicliff, in which Robert, perhaps, demonstrates an unsophisticated appreciation that a will relates to his money, but did not fully appreciate the nature and value of his estate.

94. In that interview, Robert referred to the Plaintiff and WP as his ‘family now’ and expressed that he wished to give his money, watches and jewellery to the Plaintiff, WP and ML.

95. The report also states that, Robert seems to have expressed that he did not wish to give his money or belongings to friends at his residence, to his cousin with whom he was not in contact, nor to any other person involved in his life. (That aspect of the report is not entirely accurate as, during the interview, he expressed some interest in making provision for a friend at the group home, although he was unable to decide how much provision he should leave him.)

96. During Robert’s examination by Dr Wurth in July 2019, he had ‘an idea’ that he wished to leave his money to the Plaintiff and ML equally. He was also aware that he has a cousin in Sydney that he never sees.

97. On the evidence, the NSW Trustee and Guardian was satisfied that Robert has been engaged in the preparation of the evidence regarding his testamentary preferences and involved, to the best of his ability, in the will-making process.

98. The NSW Trustee and Guardian also noted that, although ML’s relationship with Robert commenced in her professional capacity, there is no evidence to suggest that there is any undue influence in her current relationship with Robert.

99. In addition, the NSW Trustee and Guardian noted that Robert is not currently in contact, and has not been, for at least over a decade, in contact with any cousins. NSW Trustee and Guardian is not aware that those cousins have any real, or genuine, involvement in Robert’s life or financial affairs.

100. The NSW Trustee and Guardian has formed the view that the Plaintiff, WP and ML each is, and has been, committed to Robert’s interests and welfare. He considers them his ‘family’, and turns to each of them for daily support, which has been consistently provided by them over an extended period. There is no evidence that any of them is not committed to providing continued support and care as each has done for some years.

101. The NSW Trustee and Guardian did not consider it necessary to contact Robert to obtain his views on his testamentary wishes, in the circumstances and having regard to the evidence of the interview conducted by Ms Tunnicliff.

102. The NSW Trustee and Guardian stated that it neither consents to, nor opposes, the orders sought by the Plaintiff.

The Statutory Scheme – the guiding principles

103. As was stated by Lindsay J in Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419 at 425; [2014] NSWSC 1065 at [54], albeit in relation to a minor lacking testamentary capacity, which applies, equally, to an adult lacking testamentary capacity:

“The jurisdiction exercised by the Court in authorising a will to be made on behalf of a child lacking testamentary capacity is statutory. An exercise of that jurisdiction must begin, and end, with the text of the legislation in mind…”

104. This litigation is not ordinary adversarial litigation. As his Honour also wrote in Re M’s Codicil [2018] NSWSC 936 at [33]-[34]:

“The jurisdiction conferred on the Court by the Succession Act is essentially, in nature, protective of the incapacitated person.

Accordingly, upon an exercise of the jurisdiction, the Court must remain mindful 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: GAU v GAV [2016] 1 Qd R 1 at [48] and [52]; Re K’s Statutory Will [2017] NSWSC 1711 at [19]-[21].”

105. In Small v Phillips (No 2) [2019] NSWCA 268, it was noted, at [149], that:

“As the primary judge observed, the issues raised by proceedings for the authorisation of a statutory will are very much analogous to proceedings in the protective jurisdiction of the Court. That is to say, while the Succession Act contemplates that there be a moving party, whom the Court must conclude to be appropriate, the object of the proceedings is to authorise the making of a will on behalf of a person who does not have capacity to make a will. While it is important for the Court to be satisfied that it has had access to all relevant material for the purposes of deciding whether to authorise an application and, if so, to authorise the making of a statutory will, it does not necessarily follow that the various parties to such proceedings have precisely the same right to procedural fairness that would be applicable in adversarial litigation.”

106. I have recently dealt with the statutory scheme for the making of a statutory will in Re The Will of Alexa [2020] NSWSC 560 and in Re The Statutory Will of Rolf Huenerjaeger [2020] NSWSC 1190. I shall repeat what I wrote in those cases, with some additional principles.

107. The relevant sections of the Act which apply to the matters the subject of these proceedings commence at s 18. They apply on, or after, the commencement of the Act, namely on 1 March 2009, 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 cl 3(5) of Sch 1).

108. There can be no dispute that the Act may be relied upon in respect of Robert.

109. As I also stated in Re the Statutory Will of Rolf Huenerjaeger at [68]-[71]:

“A statutory will means a will executed by virtue of a provision of an Act of New South Wales or other place on behalf of a person who, at the time of execution, lacked testamentary capacity: s 26 of the Act.

It is undoubted that the issues raised by proceedings for the authorisation of a statutory will are very much analogous to proceedings in the protective jurisdiction of the Court: Small v Phillips (No 2) [2019] NSWCA 268 at [149] (Brereton and McCallum JJA; Emmett AJA). Whilst the Act contemplates that there be a moving party, who the Court must conclude is an appropriate person, the object of the proceedings is to authorise the making of a will on behalf of a person who does not have capacity to make a will.

(I should mention that an application for special leave to appeal the decision of the Court of Appeal was dismissed by the High Court (Bell and Gageler JJ) in Phillips v Small & Ors [2020] HCATrans 96 at p 14(546) – p 15(550), the conclusion being that:

“We are not persuaded that the application gives rise to any issue of principle concerning the construction of s 22 of the Succession Act 2006. In our opinion, there are insufficient prospects that were special leave to appeal to be granted the appeal would be successful. The application is dismissed with costs.”)

In New South Wales, it has been held that a person who will benefit from the proposed statutory will may make an application. In such a circumstance, the Court might order separate representation of the incapable person, 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] (Palmer J).”

110. Section 18 provides that the Court may, on application by any person, make an order authorising a will to be made, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity.

111. 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. However, the Court is not to make an order under s 18 unless the person in respect of whom the application is made is alive when the order is made: s 18(3).

112. A will that is authorised to be made or altered by an order under s 18 must be deposited with the Registrar (s 18(6)), but a failure to comply with that requirement does not affect the validity of that will.

113. The Court is satisfied that, in the circumstances of this case, the Plaintiff is an appropriate person to make the application for an order under s 18 of the Act.

114. Section 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.

115. In the circumstances where Robert has no immediate family members, and his closest family members are his cousins, with whom he has no meaningful relationship, I am satisfied that there are no members of his family with a legitimate interest in the Plaintiff’s application. Indeed, in my view, there are no people, other than the Plaintiff, WP and ML who would have reason to expect a gift, or benefit, from Robert’s estate.

116. In any event, the NSW Trustee and Guardian, whilst not a party, has considered the claim and provided the report to which reference has been made.

117. Section 19(1) of the Act requires the applicant to obtain the leave of the Court to make an application for an order under s 18. In applying for leave, the person must (unless the Court otherwise directs) give the Court the information specified in s 19(2) of the Act. That information includes:

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

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

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,

a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court’s approval,

any evidence available to the applicant of the person’s wishes,

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

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

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,

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,

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,

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,

any other facts of which the applicant is aware that are relevant to the application.

118. The checklist provided by s 19 of the Act 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 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.

119. In the circumstances where the Plaintiff has instructed experienced legal practitioners, and was given the opportunity to provide additional evidence, I infer that all of the evidence that the Plaintiff could have advanced, in relation to s 19 of the Act, has been advanced.

120. The Court of Appeal in Small v Phillips (No 2) at [151] observed that there is a distinction to be drawn between the granting of leave under s 19 of the Act to make an application and the decision whether an applicant is an appropriate person for the purposes of s 22(d), on the one hand, and the making of an order under s 18 authorising the making of a statutory will on the other.

121. In relation to the two-stage procedure, Brereton and McCallum JJA, and Emmett AJA, wrote at [151]:

“That is to say, on the hearing of an application for leave under s 19, the applicant will normally be entitled to be informed of any material that might be the basis for concluding that the applicant is not an appropriate person to make an application. That, however, may be a different question from whether, once an applicant has obtained leave under s 19, the applicant has an entitlement to have access to all material available to the Court in considering whether or not it is appropriate to make an order under s 18, having regard to the other matters referred to in s 22.”

122. Section 20(1) of the Act provides that, on hearing an application for leave, the Court may give leave and allow the application for leave to proceed as an application for an order under s 18, and, if satisfied of the matters set out in s 22, make the order.

123. The Court will normally proceed to hear the application for a final order as soon as it grants leave under s 19(1) of the Act if satisfied that the circumstances revealed in the information provided in order to satisfy the requirements of ss 19(2) and 22 is sufficient to justify the making of a final order and is unlikely to change in the foreseeable future: Re Fenwick (2009) 76 NSWLR 22 at 49; [2009] NSWSC 530 at [120] (Palmer J). This will be done to save the parties expense and time.

124. In following the two-stage procedure for the authorisation of a statutory will, being, first, an application under s 19 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, 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 at 364 [5]; [2013] NSWSC 1550 at [5] (Black J); Argiro v Lagozino [2017] SASC 185 at [20] (Stanley J). Yet, there is nothing in the text, or in the context, of s 22 of the Act that limits the role of the leave application to simply screening out baseless or unmeritorious claims.

125. Section 20(2) of the Act states that “the Court may revise the terms of any draft of the proposed will”. The power is not limited to enabling the Court to accept only revisions offered by the applicant or by any other party. The Court may initiate or decide upon a revision of the proposed will that is to be the subject of leave under s 19 of the Act.

126. There is no doubt that it is within the Court’s power to revise the amended draft will provided to the Court, to ensure that its terms are appropriate for approval by the Court under s 18 of the Act in the circumstances in which the Court is required to make its decision.

127. In Re Will of Jane [2011] NSWSC 624, I wrote at [63] and [68]:

“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.

...

To be satisfied requires the court to assess the terms of the proposed statutory will, whilst retaining, under s 20, the 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.”

128. I also wrote, at [96]:

“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. Section 21 of the Act, relevantly, provides that, in considering an application for an order under s 18, the Court may have regard to any information given to the Court in support of the application under s 19. Further, the Court may inform itself as to any other matter, in any manner it sees fit, and the Court is not bound by the rules of evidence.

130. Section 22 of the Act, relevantly, provides that the Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied that:

(a) 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, 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, as the Court considers appropriate, of 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.

131. Before leave can be granted pursuant to s 19, the Court must be satisfied of each of the matters in s 22. Similarly, on hearing an application for leave the Court may, having granted leave to the applicant, only make an order under s 18 if satisfied of the matters set out in s 22: s 20(1)(b) of the Act. Section 22, however, does not demand certainty.

132. As ordinary words, “to be satisfied” means to be furnished with sufficient proof that the Court is assured or convinced, on the balance of probabilities, of each of the conditions. The Court is required to assess the terms of the proposed statutory will, whilst retaining, under s 20(2) of the Act, 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.

133. (It can be seen that under s 18(1) of the Act, 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) of the Act. 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] (Palmer J).)

134. There is no definition of “testamentary capacity” in the Act. It must, however, mean “the capacity to make a will” (applying the test of testamentary capacity usually defined by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565 (Cockburn CJ)). 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.

135. Relevantly, a person who is incapable of managing his, or her, own financial affairs, nonetheless, may have testamentary capacity: CJ v AKJ (2015) 16 ASTLR 24 at 29-32; [2015] NSWSC 498 at [27]-[43] (Lindsay J); Perpetual Trustee Company Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377.

136. Section 22(b) contains two concepts, one being that the terms proposed are those that are reasonably likely to have been included in a will if the person had made one. The other is that it is reasonably likely that a will in those terms would have been made by the person absent the loss of testamentary capacity.

137. Thus, 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 plaintiff undertakes the onus of proving the requisite testamentary intention by placing relevant evidence before the Court.

138. 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.

139. As was written in Small v Phillips (No 2) at [158]:

“That distinction raises questions of what might be characterised as relative certainty. Clearly enough, one can envisage a situation where a person evinced a clear intention and desire to make a will in a finalised form but, because of intervening events, leading to incapacity, was unable to execute the will. Evidence may well lead to the conclusion that, in such a situation, the will is one that would have been made by the incapable person. Nevertheless, that degree of certainty is not necessary in order to satisfy s 22(b). Thus, even if the proposed will is not one about which it can be said the incapable person would have made it, s 22(b) may be satisfied where the evidence discloses that the proposed will is one that the incapable person is reasonably likely to have made. 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.” [Emphasis in original]

140. The requirement in s 22(b) of the Act, in my view, confirms that a vigilant and anxious examination of the evidence as to the incapable person’s actual, or reasonably likely, intentions is required.

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

"has 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?"

142. His Honour 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."

143. In Re Will of Jane, I wrote 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.”

144. Yet, s 22(b) of the Act should be approached recognising, as Palmer J observed in Re Fenwick at [132], that the Court's jurisdiction in an application of this kind is "remedial and protective" and the Court's role is "to endeavour to rectify a problem which is affecting people's lives, in the best possible way", whilst also recognising that the Court's authority is limited by the statutory conditions set in s 22 of the Act and is not at large: Burns v The Estate of Troy Mitchell Burns a Protected Person at [22] (Black J).

145. Section 22(c) of the Act 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.

146. 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 sub-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”.

147. 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 has some undue pressure or influence been applied.

148. What is “appropriate” in the circumstances of the particular case may be measured against the standard of what is in the interests, and for the benefit, of the person lacking capacity, which inquiry is one going to the objective circumstances pertaining to that person and her, or his, estate, together with those who might have a reasonable expectation in relation to her, or his, bounty: Re MP’s Statutory Will [2019] NSWSC 331 at [24] (Lindsay J). Assistance in answering this question is given by the information provided by s 19(2) and by the assessment of the terms of the proposed statutory will.

149. In relation to s 22(d) of the Act, there is no definition of who may, or who 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.

150. In Jeavons v Chapman (No 2) [2009] SASC 3 at [30], Gray J quoted from a 1992 Report of the New South Wales Law Reform Commission: New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, (February 1992) at par 2.9. The Report stated, in support of its recommendation that “any person” should be entitled to apply to the Court to make a statutory will:

“Solicitors, 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.”

151. One would expect that there would be no difficulty establishing the requirement that the applicant for leave is an appropriate person in a case where the applicant is 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 at [14] (Ball J). 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 (Isaacs J).

152. On the question of representation under s 22(e) of the Act, the applicant should take all steps necessary to identify, locate, and serve any person who may have 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”. The class of persons under subs (e) are likely to include beneficiaries under any 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. These are persons with a legitimate interest in the application.

153. By virtue of s 23(1) of the Act, a will made by an order under s 18 is properly executed only if it is signed by the Registrar. Subsection (2) authorises the Registrar to sign the will for the purposes of subs (1)(b) even after the death of the person in relation to whom the order was made.

154. Section 24 of the Act deals with the retention of the Will deposited with the Registrar under the Act. A will deposited with the Registrar in accordance with this Part may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless: (a) the Court has made an order under s 18 authorising the revocation of the whole of the will, or (b) the person has acquired or regained testamentary capacity. Only on being presented with a copy of an order under s 18 authorising the revocation of the whole of a will, the Registrar must withdraw the will from deposit.

155. I have earlier referred to s 25 and s 26 of the Act. Section 26 relevantly provides that a statutory will made according to the law of the place where the deceased was resident at the time of the execution of the will is to be regarded as a valid will of the deceased.

The Conclusion

156. The Court must first determine whether the leave of the Court to make an application for an order under s 18 of the Act should be granted to the Plaintiff. The section provides that the Court may make an order. Section 20(1) provides that, on hearing an application for leave under s 19, the Court may give leave and make an order under s 18. I am satisfied, in this case, that the Court should make an order under s 18, the Plaintiff having given the Court the available information referred to in s 19 of the Act.

157. The Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied of the matters in s 22. The language of the section indicates that there are prerequisites for the exercise of the jurisdiction in question. I am satisfied, subject to the two matters to which I have referred, that the prerequisites indicated in s 22 have been satisfied.

158. I am satisfied that there is reason to believe that Robert is, or is reasonably likely to be, incapable of making a will. He does not have the capacity to understand the value of his estate, although he has stated that he has “loads of money” (without being able to accurately identify how much).

159. His cognitive deficits also mean that he does not have the capacity to comprehend and appreciate (that is, to weigh) the competing claims upon his bounty to which he ought to give effect, which is a critical element of testamentary capacity.

160. I am also satisfied that, in the absence of any other obvious applicant, the Plaintiff is an appropriate person to make the application, and that, in the circumstances of this case, adequate steps have been taken to allow representation of 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. It is difficult, if not impossible, on the evidence, to nominate any such persons.

161. Subject to two matters, I am satisfied that the proposed Will is, or is reasonably likely to be, one that Robert would make if he were to have testamentary capacity and that it is appropriate to be made, in accordance with ss 22(b) and (c) of the Act. His earlier Will does not provide any assistance in this regard as all three beneficiaries have died.

162. Having read the evidence, I am concerned that Mr Brazel, or members of his firm, would not be the person, or persons, who ought to be appointed the executor of the statutory Will. In this regard, there is no evidence that Robert has ever met Mr Brazel, although as referred to above, he has met Ms Tunnicliff, a solicitor who had been contacted, initially, by the Plaintiff. There is no evidence that Robert knows any other members of Mr Brazel’s firm.

163. Rather, I am satisfied that a Will, in which the Plaintiff is appointed the executor and trustee, is reasonably likely to be one that would have been made by Robert if he had testamentary capacity, as the Plaintiff is, and has been for some time, his financial manager and has managed his estate without incident.

164. Secondly, in the proposed Will there were the powers given to the executor and trustee to which I have referred. However, it does not seem to me that these powers are necessary as the estate is likely to be distributed reasonably promptly, there are not likely to be any minor beneficiaries, and the executor has trustee powers in any event.

165. The Plaintiff has proposed a Will in which there is the equal division of Robert’s estate between the three persons who have had, and who appear to continue to have, the most to do with him, and who appear to have devoted care, support and attention to him, to the exclusion of any other persons. There is some evidence of Robert’s intention to confer testamentary benefits on the three identified individuals. There do not appear to be any other persons who might have a reasonable expectation in relation to Robert’s bounty.

166. The Court has made an evaluative and intuitive judgment as to what, objectively, Robert would be reasonably likely to have decided, had he been capable of doing so, as to the appropriate shares in his estate to be received by each of the three people who appear to be the closest persons to him. In reaching the level of satisfaction in relation to all of these matters, the Court has had regard to the importance and gravity of the issues involved in this application. In all the circumstances, I am satisfied that a Will that provides for an equal distribution to each of the persons would be reasonably likely to have been one made by Robert if he had testamentary capacity. I have settled the form of the statutory will, with the only amendments to the draft provided being made to the appointment of executor and the removal of the clause relating to trustee powers.

167. The Act provides no guidance as to what should happen in relation to the costs of an application relating to a statutory will.

168. In determining the burden of costs, I bear in mind that the jurisdiction relied upon by the Plaintiff involves a public benefit. In A Ltd v J (No 2) [2017] NSWSC 896, Ward CJ In Eq, at [84]-[86], wrote:

“Section 18(5) of the Succession Act confers a discretion on the Court, in making an order, to give any necessary related orders or directions. This discretion extends to making an order that the costs of a statutory will application be paid out of the person’s assets.

Amongst the matters that the Court should take into account, in determining the appropriate exercise of the discretion, are whether the application is properly brought; and whether an order that costs be paid from the proposed testator’s assets would have any detrimental impact on the proposed testator's wellbeing.

It is clear that the application was properly brought and that an order that the costs of the plaintiff be paid out of the Child’s estate will not impact detrimentally on the estate.”

169. In Small v Phillips (No 3) [2020] NSWCA 24 at [3], the Court (Brereton, McCallum JJA and Emmett AJA) wrote:

“Proceedings for the making of a statutory will for an incapacitated person are of a character similar to proceedings in the protective jurisdiction. Thus, there is a public interest in making a statutory will to ensure the orderly distribution of the assets of an incapacitated person on the death of such a person. Further, a person who has a legitimate interest in an application to authorise a statutory will should not be dissuaded from assisting the Court to exercise its jurisdiction in a fully informed manner by reason of concern that the person may be obliged to do so at his or her own expense. In addition, a defendant, even if unsuccessful in opposing a statutory will, should ordinarily be given his or her costs from the estate of the incapacitated person on the indemnity basis if it was reasonable to resist the claim for a statutory will.”

170. I am of the view, in this case, that as the Plaintiff, in the Summons, seeks costs of the application, and as the application was properly brought, and has been successful, albeit with two amendments, he should receive his costs, calculated on the indemnity basis, of the proceedings.

171. The Court:

1. Orders, pending further order, and pursuant to ss 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that there be no publication that would identify, or tend to identify, the person lacking testamentary capacity, the subject of these proceedings, except for the purpose of the proper conduct of these proceedings.

2. Orders, pursuant to s 19 of the Succession Act 2006 (NSW) that the Plaintiff be granted leave to make an application for an order under s 18 on behalf of Robert, the person lacking testamentary capacity.

3. Orders pursuant to s 18 of the Act, that a statutory Will be made on behalf of Robert, in the terms set out in Ex SW1.

4. Orders that the proceedings be remitted to the Registrar, forthwith, to enable the statutory Will to be executed.

5. Orders pursuant to s 23(1)(b) of the Act, the Registrar be authorised and directed to sign and seal, the statutory Will, with the seal of the Court.

6. Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Robert.

7. Orders that the Plaintiff is to serve on the NSW Trustee and Guardian, a copy of these orders and a copy of the statutory Will of Robert.

8. Orders that these orders be entered forthwith.

**********

Decision last updated: 04 August 2022