Re W, DJ
[2015] SASC 45
•25 March 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
W, DJ
[2015] SASC 45
Judgment of The Honourable Justice Gray
25 March 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
Application for making of a statutory will. DJW suffered serious injury as a result of complicated birth, leaving him severely physically and intellectually disabled. A compromise of personal injury proceedings against the hospital was approved in the District Court, resulting in a substantial payment to DJW’s estate and to his mother, who is his primary carer. DJW’s parents have separated and he has minimal contact with his father. DJW lives with his mother and sister, and spends time with his half-sister on his mother’s side. He also has a half-sister, a half-brother and a number of step-siblings on his father’s side, with whom he has no contact. The parties ultimately reached a compromise and agreed on the terms of a draft will.
Whether DJW lacks testamentary capacity. Whether DJW’s likely testamentary intentions accord with the proposed will. Whether the making of a will in the proposed terms is reasonable in the circumstances:
Held per Gray J (allowing the application):
1. DJW lacks testamentary capacity.
2. The will originally proposed would not reflect DJW’s likely testamentary intentions given the terms of the compromise of his personal injury claim and his present and likely future relationship with particular members of his family.
3. The making of a will in the terms proposed in these reasons reflects DJW’s likely testamentary intentions and is reasonable in all the circumstances.
Aged and Infirm Persons’ Property Act 1940 (SA); Wills Act 1936 (SA) s 7; Probate Rules 1997 (SA) r 98, referred to.
Bryant v Blake (2004) 237 LSJS 23; Hoffmann v Waters (2007) 98 SASR 500; Monger v Taylor [2000] VSC 304; Boulton v Sanders (2004) 9 VR 495; Re Fenwick (2009) 76 NSWLR 22; Re Palmer [2003] VSC 21; In the Matter of Shaun Arthur Pickles [2013] SASC 175; In the Matter of Rak [2009] SASC 288; Re Brown [2009] SASC 345; In the Matter of De Jager [2012] SASC 236; Banks v Goodfellow (1870) LR 5 QB 549; In The Will of Wilson (1897) 23 VLR 197; Timbury v Coffee (1941) 66 CLR 277; Re Brown [2009] SASC 345; Re C (A Patient) [1991] 3 All ER 866, considered.
W, DJ
[2015] SASC 45Testamentary Causes Jurisdiction
GRAY J.
This is an application for the making of a statutory will.
DJW was born on 21 November 1997. He suffered serious injury as a result of a complicated birth. A compromise of personal injury proceedings was approved by a Master in the District Court in 2012. As part of the compromise, a protection order was made under the Aged and Infirm Persons’ Property Act 1940 (SA) with Australian Executor Trustees Limited appointed manager of the protected estate.
Agreement was reached between the parties and a draft will was provided to the Court. Notwithstanding the parties’ agreement, it remains necessary for the Court to be satisfied that DJW lacks testamentary capacity, that the proposed will reflects the likely testamentary intentions of DJW and that it is reasonable in all the circumstances that the order be made in order to enliven the jurisdiction of the court to grant the order.
For the reasons that follow, I am satisfied that DJW lacks testamentary capacity and that an order for a statutory will should be made. However, I am not satisfied that the terms of the proposed will accurately reflect DJW’s likely testamentary intentions.
Background
On 28 March 2013, Australian Executor Trustees, by summons, sought leave to make the application for a statutory will pursuant to section 7 of the Wills Act 1936 (SA) and rule 98 of the Probate Rules 1997 (SA).[1]
[1] The summons refers to the 1997 Rules, however for the purposes of these reasons, I have presumed a reference to the 2004 Rules was intended.
On 14 May 2013, the Registrar of Probates ordered that the proceeding be served on the Public Advocate and DJW’s father. Initially, the amount of the compromise the subject of the District Court orders was not disclosed to the Court. This was raised by the Registrar with the solicitors for the applicant. The Registrar then referred the matter to me. The figure of the compromise was subsequently disclosed as $8,550,000.00, together with an order for costs. The applicant, at my direction, notified DJW’s father of the terms of the Court order. DJW’s father appeared through representation.
On 8 July 2013, I made an order appointing the Public Trustee as litigation guardian for DJW. As the matter progressed, it became apparent that the application was being brought at the instigation of DJW’s mother. On 1 October 2013, I made an order substituting DJW’s mother as the plaintiff in the proceeding in lieu of Australian Executor Trustees.
DJW was born in traumatic circumstances resulting in a deprivation of oxygen for five minutes prior to revival following delivery. Subsequent to his delivery, DJW suffered from seizures and swelling around the brain. He also suffered a range of injuries, including cerebral palsy, microcephaly, intellectual disability, cortical vision impairment, catastrophic brain damage and hypoxic ischaemic encephalopathy. As a result of his injuries, DJW has no functional capacity to use his hands; severe cognitive impairment; severely impaired gross and fine motor skills; mild tonal impairments; spasticity of the lower limbs; low proximal tone; ritualistic behaviour, including rocking and head banging; severe communication, speech and language delays; and severe behavioural impairments. At a young age, he underwent gastrostomy surgery for the insertion of a feeding tube, through which he now receives his nutrition.
In April 2002, DJW, by his next friend and litigation guardian, issued proceedings against the Flinders Medical Centre seeking damages arising as a result of the injuries. The proceedings were transferred to the District Court and the matter was mediated in July 2012. The matter settled and consent orders were entered in the District Court approving the settlement and making DJW subject to a protection order, with Australian Executor Trustees appointed manager of DJW’s estate as a protected person’s estate. DJW does not have a will and, in the event of his death, his estate would be administered according to the rules of intestacy.
An affidavit of DJW’s mother sworn 15 April 2013 was filed in support of the application. In her affidavit, DJW’s mother explained that she had worked full time prior to her pregnancy with DJW and had planned to return to work when DJW was three months old, but that his disabilities did not allow this and she has never returned to full-time work, only part-time. DJW’s mother deposed that, prior to DJW’s birth, she lived together with DJW’s father. In 2000, three years after DJW’s birth, they had another child together, a daughter. DJW’s sister, E, was born without complications. The couple separated in 2005 and stopped living together five months after the relationship ended. DJW stayed with his mother, while his sister E spent six months living with her father, before moving to live with her mother. DJW’s mother is now in a relationship with another man. They have a daughter together, born in 2008. She is DJW’s half-sister, S.
DJW’s mother deposed that when DJW’s father lived with them, his involvement with DJW was limited and that, over time, he became less involved and interested in DJW. It was said that in the eight years since DJW’s father moved out to the date of the swearing of the affidavit, DJW’s father had spent a total of five hours with DJW.
DJW’s mother deposed that her current partner spends time caring for DJW and that DJW acknowledges him. It was said that DJW will show a level of excitement when he sees people he knows and likes but that he does not react to his father when he sees him.
Counsel for the Public Trustee, Leonie Evans Millard, filed an affidavit sworn on 18 September 2013 regarding her meeting with DJW in her role as counsel for his litigation guardian. Ms Millard recorded observations of DJW, including his interactions with others, and provided opinions as to DJW’s testamentary capacity and likely testamentary intentions.
An affidavit of DJW’s father sworn on 26 September 2013 was filed with the Court. DJW’s father explained that he had had a difficult childhood and was the subject of repeated abuse by his mother’s partners. He experienced learning difficulties and moved out of the familial home when aged 17 years. DJW’s father has been unemployed for some nine years after 10 years of varied unskilled work. DJW’s father described anxiety and depression as a result of his inability to obtain employment. DJW’s father described his current living situation with his wife and four of her six children. It was said that DJW’s sister E stays with them one night per week but that their house is not suitable for DJW to visit due to steps and inappropriate access for DJW’s wheelchair. The house is not easily navigable by a wheelchair and there are no safety features to protect DJW.
DJW’s father disputed DJW’s mother’s assertions that his involvement with DJW when they lived together was limited. He further asserted that he had made efforts to see DJW once he had moved out, but that he had encountered difficulties, including resistance by DJW’s mother.
A second affidavit of DJW’s mother, sworn on 6 December 2013, was filed in response to the affidavit of DJW’s father. Large portions of DJW’s father’s affidavit were disputed and contrary facts asserted.
It is against this background that the parties came to an agreement as to the terms of a proposed statutory will.
The Application
Section 7 of the Wills Act empowers the court to authorise the making of a will on behalf of a person who lacks testamentary capacity. Section 7 relevantly provides:
(1)The Court may, on application by any person made with the permission of the Court, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of a will, on behalf of a person who lacks testamentary capacity.
(2)An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3)Before making an order under this section, the Court must be satisfied that—
(a) the person lacks testamentary capacity; and
(b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c) it is reasonable in all the circumstances that the order should be made.
(4)In considering an application for an order under this section, the Court must take into account the following matters:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of—
(i)the beneficiaries under any will previously made by the person;
(ii)any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii)any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv)any other person who has cared for or provided emotional support to the person;
(e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f) the likely size of the estate;
(g) any other matter that the Court considers to be relevant.
(5)An order may be made under this section in relation to a minor.
…
(12)In this section—
testamentary capacity means the capacity to make a will1.
Note—
1The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
Rule 98 of the Probate Rules is relevant to section 7 of the Wills Act and concerns the making of a will for a person lacking testamentary capacity pursuant to permission of the court.
The legislation contemplates a two-stage process: an application for permission to proceed and, upon permission being granted, an application for an order authorising the will.[2] The purpose of a grant of leave to proceed is to provide a mechanism by which baseless or unmeritorious applications are screened out.[3] In proceedings such as this, where the application is not obviously without merit, it is appropriate that leave to proceed and the substantive application be heard concurrently.[4] DJW lacks testamentary capacity and is unlikely to ever gain that capacity. His estate is substantial. It is sensible that DJW’s assets should not go on intestacy.[5] Accordingly, good reasons exist to grant leave to proceed with the application.[6]
[2] Bryant v Blake (2004) 237 LSJS 23, 28.
[3] Hoffmann v Waters (2007) 98 SASR 500, [10] citing Monger v Taylor [2000] VSC 304, [22]; see, e.g., Boulton v Sanders (2004) 9 VR 495, [11]; Bryant v Blake (2004) 237 LSJS 23, [28]; see also Re Fenwick (2009) 76 NSWLR 22, [119]-[125].
[4] Hoffmann v Waters (2007) 98 SASR 500, [10].
[5] See Re Palmer [2003] VSC 21, [17].
[6] See Hoffmann v Waters (2007) 98 SASR 500, [10].
Statutory will applications are becoming increasingly prevalent in Australia, giving rise to a developing body of jurisprudence.[7] In South Australia, I have considered a number of cases concerning statutory will applications.
[7] See Richard Williams and Sam McCullough, Statutory Will Applications: A Practical Guide (LexisNexis Butterworths, 1st ed, 2014) Chapter 8.
In the Matter of Rak[8] involved an unopposed statutory will application by the parents on behalf of their son, a 30 year old man, Anthony, who had suffered a severe hypoxic brain injury when aged five years as a result of choking on part of a toy person. Anthony had assets totalling approximately $4,120,000.00 from a compensation payment. This was a “nil capacity” case in which there was no evidence before the Court about the proposed testator’s testamentary intentions. Anthony’s parents were, in effect, concerned that if they died before Anthony, the part of his estate that would pass to his brother Damien would not be managed effectively as Damien had a form of autism and there was evidence that he lacked mental capacity to manage his own affairs. The proposed will, in substance, divided the estate into four equal parts between Anthony’s parents and Anthony’s siblings, Katrina and Damien. The benefit conferred upon Damien was to be held under a protective trust for Damien. Evidence was adduced of the close relationship of Anthony with his parents and siblings. Granting permission to proceed and ordering the authorising of the making of the will in the terms proposed, I found that Anthony lacked testamentary capacity and that the proposed will reflected his likely intentions.
[8] In the Matter of Rak [2009] SASC 288.
In In the Matter of Shaun Arthur Pickles,[9] an application for a statutory will was made by the parents of Shaun, who was aged 23 years and severely disabled as a result of an injury at birth. Shaun’s condition was permanent with no prospect of recovery. The size of Shaun’s estate was substantial, having received damages in the amount of $7,000,000.00 through proceedings in the District Court. The unique aspect to the application was the provision of a gift to Sean’s carer in the proposed will. The Court received evidence from Shaun’s parents, Shaun’s carer herself, counsel appointed to act for Shaun and counsel appointed to act for his sister. Upon this evidence, I considered Shaun’s carer to be a worthy recipient of a legacy. I ultimately found that good reasons existed to grant leave to proceed with the application and so granted permission. Granting the application, I found that Shaun lacked testamentary capacity, that the proposed will reflected his likely intentions and that it was desirable for an intestacy to be avoided by the granting of an order allowing the application for a statutory will.
[9] In the Matter of Shaun Arthur Pickles [2013] SASC 175.
Testamentary Capacity
In Pickles,[10] I summarised the principles relating to testamentary capacity as follows:[11]
Testamentary capacity is defined as “the capacity to make a will”.[12] The legislative note explains that the cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
In Banks v Goodfellow,[13] a test for capacity was advanced by Cockburn CJ. His Honour held that to have sufficient capacity a testator must understand the nature of the will and its effects, comprehend the extent of the property which is being disposed of, and understand and appreciate the claims to which he or she ought to give effect.[14] In In the Will of Wilson, Hood J observed that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular, and ordinary manner.”[15] These observations were cited with approval by Dixon J in Timbury v Coffee.[16]
[10] In the Matter of Shaun Arthur Pickles [2013] SASC 175.
[11] In the Matter of Shaun Arthur Pickles [2013] SASC 175, [16]-[17]; see also In the Matter of Rak [2009] SASC 288; Re Brown [2009] SASC 345; In the Matter of De Jager [2012] SASC 236.
[12] Wills Act 1936 (SA) section 7(12).
[13] Banks v Goodfellow (1870) LR 5 QB 549.
[14] Banks v Goodfellow (1870) LR 5 QB 549, 565.
[15] In The Will of Wilson (1897) 23 VLR 197, 199.
[16] Timbury v Coffee (1941) 66 CLR 277, 283; see also Re Fenwick (2009) 76 NSWLR 22, [126].
Mark McDonough, Manager of Trust and Fiduciary Services for Australian Executor Trustees, annexed copies of two medical reports to his affidavit sworn on 26 March 2013. The first was a report of Michael Harbord, a paediatric neurologist, dated 29 April 2010. The second was a report of Peter Flett, a consultant physician in both paediatric and rehabilitation medicine, dated 13 April 2012. The evidence from Dr Harbord and Associate Professor Flett outlines DJW’s disabilities and makes clear that DJW lacks the requisite capacity to make a will and that DJW will not ever gain that capacity.
The purpose of Dr Harbord’s report was to obtain an estimated life expectancy of DJW. The report was not directed at assessing DJW’s testamentary capacity. The report is also almost four years old. In spite of these limitations, some of Dr Harbord’s observations are relevant for the purposes of the within application. With regard to DJW’s ability to communicate, Dr Harbord observed:
[DJW] has no speech nor any meaningful communication, suggesting that he probably does have a severe intellectual disability. He prefers to wander around the classroom at school, and finds it difficult to sit down and perform any activities. At home his favourite pastime is to stand at the front door looking out. There is no history of any regression in his developmental abilities.
Dr Harbord considered that DJW most likely has a severe intellectual disability and will never be able to work:
[DJW] probably has a severe intellectual disability, and is not likely to be able to obtain employment in the mainstream workforce, nor in a sheltered workshop. Most likely he will require a day options programme, which will involve close supervision due to his independent ambulation, and his hyperactivity. He could potentially walk into dangerous environments if not adequately supervised. [DJW] is totally dependent for all aspects of his care, and this is likely to continue in adulthood. He is not ever likely to be able to drive a car independently, and therefore will require assistance with transport. I suggest an opinion about these requirements also be obtained from a paediatric rehabilitation specialist and an occupational therapist.
While the report was not directed to assessing testamentary capacity, it makes clear that DJW’s disabilities are significant and that his intellectual capacity is severely limited.
Associate Professor Flett’s report was also created for the purpose of the District Court proceedings, rather than as an assessment of DJW’s testamentary capacity. Again, observations of Associate Professor Flett expressed in that report are relevant to the question of testamentary capacity. Associate Professor Flett observed the following with regard to DJW’s presentation:
[DJW] presents with severe multiple disability. His diagnoses are severe intellectual disability, cerebral palsy and cortical visual impairment. He is fully dependent for personal care and all other activities of daily living; he requires constant supervision when active or mobilising; he has limited purposeful upper limb function either unilateral or bimanual to assess; he does not speak and even non-verbal communication with his mother seems limited or non-existent; he is incontinent.
In her affidavit, Ms Millard, representing DJW’s litigation guardian, relevantly observed the following in relation to DJW’s testamentary capacity:
On entering the house, [DJW’s mother] “introduced” me to [DJW], who was sitting in a wheelchair in the hallway of the house. He did not respond to the introduction from his mother, or my greeting to him, although his eyes appeared to focus on me briefly. [DJW] presented as a boy of slight build with evident physical disabilities.
I endeavoured to engage with [DJW] in a very basic conversation, but again he provided no response. He did not give any indication that he had the ability to speak or that he was understanding the conversation.
…
During my time at [DJW’s] home, I noted that he did not at any time sit down to play or undertake any particular activity, but wandered from room to room through the house on a continuous basis.
Ms Millard noted, in particular, that “there is no doubt he presented as lacking ability to communicate his wishes”.
DJW’s mother is a full-time carer for DJW. In her affidavit sworn on 15 April 2013, she observed:
As the years have progressed, [DJW’s] problems have become more obvious. He has no capacity for communication, he has behavioural impairments. This has proven very difficult from a care perspective as he cannot communicate what he needs.
With regard to DJW’s testamentary capacity, DJW’s mother opined:
[DJW] has never made a Will and I do not believe that [DJW] has the capacity to make his own Will.
He is a minor, he cannot communicate and he cannot tell us what he is thinking.
I do not believe that [DJW] has testamentary capacity.
I am satisfied on the evidence outlined above that DJW lacks testamentary capacity.
Likely Testamentary Intentions
Section 7(3)(b) of the Wills Act requires that the court, before making an order under section 7(1), be satisfied that the proposed will accurately reflects the likely intentions of the testator if that person had testamentary capacity.
In finding whether the proposed will accurately reflects the likely intentions of the proposed testator, the law distinguishes between “lost capacity” and “nil-capacity” cases. I discussed this distinction in Re Brown.[17] I adopt and apply my observations in that case.
[17] Re Brown [2009] SASC 345.
In Re Fenwick, Palmer J classified cases where a person has been born with mental infirmity or has lost testamentary capacity well before ever being able to develop any notion of testamentary disposition as “the nil capacity cases”.[18] His Honour observed:[19]
As, in the absence of a statutory will, the person in a nil capacity case must inevitably die intestate, I do not think that the Court starts with the meaningless question: would this particular person have chosen to make a will if he or she had attained testamentary capacity? Rather, I think that the Court must start from the position that, if there are assets of any significance in the minor's estate, it should authorise some kind of statutory will unless it is satisfied that what would occur on intestacy would provide adequately for all the reasonable claims on the estate.
… In a nil capacity case, where there cannot be any meaningful search for actual or likely subjective intention, the Court of necessity must make objective assessments of likelihood. The Court can take notice of the fact that people in our society who have assets of any worth and who have a family and other relationships usually choose to make wills rather than die intestate. In my opinion, the Court can be satisfied by reference to common experience that if the incapacitated minor had attained testamentary capacity and had assets of any significant worth, then it is reasonably likely - in the sense of a fairly good chance - that, in common with most people, he or she would have chosen to make a will.
[18] Re Fenwick (2009) 76 NSWLR 22, [26]-[27].
[19] Re Fenwick (2009) 76 NSWLR 22, [172]-[173]
There is obvious difficulty associated with attempts to identify the likely intention of a person who has never had testamentary capacity.[20] When there are significant assets in an estate the subject of a statutory will application, it is necessary to consider whether intestacy would adequately provide for all reasonable claims on the estate.[21] This may be assessed by reference to the relationship of the defendant with relevant persons. Further, there exists a general proposition that persons with assets of value commonly make wills rather than die intestate.[22]
[20] See In the Matter of Rak [2009] SASC 288, [19]; Re Fenwick (2009) 76 NSWLR 22, [171].
[21] Re Fenwick (2009) 76 NSWLR 22, [172].
[22] See, e.g., In the Matter of Rak [2009] SASC 288, [23]; Re Fenwick (2009) 76 NSWLR 22, [173].
Under the rules of intestacy, DJW’s estate would be left to his parents in equal shares. In the event that his parents predecease him, his estate would pass to his siblings. In the event that DJW’s siblings, in addition to his parents, predecease him, more distant relatives would benefit.
There was some dispute between the parties concerning DJW’s likely testamentary intentions.
DJW’s mother provided the following opinions concerning DJW’s likely testamentary intentions in her 15 April 2013 affidavit:
I believe that if [DJW] were able to prepare his own Will at this time, he would want me to inherit his estate.
[DJW’s father] has barely acknowledged [DJW] in the eight years that we have been separated.
I understand that if [DJW] were to pass away without a Will then his father … would be entitled to a half share of his estate.
It is my firm view that [DJW] would not want [his father] to have any entitlement under his estate.
I believe that [DJW] would want me to inherit his estate but that if I were to die before [DJW], I believe that he would want the estate to be broken into two equal shares between [DJW’s sister E] (or her children if she predeceased [DJW]) and [DJW’s half-sister S] (or her children if she predeceased [DJW]).
In contrast, DJW’s father submitted that he considered that DJW would want to make provision for him in his will, observing:
I do not oppose the Court authorizing the making of a statutory will for [DJW]. I consider that the proposed will in terms of the draft will annexed to the affidavit of Mark McDonough sworn on 26 March 2013 (‘the proposed will’) does not reflect the likely intentions of [DJW] if he had testamentary capacity.
I consider that [DJW] would want to make some provision for me in his will.
I believe that notwithstanding [DJW’s] disabilities and my inability to spend substantial time with him, he would still want me to receive a benefit under his estate.
Further, I believe if anything happened to either [DJW’s mother] or myself, [DJW] would wish the entire estate to go to his surviving parent and then to his sister [E].
Ms Millard put forward another view of DJW’s likely testamentary intentions, observing:
If [DJW] had testamentary capacity, and his estate remained extremely large at the date of his death, I believe that he may not choose an outright gift of the whole of his estate to [his mother]. The terms of the proposed Will allow for the possibility that all the assets of [DJW’s] estate might then be used by [DJW’s mother] to purchase assets jointly owned with [DJW’s mother’s partner] or a subsequent partner. This would have the result of excluding any indirect benefit from [DJW’s] estate passing upon [his mother’s] death to [his sister E] or [his half-sister S].
Ms Millard put forward an alternative scheme, including a pecuniary legacy to DJW’s mother with the balance of the estate to be held on trust for her lifetime, and the remainder interest being divided upon her death between DJW’s sister E and half-sister S. Ms Millard noted an additional difficulty in this matter in that appropriate provisions of a will for DJW could change in the future when his estate may have significantly diminished in size from his ongoing maintenance and benefit. A further consideration relating to the vesting of DJW’s sisters’ interests was highlighted. It was suggested that a preferable vesting age might be 21 years of age rather than 18, due to the potential size of the estate.
Ultimately, as mentioned above, the parties agreed on the terms of a proposed will. To ascertain whether the proposed will accurately reflects DJW’s likely testamentary intentions, it is necessary to consider DJW’s relationship with the relevant persons.
DJW’s Relationship with His Mother
It is apparent from the material that DJW’s mother is DJW’s primary carer. Ms Millard observed on her visit to DJW’s home that within the confines of his disabilities, DJW has a “good relationship” with his mother, her partner and his half-sister S.[23]
[23] DJW’s sister E was at school and not at home at the time of Ms Millard’s visit. As such, Ms Millard was unable to comment on her perception of their relationship.
It is to be borne in mind that the District Court settlement included an allowance of $250,000.00 on account of gratuitous services of DJW’s mother. In addition, she is in receipt of a Commonwealth government carer’s allowance.
DJW’s Relationship with His Father
As outlined above, there is some dispute concerning the role that DJW’s father has played and attempted to play in DJW’s life. It was said by DJW’s mother that DJW’s father had limited involvement with DJW when he lived with DJW and his mother, and that he had not seen DJW for some eight years as at the date of swearing her affidavit. It was put to the contrary by DJW’s father that he had been quite involved in DJW’s upbringing in his younger years and that since the separation attempts had been made to see his son. It was said by DJW’s father that he would like to have a close relationship with DJW but that it was difficult due to the lack of appropriate facilities at his home.
The evidence concerning DJW’s level of affection toward his father is in dispute. It was said by DJW’s mother that DJW does not show excitement when he sees his father. She explained that DJW jumps up and down and pushes against a person when he is excited to see them but that he does not do this when he sees his father. It was said by DJW’s father that he tries to speak with DJW when he picks up and drops off DJW’s sister E, but that DJW’s mother has criticised him in front of the children and so he has stopped trying to talk to DJW when DJW’s mother is present.
While these matters remain in dispute on the affidavits before the Court, the parties have jointly suggested a 25 per cent share of the residuary estate to the father upon the death of DJW. It is apparent from the material that DJW’s father was involved to some degree in the raising of DJW in his early years, prior to the separation of the parents in 2005. It is also apparent that the role he has played in recent years has been extremely limited. To my mind, the percentage share suggested is appropriate.
DJW’s Relationship with His Sister E
DJW’s mother and father both agree that DJW would likely wish his sister E to be a beneficiary in his will. Other than this agreement, there is little evidence before the Court concerning DJW’s relationship with his sister, other than that he has regular contact with her, presumably in the shared familial home with his mother.
DJW’s Relationship with His Half-Siblings
During her visit to DJW’s home, Ms Millard observed of DJW’s relationship with his half-sister S the following:
While I was talking with [DJW’s mother] and [her partner], [DJW’s half-sister S] also came in and out of the kitchen, and showed me some of her toys. She appeared to be quite at ease with [DJW’s] presence, but did not seek to have direct interaction with him. He did not take any particular interest in [S] or her toys.
Other than asserting that, of his siblings, DJW only has contact with his sister E and half-sister S, DJW’s mother does not describe any further the relationship DJW has with S.
Contrary to DJW’s mother’s submissions, DJW’s father deposed in his affidavit that he was of the opinion that DJW would wish the entire estate to go to his surviving parent and then to his sister E in the event of the death of either DJW’s mother or father. DJW’s father did not mention DJW’s half-sister S.
It is not clear on the evidence whether DJW lives with his half-sister S. DJW’s mother deposed that her current partner maintains his own home. In spite of this, it seems that DJW and S are comfortable to the degree possible in each other’s company, given DJW’s intellectual disabilities, suggesting regular contact and a stable relationship.
In addition to his sister E and his half-sister S on his mother’s side, DJW has a half-sister A and a half brother N on his father’s side. DJW’s father has since remarried and has six step-children of that marriage, making them step-siblings of DJW. Of his siblings, DJW seems to only have contact with his sister E and his half-sister S.
The proposed will is complex. The following are its substantive effects. The proposed will provides for number of benefits to DJW’s mother. An indexed legacy of $100,000.00 is first provided. Next, a gift of real estate comprising DJW’s principal place of residence. If there is no such place of residence, then a gift in lieu of an indexed amount of $400,000.00 is provided. DJW’s mother is then to receive the income from three-quarters of the residuary estate throughout her life. On the mother’s death, there is to be an equal division of that residuary estate to DJW’s sister E and his half-sister S on his mother’s side. In the event that DJW’s mother predeceases him, the legacy as earlier referred to is to pass to his sister E and his half-sister S. 75 per cent of the residuary estate is to pass to his sister E and his half-sister S. The remaining 25 per cent is to pass to DJW’s father. The proposed will provides that the remaining 25 per cent of the residuary estate is to pass to DJW’s father.
The proposed will provides that the trustee should stand possessed of DJW’s mother’s residuary trust fund as of the date of her death for his sister E and his half-sister S in equal shares upon their attaining 21 years of age.
I am not satisfied that the proposed will accurately reflects the likely intentions of DJW if he had testamentary capacity. I am also of the view that it is not reasonable in the circumstances to make an order authorising such a statutory will as proposed.
In my view DJW would have regard to the fact that his mother received a substantial award in respect of gratuitous services that she would render to him and that the amount of $250,000.00 has been set aside and held in trust for his mother. DJW would also have regard to the fact that his mother receives a carer’s allowance. Further, DJW would have regard to the fact that his mother receives the benefit of the family home, day-to-day living expenses, a vehicle and the maintenance of ongoing expenses associated with that vehicle from his award. I consider that DJW, if he had testamentary capacity, would recognise the very substantial benefits that have flowed and will continue to flow to his mother as she cares for him throughout her life.
I consider that DJW would recognise that his mother, his father and his full sibling E would have a primary claim on his bounty and would wish to benefit those persons directly in his will. Having regard to the benefits already available to his mother, I consider that his likely intention would be to leave half of his residuary estate to his mother. If she were to predecease him, he would wish that that half of his residuary estate would devolve equally between his sister E and his half-sister S.
I consider that it is likely that DJW would leave one quarter of his estate to the siblings with whom he has regular contact, E and S.
I consider that it is likely that DJW would leave the remaining one quarter of his estate to his father and, if he were to predecease, that remaining one quarter of the estate would devolve to his half-sister on his father’s side, “A”. One would have thought it very much in DJW’s interest to have contact with the half-sibling on his father’s side. DJW would also have had regard to the significant portion of his estate left to E and S.
Further affidavit material of DJW’s father was filed concerning DJW’s contact with his half-siblings on his father’s side. DJW’s father deposed that he had had no contact with his son “N” since he was aged three years, when N’s mother arranged a meeting to tell DJW’s father that they were “moving away”. DJW’s father was not informed about where they were moving to, nor how he could contact them. He has had no contact with N since that time, in spite of efforts to locate him. I accept that in the case of DJW’s half-brother N, the father’s lack of relationship and contact with that son renders it impossible to consider taking further steps in that respect.
A is presently 23 years of age and lives with her maternal grandmother. DJW’s father lost contact with A when she was aged about two years due to a falling out with her mother. When aged about 18 years, A sought contact with DJW’s father. Since then, the relationship has consisted of fortnightly telephone calls and meetings in person several times per year. A is aware of DJW and his disability and sometimes enquires after his welfare. DJW’s father deposed that A indicated to him that she would like to see DJW, if given the opportunity.
I take the view that DJW would be likely to recognise that there will be a need to review his will from time to time and to adjust his will having regard to any change in relevant circumstances.
DJW’s Relationship with His Extended Family
DJW’s mother deposed in her affidavit that DJW has a half uncle on her mother’s side and three half uncles on her father’s side, none of whom he has contact with. DJW’s mother thought it unlikely that DJW would want them to benefit from his estate. There was no evidence before the Court of any uncle or auntie on DJW’s father’s side.
I accept in the circumstances that DJW would be most likely to wish to benefit his immediate family members as discussed above.
Reasonableness of the Order
The matters to which the court shall have regard in making a will in respect of a person who lacks testamentary capacity are detailed in section 7(4) of the Wills Act, as earlier extracted.
DJW’s estate is substantial. It is likely that if he had testamentary capacity, he would wish to make a will to benefit those of his immediate family who care for and love him. The evidence of DJW’s relationships with his mother, his sister E and his half-sister S is an indication of the people whom he might wish to benefit if he had testamentary capacity. It may also be accepted that DJW would wish his father and his half-sister A to benefit from his estate. As discussed above, to my mind, the parties’ suggested apportionment of 25 per cent of the residue to DJW’s father seems appropriate in this respect.
It is worth noting that it has been particularly difficult in this matter to ascertain DJW’s likely testamentary intentions, given the limited evidence of obvious affection, other than the references to the soft head butting. I contrast in this respect the decisions of Pickles[24] and Rak,[25] where the likely testamentary intentions of the persons the subject of the applications were clearer based on the evidence. In spite of this, I am satisfied that the statutory discretion is enlivened.
[24] In the Matter of Shaun Arthur Pickles [2013] SASC 175.
[25] In the Matter of Rak [2009] SASC 288.
DJW has no prior will and shows no prospect of acquiring testamentary capacity. I am satisfied that the interests of his parents and sisters will be adequately protected under the proposed will once the earlier discussed amendments have been made.
It is a matter of considerable concern that this proceeding has taken more than a year to resolve. A number of factors have led to this delay. At the outset, DJW’s father was not served with the proceedings. It was only following the Court’s intervention that he was served, appeared and was represented. He was clearly a necessary party as his interest on an intestacy would have been affected by the then proposed will. The Court experienced great difficulty in ascertaining the full terms of DJW’s settlement and, ultimately, had to call for the District Court file to allow the Court to be fully and properly informed. It transpired that DJW’s mother had a greater interest in the monies the subject of the settlement than had been previously disclosed. Disputes arose between the parents of DJW as to their role in his care and upbringing to date and in the future. If DJW were cognisant of the dispute between his parents, it is likely that he would be horrified. I think it is probable that the parties have misunderstood the purposes of statutory wills and the role of the Court in being satisfied that a statutory will should be made in a particular case. The focus of the Court’s attention in this case is on DJW, not on the differences and ill-feeling between his parents.
Early in the proceedings, the Court expressed the view that it was highly probable that DJW would have wished a simple and straightforward testamentary disposition. I have provided the Registrar of Probates with a draft of these reasons and requested that he prepare a draft will in accordance with these reasons. The draft will appearing as a schedule to these reasons is in a form that I am prepared to approve and direct the Registrar to sign.
Conclusion
I am not satisfied that the proposed will advanced by DJW’s parents properly reflects DJW’s likely testamentary intentions. The solicitor appointed to represent DJW, having become aware of the benefits passing to DJW’s mother as part of the litigation settlement, distanced her client from some of the terms of the proposed will. In my view, she was correct to do so.
I am satisfied, however, that the testamentary dispositions I have outlined above reflect DJW’s likely testamentary intentions and that it is desirable for an intestacy to be avoided by the granting of an order allowing an application for a statutory will in those terms.
It is to be understood that, if following the making of a statutory will, a material change of circumstances occurs, the Court may be approached again for the making of a codicil or further statutory will.
SHEDULE
THIS IS THE LAST WILL AND TESTAMENT of me [DJW] of [address] in the State of South Australia, authorised by an order dated the 25th day of March 2015 made under sections 6 and 7 of the Wills Act 1936.
1I REVOKE all former Wills and Codicils made by me.
2I APPOINT AUSTRALIAN EXECUTOR TRUSTEES LIMITED of 44 Pirie Street Adelaide in the said State to be the sole executor and trustee of this my Will.
3I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate to my trustee upon trust to pay thereout my funeral and testamentary expenses and debts and all the duties payable in respect of my estate and to divide the residue of my estate into four equal parts and stand possessed of those parts as follows:-
(A)As to two parts for my mother [MB] provided she survives me for a period of 28 days BUT if she does not survive me for a period of 28 days then for such of my sisters [EKW] and [SKD] as survive me and attain the age of 21 years and if both then in equal shares between them;
(B)As to one part for my father [WDW] provided he survives me for a period of 28 days BUT if he does not survive me for a period of 28 days then for my sister [AW]; and
(C)As to the remaining part for such of my sisters [EKW] and [SKD] as survive me and attain the age of 21 years and if both then in equal shares between them.
4I EMPOWER my trustee:-
(A)To apply the whole or any part of the contingent or vested share in the capital and income of my estate of any beneficiary of this my will under the age of 21 years towards the maintenance education or advancement in life or generally for the benefit of such beneficiary and I further empower my trustee in its discretion to make such payments to the guardian for the time being of such beneficiary or to any person with whom such beneficiary may be living without being in any way answerable for the application thereof.
(B)At such time or times as my trustee shall think fit and in such manner and upon such terms and conditions as my trustee shall think fit to sell call in or convert into money any part or parts of my estate which shall not consist of money.
(C)To appropriate any part or parts of my estate in or towards the satisfaction of the share or interest of any beneficiary in my estate and for such purpose to determine the value or values of any asset or assets to be so appropriated.
(D)To determine in the absolute discretion of my trustee (in the event of my trustee disposing of or being deemed to have disposed of an asset) what part or parts of the capital or income of my trust estate will be resorted to in payment of any income tax liability flowing from the disposal or deemed disposal.
(E)From time to time to lease or let all or any part of the real or leasehold property forming part of my estate and remaining unsold either from year to year or for any period not exceeding three years at the best rent to be obtained therefor and in its absolute discretion to manage and superintend the management of such real or leasehold property and generally to deal therewith in a proper and due course of management as if beneficially entitled thereto.
DATED this day of 2015
Registrar of Probates
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